Eayo George and Others vs Kacki Muthaliyar Aley Muthaliyar and Others

Govinda Pillai, J.—Defendants 1 to 3 are the Appellants. The case of the parties is correctly recorded in paragraphs 1 and 2 of the judgment of the Court below as follows:

The suit is for recovery of property with arrears of pattom. The plaint properties belonged to deceased Ayim Muthaliyar, father of D4 and grandfather of D5. One Lekshmana Iyer in execution of a decree against Ayim Muthaliyar in O.S. 57 of 1093 of the Alleppey District Court purchased the properties and obtained delivery through Court. The Plaintiff has taken a sale deed from Lekshmana Iyer. Deceased Rockey Eyo, father of Defendants 1 to 3 had executed a lease deed in favour of Ayim Muthaliyar on 27-1-1095. Defendants 1 to 3 are now in possession under that lease deed. According to the terms of the lease deed the Defendants are entitled to 870 fanams, 2 chs. 12 cash towards the value of improvements. The arrears of pattom amount to fanams 407-2-14. Arrears of pattom for 3 years before date of suit amount to fanams 200-0-0. The barred arrears viz., fs. 207-2-14 are set off against the value of improvements. The property has not been surrendered in spite of demand. Hence the suit to recover the property on payment of the value of improvements after setting off the arrears of pattom.

Defendants 1 and 2 alone contest. The 1st Defendant contends that he has never been in possession of the properties and that he is not liable for any of the plaint claim. The 2nd Defendant contends that the properties are not redeemable, that the documents executed in respect of those properties were all obtained through force and fraud, that pattom has been paid till date of suit, that the provision in the lease deed regarding the of valuing improvements is unenforcible, that the Defendants are entitled to Rs. 1000 as value of improvements, that the set off claimed is not allowable and that he should get his costs. The Plaintiff has filed a replication reiterating all the plaint allegations.

The lease deed in this case is Ext. A dated 27-1-1095. A similar lease deed Ext. D dated 16-5-1095 for other properties was executed by Rockey Eyo and those properties were also obtained by the present Plaintiff by assignment from the auction-purchaser in O.S. 57 of 1093 of Alleppey District Court. The suit on that is O.S. 520 of 1117 for recovery of possession of the properties with arrears of rent on payment of value of improvements as provided for in that document. The contentions of the parties are similar, except as regards the total value claimed towards improvements. That suit was decreed and the appeal by the very same persons is A.S. 35 of 1124. Rocke Eyo had also taken on lease from this Plaintiff other properties under lease deeds Ext. B dated 29-5-1095, Ext. C dated 17-11-1094 and Ext. F dated 18-11-1094. Three other suits, O.S. 600 of 1117, O.S. 596 of 1117 and O.S. 572 of 1117, were respectively filed on these documents for recovery of possession of properties after settlement of accounts. The contentions proceeded on grounds identical to those raised in O.S. 548 of 1117 (A.S. 412 of 1124). All these suits were decreed and the appeals against these decisions are respectively A.S. 411, 413 and 414 of 1124.

These five suits were tried together by consent of parties and the evidence was recorded in O.S. 548 of 1117. The leading judgment was also written in that case. In this Court also all the appeals were heard together.

In the Court below it had been found that the Defendants 1 to 3 were entitled to value of improvements only on the basis given in the several lease deeds, that the plea of discharge was not true, that the 1st Defendant also was liable for arrears of pattom and that the Plaintiff was entitled to recover possession of the properties as the Defendants were not holding the properties on any irredeemable tenure.

The question that was strenuously argued related to the mode of assessment of the value of improvements. In the lease deeds it had been provided as to how the value of bearing and non-bearing trees, and of the buildings, was to be ascertained and paid for at the time of redemption. This was at variance with the general rule relating to value of improvements, that is, that the tenant would be entitled to three-fourths of the value of trees planted, and to the full value of the buildings. Any variance from this rule, even if the parties had agreed to the same, was argued to be unconscionable and it was pressed that the Courts were to relieve the parties of such unconscionable bargain. There is no force in this argument. We had recently considered the identical question in - ''Pakavathi Neelacantan v. Ummini Pillai Lekshmi Pillai'' AIR 1952 TC 295 (A). All the important decisions in this matter were considered by us. It is not necessary therefore to refer in detail to those decisions. We had come to the conclusion that the law of landlord and tenant as administered in Travancore did not impose any restriction on the freedom of the parties to make contracts regarding value of improvements, that the law recognises no distinction whether the value is fixed before the improvements are made or after it, that it is for the owner to decide what use he should make with his land and that if a mortgagee or a lessee is given possession of a land with specific directions as to what he should do with it or what improvements he should make thereon, he cannot disobey these directions or make such use as he in his wisdom deems fit, so as to claim compensation for improvements effected according to his whims and fancies. The rights of parties in regard to their contractual relationship have to be respected.

The case - Karnani Industrial Bank Limited Vs. The Province of Bengal and Others, dealt with a lease granted by the Respondent in that case to the Appellant there. There was a clause in the lease deed giving liberty to, the lessee to keep on the demised premises for, three months after the expiration of the lease any bricks, boilers etc. It also provided that any bricks or other materials left in contravention of this condition shall become the absolute property of the Secretary, of State without payment. Since the materials were not removed for three months after the lease terminated by efflux of time, it was held by their Lordships that by virtue of the said clause those materials had become the absolute property of the lessor. If a lessee could lose his right over his own properties by virtue of the provisions in the contract of lease, he could also be bound by the terms of his contract to limit his claim to value of improvements, and there is nothing unconscionable in the bargain. We therefore overrule this contention of the Appellant.

It was then argued that the terms in the lease deeds were to be applied only in regard to the improvements effected during the currency of the term provided for in the lease. Even after the expiration of the term in the lease deed, the relationship between the parties as landlord and tenant continues, when the tenant pays the rent and the landlord accepts the same, and the conditions under which the parties would be governed would be those of the original lease deed (vide Section 116 of the Transfer of Property Act). It is the practice to value the improvements at the time of redemption on the terms previously agreed to, though such redemption is long after the expiry of the period fixed. The decisions in - ''Kunjan v. Krishna Panicker'' 16 TLJ 506 (C) and - ''Poothathan v. Kunjahammathu Pillai'' 14 TLJ 453 (D) also support this view. Only one mode of assessment of value of improvements was in the contemplation, of the parties, and that was to be applied at the time of redemption. There is no merit in this contention as well.

Thus, the improvements are to be assessed as provided for in the lease deeds. It was not shown that the tenants would be entitled to anything more than that awarded by the lower Court on such valuation. The findings of the Court below in all the cases on this question are confirmed.

The next question relates to the discharge pleaded. Admittedly, the Defendants have no receipt for rent and other dues paid. The accounts relating to the transactions in all the five cases maintained by the Plaintiff were called for by the Defendants and produced in this case. That completely makes out the Plaintiff''s case. Except that a few day book entries were not noted in the ledger on the dates shown in the day book, there was nothing to discredit these accounts. The Plaintiff as D.W. 3 had stated that when these omissions were detected, they were really entered in the ledger, but on a different date. The Defendants had at times examined, the Plaintiff''s accounts and they had nothing to say against the correctness of the entries there. Part .collar mention was made of two entries, i.e., a sum of Rs. 65-13-3 debited against the Defendants on 31-12-1104 towards Adukkavathu, and Anr. sum of Rs. 25 debited on 21-7-1096 towards vakil''s fees. The Plaintiff had sworn that it was the customary practice to levy Adukkuvathu even though it was not specifically provided for in the lease deeds and that this sum would be evenly distributed during the period of tenancy so that it would become exhausted by the time the period was over. As regards the vakil''s fees, it was stated that it was on the request of the Defendants that he obtained on assignment the sale right under O.S. 57/1093 and that with their consent he had debited them with the fees paid to the vakil. The Defendants had examined the accounts after these debits were made and they had nothing to say against the same. There is nothing shown to discredit the Plaintiff''s accounts which negative the defence plea of discharge. It is held that the Defendants have not proved this plea.

The last point argued was that the 1st Defendant was a Priest and that he had not enjoyed these properties so that he was not personally liable for the arrears of pattom. Defendants 1 to 3 are brOrs. and after their father''s death, in 1108 or 1109, they had not divided his properties. The Plaintiff had sworn that he had also seen the first Defendant taking the yield from these properties and that the first Defendant had assured him of an early payment of the arrears of rent. The 1st Defendant has not gone to the witness box to swear to his case. Under these circumstances, the view of the lower Court that he too is liable for the arrears of pattom is not wrong.

In the result the decree of the lower Court is confirmed and this appeal dismissed with costs.