Etathil Chandu Kutti vs Viayathen Mahadevi and Others

Jackson, J.—Second appeal from the judgment of the Subordinate Judge, Calicut, in A.S. No. 81 of 1923, from O.S. No. 581 of 1920,

Additional District Munsif, Calicut.

The appellant is a sub-lessee in Malabar holding under a kanomdar. The first respondent, plaintiff, has sued to redeem'' the kanom, and has

obtained a decree. Appellant and the kanomdar are disputing as to who is entitled to the compensation for the improvements which admittedly

exist. The District Munsif ordered that the amount in dispute between defendants 1 to 8 and 12 will be paid by plaintiff and kept in Court deposit

to be paid out to whoever establishes his title. The Subordinate Judge finds that this direction is obviously right. The plaintiff has accordingly paid

the amount in Court. The 12th defendant appeals on the ground that under Madras Act I of 1900 he cannot be ejected from possession until the

compensation for his improvements has been ascertained and paid to his credit. The plaintiff contends that, so long as he has deposited the value of

the improvements into Court, he has conformed to the Act, and the 12th defendant may be left to fight out his claim for compensation with

defendants 1 to 8 after ejectment. The determination of this question is the sole point raised in this second appeal.

Section 5(1), Act I, 1900, lays clown that every tenant shall on ejectment be entitled to compensation for improvements and every tenant to

whom compensation is so due shall, notwithstanding the determination of the tenancy or the payment or tender of the mortgage money (if any), be

entitled to remain in possession until ejectment in execution of a decree or order of Court. Then Section 6(1) provides:

In a suit for ejectment instituted against a tenant in which the plaintiff succeeds and the defendant establishes a claim for compensation due u/s 5 for

improvements, the Court shall ascertain the amount of the compensation and shall pass a decree declaring the amount so found due and ordering

that on payment by the plaintiff into Court of the amount so found due and also the mortgage money (if any) the defendant shall put the plaintiff into

possession of the land with the improvements thereon.

And u/s 6(3), the amount of compensation for improvements made subsequent to the date up to which compensation for improvements has

been adjudged in the decree shall be determined by order of the Court executing the decree and the decree shall be varied in accordance with

such order. It is clear, therefore, that under the statute the tenant is entitled to compensation for improvements, the Court shall ascertain the amount

of compensation, shall pass a decree declaring the amount to be due, and the plaintiff shall pay that amount into Court, and then the defendant shall

put the plaintiff into possession of the land. If improvements have accrued subsequent to the date of the adjudication of their value the Court

executing the decree shall vary the decree accordingly.

It has been held in Sankaran Nambudripad v. Sankaran Nair ILR (1921) M. 960 that, if the landlord pays compensation as originally decreed,

although the tenant may have established a claim for compensation for improvements made subsequent to the date of adjudication, and although

that amount has neither been ascertained nor has been paid into Court, and although the decree has not been varied, the landlord may nevertheless

eject the tenant and leave him to apply, when no longer in possession, for a modification of the decree. The reasons given for this decision are that

Section 5 does not make the payment of the compensation a condition precedent to ejectment; and Section 6(3) does not provide that ejectment

shall be stayed until revaluation is made. And if a tenant were allowed to remain in possession until the final determination of the value of

improvements he could postpone eviction perpetually by continually making fresh improvements.

As for this last reason, if an Act is so drafted as to allow a loophole for malefactors, it is a circumstance more relevant to the amendment of the

Act than to the interpretation of its terms. Moreover, if a tenant began this game he could easily be outstripped by the executing authority as soon

as the Court was apprised of what was being done.

As regards the other reasons no doubt Section 5 does not make the payment of the compensation a condition precedent to ejectment; it says

that a tenant is entitled to compensation on ejectment, but then follows Section 6(1) which is not mentioned in Sankaran Nambudripad v. Sankaran

Nair ILR (1921) M. 960 and under which the Court shall ascertain the amount of compensation and shall decree that on payment by the plaintiff

into Court of the amount so found due defendant shall put the plaintiff into possession. Here the payment of compensation is clearly made a

condition precedent to ejectment. And the compensation mentioned in Section 5 covers all the compensation mentioned in Section 6. A tenant is

as much entitled to compensation for improvements made after the suit as for improvements made before the suit. The decree runs, according to

Section 6(1) so much is due by way of compensation for improvements on payment of which sum into Court by plaintiff, defendant, shall put

plaintiff into possession. And if there has been a subsequent increase of value, the decree would presumably be varied u/s 6(3), so much more is

due by way of improvements on payment of which sum, etc. This being so, there is no apparent necessity for a provision in Section 6 that the

decree shall be stayed until revaluation is made. Under the Act the tenant cannot be ejected until plaintiff has deposited in Court the value of the

improvements for which the tenant is entitled to compensation. Until that amount has been ascertained and paid, there is no question of executing

the decree, much less of staying its execution.

So much is clear; but there is one obscurity in the Act which is the real basis of the decision in Sankaran Nambudripad v. Sankaran Nair ILR

(1921) M. 960. Section 6(3) provides for the revaluation of an improvement when such revaluation may be necessary with reference to its

condition at the time of ejectment. Therefore, it is argued, the ejectment must be an accomplished fact before the revaluation is made; therefore

also the ejectment must be an accomplished fact before improvements made subsequent to the original valuation are valued; therefore the landlord

must have been intended to have the right to eject before the ascertainment and valuation of all the improvements to which the tenant is entitled;

and therefore except in regard to improvements valued before the decree the provision that the tenant shall not be evicted until the compensation

has been paid into Court, is a dead letter. It may be observed that ""at the time of ejectment"" only refers in Section 6(3) to the revaluation of

improvements already valued; the section does not provide for the ascertainment of the value of subsequent improvements at the time of ejectment.

Another interpretation which is possibly more in confermity with the meaning of the Act is that ""necessary with reference to the condition of such

improvement at the time of ejectment"" means with reference to what value the improvement may have attained at the prospective time of ejectment,

and with reference to nothing else; for instance, the tenant cannot plead erroneous valuation at that stage. There are no verbal tenses in the phrase

and it seems unnecessary to read into it ""condition which such ''improvements'' had when the ejectment was effected"" especially when there is no

such provision in regard to subsequent improvements and when such a reading ejects a tenant before full compensation has been paid into Court.

For that surely is the fundamental principle of the Act, and to re-establish that fundamental principle is the object of this discussion. Because the 1st

respondent now goes a step further and contends, on the strength of Sankaran Nambudripad v. Sankaran Nair ILR (1921) M. 960 that not only

can the landlord eject the tenant without ascertaining the value of improvements due to the tenant which has accrued after the decree, but even

without ascertaining the value of improvements due to the particular tenant which has-accrued before the decree. ""Payment of compensation is not

a condition precedent to ejectment."" It is argued that any other interpretation would be manifestly unfair to the landlord. He is not concerned with

the quarrel between the sub-lessee who is in possession and claims compensation and the kanomdar who claims compensation for the same

improvements. So long as the landlord pays into Court the improvement value, the tenant (the sub-lessee) can be ejected without any payment to

him and the Court need not ascertain the amount due to that tenant who can be left to litigate about it with the kanomdar in a subsequent suit. This

may be a fair interpretation from the landlord''s point of view, but it would be dangerous to approach a Malabar statute with any pre-conceived

idea that the landlord''s view is likely to accord with the intention of the legislature.

Act I, 1900 is an act for protection of tenants and was intended to ensure that the value of any tenant''s improvement should be paid into Court

to his account before his ejectment. Section 6(1) is quite clear. In a suit for ejectment instituted against a tenant, as here, where plaintiff seeks to

eject 12th defendant, the tenant may claim compensation for improvements. The Court must then see if that claim is established. It cannot refuse

jurisdiction in the matter, but must find if the tenant in possession is or is not entitled to compensation and decree accordingly. It may be vexatious

for the landlord to be kept waiting while his direct tenant or kanomdar is disputing with a sub-tenant with whom the landlord has no concern; but

such vexation must have been contemplated when a sub-lessee was made a tenant u/s 3(1) of the Act. Otherwise, of course, evasion would have

been too easy. A landlord need only have let out his lands to the actual tenant through an intermediary and then could have ejected that tenant with

no payment to him of compensation value, leaving him to fight out a claim with the intermediary after ejectment. Now, under the Act, the landlord

must deal direct with the person in possession though he may only be a sub-lessee, and that person cannot be ejected till his claim for

compensation has been adjudicated upon and the compensation amount found due to him has been paid into Court to his credit.

The general principle is affirmed by a Full Bench of this Court in Vasudevan Nambudripad and Another Vs. Chathoo Achan and Others,

probably the first occasion when Act I, 1900, came up for consideration. The tenant in Malabar is ""absolutely entitled to make improvements and

to receive compensation for them when turned out of his holding.

The decision in Manian v. Kuthira Vattath Raman (1920) 41 M.L.J. 15 does not affect this principle. There, the landlord lawfully got into

possession under the decree as it stood, and it was held that subsequent modification on appeal did not make his possession unlawful. The appeal

is, therefore, allowed. The Lower Appellate Court is directed to find to what compensation for improvements the tenant-appellant is entitled, and

only after paying that sum into Court to the credit of the appellant can the first respondent execute his decree so as to eject the appellant. The

lower Appellate Court may refer the matter to the Original Court with liberty to adduce evidence. Two months are allowed for the return of the

finding, and one week is allowed for filing objections.

No other point was raised and the decree of the Lower Court is otherwise confirmed though, of course, there may be modification u/s 6(3),

Act I of 1900.

The appellant raised unnecessary pleas which even questioned the 1st respondent''s right of redemption. The appellant is not, therefore, entitled

to costs, but I cannot hold that 1st respondent was altogether an unnecessary party because she would wish to defend, and has defended, her right

immediately to execute her decree. Therefore, I do not give her costs either.

This second appeal came on for final hearing on the 9th August, 1927, after the return of the finding of the Lower Court.

JUDGMENT

The sum awarded in the finding may be added to the amount already allowed by the 1st Court. Decree in favour of the 12th defendant. Costs to

the 12th defendant from defendants 1 to 8.