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Judgment
Leach, C.J.—On 6th December 1940, defendant 16 in this suit as the jenmi assigned to the defendant 17 the rent due for the 11 years from
15th September 1930, to 15th September 1941, from the kanomdar holding under a kanom demise dated 29th December 1922. On 9th August
1941, the assignee assigned his rights to the plaintiff, who instituted the suit in the Court of the District Munsif of Badagara to recover the amount of
rent due in respect of the 11 years. He claimed that he was entitled u/s 41, Malabar Tenancy Act, 1929, to a charge for the amount. The District
Munsif held that the plaintiff was not entitled to a charge under that section but only to a money decree in respect of six years immediately
preceding the suit. On an appeal filed by the plaintiff the Subordinate Judge disagreed with the judgment of the District Munsif. He considered that
the plaintiff was entitled to a charge. Consequently, he gave him a decree for the full amount claimed and declared that it constituted a charge on
the property. Defendant 1, who is the kanomdar, has appealed. The opinion of the Subordinate Judge is in accordance with the judgment of
Somayya J. in Swaminatha Iyer v. Ramanatha Iyer AIR l943 Mad. 573 which was followed by Horwill J. in Neroth Puthenpura Kunhikannan Vs.
Pulappati Achu and Others, . On the other hand, the case for the appellant receives support from the judgment of Chandrasekhara Ayyar J. in the
unreported case of U. Kunhipokker v. Panakkat Anantan Nambiar, S. A. No. 853 of 1943. Chandrasekhara Ayyar J. considered that the
question is governed by the judgment of the Privy Council in A. H. Forbes v. Maharaj Bahadur Singh AIR 1914 P.C. 111 and the decision of this
Court in Vyraperumal v. Alagappa AIR 1932 Mad. 189. Somayya J. was of the opinion that these cases were not really in point. We prefer the
view expressed by Chandrasekhara Ayyar J. Section 41, Malabar Tenancy Act, reads as follows:
Renewal fees and arrears of michavaram or rent due to the landlord together with interest, if any, payable on the same shall be a charge on the
interest of the person from whom they are due in the holding in respect of which they are due as at the time of the creation of such interest, and
such charge shall have priority over all other charges on the same except the charge for the revenue and any dues thereon payable to government
or to a local authority and made a charge thereon by any law for the time being in force.
The case in A. H. Forbes v. Maharaj Bahadur Singh AIR 1914 P.C. 111 had reference to the Bengal Tenancy Act, 1885, Section 65 of which
says:
Where a tenant is a permanent tenure-holder, a raiyat holding at fixed rates or an occupancy raiyat, he shall not be liable to ejectment for arrears of
rent but his tenure or holding shall be liable to sale in execution of a decree for the rent thereof, and the rent shall be a first charge thereon.
In A.H. Forbes v. Maharaj Bahadur Singh AIR 1914 P.C. 111 a zamindar, who had transferred his interest in the zamindari, brought a suit against
the tenant for arrears of rent which had accrued due to him before the transfer. The question was whether the erst-while landlord was entitled to a
charge on the land in respect of unpaid rent. The Judicial Committee held that he was not entitled to a charge. In delivering the judgment of the
Board, Mr. Ameer Ali said:
It seems to their Lordships clear on an examination of the different sections bearing on the subject that the right to bring the tenure or holding to
sale u/s 65 appertains exclusively to the landlord; and that a person to whom certain rents are due, and who obtains a decree therefor after he has
parted with the property in which the tenancy is situate, has no such right. The contrary view, their Lordships think, would give rise to a very
anomalous situation. A zamindar to whom certain arrears are due, as in the present case, may sell his property, without assigning, for purposes of
his own, the back rents as he is entitled to do; he may then sue for those back-rents; before any decree is made in this suit, the tenant falls into
arrears to the new landlord who brings a similar suit. Both the ex-landlord and the present landlord obtain decrees for their respective arrears. In
whose decree and on whose application is the tenure to be sold? The question admits of only one answer that it is the existing landlord alone who
can execute the decree; the ex-landlord is an outsider, and, whilst he can execute his decree against the debtor as a money decree, he has no
remedy against the tenure itself.
Mr. Ameer Ali proceeded to say:
The learned Judges of the High Court seem to think that either from the nature of the debt being arrears of rent, or the decree being for arrears of
rent, the tenure becomes ipso facto hypothecated so to speak for the debt; and that consequently the person to whom the debt is due, although he
has ceased to be the landlord, and is to all intents and purposes, so far as other rights and obligations under the law are concerned, a total stranger
to the property with which those rights and obligations are inseparably connected, he has the special remedy given to the landlord to recover
arrears attached to the tenure. This conception of the legal position seems to their Lordships untenable, for the charge created by Section 65 is
clearly in favour of the landlord.
Section 148(h), Ben. Ten. Act, declares that notwithstanding anything contained in Section 232, Civil P.C., an application for the execution of a
decree for arrears obtained by a landlord shall not be made by an assignee of the decree unless the landlord''s interest has become and is vested in
him. There is no corresponding section in the Malabar Tenancy Act and consequently Somayya J. thought that the judgment of their Lordships
could not be applied when the question was one of interpretation of Section 41, Malabar Tenancy Act. The passages from the judgment which we
have quoted are?; really based on the provisions of Section 65, Ben. Ten. Act. Their Lordships point out that the section creates a charge in favour
of the landlord and that it would lead to a very anomalous position to hold that the ex-land-lord as well as the present landlord were given a charge
for arrears of rent. The same reasoning applies to Section 41, Malabar Tenancy Act. The charge created is clearly in favour of the landlord. No
one but he is mentioned. We cannot regard the absence of a section corresponding to Section 148 (h), Ben. Ten. Act, as material. The plaintiff is
not the landlord, and he has never held that position. He is merely the assignee of a debt.
Somayya J. was also impressed by the fact that the Malabar Tenancy Act does not contain a section corresponding to Section 128, Madras
Estates Land Act, which states that where in the execution of a decree, an order for sale has been passed, and a person who is interested in the
land pays the amount due, he shall be entitled to a charge in respect thereof. Here again, we do not consider that the absence of such a provision in
the Malabar Tenancy Act alters the position. The Legislature was providing for a charge in exceptional circumstances. If anything the insertion of
Section 128, Madras Estates Land Act, makes the case for the appellant in the present case all the stronger. In Vyraperumal v. Alagappa AIR
1932 Mad. 189, this Court held that when one member of a joint family, in order to prevent arrest in execution of a decree obtained by the
landlord against himself and another coparcener for arrears of rent due by both under the Madras Estates Land Act, pays the amount due, he is
not entitled by virtue of Sections 5 and 128 of that Act, or under the general law or by virtue of Sections 82 and 100, T. P. Act, to a first charge
on the other coparcener''s portion of the holding. It was pointed out that the charge created by Section 5, Madras Estates Land Act, only applies
to rent due to landlord in that capacity and that Section 128 only applies in the special circumstances contemplated by it. In holding that the charge
created by Section 5 is for the benefit of the landlord and applies to rent only so long as it is due to him, the Court expressly relied upon the
judgment of the Judicial Committee in A. H. Forbes v. Maharaj Bahadur Singh AIR 1914 P.C. 111 We consider that the judgment in
Vyraperumal v. Alagappa AIR 1932 Mad. 189 has direct bearing here. In fact the present case cannot be really distinguished.
We hold that Section 41, Malabar Tenancy Act, gives a charge to the landlord for arrears of rent and to no one else. The plaintiff is not a
landlord and never was. Therefore all he is entitled to is a money decree. It follows that the decision of the District Munsif was right and the decree
passed by him must be restored with costs here and before the Subordinate Judge.