Komath Ponnian Sooppi and another vs Rayaroth Kanaran and others

Govinda Menon, J.—As the question of law involved in these second appeals was considered an important one by Krishnaswami Nayudu,

J., they have come up for decision before a Bench.

S. A. No. 1794 of 1952: The plaintiff is the appellant and he filed a suit for arrears of rent from 1945 to 1950 on foot of a registered kanom

marupat, Ex. A-1, dated 6-10-1945, under which defendants were to pay an annual rent of Rs. 8 along with certain sundries. The defence to the

suit was that under an earlier document, Ex. B-1, dated 7-1-1918, which had been renewed by Ex. A-1, the rent payable was only Rs. 4-12-0,

and the increase of rent by the renewed demise was opposed to the provisions of the Malabar Tenancy Act and as such the plaintiff is not entitled

to recover the difference. The lower appellate Court found following the decision in Puthukulangare Ukkali v. Sivarama Krishna, 1941-1 Mad LJ

113: (AIR 1941 Mad 468) (A), that, in the case of a kanom demise, there can be no enhancement of the purappad payable at the time of renewal

and therefore the increase under Ex. A-1 was not justified. The question is whether the agreement to pay a higher rent by a kanom or

kuzhikanamdar at the time of renewal is valid and enforceable.

Mr. Kuttikrishna Menon for the appellant relies upon certain provisions of the Malabar Tenancy Act, Madras Act, XIV of 1930, where certain

statutory provisions are enacted ''in the absence of a contract to the contrary'', whereas in S. 17(a) of the Act which relates to renewals there is no

such distinguishing feature. Under these circumstances it is contended that it is open to the landlord despite the previsions of S. 17 (a)to enter into

an agreement with the kanomdar with regard to fixing of michavaram, renewal fee and the like. What is contemplated by S. 17 (a) is that a

kanomdar shall on the expiry of the kanom under which he holds, be entitled to claim and his immediate landlord shall be bound to grant a renewal

ensuring for a period of 12 years of the same on payment as renewal fee, of two and one fourth times the balance of the annual fair rent of the

lands covered by the kanom after deducting the annual revenue payable on the kanom property to the Government it payable by the kanomdar

under the kanom deed, (2) the annual interest on the kanartham and (3) the annual nuchavaram payable under the previous kanom. It is clear from

this provision that on the expiry of the kanom there is a statutory right conferred on the kanemdar which he could enforce by means of an

application to the Court by S. 22 onwards to obtain a renewal after he pays to his immediate landlord the amount of renewal fee as calculated

under this provision. In so computing the renewal fee, the annual michavaram payable under the provisions of the kanom deed alone has to be

taken and the terms should be the same as in the previous kanom which is sought to be renewed. As the section does not begin by enumerating

that the provisions are in the absence of a contract to the contrary, comparing certain other sections which state specifically ''contract to the

contrary'', the learned counsel contends that whatever might be the statutory provision under S. 17 it is open to a kanomdar and his landlord to

contract out of it, if such a contract is not vitiated by any of the infirmities contemplated by the Indian Contract Act such as fraud, undue influence

or the like. Our attention is invited to S. 10 which speaks of the cultivating verumpattadar''s right to fixity: ""Notwithstanding any contract to the

contrary entered into whether before or alter the coming into force of the Act, every cultivating verumpattadar shall have fixity of tenure in respect

of his holding "" Similarly S. 22 begins by saying ''''Notwithstanding any contract to the contrary (whether made before or after the commencement

of this Act), a customary verumpattadar, kanomdar or kuzhikanomdar shall be entitled to apply to the Court, in the form prescribed for the

execution of a renewal deed '''' Section 32 also says ""Notwithstanding any contract to the contrary express or implied whether entered into before

or after the coming into force of this Act no cultivating verumpattadar shall be liable to pay to his landlord anything more or anything else than the

fair rent and no tenant who is entitled to claim a renewal under this Act shall for the purpose of obtaining the renewal be liable to pay as renewal

fee anything more or anything else than the renewal fee provided by this Act.'''' The fact that the Legislature had thought fit to make it impossible

for the tenants to contract out"" of the Act in the three instances refer red to above is relied on by the learned counsel to show that it is possible for

the landlord while renewing a kanom to impose his own terms apart from what the section provides if the kanomdar, tenant, is willing and

agreeable to act upon such terms. In Kuthiravattath Kongasseri Puthukulangare Ukkali alias Pappi alias Amma Neithiar Avl. and Another Vs.

Pallassena Kizhakke Gramom, S. Sivaramakrishna Pattar, , this Court has held that the word ''same'' in S. 17 of the Malabar Tenancy Act

connotes renewal of the kanom on the same terms as the previous kanom. If the landlord declines to grant a renewal on payment of the proper

renewal fee, the tenant can seek the aid of the Court and the Court should grant the renewal of the kanom only on the same terms as the previous

kanom. The principle underlying this decision is that if the landlord is unwilling or refuses to grant a renewal on the identical terms as the existing

kanom there is a right for the kanomdar to resort to a Court of law and get a compulsory renewal on the same terms if he pays the renewal fee as

contemplated in S. 17, cl. (a), of the Act. That being the case, it is not open to the landlord to stipulate a higher rate of michavaram as opposed to

the provisions of the Act. In our opinion, the principle of law enunciated, cannot be questioned but there is nothing in S. 17 (a) which prevents a

landlord from increasing the rent at the time of renewal if there is specific consideration for such a renewal. Otherwise such an increase would be a

contract entered into without consideration because any increase of rent is against the provisions of the statute. In the present case the original

purappad of Rs. 4-12-0 fixed in 1918 was inclusive of Government revenue. The landlord had the obligation to pay Government revenue and if the

kanomdar paid Rs. 4-12-0 there is no obligation cast on him to pay the annual Government revenue but under the renewal, Ex. A-1, the rent of

Rs. 8 included in itself not only the Government revenues as it stood in 1918 but also the revenue enhanced alter the settlement in the early thirties.

Such being the case, there is a valid consideration for the increase of purappad and it cannot be said that such an increase for reasons beyond the

control of the landlord is opposed to the provisions of the Act. If the purappad is not increased the original purappad might be less than the

increased revenue at the time of the settlement. In the present case Ex. A-1 clearly lays down that the amount of Rs. 8 was arrived at because

there was an increase in the Government revenue as a result of the settlement in respect of the lands covered by the kanom. It has been laid down

in a number of cases that where there is a usufructuary mortgage or kanom and the Government enhances the revenue payable during the

pendency of such relationship then it is the mortgagee and not the mortgagor who is liable to pay the enhanced Government revenue. Vide Kunchu

Menon v. Narayana Ezhutessan, 16 Mad LJ 317: (AIR. 1915 Mad 100) (B); Nanu Nair and Others Vs. Kantan Ashta Moorthi Nambudripad

and Others, Nathuwath Pappu v. Kolli Valappil Kalathile Vittil, (1911) 2 Mad WN 236 (D). Apart from the provisions of the Transfer of

Property Act, in Malabar, where in many cases the increase of Government revenue at the time of periodical settlements has been due to

improvements effected on the property by the tenant the burden of such increase should be on the tenant. Usually in regard to lands on which fruit

bearing trees such as coconut trees, arecanut trees and jack trees are planted the assessment per acre is computed with reference to the yield of

the trees and if the trees are planted by the tenant as a result of which the Government revenue on the land gets enhanced the obligation to pay

such enhanced revenue on the land is on the tenant and not on the landlord. In cases where the landlord has demised an extent of land which could

be converted into a garden by planting fruit bearing and other kinds of trees and on which at the time of the demise there were no trees, if the

kanomdar or the tenant plants such trees as a result of which the land gets improved and consequently the tax is also enhanced it stands to reason

that the tax must be paid not by the landlord but by the person responsible for the increase in taxation. In the present case it can fairly be presumed

that the increase in Government revenue was due to the planting of trees by the defendants. Mr. Achutan Nambiar for the respondents contends

that there is no evidence as to what exactly is the increase in Government revenue and as such a finding should be called for to ascertain that, We

do not think that any such necessity arises because the original rent of Rs. 4-12-0 included Government revenue then payable, and the enhanced

rent of Rs. 8 also included enhanced Government revenue payable at the time of Ex. A-1. Such being the case, it is easy to conclude that the

difference of Rs. 3-4-0 was due to enhanced Government revenue. It follows, therefore, that the plaintiff is entitled to get the purappad in

accordance with the terms contained in Ex. A-1. But it is not open to the landlord to raise the michavaram at his will and pleasure. There must be

some circumstance justifying the enhancement and the contract must be fully supported by consideration. To take an analogous instance, as in the

case of rate of interest provided for under the Madras Agriculturists'' Relief Act, if a debtor agrees to pay a higher rate of interest than what is

provided for by the Act it has been held in Garimella Mallikharjuna Rao Vs. Mangipudi Tripura Sundari, which has been followed int Dhanakojia

Pillai v. Narayana Iyer, 1955-2 Mad LJ 569 (F) and also in N.S. Sreenivasa Rao Vs. G.M. Abdul Rahim Sahib, that a stipulation to pay a higher

rate of interest is not supported by consideration and as such cannot be enforced. Following that principle it seems to us that without a specific

consideration or justification there can be no increase of rent or purappad in the case of renewals under S. 17 of the Malabar Tenancy Act.

The decisions of the lower Courts are, therefore, modified and the plaintiff will get a decree for higher rent on foot of the claim made in his plaint

as stipulated in Ex. A-1. The appellant will be entitled to his costs in this second appeal and the costs in both the lower Courts.

S. A. No. 1448 of 1952: Here also the question is as regards the payment of increased purappad. Unlike the previous second appeal, there

was no renewal as such, which has now become the subject of consideration. The original kanom Ex. A-1 dated 22-11-1933 was under Ex. B-2

dated 22-10-1945 as ostensibly surrendered; but four days there after under Ex. A-4 there was a kanom, kuzhikanom deed executed by the same

tenant to the same landlord. The lower appellate Court has found that the surrender under Ex. B-2 was only a nominal transaction got executed by

the plaintiffs for the purpose of getting over the provisions of S. 17 (a) of the Malabar Tenancy Act. The learned Subordinate Judge has given

ample reasons for holding that the surrender was never intended to be Acted upon. He has also found that there was in fact no surrender of

possession but only a make believe. Mr. C. S. Swaminathan, learned counsel for the appellant, contends that this finding cannot be accepted. He

urges that it is open to a landlord to obtain a surrender of the holding from the tenant if he is willing to do so under S. 44 of the Malabar Tenancy

Act, which is A kanomdar or kuzhikanomdar or customary verumpattadar may at the end of any agricultural year surrender his holding to his

immediate landlord, by a registered document.

That being the case, the privilege of surrendering the holding at the expiry of the demise is one granted by the Act and when between the parties

there is an agreement that the previous relationship is to be put an end to by a registered document, there is nothing according to the learned

counsel, to prevent the erstwhile landlord and the quandom kanomdar enter into a fresh kanom or kuzhikanom on new stipulations and terms. It is

urged by the learned counsel that in the present case what has been done is the giving up of rights conferred under Ex. A-1 by Ex. B-2 and the

creation of fresh relationship by Ex. A-4. Analogous cases have arisen where a karnavan on behalf of his tarwad has renewed a kanom or granted

melcharth of the same before the expiry of the original demise. Questions have arisen whether such transaction is binding on his successor. In a

number of cases it has been held that a surrender and regrant are within the competence of the karnavan: see Kunhukuttan v. Imbichikuttan, 71

Mad LJ 727: (AIR 1937 Mad 35) (H); Lakshmi Amma v. Kunhi Raman, 1932 Mad WN 543 (I); Kenath Puthen Veettil Koppassa Menon

Kenath Achan Avergal Vs. Karumathil Kalliani Ammal and Others, ; S. A. No. 3 of 1931: ( 68 Mad LJ 23 (SN) (K); C. M. A. No. 406 of 1928:

(59, Mad LJ 63 (SN) (L); S. A. No. 40 of 1927: (58 Mad LJ 55) (SN) (M). It is, therefore, clear that if the transaction had been above board

and in the usual course of circumstances there can be no objection to that. The Full Bench in Trivikrama Konuraya Vs. Sankaranarayana

Vazhunnavar and Others, , has held that even a melcharth granted before the expiry of the term by a karnavan if assented to by the same karnavan

when the original term had expired would be valid. Applying that principle if the kanomdar surrenders his rights under an existing kanom and then

takes a fresh document there is nothing to be said against such a transaction. But the difficulty in this case arises from the fact that the lower Courts

have found that Ex. A-4 was a device to get over S. 17 (a) of the Malabar Tenancy Act, by which it is not possible to enhance the michavaram.

As we have stated, in the judgment in S. A. No. 1794 of 1952 if there had been any additional consideration for enhancing the michavaram, then

the renewal cannot be discountenanced on that score.

On the finding of the lower Courts that there is no such consideration, the decisions have to be affirmed and this second appeal dismissed with

costs.