Kummatta Vittil Kunhikutti Haji vs Reverend Antoni Gower and Others

The plaintiffs sued to redeem a Kuzhikanom demise made in 1862 in favor of the 1st defendant''s father.

The District Munsif gave the plaintiffs a decree for possession on payment of the sum ascertained as due to the defendants as compensation for

improvements. On appeal the District Judge held that the tenancy created by the demise of 1862 terminated in 1874 by efflux of time, apparently

under the provisions of Section 111 of the Transfer of Property Act. He seems also to have held that Section 116 does not protect the tenant, as

there was no payment of rent, and therefore, no holding over. He held that the plaintiffs'' suit was barred by Article 139 of the Limitation Act, not

having been brought within 12 years of the termination of the tenancy, and he dismissed the plaiptifts'' suit with costs throughout. The 1st plaintiff

now appeals to us against this decree, and with good reason. The Transfer of Property Act does not apply to agricultural leases in Malabar. If it

did, Section 116 would be a sufficient answer to the defendant''s plea of limitation. According to the customary or common law of Malabar, a

Kuzhikanom lease is a lease of waste land granted for 12 years (or such period as may be stipulated) on condition that the tenant shall make

improvements and shall be paid for them before he is ejected. The right to hold possession remains with the tenant until he has been paid the value

of his improvements. His tenancy does not cease unless and until he has been paid. He continues to hold on the terms of his lease except that the

12 years or other period fixed in the lease for his benefit having expired, he must give up possession on receipt of reasonable notice and on

payment of the compensation due for his improvements. This, which is the customary law of Malabar, has been clearly enacted in Sections 5 and 6

of the Malabar compensation for Tenants Improvements Act I of 1900 (Madras). In this case, therefore, there was no question of adverse

possession.

The defendants continued to hold as tenants, until paid the compensation due to them, and time did not begin to run against the plaintiffs under

Article 139 or any other article of the Limitation Act.

The District Munsif has dealt with the plea of limitation correctly in paragraphs 10 and 11 of his judgment. We set aside the decree of the

District Judge and restore that of the District Munsif with costs in this and in the Lower Appellate Court.