Kunnatan Vittil Chandu Kutty Nayar and Another vs Karayat Gopalan Nayar and Others

Alfred Henry Lionel Leach, C.J.—The plaintiffs in this suit are brother and sister. With their brother Chathu alias Cheriyomana Nair, they

formed a farwad. On the 25th August, 1939, the first defendant granted a kanom demise to the plaintiffs and Chathu in respect of the property in

suit. In O.S. No. 747 of 1940 in the Court of the District Munsiff of Quilandi, the first defendant obtained a decree for possession of the property

on the ground that he wished to cultivate it himself. He obtained possession but he did not continue to cultivate the land. In or about the month of

August, 1942, he granted an oral lease of the property to the second defendant and on the 9th February, 1943, he executed a registered lease in

his favour. Thereupon the plaintiffs filed the present suit u/s 21 of the Malabar Tenancy Act for restoration to them of the land from which they

were evicted. Originally there were only two defendants; the jenmi and his lessee. Subsequently the heirs of Chathu were added as defendants 3 to

The first and second defendants averred that the suit was not maintainable because two of the former tenants had not joined in as plaintiffs. In

their written statement, the third, fourth and sixth defendants intimated that they did not wish to recover possession of the property. The fifth and

seventh defendants stated that they had no objection to the suit being decreed.

The District Munsiff held that the suit was not maintainable and consequently dismissed it. On appeal the District Judge of North Malabar

reversed the decree of the District Munsiff on the ground that the suit was maintainable by the plaintiffs irrespective of the attitude adopted by some

of the legal representatives of Chathu. Accordingly he remanded the suit to the District Munsiff for disposal according to law. The first and second

defendants have appealed. The appeal came in the first instance before Chandrasekhara Aiyar, J., who at the suggestion of the appellants directed

that it should be placed before a Bench. In his order the learned Judge intimated, however, his agreement with the opinion of the District Judge.

Sub-section (1) of Section 21 of the Malabar Tenancy Act states that in a case in which eviction is obtained on the ground specified in Clause

(5) of Section 20(the clause which was relied upon by the jenmi when suing for eviction), and the, landlord who obtains the eviction transfers any

of the lands to a person ""on any kind of lease or mortgage with possession or on kanom, kuzhikanom or verumpattam, within six years of the

eviction, the tenant shall be entitled to sue for the restoration to him of the possession of all the lands from which he has been evicted and to hold

them with all the rights and subject to all the liabilities of a tenant.

This right is subject to the provisions of Section 43. Sub-section (2) of that section, shorn of its proviso, which does not apply here reads as

follows:

If there are intermediaries between the landlord who has obtained the eviction and the person who cultivates the land, all persons whose interests in

the holding are terminated by the eviction shall be entitled to be restored to the respective interests they had at the time of the eviction as if there

had been no eviction, and in case any one of them does not claim restoration the tenant next below him shall be entitled to claim such restoration

and hold the land (a) on the terms on which the person not claiming the land held it, if he and the claimant belonged to the same class, or (6) on the

terms on which the claimant held it if he and the person who did not claim the land belonged to different classes.

The case for the appellants is that as Section 21 speaks of ""the tenant "" this must mean that where there are joint tenants all of them must join in

before there can be a decree for the restoration of possession. This argument is a plausible one, but when the question is examined fully in the light

of the whole Act it cannot be accepted. The main object of the Act is to secure fixity of tenure for tenants and Section 43 gives clear indication that

if one tenant does not wish to avail himself of the provisions of Section 21 another tenant can do so.; of course, on the same terms as before. If the

argument advanced on behalf of the appellants were to be accepted, it would mean that where a lease has been granted to a tarwad, say, of fifty

members, the fact that one of them refuses to join in the suit for restoration would defeat the forty-nine other members. Such a situation could not

have been intended by the framers of the Act. The word "" tenant "" is denned in Section 3 and it is in the widest possible terms. It means any person

who has paid or has agreed to pay rent or other consideration for his being allowed by another to enjoy the land of the latter and includes an

intermediary, a kanomdar, a kuzhikanomdar, and a verumpattam-dar of any description.

We consider that the fact that three of the legal representatives of Chathu do not wish to have the tenancy restored does not mean that Chathu''s

brother and sister cannot have restoration of the holding on the same terms as they hold it before they were wrongly evicted by the first appellant.

That they were wrongly evicted is quite clear. The jenmi did not in fact require the land for his own cultivation. This is shown by the grant of a lease

of it to the second defendant soon after the eviction.

For these reasons, the appeal is dismissed with costs in favour of the plaintiffs (respondents).