Pavu Amma and Others vs Mayankutty

Velu Pillai J

This second appeal by the defendants raises the short question whether a kanamdar can be compelled to pay the rent as stipulated in the contract of Kanom or is liable to pay only the fair rent as fixed by the Rent Court u/s 16 of the Malabar Tenancy Act, 1929, as amended. It seems to have been doubted on the terms of Section 16 of the Act as it was before the amendment, read with Section 27 of the Act, whether a kanomdar, though a tenant as defined in the Act, had a right to apply to the Rent Court for the fixation of fair rent. That doubt has now been removed by the amendment introduced in Section 16 by the Malabar Tenancy (Amendment) Act, 1956 (Act XXII of 1956). A Division Bench of this court considered the question in the light of the amendment in Kelappan Nair v. Payingatan (1961 KLJ 789) and held, that the kanamdar has a right to apply. The Bench observed;

In our view the words and brackets added to Section 16 by Act XXII of 1956 (Viz., including a kanamdar or a customary verumpattamdar) are, as already stated, no more than an explanation of what was contained therein prior to the amendment.

The legal position today is beyond doubt, that a kanamdar is entitled to have fair rent fixed for the kanam holding.

But it was contended for the respondent-landlord, that the kanamdar is nevertheless bound to pay the contract rent. I fail to see, what is the purpose of fixation of fair rent, unless it be, that the kanamdar is entitled to take advantage of it by paying the fair rent when it is lower than the contract rent. The word ''tenant'' as defined in Section 3 (27) of the Malabar Tenancy Act, 1929, includes a kanamdar, and Section 31 of the Act enacts:

Notwithstanding any contract to the contrary, express or implied, whether entered into before or after the coming into force of this Act, a tenant who pays fair rent shall not be liable to pay to his landlord anything more or anything less than such rent or to render any personal service to such landlord.

The marginal note to the Section reads "invalidity of claim for dues other than fair rent". It is not open to doubt on the terms of this Section, that a kanomdar is not liable to pay anything more or anything less than the fair rent as fixed. But Section 27 of the Act, which has not been amended reads as follows:

Every cultivating tenant of a holding other than a kanamdar or customary verumpattamdar, every tenant of commercial site who is entitled to fixity of tenure under this Act, every tenant of a kudiyiruppu, every holder of a protected ulkudi and every holder of a kudikidappu shall be bound to pay to his landlord-

(a) in case fair rent has been determined u/s 16, such fair rent as modified in appeal, if any, u/s 17,

(b) in case there has been no such determination, the rent agreed to by both the parties to be the fair rent payable in accordance with the provisions of Sections 4 to 13,

(c) in case there is no such agreement, the fair rent, if any, fixed under this Act, as it stood before the commencement of the Malabar Tenancy (Amendment) Act, 1951, or

(d) in case no fair rent has been fixed as aforesaid, the rent payable according to the contract, express or implied between the parties:

Provided that in the case mentioned in clause (a), where there is a contract the tenant shall until the expiration of the period of contract, pay at his choice, either the contract rent or the fair rent and shall thereafter pay the fair rent.

As observed by the Division Bench in the case cited, the terms of this Section especially the opening part of it, excluding a kanomdar or customary verumpattomdar, are apt to create confusion. The Bench seemed to think after referring to Section 31, that there has been some clarification by the amendment made in Section 16. It seems to me, that notwithstanding the exclusion of a kanomdar from Section 27 of the Act, it is open to him to rely on Section 31 as nothing precludes him from doing so. This view is in accord with the scheme of the Act which equates a kanomdar with a tenant, and in particular with Section 16 of the Act as amended. I therefore hold that the kanomdar is liable to pay only the fair rent as fixed and nothing more. I find that my learned brother Mr. Justice K. K. Mathew has also reached the same conclusion in S.A. 271 of 1960 and with respect I agree with him.

In the result, the decree of the Subordinate Judge is hereby set aside and the decree of the Munsiff is restored with proportionate costs here and in the lower appellate court. The second appeal is allowed accordingly.