Payingatan Chappan and Others vs Kelu and Others

Satyanarayana Rao, J.—Defendants 1, 2, 3, 5 and 6 are the appellants in this second appeal. This second appeal raises an important and

interesting question under the Malabar Tenancy Act, 1929 (XIV [14] of 1930). The suit out of which this second appeal arises was instituted for

redemption of an othi (usufructuary mortgage), and for recovery of possession of the plaint scheduled properties which consists of two items, on

payment of the othi amount of Rs. 50 and the value of the improvements after making certain other deductions which are not very material. The

document on which the suit was based is EX. p.-1 an othi marupat, dated 15-1-1921, executed by one Kannan, a predecessor of defendant 1, in

favour of Chandu, a predecessor of the plaintiff. Defendants 2, 3 and 6 were impeaded as persons who were in actual possession of the items.

Defendants 2 and 6 obtained a sub-lease from defendant 1 of item 1 and defendant 3 a sub-lease from defendant 1 of Item 2. The principal

question apart from the question of the valuation of the improvements claimed by the defendants related to the right of the sub-lessees-defendants

2, 3 and 6 to purchase kudiyiruppu u/s 33, Malabar Tenancy Act. Defendants 2 and 6 applied in the suit R. I. A. No. 2154 of 1945, claiming

benefit of Section 33 of the Act and defendant 3 made a similar application R. I. A. No. 2384 of 1945, for purchasing the kudiyiruppu in item 2 of

the plaint schedule. The applications were resisted by the plaintiff on the ground that the Act had no application to the suit, as it was a suit for

redemption of an othi and not a suit for eviction, and secondly the relationship created by the document Ex. P.-1 between the plaintiff and the

defendant was not that of a landlord and tenant but that of a mortgagor and mortgagee. These two contentions of the plaintiff were upheld by the

trial Court and the learned District Munsif decreed the suit for redemption of the othi in favour of the plaintiff on payment of the othi amount of Rs.

50 and also the value of the improvements as determined by him under Issue 3. Against this decision there was an appeal by the unsuccessful

defendants to the District Court of North Malabar. The District Court substantially agreed with the view of the District Munsif and confirmed his

decision. Hence this second appeal.

The only question, therefore, that arises for determination is whether defendants 2 and 6 and defendant 3 are entitled to claim u/s 33 of the Act,

to purchase the rights in the kudiyiruppu by paying the market price of the Land.

The view of the Courts below that Ex. P.-1 created only a relationship of a mortgagor and mortgagee between the plaintiff and defendant 1 and

that, therefore, the defendants were not tenants cannot be accepted. The definition of a ""tenant"" in Section 3 (b) of the Act includes an intermediary

also within it. It reads as follows :

''Tenant 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 kanamdar, a kazhikanamdar and a verumpattamdar of any description

This definition was considered by the learned Chief Justice and my learned brother in a recent decision in K.V. Govindan Nair and Another Vs.

Appukutty, . The question that arose for consideration by the Bench was :

Whether an othidar or a usufructuary mortgagee who has in his turn parted with the actual possession of the land to others would bs a tenant

entitled to the benefit of the provisions of the Madras Act XVII [17] of 1946. Section 2 (b) of that Act provides, that the expressions ''eviction,''

''holding,'' ''rent'' and ''tenant'' shall in relation to cases governed by the Malabar Tenancy Act, 1929, have the same meaning respectively in that

Act.

The othi deed which was considered by the learned Judges constituted a relationship of an intermediary within the meaning of the definition even if

he was not strictly a tenant and the mortgagor was not strictly a landlord in the sense of a lessor. In view of this decision it must now be held that

the relationship that was constituted by this document between the plaintiff and defendant 1 was that of a landlord and tenant, as defined by the

Malabar Tenancy Act, 1929. The opinion to the contrary of the Courts below is clearly wrong.

The further question that arises for consideration is if defendant l is a tenant within the meaning of the Act, are defendants 2, 8 and 6 who are the

sub-tenants of defendant l, entitled to the benefit of Section 33 of the Aot. The contention that has been strongly pressed before us by the learned

advocate for the appellants is that the definition of tenant in the Act is wide enough to include even a sub-tenant, and therefore, even if defendants

2, 3 and 6 were not immediate tenants of the plaintiff and even if plaintiff is not their immediate landlord, they would be entitled to the benefit of

Section 33 as the word ""tenant"" in the section should not be restricted to an immediate tenant of the plaintiff, who is a landlord. In order to

understand the scope of Section 33, it is necessary to examine the scheme of the Act, as the matter, in my opinion, cannot be disposed of by

merely looking at the definition of ""tenant"" u/s 3 (b) of the Act. In support of the argument, our attention was drawn to the various provisions in the

Act, where the Act, when it is intended to refer to an immediate landlord expressly stated so, as for example in Section 11 and other sections.

From this it was argued that as ""tenant"" is used in a general (sense ?) in the section the claim under the section by a tenant need not necessarily be

against his immediate landlord, but it may be even against the landlord of his landlord.

Section 33, which is the first section in Chap. VI relating to kudiyiruppus runs as follows :

In any suit for eviction relating wholly or in part to a kudiyiruppu, which has been in the continuous occupation of a tenant or the members of his

family for ten years of the date of the institution of the said suit, such tenant shall be entitled to offer to purchase the rights in the kudiyiruppu, of the

landlord who seeks to evict him, at the market price on the said date.

This right, therefore, of a tenant is available only in a suit for eviction. Eviction is defined in the Act in Section 3 (e) as meaning ""recovery of

possession of land from a tenant and includes the redemption of a kanam."" So that the definition contemplates two classes of suits--suits for

recovery of possession of land and suits for redemption of a kanam. This definition indicates that but for the inclusive provision suits for redemption

cannot ordinarily be treated as suits for recovery of possession. Apart from this definition, it is common knowledge that under the Court-fees Act a

suit for redemption requires payment of court-fee u/s 7-d (ix) while suits for possession fall u/s 7-d (v). Under law generally there is a clear

distinction between suits for recovery of possession as such and suits for redemption. No doubt, in a suit for redemption, if the amount payable to

the mortgagee; as determined by the preliminary decree, is deposited, the mortgagor would be entitled thereafter to recover possession.

Notwithstanding this fact suits for redemption are not treated as suits for recovery of possession. Further as the Act intended to confer the benefits

contemplated by it only to certain classes of tenants and not upon others the definition purposely did not include other suits for redemption within

the definition of eviction. This can be made clear by comparing the definition of ejectment contained in the Malabar Compensation for Tenants''

Improvements Act, 1899 (Madras Act I [1] of 1900) with the definition of ""eviction"" in the Malabar Tenancy Act, 1929. The former Act includes

in the definition of ""ejectment,"" redemption or recovery of possession of land mortgaged. So that all suits for redemption whether they are suits for

redemption of kanom, othies or other mortgages, are within the definition and the definition of ""tenant"" in that Act is also wide enough to include

even mortgagees or sub-mortgagees within it, the object of that Act being to confer the benefit of recovering the value of improvements on all

tenants. Whether the mortgage was by way of kanom or by othi or in other forms, the tenant is entitled to the benefit of the value of the

improvements is provided under that Act. It is, therefore, difficult to treat the present suit for redemption of an othi as a suit for eviction within the

meaning of Section 33 of the Act.

Apart from this, in my opinion, more light is thrown upon the class of suits contemplated by Section 33 by an examination of the other provisions

of the Act where provision is made for eviction under certain contingencies by the landlords of certain classes of tenants. The Act refers to a jenmi,

kanomdar, kuzhikanamdar and verumpattamdar cultivating verumpattamdar and customary verumpattamdar. It confers under chapter III a fixity of

tenure upon the cultivating verumpattamdar (vide Section 10). In that chapter provision is made u/s 14 for eviction of the cultivating

verumpattamdar from his holding at the instance of his landlord but the eviction is confined to grounds specified in the section and to no others. As

regards the other tenants the right of the landlord to evict them is conferred by Section 20. That section contemplates an eviction of customary

verumpattamdar, kuzhikanamdar or kanamdar at the instance of his landlord and here again only on specific grounds and on no others. Reading the

two sections together, the persons against whom suits for eviction can be instituted under the Act are either the cultivating verumpattamdar u/s 14

or customary verumpattamdar, kuzhikanamdar, or kanamdar u/s 20. But the Legislature is careful enough in these two sections to indicate that

such a suit can be instituted only by his landlord, meaning his immediate landlord, so that if the immediate landlord of the kanamdar wants to

institute a suit for ejectment of his kanamdar and there are sub-tenants under the kanamdar, he cannot institute a direct suit against the sub-tenants

without impleading the kanamdar under whom the sub-tenants have derived title. But if the suit is one for eviction of the kanamdar and the persona

who derived title from him, it can only be on the grounds enumerated in Section 20 and no others. Similarly, if the landlord wants to institute a suit

against his tenant he can only do ao on the grounds mentioned in Section 20. So that in all cases of landlords for eviction of either cultivating

verum-pattamdar or customary verumpattamdar or kuzhikanamdar or kanamdar, the eviction can only be in one of the modes indicated in the Act

and on the grounds specified in it and on no others. The reason is, in the case of eviction u/s 20, it ia open to a tenant in such a suit to apply for a

renewal of the lease in his favour by his landlord and the object of the Act is thus to confer fixity of tenure to that extent upon the other intermediate

tenants. As stated already, the fixity of tenure of the cultivating verumpattamdar was recognised by a statutory declaration of that right u/s 10 of the

Act. Section 26 which haa been referred to in the course of the arguments enables the tenant who is in actual possession of the holding and who

had obtained a renewal of the lease from his immediate landlord either before the Act or u/s 25(2) of the Act practically to compel, as it were his

landlord to obtain a renewal of his lease from his landlord, if his landlord abstains from obtaining the said renewal. Section 43 of the Act is the only

section in which, apart from Section 26, the rights of the sub-tenant are adverted to in cases where there is a restoration of the rights of the tenant

either u/s 15 (1) or Section 21 (1) of the Act.

The effect of these relevant provisions in my opinion is to establish that the Act does not contemplate any other mode of eviction of a tenant

except on the grounds specified in the Act, and against persona indicated in Sections 14 and 20 of the Act. Section 33, therefore, when it speaks

of suits for eviction, contemplates a suit of the kind referred to in Section 14 or in Section 20 and no others. There is no other mode of eviction of

a tenant under the Malabar Tenancy Act except u/s 14 and u/s 20. Such a suit is between the tenant and his immediate landlord, which is made

clear by the languages of Section 14 and 20. Therefore, the benefit conferred u/s 33 of the Act must be confined to the tenant who is sought to be

evicted in a suit for eviction which has been permitted by the Act to be instituted by the immediate landlord of the tenant. The benefit cannot,

therefore, extend to a sub-tenant of the tenant, aa the landlord of the tenant cannot eject the sub-tenant of the tenant directly by a auit instituted

against him. The tenant in the context can only refer to a tenant of an immediate landlord. If really Section 33 was intended to confer benefit on the

subtenant as well there is no reason for not making reference to him as it did in Section 43. Further the beneficial provisions of the Act are intended

to be confined only to certain classes of tenants is clear from Sections 21 and 22 which provide that customary verumpattamdar, kanamdar,

kuzhikanamdar alone are entitled to apply under the Act for a renewal of a lease. Those are the very persons against whom a suit for eviction lies

u/s 20. Though from the definition of the word ""tenant"" it is possible to contend that it includes also sub-tenants, having regard to the fact that the

relief can be claimed by a tenant only in a suit for eviction as contemplated by the Act, it must follow that a sub-tenant is not entitled to claim

benefit of the provision in Section 33 and is not entitled to offer to purchase the right in the kudiyiruppu. Act I [1] of 1900 is wider in its ambit and

is intended to confer the benefit of the rights recognised under that Act on tenants such as lessees, sub-lessees, mortgagees, sub-mortgagees and

so on. While the Malabar Tenancy Act of 1929 is restricted in its scope and benefits of the provisions of that Act are confined to the

verumpattamdar, cultivating verumpattamdar, customary verumpattamdar, kuzhikanamdar, kanamdar, the main advantages conferred under the

Act are the fixity of tenure, the restricted right of ejectment and fixation of fair rent eo far as those tenants are concerned. Of course, a tenant even

in a suit for ejectment contemplated by the Act is entitled to take advantage of the provisions of the Act, I [1] of 1900. But if he takes advantage of

these provisions, it is needless to say, that he is not entitled to invoke the provisions relating to the renewal of lease and other similar advantages.

Section 49, Malabar Tenancy Act, providea that the provisions of the Improvements Act shall apply in all cases of eviction to which this applies.

The object of this provision, I think, is to give an option to the tenants whether he was taking advantage of the provisions of Improvements Act of

1900 or whether he would have recourse to the beneficial provisions of the Acfc of 1929.

In my opinion, therefore, from an examination of the scheme underlying the provisions of the Act, the benefits u/s 33 do not extend to a sub-

tenant.

There ia a decision of Happell J. in Pottentakath Kunholan Vs. Krishnan and Others, . In that case the question that arose for decision was

whether the usufructuary mortgagee from the sub-kanamdar was entitled to the benefits of Section 83, Malabar Tenancy Act. The applicability of

Section 83 seems to have been conceded and the only point argued was that the respondents were not tenants as they were usufructuary

mortgagees within the meaning of Section 58(d), T. P. Act, and that such usufructuary mortgagees were not tenants and that the intention, of the

Legislature was not to include within the definition of a tenant a usufructuary mortgagee and to confer upon him the benefits of Section 33 of the

Act. In view of the later decision of the learned Chief Justice and my learned brother in K.V. Govindan Nair and Another Vs. Appukutty, , the

view of Happell J. seems to be wrong. In order to decide whether any relationship is created in such circumstances, the test need not necessarily

be whether the transferee of the mortgagee is liable to pay rent under the deed or not, but whether the relationship brought about by the document

was not that of an intermediary within the meaning of the statute, as the definition of tenant u/s 3 (v) of the Act includes expressly an intermediary

also. If as the learned Judges held in that case the othidar was an intermediary and therefore a tenant within the meaning of the Act, the view of

Happell J. must be deemed to have been overruled by the decision of the Bench.

There is no decided case on the point and we have to consider the question upon the language of the statute and the scheme underlying its

provisions. For these reasons. I think, the decision of the lower Court that the appellants are not entitled to the benefit of Section 33, Malabar

Tenancy Act, is correct and the second appeal fails and is dismissed with costs.

Viswanatha Sastri J.

The point that arises for our decision in this second appeal is whether in a suit by a jenmi for redemption of a Malabar othi, a tenant of the

othidar is entitled to apply u/s 33, Malabar Tenancy Act, hereinafter referred to as the Act, for purchasing the kadiyiruppu in which he has been

residing for the requisite period. In Pottentakath Kunholan Vs. Krishnan and Others, , Happell J. accepting the concession made by the learned

advocate for the landlord in that case held that a sub-tenant was entitled to the benefit of Section 33 of the Act. The point, however, has now been

fully argued before us by the learned counsel for both sides. I am free to confess that during the course of the arguments my mind oscillated

considerably, and I have not reached a confident conclusion though I have settled down to the view that I must agree with my learned brother.

The object of Section 33 is to secure to kudiyiruppu holders freedom from eviction by enabling them to purchase the kudiyiruppu. It is no

doubt true, as pointed out by the learned advocate for the appellants, that this object would be defeated in many cases if it were to be held that a

sub-tenant is not entitled to the benefit of that section. At the same time the section subjects landlords to a compulsory acquisition of their property

against their wishes and in this sense it interferes with proprietary rights. But hardship is not a final consideration in a matter of construction and our

duty is to see not what the Legislature might in our judgment reasonably have done, but what it has actually done. It is, however, a relevant

consideration in a matter of construction that a large number of cases coming within the apparent scope of the enactment should not be denied the

relief which the Act gives unless the Court is driven to that conclusion. Not only cases where the subject-matter of the suit is a kudiyiruppu, but

also cases where it is part of the subject-matter of a suit for eviction, fall within the ambit and scope of Section 33. In suits for eviction against

kanom or kuzhikanam tenants or even verumpattamdars, it is usual to find one or more persons who are in possession of kudiyiruppus under them

impleaded as parties and the kudiyiruppu holder is often the last of a series of tenants, one holding under the other. The question is whether Section

33 restricts the right of purchasing the kudiyiruppu to the tenant who holds immediately and directly from the landlord who seeks to evict him. In

this case, the kudiyiruppu is sought to be purchased by a tenant of an othidar from the jenmi.

The term ""landlord"" as defined in Section 3 (o) of the Act means a person under whom a tenant holds and to whom he is liable to pay rent or

michavaram. A kanamdar, a sub-kanamdar, a kudiyiruppudar or a verumpattamdar would be a landlord vis a vis the tenant holding under him and

a jenmi would be the landlord of the kanamdar. The expression ""landlord"" is, therefore, wide enough to include all persons above the last of a

series of derivative tenure holders. The word ""tenant"" as defined in Section 3 (v) of the Act means any person who has paid or agreed to pay rent

or other consideration for his being allowed by another to enjoy the land of the latter. The definition is very wide and includes not only the tenant

holding from and standing in direct relation to a landlord like the kanamdar under a jenmi, but also the tenant of the kanomdar and the sub-tenant

of that tenant. We have held that an othidar who had parted with possession to his own tenant would be an intermediary and therefore a tenant.

The definition of ""landlord"" and ""tenant"" is so comprehensive as to include persons besides those standing in direct and immediate relationship of

landlord and tenant. A jenmi would be a landlord in relation to a tenant of kanomdar. In respect of property held under a kanom, the ""tenant

would include not only the kanomdar but also kuzhikanamdar and verumpattamdar and the tenants holding under them. In Malabar, it is very

common to find in respect of a single holding several persons holding under derivative titles as kanomdars, subkanamdars, kuzhikanamdars of

verumpattamdars. Except the jenmi other persons holding lands are tenants, but they may at the same time be landlords so far as persons holding

under derivative titles from them are concerned. A kanomdar is a landlord so far as a tenant holding under him is concerned; but he is also

expressly included in the term ""tenant"". Similarly, a kuzhikanomdar or non-cultivating verumpattamdar comes within the definition of a ""tenant"" in

Section 3 (b), though he may be a landlord so far as persons holding under him are concerned. To this extent, the argument of the appellant is

supported by the definitions of ""landlord"" and ""tenant"". ""Evictions"" is defined in Section 3(e) as the recovery of possession of land from a tenant

and includes the redemption of a kanom. Normally speaking, a suit for eviction is different from a suit for redemption. The word ""eviction"" is

ordinarily confined to suits by a landlord against his tenant or by a person having title against a trespasser for recovery of possession, and as my

learned brother has pointed out, it is apparently in the sense of a suit by a landlord against a tenant that the expression has been understood in the

Act. Otherwise, if a suit for eviction was meant to include a suit for redemption, there would have been no necessity to expressly include a suit for

the redemption of a kanom within the definition of ""eviction"". The incidents of a suit for redemption and a suit for eviction vary considerably. In a

suit for redemption, apart from the fact that the valuation has to be with reference to the principal amount of the mortgage, accounts between the

mortgagor and the mortgagee have to be taken according to the rules prescribed, by the contract and statute and relief granted as a result of the

taking of such accounts. In an ordinary suit for eviction by a landlord against his tenant, there may be a claim for recovery of arrears of rent; but

here is no further liability on the part of the person in possession to render accounts. It is true, as pointed out by the learned advocate for the

appellant, that in Section 3 (1), Malabar Compensation for Tenants'' Improvements Act (I [1] of 1900), a lessee, sub-lessee, mortgagee, and sub-

mortgagee are all included in the definition of a ""tenant"" and u/s 3 (2) of that Act, ""ejectment"" includes redemption or recovery of possession of the

land held on a mortgage. Section 6 of that Act entitles a tenant as defined in that Act to be paid compensation on ejectment. But the wide definition

of ""ejectment"" in that Act cannot be bodily imported into the Maiabar Tenancy Act, which is a self-contained enactment so far as ejectment of

tenants by landlords is concerned.

Attention is drawn by the learned advocate for the respondent to the definition of the word ""rent"" in Section 3 (4) of the Act as referring to

what is payable in money or in kind or in both to a person entitled to the use or occupation of a land by another permitted by the person so

entitled, to have use or occupation of the land. It is argued for the respondent that Section 34 (4) of the Act, which requires a tenant desirous of

purchasing a kudiyiruppu to deposit the arrears of rent or michavaram payable by the tenant throws light on the interpretation of Section 33 of the

Act and demonstrates that it is only a tenant of the landlord seeking eviction and not a sub-tenant that is entitled to the relief given u/s 33. I do not

see how this result follows. The reference to the rent or michavaram in Section 34 (3) (a) and (4) of the Act may be to the rent or michavaram

payable to the landlord who is seeking eviction by his own tenant and not the rent or michavaram payable by the tenant seeking relief u/s 33 to his

own immediate landlord or intermediary. This interpretation is consistent with the general principle that the rights of a landlord should not be

jeopardised or prejudiced by the granting of a sub-lease by the tenant. Or it may be, that the expression ""the arrears, if any, of rent payable by the

tenant"" in Section 34 (3) (a) has to be construed as being applicable only to cases where arrears of rent are due by the tenant seeking relief u/s 33

to the plaintiff landlord, and not to other cases. But whichever way it is looked at, I do not consider that Section 34, Sub-sections 3 and 4 throw

light on the interpretation of Section 33 (1). The considerations that I have adverted to above are in favour of construing Section 33 (1) as applying

to the case of a sub-tenant seeking to purchase the kudiyiruppu. This point of view receives indirect support from other sections of the Act which

use the expressions ""immediate landlord"" or ""his landlord"", or ""his tenant"", or ""landlord''s landlord"", whenever a direct relationship of landlord and

tenant is intended by the Act (See Sections 11, 18, 14, 16, 17, 18, 20, 26, 28, 30, 32 and 44). It is a relevant argument that apt language of a

different kind is used in Section 21, which refers to the landlord who obtains such eviction, and in Section 22 (2), which refers to the landlord from

whom renewal is claimed and that it would have been easy for the Legislature to have repeated such qualifying terms in Section 33 if the object

was to confine its application to tenants holding directly under the landlord who seeks eviction.

Notwithstanding these weighty considerations I feel the force of the observations of my learned brother that neither in the contemplation of the

Act nor under the general law, can a suit for redemption of an othi be considered to be a suit for eviction. It is also a cogent argument that the

reference to a suit for eviction in Section 83 must be to a suit for eviction contemplated by and instituted under the provisions of the Act. As my

learned brother has pointed out, Sections 14 and 20 of the Act are exhaustive of the modes in which eviction can be sought under the Act and of

the grounds on which eviction of tenants is permissible. The Act does not provide for eviction of persons other than those referred to in Sections

14 and 20 though such persons holding under the persons enumerated in Sections 14 and 20 might also be im-pleaded in suits for eviction and

relief granted against them under the general law. In this view, the expression ""suit for eviction"" in Section 33 must be controlled by reference to the

general scheme of the Act as appearing in Sections 14 and 20, I am unable, therefore, to differ from my learned brother''s conclusion that Section

33 reasonably construed and in conformity with the rest of the provisions of the Act, is susceptible of the inter. pretation that it has no application

to the tenant of an othidar who seeks to purchase the kudiyiruppu in a suit for redemption by the jenmi. I agree with that the second appeal fails

and has to be dismissed with costs of the plaintiff-respondent.