Pazhancheri Panangat Blahayib Karnavan Kunhunni Nair (dead) and Another vs Raman Menon

Kumaraswami Sastri, J.—This is a Letters Patent Appeal against the decree of Mr. Justice Odgers dismissing Second Appeal No. 945 of

1924 with costs. The facts are shortly these: the plaintiff is the landlord, the defendant the tenant and the suit is to redeem the kanom for Rs. 200

evidenced by Exhibit A. The plaintiff gave the kanom to one Subramania Pattar and the matetrial terms, of Exhibit A which is the melkanom in

favour of the 1st defendant are that the kanom in favour of Subramania Pattar should be redeemed by the 1st defendant and that he should pay Rs.

200 towards the redemption of that kanom. As regards the value of improvements which Subramania Pattar was claiming or might claim, Exhibit A

also says that the 1st defendant should pay for those improvements if necessary. The material clause is:

I shall therefore pay up the edukkudi amount of Rs. 200 and also the value of the kuzhikkurs (improvements) effected in the schedule-mentioned

properties by the said Subramania Pattar, although there is no necessity to pay the value of the same as they were effected without your

permission, the value being paid only to avoid litigation and trouble.

Then the clause proceeds:

It has also been settled that, if Subramania Pattar does not take the edukkudi amount as mentioned above and surrender the schedule-mentioned

properties the said amount shall be paid to you and you should pay off the edukkudi and recover possession of the properties for me, that you

should directly recover the arrears of michavaram rent due from Subramania Pattar up to 1081 (1905-06) inclusive, and when the panyam amount

and the value of kuzhikkurs that may be ascertained and estimated at the time of causing eviction, if kuzhikkurs are raised, are given, it has been

agreed that the properties would be surrendered with the receipt that may be obtained from Subramania Pattar with the release deed and the

document, etc.

This translation beginning ""and when the panyam amount"" was the translation made by the Bench Clerk as the parties were not agreed as to the

accuracy of the translation made by the Court translator. The translation of Exhibit A as translated by the Court translator is:

and that when the mortgage amount, Rs. 200, and, if any kuzhikkur value has been paid, that kuzhikkur value also as estimated at the time the

property is recovered possession of is paid, the properties would be surrendered with an Ozhimuri (surrender deed), the receipt obtained from

Subramania Pattar and this deed, etc.

It is not very material to consider this as the contingency contemplated did not arise. A suit was not filed by the Jenmi, the owner. What

happened was that Subramania Pattar did not consent to redemption and a suit, No. 535 of 1906, had to be filed. Exhibit B is the decree in the

suit. The suit is by the Jenmi as pro forma tenant and the other parties, interested to redeem the present respondent being the 3rd plaintiff. A

decree was passed and under that decree plaintiffs, 2 to 7 were directed to pay into court the amount mentioned in the decree and the decree goes

on to say that ""the defendants do deliver up to the said plaintiffs or to such persons as they may appoint in this behalf all documents in their

possession or power relating to the plaint mortgaged properties.

Then the decree goes on to say that

the defendants shall put the 3rd plaintiff into possession of items 12 and 13 of the mortgaged properties described in the schedule herewith

annexed and that, if such payment be not made within the above period, the mortgaged properties be sold. It is further ordered and decreed that

the 1st defendant is at liberty to remove his improvements on the said plaint items 12 and 13.

As regards the improvements what happened was that there were two Commissioners appointed. The first Commissioner valued the

improvements at about Rs. 70 and odd, the second Commissioner valued them at Rs. 83, Subramania Pattar chose to remove the trees rather than

receive compensation and that course was evidently agreed to by the parties interested. He did not remove the trees owing, according to him, to

domestic calamities. Evidently he did not think it worth his while to do so. The improvements consequently stood on the land unpaid for. It is not

disputed that the present respondent paid the Rs. 200 and redeemed Subramania Pattar and that he has been in possession ever since. The plaintiff

now wants to redeem him and the question is whether the respondent can claim any compensation for improvements. It is contended by Mr.

Menon for the appellant that Subramania Pattar did not take away the trees on the land as the 1st defendant did not pay Subramania Pattar

anything for the improvements. The benefit of this conduct in not taking away the trees should enure to the Jenmi and not the defendant as he is

only a kanomdar. This may be so if the law governing the case was the ordinary law of landlord and tenant or that of mortgagor and mortgagee but

the question is how far the position of the parties is affected by the Malabar Tenants Improvements Act. The relevant sections for the purpose of

this appeal are Sections 5, 10 and 13.

Section 5 says:

(1) Every tenant shall on ejectment be entitled to compensation for improvements which have been made by him, his predecessor-in-interest, or by

any person not in occupation at the time of the ejectment who derived title from either of them and for which compensation has not already been

paid; and every tenant to whom compensation is so due shall, notwithstanding the determination of the tenancy or the payment or tender of the

mortgage money (if any), be entitled to remain in possession until ejectment in execution of a decree or order of Court.

(2) A tenant so continuing in possession shall during such continuance hold as a tenant subject to the terms of his lease or of the mortgage as the

case may be.

Section 10 relates to trees of spontaneous growth and says:

When the improvement is not an improvement to which Section 9 applies but consists of timber trees or of other useful trees or plants

spontaneously grown during the period of the tenancy or sown or planted by any of the persons mentioned in Section 5, the compensation to be

awarded shall be three-fourths of the sum which the trees or plants might reasonably be expected to realise if sold by public auction to be cut and

carried away.

Section 13 refers to maintenance of trees and the cost of such maintenance. It says:

When the improvement consists in the protection and maintenance of limber or fruit trees or of other useful trees or plants not sown or planted by

any of the persons mentioned in Section 5, or of such trees or plants spontaneously grown prior to the commencement of the tenancy, the

compensation to be awarded shall be the proper cost of such protection and maintenance ascertained as provided in Section 11.

We think that it is unnecessary in this case to invoke the aid of provisions of Sections 11 and 13, because it is nobody''s case that the trees for

which compensation is now claimed were of spontaneous growth. Both in the prior litigation and in this what was claimed was compensation for

trees planted or improvements made by Subramania Pattar, the previous kanomdar, and we agree with Mr. Justice Odgers in thinking that it is not

open now in second appeal to raise the question as to the nature of these improvements whether they were of spontaneous growth or whether they

were trees planted. Throughout in all the Courts the case went on the footing that the improvements which were effected would come within the

purview of Section 5 and the question was who was entitled to the benefit of these trees. We think the question turns on the construction of the

words in Section 5 ""predecessor-in-interest"", whether it can be said that where one mortgagee redeems another, the latter can be said to be a

predecessor-in-interest of the former within the meaning of Section 5. If so, there can be no doubt that he is entitled to the benefit of the

improvements. The argument of Mr. Menon is that in cases like this where the jenmi creates a kanom and a melkanom it cannot be said that the

kanomdar is the predecessor-in-interest of the melkanomdar and therefore Section 5 can have no application. For the respondent it is contended

that these words are to be construed in a more liberal sense and that the succeeding kanomdar redeeming the predecessor must be taken to be his

successor in interest and that he would be so in respect of all the rights and obligations under the previous kanom.

As regards the meaning of the expression ""predecessor-in-interest"" in Section 5 we agree with the observations of Mr. Justice Sundara Aiyar

in his ""Malabar Law"" that the words must be used not in a strict, sense. We agree with the following-observation:

The words cannot be said to adequately describe the class of persons for whose improvements the tenant in possession is entitled to claim

compensation. Unless the word ''predecessor-in-interest'' is understood in a somewhat loose way, the section may not include many cases which

must obviously have been intended to come within it. The trouble arises, largely from the fact that in drafting this section sufficient attention was not

paid to the fact that the definition of the word ''tenant'' in the Act is so framed as to include very varying kinds of interest, such as mortgagee''s and

lessee''s interests and even in (sic) cases where the occupant has no lawful title to possession.

Then the learned author goes on:

In the case of a mortgagee paying off a previous mortgagee, the latter may be regarded as the predecessor-in-interest as under the law the

subsequent mortgagee is subrogated to his rights. To cover obvious cases it may be necessary to understand the word ''predecessor-in-interest'' as

the derivation of the word suggests as meaning ''one that went before him in interest,'' some ''tenant'' as understood by the Act who preceded him

in occupation either immediately or immediately through others without the continuity being broken up (sic) by the intervention of the plaintiff.

The cases reported in Thekkamannengath Raman alias Kochu Poduval Vs. Kakkasseri Pazhiyot Manakkal Karnavan and manager Raman

Bhattathripad and Others, and Thupran v. Mamad Kasim Sait (1912) 17 I.C. 433 support the view. The former was no doubt a case of

compensation for trees of spontaneous growth but the observations at pages 194 and 195 apply equally to cases of compensation for trees planted

and the reasoning of the learned Judges applies equally to those cases. In Thupran v. Mamad Kasim Sait (1912) 17 I.C. 433 the learned Judges

observe:

It is immaterial whether the improvements were made by the 2nd defendant himself or by any other person in possession before him. It is quite

sufficient if the improvements are on the land even if they are made by some previous occupant. It was not the case of either party that anybody

but the 2nd defendant was in occupation at the time of the suit.

These decisions are authority for holding that the expression ""predecessor-in-interest'''' has to be used not in a strict sense but as meaning a

person who claims title from any other by assignment, transfer, gift, etc., and in claiming compensation we think that, where one kanomdar

redeems the other, the latter should be treated for the purpose of Section 5 as the predecessor-in-interest of the former. In the present case we see

no reason why compensation should not be given as claimed by the respondent. We think the decision of the learned Judge is right and dismiss the

Letters Patent Appeal with costs.