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Judgment
Somayya, J.—The appellant brought the suit out of which this appeal arises for redemption of a kanom and for other reliefs. The first
defendant is the kanomdar whose mortgage was sought to be redeemed. He died after the action and his legal representative is the first respondent
in this appeal. The property in suit is trust property and defendants 2 and 9 in the action were the urallars or the trustees of the devaswom.
The main defence is that in proceedings under the Malabar Tenancy Act the first defendant got a renewal u/s 25 of the Act that the renewal
which he obtained was still subsisting and that therefore the suit for redemption was premature. Both the lower Courts upheld this contention and
dismissed the plaintiff''s suit. Hence this appeal.
It appears that the jenmis, that is, defendants 2 to 9 as representing the devaswom of which they are the urallars, filed O.S. No. 556 of 1931 for
redemption of the mortgages of both the present plaintiff and of the present first defendant. In that suit the present plaintiff, the melcharthdar, was
the second defendant and the present first defendant was the third defendant. The present first defendant filed an application u/s 22 of the Malabar
Tenancy Act asking for a renewal of his kanom. Notice was given to the other parties and the Court registered this application as an independent
application, I.A. No. 884 of 1932, and passed an order, Ex. IV, on the 5th of January, 1934, upholding the applicant''s right to obtain a renewal.
Time was granted for the payment of certain monies which had to be paid u/s 24 of the Act and the matter was adjourned to the 26th of that
month. The money was paid a few days beyond the time fixed but the Court evidently excused that delay and accepted the deposit made by the
applicant and passed an order u/s 25 directing the execution of a renewal deed, the effect of which under Sub-section 3 of Section 25 is that the
tenant shall be entitled to enjoy the holding for 12 years. In this case the Court directed that the renewal should operate for a period of 12 years
from the 1st of Vrichigam 1103 which corresponds to 16th November, 1927. If this order is binding on the plaintiff it is clear that the renewal in
favour of the first defendant was operative till 1939 at any rate, and the present suit filed in 1931 is liable to be dismissed.
Mr. Krishna Variar, the learned advocate for the appellant, urges two objections against the validity of the proceedings in O.S. No. 556 of
1931 just mentioned. The chief objection is that a renewal which u/s 25 of the Malabar Tenancy Act is to operate for 12 years is either a mortgage
or a lease for over 5 years and that therefore it is bad u/s 76 of the Hindu Religious Endowments Act, II of 1927. That section provides:
No exchange, sale or mortgage and no lease for a term exceeding five years of any immovable property belonging to any math or temple shall be
valid or operative unless it is necessary or beneficial to the math or temple and is sanctioned by the Board in the case of maths and excepted
temples and by the committee in the case of other temples.
So the point urged is that, as the suit property is property belonging to a public temple and is therefore governed by Section 76 of the Hindu
Religious Endowments Act, II of 1927, a renewal which is a lease for a term exceeding five years or a mortgage is invalid because admittedly the
sanction of the Board or of the temple committee was not sought or obtained in this case. The wording of Section 76 appears to my mind to apply
to voluntary transfers by the trustees or persons in charge of public religious institutions. It cannot, for instance, apply to the case of a forced sale in
execution of a money decree against the temple. In the present case, Section 17 of the Malabar Tenancy Act confers a right upon a kanomdar to
call upon his immediate landlord for a renewal for 12 years on conditions and the landlord is bound to grant such a renewal. The section says:
A kanomdar shall on the expiry of the kanom under which he holds be entitled to claim and his immediate landlord shall be bound to grant a
renewal enuring for a period of 12 years...
If the jenmi or the immediate landlord does not grant the renewal which he is bound to do u/s 17, the kanomdar is given the right of applying to
the Court u/s 22 of the Act, and on receipt of that application, the Court calls upon the land lord to state in writing what objections he has. u/s 24
the Court determines the amount payable as renewal fee and under Clause (2) of that section it makes an order for deposit within a time to be
fixed in the said order, of the amount directed to be paid and also of all arrears with interest thereupon at the contract rate. u/s 25, if the amount
ordered u/s 24 is deposited, then the Court has to execute a renewal deed containing such terms as it determines to be the terms of the expiring
transaction and as are in accordance with law. It is obvious that in such a case the immediate landlord or the jenmi has no option but to grant a
renewal; else he will be mulcted with costs as provided by Section 25 (2) (tit). It therefore appears to me that the bar enacted in Section 76 of the
Madras Act II of 1927 cannot apply to the case of a compulsory renewal u/s 19 and Sections 22 to 25 of the Malabar Tenancy Act.
There are some other minor points raised in this connection--that the person from whom the renewal was to be obtained was the immediate
landlord and not the original landlord. It is said that the present plaintiff who had obtained a melcharth was the immediate landlord. In the present
case in the application u/s 22, both the original jenmi, that is, the temple represented by its trustees, and the present plaintiff, the melcharthdar were
all made parties and the 1st defendant asked for a renewal in accordance with the provisions of the Act. In fact paragraph 4 gi Ex. P, the petition
filed u/s 22, refers to the melkanom demise granted in favour of the present plaintiff. The present plaintiff was the third respondent in that
application. Paragraph 12 stated that the third respondent was impleaded as she was the melkanom holder and prayer (b) in that application is
''directing that, on the petitioner paying the fees by the time fixed, a renewed demise be executed to him and got registered by the Court in
accordance with law on the terms of the prior demise''; and ultimately the demise was actually executed by the Court. The third respondent having
been made a party and the order u/s 25 made in her presence she is bound by the order and she is not entitled to go behind that order now. If an
order was not made in her favour allowing her to draw the amount deposited by the present first defendant but the Court allowed the jenmi to take
it away, that is a matter with which we are not now concerned. What is important is that in a proceeding u/s 22 to which the present plaintiff was
also a party a request was made that a proper renewal should be executed in accordance with law and u/s 25 it is the Court that grants the
renewal, which means that the Court does it on behalf of the person who is bound to grant the renewal. If, as Mr. Variar contends, the present
plaintiff is the person who was entitled to grant the renewal, then the Court, in executing the renewal u/s 25 of the Act, must be taken to have done
so on behalf of the present plaintiff. So far as the grantee the first defendant is concerned there is a valid renewal obtained in the presence of the
plaintiff. The suit for redemption therefore fails.
In the view taken by me on this question the other points discussed by the lower appellate Court become immaterial.
Mr. Variar then says that his client paid certain arrears of rent due on the property when his client took the melcharth and that his client is
entitled to all the rent that was unpaid. He says that the melcharth in his favour operates at least as an assignment of a right to recover rent payable
by the first defendant, that the first defendant did not pay the rents for certain years and that his clients should be given a decree for that amount.
This right is not part of the redemption which the plaintiff sought in the present suit. It is a right which is now put forward as an alternative or
additional right, that is, even if the renewal in favour of the first defendant is right and therefore a suit for redemption does not lie, still, as the
assignee of the right to collect certain rents, the plaintiff is entitled to claim those arrears in the suit. I do not find this question mooted in the Courts
below. The lower appellate Court does not say anything about it. In fact when the Appeal Examiners pointed out that court-fee had to be paid on
the arrears of rent that was claimed by the plaintiff, the plaintiff took up the stand that there was only one claim, namely redemption, and that the
claim for arrears of rent and for accounts were part of the redemption right. It is not admitted on the other side that there were any arrears unpaid.
In fact Mr. Govinda Menon says that his client paid up all the arrears which were payable in respect of this holding, which, he points out, is a
condition precedent for his obtaining the renewal. On the other hand, Mr. Variar says that what the jenmi claimed in the other suit was the arrear
outstanding after giving credit to the amount paid by the present plaintiff and that the present plaintiff was therefore entitled to recover from the first
defendant what he the first defendant did not pay to the jenmi. These are questions of fact which ought to have been investigated and would have
been investigated if a proper claim had been made for such arrears. The claim made is one for arrears and right through it was treated as one for
redemption and when the Appeal Examiners pointed out that it was more than a suit for redemption the position was contested and the Court
agreed with the plaintiff in saying that it is only a suit for redemption. In these circumstances I do not think it right to allow the plaintiff to advance
this claim at this stage. If she has any such right, she is of course entitled to claim the same in a separate suit. This appeal is therefore dismissed with
costs, one set to be divided among all the respondents.
Leave to appeal is refused.