Ukkali and Another vs Krishna Iyer and Another

S. Velu Pillai, J.—The appellants sued to recover michavarom under the terms of Ext. A 2, a kanom deed of the year 1943, which was in renewal of earlier kanom deeds, earliest being Ext. B1 of the year 1918, which was obviously before the Malabar Tenancy Act, 1929 was enacted. The michavarom payable in paddy under Ext. B1 was only 491 paras, while that payable under the later document was 175 odd paras of paddy. One of the contentions of the second defendant-respondent was, that after the passing of the Malabar Tenancy Act, 1929, by virtue of Section 17, the landlord has no right to recover anything in excess of what was payable under the kanom deed before the date of the Act, and that the provisions in the kanom document executed after the date of the Act to the contrary are not enforceable. The Courts below have accepted this contention, primarily on the interpretation of Section 17(a) of the Act. Section 17(a) reads as follows:-

A kanamdar shall on the expiry of the kanam under which he holds be entitled to claim and his immediate landlord shall be bound to grant a renewal, inuring for a period of twelve years, of the same on payment, as renewal fee, of two and one-forth times the balance of the annual fair rent of the lands covered by the kanam after deducting (1) the annual revenue payable on the kanom property to the Government, if payable by the kanamdar under the kanam deed, (2) the annual interest on the kanartham, and (3) the annual michavaram payable under the previous kanam.

It was contended for the appellants, that Section 17(a) does not curtail the freedom of contract for a kanomdar to enter into a kanom transaction, but only enacts, that where he insists upon a renewal being granted on the old terms, the landlord is bound to grant the same. It seems to me, that there is much force in this contention. The Section enacts, that the kanomdar shall be entitled to claim a renewal "of the same" and that the landlord shall be bound to grant the renewal. The words "of the same" have been interpreted by a Division Bench of the Madras High Court in Kuthiravattath Kongasseri Puthukulangare Ukkali alias Pappi alias Amma Neithiar Avl. and Another Vs. Pallassena Kizhakke Gramom, S. Sivaramakrishna Pattar, and by a learned single Judge of this Court in Second Appeal 644 of 1957, as meaning, a renewal on the same terms as the earlier kanom. The correctness of this interpretation was not disputed. But this does not clash with the present contention, that Section 17(a) did not take away the right of a kanomdar, for reasons best known to him, to accept a renewal, on other terms though apparently more onerous to himself.

It has to be observed, that the phraseology "shall be entitled" as in Section 17(a) of the Act occurs in very many Sections of the Act, such as, Sections 16, 18, 21(1), (2), 26(2), 23(b), 25(3), 42(1), and it is impossible to construe it, as destroying or curtailing the freedom to act or to contract, rather than as conferring an additional right. Section 22 furnishes the machinery, by which a kanomdar may enforce the right of renewal u/s 17, against an unwilling landlord, by providing, that he may apply to the Court for compelling the execution of such a renewal, on payment of a renewal fee as computed in accordance with Section 17, and that the Court may execute such renewal after following the prescribed procedure. My attention was not drawn to any specific provision in the Act, which expressly takes away the right of a kanamdar to accept a renewal, which is not in accordance with the terms of Section 17. Section 32 of the Act which provides, that notwithstanding any contract to the contrary, express or implied, whether entered into before or after the coming into force of the Act, no tenant, who is entitled to claim renewal under the Act, shall for the purpose of obtaining a renewal be liable to pay as renewal fee anything more than the renewal fee as provided by Section 17 of the Act, relates to the amount of the renewal fee payable for securing the renewal, and may well be deemed to be supplementary to Section 17 and to Section 22 of the Act.

On the contrary, there is an indication in Section 27 of the Act, that it is open to a tenant to secure a renewal on such terms as may be agreed to between him and the landlord, even after the date of the Act, for it provides that,

Where in respect of any ... kanam ... holding for which a renewal deed has been executed under the provisions of this chapter, if (a) no application is filed under sub-section (1) of Section 22 or (b) within six months after the termination of the period for which the said renewal deed inures and of every period of twelve years succeeding such period, the tenant does not secure a renewal on such terms as may be agreed to between him and the landlord, he may be deemed at the option of such landlord to have agreed to a renewal on the terms of the said deed for twelve years from the date of the termination of each of the said periods, and the said landlord shall be entitled to sue the said tenant for the renewal fee specified in Section 16, 17 or 18.

It seems to me, that there is in Section 27, a recognition of the right of a kanomdar to agree to a renewal, on terms, which are outside the provisions of Section 17 of the Act. I therefore come to the conclusion, that Section 17 creates no bar to a kanomdar, in entering into a contract according to his choice. If the kanomdar does not insist upon a renewal being granted in terms of Section 17, and does not at the same time take a renewal on other terms, Section 23 of the Act confers a right on the landlord to evict him. The result is, that the decree under appeal is modified, by giving a decree to the appellants, for 175 paras of paddy and 175 sheaves of straw, at the rates claimed in the plaint. The other directions in the decree of the first Court will stand. Of course, it will be open to the respondents to discharge the arrears decreed, in accordance with Section 34 of Act 4 of 1961. The appellants are allowed to realize the costs of this Second Appeal from the contesting respondents, but as they had raised untenable contentions, the parties shall bear their costs in the two Courts below.