KELANS SON KODAKKAT KANNAN Vs. THARAKANDI KADISSA

JUDGEMENT

(1.) THE question in these appeals (arising out of two suits for arrears of rent between the same parties in respect of the same holding but for different periods)is whether, in a suit for recovery of arrears of rent in enforcement of the charge conferred by Section 39 of the Malabar Tenancy Act, a decree can be made for the sale of the holding free of the interest of a tenant of the defaulting tenant, in other words, of a sub-tenant, the sub-tenant being party to the suit. The courts below have answered this question in the affirmative rejecting the plea of the defendants sub-tenants that there should be a reservation of their interest. The sub-tenants have come to this Court by way of second appeal, and their appeals have been referred first to a Division Bench and then to a Full Bench for answering the question.

(2.) SECTION 39 by which the charge is conferred reads thus:

(3.) THE principal contention before us has been that Section 43 of the Malabar tenancy Act ensures the continuance of the sub-tenant on the holding notwithstanding the sale of the holding and that therefore the decree in a suit for sale in enforcement of the charge under Section 39 should, if the sub-tenant is party to the suit, provide that the sale is subject to the sub-tenancy. We do not think that the contention can be accepted. Section 43 runs thus: