ACHUTHAN NAMBUDIRI Vs. CHOYIKUTTY

JUDGEMENT

(1.) The appellants are the plaintiffs, and seek to vary the decree by the lower appellate court, whereby the tenants appeal in a suit for eviction had been allowed and the decree by the Trial Court, allowing the appellants claim for possession, been reversed. The facts are not in dispute. The suit was to recover possession of the plaint property with past and future rents due under a registered document that had been executed on March 4, 1917. The first defendant and one Imberan, who was the father of defendants 2 and 3, had executed the lease deed in favour of the appellants, who were then minors. The defence raised to the claim is that, being cultivating verumpattomdars, the tenants would be entitled to continue in possession, on payment of rent for six years. The Trial Court had held that the defendants would be entitled to the fixity of tenure only on payment of the arrears of rent claimed in the plaint and on part payment would not, under S.53 of the Malabar Tenancy (Amendment) Act, No. XXXIII of 1951, be exonerated from the liability of paying the full amounts of rent due. On such findings, the Trial Court gave a conditional decree that on the tenants failure to deposit arrears of rent for the years 1115 to 1112, with interest thereon at 5 1/2% per annum, along with costs, there would be a decree for possession in favour of the plaintiffs In ordering the deposit, the Trial Court had allowed the tenants credit for the rent of the years 1121 and 1122, which directed the suit being posted later. On the day it was so posted, there was no deposit, and the claim was accordingly decreed. The tenants appealed, and the lower appellate court has reversed the decree on the ground of S.24 [3] of the Malabar Tenancy Act, No. XIV of 1930, having been satisfied by the tenants partial deposit of rent, which would entitle them to the benefit of S.53 of Act XXXIII of 1951. In other words, the lower appellate court has held that the deposit justifying the tenants being allowed in possession under S.24 [3] need not be of the entire arrears of rent, where partial deposit would confer on the tenants the benefit of scaling down the rent under S.53.

(2.) The appellants learned counsel has argued that the statutory benefit under

(3.) It is obvious that S.24 [3] contains the equitable rule of relief against forfeitures and is the legislative application of that principle to agricultural tenancies; and thereby the penal consequences of eviction, because of the failure to pay the rent can be avoided on the landlords being compensated for the breach. Also it cannot be overlooked that the legislature which enacted the Malabar Tenancy Act was familiar with S.114 of the Transfer of Property Act, and was therefore not framing something novel. I am, therefore, not impressed with the argument by the respondents advocate that S.24(3) contains something sui generis and has nothing in common with the well settled rule of the relief against forfeiture. I think S.24 (3) is but recognition of the well settled rule that forfeiture is but security for the due performance of the undertaking given by the tenant; and, where the undertaking be performed, that should relieve against the evil consequences of the failure. The courts have, therefore, given the relief only on full payment of the arrears, independently of whether part of the liability had become time barred. The appellants advocate relying on Vasudeva Udpa v. Krishna Udpa [ILR 44 Mad. 629] and Vamana Pai v. Venkatu Naika [ AIR 1936 Mad. 116 ] has urged that the lower appellate court has erred in reversing the decree of the Trial Court. He has urged that the word due in S.24(3) would mean the entire contractual liability of the tenant, and not only what be enforceable. The question, therefore, is whether S.53 of the Act XXXIII of 1951 varies the liability or merely makes it partly not enforceable; for, should the effect of payment under the section be to extinguish what remains nothing would survive which be called due from the tenant. In other words, the entire liability would then be discharged, and there would remain no debt for whose due performance the landlord would enjoy the right of forfeiture, It is obvious that the consequence of payments under S.53 of Act No. XXXIII of 1951 is such, and the landlord ceases to be the creditor, there being nothing more due from the tenant as the arrears of rent. It follows that the tenant can claim the benefit of S.24(3) on payment of what he is required to pay under S.53, because thereby all his arrears of rent become discharged. Thereafter, nothing is due, for which the court can withhold the benefit under S.24(3), and the forfeiture in such circumstances becomes security only for performing what the statute requires the tenant to do in order to extinguish the liability for the arrears of the rent. That appears to me to be the inevitable consequence of S.53, and I would, therefore, sustain the judgment appealed against, as I agree with the lower appellate courts interpretation of S.53 and S.24(3). The appeal is, therefore, dismissed, but the parties will bear their costs.