UKKALI & ANOTHER Vs. KRISHNA IYER & ANOTHER

JUDGEMENT

(1.) 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: -

(2.) 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 under Section 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.