VASUDEVAN NAMBOODIRI Vs. VARAPPAN

JUDGEMENT

(1.) IN this Second Appeal which arises out of a suit for arrears of michavaram and other dues under a kanom deed, Ext. A, so far as they relate to the suit properties, the only contention pressed on behalf of the plaintiff-appellant is, that he is entitled to recover 18 paras,1 edangali and 10 veesoms of paddy annually, being the proportionate amount of what was allowed to the tenant for the payment of revenue to Government. It was common ground, that the interests of the jenmi and of the kanom tenant in the suit properties under Ext. A, had become vested in the appellant and in the respondents respectively. The courts below have accepted the defence, that the appellant is not entitled to recover the amount of paddy claimed, but only the proportionate part of the amount of the revenue payable, which is in money.

(2.) EXT. A, which comprised other properties also, fixed the annual jenmi pattern of all the properties at 143 paras of paddy, out of which, the tenant was allowed credit for 101 paras and 71/2 edangalis of paddy towards interest on the kanom and puramkadom amounts, 4 paras and 71/2 edangalis of paddy for 'kedupizha' and the balance of 36 paras and 5 edangalis of paddy, for the payment of revenue annually. The tenant was to pay the revenue to Government direct and produce the receipts. He had to pay 'purapad' of 3 paras of paddy costing Rs. 3 and a bunch of plantains costing as 12, every year at stipulated periods. For the period in question, the tenant made no payment towards revenue. The question for decision is, whether the appellant can recover the proportionate Amount for the suit properties, out of 36 odd paras of 'paddy, credited as above, under EXT. A, that proportionate amount being, 18 paras,1 edangali and 10 veesoms of paddy. It is quite clear on the computations in EXT. A, that the tenant was allowed credit for 36 paras and 6 edangalis of paddy out of the jenmi pattom, for discharging the obligation that he had undertaken, to pay the revenue; bat for this undertaking, the amount so credited, would also have been payable by the tenant. It is no doubt true, that the revenue on the properties has always been payable in money, the proportionate amount for the suit properties being Rs. 9-1-0 annually. On the computations made in EXT. A, it is reasonable to hold, that the amount of 36 paras and 5 edangalis of paddy was allowed to be appropriated by the tenant out of the yield, not absolutely for himself. Perhaps the amount came to be so fixed having regard to the prevailing market rate for paddy at the time. The position therefore comes to this. The appellant now seeks a refund of the pattom which the tenant has appropriated for himself without discharging his obligation, by paying the revenue. The consequence is thus stated in an almost identical case in Krishna Warriar v. Avittathur Parameswara Vilasam Company ltd. , 39 Cochin 272 decided by a Full Bench of the former Cochin High Court: "by omitting to pay the tax the tenant has clearly committed a breach of the contract entered into by him and he is liable to give a refund of what he has been allowed credit for from the patam of the properties for that purpose. " The bench followed the earlier case of Narayanan nambooripad v. Devassi, 27 Cochin 4, decided by a division bench of the same Court, where the principle was tersely stated thus: "the tenant has been asked to pay tax out of the pattam; he does not pay it. The landlord, therefore, claims the full pattam. " The landlord was allowed to recover. In Narayanan adithiripad v. Gopalan Nayar, 39 Cochin 343 it was held that "where a tenant who has undertaken to pay the tax of the property receiving from the pattom of the property credit for meeting that liability, omits to perform his obligation, he is liable to give a refund of the pattom actually put into his hands for the purpose. Therefore, the tenant in this case also is in law bound to account to the jenmi for the pattom reserved with him for payment of tax, since he has omitted to pay the same. " Speaking with respect, I accept these cases as laying down the correct law.

(3.) IT is true, that in two previous litigations evidenced by Exts. B and II, the plaintiff claimed apportionment of revenue and dues payable by the tenant for the suit properties, and the amount of apportioned revenue was stated to be Rs. 9 -1-0. As to the propriety of the apportionment there is no question whatever, but no point arose for decision in those cases, as to the right of the plaintiff to recover the amount of paddy. I therefore come to the conclusion, that the appellant is entitled to recover 18 paras 1 edangali and 10 veesoms of paddy annually at the market price for paddy prevailing on the due dates with interest, as provided by the decree under appeal. The Second appeal is allowed to the above extent, and is dismissed in other respects. The appellant will have his costs from the contesting respondents in this court.