ASSANKUTTY KURIKKAL Vs. RAMUNNY NAIR

JUDGEMENT

(1.) The short question for consideration in the second appeal is the effect of S.53 of Madras Act XXXIII of 1951 vis-a-vis S.24(3) of the Malabar Tenancy Act, 1929 as amended by Act XXXIII of 1951 and Act VII of 1954. A few relevant facts for appreciating the point may be mentioned.

(2.) The appellants are the landlords and the respondent the tenant. The appellants filed the suit, out of which the second appeal has arisen, for recovery of possession of the plaint property with arrears of rent, future rent, etc. on the ground that the respondent kept the rent in arrears. Pending suit Madras Act XXXIII of 1951 came into force. Thereafter, the tenant deposited the rent for the 6 years from 1123 to 1128 under S.53 of Act XXXIII of 1951 and costs of the suit and claimed that the suit had to be dismissed under S.24(3) of the Malabar Tenancy Act. The Trial Court held that he had to deposit, not only the rent for the 6 years, but all the arrears, to claim fixity of tenure under S.24(3) of the Tenancy Act. The tenant appealed to the lower appellate court and the lower appellate court held that the deposit of the 6 years' rent was sufficient to claim fixity of tenure and in that view it granted a conditional decree of dismissal of the suit on deposit of the 6 years' rent and costs. The excess deposited, if deposit had already been made was also directed to be refunded. In second appeal the landlords canvass the correctness of the aforesaid decision of the learned District Judge.

(3.) S.53 of Madras Act XXXIII of 1951 makes provision for the payment by the tenant to the landlord of the entire rent payable in respect of his holding for the 6 agricultural years beginning with 1944-45 and ending with 1949-50 and on such payment the landlord shall not be entitled to recover from the tenant any arrears of rent due in respect of the holding for any previous agricultural year. S.24(3) of the Malabar Tenancy Act enacts that in any suit, in which eviction is claimed on the ground that the tenant has not paid, within 3 months after the due date, the whole or any portion of the rent due in respect of the holding, if the tenant deposits in court for payment to the plaintiff in the suit the amount of the rent due with interest thereon at five and a half per cent per annum up to the date of deposit and the costs of the plaintiff up to that date, the court shall dismiss the suit. The argument of the learned advocate of the appellants is that there is a distinction between "rent due" and "rent recoverable". He develops his argument further and contends that under S.53 of Act XXXIII of 1951 the landlord is prohibited from "recovering the arrears" prior to 1944-45, if the tenant pays the entire rent from 1944-45 to 1949-50; whereas, if the tenant wants to claim fixity of tenure and get a dismissal of the suit under S.24(3) of the Malabar Tenancy Act, he has to deposit all the arrears of "rent due" with interest thereon and the costs. In other words, though the landlord is not entitled to recover more than 6 years' rent under S.53 of Act XXXIII of 1951, if the tenant claims fixity of tenure and the dismissal of the suit under S.24(3) of the Malabar Tenancy Act, he has to pay all the arrears and costs, notwithstanding the prohibition under S.53 of Act XXXIII of 1951. This contention fails to appeal. S.53 of Act XXXIII of 1951 lays down that on payment of the 6 years' rent from 1944-'45 to 1949-'50 the landlord shall not be entitled to recover from the tenant any "arrears of rent due in respect of the holding" for any previous agricultural year and that means that all the arrears of rent due excepting the 6 years' rent become irrecoverable by the landlord, which again means that such arrears cease to be due. Under S.24(3) of the Tenancy Act only such "amount of rent due" with interest thereon and costs need be deposited by the tenant. It may also be noted that S.24(3) contemplates the deposit of rent "for payment to the plaintiff," so that what is deposited under S.24(3) is what is payable to the landlord, which again means, what is recoverable by the landlord. Therefore, if under S.53 of Act XXXIII of 1951 nothing more than the 6 years' rent is recoverable by the landlord, then anything more than the 6 years' rent ceases to be payable to the landlord and it also ceases to be due from the tenant. If a different interpretation, I mean the interpretation urged by the appellant's learned advocate, is accepted, the result will be to nullify the effect of S.53 of Act XXXIII of 1951. That certainly would not have been the intention of the Legislature.