MUTTIMALU THAMBATHI Vs. P S KRISHNA IYER

JUDGEMENT

(1.) THE appellants sued to recover michavaram under the terms of Ext. A-2, a kanom deed, of the year 1943, which was in renewal of earlier kanom deeds, the earliest being Ext. B-1 of the year 1918, which was before the Malabar Tenancy Act, 1929 was enacted. THE michavarom payable in paddy under Ext. B-1 was only 491/2 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 S. 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 S. 17 (a) of the Act. S. 17 (a) reads as follows: - "a kandamar shall on the expiry of the kanam under which he holds be entitled to claim and his immediate landlord shall be bound to grant a renewal, enuring for a period of twelve years, of the same on payment, as renewal fee, of two and one-fourth times the balance of the annual fair rent of the lands covered by the kanam after deducting (1) the annual revenue payable on the kanam property to the Government, if payable by the kanamdar under the kanam deed, [2] the annual interest on the kanartham, and [3] the annual michavaram payable under the previous kanam. " It was contended for the appellants, that S. 17 (a) does not curtail the freedom of contract for a kanomdar to enter into a kanom transaction, but only enacts, that where he insists upon a renewal being granted on the old terms, the landlord is bound to grant the same. It seems to me that there is much force in this contention. THE section enacts, that the kanamdar shall be entitled to claim a renewal "of the same" and that the landlord shall be bound to grant the renewal. THE words "of the same" has been interpreted by a division bench of the Madras High Court in kuthiravattath Kongasseri Puthukulangara Ukkali v. Pallassena Kizhakke Gramom s. Sivarama Krishna Pattar, AIR. 1941 Madras 408, and by a learned Single judge of this court in Second Appeal 644 of 1957, as meaning, a renewal on the same terms as the earlier kanom. THE correctness of this interpretation was not disputed. But this does not clash with the present contention, that S. 17 (a) did not take away the right of a kanomdar, for reasons best known to him, to accept a renewal on other terms though apparently more onerous to himself.

(2.) IT has to be observed that the phraseology "shall be entitled" as, in S. 17 (a) of the Act occurs in very many sections of the Act, such as S. 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. S. 22 furnishes the machinery, by which a kanomdar may enforce the right of renewal, under S. 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 S. 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 s. 17. S. 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 under S. 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 S. 17 and to S. 22 of the Act.