ASSAINAR HAJI Vs. KRISHNAN NAMBIAR

JUDGEMENT

(1.) THE appellant is the landlord, since 1946, of the plaint schedule property, 1139. 96 acres in extent; & respondents 1 to 12 are its tenants. In December 1957, the latter sold the standing trees on 30 acres of the property to the 13th respondent, who felled and removed them. THE appellant's suit for damages for that removal of trees, which a commissioner deputed by the court estimated at Rs. 24219. 83, has been dismissed by the subordinate Judge, who found that the terms of the tenancy entitled the respondents to cut and appropriate the trees on the land.

(2.) THE relevant deed of tenancy is the 'kanom Kuzhikanom' deed, Ext. A1, dated September 13,1934 executed by the appellant's assignor to respondents 1 to 4 and their late brother Gopalan Nambiar whose legal representatives are respondents 5 to 12, It refers to a prior 'kuzhikanom' deed, copy of which is Ext. B6, dated September 6,1921, in favour of Kuberan Ezhunnalliyedath, who assigned it in 1929 to respondents 1 to 4 and Gopalan Nambiar. Ext. B6 was for a term of 48 years; and Ext. A1 is for 35 years being almost the unexpired period under the former. Ext. A1 recites that the landlord had sued for eviction of the tenants and that that suit was being compromised by its execution as the instrument of further tenancy between them. THE clauses in ext. A1 material for purposes of this appeal and the corresponding clauses in ext. B6 run thus: (Other differences between the two deeds - payment being of Manusham (non-returnable advance) Rs. 1000/- under Ext. B6, and of Kanom (returnable advance) Rs. 2000/- under Ext. A1; Purapad stipulated being Rs. 500/- in Ext. B6 and Rs. 200 in Ext. A1- are not relevant here ).

(3.) COUNSEL for the respondents contends that the expression aconic as it is, could not have been meant seriously by the parties, and argued that since the destination of the trees 'cut and removed' is not indicated in the instrument (Ext. A1) the tenants may take them anywhere and therefore for themselves. Even in modern England, the Modern Law Review says, "it is notorious that laymen are in general unskilled in expressing precisely in writing their intentions with regard to any particular matter". [1963] 26 Modern Law Review, page 88. In instruments executed by laymen, without legal assistance, as Ext. A1 obviously is, it is too much to expect a precision of expression that may stand proof against the critical analysis of trained lawyers accustomed to subtleties. The question should not therefore be 'why such and such a provision or recital was not made', but should be 'what is the purport of the terms actually used'. "as in the construction of other documents", observed the Supreme court, "so in the construction of an agreement to lease, regard must be had to all the relevant and material terms; and an attempt must be made to reconcile the relevant terms if possible and not to treat any of them as idle surplusage. " AIR. 1959 S. C. 620, 625. To me the expression put at the very end of the instrument, immediately before the signature of its executants, the landlords, appears to have been put advisedly to destroy the susceptibility of the recitals in the body of the instrument to imply anything contrary wise.