GOPALA PANIKKAR Vs. KUNHIKUTTY PIZHARASYAR

JUDGEMENT

(1.) The appellant, having obtained an assignment of the landlord's rights on November 4, 1942, had instituted this suit in 1942, obtained a decree on July 31, 1944, for resumption of the property from the respondents who had been holding the same under a kanom of 1877 followed by a Purakkadom of 1918, and in execution thereof got delivery of the property on August 3, 1945. The Malabar Tenancy Amendment Act, XXII of 1956, having been, passed on October 27, 1956, the respondents filed E. A. No. 318 of 1957 for redelivery of the properties to them under S.5(2) of the Act. As item No. 3 of the properties involved has been already transferred to the 3rd respondent he was also made a party to the application. The executing court overruled the objection of the appellant and ordered redelivery of properties to the respondents, excepting item No. 3. The appeal before the Subordinate Judge failed. Therefore this second appeal.

(2.) Counsel for the appellant contends that the resumption of the property was for the bona fide primary needs of the appellant and his family and therefore no redelivery may be ordered. According to him, the expression "family" in the relevant S.20(5) of the original Malabar Tenancy Act, corresponding to S.25(4) of the Act as amended in 1954, would include wife and children. That contention has been repelled by the courts below. The Munsiff has observed: "The 1st respondent has admitted in the box that if his maintenance alone were to be taken to account then the income (of his other properties) would be sufficient for the purpose. His hardship in maintaining his children and grandchildren, although they may be dependent upon him, is not a point to be considered". It is that view of law that is in challenge in this second appeal.

(3.) The Malabar Tenancy Act, 1929, even as it stood originally, contained an Explanation to the concerned section which read thus: