OUSEPH ANNAMMA Vs. LALAM PUTHENPALLY

JUDGEMENT

(1.) THE plaintiff leased out certain garden lands as per ext. P-1 to the late Chacko Ouseph, who was the husband of the 1st defendant and the father of defendants 2 to 6, on an annual rent of Rs. 500 and certain paddy fields under Ext. P-2 on an annual rent of 4321/4 parahs of paddy. THE suit is for arrears of rent of the garden lands accrued in the period from april 11, 1957 to December 31, 1958, and for the paddy lands for the year 1133 (1958 ). THE 1st defendant had admittedly paid several sums towards rent both before and after the institution of this suit. THE dispute is only as regards the sustainability of a claim made by the 1st defendant for partial remission of rent for the paddy fields for the years 1958 and 1959 as there was partial failure of crops in those years. According to the 1st defendant the yield was only 258 parahs of paddy in 1958 and 180 parahs of paddy in 1959. On being intimated of the partial failure of crops in 1958, the plaintiff sent his own man to supervise the harvest. Ext. D-3 is the receipt passed by him for one half of the yield on April 7,1958. THE receipt is admitted by the plaintiff. THE 1st defendant has given evidence that the understanding and the local usage in such cases was to pay half the yield to the landlord. THE defendants sent a notice, Ext. D-1, intimating the partial failure of the crops in 1959. As there was no response thereto she harvested the crop and intimated the yield thereof by Ext. D-2 notice. Upon these facts the Munsiff found that by the admitted payments the entire liability for rent has been cleared and therefore dismissed the suit. THE Additional Subordinate Judge, on appeal, reversed him. Hence this second appeal by the 1st defendant.

(2.) D. W. 1 is the 1st- defendant and D. W. 2 is a cultivator of a neighbouring field. Both of them have sworn that in the locality there is a usage, when crops failed partly, of sharing the yield equally between the landlord and the tenant. The decisions of the Travancore high Court in Bhagavatiswara Aiyar v. Kathirvelu (17 TLJ. 885), Venkiteswara iyer v. Uthuppu (5 TLT. 1096) and Joseph v. Thomman (1945 TLR. 707) and of the travancore-Cochin High Court in Chacko v. Thomman (1955 KLT. 624) (a case that arose from the Travancore area) are to the effect that a failure of crops without fault of lessee would entitle him to an abatement of rent even though such a contingency has not been provided for expressly in the lease deed. In the light of those rulings and the sworn testimony of D. Ws. 1 and 2, to counter which no evidence has been adduced by the plaintiff, the local usage pleaded by the 1st defendant has to be found. If there was such a usage that must be deemed to be an implied term of the contract between the parties, unless it has been provided against in the deed itself. Even the statutory provisions of s. 108, Transfer of Property Act, dealing with the rights and liabilities of the lessor and lessee have been made subject to any local usage to the contrary. The description of the receipt, Ext. D-3 is which has no relevancy unless the receipt was in accordance with the above usage. I must therefore hold the munsiff right when he allowed abatement pleaded by the 1st defendant. The second appeal is therefore allowed, and in reversal of the Subordinate Judge the decree of the Munsiff is restored to effect; but in the circumstances I make no order as to costs.