MUHAMMED AND OTHERS Vs. RAMAKRISHNA IYER AND OTHERS

JUDGEMENT

(1.) THIS appeal is directed against the decree of the Subordinate Judge of Ottapalam, dated 30th July 1956, in O.S. No. 18 of 1946, allowing plaintiff 5 in the said suit to recover possession of a part of the plaint schedule properties. Defendants 7 to 13, who are the legal representatives of the deceased first defendants are the appellants. The facts of the case, as put before us by counsel appearing for the two sides, are as follows: - A forest region having an extent of 36 sq. miles, which was both unsurveyed and unassessed, in Tengara amsom belonging to a Nair tarwad at Ottapalam known as Kizhakaepadath tarwad, was leased by the karnavan of that tarwad, one Gopala Menon, to defendant 1 on 2 -12 -1918 by Ext. B1. The rent stipulated for in Ext. B1 was 15 paras of paddy per year for the entire area. Under the terms of the lease, defendant 1 was authorised to reclaim and convert into paddy lands such portions of the property as he chose and also to plant teak and other timber trees on such portions as he elected, the costs of which were to be paid at the time of the redemption of the lease. The plaintiff's case is that nothing was done in pursuance of this lease. On 16 -10 -1922 Gopala Menon executed a mortgage, Ext. B38, for this property and certain other properties for, a period of 14 years which period was to commence from 1931. This mortgage was styled undaruthipanayam and its principal incident was that there was to be no liability on the part of the mortgagor to return the mortgage amount as that amount was to be considered to have spent itself by the use of the property by the mortgagee. In 1927, Gopala Menon and two other junior members of the tarwad executed another lease, Ext. A21, with a premium of Rs. 1500 and a period of 60 years authorising defendant 1 to plant rubber, coffee, etc., in such portions of the property as he chose. It was admitted before us by the appellant's counsel that effect has not been given to this lease and that no right is claimed by the appellants under it. In 1937, the power of attorney holder of the karnavan executed yet another lease (Ext. B2) in favour of defendant 1, which purported to be one in renewal of Ext. B1, and authorised defendant 1 to hold the property for a period of 12 years on a rent of 15 paras of paddy per year. The other provisions of this lease were that defendant 1 might plant fruit trees in the property and convert such portions of it as he chose into paddy lands and that he should pay a further rent at the rate of 1 para of paddy for every acre of land converted into paddy land or garden land. He was to get the costs of the conversion and planting at the time of the redemption of the lease. Before this lease was granted one of the junior members of the tarwad has issued a notice to the karnavan claiming partition of the tarwad properties, and ultimately a suit for partition was filed in the court of the subordinate Judge of Ottapalam as O.S. No. 29 of 1940. In that suit a receiver was appointed for the tarwad properties and after the preliminary decree was passed, the receiver sold the 36 sq. miles of forest land referred to above, along with other lands, with the permission of the court, as it was found difficult to effect a partition of the forest area between the members of the tarward. By that time a portion of the 36 sq. miles of forest land had been reclaimed and converted into paddy lands and garden lands, and as a consequence of it that portion was surveyed and brought to assessment. At the auction sale conducted by the receiver the surveyed and assessed portion was purchased by one Govindankutty Menon, who is now dead and who was a member of the tarwad. Defendants 2 to 6 are his legal representatives. The unsurveyed and unassessed portion, in respect of which alone the decree now appealed -against has been passed by the lower court, was purchased by plaintiff 4 who subsequently transferred his rights to plaintiff 5. The suit was brought by plaintiffs 1 and 2, plaintiff 1 being the receiver and plaintiff 2 a member of the tarwad who was assisting the receiver in the management of the properties, attacking the above alienations, other than those made by the Receiver, on the ground that they were highly detrimental to the interests of the tarwad and were not binding on it and seeking to restrain defendant 1 and persons claiming under him from cutting trees from the property and also to recover possession of the property from him if it was found that he was in possession. Plaintiff 1 died during the course of the suit, and plaintiff 3 succeeded him as receiver appointed by court. After the sale of the property by the receiver, and after the death of Govindankutty Menon, the latter's legal representatives, did not elect to prosecute the suit so far as the portion of the property he (Govindankutty Menon) had purchased was concerned, since, it is said, he had large debts and his asserts were insufficient to satisfy his creditors. Plaintiff 5 got himself impleaded and prosecuted the suit so far as the portion of the property he had purchased was concerned.

(2.) THE principal contesting defendant in the lower court was defendant 1, and his contention was that the leases were valid and binding on the tarwad and since he had obtained fixity of tenure under the Malabar Tenancy Act, plaintiffs had no right to recover possession of the property from him. The other contentions of the parties do not require consideration in view of the conclusions we have reached on the dispute as to the validity and binding nature of Exts. B1 and B2.