PAYINGATAN CHAPPAN Vs. KELU

JUDGEMENT

(1.) DEFENDANTS 1, 2, 3, 5 and 6 are the appellants in this second appeal. This second appeal raises an important and interesting question under the Malabar Tenancy Act, 1929 (XIV [14] of 1930). The suit out of which this second appeal arises was instituted for redemption of an othi (usufructuary mortgage), and for recovery of possession of the plaint scheduled properties which consists of two items, on payment of the othi amount of Rs. 50 and the value of the improvements after making certain other deductions which are not very material. The document on which the suit was based is EX. p. -1 an othi marupat, dated 15 -1 -1921, executed by one Kannan, a predecessor of defendant 1, in favour of Chandu, a predecessor of the plaintiff. Defendants 2, 3 and 6 were impeaded as persons who were in actual possession of the items. Defendants 2 and 6 obtained a sub -lease from defendant 1 of item 1 and defendant 3 a sub -lease from defendant 1 of Item 2. The principal question apart from the question of the valuation of the improvements claimed by the defendants related to the right of the sub -lessees -defendants 2, 3 and 6 to purchase kudiyiruppu under Section 33, Malabar Tenancy Act. Defendants 2 and 6 applied in the suit R. I. A. No. 2154 of 1945, claiming benefit of Section 33 of the Act and defendant 3 made a similar application R. I. A. No. 2384 of 1945, for purchasing the kudiyiruppu in item 2 of the plaint schedule. The applications were resisted by the plaintiff on the ground that the Act had no application to the suit, as it was a suit for redemption of an othi and not a suit for eviction, and secondly the relationship created by the document Ex. P. -1 between the plaintiff and the defendant was not that of a landlord and tenant but that of a mortgagor and mortgagee. These two contentions of the plaintiff were upheld by the trial Court and the learned District Munsif decreed the suit for redemption of the othi in favour of the plaintiff on payment of the othi amount of Rs. 50 and also the value of the improvements as determined by him under Issue 3. Against this decision there was an appeal by the unsuccessful defendants to the District Court of North Malabar. The District Court substantially agreed with the view of the District Munsif and confirmed his decision. Hence this second appeal.

(2.) THE only question, therefore, that arises for determination is whether defendants 2 and 6 and defendant 3 are entitled to claim under Section 33 of the Act, to purchase the rights in the kudiyiruppu by paying the market price of the Land.

(3.) THE further question that arises for consideration is if defendant l is a tenant within the meaning of the Act, are defendants 2, 8 and 6 who are the sub -tenants of defendant l, entitled to the benefit of Section 33 of the Aot. The contention that has been strongly pressed before us by the learned advocate for the appellants is that the definition of tenant in the Act is wide enough to include even a sub -tenant, and therefore, even if defendants 2, 3 and 6 were not immediate tenants of the plaintiff and even if plaintiff is not their immediate landlord, they would be entitled to the benefit of Section 33 as the word 'tenant' in the section should not be restricted to an immediate tenant of the plaintiff, who is a landlord. In order to understand the scope of Section 33, it is necessary to examine the scheme of the Act, as the matter, in my opinion, cannot be disposed of by merely looking at the definition of 'tenant' under Section 3 (b) of the Act. In support of the argument, our attention was drawn to the various provisions in the Act, where the Act, when it is intended to refer to an immediate landlord expressly stated so, as for example in Section 11 and other sections. From this it was argued that as 'tenant' is used in a general (sense ?) in the section the claim under the section by a tenant need not necessarily be against his immediate landlord, but it may be even against the landlord of his landlord.