KUNNATHVELLI VISWANATHAN, MINOR BY NEXT FRIEND AND BROTHER KUNHIKRISHNAN NAIR ALIAS KRISHNADAS Vs. KUNNAMBARAPOYIL KANARAN AND ORS.

JUDGEMENT

(1.) THE District Munsif of Payyoli has referred under Section 113 and Order 46, Rule 4 -A of the Code of Civil Procedure, the question raised before him, as to whether Section 52 of the Malabar Tenancy Amendment Act (Madras Act XXXIII of 1951) is invalid being repugnant to the provisions of Article 19 of the Constitution read with Article 19. In the opinion of the learned District Munsif Section 52 of Act XXXIII of 1951 is repugnant to the above provisions of the Constitution and hence requests the High Court for an authoritative pronouncement on the topic. Learned Counsel appearing on behalf of the parties have, in view of the pronouncements of this Court in R.C. Nos. 86 to 88 of 1954 in which Rajagopalan, J., agreeing with one of us, Govinda Menon, J., had held that no provisions of the various Malabar Tenancy Acts, namely, Madras Acts XIV of 1930, XXIV of 1946, XXXIII of 1951 and VII of 1954 are invalid as infringing any of the Articles of the Constitution and also in view of the decision of Rajagopalan and Rajagopala Ayyangar, JJ., in W.P. No. 556 of 1955, etc., not seriously contested the validity of the section especially since by the amendment of Article 31A of the Constitution "jenm" has been included within the meaning of the term "estate". In the judgment delivered by one of us, Govinda Menon, J., in R.C. Nos. 86 to 88 of 1954 it has been pointed Out that the Legislature constituted under the provisions of the Constitution has the power to set right by means of rectifying the statutes, any mistaken view of the law. That being the case, no attempt was made to impugn Section 52 as being repugnant to any of the provisions of the Constitution.

(2.) THE learned Advocate -General and the various counsel appearing for the parties have concentrated their attention on the real meaning and import of the section and on what was intended to be laid down by that provision. In order to fully comprehend the idea underlying the enactment, we shall endeavour to lay down the correct proposition of the law regarding the rights and liabilities of the parties as contemplated by Section 52 of the Madras Act XXXIII of 1951.

(3.) THOUGH the reference does not give the exact date on which in execution of the decree in O.S. No. 1314 of 1943 the decree -holder took possession of the lands, it is admitted that execution of the decree and recovery of possession took place sometime anterior to 5th December, 1945. As the suit was one of 1943 it must have been filed after 1st July, 1942, in which case the provisions of Section 52 are straightaway attracted. It is, therefore, necessary to examine in some detail the history of the legislation and the various provisions of the Malabar Tenancy Acts commencing with the provisions of the Malabar Tenancy Act, 1929 (Madras Act XIV of 1930) and culminating in the Madras Act VII of 1954. Sub -sections (5) and (6) of Section 14 of the Madras Act XIV of 1930 and Sub -sections (5) and (6) of Section 20 of the same Act relate to the grounds for eviction of a cultivating verumpattamdar, and a customary verumpattamdar, kuzhikanamdar or kanamdar and they are in identical terms. The relevant portions of the two sections are as follows: