KAITHAL KUTTIYALI Vs. UMMAMMA AMMA

JUDGEMENT

(1.) The main question in these appeals depends on the construction of Exhibit A, which is a lease or rather counterpart of a lease known in Malabar as taraga, the purpose of which admittedly was to enable the tenant or the lessee to reclaim the demised land and make improvements thereon. The words of this lease, which was granted by the stanomdar, are these: I shall well improve this paramba and plant, etc.; when the improvements have survived the period of decay and the cocoanut trees begin to bear their first fruits, I shall take a taraga after fixing the rent in accordance with the local custom on an inspection of the Kuzhikanoms.

(2.) The Subordinate Judge has held that this clause merely gives an option to the landlord to renew the lease if he so chooses.

(3.) The appellant, on the other hand, contends that is a binding covenant for renewal for another term of twelve years beginning from the expiry of the term of twelve years granted, by Exhibit A dated 9th May 1902. These words are almost identical with the words in another taraga lease granted to the tenant by the same stanomdar or his predecessor in title in an unreported case Udayavarama Elaya Raja v. Kannan Nambiar Second Appeal No. 1423 of 1901 (unreported). There, Benson, J., who had much experience of Malabar law, and Bhashyam Ayyangar, J., held that having regard to the well-known tenures and customs of Malabar, the intention of the parties in executing the deed was to agree that the tenant should hold the land for the usual term of twelve years at the rent fixed in the document and should plant up the land during that time in a husbandlike manner, that at the end of that term the rent should be enhanced with reference to the improved state of the land and according to the custom of the country in fixing the rent of such improved land, and that the tenant should pay that rent for a further term of twelve years from the expiry of the first term and execute a document binding himself to do so. They granted a decree to the effect that the tenant was entitled to renew the lease which should bear date the day of the decree and run for the unexpired portion of twelve years from the expiry of the former lease, but without a covenant for further renewal. Having heard Mr. Madhavan Nayar fully, for the respondent, we are inclined to hold that the words quoted above mean that the parties intended that if the tenant made any improvements and those improvements were effective, he would be entitled to a lease for another term of twelve years from the date of the expiry of the prior lease, and the rent was to be revised in view of any larger yield from the land that may accrue, and also having regard to the custom of the country, with respect to such a lease. We have been pressed, however, by Mr. Madhavan Nayar with the decision in Gopalan Nair v. Kunhan Menon (1907) I.L.R., 30 Mad., 300. But that was a case of a kanom which is not a lease pure and simple but partakes also of the nature of a mortgage, and further, the learned judges one of whom was Benson, J., proceeded upon the fact that the terms of the renewed lease were not set out in the document. Here, the rent although not fixed is capable of being ascertained with reference to the nature and value of the improvements and the local custom. We are, therefore, of opinion that the appellant is entitled to a renewal for a further term of twelve years.