AVARU Vs. ASI BAI

JUDGEMENT

(1.) Defendant 1 is the appellant. This second appeal arises out of a suit instituted by the plaintiff to recover possession of the suit property after the removal of the house standing on it. The appellant obtained the property, which was a vacant site, on lease for erecting a house for residential purposes. Under the lease-deed (Ex. H) her agreed to remove the house at his own expense whenever required by trie owner He now claims that before he is ejected he is entitled to be paid the value of the house under the Malabar Tenants Improvements Act (Act 1 of 1900). It is conceded the "house"falls within the meaning of the term "improvement"as defined in the Act and that if the Act applies, the undertaking to remove it cannot be enforced as it offends against the provisions of Section 19 of the Act. The learned District Judge disallowed the Compensation for the house on the ground that the lease, being not an agricultural one, is governed by the Transfer of Property Act and not by the Malabar Tenants Improvements Act.

(2.) The question we have to decide is whether the Malabar Tenants Improvements Act applies only to agricultural leases and not to building leases (i.e., lease of vacant sites for building purposes) as well. On one side, it is argued that there is a statement in Mr. Logan's Malabar Manual, Vol. 2, App. 3 (cxc) that under the Customary law of Malabar only agricultural tenants were entitled to improvements, that such a statement was made as to the effect of Act 1 of 1887 in the Legislative Council, that an unreported decision of this Court--S. A. No. 1445 of1889. (Under Act 1 of 1887) held that that was the law, that there is no reason to imagine that the legislature in passing Act 1 of 1900 departed from this rule and that the unreported decision has been followed very recently by Anantakrishna Ayyar, J. in S. A. No. 614 of 1928 which we may say, was decided during the time this second appeal remained part heard. On the other side, it is urged that having regard to the provisions of the present Act (Act 1 of 1900) which are clear, the statements made in Mr. Logan's Malabar Manual and in the Legislative Council should be disregarded that the Act clearly applies to building leases and that it was recently held by Jackson, J. in Chathukutty V/s. Kunhappan, . it has invariably been held in Malabar that the Act applies to agricultural holdings and also to what are known as kudiyiruppu, i.e., vacant sites available for building purposes. and that Anantakrishna, Ayyar, J. does not dissent from the decision in Chauthu kutty V/s. Kunhappan .

(3.) We shall first refer to the provisions of the two Acts to which our attention was drawn. The first Act that was passed by the Madras Legislative Council to secure to tenants in Malabar compensation for the value of improvements was Act 1 of 1887. Section 2, Clause 1 of this Act definies "tenant"as follows: in this Act, unless there is something repugnant to the context or subject-matter "tenant"means a person who holds land under another person and is, or but for special custom or contract would be liable to pay rent for that land to that parson,