POTTENTAKATH KUNHOLAN Vs. KRISHNAN

JUDGEMENT

(1.) The question in this second appeal is whether a usufructuary mortgagee from a subkanomdar is entitled to the benefits of Section 33 of the Malabar Tenancy Act. The appellant was the assignee of certain properties in respect of which the jenm right had been sold in Court auction, and on the same day on which the jenm right was assigned to the appellant the kanomdar also assigned his rights in the property to him. The appellant then brought a suit O.S. No. 82 of 1938, in the Court of the District Munsif of Parappanangadi, to redeem and recover possession of the suit properties. This suit was contested by the sub- kanomdars from the 16 defendant, defendants 1 to 8; and the present respondents, who were the 9 to 11 defendants in the suit and were in possession of the suit properties as usufructuary mortgagees from defendants 1 to 8, filed a petition, I.A. No. 186 of 1938, under Section 33 of the Malabar Tenancy Act, claiming that they were entitled to purchase the house and site situated on the property as a separate kudiyiruppu. The trial Court decreed the suit but allowed the applications that the house and site should be treated as a separable kudiyiruppu, and the lower appellate Court dismissed the appeal of the plaintiff against the decision on the question which arose under Section 33 of the Tenancy Act.

(2.) Section 33 of the Malabar Tenancy Act provides that: In any suit for eviction relating wholly or in part to a kudiyiruppu, which has been in the continuous occupation of a tenant or the members of his family for ten years on the date of the institution of the said suit, such tenant shall be entitled to offer to purchase the rights in the kudiyiruppu. of the landlord who seeks to evict him, at the market price on the said date.

(3.) The argument advanced in the lower Court against the respondents claim seems to have been chiefly that landlord in Section 33 means immediate landlord and that consequently persons holding from a sub-kanomdar were not entitled to purchase the jenmi's rights in kudiyiruppu. This argument was not accepted by either the trial or the first appellate Court on the ground that in other sections of the Act, 16 to 18, where it was intended that the tenant should be given rights to relief against his immediate landlord only, the term immediate landlord is used. It is now conceded that the decision of the lower Courts on this point was right; and the argument put forward is that the respondents are not tenants within the meaning of the Malabar Tenancy Act. It is also conceded that the respondents are usufructuary mortgagees within the meaning of Section 58 (d) of the Transfer of Property Act, and that they had been in continuous occupation of the property for ten years on the date of suit.