ORUPULASSERI MANAKKAL KARNAVAN AND MANAGER BHAVADASANNAMBUDRIPAD Vs. KOTTILINGAL MADHATHIL KUNHUKUTTY AMMA S SON TARWAD KARNAVAN AND MANAGER NARAYANA NAIR

JUDGEMENT

(1.) The first of these cases arises out of a suit by the appellant, who is the jenmi, for redemption of a kanom and eviction of the tenant. The second case arises out of an application by the tenant for renewal under the provisions of the Malabar Tenancy Act XIV of 1930. The cases have been placed before a Bench because they involve a question of some difficulty, relating to the interpretation of Clause 3 of Section 25 of that Act. There is no doubt about the facts. On the 14 July, 1914, the plaintiff's predecessor granted a kanom demise to the predecessor of defendants 1 to 3. The term for the redemption of this kanom expired on 14 July, 1926, but nothing was done and the tenants continued in possession on the basis of the kanom without the question of renewal being raised. In 1936, after the Malabar Tenancy Act came into force the jenmi filed a suit for redemption and there was a corresponding application by the tenant for renewal. The Court ordered a renewal, the term of the order being recited in the deed as follows: Whereas under the orders of this Court passed on the said petition on 30 March, 1937, you have duly deposited into Court the sum of Rs. 74-2-9 made up of the arrears of michavaram and interest inclusive of the renewal fee of Rs. 36-6-5, the properties in the subjoined schedule have been hereby granted to you on renewed kanom demise in accordance with the provisions of the Malabar Tenancy Act for the prior kanom amount of Rs. 22-13-9 for the term prescribed under Section 35 of the Tenancy Act. The tenants appear to have thought that they had got a renewal which would last for a considerable period, whatever the date with effect from which it operated. But the jenmi in 1939 filed a fresh suit for redemption and as a matter of caution the tenants filed a fresh application for renewal while contending that the jenmi's suit was premature. The trial Court took the view that the previous renewal granted in 1937 would take effect from the expiry of the period stipulated in the original kanom, that is to say, 14 July, 1926. In appeal the Subordinate Judge took the view that the renewal ordered by the Court in 1937 would take effect from the passing of the Malabar Tenancy Act.

(2.) The jenmi has appealed and for the appellant Mr. Govinda Menon has relied very strongly on the decision of Honwill, J., in Neelakandan Nambudripad V/s. Krishna Aiyar (1943) 1 M.L.J. 325. The learned Judge, while noticing that the Tenancy Act contemplates only one renewal fee, felt constrained to hold that the phrase " date of the termination of the previous lease, kanom or kuzhikanom," in Section 25 (3) must be read as if it were "the date of the expiry of the period of the previous lease, kanom or kuzhikanom." That is to say, it is argued for the appellant that the view taken by the trial Court was right and that the jenmi's suit was not premature. The draftsmanship of the Malabar Tenancy Act has frequently come up for criticism and it cannot be denied that it contains obscurities. The definition of a kanom in Section 3 (1),-speaks of the liability of the transferee to pay a renewal fee to the transferor, if the transferee is permitted to enjoy the said property for a further period after the termination of the original period; that is to say, the word " period " is used to indicate the term of twelve years which is customarily fixed in a kanom document. Section 17 however speaks of the right of the kanomdar to a renewal on " the expiry of the kanom under which he holds," that is to say, it seems to treat the expiry of the kanom as the same thing as the expiry of the period fixed in the kanom. When we come to Section 19 we have the phrase " the year next after the termination of the expiring transaction," while Section 20 reverts to more explicit language and speaks of the period of the verumpattamdar, kuzhikanomdar or kanomdar as having expired and no renewal having been obtained.

(3.) Then in Section 24 (2) (b) there is a provision for the payment of interest on instalments of renewal fee ordered under the provisions of the Act, which is payable on each instalment " from the date on which it became due or from the date of the commencement of this Act, whichever is later." These words were emphasised before Horwill, J., and have been emphasised before us, as indicating that the Act contemplates a renewal fee becoming due on some date prior to the passing of the Act, which it is argued suggests that the Legislature contemplated an order for retrospective renewal to take effect from some date anterior to the Act. Then we get to the provisions of Section 25 (3) with which we are mainly concerned, which provides that a renewal deed executed by the Court under Sub-section (2) shall have the same effect as if it was executed by the landlord himself, and shall entitle the tenant to enjoy the holding for twelve years " from the date of the termination of the previous lease, kanom or kuzhikanom." The argument for the appellant is that the Act speaks of " the termination of a kanom "or " the termination of a transaction " or " the expiry of the period of the kanom," meaning in each case precisely the same thing, namely, the end of the twelve years period ordinarily fixed for the redemption of a kanom and that this is the meaning of the phrase " date of the termination of the previous lease, kanom or kuzhikanom," in this sub- section. The argument is fortified by reference to Section 24 (2) (b) as showing that the Act necessarily has reference to a renewal which takes effect at some point antecedent to the passing of the Act and the argument is that when there is a kanom the period of which expired more than twelve years before the passing of the Act, although under the judgment of Horwill, J., the Court would order only one renewal fee to be paid, the renewal would have to take effect from the date of the expiry of the period in the previous kanom and it would be incumbent on the tenant to make a succession of renewal applications, until these retrospective renewals extend up to the date with reference to which an effective renewal is sought. That is to say, we are asked to assume an intention on the part of the Legislature to give to the jenmi a right to claim retrospective renewal fees once in every twelve years from the end of the period fixed in the last kanom document executed by the parties.