CHAKKIAT GOPALAN Vs. PKSANKARANARAYANA IYER

JUDGEMENT

(1.) This second appeal raises an interesting question whether under Section 17, Clause (c), Malabar Tenancy Act, 14 [XIV] of 3930, which provides that where all the lands covered by a kanam are dry lands, the kanamdar is not entitled to a renewal, the question is to be determined on the state of the lands at the date of the application for renewal or at the date of the kanam. In this case the kanam in question was executed on 2 December, 1921. The jenmi filed Order Section No. 172 of 1940 for redemption of the kanam and for recovery of possession from the kanamdar. Thereupon the defendant kanamdar filed an application under Section 22, Malabar Tenancy Act, to compel the jenmi to execute a renewal of the kanam. Under Section 22, Clause (1) a kanamdar is entitled to apply to the Court for the execution of a renewal deed and this notwithstanding any contract to the contrary whether made before or after the commencement of the Act We must now turn to Section 17 which enacts when the kanamdar is entitled to a renewal. Clause (a) of that section says: A kanamdar shall on the expiry of the kanam under which he holds be entitled to claim and his immediate landlord shall be bound to grant a renewal, enuring for a period of twelve years, of the same on payment, as renewal fee.... Clause (c) says this: Nothing in this section shall apply to a kanam: (i) where the kanartham exceeds in south Malabar, sixty per cent, and in North Malabar, forty per cent., of the value of the jenmi's rights in the holding, or (ii) where all the lands covered by the kananiare dry lands.

(2.) Two objections were put forward by the jenmi; first that the kanartham or the amount of the kanam exceeds 60 per cent, of the value of the jenmi's rights in the holding and secondly that all the lands covered by the kanam are dry lands. Both the lower Courts held against the kanamdar. No finding was given whether the kanartham or the amount secured by the kanam exceeded 60 per cent, of the value of the jenmi's rights in the holding.. Both the Courts held, however, that no portion of the lands was at the date of the suit cultivated with paddy and that therefore all the lands covered by the kanam are dry lands. The expression "dry land" is defined in Section 3, Clause (d) as meaning a land which is neither a "wet land" nor a "garden land." "Garden land" is defined in clause (g) as meaning any land used principally for growing fruit bearing trees. Clause (x) defines a wet land as meaning a land which is adapted for the cultivation of paddy. When the second appeal came on before me on a former occasion, it was urged that the expression "wet land" includes not merely lands on which paddy was being grown but also lands which are adapted for the cultivation of paddy. It was said that there was no finding by the lower Courts whether the land was adapted for cultivation of paddy. I called for findings on the two questions whether any portion of the lands demised under the kanam are wet lands and whether the kanartham exceeds 60 per cent, of the value of the jenmi's rights. The lower appellate Court has now returned findings. The findings are that the kanam amount does not exceed 60 per cent, of the value of the jenmi's rights in the holding and that all the lands are dry lands. The finding on the first question is one of fact and no reasons have been shown why I should not accept the finding.

(3.) Arguments centred on the second question, namely, whether the lands are dry lands within the meaning of Section 17, Clause (e)(ii). The kanam-deed under which the suit lands were demised is evidenced by Ex. p-1 which shows that at that time the lands were at least capable of paddy cultivation. The lands must, therefore, be taken to have been wet lands at the time of the kanam. The finding is that on the date of the suit and at the time of the application for renewal the lands are all dry lands. Mr. Kuttikrishna Menon the learned advQcate for the appellant argues that the question is to be determined by the state of the lands at the date of the kanam and not at the time of the suit. Various considerations were put forward by the learned advocates in support of the respective contentions. Section 17 begins by saying that a kanamdar shall on the expiry of the kanam be entitled, to claim a renewal and Clause (c) says that nothing in the section shall apply to a kanam where all the lands covered by the kanam are dry lands. Reading the two together, it looks to me that the expression "where all the lands covered by the kanam are dry lands" refers to the point of time; when the kanamdar expresses his desire to get the renewal. Mr. Kuttikrishna Menon argues that if a jenmi or a landlord created a kanam of lands which were all dry at that time, he ought not to be prejudiced by anything done by the kanamdar after tha date of the kanam and that if the other argument is accepted, a kanamdar caa easily defeat the right of the jenmi by converting a very small portion of the holding into wet lands. On the other side, it is said that conversion of dry land into wet is a normal feature in the west coast and that the argument of the appellant would result in preventing free conversion of dry lands into wet which it is said would be undertaken by a kanamdar only if he is assured of a fixity of tenure or a right of renewal. There may be much to be said for either view but the question ultimately depends upon the wording of the Act. Mr. Kuttikrishna Menon draws my attention to Section 17, Expln. II which says this: For the purpose of Sub-section (c) the jenmi's rights in the holding shall be valued at twenty times the excess of the annual fair rent of the holding over the annual revenue payable thereon to Government- (1) In the case of a kanam existing on the date of the commencement of this Act, on such date and (2) in the case of a kanam created after the commencement of the Act, on he date of the kanam.