SAMANTHAN KARAKKATTITATHIL CHANDUKUTTI NAMBIAR Vs. AMMAD KUTTI S SON KATHER KUTTY KARNAVAN AND MANAGER

JUDGEMENT

(1.) THE appellants filed a suit for rent due under a registered marupat, dated 7 December, 1928, to the plaintiffs as representing the jenmi's interest. It is common ground that the documents under which the land was held provides for payment of rent in kind. THE only question argued in appeal is whether the Courts below were right in fixing the commutation rate with reference to the terms of Section 51(2) of the Malabar Tenancy Act or whether plaintiffs are entitled to the market price of the produce as on the date of the plaint. Section 51(2) runs as follows: Where any rent, michavaram or renewal fee payable under this Act is paid or is to be paid in money, in whole or in part, paddy, cocoanuts, arecanuts and pepper shall be valued, for the purpose of determining the sum due, at the average market price of the previous five years as published under Sub-section (1). THE contention of the appellants is that this is not a case in which rent payable under the Act is paid or is to be paid in money, but that if the rent can be deemed to be payable under the Act it is payable wholly in kind. THEre is a decision of Horwill, J., in Karingampilly Manakkal Parameswaran Nambudiripad's son Parames- waran Nambudiripad alias Narayan Tharatfiar Nambudiripad V/s. Subramania Iyer and Ors. (1944) 2 M.L.J. 84, to the effect that Section 51(2) does not apply to cases where it is necessary to estimate damages for breach of contract and that it cannot be applied where the rent is payable in kind. We are not now concerned with the correctness of the first portion of this observation but it is contended that when the rent is payable in kind, Section 51 has no application. It has been so held in a number of decisions of single Judges, one of which is P.P.V. Kunhi Raman V/s. K.T.V. Kunhi Raman (1944) 2 M.L.J. 84. While it might be plausibly argued that this view of Section 51(2) robs that provision of much of its effectiveness, it is a view which is at any rate arguable. It has been accepted by a number of learned Judges of this Court and it has in fact been embodied in the Amendment Act, Madras Act VI of 1945, which to a large extent deprives the question of its general interest.

(2.) IN these circumstances, we do not see sufficient reason to differ from the line of decisions, and we hold that the plaintiffs were entitled to convert the rent at the market price prevailing as on the date of the suit. The appeal is, therefore, allowed with costs and the plaintiff will have a decree as prayed for.