RAJA OF COCHIN (REPRESENTED BY THE DIWAN MR J W BHORE, I C S ) Vs. KIZHAYIL KOTHANATH KITTUNNI NAIR (KARNAVAN)

JUDGEMENT

(1.) In considering whether a kanomdar had a right to cut and carry away trees planted by himself the Full Bench in Vasudevan Nambudripad v. Valia Chathu Achan (1901) I.L.R. 24 Mad. 47 (F.B.) held that, whether the case was treated as governed by the Transfer of Property Act or not, the kanomdar had such a right in the absence of a contract or custom to the contrary and that Madras Act I of 1900 did not deprive him of it by requiring him to keep the trees upon the holding and have compensation assessed upon them. The case contains no reference to Section 19, and there was no occasion for the learned Judges to consider whether a contract not to cut and remove trees without the landlord s permission and to pay a fee when such permission was granted was invalid under that Section as taking away or limiting the tenants right to make improvements. That section was no doubt intended to secure the tenants right to make improvements as well as to claim compensation for them, and strikes at all attempts by contract to limit these rights either directly or indirectly. At the same time it must be construed strictly, and not extended to cases which cannot have been in the contemplation of the Legislature. Before the passing of the Act it was open to a landlord, when letting land suitable for planting trees and in consideration of the use and enjoyment ofhis land by the tenant, to stipulate either for payment of an annual rent or in some other way or for a payment of an annual rent plus a kuttikanam or stamp fee according to a very general practice on the West Coast. I do not think that the section was intended to affect stipulations for the payment of a moderate fee such as the kuttikanam claimed in the present case, or that such a stipulation can be regarded as limiting the tenants right of making improvements by planting trees, or by cutting them down to make a clearance. If the trees planted by the tenant are left on the land at the determination of the tenancy, the tenant is only entitled under Section 10 to three-fourths of their value. The suggestion in Vasudevan Nambudripad v. Valia Chathu Achan (1901) I.L.R. 24 Mad. 47 (F.B.) that this allowance was made to the landlord on the ground that his purchase of the trees is compulsory fails to take account of the fact that no such allowance is made under Section 9 as regards improvements generally. When the subject was before the Legislature in 1887 and 1899, Vasudevan Nambudripad v. Valia Chathu Achan (1901) I.L.R. 24 Mad. 47 (F.B.) had not been decided and the respective rights of the landlord and tenant in trees planted by the tenant were still matters of controversy. In these circumstances there is considerable force in the contention urged upon us that one-fourth of their value was allowed to the landlord in recognition of the fact that the trees had been raised on his land.

(2.) If the stipulation is not open to objection as limiting the tenant s right to plant trees, still less can it be so as limiting his right to cut trees by way of clearance. In such a case the tenant, when cutting and carrying away the trees, gets far more after paying the kuttikanam than he would be entitled to as compensation on the determination of the tenancy which would only be three-fourths of their value in the case of trees planted by himself and those through whom he claims and only the cost of support and maintenance in the case of other trees. Further it must be borne in mind that it must be a question of fact in each case whether such felling is an improvement within the meaning of the Act.

(3.) Confining myself to the case before us, I would answer that a stipulation in a Malabar lease for the payment of kuttikanam to the landlord in respect of trees cut down is not contrary to the provisions of Section 19 of the Act. Other cases may be dealt with when they arise. In the meantime it may be sufficient to say that the Courts will not countenance attempts on the part of landlords to appropriate to themselves by means of contracts the interests in improvements which the Act was intended to secure to the tenants. Abdur Rahim, J.