VIYATHAN MAHADEVI STYLED KOZHIKOTE KISHAKKE KOVILAGATH VALIA THAMBURATTI (DECEASED) Vs. PUNNAPPALE KOYIMMAR KURIKKAL S SON AYDROSS KURIKKAL

JUDGEMENT

(1.) The question in this second appeal is whether the plaintiff who is a jenmi is entitled to recover the value of certain trees cut by the defendant-tenant. The claim is made by virtue of a clause in the kychit Ex. A. The clause runs thus: If I cut trees such as veeti teak, jack, etc., from the parambas without obtaining the written consent of the kovilagam, I shall be answerable for the costs of such trees and shall surrender the properties irrespective of the 12 years term if the kovilagam demands it.

(2.) The main defence is that the said clause is penal and unenforceable. It was found by the District Munsif that the kovilagam of the plaintiff was not in possession of the land demised for over 100 years and the trees which are cut were aged between 10 and 20 years. He further found that the trees were of spontaneous growth grown after the demise to the defendant, that they were tended and reared by the defendant and that they really constituted improvements within the meaning of the Malabar Compensation for Tenants Improvements Act. It is not disputed by Mr. Ramakrishna Aiyar on behalf of the plaintiff that they would be improvements within the meaning of the Act. The District Munsif held that the cutting was for the purpose of making other improvements on the land demised and gave only nominal damages at the rate of 8 annas per tree. On appeal the learned Subordinate Judge was of the opinion that the clause contravened Section 19 of the Act, but gave one-fourth of the value of the trees as compensation to the plaintiff. He did not give a finding on the question whether the cutting of the trees was an improvement. In view of certain decisions of this Court I called for a finding on two questions, namely, (1) whether the cutting of the trees in question is itself an act of improvement within the meaning of the Malabar Compensation for Tenants Improvements Act, and (2) whether the cutting of the trees was for the purpose of building farm houses or making any other improvements on the holding within the meaning of the Act. The learned Subordinate Judge answered both the questions in the negative. Mr. Ramakrishna Aiyar contends that the plaintiff is entitled to the full value of the improvements in view of the said findings and relies on two decisions of this Court one of Ramesam, J., reported in Kelu Nair V/s. Valia Thamburatti (1922) 16 L.W. 310 and another of Walsh, J., in S.A. No. 249 of 1929. Those decisions do support him. But it is contended on behalf of the defendant by Mr. N.R. Sesha Aiyar that the said two decisions are opposed to the decision of the Full Bench in Raja of Cochin V/s. Kittunni Nair (1916) 32 M.L.J. 295 : I.L.R. 40 Mad. 603 (F.B.) and should not be followed. In Raja of Cochin V/s. Kittunni Nair (1916) 32 M.L.J. 295 : I.L.R. 40 Mad. 603 (F.B.) a similar claim was advanced. The suit therein was for the full value of the trees based upon a clause in the lease which is almost identical with the clause in question and ran thus: The teak, rosewood jack and such kinds of trees which now exist, and may in future be produced in the properties mentioned in the schedule, are not to be cut down and removed without the permission of the State and without paying the kuttikanam, but if they are so cut and removed, I am liable for paying up either the fine imposed by the State or the value of the trees.

(3.) It will thus be seen that the clause related to two sets of trees (1) trees which existed at the date of the lease and (2) trees which may be produced in future. Though the claim was made in the suit for the full value of the trees, in second appeal it was limited to the payment of kuttikanam fee. Even then the question was raised as to the legality of the kuttikanam fee and whether the provision was not obnoxious to the Tenants Improvements Act. The learned Judges who made the order of reference were divided in their opinion. Coutts-Trotter, J., took the view that the landlord was not entitled to claim kuttikanam fee and he observed thus: I see no answer to the arguments that to make the tenant's right to carry out an improvement depend upon his making a payment to his landlord is of necessity to put a limitation upon that right.