MARUTHY, KARNAVAN AND MANAGER OF THE TAVAZHI Vs. THAYYIL PATHUMMA (INSANE) BY NEXT FRIEND MANAKKADAVAN PUKKADAN AYISSUMMA

JUDGEMENT

(1.) The only three points for consideration in this appeal are (1) whe-ther a petition under Section 33 of Malabar Tenancy Act (Act XIV of 1930) is not maintainable at the instance of a person who cannot enter into a contract, being insane; (2) what is the correct value to be paid for the kudiyiruppu; and (3) whether the lower Court is wrong in having treated the kudiyiruppu as a separable kudiyiruppu and allotting the part so separated to the tenant.

(2.) In this case it is not a case of enforcement of a contract. No doubt the words " offer " and " acceptance " are used in the Act but that would not make the transaction a contract. It is the order of Court confirming the right in respect of the portion of a holding as separable kudiyiruppu that confers the right. It is true the petitioner was insane; but then she was represented by a guardian and if a guardian could file a suit or contest a suit he could also file a petition under Section 33. In these circumstances I do not think there is any force in the contention that the petition was not maintainable under Section 33 because the petitioner was an insane person and therefore not entitled to enter into any contract. If this contention were to be upheld, it would mean that no minor, no insane person or person under a disability can file a petition under Section 33 which cannot be said to have been the intention of the framers of the Act. It is only a protection to the tenant, to the helpless man who is not able to find any residence. Persons under a disability are likely, to be at a greater disadvantage than other men and I do not therefore think that the framers of the Act intended that such persons should be denied the benefits of the Act. I therefore find this point against the appellant.

(3.) The other two points are both points arising out of questions of fact. The lower Court has found that the kudiyiruppu was a separable kudiyiruppu and it has directed only a portion of the land to be given to the tenant. If the holding is not capable of being divided into two separate kudiyiruppus then it must be considered to be a case of separate kudiyiruppu and the tenant's request was that the whole holding should be given to her as a kudiyiruppu. The order appealed against is an order in favour of the petitioner which has given only a portion of the holding as a separable kudiyiruppu. There is therefore no force in the contention of the appellant either. With regard to the value of the kudiyiruppu, that again is a question of fact. It depends on the market value and the Court has fixed the market value with reference to the report of the Commissioner and with reference to the prior dealings with regard to the property.