EANGOLI KRISHNAN Vs. KUNIYLL SOOPI

JUDGEMENT

(1.) The first defendant in S.C.S. No. 118 of 1944, on the file of the District Munsiff's Court of Tellicherry is the petitioner. On 10 November, 1932, a marupat, Ex. P-1, was executed in favour of the plaintiff by the first defendant and one Kannan. Kannan having died, defendants 2 to 5 were brought on record as his legal representatives. The instrument was for a period of 12 years. Though it was called a marupat, it was also a Kanom because properties were given as security. On 10 April, 1930, Ex. P-2, a melcharth was given of the suit and other properties, and on 8 November, 1940, under Ex. P-3, the melcharthdar, sixth defendant, assigned to the plaintiff the rents due from the lessee for the years 1938-39 and 1939-40. On the strength of the assignment, the plaintiff filed the suit, which has given rise to the revision petition, for arrears of rent in respect of these two years.

(2.) Inter alia, a plea of limitation was raised, and it was contended that Art. 110 of the Limitation Act applied and that the suit having been brought after the expiry of three years after the rents for the two respective years had accrued due was barred. The learned District Munsiff held relying on the decision in Rayarath Parkum Kurnam Kandiyil Kombilon Ammothi V/s. Kottekoolath Kunhi Sankaran Adiodi (1916) 2 M.W.N. 117. 5 that the appropriate article applicable was Art. 116 and not Art. no. In that decision, it was pointed out that the case of a kanom was distinct from that of an ordinary lease and a tenant holding over under the kanom tenure was not in the same position as a tenant holding over after the expiration of the ordinary lease, and consequently it was held that Art. 116 was applicable and not Art. no. The suits covered by Art. 116 are suits for compensation for the breach of a contract in writing registered. Here Ex. P-1 is a registered marupat and hence obviously that article is applicable.

(3.) The learned advocate for the petitioner contends that the period of twelve years mentioned in Ex. P-1 having expired, the suit brought by the assignee could not be held to be a suit brought for breach of the contract under Ex. P-1. This argument ignores the provisions of Section 5 of the Malabar Compensation for Tenants Improvements Act (I of 1900). Under that section, where there have been improvements and a tenant is entitled to compensation for improvements, he is entitled to remain in possession until ejectment in execution of a decree or order of Court, and on ejectment, the tenant will be entitled to compensation for improvements made by him or his predecessor in interest. Under Clause 2 of that section, a tenant so continuing in possession holds during such continuance as a tenant subject to the terms of his lease or of the mortgage, as the case may be. The scope of this section came up for consideration before Venkatasubba Rao and Abdur Rahman, JJ., in Govindan V/s. D Silva (1938) 1 M.L.J. 313 and the learned Judges pointed out: This section enacts a contradiction, it says that although the tenancy is determined, the tenant continues in possession as such subject to the terms of his lease. The contention, as was advanced before me, that his provision was not intended to override the general law was repelled in view of a number of decisions of this Court which held to the contrary, and the learned Judges observed that they; did not think it right to unsettle the law on a point such as this. In these circumstances, the action must be deemed to have been brought on the foot of the contract in writing registered, although the period of twelve years mentioned in Ex. P-1 had expired. The learned advocate for the petitioner drew my attention to the decision in Seydarakath Kakkachi V/s. Muhamad Kutti (1910) 6 I.C. 754 but that was a case of an ordinary lease and not of a kanom.