PUTHIAPURAYIL KANNYAN BADUVAN Vs. CHENNYANTEAKATH PUTHIAPURAYIL ALIKUTTI

JUDGEMENT

(1.) The Malabar compensation for Tenants Improvements Act, 1899, entitles a tenant who is sued in ejectment to compensation for improvements to the land from which it is sought to eject him, and authorizes him, notwithstanding the determination of the tenancy, to remain in possession until ejectment in execution of a decree or of an order of Court varying that decree as provided in Section 6(3). Section 6(1) provides that the decree is to direct that on payment by the plaintiff into Court of the amount found due for improvements the defendant is " to put the plaintiff into possession of the land with the improvements thereon." As under Section 5(2) the tenant after decree is to continue in possession as a tenant, Section 6(3) provides for a re-valuation of the improvements when the plaintiff seeks to execute the decree with reference to the state of things then existing, and for an order of Court varying the decree accordingly. The only improvements for which compensation is payable under these sections are improvements to the land from which it is sought to eject the tenant, and they neither impose nor recognize any obligation on the plaintiff to pay for improvements to land from which the plaintiff does not seek and is not entitled to eject the tenant. We have therefore to consider the question referred to us apart from the provisions of the Act. A lessor cannot give a tenant notice to quit a part of the holding only and then sue to eject him from such part only, as pointed out quite recently by the Privy Council in Harihar Banerji v. Ramasashi Ray (1918) 35 M.L.J. 707. Consequently if the suit is brought by the original lessor the answer to the question referred to us must be in the negative because such a suit does not lie at all. Other considerations, however, arise, where, as in the present case, the original lessor has parted in whole or in part with the reversion in part of the demised premises. Under the general law such an assignment effects a severance, and entitles the assignee on the expiry of the term to eject the tenant from the land covered by the assignment. There never was any question about this, but it was held in England that, while the assignee of the reversion in part was entitled to the benefit of the covenants in the lease as regards such part, the result of the severance effected by the assignment was to destroy altogether the conditions in the lease as for re-entry for non-payment of rent. Coke on Littleton 2.15a. The Law was altered as regards the case last mentioned by 22 and 23 Vict. C. 35 Section 3, and generally, as regards leases made after the passing of the Act, by Section 12 of the Conveyancing Act, 1881. See Piggot v. Middlesex County Council (1909) 1 Ch. 134, 141. Section 109 of the Transfer of Property Act gets over the difficulty by providing that " the transferee shall possess all the rights of the transferor in the part transferred" words which are large enough to cover both covenants and conditions. There is no question of a condition here, as the suit was to recover possession on the expiry of the term. Under the general law the assignee of the reversion in part of the demised premises is entitled to bring such a suit, and there does not appear to be any ground for suggesting that the general law in this respect is inapplicable in Malabar. The learned judges in their Order, of Reference have referred to the provision in Section 6(2) that "the money due by the plaintiff to the defendant for rent or otherwise in respect of the tenancy" is to be set off against the amount found due for improvements. The only rent due to a plaintiff suing as assignee of the reversion in part of the demised premises would be the apportioned rent in respect of the part assigned to him. There would be therefore no difficulty in applying the provision in question to such a case. Moreover, it is a provision in favour of the landlord, and cannot be regarded as enlarging the tenant s rights. The view I have taken is in accordance as to the construction of the Act with the decision of Sadasiva Aiyar and Moore, JJ., in Second Appeal No. 2180 of 1914, and as to the question of severance with the decision of Sundara Aiyar and Sadasiva Aiyar, JJ., in Appeal Against Order No. 85 of 1911, an earlier stage of the same case. It was not suggested that there was any hardship to the tenant in that case or in this. If however it be apprehended that jenmis may be so unwise as to attempt to use the power of severance in a manner oppressive to their tenants, the proper course, it seems to me, is to move for an amendment of the Act.

(2.) I would answer that the lessor is not entitled to eject from a part only of the holding, but that the assignee of the reversion in part of the demised premises is entitled to eject for due cause from such part on payment of the value of the improvements to that part, and that this answer applies to tenancies in Malabar. Oldfield, J.

(3.) I agree with the answer just proposed to the reference and accept the reasoning, by which it is supported, unreservedly, so far as it relates to the effect of severance on a tenancy. I agree also that its effect is undiminished, when as in the case before us, the tenant is holding over and there has been no acceptance of rent, involving that the lease has been renewed.