K V GOVINDAN NAIR Vs. APPUKUTTY

JUDGEMENT

(1.) The only question in this Civil Revision Petition is whether there should be a stay of a suit pending in the Court of the Additional District Munsiff of Calicut for ejectment against the petitioners under Section 4 of the Madras Tenants ind Ryots Protection Act (XVII of 1946). The document under which the petitioners claimed cheir rights is described as an othi deed bearing date of the Malayalam year corresponding to 14 January, 1920. The District Munsiff held that the petitioners were not entitled to the benefit of the provisions of that section and dismissed their application for stay of the suit. When the Civil Revision Petition came on before Panchapagesa Sastry, J., he directed the petition to be posted for hearing and determination by a Bench, because of a conflict between the decision in Ranga Aiyar V/s. Subbayya Gounder and the decision in Raman Nambiar V/s. Govindan Nayar .

(2.) Under Section 4(1) of the Madras Act XVII of 1946 a suit for the eviction of a tenant from his holding or a suit in which a claim for such an eviction is involved whether in addition to a claim for rent or not, shall be stayed, subject to certain conditions, which are not material now. Under Section 2(b) of the same Act the expressions, " eviction," " holding, " " rent " and " tenant " shall in relation to cases governed by the Malabar Tenancy Act, 1929, have the same meanings respectively as in that Act. In the Malabar Tenancy Act, a " tenant " is defined thus: any person who has paid or has agreed to pay rent, or other consideration, for his being allowed by another, to enjoy the land of the latter, and includes an intermediary, a kanamdar, a kuzhikanam dar and a verumpattamdar of any description. An Intermediary is defined thus in Clause (j) of Section 3: Any person, who not being a jenmi, has an interest in land, and is entitled by reason of such interest, to possession thereof, but has transferred such possession to others;

(3.) To understand the contentions of the parties in this petition, it is necessary to refer to the main provisions of the othi deed : It recites that properties mentioned in the schedule which belong to the transferors in jenm are demised to the transferees on othi tenure on a pattom (rent) of Rs. 20 and that the transferors had received from the transferees Rs. 150 for meeting tarwad expenses. The term was fixed at 12 years, during which time the transferees were entitled to continue in possession and cultivate the land. Out of the agreed pattom of Rs. 20, Rs. 15, had to be appropriated towards interest on the othi amount, and the transferees were directed to pay the Government revenue of Rs. 4-12-0 and the balance of 4 annas as rent every year. It is provided that at the end of 12 years, the properties should be surrendered on repayment of the othi amount. The transferees were entitled to be paid the value of any improvements which they might make, according; to the custom of the locality. It was contended an behalf of the respondent that the petitioners were not tenants because under this document they were not persons who had to pay, or who had agreed to pay, rent, or other consideration, for being allowed to enjoy the land, and that the deed was in essence a deed of usufructuary mortgage. The mention of a rent or pattom would not be conclusive of the matter and would not give rise to the relationship of the landlord and tenant between the parties. The case in Venkateswara V/s. Kesava Shetti (1879) I.L.R. 2 Mad. 187 was relied upon: in support of this contention. Reliance was also placed on the decision of Happen, J., in Pottentakath Kunholan V/s. Krishnan . The learned Judge there held, on more or less similar facts, that the surplus of the usufruct paid by a usufructuary mortgagee to the mortgagor is not rent. Recently, several learned Judges have had occasion; to discuss this aspect of the question and the test laid down by them to find out whether a person was or was not a tenant on the ground that he had agreed to pay rent or other consideration for his being allowed by another to enjoy the land of the latter is to consider, from a perusal of the material deed, whether its primary object is that the person put into possession should enjoy the land or whether it was primarily intended that the land should be security for the debt. Vide Kottulungal Muhammad V/s. Akkiraman Nambudir . Velappil Tami V/s. Pazhayakath Kinhikali Umma C.R.P. No. 793 of 1947, Chandu alias Kuttiappu Vs. Puthikqyil Valappil Ummatha Kutti Umma C.R.P. No. 794 of 1947. and Karunakaran Nair V/s. Manavedan alias Valia Thirumalpad C.R.P. No. 987 of 1947.. It is not necessary however to decide whether the test laid down in these decisions is the correct test Or to examine the provisions of the deed to decide whether the transferee is liable to pay rent: under the deed in question, because in our opinion this case can be decided on another point.