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ittiravi Namboodiri and ors. Vs. Krishnankutty Menon and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKerala High Court
Decided On
Case NumberA.S. No. 398 of 1960
Judge
Reported inAIR1964Ker298
ActsCochin Namboodiris Act, 1114 - Sections 9; Cochin Verumpattomdars Act, 1118 - Sections 4, 5 and 6; Tenancy Law
Appellantittiravi Namboodiri and ors.
RespondentKrishnankutty Menon and ors.
Appellant Advocate T.M. Mahalinga Iyer, Adv. for Appellant No. 1
Respondent Advocate P.K. Krishnan Kutty Menon and; P. Rama Menon, Advs. for Nos. 1 and 3 to 5 and;
DispositionAppeal dismissed
Cases ReferredBangalore v. The Indo Merc(sic) Ltd.
Excerpt:
civil - recovery of possession - section 9 of cochin namboodiris act, 1114 and sections 4, 5 and 6 of cochin verumpattomdars act, 1118 - appeal for recovery of possession of plaint schedule property and prayer made for setting aside lease - all adult members of illom had affirmed validity of lease deed - payment of tax was an integral part of lease transaction and appellant cannot be allowed to terminate one part of transaction before closing other - provision entitled tenant to obtain sub-patta and pay tax of property - all terms of contractual tenancy carried over to statutory tenancy except those which were inconsistent with provisions of statute - held, that arrangement as regards payment of tax made in lease cannot be cancelled by appellant without consent of lessees - appeal.....mathew, j.1. this is an appeal by plaintiffs 1, 3, 8 and 10 from a decree in a suit for recovery of possession of the plaint schedule property on the basis of title. the plaint schedule property belonged to the illom of the plaintiffs. the mother of defendants 1 to 5 executed ext. a lease deed on 24-4-1116 in favour of narayanart namboodiri, the father of the 1st plaintiff and the karnavan of the illom, and got possession of the plaint property. the lease was for a period of six years from 1117, but it was to terminate only during the agricultural season viz., between the 30th of makaram and the 30th of meenam in 1123. the rent fixed in ext. a was 350 paras of paddy. under it the lessor received a muppatom of rs. 1,000/- as security for the due payment of rent : and it was provided.....
Judgment:

Mathew, J.

1. This is an appeal by plaintiffs 1, 3, 8 and 10 from a decree in a suit for recovery of possession of the plaint schedule property on the basis of title. The plaint schedule property belonged to the illom of the plaintiffs. The mother of defendants 1 to 5 executed Ext. A lease deed on 24-4-1116 in favour of Narayanart Namboodiri, the father of the 1st plaintiff and the karnavan of the illom, and got possession of the plaint property. The lease was for a period of six years from 1117, but it was to terminate only during the agricultural season viz., between the 30th of Makaram and the 30th of Meenam in 1123. The rent fixed in Ext. A was 350 paras of paddy. Under it the lessor received a muppatom of Rs. 1,000/- as security for the due payment of rent : and it was provided therein that the lessee would be entitled to deduct 100 paras of paddy out of the rent fixed as interest on the muppattom amount. It also authorized the lessee to deduct 80 paras of paddy out of the rent fixed for the payment of the tax on the property which came to Rs. 39/- and odd : the lessee was also given the right to obtain a sub-patta on the joint application of the lessor and the lessee. The plaintiffs contended that that lease was invalid on the ground that the lease was granted without the consent of the majority of the adult members of the illom and that it was not supported by necessity. It was alleged that the lease was not beneficial to the illom as the rent stipulated was low and bore no proportion to the yield of the property, that the rate of interest on the muppattom was very high and that the reservation of 80 paras of paddy for payment of the tax on the property was excessive. The plaintiffs therefore, prayed for setting aside the lease. In the alternative they claimed the right to pay off the muppattom, and to revoke the authority of the tenant to pay the tax, and to recover the whole pattom fixed without any deductions for interest and tax.

2. The substantial contentions of defendants 1 and 3 to 5 were that the lease was valid, that it was only for a period of six years, that the karnavan of the illom was competent to grant the same, that it was supported by necessity, that the muppatom amount was received by the karnavan for discharging debts binding on the illom, and that ebeen if the lease was for a period of more than six years, it was subsequently affirmed by the adult members of the illom and therefore it was not open to attack on the ground that it was granted without the written consent of the majority of the adult members of the illom. It was further contended that the rate of interest on the muppattom was not in any way excessive, that the reservation of 80 paras of paddy for payment of tax was not high, that the commutation rate of paddy was fixed with reference to the then current price of paddy, that the defendants had acquired fixity of tenure under the Cochin VenimpattDmdars Act (Act VIII of 1118) and that the plaintiffs were not entitled to recover possession of the property. As regards the alternative prayer in the olaint, the defendants contended that before the termination nf the lease transaction it was not open to the plaintiffs to pay off the muppattom amount or revoke the arrangement in Ext. A in respect of the payment of the tax.

3. The court below found that the lease was for a period of only six years and therefore it was open to the karnavan to grant the same without the written consent of the majority of the adult members of the illom. The court also found that all the adult members of the illom had affirmed Ext. A by their subsequent conduct, that the lease was supported by necessity and that it was beneficial to the illom. On the question whether the plaintiffs were entitled to pay off the muppattom amount and get by way of pattom the paddy which was directed to be deducted for interest on the muppattom, the court found that the plaintiffs were not so entitled for the reason that the lease was a single transaction which cannot be dissected into parts; and that as the plaintiffs could not recover possession of the property by virtue of the pravi-sions of the Cochin Verumpattomdars Act, they were not entitled to pay off the muppattom amount or revoke the authority of the tenant to pay the tax. In this view it dismissed the suit.

4. in this appeal, counsel for the appellants raised two contentions, namely (1) that the lease was for a period of more than six years and therefore under Section 9 of the. Namboodiris Act (Act XVII of 1114) it was void as it was granted without the written consent of tha majoriiy of the adult members of the illom, and (2) that even assuming that the lease was valid plaintiffs were entitled to pay off the muppattom amount by treating tha transaction as a mortgage, as the amount was paid to tha illom only as security for rent and that it was open to them to waive the benefit of the security at any time they wanted without reference to the lessee, and also to cancel the arrangement in Ex. A as regards the payment of the tax and get recovery of the whole rent without any deductions for interest and tax.

5. it is clear from the finding of the court below that the lease was beneficial to the illom and that mupat-tom was advanced to enable the illom to pay off the debt incurred in connection with the marriage of the sister of the 1st plaintiff. The finding of the court as regards the binding character of Ext. A was challenged only on the ground that Ext. A was for a period of more than six years and that the majority of the adult members had not given their written consent to it. Therefore it is unnecessary to consider the question whether the lease was supported by necessity and whether it was beneficial to the illom. The point that arises for consideration is whether Ext. A was invalid as it was granted in contravention of the provisions of Section 9 of the Namboodiris Act. Section 9 says that a lease for a period of more than six years can be granted by the karnavan only with the written consent of the majority of the adult members of the iliom. It was argued that Ext. A being for a period of more than six years was void as it was granted without the written consent of the majority of the adult members of the illom. The question whether an alienation of illom property without the written consent of the majority of the adult members of the illom is void can no longer be considered to be an open one in view of the decision of the Full Bench of this Court in Mathew v. Ayyappankutty, 1962 Ker LJ 177 : (AIR 1962 Ker 164 FB). In this connection reference may be made to the decision of the Judicial Committee of the Privy Council in Denning v. Edwards, 1961 AC 245. In that case the question which arose for consideration was whether under Section 88 of the Crown Lands Ordinance of Kenya, a valid contract could be entered into without obtaining the previous written consent of the Governor. The materiai portion of Section 88 is as follows:

'No person shall, except with the written consent of the Governor, sell.....'

On the basis of the section it was argued that the consent of the Governor must be obtained before the agree-ment was entered into and that subsequent consent was insufficient. Viscount Simonds delivering the judgment of the Board observed :

'Their Lordships are of opinion that there was nothing contrary to law in entering into a written agreement before the Governor's consent was obtained. The legal consequence that ensued was that the agreement was inchoate till that consent was obtained. After it was obtained the agreement was complete and completely effective.'

Following these rulings we hold that the lease was only voidable at the option ot the members of the illom, and if the adult members subsequently affirmed the transaction that would cure the initial infirmity attaching to the transaction.

6. Mr. Mahalinga lyer, for the appellants argued that the right to avoid a transaction entered into in violation of the provisions of Section 9 of 'the Namboodiris Act is a right vesting in every member of the illom and that the subsequent affirmation of the transaction by the adult members who should have given their written consent was insufficient to validate the document. In other words his argument was that as the right to avoid the transaction being a right of every member of the illom that individual right cannot be taken away by the affirmance of the transaction by the majority of the adult members of the illom at the time of the affirmance. In this case it is clear that the persons who should have given their written consent have ratified the transaction by their con-duct and therefore it was not open to any other person whose written consent was not necessary for the validity of the transaction to question it after it has been assented to by them. We also think that when a transaction which is voidable for want of the written consent cf the majority of the adult members of the illom is affirmed by the majority of the adult members of the illom at the time of the affirmance, the transaction would become immune from attack. The fact that the document was voidable only, indicates that it was capable of being affirmed or disaffirmed, and the affirmation of the document ty the majority of the adult members of the illom, who would have been competent to execute the document in conjunction with the karnavan at the time of affirmation would make the document valid from its inception. Whether the doubt expressed by Sundara lyer in his 'Malabar Law at page 23 as to the aptness of the expression 'ratification' in this context, is justified in view of the observation of Markby in his 'Elements of Law,' 6th Edn. page 145 to the following effect,

'From a consideration of the steps which may be taken to invalidate the. legal, result of an act we naturally pass to the subject of ratification. There has been some dispute as to what is meant by this term also. What I understand to be meant by 'ratification' is this After an act has been done which ;has had its legal result, taut which legal result may by taking the proper steps be counteracted or modified, if the person who, is empowered to take these steps signifies his intention not to take them, or does some act by which he loses his right to take them, he is said to ratify the act in question'

is a matter on which it is not necessary to express any final opinion for the decision of this case. The further question whether if before ratification a person had avoided the document by an act sufficient in law to avoid it, what would have tpen its effect on a subsequent ratification, is a matter which also does not fall for consideration in this case as there is no case tiiat any member of the illom had effectually avoided the transaction Before its affirmation by the adult members of the iltom.

7. The finding of the Court below is that all the adult members had affirmed Ext. A by their acts and conduct. in this connection reference may be made to Exts. K and L. Ext. K is a Karar by all the members of the illom including the minors represented by their guardian. By the karar Narayanan Namboodiri, the father of the 1st plaintiff was removed from the management of the iilom properties and Neelacantan Namboodiri, the brother ot the 1st plaintiff, was appointed manager of the illom. That was on 13-10-1119. in this connection the members of the illom drew up a statement of the income and expenditure of the family and that is Ext, L., and in that document the rent due in respect of the plaint property was also included. if the members really wanted to avoid the lease that would have been the most opportune moment for them to do so. Neelacantan Namboodiri died in 1121. The father of the 1st plaintiff thereafter executed Ext. T, a power of attorney to one Madhavan Nair for managing the illom properties. To set aside the power of attorney and to remove the father of the 1st plaintiff from the karnavanship 0. Section 89/1122 was filed by the 1st plaintiff. Para 10 of Ext. B, the plaint in that case would show that one of the allegations against the father was that he granted Ext. A lease without the consent of the other members of the illom. That suit was compromised by Ext. B-2 petition. The present plaintiffs were parties to the suit. As a result of the compromise, the suit was dismissed. The lessee was not made a party to that suit although the validity of the lease was challenged. Ext. P-1 is the judgment in that case and Ext. P-4 the decree. Under Ext. P-4, the compromise decree, the 1st plaintiff was to manage the illom properties and the father of the 1st plaintiff, the devaswom properties. The 1st plaintiff issued Ext. 02 receipt to the lessees for the pattom for the year 1123. Narayanan Nambooflin, another brother of the 1st plaintiff filed a suit 0. S. 33/1124 against the father and the 1st plaintiff to remove them from the management of the devaswom and illom properties. in that suit also the validity of Ext. A lease was impeached. That suit was also compromised: By the compromise the suit was allowed to be dismissed. Ext. U is a partition deed in the illom executed by all the members on 23-4-1125 in which the plaint schedule property was allotted to the share of the 1st plaintiffs branch. There was no attempt to avoid Ext. A in Ext. A. In these circumstances, we have no hesitation in coming to the conclusion that the members of the illom have affirmed the validity of Ext. A lease deed. In this view; of the matter it is unnecessary to consider the question whether on the wording of Ext. A, the lease enured for a period of more than six years. if the lease was valid, then upon the termination of the period in Ext. A by efflux of time. the lessee obtained a right to continue , in possession under the Cochin Verumpattomdars Act.

8. The next question for consideration is whether the plaintiffs are entitled on the basis of the alternative prayer in the .plaint to pay back the premium to the lessees and get the interest thereof as part of the pattern payable to them. It was prayed in the plaint that the plaintiffs might be allowed to treat the lease as a usufructuary mortgage so far as the muppattom amount was concerned and that they be allowed to pay off the muppattom amount and get the interest payable on the muppattom amount as part of the pattern payable under the document. it was also prayed that the plaintiffs might be allowed to cancel the arrangement in Ext. A by which the lessee was directed to pay the tax and that they be allowed to recover the paddy reserved for paying the same as part of the pattern fixed under Ext. A. When the period . fixed in the lease deed expired, the tenant became entitled to continue in possession of the property under the provisions of the Cochin Verumpattom-dars Act. The tenant obtained a status of irremovability by virtue of that Act. it was argued for the appellants that the statutory tenancy created by that Act was entirely different from, the contractual tenancy which pre-ceded it, that the contractual tenancy came to an end and that what was being carried over under the Act was only the relationship of landlord and tenant; and that as the provisions in Ext. AF as regards the muppattem and the payment of interest thereon, as also the provision for payment of tax by the lessee were merely collateral to that relationship, it was open to the plaintiffs to pay off the muppattom and revoke the direction in Ext. A as regards the payment of the tax. it was further argued that the muppattom being only a security for payment of the rent under Ext. A was an advance for the benefit of the landlord, and being one entirely for his benefit it was open to him to renounce that benefit and pay off the amount at any time he chose and thereby determine what is called the 'lender and borrower' aspect of the transaction, and get recovery of the amount reserved by way of interest and tax as part of the pattern. Although the contractual tenancy came to an end with the expiry of the term, we think the relationship of landlord and tenant was being carried over by the Cochin Verumpattomdars Act, and all the terms of the contractual tenancy became terms of the statutory tenancy except those which were inconsistent with the provisions of that Act. The status of a tenant under a statutory tenancy has been said to be something of a jurispruden-tial curiosity and he himself may well be described as an 'anomalous entity'. The statutory tenancy always postulates the existence of a valid contractual tenancy which has expired by efflux of time or for other reasons, but the statute on account of public policy continues the quandom relationship notwithstanding its termination.....a statutory tenant shall so long as he retains possession observe and be entitled to the benefit of all the terms and conditions of the original contract of tenancy, so far as the same are consistent with the provisions of this Act. The original contract of tenancy means the tenancy under which the tenant held immediately before his statutory tenancy began, and accordingly he is entitled to the benefit of provisions therein for quiet enjoyment etc..... But terms relating to rent, such as an agreement as to the amount payable, or a provision for reduction on prompt payment or during a specified period, are not carried over into the statutory tenancy, for they would be Inconsistent with the scheme contained in the Acts regulating the rent payable by a statutory tenant.' (See 'Rent Acts' by R. E. Megarry page 129 -- 'Terms of Statutory Tenancy'.)

In other words the contractual tenancy continues with all its terms except those which are inconsistent with the provisions of the statute. if that be so the question is whether the landlord was entitled to pay off the muppattom amount on the groirnd that the amount had been received as security for the payment of future rent and was exclusively for his benefit and that it was open to the plaintiffs to renounce that benefit. An agreement of tenancy contains various terms, such as provisions for payment of rent, security for the due performance of the covenants therein, including the covenant to pay the rent and the period for which the tenancy is to continue and so on. All these are parts of a single agreement entered into between the landlord and the tenant. These covenants are binding on both parties. The mutual covenants are considerations for one another and it is not possible to isolate one covenant and say that that is exclusively for the benefit of the landlord or the tenant. The landlord therefore, cannot say that the provision as regards the muppattom was exclusively for his benefit, and that he can waive its benefit and pay off the amount without the consent of the tenant when there is a provision for payment of interest on that amount to the tenant which is prima facie to his benefit. When the amount was advanced as muppattom the understanding between the parties was that it will serve as a security for the payment of the future rent. There was also the covenant that the tenant would be entitled to appropriate from the pattom fixed the interest at the rate of 5% per annum : 100 paras of paddy was reserved in Ext. A as interest for the muppattom and the lessee was given the right to deduct that from the pattom fixed in Ext. A. The lessee therefore obtained an advantage in the sense that he had the right to earn the interest and pay herself that interest out of the pattom of the property, and but for this stipulation it is doubtful whether she would! have advanced the amount by way of muppattom. At any rate it is not for the Court to embark on an enquiry as to the motives which operated in the minds of the parties at the time when they entered into the transaction. The parties have made a contract containing certain terms and it is not for the court to rewrite that contract and say that one part of the agreement was exclusively for the benefit of the lessor and that he can cancel it, without reference to the lessee. it is impossible to dissect the transaction into parts and say that one part should be severed from the rest and closed without the consent of the other party. Looked at from the lessee's standpoint it was an Investment which earned for her interest and the profits of the property was security far It. in one sense it is possible to say that premium as security for rent is entirely for the benefit of the lessor alone, but when one comes to think of the nature of the transaction from the standpoint of law it is clear that a bilateral arrangement reserving benefits for both parties must bind both and cannot be cancelled or rescinded by one without the consent of the other. During the subsistence of the contractual tenancy the covenants in the lease deed were binding on the parties and it was not contended that it was open to the landlord to pay off the muppattom at any time before the expiry of the period specified in Ext. A. if as alleged in the plaint this part of the transaction is to be viewed as a mortgage, it is clear that the lessor-mortgagor can pay off the muppattom only when it became due, for the rights of a mortgagee to recover the mortgage money and the mortgagor to redeem are co-extensive, and if the mortgage money becomes due only on a particular date, the mortgagor, cannot redeem by paying off ths amount, or the mortgagee demand the amount before that date. See Tirugnana Sambandha Pandara Sannadhi v. Nallatambi, ILR 16 Mad 486 and Shiam Lal v. Jagdamba Prasad, 108 Ind Cas 561 : (AIR 1928 All 131).

9. Although there was the prayer in the plaint to equate this part of the transaction to a* mortgage the analogy with a mortgage must break down as there was no charge on the property for the muppattom in Ext. A. But even if this part of the transaction is viewed as a case of lending and borrowing -- and what else could it be -- we think the same principle would apply.

10. if the amount was paid as security for payment of rent, the security must operate for the entire period of the lease including the period during which the statute carries it over. There was an implied mutual covenant binding on the parties not to demand or pay off the muppattom as the case may be before the expiry of the period specified in Ext. A. The lessee was entitled therefore to expect that the lending was to enure for the period of the lease, as there was the possibility of default in the payment of rent at any time within the period. The muppattom amount being security for payment of rent, must operate as security during the continuance of the lease and become payable only on the date when the term was over. If neither party could have terminated the relationship of lender and borrower within the period contemplated by the parties, it follows that it was not open to the borrower to pay off the amount before the time impliedly stipulated for the same on the ground that it was exclusively for his benefit. As the terms of the contractual tenancy except those inconsistent with the Cochin Verumpattomdars Act are being carried over into the statutory tenancy the muppattom amount will become payable only on the termination of the statutory tenancy and the lessor cannot insist upon paying the amount or the lessee to recover it before the termination of the statutory tenancy. The obligations are reciprocal. Therefore, we find it difficult to accept the argument of counsel for the appellants that the plaintiffs are entitled to pay off the muppattom amount and close that part of the transaction thereby enabling the plaintiffs to recover the amount stipulated as Interest as part of the rent fixed under the document.

11. As regards the question whether the plaintiffs are entitled to countermand the direction in Ext. A as regards the payment of the tax, we think that the plaintiffs are not so entitled for the reason that the arrangement in Ext. A for payment of tax is an integral part of the lease transaction and that the plaintiffs cannot be allowed to terminate one part of the transaction before closing the other, in Ext. A there was a provision that the tenant would obtain the sub-patta and pay the tax of the property. 80 paras of paddy was reserved for the same. On the basis of this stipulation the landlord and tenant applied for a sub-patta in favour of the tenant and a sub-patta was issued to him. Under Act II of 1103 (Cochin Act) the effect of the sub-patta was that the tenant became primarily liable to pay the tax on the property. If the landlord were allowed to countermand the direction in Ext. A for payment of tax the result would be that the tenant would remain primarily liable to pay off the tax with no wherewithal to pay the same. In these circumstances, it is difficult to hold that the plaintiffs can by a unilateral act of their own, revoke the arrangement as regards the payment of tax. If this was the position during the subsistence of the contractual tenancy, we do not think that there was any change because the contractual tenancy had come to an end, but was being carried over by the Act. As we have-already said, all the terms of the contractual tenancy will be carried over to the statutory tenancy except those which are inconsistent with the provisions of the statute. It has therefore, to be held that the arrangement as regards the payment of the tax made in Ext. A cannot be cancelled by the plaintiffs without the consent of the. lessees.

12. We would dismiss the appeal with costs of the contesting respondents one set.

Madhavan Nair, J.

13. I agree that the impugned lease under Ext. (sic) granted by the karnavan alone, when there were 5 other major members in the illom, for a term well over six years was voidable at the instance of the members ot the illom. But nobody avoided the lease before the institution of the present suit, which was only on March 19, 1951 (Meenam 5, 1126). Even though fixity of tenure came to be conferred on Verumpattam-tenants in 1118, the lessor and his successors, inclusive of the 1st plaintiff, continued to receive the rent under Ext. A during the entire term of the lease. Further, on 13-10-1119 all the major members of the illom joined to execute-a Family Settlement, Ext. K, removing the lessor undsr Ext. A from karnavanship and appointing the next senior in his place. The family budget was also discussed then and a list of the incomes and expenditure of the illom was drafted under signature of all the major members, which is proved here as Ext. L. The receipts listed included the residual rent under Ext. A. That was an. occasion when particular attention of the illom was drawn to Ext. A, and the conduct of the illom then indicated an acceptance or affirmation of the lease. As the transaction was only voidable such acceptance or affirmation by all the major members of the illom validated it.

14. Counsel contended that the expression in the Cochin Namboodiri Act 'Except with the written consent .....no karnavan shall sell ..... or lease' indicates that such consent must precede the alienation-and therefore a subsequent affirmation is ineffective in law. The dictum of the majority in paragraph 53 of the judgment in 1962 Ker LJ 177 : (AIR 1962 Ker 164 FB) is that such a 'transaction is one which the junior members of the tarwad can at their choice either affirm or avoid'. That decision appears to have the support of the high authority of the Privy Council in 1961 App Cas 245 where an agreement for sale of crown land had not the consent of the Governor when it was entered into. Section 88 of the Crown Lands Ordinance of Kenya enacted:

'88. (1) No person shall, except with the written consent of the Governor, sell, ..... any land ..... in the High lands, ..... nor shall any person enter into any agreement for any of the transactions referred to in this sub-section without the written consent of the Governor :

(2) .....

(3) Any instrument, in so far as it purports to effest any of the transactions-referred to in Sub-section (1) of this section shall be void unless the terms and conditions ot such transactions have received the consent of the 3ov-ernor which shall be endorsed on the instrument.'

Based on the above provisions it was contended that the agreement was void, though subsequent to the contract the Governor had given his assent thereto. Viscount Simonds delivering the opinion of the Judicial Committee observed :

'there was nothing contrary to law in entering into a written agreemant before the Governor's consent was obtained. The legal consequence that ensued was that the agreement was inchoate till that consent was obtained. After it was obtained the agreement was complete and completely effective.'

I agree that the contention that a subsequent affirmation of the transactions voidable under Section 9 of the Cochin Nambudiri Act is ineffective to validate it has to be repelled as unsubstantial.

15. Counsel for appellant then contended that the right of avoidance of a voidable alienation of illom properties being in all the junior members of the illom, inclusive of the minors therein, an affirmation by the major members alone will not make the alienation binding on the illom; that is to say, the right of avoidance of the minor members of the illom cannot be affected by the conduct of the major members. I do not see force in this contention. The defect in the alienation is the absence of written consent of the majority of the major members; and the right of the minor members to avoid the alienation is dependent on that lack of consent of the major members. When all the major members have subsequent to trie alienation expressed in writing their affirmation of the alienation, they were not affecting the right of minor members to challenge the alienation but were removing the defect in the alienation itself. The consequence of that removal of defect may be to affect and nullify the minor's right to avoid the alienation on account of the defect. The distinction between an act and its consequence may at times be subtle, but it is real. Here the act is the removal of the defect and the consequence is the cessation of the minor's right to avoid the alienation. If the act is within the province of the doer its consequences cannot be avoided by others.

16. I agree with my learned brother, Mathew J., that the tenancy under Ext. A has 'come to an end' before the cultivation season in Meenam/Medam 1123. Under Section 108 of the Cochin Transfer of Property Act, XVII of 1111, 'a lease of immovable property determines by efflux of lime limited thereby'. But, I am constrained regretfully to disagree with his Lordship's finding that the tenancy was subsequently 'being carried over by the (Cochin Verifmpattomdars) Act'. I should think that, except under a holding over, no lease continues beyond the period specified therein. The defence claims, and my learned brother seems to accept, that by virtue of the fixity of tenure conferred by Section 4 of the Cochin Verumpattomdars Act, VIII of 1118, the lease continues to this day. That section reads:

'Notwithstanding any law, custom or contract to the contrary, every Verumpattomdar shall have fixity of tenure in respect of his holding and shall not be evicted therefrom except as provided in Section 8 of this Act.'

And, Section 8 enumerates the grounds on which alone a landlord can evict a Verumpattomdar from his holding.

Section 4 concerns with the fixity of tenure, that is to say, fixity of the period of holding, possession or enjoyment of the land. It has nothing to do with other incidents of the tenancy. As observed by the Supreme Court in Dr. K. A. Dhairyawan V. J. R. Thakur, AIR 1958 SC 789, par. 10 the effect of such a mere conferment of fixity of tenure is not to continue the lease beyond the period specified therein, but to give to the person who continues to remain in possession of the land aftet the leaste has come to an end the status of a statutory tenant.

In Ganga Dutt Murarka v. Kartik Chandra Das, AIR 1961 SC 1067 the Supreme Court observed :

'Section 116 of the Transfer of Property Act in so far as it is material provides that if a lessee of property remains in possession thereof after the determination of the lease granted to him and the lessor accepts rent from the lessee or otherwise assents to his continuing in possession, the lease is, in the absence of an agree-ment to the contrary, renewed from year to year or from month to month according to the purpose for which the property is leased as specified in Section 106. It is however well settled that where a contractual tenancy to which the rent control legislation applies has expired be efflux of time or by determination by notice to quit and the tenant continues in possession of the premises, acceptance of rent from the tenant by the landlord after the expiration or determination of the contractual tenancy will not afford ground for holding that the landlord has assented to a new contractual tenancy.....

'The High Court was in our judgment right in holding that by merely accepting rent from the appellant and by failing to take action against him, the appellant did not acquire the rights of a tenant holding over. It is true that in the notice dated October 10, 1950, the appellant is described as a 'monthly tenant', but that is not indicative of conduct justifying an inference that a fresh contractual tenancy had come into existence. Within the meaning of the West Bengal Premises Rent Control Act 1950 the appellant was a 'tenant' and by calling the appellant a tenant the respondents did not evince an intention to treat him as a contractual tenant. The use of the adjective 'monthly' also was not indicative of a con-tratu'al relation. The tenancy of the appellant was determined by efflux of time and subsequent occupation by him was not in pursuance of any contract express nr implied, but was by virtue of the protection given by the successive statutes. This occupation did not confer any right upon the appellant and was not required to be determined by notice prescribed by Section 106 of the Transfer ot Property Act.'

17. it is true, as Ext. 0-1 shows, that the 1st plaintiff has received the rent of the suit properties for the year 1124 which is subsequent to the termination of the lease by expiry of its term; but that being a period covered by the statutory fixity of tenure under Section 4 of the Cohcin Verumpattomdars Act cannot prove a holding over under Ext. A. As has baen observed in Kamani Industrial Bank Ltd. v. The Province of Bengal, AIR 1951 SC 285,

'.....There can be no question of the lessee 'continuing in possession' until the lease has expired, and the context in which the provision for acceptance of rent finds a place clearly shows that what is contemplated is that the payment of rent and its acceptance should be made at such a time and in such a mannar as to be equivalent to the landlord assenting to the lessee continuing in possession.'

That decision shows also that where rent has been accepted for one year after the termination of the lease, the lease is extended only by one year and that there loss not arise a yearly tenancy to continue indefinitely thereafter. It must then follow that even if the payment and acceptance of the rent for the year 1124 be held to constitute a holding over, it can extend the lease up to 1124 Makaram only. That the rents for the years 1125 and 1126 were in arrears on the date of this suit is not disputed, though it was pleaded to be on account of the plaintiffs' refusal to receive the same. Thus, in any case, the lease under Ext. A has come to a termination in 1124 Makaram at the latest. The suit is filed in Meenom, 1126, only. On the date of the suit there was no subsisting lease between the parties, but only a statutory tenancy.

The citation in paragraph 8 above from 'Rent Acts' by R. E. Mcgarry shows that 'terms relating to rent, such as an' agreement as to the amount payable or a provision for reduction on prompt payment or during a specified period, are not carried over into the statutory tenancy'.

18. The next question is of the incidents of the statutory tenancy that was between the parties on the flate of the suit. They are detailed in Sections 5 and 6 of the Cochin Verumpattomdars Act, which run thus :

'5 1. Subject to Sub-section (2) and to any remission to which a Veruitipattamdar may be entitled under the provisions of this Act, the pattern payable by him in respect of his holding under the contract of tenancy shall not be enhanced or reduced.

Provided that a verumpattamdar shall, where a portion of the land comprised in his holding is acquired under the provisions of the Cochin Land Acquisition Act, II of 1070, be entitled to an abatement in the rent to the same proportion as the. yield from the portion acquired bears to the yield from the entire holding.

Provided that where any material part of the holding be wholly destroyed or rendered substantially and permanently unfit for the purpose for which it was let, by fire, tempest or flood or violence of any army or mob or other irresistible force, the pattam may be proportionately reduced if the part so destroyed or rendered unfit is unconditionally surrendered by the verumpattamdar to his lessor.

(2) Where, cocoanbt is the major produce of a garden land and the pattam fixed therefor under the contract of tenancy is payable in money, it shall, be obligatory on the part of the verumpattamdar to give and the lessor to accept the pattam accruing due after the commencement of this Act in hind computed on the basis of the average market value of cocoanut for a period of twenty years prior to the date of the contract of tenancy or the money value thereof computed at the, market rate prevailing on the date on which such pattam accrues due.

Provided that --

(1) Where the date of the contract of tenancy is after the commencement of this Act and before the commencement of the Cochin Verumpattomdars (Amendment) Act, XVII of 1120, the pattam payable in kind under this sub-section shall be ccmputed on the basis of the market value of cocoanuts prevailing on the date of the contract of tenancy :

(2) where the money value computed under this subsection exceeds the pattam payable in money fixed under the contract of tenancy, the pattam payable shall be the money pattam fixed in the contract of tenancy together with half of such excess;

(3) where the pattam payable in money fixed under the contract of tenancy exceeds the money value computed under this sub-section the patlam payable shall be the money value computed under this sub-section together with half of such excess;

(4) where there js a contract by the Verumpattamdar to pay the tax of the holding and such tax is included in the pattam fixed in the contract of tenancy such tax shall be payable by the verumpattamdar only in money and the same shall be excluded in computing the pattam payable in kind or the money value thereof.

(3) The market rate and the average, rate for cocia-nuts for the purpose of Sub-section (2) shall be deemed to be such rates as Government or such officer specially authorised may by notification in the Cochin Government Gazette specify in this behalf.

(4) in the absence of any express stipulation to pay rent in the contract of tenancy, a Tharikuthakaran of the Chittur Taluk shall be liable to pay to his lessor an annual pattam calculated at the rate of one anna per cent of land comprised in his holding.

(6) As between a verumpattamdar and his lessor, the latter shall, in the absence of any custom or contract to the contrary, be liable for the revenue, cess or tax payable to Government or to any local authority; but the former shall be liable for --

(a) any enhancement subsequent to the commenca-ment of this Act in the revenue, cess, or tax payable to Government or to any local authority;

(b) any special charges leviable by Government for special or additional crops raised on nilams;

(c) any special charges payable to Government ;n . connection with survey or settlement operations or for the maintenance of survey marks.'

Section 5 provides that the rent should not be varied, and Section 6 fixes the liabilities for the revenue. it has to be remembered here that the Cochin Verumpattomdars Act deals with Verumpattams (Leases simpliciter) in force on the date of the Act and also with the rights and liabilities of a Verumpattam-tenant whose lease has determined. Hence the provisions of Sections 5 and 6 apply during the period of the. lease as well as during the period of the statutory tenancy that follows it.

19. There is a controversy here as to the rent payable under Ext. A, the tenant contending it to be 170 parahs and the landlord asserting it to be 350 parahs of paddy per annum. In Ext. A the tenant has agreed unequivocaiiy that the rent fixed for the properties is 350 parahs of paddy per annum. No doubt, the deed allows the tenant to deduct from the annual rent 100 parahs of paddy for interest on the security amount deposited with the landlord and also 80 parahs of paddy as reimbursement of the land tax which he has undertaken to pay.

The written statements of the tenants-defendants aver, and the Subordinate Judge has found, that on the date of Ext. A the price of paddy was eight annas per paran, and that 100 parahs of paddy was fixed in Ext A as equivalent to 5 per cent interest on the advance of Rs. 1000 and 80 parahs of paddy as equivalent to Rs. 39 odd that was the tax on the lands leased. Obviously those deductions are from the rent fixed which is 350 parahs af paddy. The contention that the rent fixed under txt. A is 170 parahs only has no substance.

20. The landlord has, in the plaint, expressed his readiness to return the security amount of Rs. 1000/-and to pay the land tax himself and disclaimed liability to pay interest on the former or to reimburse in respect of the latter from the date of suit The tenant repudiated the lessor's right to return the amount or to pay the land tax. The Subordinate Judge held :

'The payment of muppattom can arise only when the lease is surrendered or a fresh lease executed in the absence of which the landlord is not entitled to pay off the muppattom amount since the tenant himself gets the right to claim muppattom only on his surrender or on his executing a fresh lease deed.....The plaintiffs are not entitled to pay bach the muppattom amount and to get the paddy given credit for interest. Similarly, the provision for the payment of land tax cannot also ue altered as long as the lease irnder Ext. A continues.'

21. Ext. A, the instrument of lease, is quite clear that the amount of Rs, 1000 advanced under it, though named Muppattom (premium), was paid only as 'security for the rent' under the deed. (See the quote supra). A security for the performance of an engagement is for the benefit of the creditor concerned and can be given up by him at any time.

The argument that the security given by a debtor for due performance of his obligation is an investment on his part is a novel argument which, in my opinion, has nothing to its credit except the ingenuity of its author. To me it appears to be a desperate argument devoid of any force to carry conviction. I asked counsel to cite a case in which such a plea has been advanced with success; but he was not able to point out any, not even one in which such a plea was advanced and con-sidered.

The rule of common law Is:

'Omnes licentiam heb-ent his, quae pro se indulta sunt, renunttare -- every one has liberty to renounce those things which are granted for his own benefit.'

This principle has even been adopted in the construction of statutes.

Maxwell on Interpretation of Statutes, 10th Edn.page 388, observes:

'Another maxim which sanctions the non-observanceof a statutory provision is that 'cuilibet licet renuntiarejuri pro se intoducto'. Everyone has a right to waiveand to agree to waive the advantage of a law or rulemade solely for the benefit and protection of the Individual in his private capacity, which may be dispensed withwithout infringing any public right or public policy.'

In Vellayan Chettiar v. Government of Province of Madras, AIR 1947 PC 197, the Judicial Committee of the ?rivy Council held :

'There appears to their Lordships to be no reason why the notice required to be given under Section 80 (C. P. C.), should not be waived if the authority concerned thinks fit to waive it. It is for his protection that notice is required; if in the particular case he does not require that protection and says so, he can lawfully waive the right.'

If such be the case with statutory provisions, the rule cannot be otherwise in the case of contracts. It must be open to every creditor to give up any security given for his benefit.

In Elumalai v. Balakrishna, ILR 44 Mad 965 at page 969 ; (AIR 1922 Mad 344 at p. 346}, Krishnan, J., refer-ring to a mortgage debt, observed:

'The security is for his benefit and he can give it up if he likes.'

and that observation has been cited with full approval by the very learned author Mulla in his Commentary on the Transfer of Property Act.

In Imperial Bank of India v. Bengal National Bank Ltd., AIR 1931 PC 245, the Judicial Committee held :

'The creditor is entitled to take a judgment for the debt without having recourse to his security.'

22. When the landlord has expressed his readings? to return the amount, the tenants have no right to refuse it and ciaim to be paid interest subsequent to that offer it is pointed out that the amount has not been deposit ed in court for payment to the tenants. When the tenants have made it clear that they would not accept the amount, there arises no obligation in the landlord to deposit (sic) in court. In the words of the Supreme Court in International Contractors Ltd. v. Prasanta Kumar Sur, AIR 1962 SC 77 :

'The principle laid down in Hunter v. Daniel, (1845; 4 Hare 420, is applicable to cases of this hind. in that case Wigram, V. C., stated the position as follows:

'The practice of the Courts is not to require a party to make a formal tender where from the facts stated in the Bill or from the. evidence it appears the tender would have been a mere form and that the party to whom it was made would have refused to accept the money'.'

The absence of a deposit of the amount in court is therefore immaterial. The landlord, by counsel, agrees to pay, though not bound in strict law, 6 per cent interest from date of suit to date of payment or of deposit in court. The tenant may get the same but has no right to appropriate any portion of the rent fixed under Ext. fl as interest on the security amount which he refused to accept when offered to be returned by the landlord.

23. Ext. A, the instrument of lease, directs the tenant to pay the land tax of the premises, which is Rs. 39-3-9; and to reimburse himself for that payment by appropriating 80 pafshs of paddy out of the rent of the properties. Such a provision amounts to a delegation by the landlord. The covenant in But. A to pay interest on the amount of land tax to, the landlord in case of delay in remittance puts the matter beyond controversy. When the tenant pays what the landlord has to pay and reimburse himself from what Js payable by him to the landlord, the payment is really by trie landlord through the hands of the tenant. It is in law not payment by the tenant, but a payment by the landlord. When the landlord repudiates that delegation, the tenant has not to pay the tax himself, and cannot claim reimbursement from the landlord. The law is clear that for voluntary payments made by one to the benefit of another in spite of that other's protest there is no right of reimbursement.

That the liability to pay land tax is on the landlord is pretty clear from the provisions of Section 6 of the Cochin Verumpattomdars Act, quoted above. Of course, it is subject to a contract to the contrary. Such a con. tract must be one that provides contrarywise of what the Section enacts. When the Section says the lessor shall be liable for the land tax, a contract to the contrary must be one that makes the tax a liability of the tenant. The contract in Ext. A does not make it so, but keeps it the liability of the landlord as it provides for reimbursement out of the rent when the tenant pays it and for payment of interest to the landlord when the tenant delays it. If liability is of trip tenant, he cannot have any right to reimbursement wner, he pays, nor any liability to pay interest when he delays.

The delegation that is in the undertaking to Day and reimburse is a term of the contract in Ext. A; and it ends when the contract itself comes to an end. Inhibition against eviction of the tenant does not continue the contract of lease or the authority to pay the land tax with right to reimbursement which is a term thereof. Even during the currency of the lease the landlord could have repudiated the delegation, and thereafter the tenant could not have paid the tax to earn reimbursement. Once the delegation is withdrawn by the landlord the tenant cannot still pay the land tax to claim reimbursement in kind at rate provided years ago when the price of the commodity was far lower than what it is on the date of payment.

24. Counsel for the tenant pointed out that, under Ext. A, the. liability to pay enhanced land tax is on the tenant and therefore the direction to pay land tax is not a mere delegation but an imposition of liability for the current tax. I disagree. Under Section 6 of the Act, the liability to pay the tax is on the landlord, and the liability to meet any enhancement in the lax subsequent to the commencement of the Act is on the tenant. Section tion 2(c) of the Act defines rent to include enhancement in land tax.

' 'Pattam' includes 'puravaka' dues, if any, payable under the contract of tenancy and the enhanced revenue, cess, tax or other special charges mentioned in Section 6.'

It then follows that the provision for payment of any anhancement in the land tax by the tenant is only in tune with the law that later on came to be recognised and incorporated in the Cochin Verumpattomdars Act. It cannot then militate against the. reality of the delegation in regard to the payment of lend tax that is really the liability of the landlord. The provisions for reimbursement on payment and for interest in case of delay in remittance, as already mentioned, affirms the position beyond any doubt in my view.

25. Counsel for the tenants relied on the fourth proviso to Section 5(2) of the Verumpattomdars Act (quoted above) to contend that the legal effect of the contract in Ext. A is to make the land tax a liability of the lessees and that the landlord cannot wry the same. I do not see anything in that proviso to warrant that contention. To me, the proviso appears to concern caseswhere payment of tax to the landlord in kind is stipulated as part of the rent. The case here is not one such,but the converse of it. Apart from that the said proviso is one appended to Section 5 (2) that deals withthe computation of rent 'where cocoanut is the majorproduce ,of a garden land'. Such admittedly is not thecase here, and for that reason alone the proviso cannotbe attracted to.

'It is a fundamental rule of construction that a proviso must be considered with relation to the principal matter to which it stands as a proviso.' Abdul Jabar Butt v. State of Jammu and Kashmir, (S) AIR 1957 SC 281 at p. 284.

'ft is a cardinal rule of interpretation that a proviso to a particular provision of a statute only embraces the field which is covered by the main provision. It carvet out an exception to the main provision to which it has been enacted as a proviso and to no other.' Ram Narain Sons Ltd. v. Asst, Commr. of Sales Tax, (S) AIR 1955 SC 765 at p. 769.

'The territory of a proviso therefore is to carveout an exception to the main enactment and excludesomething which otherwise would have been within theSection. It has to operate in the same field.....'Commr. of Income-tax, Mysore, Travancore-Cochin andCoorg, Bangalore v. The Indo Merc(sic) Ltd. AIR1959 SC 713 (718).

26. It was then contended that order Ext. A 'sub-patta' has been issued to the tenants and therefore the primary liability to pay revenue is on the tenant. it is conceded that a sut-patta is issued in token of a joint registration of the tenant along with the land-holder under Section 6 of the Cochin Joint Land Registration Act, 11 of 1103, which reads:

'6. The Diwan Peishkar may, on the application of the registered landholder of any land or of any person who is bound by a contract, express or implied, with the land-holder or his predecessor-in-title to pay to the Government the Land Revenue Assessment on such land, register as occupant jointly with such land-holder such person :

Provided that, before ordering joint registration as aforesaid, the Diwan Peishkar shall give notice to the land-holder or to the person entitled to occupy, as the case may be and consider his objections. In all cases in which occupancy is only for a specified period, the Diwan Peishkar shall state in his order the period for which such joint registration shall be in force, which period shall not extend beyond the date of the tormina-tion of the contract referred to in this section.

It is evident from the above section that a sub-patta is designed only to effectuate a contract between the registered land-holder and an occupant of the land regarding payment of the land tax, and that the life of a sub-patta does 'not extend beyond the date of the termination of the contract referred to'. Neither the sub-patta, nor the order for joint registration, which latter must necessarily contain 'the period for which such joint registration shall be in force', is in evidence here. As the contract under Ext. A is, bv its own terms, to terminate after the harvest of the Makaram crop of 1123 and be fore the next cultivation season, the sub-patta issued in token of a joint registration as per Ext. A cannot be in force after 1123 M. E..

Counsel for the landlord agrees that any payment of tax that the tenant has made the landlord is prepared to return in cash. Suffice therefore to say here that the tenets-defendants cannot claim to appropriate 80 parahs of paddy as reimbursement of Rs. 39-3-9, or even less at times, when paddy has been selling at Rs. 2/- and above per parah.

27. it follows that from the date of the suit the tenants have to account for the full rent of the property, 350 parahs of paddy per annum. They will have 6 per cent interest on Rs. 1000/-, the security amount in the hands of the landlord, and also the actual amounts of land tax paid by them. The decree of the court below is modified accordingly. The prayer for eviction is disallowed, arrears in rent being no ground now for an eviction. The appellants will have one-half the costs here and in the court below.

By Court

In view of the majority opinion, the appeal is dismissed with costs of the contesting respondents, oneset.


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