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Kaithal Kuttiyali Vs. Kuzhatte Puthenveetill Thirumangalath Kashaartan Ummam Amma and Etc. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai
Decided On
Reported in(1921)41MLJ202
AppellantKaithal Kuttiyali
RespondentKuzhatte Puthenveetill Thirumangalath Kashaartan Ummam Amma and Etc.
Cases ReferredGopalan Nair v. Kunhan Menon I.L.R.
Excerpt:
.....should pay that rent for a further term of 12 years from the expiry of the first term and execute a document binding himself to do so. 'it is certainly open to a sthani to make a lease of forest land for a term of years, and the mere fact that the alienation is intended to hold good after his lifetime will not invalidate it......covenant for renewal for another term of 12 years beginning from the expiry of the term of 12 years granted, that is 9th may 1902, the date ot ex a. these words are almost identical with the words in another taraga lease granted to the tenant by the same stanomdar or his predecessor-in-title in an unreported case s.a. no. 1423 of 1901. there mr. justice benson who had much experience of malabar law and mr. justice bashyam iyengar held that having regard to the well-known tenures and customs of malabar, the intention of the parties in executing the deed was to agree that the tenant should 'hold the land for the usual term of 12 years at the rent fixed in the document and should plant up the land during that time in a husband like manner, that at the end of that term the rent should.....
Judgment:

1. The main question in these appeals depends on the construction of Ex. A. which is a lease or rather counter part of a lease known in Malabar as Taraga, the purpose of which admittedly was to enable the tenant or the lessee to reclaim the demised land and make improvements thereon. The words of this lease which was granted by the Stanomdar are these: - 'I shall well improve this paramba and plant & c, when the improvements have survived the period of decay and the cqcoanut trees begin to bear their first fruits, I shall take a Taraga after fixing the rent in accordance with the local custom on an inspection of the Kuzhikanoms.' The Subordinate Judge has held that this clause merely gives an option to the landlord to renew the lease if he so chooses.

2. The appellant on the other hand contends that it is a binding covenant for renewal for another term of 12 years beginning from the expiry of the term of 12 years granted, that is 9th May 1902, the date ot Ex A. These words are almost identical with the words in another Taraga lease granted to the tenant by the same Stanomdar or his predecessor-in-title in an unreported case S.A. No. 1423 of 1901. There Mr. Justice Benson who had much experience of Malabar Law and Mr. Justice Bashyam Iyengar held that having regard to the well-known tenures and customs of Malabar, the intention of the parties in executing the deed was to agree that the tenant should 'hold the land for the usual term of 12 years at the rent fixed in the document and should plant up the land during that time in a husband like manner, that at the end of that term the rent should be enhanced with reference to the improved state of the land and according to the custom of the country in fixing the rent of such improved land, and that the tenant should pay that rent for a further term of 12 years from the expiry of the first term and execute a document binding himself to do so. They granted a deqree to the effect that tne tenant was entitled to renew the lease.which should bear the date, the day of the decree and run for the unexpired portion of 12 years from the expiry of the former lease but without a covenant for further renewal. Having heard Mr. Madhavan Nair fully for the respondent, we are inclined to hold that the words quoted above mean that the parties intended that if the tenant made any improvement and those improvements were effective, he would be entitled to a lease for another term of 12 years from the date of the expiry of the prior lease, and the rent was to be revised in view of any larger yield from the land that may accrue and also having regard to the custom of the country with respect to such a lease. We have been pressed however by Mr. Madhavan Nair with the decision in Gopalan Nair v. Kunhan Menon I.L.R.(1907) Mad. 300 . But that was a case of a Kanom which is not a lease pure and simple but partakes also of a mortgage, and further, the learned Judges one of whom was Mr. Justice Benson proceeded upon the faciithat the terms of the renewed lease were not set out in the document. Here the rent although not fixed is capable of heing ascertained with reference to the nature and value of theimprovements and the local custom, We are therefore of opinion that the appellant is entitled to a renewal for a further terra of 12 years.

3. It was argued by Mr. Madhavan Nair that the Stanomdhar who granted the prior lease, the counter part of Ex. A, had no power to bind his successor that is to say, the lease would be operative only during his life time, and that this stipulation for renewal does not bind the successor in office. He contended this as an absolute proposition of law while the very authorities to which he has referred us as set out in Moore's Malabar Law show that the Stanomdhar is entitled to grant a lease for a term exceeding his own life time, so as to make it binding on his successor provided the leasers such as is beneficial to the estate. At p. 349 in his Malabar Law, Moore cites a dictum of Mr. Holloway who was at the time Subordinate Judge of Calicut to the effect that the proof that the alienation of sthanom property is for some purposes tending to the conservation or improvement of the property for those who are to succeed must be clear in order to make such alienation binding. At page 351 a passage from the Judgment of Innes and Muthusamy Iyer, JJ. runs thus:--' But he '(sthanamdar or rather sthanamholder 'is also manager of the family for, the time being; if he grants a lease or makes an alienation to enure beyond his life time which is for the benefit of the family, it will be upheld as, on the other hand, any such transaction, if prejudicial to the family, will be set aside,.'. Similarly at page 352 it is Laid down in another Judgment of this Court. ' It is certainly open to a sthani to make a lease of forest land for a term of years, and the mere fact that the alienation is intended to hold good after his lifetime will not invalidate it. ' Here in the written statement, paragraph 5, in O. S. No. 24 of, 191 5, a plea was taken that the lease was binding only on the stanom holder who granted it and not on the succeeding stanom-holders: There is a general issue, No. 1, to this effect ' whether the provision in the marupat to grant a renewal is binding on the 1st defendant. This isgue cannot be said to be very happily worded. But it is capable of meaning that if the lease was beneficial to the family it would be binding on the first defendant in O. S. No. 2+of 1915 who is the present stanom holder. That question however has not been tried by either of the lower Courts; and we think it is necessary in the view we take of the lease, Ex. A. that this issue should be tried before the two suits could be disposed of, if it be found that the lease is binding on the present stanom-holder having regard to the provisions ot law already set out, that the appellant, plaintiff in suit No. 61, of 1915, will be entitled to a decree for specific performance in the terms mentioned above, that is to a renewed lease for 12 years dating from the expiry of the lease of May 1902, without any covenant for a further renewal. The rent will have to be ascertained in accordance with the provision of Ex. A. If the plaintiff in O.S. No. 61 of 1915, succeeded ultimately in obtaining a decree for specific performance, the suit O. S. No. 16, of 1915, will have to be dismissed with costs and his on suit 61 of 1915, will be decreed in his favour.

4. These Second Appeals therefore are allowed and the judgments of the lower Court reversed and the suits remanded to the court of first instance for disposal in the light of the above observations. The appellant will have his costs from the respondents. Only one Vakil's fee in both cases.


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