1. The question in this second appeal is whether a usufructuary mortgagee from a subkanomdar is entitled to the benefits of Section 33 of the Malabar Tenancy Act. The appellant was the assignee of certain properties in respect of which the jenm right had been sold in Court auction, and on the same day on which the jenm right was assigned to the appellant the kanomdar also assigned his rights in the property to him. The appellant then brought a suit O.S. No. 82 of 1938, in the Court of the District Munsif of Parappanangadi, to redeem and recover possession of the suit properties. This suit was contested by the sub-kanomdars from the 16th defendant, defendants 1 to 8; and the present respondents, who were the 9th to 11th defendants in the suit and were in possession of the suit properties as usufructuary mortgagees from defendants 1 to 8, filed a petition, I.A. No. 186 of 1938, under Section 33 of the Malabar Tenancy Act, claiming that they were entitled to purchase the house and site situated on the property as a separate kudiyiruppu. The trial Court decreed the suit but allowed the applications that the house and site should be treated as a separable kudiyiruppu, and the lower appellate Court dismissed the appeal of the plaintiff against the decision on the question which arose under Section 33 of the Tenancy Act.
2. Section 33 of the Malabar Tenancy Act provides that:
In any suit for eviction relating wholly or in part to a kudiyiruppu, which has been in the continuous occupation of a tenant or the members of his family for ten years on the date of the institution of the said suit, such tenant shall be entitled to offer to purchase the rights in the kudiyiruppu. of the landlord who seeks to evict him, at the market price on the said date.
3. The argument advanced in the lower Court against the respondents' claim seems to have been chiefly that 'landlord' in Section 33 means immediate landlord and that consequently persons holding from a sub-kanomdar were not entitled to purchase the jenmi's rights in kudiyiruppu. This argument was not accepted by either the trial or the first appellate Court on the ground that in other sections of the Act, 16 to 18, where it was intended that the tenant should be given rights to relief against his immediate landlord only, the term 'immediate landlord' is used. It is now conceded that the decision of the lower Courts on this point was right; and the argument put forward is that the respondents are not tenants within the meaning of the Malabar Tenancy Act. It is also conceded that the respondents are usufructuary mortgagees within the meaning of Section 58 (d) of the Transfer of Property Act, and that they had been in continuous occupation of the property for ten years on the date of suit.
4. 'Tenant' is defined in Section 3 (v) of the Malabar Tenancy Act as follows:
Tenant means 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 kuzhikanamdar, and a verumpattamdar of any description.
5. The appellant by the terms of his mortgage deed after paying himself the interest on the money advanced undertook to deliver annually to the mortgagor 100 cocoanut leaves and one bunch of plantains. It has been held that the surplus of the usufruct paid in this way by a usufructuary mortgagee to the mortgagor is not 'rent'. Vasudevan Nambudri v. Raman Nambudri : AIR1940Mad939 . That, however, does not conclude the matter for, by definition, a person may be a tenant within the meaning of the Malabar Tenancy Act who has paid not 'rent' but other consideration'. The question, therefore, is whether the respondent paid the consideration, namely, the leaves and bunch of plantains, or reserved the rest of the usufruct for appropriation towards interest 'for being allowed' by their mortgagor, the predecessor-in-title of defendants 1 to 8, to enjoy his land. In deciding in Vasudevan Nambudri v. Raman Nambudri : AIR1940Mad939 , that the surplus paid by a possessory mortgagee to his mortgagor after appropriating part of the usufruct to the interest due on the mortgage money was not rent, Patanjali Sastri, J., who delivered the judgment of the Court referred to and followed the decision in Venkateswara v. Kesavashetti I.L.R. (1879) Mad. 187. That was a case of the possessory mortgage of certain premises. 'Rent' for the premises was fixed at Rs. 16-12-0. Out of this Rs. 14 was appropriated towards the payment of the interest on the principal and Rs. 2-12-0 was to be paid 'as rent' to the mortgagor. The premises were burned down. The rent ceased to be paid, and the mortgagor sued for recovery of the site and the arrears of rent. In holding that the suit ought to be dismissed Innes, J., observed as quoted in Vasudevan Nambudri v. Raman Nambudri : AIR1940Mad939 .
The gist of the agreement was not a letting of the premises with a rent reserved, but a usufructuary mortgage of the premises with a certain small portion of the income of it made payable to plaintiff.
and he also observed:
The application of the income of the premises is properly an item in the account between the mortgagor and mortgagee which cannot at present be taken.
Muthuswami Aiyar, J., said:
I take the defendant to have really got into possession not as a tenant -not because he engaged to pay the plaintiff Rs. 2-12-0 a month for the use of the warehouse-but as a mortgagee, and because of the assignment of the usufruct in lieu of interest amounting to Rs. 14 per mensem.
6. It seems, therefore, that the surplus of the usufruct paid in the form of cocoanut leaves and plantains is neither rent nor consideration for being allowed to enjoy the land within the meaning of Section 3, Sub-clause (v) of the Malabar Tenancy Act. The question remains whether the part of the usufruct reserved and appropriated towards the interest on the mortgage money can be regarded as consideration 'for being allowed to enjoy the land'. The observation of Muthuswami Aiyar, J., that the defendant in that case got into possession 'as a mortgagee, and because of the assignment of the usufruct in lieu of interest' perhaps indicates that the reservation of the usufruct would be consideration for the enjoyment of the land. Innes, J., however said that the application of the income from the premises was properly an item in the account between mortgagor and mortgagee, and that, it seems to me is the true view. A usufructuary mortgagee gets possession of the mortgaged property by virtue of his mortgage as security for the mortgage money. He has, however, to account for the income from the property, and the reservation of part of the income towards interest and the payment of the balance to the mortgagor are not consideration for the enjoyment of the land but are no more than items in the account between mortgagor and mortgagee.
7. Section 3(v) of the Act states that the definition of tenant includes 'an intermediary, a kanamdar, a kuzhikanamdar and a verumpattamdar of any description'. The enumeration is, of course, not exhaustive, but apart from intermediaries, the specific inclusion of occupiers under well-known Malabar tenures which are defined in the Act itself while a 'usufructuary mortgagee' is neither defined nor included would seem to indicate that it was not the intention of the Legislature that the definition of 'tenant' should cover a usufructuary mortgagee or that a usufructuary mortgagee should be entitled to the benefits of the Act.
8. It is argued by learned Counsel for the respondents that a usufructuary mortgagee is by definition a tenant for the purposes of the Malabar Compensation for Tenants' Improvements Act. I do not see that this helps the respondent. On the contrary, if the Legislature had intended that the Tenancy Act and the Tenants' Improvements Act should be applicable to the same categories of persons there seems no reason why the definition of tenant in the latter and earlier Act should not have been incorporated in the Tenancy Act. But that has not been done.
9. The appeal is therefore allowed. I see no indication that this point of law was raised in the lower Court. The appellant will pay his own costs of the appeal.
10. Leave to appeal is granted.
11. (This appeal having been set down for 'being mentioned' this day the Court delivered the following Judgment):
The only further order necessary is the direction that the appellant will be entitled to recover possession of the kudiyiruppu on payment into Court for payment to the respondents of the sum of Rs. 21-10-5 in addition to the amount already ordered in respect of the recovery of the other items. One month's time for deposit.