Alfred Henry Lionel Leach, C.J.
1. This suit was filed by the first respondent as the jenmi to recover from the members of a tarwad as kanomdars arrears. of rent for a period' of ten years and the amount which he had been compelled to pay to Government over a period of eleven years as land revenue in respect of the lands comprised in the kanom.
2. On the 21st January, 1893, the first respondent's predecessor created the kanom deed in favour of the appellant's tarwad. The term was 36 years. The deed provided that the jenmi should receive an -annual rental of 411 paras, 4 idangalis and 1 nazhi of paddy and gingelly oil to the value of Rs. 6. The kanomdars were required by the deed to pay to the Government what became due by way of land revenue. A re-settlement of land revenue took place in 1901 and in 1931 there was another re-settlement. On both these occasions the revenue payable to Government was increased.
3. The main questions raised by the defendants in the Court below were two in number. The first was whether the burden of the increased revenue fell upon the jenmi. The Subordinate Judge decided that the burden was to be borne by the kanomdars. Section 41 of the Malabar Tenancy Act, 1929, which came into force on the 1st December, 1930, creates a charge in favour of the jenmi in respect of ' renewal fees and arrears of michavaram or rent.' The defendants' second point was that this section is not retrospective in effect. The Subordinate Judge held that it was and on this basis he gave the plaintiff a charge for what he found had been paid in respect of arrears of revenue and rent, irrespective of whether the payments had fallen due before or after the passing of the Act.' In the appeal both these questions are again raised. All the members of the tarwad were made defendants, but the appeal has been preferred by the first, third and fourth defendants alone. They are the senior members of the family.
4. The kanam deed having stated that the pattam (gross rent) of the properties demised is 2507 paras of paddy proceeds as follows:
You should therefore hold the said properties in your possession and enjoyment, and cultivating them, pay to us a pattam (rent) of 411 paras, 4 idangalis, 1 nazhi of paddy, of the money value of Rs. 138 inclusive of para vasi (allowance for difference of measurement) duly dried, winnowed, cleaned, conveyed to our residence and measured out by our 40 nazhis para, after deduction of the interest due on your mortgage amount and the assessment on the properties due to the Government, from the said rent, together with the sundry payment of one para, two idangalis of gingely oil, of the value of Rs. 6, within the 30th of Makaram (10th February) of each year commencing with the year 1069 M.E. (1893-94) and duly take our receipt therefor.
5. For the appellants it is contended that inasmuch as there is reference in the deed to the gross yield of the land and it is stated that the jenmi is to receive his rent after deduction of the interest due on the mortgage and the Government revenue, the intention was to fix the kanomdar's liability on the basis of the revenue payable to Government at the date of the kanom. In other words, should the revenue payable to the Government be increased the jenmi was to be responsible for the payment of the additional amount. In this connection the decision of this Court in Krishnier v. Arappuli Iyer : (1904)14MLJ488 is relied upon. On the other hand it is admitted that another decision of this Court is very much against the appellants. This case is Tuppan Nambudri v. Chinna Part Kutti (1907) 18 M.L.J. 31.
6. In Krishnier v. Arappuli Iyer : (1904)14MLJ488 which was followed in Panigatan kanaranv. Raman Nair 3, this Court held that a usufructuary mortgagee in possession was not liable to pay enhanced revenue when the deed provided that the mortgagee was to pay the revenue levied on the land mortgaged and take the profits in lieu of interest.
7. The Court considered that in a deed of that nature the reasonable view was that the revenue payable under the settlement in force at the time of the execution of the mortgage was all that the mortgagee had undertaken to pay. The deed in the present case is very differently worded. The wording is very similar to that in the document considered in Tuppan Nambudiri v. Chinna Parikutti : (1904)14MLJ488 . There the instrument was a deed of mortgage which stated:
In consideration of an advance of Rs. 795-8-0 the mortgagee is to hold possession, for twelve years, of land yielding a pattam of 80 paras of paddy and Rs. 40 and is to pay a purappad of 12 paras of paddy and 12 fanams and 50 cocoanut leaves 'having deducted interest and Government revenue'.
8. The Division Bench which heard this appeal was of the opinion that there was nothing in the deed which could be read as constituting a contract contrary to the rule laid down in Section 76 of the Transfer of Property Act. As this last mentioned case is directly in point we must follow it, but we may add that we agree with the decision.
9. The kanom which we are now considering fixes the rent which the kanomdars shall pay to the jenmi and states that they shall pay the land revenue. The fact that in the earlier part of the document an estimate is made of the gross revenue of the land does not affect the very definite provisions which follow. Section 76 of the Transfer of Property Act requires the mortgagee in possession to pay the, revenue due to the Government, unless the mortgage deed contains a contract to the contrary. The deed granted by the first respondent to the appellants' tarwad cannot, in our judgment, be read as embodying a contract to the contrary. This disposes of the first point.
10. We also agree with the Subordinate Judge that the first respondent was entitled under Section 41 of the Malabar Tenancy Act to a charge in respect of the rent in arrears and also for what he had been compelled to pay to the Government by way of land revenue, notwithstanding that a portion of the total amount was paid in respect of years previous to the Act coming into force. Section 41 says:
Renewal fees and arrears of michavaram or rent due to the landlord, together with interest, if any, payable on the same shall be a charge on the interest of the person from whom they are due in the holding in respect of which they are due as at the time of the creation of such interest, and such charge shall have priority over all other charges on the same except the charge for the revenue and any dues thereon payable to Government or to a local authority and made a charge thereon by any law for the time being in force.
11. It may here be mentioned that in the course of his argument the earned Counsel for the appellants contended that this section almost does not give a charge to the jenmi for revenue paid by him, although his kanomdars had accepted liability for the revenue payable to the Government. He said that the concluding portion of the section indicates that so far as revenue is concerned the Government alone is to have a charge. This argument cannot be accepted. Section 3(g) defines the meaning of the term michavaram. It means whatever is agreed by a kanomdar in a kanom deed to be paid periodically, in money or in kind, or in both, to or on behalf oft the jenmi. The jenmi under the revenue law is assessed and is made liable for payment of the land revenue. Therefore when a kanomdar undertakes to pay the land revenue, he undertakes to pay it on behalf of the jenmi and what is so paid is michavaram. Section 41 gives a charge in respect of both the michavaram and rent.
12. We will now return to the question whether Section 41 can be deemed to have retrospective effect A statute of the nature of the Malabar Tenancy Act cannot be applied retrospectively unless in plain and unambiguous terms the Legislature shows that the intention was to give it retrospective effect. We consider that the scheme of the Act and the language used in Section 41 justifies the Court in holding that the Legislature intended to create a charge in respect of michavaram or rent owing at the time when the Act came into force. The object of the statute was to give persons in the position of the appellants fixity of tenure and in granting to the tenants something which they had not possessed before, the Legislature considered it right that the landlord should be given a charge for what was due to him by his tenants. When the Act came into force the appellants were given rights of permanent occupancy, but they were in arrears with their rent and they had failed to' pay to the first respondent what he had been compelled to pay to the Government by way of land revenue a liability which was theirs under the contract. It seems to us that the section must be read as applying to the position as it was at the time of the passing of the Act as well as to the future; otherwise tenants in arrears with their rent at the time of the passing of the Act would get fixity of tenure without discharging their obligations, which could never have been the intention. Moreover the wording of the section indicates that it was to have immediate effect. For these reasons, we consider that the Subordinate Judge was right in holding that there was a statutory charge in this case.
13. The appeal fails and will be dismissed with costs in favour of the first respondent.