Coutts Trotter, J.
1. This is an appeal by the plaintiffs from the decision of the Subordinate Judge of Palghat. The suit was brought to redeem a kanom demise, dated the 20th October 1895. The kanom demise was in renewal of prior demises dating from 1887 and 1873. So that while the actual contract of tenancy out of which the suit arises dates from 1895, the defendants or their predecessors-in-title may in some sense be said to have been tenants of the plaintiffs since 1873.
2. The first point raised in the appeal was as to the identity of certain lands sought to be redeemed.
3. [His Lordship goes into the evidence on the question and agrees with the Subordinate Judge.]
4. The next point taken by Mr. Rosario raises questions of interest and difficulty. The kychit of 1887 contains the following clause 'Without making such a payment (i.e., of the seigniorage) to you for your jenmi right and satisfying you, no trees will be cut'. This seems to imply that the jenmi had rights of ownership in the trees. But it is not necessary to consider this matter, because the really material clause is the clause in the later kychit of 1895 which deals much more explicitly with the subject of trees and it is this clause which in my view decides the rights of the parties.
5. It is as follows : 'As parambas Nos. 3 and 4 of the schedule are forest plots, all the teak, rosewood trees, etc., which are in them now, having grown there spontaneously and which are yet to grow belong to you and they can be cut and removed for your purposes.' The dispute which has arisen between the parties relates to certain trees which must be taken to have grown spontaneously on the property, some during the currency of the present tenancy, i.e., since 1895, others between 1873 and 1895. The tenant just before the expiration of the tenancy cut down and removed a large quantity of these trees and the landlord claims that they all belonged to him either at common law or by virtue of the terms of the kychit. A further question arises with relation to other trees of spontaneous growth which the tenants left standing on the property and for which they have been awarded compensation under the Malabar Compensation for Tenants Improvements Acts of 1887 and 1900.
6. The Act of 1887 has for its broad purpose to award compensation to ejected and outgoing tenants for improvements on the demised property effected by them the future benefit of which enures to the landlord. Section 3 defines improvements and enacts that certain specified works should be presumed to be improvements until the contrary is shown. Among such 'improvements' are the following: (h) the planting, protection or maintenance of fruit trees, timber trees and other useful trees and plants : (i) the protection or maintenance of such trees, the same having grown spontaneously during the tenancy. Section 6 enacts in general terms that the compensation to be awarded is the amount by which the value, or the produce of the holding or the value of that produce is increased by the improvement; and certain guides are given to enable the Court to arrive at that value. Section 7 enacts in effect that any stipulation in a contract between landlord and tenant made after the 1st January 1886 shall be void so far as it contravenes the provisions of the Act. This Act was repealed by the Consolidating Act of 1900; but it has to be remembered that it was the Act in force at the time when the kychit of 1895 was executed. The Act of 1900 is a more ambitious and elaborate enactment than its predecessor; but it can hardly be said to be an advance upon it as regards felicity I of expression or clearness of drafting. Section 4 takes the place of Section 3 of the old Act; Sub-Section (h) practically exactly corresponds to (h) of old Act: but Sub-Section (i) of the old Act is gone. By Section 5(1) every tenant shall on ejectment be entitled to compensation for improvements which have been made by him or his predecessor-in-title. By Section 6(1) where a claim is established for compensation under Section 5, the Court is to determine the amount of compensation by the method provided in Sections 9 to 18. For the purposes of this case, ii is necessary to examine the provisions of those Sections, and I may shortly summarise them as follows: - For improvements other than those relating to trees the compensation is arrived at by a calculation based on the present value of the improvement together with the cost of its execution. Where the improvement consists of trees spontaneously grown during the period of the tenancy or planted by the tenant or his predecessors, the compensation is to be three-fourths of the value which the timber would fetch if cut and sold in the open market (Section 10). Where the improvement consists of trees not planted by the tenant or his predecessor or of trees spontaneously grown before the commencement of his tenancy the compensation is to be calculated on a lower basis designed to arrive at the amount due to the tenant for his labour for their protection and maintenance, Mr. Rosario's able argument is as follows. The policy of the Act of 1900 is to give to the tenant compensation on a large scale for those improvements which but for the Act he would, up to the time of ejectment be entitled to treat as his own property and remove, and to give him compensation on a less generous scale for 'improvements' which can only be regarded in the light of maintenance and care of the landlord's property. The Act for the first time brings within the category of improvements for which the more generous rate is awarded trees of spontaneous growth, and therefore he says must be regarded as having intended for the first time to declare such trees to be the property of the tenant, the necessary corollary being that without the Act they would be and before the Act were the property of the landlord, At the time when the Kychit of 1895 was executed, the Act of 1900 was not in force and therefore there was nothing to prevent the parties from making what agreement they pleased with regard to the treatment of the timber. Accordingly there was nothing illegal or invalid in the clause of the Kychit which provided that the teak and other trees which had grown spontaneously and were yet to grow belong to the landlord and could be cut and removed by him. In so far as the ownership of the trees is concerned there is nothing retrospective in the Act, for although Section 19 is retrospective in so far as the right of the tenant to make improvements and to claim compensation for them is concerned, it does not otherwise purport to have a retrospective effect and therefore can have no effect upon his claim for damages for trees cut down during the tenancy, though it is conceded that it will have retrospective effect on the tenants' claim for compensation for trees left on the land, at any rate from the coming into force of the Kychit of 1895 since Section 19 is retrospective in the case of all instruments later than the 1st of January 1886. Mr. Rosario's position then as I understand it may be summarised as follows : Before the passing of the Act of 1900 all spontaneously grown trees accrued to the landlord, the owner of the soil. By the Act of 1900 the ownership in trees of spontaneous growth was transferred from the landlord to the tenant: but in so far as that transfer of ownership was effected, it only operated in the case of trees which first came into being after the passing of the Act. On this footing the landlord will be entitled to damages in respect of all spontaneous timber cut and removed by the tenant whose growth was earlier than 1900. With regard to the tenant's claim for compensation the policy of the Act is to give him generous compensation only for what is to be regarded as his own property, and the Act not, as has been pointed out, being retrospective in this respect, the parties are bound by the kychit of 1895 which at the time it was made was a perfectly legal stipulation and the tenant can only recover what I may call the full compensation for trees of a growth subsequent to the passing of the Act. For those of earlier growth he will be relegated to the lower scale of compensation provided for in Sections 11 and 13.
7. Mr. Rosario very candidly admitted that it was vital to this argument to follow him in his first contention that the Act effected a change of ownership in the case of trees of spontaneous growth from the landlord to the tenant. I am unable to accept that contention and do not think that the Act deals or was intended to deal with questions of ownership at all but is confined to the question of compensation. I may add that I do not think that the amount of compensation awarded by Section 10 of the Act in the case of spontaneously grown trees, namely three-fourths of their value throws any light on the question whether or no the Act intended to effect a change of ownership. I do not think it is necessary in an Act so loosely drafted as this to follow Mr. Menon's minute deductions from the language of Sections 5 and 6 and say that the Act enacts that a tenant who passively allows trees to take root and grow on the land is 'making improvements' within the meaning of the Act. I think it is sufficient to say that the Act in enumerating certain things for which the tenant should be given compensation, the great majority of which can be properly described as improvements made by him, includes in the list spontaneously grown trees which can hardly be properly described as 'improvements' and certainly cannot be said to be made by him or anybody else. I am there-fore of opinion that the Act awards compensation to the tenant in respect of all spontaneously grown timber left on the holding on ejectment which came into existence either during the term of the tenant or that of his predecessor provided that no compensation has already been paid for it. It is conceded that on this construction in the preseut case the tenant will be entitled to compensation on what I may call the larger scale in respect of all trees which came into existence in 1873 or any subsequent year.
8. With regard to the landlords' claim for damages for trees cut and removed by the tenant the position is this. If the trees in question were. the property of the tenant he is obviously entitled to do what he likes with them. I have already held that the Act 1900 does nothing to alter the position with regard to this or vest a new ownership in the tenant. Then it is said that whatever may have been the position at common law, the provision in the kychit of 1895 clearly vests the Ownership in the landlord. It therefore becomes necessary to examine that clause in the contract and see whether it is obnoxious to the provisions of Section 19. It is clear that under the Act the tenant would be entitled to claim compensation for all spontaneously grown trees which he left standing at the end of his tenancy. It follows that a contract which allows the landlord to come on the land and cut and remove such trees must necessarily limit the right of the tenant to claim compensation for such improvements. I therefore hold that the provision in the kychit that the landlord may cut and remove these trees is contrary to the Act and bad. It is argued that the early words which purport to give the property in the trees to the landlord are separable and do not contravene any provison of the Act. Treating them as separable I do not think they help the appellant, because in my opinion they do not form an operative portion of the clause but are merely declaratory of the supposed rights of the parties. Some Judges of this C6urt have expressed the opinion that trees of spontaneous growth become the property of the tenant at common law apart from any question of the effect of the statute. See Krishnacharya v. Anthaki (1915) 29 M.L.J. 314. I do not however clearly follow the reasoning by which this conclusion is attained and should be inclined myself to the view that that which came to grow on the land naturally became the property of the ultimate owner of that land; but I do not think it is necessary to decide that question for the purposes of this case. During the tenancy the tenant is entitled to cut down trees in the ordinary course of prudent forestry though they may belong to the landlord. His only obligation is to return the property in substantially the same condition as he took it and to abstain from any act of the nature of waste, No allegation is made in this case that there has been any substantial diminution in the value of the property during the term by reason of the cutting of these trees, nor is there any allegation of any act in the nature of waste. In these circumstances I think the landlord's claim for damages fails.
9. The last point taken in appeal relates to the price which the learned Subordinate Judge has fixed for the paddy. The Fort St. George Gazette of the 11th March 1913 fixes 21-23 as the number of Imperial seers per rupee and proceeds to set out the equivalent for that in the Walluvanad Taluk as 1740 Macleod's seers. The learned Judge apparently holds that Macleod's seers in the notification is a mistake for edangalies for the reason that the local measures in use in the taluk are not Macleod's seers but edangalies or narayams. This appears to me to be quite arbitrary and unwarrantable, and the Judge's finding in this respect must be reversed and the case sent back for a fresh finding on this issue. Six weeks for finding and seven days for objections.
10 We are also asked to direct an enquiry to be held as to which of the trees were anterior to 1873 and which were subsequent to that date. We asked Mr. Rosario at the last hearing and he said that all that he could suggest was there might be two trees which went back to that date. I am extremely doubtful if even these could be identified with certainty and even if they could be we think the expenses of having a finding on the point will be far in excess of any possible advantage that might result to either party from it. We do not therefore think it necessary to call for a finding on this point.
Seshagiri Aiyar, J
11. I agree.
12. On the question of the identity of the properties mortgaged I agree with my learned brother that the conclusion of the Subordinate Judge is right.
13. [His Lordship then considers the evidence on the point.]
14. The main contention is, that trees of spontaneous growth which came into existence before Madras Act 1 of 1900 was passed are the property of the jenmi, and that the declaration of the defendant in Exhibit A admitting the right of the jenmi is binding on him. The first mortgage was granted by the predecessor in title of the plaintiff to the defendant in 1873. It was renewed in 1887 by Exhibit VII and finally by Exhibit A in 1895. On the question of the right of the trees no judicial pronouncements have been quoted to us on either side. Mr. Rosario relied upon certain observations in Narayana v. Narayana I.L.R. (1884) M. 284 as indicating that the trees under the customary law of Malabar belong to the landlord. I do not think that this suggestion is borne out by the judgment. What the learned Judges say is that they were not aware of any law which recognised in the Kanomdar the right to compensation on account of trees of spontaneous growth. As I understand the judgment, it only lays down that prior to the passing of the Act of 1887 and the Act of 1900 it was not competent to the tenant to compel the landlord to purchase him out with reference to trees of spontaneous growth. The contention of Mr. Menon on the other hand that the trees belong to the tenant is not sustained by the authorities quoted by him. No doubt in Krishnacharya v. Anthaki (1915) 29 M.L.J. 314 a case from South Canara, the learned Judges inclined to the view that trees of spontaneous growth belong to the tenant in possession; but they say 'the appellant' (the landlord) 'has not adduced any evidence of custom or usage by which he is entitled to such spontaneous, growths.' I do not think that that decision is clear authority for the position that tenants are owners of trees of this description in Malabar. On the other hand, that the decision in Vasudevan Nambudripad v. Valiachathu Achan I.L.R. (1898) M 47 which seems to concede that the landlord can restrain the tenant from removing certain trees during the continuance of the tenancy, may by implication be said to lay down that the landlord is the owner of the trees. I do not consider that Vasudevan Nambudripad v. Valiachathu Achan I.L.R. (1898) Mad. 47 decides the right of the landlord any more than I consider that Krishnacharya v. Anthaki (1915) 29 M.L.J. 314 gives the right to the tenant. In the first edition of his work, Mr. Wig Ram who had considerable experience of Malabar says that 'it is the practice of the Courts to hold that in a Kuzhikkanam or ordinary kanom or any superior tenure there is an implied covenant to compensate for all unexhausted improvements.' This would seem to imply that it was open to the tenant to have exhausted the improvements during the continuance of the tenancy. In this state of the authorities I feel great difficulty in giving a decision regarding the respective rights as to the ownership of the landlord and the' tenant in trees of spontaneous growth. In this case it does not seem necessary to give a definite opinion on the question as I think that the second appeal can be disposed of upon other grounds.
15. I do not think that the two Acts, Act I of 1887 and Act 1 of 1900 should be construed as in any way declaring or defining the rights of the landlord and the tenant to trees of spontaneous growth. They were intended to fix the amount payable to the outgoing tenant or mortgagee as the case may be, in respect of improvements existing at the time of the eviction of redemption. The principle adopted in the Acts is to compensate the tenant for the labour expended by him on the land, irrespective of the question whether be had acquired a proprietary right to the trees or not. This is rendered clear by a reference to Section 3 Clauses (h) and (i) of the Act of 1887. Clause (h) refers to the trees which have been planted, and includes in the amount of compensation to be awarded the cost of planting them. Clause (i) which deals with trees of spontaneous growth restrict the right of compensation to the cost of protection or maintenance. From these two clauses the conclusion is irresistible that in the case of trees planted by the tenant as well as in the case of trees of which he is only the care-taker, the compensation has reference not to the proprietorship in them but to the labour spent by the tenant in either rearing or protecting them. The Act of 1900 by Section 18 carries out this principle a step further by fixing a different scale of fees in respect of trees which have grown spontaneously, from the scale applicable to trees planted by the tenant himself. Therefore in applying the two Acts it is got necessary to decide the question whether the trees belong to the landlord or the tenant. It is well settled that in awarding the compensation we have to be guided by the Act which is in force at the time of the decree. See Kozhikot Srimana Vikraman v. Modathil Ananta Pattar I.L.R. (1910) M. 61. Therefore the only question that need be considered in this second appeal is the quantum of compensation payable and not the proprietorship in the trees. Mr. Rosario raised the point that, as the contract of mortgage on which the suit is brought was entered into in 1895, the tenant is only entitled to compensation as regards trees which were either planted by him after the contract or which came into existence after 1895. Prior to the passing of the two Acts there was some little doubt as to whether a tenant who obtains a kanom can claim to stand in the shoes of those whom he had succeeded. Mr. Holloway was of opinion that 'reason, convenience and the principle of the law all point to the date of renewal as that from which improvements to be paid for are determined or calculated.' This dictum apparently did not find favour with the learned Judges of this Court in Mupmagari Narayanan Nair v. Virupatchan Nambudiripad I.L.R. (1881) Mad. 287. They point out that no invariable rule can be deduced on this point, but that the question must be decided on the evidence as to custom adduced in each case. When the Act of 1900 was passed, Section 5 provided that every tenant shall be entitled to compensation for improvements which have been made by him, his predecessor in interest or by any person not in occupation at the time of the ejectment who derived title from either of them. It follows from this that a tenant who has obtained a renewal is entitled to claim compensation for improvements made during his first tenancy; for if a tenant is entitled to compensation for improvements made by his predecessor, a fortiori he is entitled to compensation for improvements made by himself during his first tenancy. Therefore in my opinion the defendant is entitled to compensation for all improvements which came into existence since the commencement of his first tenancy in 1873. See also Thekkemanegath Raman alias Kochu Poduval v. Kakkasseri Pazhiyot Manakkal Karnavan : AIR1915Mad1215 Per Sadasiva Aiyar, J.
16. The further contention raised by the learned Vakil is that the Clause in Exhibit A which says that the trees which have grown spontaneously and which are yet to grow 'belong to you and they can be cut and removed for your purposes,' does not offend against the provisions of either Act 1 of 1887 or of Act 1 of 1900 and that it is binding on the defendant. The argument is that this clause does not either take away or limit the right of the tenant to make improvements; it was conceded that if the clause operated in that direction it cannot be binding upon the defendant. I am unable to agree that the effect of this clause is not to restrict the tenant in his right to make improvements. The clause implies that the landlord can enter upon the land and cut and carry away the trees. It would impede the operations of the tenant in making improvements if the landlord is permitted to enter on the land, whenever he chooses to cut and carry away the trees. Further, it undoubtedly debars, the tenant from claiming compensation, because if the landlord cuts and carries away the trees, nothing will be left outstanding at the time of eviction, and the tenant would be disentitled to compensation if they are not there. I therefore think that the clause in Exhibit A is opposed to Section 19 of the Act of 1900 and Section 7 of the Act of 1887.
17. One other contention of the learned vakil may be dealt with in this connection before dealing with the value of paddy. Mr. Rosario contended that he ought to be given damages for the trees of spontaneous growth which the tenant had unlawfully cut and carried away during the tenancy. This proposition implies that the landlord was the owner of the trees. With reference to this contention, it may become necessary to decide the question whether the landlord or the tenant is the proprietor of the trees, if the clause which declares the right of the landlord to the trees is not opposed to Section 7 of Act 1 of 1887 and Section 19 of Act 1 of 1900. I have already stated that the condition as to cutting and carrying away the trees is obnoxious to both the sections. It is impossible to separate the clause as to ownership from the clause which entitles the landlord to enter upon the premises to cut and carry away the trees. The contract as to an essential portion being unenforceable, it is void in its entirety. See Section 24 of the Contract Act. As the right to damages was rested upon this admission of the landlord's right by the tenant in the contract of 1895, and as I hold that this contract is not binding on the defendant it is unnecessary here again to consider the broader question raised by Mr. Rosario regarding the ownership in the trees.
18. On the third question raised by Mr. Rosario as to the value of the paddy it seems to me that the Subordinate Judge's judgment is unsatisfactory. There are a number of surmises in paragraph 20 for which we have not been referred to any evidence in the case. The Commissioner has given a valuation which the Subordinate Judge says he is unable to accept. In that case he was bound to have looked into the evidence and to have arrived at a finding on it instead of indulging in speculations as to whether the Government notification rightly fixes the proportion between the Imperial Seer and the Macleod's Seer. The Subordinate Judge's conclusion upon this point cannot be sustained and he must be asked to return a fresh finding regarding the price of paddy.
19. [In compliance with the order contained in the above judgment, the Temporary Subordinate Judge of Palghat submitted a finding as to the rate at which the price of paddy should be calculated. On the evidence he held that the price should be calculated at the rate of 17 1/2 edangalis per rupee.]
20. This Second Appeal coming on for final hearing after the return of the finding of the Lower Appellate Court upon the issue referred by this Court for trial
21. We accept the finding. The Second Appeal is dismissed with costs. Time for redemption will be 4 months from this date.