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Patinhare Valappil Pokker Vs. Alakkal Kunheethutti and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai
Decided On
Reported inAIR1940Mad186; (1940)2MLJ603
AppellantPatinhare Valappil Pokker
RespondentAlakkal Kunheethutti and ors.
Excerpt:
.....these matters do not affect the decision of the general question whether section 26(1) does apply to a case of this kind, that is, to a case of renewal of only a portion of the original holding which had been demised on sub-kanom in favour of the tenant in actual possession. as this is the only ground on which the decrees of the courts below are attacked it follows that this second appeal must fail......the tenant in actual possession must be in respect of the entire original holding created by the jenmi in favour of the intermediary. the relevant words are : 'and the tenant in actual possession of the holding'. it is not disputed that the word 'tenant' found in this section would include a sub-kanomdar like the twenty-seventh defendant. if he is a tenant in actual possession of the holding., the holding can only refer to his holding, that is, the holding or parcel of land included in the engagement to which he was a party and cannot be taken to snean the holding created by the engagement entered into by his landlord with the superior landlord or jenmi. as the section also clearly provides - and indeed the section seems to have been enacted expressly for the purpose - for cases where.....
Judgment:

Pandrang Row, J.

1. This appeal comes before us as a result of the order made by Burn, J., to the effect that an important question is raised in this appeal arising out of the Malabar Tenancy Act which frequently comes up for decision and on which there is no authority. This question is whether the renewal in respect of a part of the original holding by an intermediary in favour of the tenant in actual possession of that part is not permitted under the Malabar Tenancy Act, XIV of 1930. Before dealing with this question a few necessary facts have to be stated. The first plaintiff in the suit is the jenmi of the properties and the second plaintiff is an assignee of his in whose favour the plaintiff prays for a decree. Five items of properties were demised on kanom tenure by the first plaintiff in favour of the tarwad of defendants 1 to 20 under Ex. A of 11th September, 1911. One of these five items was set apart in favour of the third defendant whose assignee subsequently got a. renewal from the jenmi in respect of that item. We are therefore not concerned with that item in this case. The 31st defendant purchased the tarwad's kanom right in the remaining four items in a Court sale. The twenty-seventh defendant is the sub-kanomdar of a part of one of these four items, namely, of item 3. The plaintiff filed a suit for redemption of Ex. A and while the suit was pending the twenty-seventh defendant put in an application purporting to be under Sections 22 and 23 of the Act for a renewal in respect of the portion of item 3 in his possession and making the plaintiffs as well as the thirty-first defendant party respondents. This application after several adjournments came on for hearing on the 5th September, 1935, the very day on which the suit itself came on for hearing and was actually tried. It is clear from the order of the trial Court made on this date on the petition as well as from the statement contained in para. 19 of the judgment of the Trial Court that the parties agreed to the following course being adopted, namely, the twenty-seventh defendant was content with getting a renewal only from the thirty-first defendant and the question, whether such a renewal granted by the thirty-first defendant would be of any force as against the plaintiff, was left to be decided in the suit which was to proceed on the basis that the renewal had already been granted by the thirty-first defendant to the twenty-seventh defendant. Having regard to the course taken during the trial of the suit and the hearing of the petition based on the agreement of the parties, it is not possible in our opinion to allow either party now to resile from the position then agreed to, that is, on the 5th September, 1935, by the parties concerned. It is therefore not open in our opinion to the appellant, that is, the second plaintiff, to contend in this second appeal that the renewal as between the defendants. 27 and 31 must be deemed to be regarded as invalid even as between the parties thereto, either because it was a renewal granted during the pendency of the suit, or on the, ground that it was actually granted after the suit had been disposed of. No such objection is available to the appellant in. view of his agreement at the trial to proceed on the basis that a renewal had been granted already by the thirty-first defendant to the twenty-seventh defendant. The only question therefore which remains is what has been mentioned at the outset, namely, whether the renewal of a, portion of item 3 by the intermediary in favour of the tenant in actual possession is binding on the plaintiffs, that is, on the jenmi; in other words, whether Section 26 of the Malabar Tenancy Act of 1930 which expressly provides what effect renewal should have on the rights of the landlords, applies to cases where the renewal is of only a portion of the original holding and does not take in the entire original holding. In Section 26 itself there is nothing to show that the provisions thereof are limited to cases where the renewal granted by the intermediary in favour of the tenant in actual possession must be in respect of the entire original holding created by the jenmi in favour of the intermediary. The relevant words are : 'and the tenant in actual possession of the holding'. It is not disputed that the word 'tenant' found in this section would include a sub-kanomdar like the twenty-seventh defendant. If he is a tenant in actual possession of the holding., the holding can only refer to his holding, that is, the holding or parcel of land included in the engagement to which he was a party and cannot be taken to snean the holding created by the engagement entered into by his landlord with the superior landlord or jenmi. As the section also clearly provides - and indeed the section seems to have been enacted expressly for the purpose - for cases where the grantor intermediary for his own part does riot obtain a renewal for any reason; in other words, the section is an exception to the general rule that a person cannot grant what he does not possess himself; and it was intended to guard or protect the interests of sub-tenants or sub-kanomdars who get a renewal only from their immediate landlord and not from the ultimate jenmi. It is clear from Section 26 that such sub-tenants or sub-kanomdars do derive a valid interest under such renewal obtained from the intermediary though subject to certain conditions which are contained in that section, one of which is that the landlord is to be free to evict the tenant on the ground specified in Section 20 other than the ground of non-payment of renewal fee. Unfortunately in the present case the ground on which eviction is sued for is the ground of non-payment of renewal fee, and the right to evict on this ground is not saved by Section 26. Some stress was placed before us on Sub-section 2 of Section 26 which provides for the recovery of the proportionate share of renewal fee by the jenmi from the grantor 6f the renewal, but we are of opinion that this does not affect the amplitude of the provisions of Sub-section (1) of Section 26. There may be, as suggested by the appellant's advocate, a misprint in the words 'such grantee of interest' in Sub-section (2), the misprint being 'grantee' for 'grantor' and it may be there may be some difficulty in exactly calculating the proportionate share of the renewal fee in certain given cases. But we do not feel called upon to decide these matters in the present case in which they do not arise. We are satisfied, however, that these matters do not affect the decision of the general question whether Section 26(1) does apply to a case of this kind, that is, to a case of Renewal of only a portion of the original holding which had been demised on sub-kanom in favour of the tenant in actual possession. This point must therefore be answered against the appellant, that is to say, Section 26(1) does apply to such renewals of even parts of the original holding. As this is the only ground on which the decrees of the Courts below are attacked it follows that this second appeal must fail. It is 'accordingly dismissed with costs.


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