Govinda Menon, J.
1. Exhibit B. 1 was a marupat executed by the deft on 7-1-1918, by which it was agreed that 120 seers of paddy would be paid as rent. This state of things continued till 15-2-1945 when the deft who was holding over-under the old Marupat renewed the same agreeing to pay a rent of 190 seers of paddy & 2 bunches of bananas. The present suit is forarrears of rent for two years, namely, the Malayalam years 1122 & 1123. During the pendency of the suit the deft filed an appln. for fixing the fair rent under Sections 11 & 12, Malabar Tenancy Act. It was contended on behalf of the deft that she will be liable to pay the arrears only at the rates decided as fair rent after the same is fixed under Sections 11 & 12 of the Act. The learned Dist Munsif held that this fixation cannot have retrospective effect & decreed the suit as prayed for.
2. The question depends upon the construction of Sections 28 & 32, Malabar Tenancy Act. Section 28 lays down:
'Every cultivating verumpattamdar shall be bound to pay his immediate landlord, fair rent as fixed under Section 12, provided that in the case of a cultivating verumpattamdar's holding existing at the date on which this Act comes into force, the rent payable on such holding shall be deemed to be fair rent for a period of 12 years from such date; unless the rent fixed under Section 12 has been taken into account for the purpose of calculating the renewal fee under Chap IV & there has been a renewal in which case, such rent shall be payable by the cultivating verumpattamdar from the date of renewal.'
3. What has happened is that the term fixed under the original marupat expired long prior to the coming into operation of the Malabar Tenancy Act & the tenant was holding over on the same terms as before under the provisions of the T. P. Act, & was paying rent according to the old agreement. But in 1945 there was a fresh agreement by which 190 seers of paddy & 2 bunches of bananas were agreed to be paid. It is contended on behalf of the tenant that she will be liable to pay only the fair rent fixed in accordance with the O. P. filed during the pendency of the suit, because Section 32 lays down that
'Notwithstanding any contract to the contrary, expressed or implied, whether entered into before or after the coming into force of this Act, no cultivating verumpattamdar shall be liable to pay to his landlord anything more or anything less than the fair rent & no tenant who is entitled to claim a renewal under this Act........'
From the wording of the first portion of Section 32, Mr. C. S. Swaminathan contends that the moment an appln. for fixing the fair rent under Section 11 has been filed by the tenant any claim regarding the arrears of rent shall be subject to the ultimate decision in the O. P. for fixing the fair rent. What the learned counsel contends is that the word 'shall be liable to pay to his landlord' should be understood as deciding that that shall be the fair rent even for past years during which rent accrued. The difficulty in agreeing with that construction is apparent from the wording of para 1 of Section 28, where it is stated that the cultivating verumpattamdar shall be bound to pay the fair rent as fixed under Section 12 of the Act. The expression 'as fixed' should connote only a subsequent date (i.e.) from the date of filing of the petn & not for any retrospective operation. Reading the two Sections 28 and 32 together, & especially in view of the expressions 'as fixed'& 'shall be liable to pay', I am of opinion that until & unless the fair rent has been fixed by Ct which fixation will relate back to the date of appln, the tenant cannot claim to take advantage of for an anterior period. The tenant will be entitled to pay the fair rent only after the date on which it is fixed by the Ct which fixation again will relate back only to the date of appln & cannot reduce the arrears of rent already accrued due by a subsequent declaration of the fair rent. This is the view which has been taken by the learned Dist Munsif, & I am not satisfied that this view is illegal or opposed to the provisions of the Malabar Tenancy Act. The C. B. P. is therefore dismissed with costs.