1. The petitioner here was the second respondent in the lower Court. The petitions arise out of an application by a tenant under Section 15 of Madras Act IV of 1938 to scale down rent due under a perpetual lease of the kind known as saswatham in Malabar. The jenmi of the land was the first respondent in the lower Court. The petitioner here is a usufructuary mortgagee from the jenmi and it is common ground that the tenant has attorned to him and the rent is payable to him. The lower Court held that the deposit made by the tenant of the arrears for the Malabar year 1113 could be accepted under Section 15 in order to entitle the petitioner to a proportionate reduction of the arrears for earlier years.
2. It is objected in revision, firstly, that the usufructuary mortgagee is neither a jenmi nor an intermediary and therefore the rent payable to him cannot be scaled down under Section 15 of the Act, secondly, that whatever be the position with reference to an ordinary lessee under a usufructuary mortgagee, rent payable under a perpetual lease to such a mortgagee cannot be scaled down.
3. The first contention challenges the correctness of the decision of one of us in C.R.P. No. 430 of 1940. That was a case in which the rent was payable by kanomdars who had attorned to a usufructuary mortgagee of the jenmi's right. It was held that the mortgagee was an intermediary, being entitled to possession by reason of an interest in land and having constructively transferred such possession to the kanomdars who had attorned to her. It is suggested that the words 'has transferred possession to others' in the definition of 'intermediary' in Section 3 (j) of the Malabar Tenancy Act can only refer to the person who has himself for the first time parted with possession in favour of others and would not include the case of a person who had constructively transferred possession by reason of an assignment from the original lessor and an attornment from a tenant. We are of opinion that such an interpretation of the definition is not in harmony with the scheme of the Malabar Tenancy Act. Particularly, it would make the provisions of Section 26 of that Act to a large extent ineffective for, in a great many cases, the intermediate holder of the land would not be the original lessor but the heir or assignee of the original lessor. We are of opinion that the words 'has transferred possession to others' must be read so as to include the person who stands in the shoes of the original transferee and to whom the tenant has attorned.
4. It was suggested that though the definition would include a transferee from the kanomdar who pays rent to the jenmi and collects rent from a subordinate tenant, it would not include a transferee from the jenmi himself. The argument is that the term 'intermediary' etymologically contemplates a sort of middleman who himself receives rent and pays rent to a higher . landlord. That is nothing in the definition to warrant the conclusion that a payment of rent by the intermediary is a necessary qualification. No doubt the definition of 'tenant' includes an intermediary, but from this fact we are not prepared to infer that an intermediary must necessarily be a person who himself pays rent. The term 'tenant' in the Malabar Tenancy Act is used in a very wide sense and it is only certain specific classes of tenants who are entitled to renewals or fixity of tenure in certain specified circumstances. Though no doubt, in the vast majority of cases the intermediary will be a person who both receives and pays rent, we are not prepared to hold that the payment of rent is a necessary qualification for inclusion within the definition of that term. We are therefore of opinion that C.R.P. No. 430 of 1940 was rightly decided and that in the ordinary case of a terminable tenancy where the usufructuary mortgagee has not himself granted the lease but has taken an attornment from the tenant, he must be deemed to be a person who, by reason of an interest in land, is entitled to possession, but has transferred such possession to others.
5. It remains to be seen whether the usufructuary mortgagee can be regarded as an intermediary when the tenant who has attorned to him holds under a perpetual lease granted by the jenmi. The argument is that the mortgagee is not entitled to possession of the land itself when that land has already been given on perpetual lease; therefore, though he may, on the reasoning of the decision already quoted, be deemed to have transferred possession to the perpetual lessee, he cannot be deemed to be entitled to possession by reason of his interest in the land. In any case where the land is held on lease by a cultivating tenant, the right to possession of the intermediary would only be on termination of the lease. There are several subordinate tenures contemplated in the Malabar Tenancy Act which are either permanent or capable of renewal at the will of the tenant. It would be a serious matter to hold that the subordinate landlord is not an intermediary unless his interest in the land entitles him to possession at some specified date. It is not, we think, correct to hold that, when there is a perpetual lease, the lessor is in no circumstances entitled to possession. He might become entitled to possession by surrender, or by forfeiture on the tenant denying the landlord's title, possibly also in other circumstances which we need not specify. It, therefore, appears to us that even under a perpetual lease there is existing a right of reversion, though it may not become effective except in unusual circumstances. That being so, we are constrained to hold that the usufructuary mortgage of the jenmi's right creates in the mortgagee an interest which entitles him to possession and that by reason of the attornment of the tenant to him, he must be deemed to have transferred such possession to the tenant. He is therefore an intermediary and the tenant is entitled to the benefits of Section 15 of Act IV of 1938 with reference to the rent.
6. The civil revision petitions are therefore dismissed with costs of the first respondent; one advocate's fee.