1. The question to be answered by the Full Bench. is whether a provision in a Kanom demise that a tenant shall pay to his landlord one-third of the price realised by leasing out the full growing forests for cutting trees is unenforceable as contravening the provisions of the Malabar Compensation for Tenants' Improvements Act (hereinafter to be referred to as the Act). The reference was necessitated by a conflict between two Bench decisions of this Court in -- 'Neelakantan v. Anantanarayana', AIR 1934 Mad 718 (A) and --'Sreedevi v. Kurikkal', AIR 1939 Mad 934 (B).
2. The suit out of which this reference arose was instituted in the Court of the District Munsif of Palghat for the recovery of Rs. 1336-12-11 being the one-third share of the amount realised by defendants by granting a felling lease of the reared forest comprised in the holding for Rs. 3800 and interest thereon The properties in question belonged in jenm Olappamanna Mana of which the plaintiffs are receivers appointed in O.S. No. 27 of 1938 Sub Court, Ottapalam, the defendants' family having held these properties on kanom demise ever since 1872. Part of the holding consists of a forest where fuel trees grow spontaneously and the mode of enjoyment of this forest is by granting a felling licence by the demises in four or five years. The material terms of the lease are as follows:
"It is further agreed that the reared forests existing in properties items Nos. 9, 10, 11 and 12 of the schedule have to be looked after by me and at the time when they are to be felled and sold away one-third of the sale proceeds thereof should be paid to the Mana by way of jenmabhogam (Jenmi's share)."
'The suit was brought on the strength of this provision in this document alleging that the defendants had realised a sum of Rs. 3800 by granting a felling lease of the forest. The suit was resisted on the grounds that the stipulation for the payment of 'jenmabhogam' to the jenmi offends against the provision of Section 19 of the Malabar Compensation for Tenants Improvements Act and that the lease was granted not for Rs. 3800 but only for Rs. 900. The Courts below decreed the suit finding that the consideration fixed for felling trees was Rs. 3800 as alleged by the plaintiffs and not Rs. 900 and that the term for payment of jenmabhogam is enforceable as it is not hit at by Section 19 of the Act,
3. In the second appeal the only question agitated is as to the validity of the said provision in the lease. When it came on before our learned brother Satyanarayana Rao J. he felt that the case had to be decided by a Full Bench in view of the conflict mentioned above.
4. The contention urged before us is the same as that urged in the courts below and before our learned brother namely, that such a provision as is contained in the lease in question is contrary to the provision of Section 19 of the Act. The short question, therefore, for consideration is whether the clause comes within the mischief of Section 19 of the Act.
5. Before examining the soundness of this contention it is necessary to set out the terms of Section 19 of the Act. The section runs thus:
"Nothing in any contract made after the 1st day of January 1886, shall take away or limit the right of a tenant to make improvements and to claim compensation for them in accordance with the provisions of this Act."........
It is the case of the appellant that the impugned provision in the lease limits the right of the tenant to make improvements and thereby comes within the first part of the section. He concedes that it does not come within the second clause namely the claim to compensation. It is urged that as a result of the provision for payment of one-third share by way of jenmbhogam the right to make improvements is fettered.
6. The main support for this argument is founded on -- 'AIR 1934 Mad 718 (A)'. The kaichit in that case contained a similar provision. In a suit for redemption, the plaintiff (who it may be mentioned was the predecessor of the present plaintiff) claimed one-third of the amount being the price of fuel trees cut from the forest growing on the demised land basing it on the stipulation in the kaichit similar to the one in the present case. The trial court did not grant this relief on the ground that it was opposed to Section 19 of Madras Act 1 of 1900. A Bench of this court consisting of Madhavan Nair and Jackson JJ. affirmed that decision. There is no discussion of the question as to how such a term offends against the provision of Section 19 of the Act. The learned Judges had not considered whether the felling of trees in that case was the purpose of effecting improvements and how the stipulation for payment of 'jenmabhogam' affected or put a limitation on the right of the tenant to make improvements.
In that case reference was made to the Full Bench decision in -- 'Raja of Cochin v. Kittunni Nair', AIR 1917 Mad 162 (2) (PB) (C), which decided that a provision for payment to the jenmi of kittikanom of Re. 0-8-0 per tree cut by a tenant did not contravene the provisions of Section 19 of the Act and was therefore enforceable. It was remarked that the case did not fall within the scope of the Full Bench decision as the levy was one-third the value of the firewood plants grown spontaneously and not a paltry kuttikanom of one-thirtieth as in the Full Bench case and that the levy was a periodical one. The learned Judges who decided that case overlooked the important fact that the Full Bench case related to trees planted by the tenant. A careful scrutiny of the facts stated by the referring Judges and the opinions expressed by the members of the Full Bench reveal that the trees, for the cutting of which the tenant was held to be liable to pay 'kuttikanom' were planted by the tenant. It is only on that basis that the learned Judges took the view that it is open to a landlord to stipulate for payment of kuttikanom or some fee according to a very general practice on the West Coast. It is therefore clear that -- 'AIR 1917 Mad 162 (2) (FB) (C)', does not govern a case of spontaneous growth of trees.
7. Mr. Viswanatha Aiyar, learned counsel for the appellant urged that after Act 1 of 1900 was passed the distinction between the trees of spontaneous growth and those planted by the tenant had ceased to exist and for that purpose drew our attention to Section 10 of the Act which provides that,
"When the improvement is not an improvement to which Section 9 applies, but consists of timber trees or of other useful trees or plants spontaneously grown during the period of the tenancy or sown or planted by any of the persons mentioned in Section 5, the compensation to be awarded shall be three-fourths of the sum which the trees or plants might reasonably be expected to realise, if sold by public auction to be cut and carried away."
It is argued on the terms of this section that irrespective of whether the trees were planted by the tenant or grew spontaneously the right to all the trees 011 the demised land vests in the tenant and he is therefore entitled to the use of all trees. The reason for awarding, by way of compensation, only three fourths of the value of the trees is for making allowance to the landlord who was required compulsorily to prevent them as was ruled by a Full Bench in -- 'Vesudevan Nambudiripad v. Valia Chethu Achan', 24 Mad 47 (FB) (D). But this argument is not tenable having regard to the fact that the later Full Bench (of five Judges) disapproved of this suggestion made in -- '24 Mad 47 (FB) (D)'. It was pointed out in -- 'AIR 1917 Mad 162 (2) (FB) (C)', that this suggestion failed to take account of tne fact that no such allowance was made under Section 9 regarding the improvements generally.
8. The learned counsel for the appellant cited to us another decision of this Court in --'Narayani Amma v. Kunchukuti Amma', AIR 1918 Mad 1115 (E), as supporting his proposition that Act 1 of 1900 has effected a transfer of ownership of the trees from the jenmi to the tenant. There the landlord claimed as damages the full value of the trees cut by the tenant by seeking to enforce a clause in the kanom demise that all the trees which were existing in the forest plots having grown there spontaneously and which were yet to grow belonged to the landlord and they could be cut and removed for the latter's purpose. A Bench of this Court disallowed this claim as in their opinion the condition as to cutting and carrying away the trees was obnoxious to Section 19 of the Act.
According to Courts Trotter J. such a clause put a limitation on the right of the tenant to get the compensation under Section 10 of the Act, when the cutting of trees did not amount to waste but was in the ordinary course of prudent forestry. Seshagiri Aiyar J. put it on the grounds that the clause in question would impede the operations of the tenant in making the improvements if the landlord should enter upon the land at any time, he liked and cut and carry away the trees and also that it prevented the tenant from getting compensation under Section 10 of the Act as nothing would be left outstanding at the time of eviction. It is thus seen that Seshagiri Aiyar J. laid more emphasis on the offending provision as having the effect of interference with the tenant's right to make improvements. We do not think this case has any direct bearing on the question to be answered by us.
9. Reliance was next placed on -- 'Krishnacharya v. Anthakki', AIR 1916 Mad 939 (P). The opinion expressed by Spencer and Kumaraswami Sastri JJ. was that a Mulgeni tenant was entitled to cut and appropriate the trees on the holding whether planted by him or grown spontaneously so long as he did not interfere with the trees existing on the date of the lease and the nature of the holding was not changed in the absence of a prohibition in the lease. This cannot have any application to the present case, firstly for the reason that -- 'AIR 1916 Mad 939 (F)', was not a case of Malabar lease governed by a special enactment and secondly in that case there was no clause in the lease prohibiting the cutting of the trees; whereas in the instant case the parties have agreed as to how the income is to be shared between the parties. So that case cannot be treated as illustrative of the position contended for by the appellant. In fact it is not regarded even in -- 'AIR 1918 Mad 1115 (E)', as authority for the proposition that the tenant is the owner of the trees of spontaneous growth in a Malabar lease.
10. We do not also think that S. 10 of the Act has any bearing on the present enquiry. That section will come into play only when a tenant is evicted or a kanom is redeemed. Under the Malabar Compensation for Tenants Improvements Act of 1887, a tenant was entitled to the full compensation in respect of trees planted by him, while the amount of compensation payable to him as regards the trees of spontaneous growth was limited to the cost of maintenance and protection. The Act 1 of 1900 brought about a change in this respect by enacting Section 19, the provisions of which have already been extracted. As has been already pointed, the purpose of that section is to fix the amount payable to ejected or outgoing tenants in respect of improvements existing at the time of eviction or redemption and is not attracted when the tenancy is in force.
11. In this case the tenancy have not been terminated and the claim is made only in respect of trees which are periodically cut as a mode of employment and not for the purpose of effecting improvements.
12. Mr. Viswanatha Aiyar then fell back upon -- 'AIR 1917 Mad 162 (FB) (C)'. According to him this case supports the ruling in -- 'AIR 1834 Mad 718 (A)', being authority for the position that if the fee demanded exceeds Re. 0-8-0 per tree it should be deemed to be unreasonable and acts as a fetter on the right of the tenant to make improvements and is therefore unenforceable. We do not think that the Pull Bench decision has laid down any such principles. For one thing the claim in that case was with reference to the planted trees. Secondly the Full Bench was only considering the question whether a demand for the payment of a kuttikanam or some fee to his landlord was in any way repugnant to the provisions of Section 19 of the Act. They had not to consider as to what fee could be reasonable and would not act as a fetter on the right of the tenant to effect improvements. In fact the kanom demise provided only for a payment of some fee of Re. 0-8-0 to the landlord for every tree felled by the tenant. The other provision that In case the consent of the landlord was not obtained before cutting the trees the tenant had to pay the full value of the trees was only 'in terrorem' and the enforcement of this latter clause was not insisted upon by the counsel for the landlord even before the Bench which referred the case to the Full Bench. The observations of Abdur Rahim J. are appropriate in this context:
"Even if the trees grew or were planted by the tenant after the grant of the lease there is nothing in the Act debarring the landlord from contracting for payment of a certain sum for each tree which the tenant may cut for the purpose of making Improvements, provided the payment demanded is not so unreasonable as to be prohibitive of the cutting of trees at all."
So the only test propounded in that case was whether the fee demanded could deter the tenant from effecting, any improvement.
13. The learned counsel also called in aid an unreported judgment of Leach C. J. and Lakshmana Rao, J. in -- 'L. P. A. No. 26 of 1943 (Mad) (G)'. We think that it has no bearing on the present case for the reason that it is governed by the earlier Act under which a tenant evicted from his holding was entitled to the full compensation for improvements effected by him or his predecessor.
14. It follows from the above discussion that -- 'AIR 1934 Mad 718 (A)', was wrongly decided.
15. Coming next to -- 'AIR 1939 Mad 934 (B)', we do not think we can accept the argument put forward on behalf of the appellant that the principle enunciated in that case is incorrect and is opposed to the provisions of Section 19 of the Act. In that case the question involved was whether a clause in the lease deed providing for payment by the tenant to the landlord of the full value of the trees spontaneously grown if cut by the tenant without the landlord's permission was inconsistent with 8. 19 of Act 1 of 1900. In the second appeal arising out of a suit by the landlord for damages, Venkataramana Rao J. had negatived the claim of the landlord to the full value of the trees on the ground that it was a fetter on the tenant's right to make improvements by protecting and maintaining trees and that the landlord was entitled only to a reasonable compensation which was fixed at one fourth of the value of the trees. This was reversed in a Letters Patent Appeal by Leach C. J. and Somayya J. who held that it was competent for the landlord to enter into an agreement of that kind so long as the act of cutting was not itself an act of improvement. It was found in that case that the trees were not cut for effecting improvements and that it was an act of waste committed for the tenant's own pecuniary benefit and the trees were of spontaneous growth. The Bench held that such a case was outside the scope of Section 19 and that the right of a landlord and tenant to agree upon the terms of tenancy could only be limited by a statute.
16. The correctness of this ruling is attacked on the ground that its ratio is in conflict with the principle underlying Section 10 of the Act. We have already pointed out that Section 10 is concerned with the compensation payable in respect of improvements existing at the time of the eviction or redemption. We are in entire agreement with the ratio of this decision. The intendment of Section 19 is only to safeguard the right of the tenant to make improvements and to claim compensation for them on termination of the tenancy. An agreement not affecting this right is not hit at by Section 19. Section 19 of the Act cannot stand in the way of the landlord and the tenant entering into an agreement as to the mode of enjoyment of the usufruct. The learned Judges thought rightly in our opinion that they were supported in their view by the Judgment of Ramesam J. in -- 'Kelu Nair v. Viyathan Mahadevi', AIR 1923 Mad 238 (H), in which the landlord was allowed full value of the trees claimed by him as compensation for the trees cut by the tenant. We regard -- 'Am 1939 Mad 934 (B)', as embodying the correct principle of law and that decision does not require reconsideration.
We do not see how a stipulation of the kind in question can in any way impede the right of the tenant to effect improvements. As has already been pointed out, the cutting of trees was not an act of improvement in itself and it was only a mode of enjoyment as such trees were felled periodically once in four or five years. Even assuming that it can be deemed to be an act of improvement, it could not be said that a claim to a one third share of the money received in this case could in any way deter the tenant from cutting the trees. It is only when the amount claimed is equivalent to the full value or is a major part of it, it may be said to be so unreasonable as to be prohibitive of the cutting of trees. In a case where the right to fell the trees is leased out to third parties, the operation of cutting and carrying away the trees would go on irrespective of whether a share of the amount realised by the tenant is paid to the landlord or not. The right of the tenant to make improvements is unaffected by such a stipulation. One answer is that the provision impugned does not offend against the provisions of Section 19 of the Act.
17. The second appeal and the civil revision petition are therefore dismissed. No costs.