John Wallis, C.J.
1. In considering whether a kanomdar had a right to cut and carry away trees planted by himself the Full Bench in Vasudevan Nambudripad v. Valia Chathu Achan I.L.R. (1901) Mad. 47 held that, whether the case was treated as governed by the Transfer of Property Act or not, the kanomdar had such a right in the absence of a contract or custom to the contrary and that Madras Act I of 1900 did not deprive him of it by requiring him to keep the trees upon the holding and have compensation assessed upon them. The case contains no reference to Section 19, and there was no occasion for the learned Judges to consider whether a contract not to cut and remove trees without the landlord's permission and to pay a fee when such permission was granted was invalid under that Section as taking away or limiting the tenants' right to make improvements. That section was no doubt intended to secure the tenants' right to make improvements as well as to claim compensation for them, and strikes at all attempts by contract to limit these rights either directly or indirectly. At the same time it must be construed strictly, and not extended to cases which cannot have been in the contemplation of the Legislature. Before the passing of the Act it was open to a landlord, when letting land suitable for planting trees and in consideration of the use and enjoyment of his land by the tenant, to stipulate either for payment of an annual rent or in some other way or for a payment of an annual rent plus a kuttikanam or stamp fee according to a very general practice on the West Coast. I do not think that the section was intended to affect stipulations for the payment of a moderate fee such as the kuttikanam claimed in the present case, or that such a stipulation can be regarded as limiting the tenants' right of making improvements by planting trees, or by cutting them down to make a clearance. If the trees planted by the tenant are left on the land at the determination of the tenancy, the tenant is only entitled under Section 10 to three-fourths of their value. The suggestion in Vasudevan Nambudripad v. Valia Chathu Achan I.L.R. (1901) Mad. 47 that this allowance was made to the landlord on the ground that his purchase of the trees is compulsory fails to take account of the fact that no such allowance is made under Section 9 as regards improvements generally. When the subject was before the Legislature in 1887 and 1899, Vasudevan Nambudripad v. Valia Chathu Achan I.L.R. (1901) Mad. 47 had not been decided and the respective rights of the landlord and tenant in trees planted by the tenant were still matters of controversy. In these circumstances there is considerable force in the contention urged upon us that one-fourth of their value was allowed to the landlord in recognition of the fact that the trees had been raised on his land.
2. If the stipulation is not open to objection as limiting the tenant's right to plant trees, still less can it be so as limiting his right to cut trees by way of clearance. In such a case the tenant, when cutting and carrying away the trees, gets far more after paying the kuttikanam than he would be entitled to as compensation on the determination of the tenancy which would only be three-fourths of their value in the case of trees planted by himself and those through whom he claims and only the cost of support and maintenance in the case of other trees. Further it must be borne in mind that it must be a question of fact in each case whether such felling is an improvement within the meaning of the Act.
3. Confining myself to the case before us, I would answer that a stipulation in a Malabar lease for the payment of kuttikanam to the landlord in respect of trees cut down is not contrary to the provisions of Section 19 of the Act. Other cases may be dealt with when they arise. In the meantime it may be sufficient to say that the Courts will not countenance attempts on the part of landlords to appropriate to themselves by means of contracts the interests in improvements which the Act was intended to secure to the tenants.
Abdur Rahim, J.
4. I agree in the answer proposed by the learned Chief Justice. The cutting of trees as suggested by COUTIS Trotter, J., in the Order of Reference may of itself be an improvement, but whether it is so or not must depend on the facts of each case, taking into consideration the nature of the holding, the kind and the number of the trees that are cut and the use that is sought to be made of the land. But this is not to be assumed as a general proposition as the question referred to us seems to do, and it may be mentioned that it was stated to us at the bar that no such case was sought to be made by any of the parties concerned in the present litigation.
5. Supposing a case when the cutting of trees would be an act in the nature of improvement within the meaning of the Malabar Compensation for Tenants' Improvements Act it does not follow that a contract for the payment of 'some fee' to the landlord must necessarily limit the right of the tenant to make improvement and claim compensation. If the trees were on the land at the time of the commencement of the tenancy and therefore belonged to the landlord Vasudevan Nambudripad v. Valia Chathu Achan I.L.R. (1901) Mad. 47. There is nothing in the Act which would justify us in holding that the tenant is entitled to appropriate their value, if it was found necessary to cut them in the course of making improvements. 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. Here the kuttikanam stipulated for is the customary fee of eight annas per tree while the value of each tree is about Rs. 15 and it cannot be said that such a demand is likely to deter any reasonable tenant from improving the holding if he be so inclined.
6. The Act however far it goes in order to encourage the tenants in making improvements on lands in Malabar, cannot be presumed to affect in any way the proprietary rights of jenmis or to interfere with contracts for payment of rents or other dues for the use and occupation of their lands. Its object is to assure to the tenants the right to make improvements and to obtain at the time he leaves the land the full value of the improvements which he may have made. If the arguments put forward on behalf of the tenant were sound it would logically follow, if pushed to their full lengths that even an ordinary contract for the payment of rent is necessarily a limitation of the tenants' right to make improvements. Such a payment as that referred in the question leaves the tenant as pointed out by Seshagiri Ayyar, J., full liberty to make whatever improvements he likes upon the property and is not therefore contrary to the provisions of Section 19 of the Act.
7. I concur in the answer to the reference proposed by the learned Chief Justice for the reasons given by him and Abdur Rahim, J.
Srinivasa Ayyangar, J.
8. I agree with the learned Chief Justice.
9. This reference has been made on two grounds, one that the cutting down of trees may in itself be an improvement within the meaning of the Act, and the other that a charge levied on the cutting down of trees may be deemed to be a limitation of the right to plant those trees. In the present case it is conceded that the cutting down of the trees is not in itself an improvement, and judging from my experience of Malabar I should think that it can only be in very exceptional cases that the cutting down of valuable trees such as teak, rosewood and jack, with which alone we are concerned in the present case, would be an improvement. Such cases must necessarily be so rare that it seems unnecessary to deal with the question beyond saying that if such cutting is found to be an improvement it is quite possible that the limitation of such cutting might be a limitation of the right to make improvements, and such exceptional oases must be dealt with on their merits. The second proposition that a charge levied on the cutting down of valuable trees may be a limitation of the right to make improvements seems to me to be based on a confusion between the right to make improvements and the right to enjoy them when made. If a tenant plants a tree he is not bound to cut it down before the end of the tenancy. If it is in existence at the end of the tenancy, he is entitled to compensation, but not otherwise, and if he chooses to enjoy the benefit of the tree by cutting it down during the tenancy, no question of compensation arises, and consequently it is difficult to see how an agreement to pay some fee for each tree cut can limit the right of a tenant to make improvements and to claim compensation for them within the meaning of Section 19 of the Act. If the tenant cuts down a tree he gets the full value of it less the fee imposed, but as he need not cut down the tree the fee imposed can in no way prevent him from growing it except possibly when the fee is unreasonably large, a case which we need not consider now.
10. I therefore agree with the answer given by the learned Chief Justice.