1. On 6th December 1940, defendant 16 in this suit as the jenmi assigned to the defendant 17 the rent due for the 11 years from 15th September 1930, to 15th September 1941, from the kanomdar holding under a kanom demise dated 29th December 1922. On 9th August 1941, the assignee assigned his rights to the plaintiff, who instituted the suit in the Court of the District Munsif of Badagara to recover the amount of rent due in respect of the 11 years. He claimed that he was entitled under Section 41, Malabar Tenancy Act, 1929, to a charge for the amount. The District Munsif held that the plaintiff was not entitled to a charge under that section but only to a money decree in respect of six years immediately preceding the suit. On an appeal filed by the plaintiff the Subordinate Judge disagreed with the judgment of the District Munsif. He considered that the plaintiff was entitled to a charge. Consequently, he gave him a decree for the full amount claimed and declared that it constituted a charge on the property. Defendant 1, who is the kanomdar, has appealed. The opinion of the Subordinate Judge is in accordance with the judgment of Somayya J. in Swaminatha Iyer v. Ramanatha Iyer A.I.R. l943 Mad. 573 which was followed by Horwill J. in Kunhi Kannan v. Achu : AIR1944Mad226 . On the other hand, the case for the appellant receives support from the judgment of Chandrasekhara Ayyar J. in the unreported case of U. Kunhipokker v. Panakkat Anantan Nambiar, S. A. No. 853 of 1943. Chandrasekhara Ayyar J. considered that the question is governed by the judgment of the Privy Council in A. H. Forbes v. Maharaj Bahadur Singh A.I.R. 1914 P.C. 111 and the decision of this Court in Vyraperumal v. Alagappa A.I.R. 1932 Mad. 189. Somayya J. was of the opinion that these cases were not really in point. We prefer the view expressed by Chandrasekhara Ayyar J. Section 41, Malabar Tenancy Act, reads as follows:
Renewal fees and arrears of michavaram or rent due to the landlord together with interest, if any, payable on the same shall be a charge on the interest of the person from whom they are due in the holding in respect of which they are due as at the time of the creation of such interest, and such charge shall have priority over all other charges on the same except the charge for the revenue and any dues thereon payable to government or to a local authority and made a charge thereon by any law for the time being in force.
The case in A. H. Forbes v. Maharaj Bahadur Singh A.I.R. 1914 P.C. 111 had reference to the Bengal Tenancy Act, 1885, Section 65 of which says:
Where a tenant is a permanent tenure-holder, a raiyat holding at fixed rates or an occupancy raiyat, he shall not be liable to ejectment for arrears of rent but his tenure or holding shall be liable to sale in execution of a decree for the rent thereof, and the rent shall be a first charge thereon.
In A.H. Forbes v. Maharaj Bahadur Singh A.I.R. 1914 P.C. 111 a zamindar, who had transferred his interest in the zamindari, brought a suit against the tenant for arrears of rent which had accrued due to him before the transfer. The question was whether the erst-while landlord was entitled to a charge on the land in respect of unpaid rent. The Judicial Committee held that he was not entitled to a charge. In delivering the judgment of the Board, Mr. Ameer Ali said:
It seems to their Lordships clear on an examination of the different sections bearing on the subject that the right to bring the tenure or holding to sale under Section 65 appertains exclusively to the landlord; and that a person to whom certain rents are due, and who obtains a decree therefor after he has parted with the property in which the tenancy is situate, has no such right. The contrary view, their Lordships think, would give rise to a very anomalous situation. A zamindar to whom certain arrears are due, as in the present case, may sell his property, without assigning, for purposes of his own, the back rents as he is entitled to do; he may then sue for those back-rents; before any decree is made in this suit, the tenant falls into arrears to the new landlord who brings a similar suit. Both the ex-landlord and the present landlord obtain decrees for their respective arrears. In whose decree and on whose application is the tenure to be sold? The question admits of only one answer that it is the existing landlord alone who can execute the decree; the ex-landlord is an outsider, and, whilst he can execute his decree against the debtor as a money decree, he has no remedy against the tenure itself.
Mr. Ameer Ali proceeded to say:
The learned Judges of the High Court seem to think that either from the nature of the debt being arrears of rent, or the decree being for arrears of rent, the tenure becomes ipso facto hypothecated so to speak for the debt; and that consequently the person to whom the debt is due, although he has ceased to be the landlord, and is to all intents and purposes, so far as other rights and obligations under the law are concerned, a total stranger to the property with which those rights and obligations are inseparably connected, he has the special remedy given to the landlord to recover arrears attached to the tenure. This conception of the legal position seems to their Lordships untenable, for the charge created by Section 65 is clearly in favour of the landlord.
Section 148(h), Ben. Ten. Act, declares that notwithstanding anything contained in Section 232, Civil P.C., an application for the execution of a decree for arrears obtained by a landlord shall not be made by an assignee of the decree unless the landlord's interest has become and is vested in him. There is no corresponding section in the Malabar Tenancy Act and consequently Somayya J. thought that the judgment of their Lordships could not be applied when the question was one of interpretation of Section 41, Malabar Tenancy Act. The passages from the judgment which we have quoted are?; really based on the provisions of Section 65, Ben. Ten. Act. Their Lordships point out that the section creates a charge in favour of the landlord and that it would lead to a very anomalous position to hold that the ex-land-lord as well as the present landlord were given a charge for arrears of rent. The same reasoning applies to Section 41, Malabar Tenancy Act. The charge created is clearly in favour of the landlord. No one but he is mentioned. We cannot regard the absence of a section corresponding to Section 148 (h), Ben. Ten. Act, as material. The plaintiff is not the landlord, and he has never held that position. He is merely the assignee of a debt.
2. Somayya J. was also impressed by the fact that the Malabar Tenancy Act does not contain a section corresponding to Section 128, Madras Estates Land Act, which states that where in the execution of a decree, an order for sale has been passed, and a person who is interested in the land pays the amount due, he shall be entitled to a charge in respect thereof. Here again, we do not consider that the absence of such a provision in the Malabar Tenancy Act alters the position. The Legislature was providing for a charge in exceptional circumstances. If anything the insertion of Section 128, Madras Estates Land Act, makes the case for the appellant in the present case all the stronger. In Vyraperumal v. Alagappa A.I.R. 1932 Mad. 189, this Court held that when one member of a joint family, in order to prevent arrest in execution of a decree obtained by the landlord against himself and another coparcener for arrears of rent due by both under the Madras Estates Land Act, pays the amount due, he is not entitled by virtue of Sections 5 and 128 of that Act, or under the general law or by virtue of Sections 82 and 100, T. P. Act, to a first charge on the other coparcener's portion of the holding. It was pointed out that the charge created by Section 5, Madras Estates Land Act, only applies to rent due to landlord in that capacity and that Section 128 only applies in the special circumstances contemplated by it. In holding that the charge created by Section 5 is for the benefit of the landlord and applies to rent only so long as it is due to him, the Court expressly relied upon the judgment of the Judicial Committee in A. H. Forbes v. Maharaj Bahadur Singh A.I.R. 1914 P.C. 111 We consider that the judgment in Vyraperumal v. Alagappa A.I.R. 1932 Mad. 189 has direct bearing here. In fact the present case cannot be really distinguished.
3. We hold that Section 41, Malabar Tenancy Act, gives a charge to the landlord for arrears of rent and to no one else. The plaintiff is not a landlord and never was. Therefore all he is entitled to is a money decree. It follows that the decision of the District Munsif was right and the decree passed by him must be restored with costs here and before the Subordinate Judge.