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Kochu Rabia Vs. Abdurahman - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Judge
Reported in(1915)ILR38Mad589
AppellantKochu Rabia
RespondentAbdurahman
Cases Referred and Paru Amma v. Moothoran
Excerpt:
malabar compensation for tenants' improvements act (madras act i of 1900), sections 5 and 19 - compensation, rate of, for tenants' improvement--compensation, amount of, methods of fixing--contract made before 1st january 1886--no express reference to tenants' right to make improvement--contract less favourable to tenant than sections 5 and 6 of the act--contract not binding--sections 5 and 6 applicable. - - it seems much more in accordance with the ordinary interpretation of words to construe the section as referring to contracts dealing with the rights of a tenant both to make improvements and to claim compensation, as well as with contracts having direct reference only to the claiming of compensation and being silent as to the right to make improvements;.....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.' the district judge followed kozhikot sreemana vikraman v. modathil ananta patter i.l.r. (1911) mad., 61 a decision of benson and krishnaswami ayyar, jj. that decision has been followed by benson and sundaka ayyar, jj., in paru amma v. moothoran : (1912)22mlj221 .2. the reasoning of these two decisions (if we have understood it aright) is that section 19 contemplates only such agreements as limit the tenant's right to make improvements and to claim compensation therefore: that the section does not deal with a contract merely 'regulating the rates of compensation' (see kozhikot sreemana.....
Judgment:
ORDER

1. The question involved in this appeal is whether Section 19 of the Malabar Compensation for tenants' Improvements Act (Madras Act I of 1900) affects the validity of an agreement which was entered into prior to the 1st January 1886 and by which agreement the parties agreed that compensation for improvements should be paid to the tenant on a certain basis or method of calculation. The District Judge differing from the Subordinate Judge held that such an agreement though entered into before the 1st January 1886 was not binding on the tenant. The question turns upon the true construction of Section 19 of the Act which provides that '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.' The District Judge followed Kozhikot Sreemana Vikraman v. Modathil Ananta Patter I.L.R. (1911) Mad., 61 a decision of Benson and Krishnaswami Ayyar, JJ. That decision has been followed by Benson and Sundaka Ayyar, JJ., in Paru Amma v. Moothoran : (1912)22MLJ221 .

2. The reasoning of these two decisions (if we have understood it aright) is that Section 19 contemplates only such agreements as limit the tenant's right to make improvements and to claim compensation therefore: that the section does not deal with a contract merely 'regulating the rates of compensation' (see Kozhikot Sreemana Vikraman v. Modathil Ananta Patter I.L.R. (1911) Mad., 61, or 'limiting the amount of compensation to which the tenant is entitled' (see Paru Amma v. Moothoran : (1912)22MLJ221 in respect of improvements made by him and that the tenant may claim compensation either according to such a contract or under Sections 5 and 6 of the Act, whichever is more favourable to him [Kozhikot Sreemana Vikraman v. Modathil Ananta Patter I.L.R. (1911) Mad., 61.

3. It has been argued before us that these two decisions are-inconsistent with the Full Bench decision in Randupurayil Kunhisore v. Neroth Kunhi Kannan I.L.R., (1909) Mad., 1 in which case the question was whether improvements made after 1887 were to be governed by a deed of 1881 as regards the rate of compensation due to the tenant, and the Court held (1) that the validity of contracts made prior to the 1st January 1886 is not affected by Section 19 (whether the improvements were made before or after the 7th January 1887), and (2) that in the case of contracts made prior to the 1st January 1886, the rate of compensation is governed by the terms of the contract.

4. With the greatest respect to the learned Judges who decided Kozhikot Sreemana Vikraman v. Modathil Ananta Patter I.L.R., (1911) Mad., 61 and Paru Amma v. Moothoran : (1912)22MLJ221 we have very serious doubts whether the decisions are in accordance with the true construction of Section 19, or with the decision of the Full Bench in Randupurayil Kunhisore v. Neroth kunhi Kannan I.L.R., (1909) Mad., 1.

5. Considering in the first place the language of Section 19 itself, it seems somewhat hypercritical to hold that the words the right of a tenant to make improvements and to claim compensation 'do not include the right of the tenant to claim compensation under an agreement which does not expressly refer to his power to make improvements. It seems much more in accordance with the ordinary interpretation of words to construe the section as referring to contracts dealing with the rights of a tenant both to make improvements and to claim compensation, as well as with contracts having direct reference only to the claiming of compensation and being silent as to the right to make improvements; so that three classes of contracts dealt with in the section are contracts to make improvements, contracts to claim compensation for improvements made, and contracts to do both; there seems no reason to confine the applicability of the section to contracts which expressly mention both the right to make improvements and to claim compensation for them. It would seem that a right to claim compensation for improvements made implies a right to make the improvements for which compensation is to be claimed. In order that the Court may be justified in interpreting the section as rigidly as is done in the two decisions above referred to, it must be established that there is some very material distinction between contracts of the two kinds, namely, (1) a contract which, as regards the rate of compensation to be allowed to the tenant or as regards the method in which his improvements ought to be valued, is less or more favourable to him than the rates and methods provided for in the Act, and (2) a contract which restricts or enlarges the right of the tenant to make improvements and to claim compensation for such improvements.

6. But it seems to us that in the majority of cases there would be great difficulty in distinguishing between the two classes of contracts and in determining whether a particular contract would fall under the one head or the other. The difficulty had to be dealt with in Paru Amma v. Moothoran : (1912)22MLJ221 and can be illustrated by the facts in both the other cases which have been referred to above. If no substantial distinction can be generally drawn between the two classes of contracts, then the facts on which the Full Bench decision in Randupurayil kunhisore v. Neroth Kunhi Kannan I.L.R., (1909) Mad., 1 was arrived at, must also be taken to be indistinguishable from the facts in the two later cases above cited in respect of the applicability of the provisions of Section 19, and it follows that the two later cases are inconsistent with the Full Bench decision.

7. The facts of the Full Bench case are set out in pages 1 and 2 of the report Randupurayil Kunhisore v. Neroth Kunhi Kannan I.L.R., (1909) Mad., 1 and the question referred to the Full Bench was worded quite generally thus: 'In the case of a contract made prior to 1st January 1886, is the rate of compensation which a tenant is entitled to receive governed by the terms of the contract or by the provisions of the Malabar Compensation for Tenants' Improvements Acts of 1887 and 1900?' The answer to the reference is found in page 3 of the same: 'Our answer to the question which has been referred to us is that in the case of a contract made prior to 1st January 1886, the rate of compensation is governed by the terms of the contract.'

8. The observations in Kozhikot Sreemana Vikraman v. Modathil Ananta Patter I.L.R., (1911) Mad., 61 that the tenants are entitled to fall back upon Section 5 of the Act, if that is more favourable to him, as also the decision in Paru Amma v. Moothoran : (1912)22MLJ221 seem to us to be directly in conflict with the answer of the Full Bench cited above. We might add that the observations on the question in dispute in Kozhikot Sreemana Vikraman v. Modathil Ananta Patter I.L.R., (1911) Mad., 61 are obiter, as the case was really decided on the point that an agreement by the tenant 'to accept compensation for improvements according to local custom' is not a special contract within the meaning of Section 19.

9. We feel, however, that, as there are two reported decisions in favour of the view which, we find ourselves, as at present advised, unable to accept, it is desirable that the following questions should be referred to a Pull Bench of this Court:

(1) Whether a contract which is made prior to the 1st January 1886 and which regulates the rates of compensation claimable by the tenant for improvements or provides for methods of fixing the amount of compensation due to him (such rates or methods not being in accordance with the provisions in Sections 5 and 6 of the said Malabar Compensation for Tenants' Improvements Act) but which does not expressly refer to the tenant's right to make improvements, is not binding on him if such a contract is less favourable to him than Sections 5 and 6 of the Act, and whether the tenant is entitled to repudiate the contract and to claim compensation according to the provisions of the Act, and whether Section 19 of the Act affects such contracts.

(2) Whether Kozhikot Sreemana Vikraman v. Modathil Ananta Patter I.L.R., (1911) Mad., 61 and Paru Amma v. Moothoran : (1912)22MLJ221 have correctly interpreted the Full Bench decision in Randupurayil Kunhisore v. Neroth Kunhi Kannan I.L.R., (1909) Mad., 1 .

10. This Second Appeal coming on for hearing before the Full Bench, the Court expressed the following

11. Opinion.-We are of opinion that the contract mentioned in the first question which has been referred to us is not binding on the tenant if it is less favourable to him than Sections 5 and 6 of the Act, and that the tenant is entitled to claim compensation according to the provisions of the Act.

12. As regards the second question, we are of opinion that, having regard to the question which the Court had to consider in Randupurayil Kunhisore v. Neroth Kunhi Kannan I.L.R., (1909) Mad., 1 there is no inconsistency between the judgment in that case and the judgments in Kozhikot Sreemana Vikraman v. Modathil Ananta Patter I.L.R., (1911) Mad., 61 and Paru Amma v. Moothoran : (1912)22MLJ221 . We are not prepared to say that the two last mentioned cases were not rightly decided.


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