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Kuthiravattath Kongasseri Puthukulangare Ukkali Alias Pappi Alias Amma Neithiar Avl. and anr. Vs. Pallassena Kizhakke Gramom, S. Sivaramakrishna Pattar - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai
Decided On
Reported inAIR1941Mad408; (1941)1MLJ113
AppellantKuthiravattath Kongasseri Puthukulangare Ukkali Alias Pappi Alias Amma Neithiar Avl. and anr.
RespondentPallassena Kizhakke Gramom, S. Sivaramakrishna Pattar
Excerpt:
- - he was clearly of the opinion that the increased michavaram was contrary to the provisions of section 32 of the act, at the same time observing that the said conclusion might be reached on a reasonable interpretation of sections 17 and 25 of the act......section 32 of the act. this was based upon a statement made by p. w. 2 in the witness box that the proper renewal fee would be about rs. 200 and that in cases where the tenants were not prepared to pay the renewal fees according to the act, michavaram was increased. but the learned district munsif observed that it was not possible to find out how far the amount paid at the time of the execution of ex. a was more or less than the renewal fee payable if calculated in accordance with the act because there was no satisfactory evidence to prove what such * amount would be. the learned district judge on appeal did not give any specific finding except merely stating that he agreed with the reasons given by the learned district munsif in paragraph 6 of his judgment. he was clearly of the opinion.....
Judgment:

Venkataramana Rao, J.

1. This second appeal arises out of a suit to recover arrears of michavaram under, a kychit Ex. A dated 17th August, 1931, executed by the defendant in favour of the plaintiff. What was sought to be recovered was 30 paras of paddy and one anna three pies payable for the year 1931-32. Ex. A purports to be a renewal of a prior kanom under which the michavaram payable was 10 paras 1 edangali of paddy and one anna three pies. The defendant pleaded that the provision for the payment of increased michavaram was inserted in Ex. A without his knowledge and by the fraud of plaintiff's kariasthans, that he had agreed to take a renewal only on the same terms as those contained in the previous kanom Ex. I, that the stipulation in Ex. A for payment of increased michavaram was unsupported by consideration and was also opposed to the provisions of the Malabar Tenancy Act and that therefore it was not enforceable. Both the lower Courts have concurrently found that Ex. A was executed by the defendant with full knowledge of its contents and that no fraud was practised on him as alleged. This finding has not been challenged in second appeal. Both the lower Courts have however non-suited the plaintiff on the ground that the provision for payment of increased michavaram was contrary to the provisions of Sections 17 and 32 of the Malabar Tenancy Act. The view taken by the learned District Munsif was that since the plaintiff's case was that the increased michavaram was the consideration for granting the renewal, it was invalid under Section 32 of the Act. This was based upon a statement made by P. W. 2 in the witness box that the proper renewal fee would be about Rs. 200 and that in cases where the tenants were not prepared to pay the renewal fees according to the Act, michavaram was increased. But the learned District Munsif observed that it was not possible to find out how far the amount paid at the time of the execution of Ex. A was more or less than the renewal fee payable if calculated in accordance with the Act because there was no satisfactory evidence to prove what such * amount would be. The learned District Judge on appeal did not give any specific finding except merely stating that he agreed with the reasons given by the learned District Munsif in paragraph 6 of his judgment. He was clearly of the opinion that the increased michavaram was contrary to the provisions of Section 32 of the Act, at the same time observing that the said conclusion might be reached on a reasonable interpretation of Sections 17 and 25 of the Act. It seems to us that it is not satisfactory to dispose of the matter in the way in which both the lower Courts have done without finding what the proper renewal fee payable under Section 17 of the Act would have been at the time of the execution of Ex. A, and that a finding on this question is necessary. Before disposing of this appeal we therefore think it desirable to call for a finding on the said question. We accordingly direct the learned District Judge to submit a finding on the said question within six weeks from the date of the receipt of this order after taking such evidence as may be adduced by the parties. Time for objection, ten days.

2. In compliance with the above order, the District Judge, South Malabar, submitted the following finding:

* * * *

3. We called for a finding from the District Judge on the following point 'what would have been the proper renewal fee payable under Section 17 of the Malabar Tenancy Act at the time of the execution of Ex. A (17-8-1931)'? and the finding is that the proper fee would have been Rs. 71-13-9. Mr. Unnikanda Menon sought to challenge this finding of fact with which we cannot interfere in second appeal.

4. The defendant has paid Rs. 90 a few rupees more than the renewal fee which was payable under Section 17(a) of the Malabar Tenancy Act. That section provides that on the expiration of the prior kanom under which the kanomdar was holding he is entitled to claim a renewal of the kanom on payment of the renewal fee specified therein and once a claim was made the plaintiff had no option but to grant a renewal of the kanom. The contention of Mr. Unnikanda Menon is that the landlord was bound to grant a renewal but not on the same terms. We are inclined to think that the word 'same' in Section 17 connotes a renewal of the kanom on the same terms as the previous kanom. This view derives support from Section 25(2) of the Act. If the landlord declines to grant a renewal of the kanom on payment of the proper renewal fee, the tenant can seek the aid of the Court. The Court can then determine what the proper renewal fee payable under Section 17(a) is and on deposit of such renewal fee the Court would execute the renewal deed. Section 25(2) says hat the Court shall execute a renewal deed containing such terms as it determines to be the terms of the expiring transaction as are in accordance with law. The section is very specific in that it provides that the Court should grant a renewal of the kanom only on the same terms as the previous kanom. Mr. Unnikanda Menon sought to rely on Section 27 of the Act which according to his own admission does not apply to the facts of this case. If Section 27 does not apply, there is no other section on which he could rely and he has not relied on any other section. It seems to us that the view taken by both the lower Courts that under the kanom deed which the plaintiff sought to enforce he will not be entitled to claim the michavaram stipulated in the deed but only 10 paras and l edangali of paddy and Rs. 0-1-3 is in accordance with the terms of the previous kanom. We therefore confirm the decrees of both the lower Courts and dismiss the second appeal with costs.


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