1. The fifth defendant, who is the petitioner here, filed an application (I.A. No. 3255 of 1946 in O.S. No. 585 of 1946 of the District Munsiff's Court, Ponnani) praying that the suit may be stayed, as it fell within the mischief of Section 4(1)(a) of Madras Act XVII of 1946. The application was dismissed.
2. The suit in question was one for redemption of a mortgage under a document described as Kaivasam panayam. Rs. 500 were paid to the respondent, who demised the property to the petitioner, who was to hold the property in possession according to the custom of Muthal Kudima Nyayam. He was to deduct the interest on the panayam (mortgage) amount and Government revenue and to pay as purappad a bunch of plantains worth Rs. 0-9-5 and As. 4. He was directed not to make any improvements on the property nor erect any buildings. In default of payment, he had to pay interest. If' the panayam amount was tendered after one year, he was bound to surrender the property. The question is whether the person put into possession under this document, described as a usufructuary mortgage, is a tenant within the meaning of the Malabar Tenancy Act.
3. Section 4(1)(a) of the Madras Act XVII of 1946 says:
All suits...for the eviction of tenants from their holdings or land as the case may be or in which a claim for such eviction is involved...and which are pending at the commencement of this Act...shall be stayed....
The Act applies to tenants as understood in the Malabar Tenancy Act. 'Tenant' is defined in Section 3(v) of the Malabar Tenancy Act as:
Any person who has paid or has agreed to pay rent or other consideration for his being allowed by another to enjoy the land of the latter, and includes an intermediary, kanomdar, kuzhikanomdar, and verumpattamdar of any description.
4. I have no doubt that this suit does involve the eviction of the petitioner; and so Section 4(1)(a) of the Act XVII of 1946 will apply and the petitioner will be entitled to a stay if he is a tenant within the meaning of Section 3(v) of the Malabar Tenancy Act. The word ' tenant ' in the Malabar Tenancy Act has a much wider meaning than under the general law and is intended to include such persons as are specified in that section, but not all persons enjoying land under one of the customary tenures of Malabar law. He is admittedly not a kanomdar, kuzhikanomdar or verumpattamdar. Reference has been made to the decision in Pottentakath v. Krishnan : AIR1942Mad652 in which Happell, J., held that a usufructuary mortgagee would not be a tenant within the meaning of Section 3(v) of the Malabar Tenancy Act. One will, however, have to. consider from a perusal of the deed itself whether its primary object is that the person put into possession should enjoy the land or whether it is primarily intended that the land should be a security for the debt. An examination of the document itself is therefore necessary for determining whether the petitioner is or is not a tenant.
5. As I have already pointed out, the document is described as a usufructuary mortgage and in general its terms are those of a usufructuary mortgage; but the petitioner relies on the passage: 'You may, therefore, hold the property in possession according to the custom of Muthal Kudima Nyayam ' and also upon the circumstance that some purappad-which ordinarily means rent--is payable. The second point is, I consider, covered by a Bench of this Court in Vasudevan Nambudiri v. Raman Nambudiri : AIR1940Mad939 where the learned Judges were construing a document described as a Kaivasam panayam, though its terms were somewhat different from what they are in this case and in which the expression panayam purappad was used. The learned Judges came to the conclusion that 'purappad' did not in sach a context mean rent in the ordinary sense of the word. Similarly, there seems to be no reason for concluding that ' purappad ' in the present document means rent in that sense. This decision has been followed by Satyanarayana Rao, J., in no less than three cases (C.R.P. Nos. 26 of 1947, 194 of 1947 and 201 of 1947) where the learned Judge held that the document was a usufructuary mortgage and not a lease.
6. There remains the question as to what significance should be attached to the clause set out above. 'Kudima Nyayam' according to Sundara Ayyar's Malabar and Aliyasanthana Law (page 442) means a kind of service tenure by which a grant is made by a wealthy landlord to his predial slave or lowly tenant. It is a personal service grant in which a nominal fee is paid to the landlord and, presumably, the slave or menial tenant is not to be allowed to alienate that land, nor would he be entitled to make the landlord liable for any improvements which he might make on the land. In the document under consideration (Ex. D-I) it is expressly stated that the person to whom possession was given should not make any improvements, nor erect any buildings; and the purappad was quite nominal. So presumably the use of the expression 'Kudima Nyayam' merely meant that a nominal purappad should be paid and that the person entering into possession should have no power to alienate the property or to make any improvements. It did not apparently mean that the primary purpose of the transaction was to lease the land. That it was not a 'Kudima Nyayam' grant in the sense of the word in times gone by is shown by the fact that a sum of Rs. 500 was paid, which of course could not have been paid by the slaves or menial cultivators to whom grants were made in ancient times. I do not consider therefore that the clause 'You may therefore hold the property according to the custom of 'Kudima Nyayam' is an indication that Ex. D-I is not what it purports to be, i.e., a usufructuary mortgage.
7. The petition is dismissed with costs.