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theman and anr. Vs. Kunhi Pathumma and anr. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported inAIR1918Mad84; 43Ind.Cas.757
Appellanttheman and anr.
RespondentKunhi Pathumma and anr.
Cases ReferredSubraveti Ramiah v. Gundola Ramanni
Excerpt:
malabar law - kuzhikanom tenants of south canara, law applicable to--tenant holding over for default of landlord to pay compensation, position of--suit by land-lord-notice to quit, whether necessary--malabar compensation for tenant's improvements act (i of 1900), section 5, applicability of, to south canara. - .....only embodies the customary law of malabarand south canara consequently on the expiry of the period fixed, the tenant does not become a trespasser. the decision in subraveti ramiah v. gundola ramanni 4 ind. cas. 1080(1910) m.w.n. 146 quoted by the subordinate judge has no application to malabar kushikanon tenants. we must, therefore, hold that the defendants had not acquired a title by prescription.2. on the question of the reasonableness of the notice to quit, we think that, under the law, a tenant who remains on the land awaiting the payment of the compensation to him is not holding over as a tenant. section 5 of the malabar compensation act says that he is entitled to remain on the land, notwithstanding the fact that the tenancy has determined: therefore his possession is not by.....
Judgment:

1. The Subordinate Judge is wrong on both the points decided by him. There can be no question of adverse possession in favour of the defendant because under the Customary Law of Malabar, the kushi kanam lessee is entitled to remain in possession until he is paid the value of the improvements. In this respect, the law is the same in South Canara. Sriniwasa Pillai v. Venkatmmal 19 Ind. Cas. 410. It is true that Section 5 of the Malabar Compensation Act does not in terms apply to South Canara, bat as was pointed out in Kummatha Vittil Kunhi Kuthalai Haji v. Antoni Goveas 19 Ind. Cas. 63 that section only embodies the Customary Law of Malabarand South Canara Consequently on the expiry of the period fixed, the tenant does not become a trespasser. The decision in Subraveti Ramiah v. Gundola Ramanni 4 Ind. Cas. 1080(1910) M.W.N. 146 quoted by the Subordinate Judge has no application to Malabar kushikanon tenants. We must, therefore, hold that the defendants had not acquired a title by prescription.

2. On the question of the reasonableness of the notice to quit, we think that, under the law, a tenant who remains on the land awaiting the payment of the compensation to him is not holding over as a tenant. Section 5 of the Malabar Compensation Act says that he is entitled to remain on the land, notwithstanding the fact that the tenancy has determined: therefore his possession is not by virtue of a tenant's right, but because there are monies due to him which have to be ascertained and paid. In the present case, the period of lease was fixed, and on the expiry of that period, the tenancy came to an end. We have not been referred to any evidence showing that the landlord assented to the continuance of the tenancy. Mr. Madhavan Nair strongly relied upon a decision of this Court in Second Appeals Nos. 771 to 773 of 1914, In that case it was found that the tenant made a yearly payment. Moreover, the period of the tenancy was not fixed. We do not thick that decision compels us to hold that when a period is fixed and there is no subsequent assent by the landlord, the quondam tenant is entitled to any notice.

3. Such suits should be regarded as practically suits for redemption. The Court should on ascertaining the value of the improvements fix a time within which the compensation will have to be paid and pass a decree directing a surrender on the expiry of that period.

4. We reverse the decree of the lower Appellate Court, direct it to get the improvements re-valued, to fix a the for payment and to pass a decree for surrender on the expiry of that period. The tenant in possession is bound to give credit to the plaintiffs for the rent reserved. This will be done in taking the accounts. Costs will abide the result.


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