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Kunhalloor Puthia Veettil Rayarappa Atioti Vs. Vathukoilath Parkum Punnisseri Kelappa Kurup and ors. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in39Ind.Cas.741
AppellantKunhalloor Puthia Veettil Rayarappa Atioti
RespondentVathukoilath Parkum Punnisseri Kelappa Kurup and ors.
Cases ReferredKochu Rabia v. Abdur Rahman
Excerpt:
.....the compensation payable under the act, and the insertion of the words 'to' before 'claim' when the original section 7 was re-enacted as section 19, also support this..........rates payable for such improvements. in 1913, sadasiva aiyar and tyabji, jj., referred to a full bench the questions whether such contracts were enforceable, and whether the two last mentioned decisions were consistent with the full bench decision in randupurayil kunhisore v. neroth kunhi kannan 1 cas. ind. cas. 207. the full bench answered without assigning reasons that such contracts were not enforceable if less favourable to the tenant than sections 5 and 6 of the act, and that the decisions in koshikot pudiya v. chundayil madattul 6 ind. cas. 887 and in neechooli parie amma v. chathanadath kalassin kunhikandan 12 ind. cas. 765 were not inconsistent with the full bench ruling in randupurayil kunhisore v. neroth kunhi kannan 1 cas. ind. cas. 207 the question has again been referred.....
Judgment:
ORDER

OF REFERENCE TO A FULL BENCH

1. The question for determination in this case is whether the compensation for improvements is to he paid for at the rates stipulated for in the demises of 1876 or in accordance with the provisions of the Malabar Compensation for Tenants' improvements Act. In the Full Bench ruling reported as Randupurayil Kunhisore v. Neroth Kunhi Kannan 1 Cas. Ind. Cas. 207 it was held that in the case of a contract made prior to 1st January 1885, the rate of compensation is governed by the terms of the contract. In a subsequent case reported as Koshikot Pudiya v. Chundayal Madattul 6 Ind. Cas. 887 ; (1910) M.W.N. 402 Benson and Krishnaswami Aiyar, JJ., expressed an opinion (obiter) that if a contract as to the rate of compensation is unfavourable to the tenant, even though it has been entered into before 1st January 1886, he is entitled to claim compensation under Section 5 of the Act at the rates prescribed in Sections 9--18 and remarked that this opinion was not opposed to the Full Bench ruling in Randupurayil Kunhisore v. Neroth Kunhi Kannan 1 Cas. Ind. Cas. 207, as the question therein answered was whether the making of the improvements after 1886 disentitled the tenants to the rates fixed by the contract before that date. This, we think, hardly expresses the matter correctly. Although the question in dispute in the suit was as to the rate payable for improvements made after 1886, the question referred to the Full Bench was couched in general terms as follows:

2. 'In the case of a contract made prior to 1st January 1883, 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?', and the answer given was 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. This being so, we do not think that the facts of the case can warrant us in reading into the answer a modification that is not there, for the decision of the Full Bench is merely an answer to the question propounded and is not, unless expressly so stated, to be considered as a decision which must be construed as governed by the facts of the case in which the reference is propounded, when no reference is made to those facts in the question referred to the Full Bench. The same view of the law was followed by another Divisional Bench (Benson and Sundara Aiyar, JJ.) in Neechooli Parie Amma v. Chathanadath Kalassin Kunhikandan 12 Ind. Cas. 765 and it was held that Section 19 of the Act referred only to contracts which took away or limited the right of a tenant both to make improvements and to claim compensation for them in accordance with the provisions of this Act, and not to contracts which merely regulated the amount of compensation that they could claim. In Kochu Rabia v. Abdur Rahman 24 Ind. Cas. 106 two other learned Judges of this Court (Sadasiva Aiyar and Tyabji, JJ.), thinking that the decisions in Koshikot Pudiya v. Chundayil Madattul 6 Ind. Cas. 887 ; (1910) M.W.N. 402 and in Neechooli Parie Amma v. Chathanadath Kalassin Kunhikandan 12 Ind. Cas. 765 were not in accordance with the Full Bench ruling in Randupurayil Kunhisore v. Neroth Kunhi Kannan 1 Cas. Ind. Cas. 207 and that the distinction drawn between the right of a tenant to make improvements and to claim compensation for them and his right to claim under an agreement which does not expressly refer to his power to make improvements was some what hypercritical, referred the following questions to a Full Bench:

(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 th 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 Koshikot Pudiya v. Chundayil Madattul 6 Ind. Cas. 887; (1910) M.W.N. 402 and Neechooli Parie Amma v. Chathanadath Kalassin Kunhikandan 12 Ind. Cas. 765; (1911) 2 M.W.N. 513 have correctly interpreted the Full Bench decision in Randupurayil Kunhisore v. Neroth Kunhi Kannan 1 Cas. Ind. Cas. 207; 5 M.L.T. 277.

3. The reply of the Full Bench to the 1st question was that the contract mentioned therein was not binding on the tenant if it is less favourable to him than Sections 5 and 6 of the Act. In reply to the 2nd question, the Court was of opinion that having regard to the question which the Court had to consider in Randupurayil Kunhisore v. Neroth Kunhi Kannan 1 Cas. Ind. Cas. 207, there was no inconsistency between the judgment in that case and the judgments in Koshikot Pudiya v. Chundayil Madattul 6 Ind. Cas. 887 and in Neechooli Parie Amma v. Chathanadath Kalassin Kunhikandan 12 Ind. Cas. 765, and remarked in conclusion 'we are not prepared to say that the last two cases were not rightly decided.' It will thus appear that the prior ruling in Randupurayil Kunhisore v. Neroth Kunhi Kannan 1 Cas. Ind. Cas. 207 was not dissented from, and as regards Koshikot Pudiya v. Chundayil Madattul 6 Ind. Cas. 887 and Neechooli Parie Amma v. Chathanadath Kalassin Kunhikandan 12 Ind. Cas. 765 it was held that they were not wrongly decided. In Koshikot Pudiya v. Chundayil Madattul 6 Ind. Cas. 887 the case was decided quite apart from the opinion expressed obiter which the learned referring Judges in Kochu Rabia v. Abdur Rahman 24 Ind. Cas. 106 considered to be in conflict with the ruling in Randupurayil Kunhisore v. Neroth Kunhi Kannan 1 Cas. Ind. Cas. 207, and in Neechooli Parie Amma v. Chathanadath Kalassin Kunhikandan 12 Ind. Cas. 765 ; (1911) 2 M.W.N. 513 the contract under consideration was of a peculiar nature and did not merely regulate the rates of compensation. It would appear, therefore, that both the Full Bench rulings, i.e., in Randupurayil Kunhisore v. Neroth Kunhi Kannan 1 Cas. Ind. Cas. 207 and in Kochu Rabia v. Abdur Rahman 24 Ind. Cas. 106 are still in force and are binding on us. The question for decision in the case before us now is, whether the rate of compensation which the tenants are entitled to receive is to be governed by the contracts of 1887 or by the provisions of the Malabar Compensation for Tenants' Impovements Act. According to the decision in Randupurayil Kunhisore v. Neroth Kunhi Kannan 1 Cas. Ind. Cas. 207, the tenants are entitled only to the rate of compensation contained in the contract. The question might, however, be put in the form of the 1st question referred to the Full Bench in Kochu Rabia v. Abdur Rahman, 24 Ind. Cas. 106, and according to the opinion expressed in that case the answer must be that the contract is not binding on the tenant if it is less favourable to him than Sections 5 and 6 of the Act and consequently the tenants would be entitled to the higher rates provided in the Act. These two answers in the present case are directly conflicting; and as both the rulings are binding on us, the latter one not having in any way dissented from the former, we are in doubt as to which ruling to follow and think that the question should be again referred to a Full Bench. No doubt in Abdulla Rowthan v. Vasudeva Ravi Varma 29 Ind. Cas. 286 one of the referring Judges in Kochu Rabia v. Abdur Rahman 24 Ind. Cas. 106, Sadasiva Aiyar, J., and Napier, J., interpreted the ruling on their reference as holding that the decision in Randupurayil Kunhisore v. Neroth Kunhi Kannan 1 Cas. Ind. Cas. 207 should not be construed as negativing the tenant's right to claim compensation according to the Act if the terms of the agreement are less favourable to him, but we are unable to trace such a ruling in Kochu Rabia v. Abdul Rahman 24 Ind. Cas. 106 where it is only stated that Koshikot Pudiya v. Chundayil Madattul 6 Ind. Cas. 887 and Neechooli Parie Amma v. Chathanadath Kalassin Kunhikandan 12 Ind. Cas. 765 were not inconsistent with Randupurayil Kunhisore v. Neroth Kunhi Kannan 1 Cas. Ind. Cas. 207 and were rightly decided. As we have pointed out, Koshikot Pudiya v. Chundayil Madattul 6 Ind. Cas. 887 was decided on quite a different point, and Neechooli Parie Amma v. Chathanadath Kalassin Kunhikandan 12 Ind. Cas. 765 related to a contract of a somewhat peculiar nature unlike the usual contract regulating the rate of compensation. As regards the provisions of Section 19 of the Act and the opinion held in Koshikot Pudiya v. Chundayil Madattul 6 Ind. Cas. 887 and in Neechooli Parie Amma v. Chathanadath Kalassin Kunhikandan 12 Ind. Cas. 765 that the section only refers to contracts limiting the right to make improvements and to claim compensation and not to contracts merely regulating the rate of compensation payable, we would like to identify ourselves with the remarks made by the referring Judges in Kochu Rabia v. Abdur Rahman 24 Ind. Cas. 106 and would also add a further observation which seems to have escaped notice in the cases referred to above. Section 19 of the Act prescribes that contracts of a certain class made after 1st January 1886 shall be inoperative, but it is not apparent that the provisions of the section affect in any way contracts made before that date. Any contracts made before that date, whether of the class referred to in Section 19 or of any other nature, must be considered and their validity determined according to law apart from any consideration of Section 19, which does not purport to be retrospective in effect. In the case, therefore, of a contract regulating the rate of compensation payable and entered into before 1st January 1886 the question for determination does not seem to us to be, whether it is a contract of the nature contemplated in Section 19, but whether it is a contract which is valid and binding according to law and more especially the law as contained in Section 28 and other provisions of the Contract Act. If prior contracts of the nature specified in Section 19 are rendered invalid by reason of the passing of the Tenants' Improvements Act or are invalid in law for any other reason, Section 19 would appear to be superfluous, for contracts after 1st January 1886 would be invalid for the same reason and there is no reason for declaring their invalidity by a special provision of the Legislature.

4. We, therefore, again refer the following questions for determination by a Pull Bench as they are questions which are constantly cropping up and in many cases, as in the present one, large sums of money are involved:

1. When a contract has been entered into between a Malabar tenant and his landlord before 1st January 1886, according to which compensation is payable at certain rates therein specified, is such contract valid and binding on them, whether the rates are more or less favourable to either party than the rates prescribed by the Malabar Compensation for Tenants' Improvements Act?

2. When the question of the rate of compensation comes up for determination at a date after the introduction of the Act, can either party to a contract entered into before 1st January 1886 elect to have the rates fixed according to the Act in preference to the rates mentioned in the contract?

5. This second appeal coming on for hearing in pursuance of the above order on the 27th November 1916, upon perusing the said Order of Reference and upon hearing the arguments of Counsel for the Appellant and 1st Respondent and the other respondents not appearing either in person or by Pleader, and the case having stood over for consideration till this day, the Court expressed the following.

OPINION.

6. The decision of the Full Bench of four Judges in 1891 in Kerala Varmah Valia Rajah v. Ondan Ramunni 7 Ind. Cas. 696 proceeded upon the footing that the intention of the Legislature was that contracts made before the date mentioned should stand unaffected by the Act, in other words, that Sections 5 and 6 (corresponding to Sections 4 and 5 of the earlier Act) did not apply to cases governed by such contracts. This was expressly decided in Viru Mammad v. Krishnan 21 M.k 149 . If this contention was not in accordance with the intention of the Legislature, it would hardly have refrained from putting the matter right when repealing and re-enacting the Act with modifications in 1899. In 1908 it was again held by a Full Bench in Randupurayil Kunhisore v. Neroth Kunhi Kannan 1 Cas. Ind. Cas. 207 that Section 19 (formerly 7) did not affect the validity of contracts made prior to the 1st of January 1886, whether the improvements were made before or after the coming into force of the Act of 1887. In 1900 Benson and Krishnaswami Aiyar, JJ., in Koshikot Pudiya v. Chundayil Madattul 6 Ind. Cas. 887 whilst disposing of the case on another ground, suggested that, while prior contracts dealing with the right to make improvements and claim compensation for them were saved under the Act, this was not the case with prior contracts dealing only with the rates at which compensation was to be paid. This view was adopted in Neechooli Parie Amma v. Chathanadath Kalassin Kunhikandan 12 Ind. Cas. 765 by Benson and Sundara Aiyar, JJ., who refused to give effect to a contract made prior to January 1886 which did not restrict the tenant's right to make improvements but only the rates payable for such improvements. In 1913, Sadasiva Aiyar and Tyabji, JJ., referred to a Full Bench the questions whether such contracts were enforceable, and whether the two last mentioned decisions were consistent with the Full Bench decision in Randupurayil Kunhisore v. Neroth Kunhi Kannan 1 Cas. Ind. Cas. 207. The Full Bench answered without assigning reasons that such contracts were not enforceable if less favourable to the tenant than Sections 5 and 6 of the Act, and that the decisions in Koshikot Pudiya v. Chundayil Madattul 6 Ind. Cas. 887 and in Neechooli Parie Amma v. Chathanadath Kalassin Kunhikandan 12 Ind. Cas. 765 were not inconsistent with the Full Bench ruling in Randupurayil Kunhisore v. Neroth Kunhi Kannan 1 Cas. Ind. Cas. 207 The question has again been referred to a Full Bench by Sepencer and Phillips, JJ., on the ground that the Full Bench decision in Kochu Rabia v. Abdur Rahman 24 Ind. Cas. 106 is inconsistent with the earlier Full Bench decision in Randupurayil Kunhisore v. Neroth Kunhi Kannan 1 Cas. Ind. Cas. 207, and that they are in doubt which to follow, and has now come before a Bench of five Judges.

7. After hearing the whole question re-argued we agree with the referring Judges in Kochu Rabia v. Abdur Rahman 24 Ind. Cas. 106 and in the present case that the view advanced in Koshikot Pudiya V. Chundayii Madattul 6 Ind. Cas. 887 and adopted in Neechooli Parie Amma v. Chathanadath Kalassin Kunhikandan 12 Ind. Cas. 765 ; (1911) 2 M.W.N. 513 and accepted by the Full Bench in Kochu Rabia v. Abdur Rahman 24 Ind. Cas. 106 cannot be supported. Section 19 (formerly 7) which deals in terms with future contracts cannot, in our opinion, be construed as dealing only with contracts which take away of limit the right of a tenant to make improvements' and also limit his right to claim compensation for them under the Act, but applies equally to contracts which take away or limit either of these rights. It is, we think, clear that the Legislature intended to prohibit alt future contracts taking away or limiting either or both of these rights. It is well settled that the word 'and' may be read as or', where it is necessary to do so, in order to carry out the obvious intention of the Legislature (Maxwell on Statutes, page 331, 3rd edition). The existence of a proviso excluding from the operation of the section a particular class of contracts dealing with the compensation payable under the Act, and the insertion of the words 'to' before 'claim' when the original Section 7 was re-enacted as Section 19, also support this view. If, as we hold, contracts affecting only the right to claim compensation come within the section, the suggested distinction fails, and we are bound, following the uniform course of decisions in this Court, to answer the first question referred to us in the affirmative and the second in the negative.


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