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Kelath ValIn Chiyan Kunhambu Vs. Kirathua Illoth Yagnan Nambudiri and ors. - Court Judgment

LegalCrystal Citation
SubjectTenancy
CourtChennai High Court
Decided On
Reported in(1956)1MLJ297
AppellantKelath ValIn Chiyan Kunhambu
RespondentKirathua Illoth Yagnan Nambudiri and ors.
Cases ReferredSankaran v. Andy
Excerpt:
.....said act, that is, on 19th march, 1954. this appeal, therefore, has to be disposed of in accordance with the provisions of the malabar tenancy act, as amended in 1951 and 1954. therefore, section 25, as it stands today after amendment, will apply to this case, and the result is that the suit for redemption must fail. 5. the first proviso to sub-section (2) of section 25 gives power to this court to award full costs to the plaintiff if it is satisfied that the claim made in the suit was in accordance with the law in force at the time of the institution of the suit......of 1954 did. section 25(2) of madras act vii of 1954, in so far as it is material, runs thus:all suits, appeals and other proceedings (other than proceedings in execution of decree or order) which are pending at the commencement of this act and in respect of the subject matter of which the provisions of the malabar tenancy act, 1929, are in force, shall, from and after such commencement, be disposed of in accordance with the provisions of the malabar tenancy act, 1929, as amended by madras act xxxvii of 1951 and this act. provided that in any such suit or proceeding, the court may award full costs to the plaintiff or applicant if it is satisfied that the claim made in the suit or proceeding was in accordance with the law in force at the time of the institution of such suit or.....
Judgment:

P.V. Rajamannar, C.J.

1. This appeal against the judgment of Subba Rao, J., in S.A. No. 502 of 1948 arises out of a suit brought by the respondents for the redemption of a kanom, dated 19th May, 1932, executed by two brothers, Raman Nair and Sankaran Nair, in favour of the defendant-appellant. The kanom comprised two items, of which we are not concerned with item I in this appeal, as it does not cover that item. There was a lease back to the kanomdars on a rental of Rs. 41-7-0. For arrears of rent due on the lease, a suit was filed, O.S. No. 671 of 1936, and in execution of the decree obtained therein, the properties were purchased by the defendant, who also obtained possession in pursuance of the purchase. The sale was on 22nd November, 1937. In 1938, there was an application under Section 23 of Madras Act IV of 1938 to set aside a sale, and eventually the sale was set aside. Possession, however, continued with the defendant. On 17th November, 1943, Sankaran Nair who became entitled to the entire interests in both the items assigned all his rights to the Ist plaintiff.

2. The learned District Munsif held that the assignment by Sankaran Nair to the plaintiff was invalid by reason of the provisions of Section 25 of the Madras Agriculturist Relief Act and therefore the plaintiffs were not entitled to maintain a suit for redemption. As regards item 1, however, he held that plaintiffs 2 and 3 who had taken a kanom kuzhikanom had sufficient interest to maintain a suit for redemption. In the result he gave a decree in respect of item I. He dismissed the suit as regards item 2. There was no appeal against the decree of the learned District Munsif so far as item 1 was concerned. The decree for redemption in respect of this item has become final. But the plaintiffs preferred an appeal against the decree of the District Munsifs dismissing their suit as regards item 2. The learned Subordinate Judge agreed with the District Munsif that the alienation by Sankaran Nair in favour of the plaintiffs was invalid and the plaintiffs claiming under that deed of assignment were not entitled to redeem item 2. The plaintiffs thereupon preferred a second appeal to this Court. The learned Judge, Subba Rao, J., who heard the second appeal, held that the effect of Section 25 of the Madras Agriculturists Relief Act was only to safeguard the right of the creditor, that is, the defendant in this case, and so long as such rights were not adversely affected, the alienation itself would not be void between the parties. In the present case, the plaintiffs made it clear that they were not relying upon the assignment to defeat the rights of the defendant as creditor. On the other hand, the plaintiffs have made the assignment the basis of their suit for redemption and they desired to discharge the debt due to the defendant. In this view, the learned Judge allowed the second appeal and granted a decree for redemption in respect of the second item. The defendant has filed this Letters Patent Appeal, with the leave of the Judge.

3. We fail to see how the defendant-appellant is aggrieved in any manner. His purchase in execution of the decree which he had obtained for arrears of rent has been finally set aside. He can no longer claim any title to the suit-properties. The only right which he had, and has, is the right of the mortgagee. The learned Judge, Subba Rao, J., has held that the right as mortgagee will not be affected by the assignment of all his rights by Sankaran Nair, in favour of the plaintiffs. In the circumstances, it is impossible for the defendant to resist a suit for redemption, even so far as item 2 is concerned. From this it follows that the Letters Patent Appeal should be dismissed.

4. Mr. Sridharan, learned Counsel for the defendant, however, raised a point based on the recent amendment of the Malabar Tenancy Act made by Madras Act VII of 1954. He relies on Section 25 of the Act, as it now stands today, amended by Act VII of 1954. Under that section, no suit for eviction of a kanomdar shall lie at the instance of the landlord except on specified grounds. Mr. Sridharan urged that none of the grounds is present in this case. The suit must, therefore, fail, if the section as amended would apply to this suit, which was instituted long before the amendment was made. Ordinarily, an amendment would only be prospective in its application. But it is certainly open to the Legislature to give retrospective operation to any amendment. That is exactly what Madras Act VII of 1954 did. Section 25(2) of Madras Act VII of 1954, in so far as it is material, runs thus:

All suits, appeals and other proceedings (other than proceedings in execution of decree or order) which are pending at the commencement of this Act and in respect of the subject matter of which the provisions of the Malabar Tenancy Act, 1929, are in force, shall, from and after such commencement, be disposed of in accordance with the provisions of the Malabar Tenancy Act, 1929, as amended by Madras Act XXXVII of 1951 and this Act. Provided that in any such suit or proceeding, the Court may award full costs to the plaintiff or applicant if it is satisfied that the claim made in the suit or proceeding was in accordance with the law in force at the time of the institution of such suit or proceeding.

This is certainly a proceeding which was pending at the commencement of the said Act, that is, on 19th March, 1954. This Appeal, therefore, has to be disposed of in accordance with the provisions of the Malabar Tenancy Act, as amended in 1951 and 1954. Therefore, Section 25, as it stands today after amendment, will apply to this case, and the result is that the suit for redemption must fail. This very question was considered at length by Krishnaswami Nayudu, J., in Sankaran v. Andy (1954) 2 M.L.J. 581. The learned Judge held that the provision of Section 25 of Act VII of 1954 giving retrospective effect to the provisions of the amending Act is valid. With great respect to the learned Judge, we are in entire agreement with his reasoning and conclusion.

5. The first proviso to Sub-section (2) of Section 25 gives power to this Court to award full costs to the plaintiff if it is satisfied that the claim made in the suit was in accordance with the law in force at the time of the institution of the suit. We are of opinion that the claim made in this case in the suit at the time of its institution was in accordance with the law in force at the time of its institution. Under Section 20 of the Act as unamended, the landlord was entitled to file a suit for eviction of the kanomdar on the ground that the period had expired, vide Clause 3. No doubt when the suit is for eviction on that ground, the tenant is given an opportunity for renewal. It is common ground that there was no such application for renewal by the defendant. It follows that the suit as framed was maintainable under the provisions of the Malabar Tenancy Act, as they stood on the date of the institution. The plaintiff will, therefore, be entitled to his full costs in all the three Courts. There will be no order as to costs in the Letters Patent Appeal.

6. The plaintiffs deposited the entire sum due under the mortgage to obtain redemption. The position now, after this judgment of ours, is that the plaintiffs get a decree for redemption, so far as item 1 is concerned, but their suit is dismissed, so far as item 2 is concerned. The defendant cannot obviously get the benefit of the entire amount, when the suit for redemption has been dismissed, so far as one of the items is concerned. The learned District Munsif of Kuthuparamba shall allot a proportionate amount towards the item allowed to be redeemed, and the plaintiff will be at liberty to withdraw the balance.


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