1. The landlord (the appellant) brought a suit to evict his tenant (the respondent) because, in the words of Section 20 (3) of the Malabar Tenancy Act, the period of the kanom had expired and no renewal had been obtained. The tenant thereupon exercised the right given to him under Section 23 (b) to file an application under Section 22 to have a renewal of the kanom. The period of the kanom had expired on the 25th April, 1926; but neither had the landlord taken action to evict the tenant nor had the tenant applied for renewal until the suit was filed in 1938. The District Munsiff before whom the suit and the renewal application were filed held that as a further period or 12 years had expired since the expiry of the original kanom in 1926, two renewal fees were necessary. He therefore dismissed the application of the tenant on the ground that the sum to be deposited by him, viz., the value of two renewals, had not been deposited. The tenant went in appeal to the Subordinate Judge, who held that it was immaterial when the period of the kanom expired, and that the termination of the kanom was the date on which the Act came into force. He therefore allowed the appeal and remanded the application for fresh disposal, giving a finding that the twelve years of renewal were to date from the coming into force of the Act in 1930. The landlord has appealed to this Court against that remand order, while the tenant has preferred a memorandum of cross-objections, contending that the kanom must be deemed to have been terminated on the date on which the application to renew was made.
2. Mr. Kuttikrishna Menon has raised a preliminary point that this matter must be deemed to have been decided finally by the decree in the redemption suit filed by the landlord because the tenant had not appealed against it. In the redemption suit this question of the renewal fee and the date from which it began to operate was not raised in the form of an issue as one would have expected; but in the decree it was ordered that the tenant should pay such and such a sum on a certain date and if he did not do so his suit would stand dismissed with costs. As the tenant did not pay the sum by that date, the decree was tantamount to a dismissal of the suit on the day after the date on which the tenant was ordered to pay that sum. This point, I consider, is directly covered by the Full Bench case in Panehanada Velan v. Vaithinatha Sastrigal (1905) 16 M.L.J. 63 : I.L.R. Mad. 333 in which there were two suits--one by the landlord and the other by the tenant--in which precisely similar questions were raised. There was a common judgment; and it was held that ' the very object of the appeal, in substance if not in form, is to get rid of the adjudication which is said to render the question which the appellate Court was asked to decide res judicata. The tenant's appeal in his suit if successful would have the effect of superseding the adjudication in the landlord's suit.'
3. The learned Judges approved of the decision in Abdul Majid v. Jew Narain Mahto I.L.R.(1888) Cal. 233 in which there were two judgments. Mr. Kuttikrishna Menon, citing the decision of King, J., in Sevadappa Goundar v. Narayanaswami Aiyar : (1940)1MLJ647 , contends that the principle laid down in Panchanada Velan v. Vaithinatha Sastrigal (1905) 16 M.L.J. 63 : I.L.R. 29 Mad ought not to be extended and should be confined only to those cases where the suits raised precisely the same points and where there is a common judgment. The learned Judges in Panchanada Velan v. Vaithinatha Sastrigal (1905) 16 M.L.J. 63 : I.L.R. Mad. 333 however held that Abdul Majid v. Jew Narain Mahto I.L.R.(1888) Cal. 233 had been rightly decided, and that that was not a case precisely similar to Panchanada Velan v, Vaithinatha Sastrigal (1905) 16 M.L.J. 63 : I.L.R. 39 Mad for not only were there two judgments but the suits were not precisely similar, only the most important issue in the two suits being the same. The principle enunciated in Panchanada Velan v. Vaithinatha Sastrigal (1905) 16 M.L.J. 63 : I.L.R. Mad 39 was carried a little further in Ramaswami Chetty v. Karuppa Chetty (1915) 29 M.L.J. 551 where there were two judgments, one of which depended, as in this case, on the decision in the other case. It is difficult to distinguish that case in principle from the present one. There was no material contest in the redemption suit other than the point that was raised in the application to renew; and that is why the decree in the redemption suit was made to depend upon the compliance of the tenant with the terms of the order passed on his application. I therefore hold that the decree in the redemption suit did not operate as res judicata and so prevent the lower appellate Court from expressing an opinion on the merits of the appeal before it.
4. I have been taken through Section 3 of the Malabar Tenancy Act in which the various terms which are relevant for this appeal have been defined, and through the sections dealing with renewals; but I find no suggestion anywhere that more than one renewal fee can be collected or any indication that the Court is at liberty to take into account the duration from the expiry of the kanom to the date of the suit in order to ascertain whether more than one period of twelve years has elapsed. So I agree with the lower appellate Court that the District Munsiff was wrong. The more important question as the ascertainment of the date from which the renewal must operate. It is conceded that the kanom is for a definite term, and that the kanom expires at the end of that period. But in the renewed deed that is executed by the Court under sub-section 2 of Section 25 it is said in sub-section 3 of that section that:
a renewal deed executed by the Court under Sub-section (2) shall have the same effect as if it was executed by the landlord himself, and shall entitle the tenant to enjoy the holding for twelve years from the date of the termination of the previous lease, kanom or kuzhikanom.
The learned Subordinate Judge thought that the termination of the kanom was something different from the expiry of the term of the kanom and he considered that the kanom was terminated by the coming into force of the Act. Why he selected that particular date it is difficult to know; because there is certainly nothing in any part of the Act which suggests that the coming into force of the Act automatically brings to an end any kanoms of leases in existence. Although a lease or a kanom can be terminated in many, ways and not only upon the expiry of the term, the expiry of the term does bring the contract to an end, although the tenant may continue to hold over on the same terms after the expiry of the period. Mr. Govinda Menon for the tenant points out that the reading of Section 15 et sequitar indicates that the Act, is intended to operate in the future and not in the past. That of course is true; and I agree that the Act has no retrospective effect. The Act enables the tenant to avoid eviction by compelling the landlord to renew his lease, kanom, kuzhikanom, etc.; but the renewal is dependent upon the fulfilment by the tenant of certain conditions. When the landlord files a suit after the coming into force of the Act for the eviction of the tenant, the latter can avoid that eviction by renewing the lease. ' Renewal' ordinarily means a re-grant On similar terms from the date of the expiry of the earlier contract. If there is an interval between the earlier contract and the later, the second contract can hardly be said to be a renewal of the first contract unless the second contract dates back to the expiry of the first contract. I can find nothing in the Act which suggests that the legislature meant otherwise. On the contrary, there are one or two expressions which indicate that the ordinary meaning of renewal was intended. For example, in Section 24 (2) (b), in calculating interest which the tenant has to pay upon renewal, it is said that the Court should 'make an order for the deposit within a time to be fixed in the said order, of. . . . (b) interest . . . on each such instalment from the date on which it became due or from the date of the commencement of this Act, whichever is later,' the instalments becoming due in the case of a kanom, one-third in the year next after the termination of the expiring transaction and one third in the next following year. So that Section 24 (2) (b) obviously contemplates the falling due of instalments and therefore of the termination of an expiring transaction before the coming into force of the Act.
5. If one does not accept the ordinary meaning of ' renewal,' one is faced with the difficulty of deciding when the renewal commenced. The learned Subordinate Judge suggested that it was terminated automatically by the passing of the Act. That, as I have remarked, finds no justification in the Act itself. The respondent suggested in the Memorandum of Gross-objections that it expired when he filed his application for renewal. But why should the filing of a renewal application terminate the transaction? The learned Subordinate Judge thought that ' termination ' meant something different from the expiring of a period, but what was it that was terminated at the time when the tenant made his application for renewal? In his arguments, Mr. Govinda Menon has suggested a third date, the date of the filing of the redemption suit, when there was a unilateral act of the landlord terminating the kanom. If, however, the kanom was not terminated upon the expiry of the term and the legal relationship of jenmi and kanomdar continued, it could not be brought to ah end by a unilateral act.
6. It follows from the above that the learned Subordinate Judge's order has to be modified. The tenant has only to pay at the present time one renewal fee; but the date of renewal will be the 26th April, 1926. The remand order will therefore be modified in the light of the above findings and the District Munsiff will give the tenant some further time if he finds that anything is due in addition to what has been already deposited. Each party will bear his own costs throughout up to this day.