1. This is a suit from North Malabar and it is concerned with a Malabar tenancy. The land is jenm property and in 1907 it was demised on kanom tenure to the predecessors-in-title of defendants 1 and 2. According to the custom of the country that tenancy expired in 1919 but the kanomdars did not apply for renewal of the term. Since then therefore they have been holding land on yearly tenancy. On 5th September 1933, the jenmi granted to the present plain, tiff what is called a melcherth. A melcherth as defined in the Malabar Tenancy Act, 14 of 1930, means
the transfer by the landlord of part of his interest in any land held by his tenant by which the transferee is entitled to evict such tenant.
2. The jenmi's title to evict accrues under Section 20(3) of the Act, namely on the ground that the period of the kanom tenancy has expired and no renewal has been obtained. This suit, the subject of the present appeal, was to evict defendants 1 and 2. The learned District Munsif of Badagara who tried it in the first instance decreed it in favour of the plaintiff melcherthdar; but on appeal the learned District Judge dismissed the suit. The ground on which the learned District Judge dismissed the suit arises out of the fact that there had been a previous melcherth. In 1922 the then jenmi gave a melcherth to defendant 7. Defendant 7 filed a suit and obtained a decree on that melcherth on 27th September 1923. By the terms of that decree, Ex. 7, defendant 7 had, as happens in most cases, to repay not only the kanartham, a mortgage amount, to the kanomdars but also had to pay to them the sum decreed as the value of improvements.
3. Defendant 7, however, did not do any of these things. He suffered his decree to lapse by doing nothing to execute it. At the time of the second melcherth in favour of the present plaintiff that decree had become inoperative. At first sight therefore, it appears that there was nothing to prevent the jenmi or his assignee, by way of melcherth, from exercising the right of eviction. The learned District Judge, however, arrived at the conclusion, that he could not do so. His reasoning is as follows : There is a decision of the Judicial Committee of the Privy Council Raghunath Singh v. Hansraj Kunwar , which lays down that a suit by a mortgagor to redeem a mortgage will lie even though a previous suit by the same plaintiff for the same relief had been dismissed, provided that there was no provision in the decree in the previous suit debarring the mortgagor from his right to redeem the property.
4. Founding on this judgment the learned District Judge held that defendant 7, the prior melcherthdar, had not lost his right under his grant to sue; and from that finding I am not prepared to differ. But the learned Judge went on to a conclusion with which, agreeing with learned Counsel for the appellant, I do not agree. He held that so long as defendant 7 melcherthdar had a right to bring a suit to evict the existing tenant the jenmi himself had no such right; and a fortiori the assignee from the jenmi under the second melcherth had no such right. This finding is attacked on appeal by the plaintiff and I think that the learned District Judge's finding cannot be supported. The nature of a melcherth is that the grantee should redeem the kanom and enter on to the land and be in possession thereof as a tenant under the jenmi, paying him rent according to the terms of the melcherth agreement and that he should continue in that tenancy for a period ending with 12 years from the date of melcherth. The finding of the learned Judge amounts to this, that once having granted a melcherth the jenmi practically parts with the whole of his landlord's right and has no remedy at all if the melcherthdar for some reason as in the present case does not perform his part of the contract and enter into possession of the land. The existing kanomdar may be a very unsatisfactory tenant, a person who is always in arrears with his rent, a person who allows the land to deteriorate by bad methods of cultivation and so on, and the very purpose of the melcherth may be to evict that tenant and to substitute a more satisfactory tenant in the person of the melcherthdar himself. The finding of the learned District Judge means that if the melcherthdar does not act according to the terms of his contract, the jenmi, as I have already said, has no power to evict the tenant for twelve years. It appears to me that the reasoning of the learned District Judge is fallacious. Even if the melcherthdar has a right to bring another suit, I do not see why the jenmi has not also a right to bring a suit like the present in which defendant 7 is impleaded.
5. Defendant 7 is impleaded as a person in possession of a right which he has failed to exercise. The learned District Judge has refused to rely on the case in Raman Nambudiri v. Achuta Pishurodi (1912) 35 Mad. 42 which has been relied upon and in my opinion very properly by the trial Court. In that case the facts were very much like the present. There had been a melcherth; the melcherthdar had instituted a suit to evict the kanomdar and had got a decree. He had allowed that decree to become barred by limitation. The learned Judges, Subramania Iyer and Boddam JJ., held that, since the melcherthdar's decree was no longer in force, there was nothing to prevent the jenmi's assignee from exercising his right of redemption. And also in that case there is an observation which is very pertinent in the present connexion. The learned Judges observed that if the melcherthdar's right to redeem under the previous decree was in force and executable, the right to redemption as between the melcherthdar and the jenmi would have been preferentially in the former. In that observation is implied the proposition which I have just stated, namely that in a suit like this even if the jenmi has granted away to a melcherthdar the right to redeem, then in proper circumstances he himself is not debarred from filing a suit to redeem and to evict the tenant. My own opinion is that it does not make any difference whether the melcherthdar has filed a suit and obtained a decree and has allowed the decree to become barred. If it is plain that he has no intention of implementing his melcherth, namely by exercising his preferential claim to redeem the kanom I see no reason why the jenmi himself or his assignee should not file a suit for that purpose provided that he impleads the melcherthdar.
6. I think therefore that the trial Court is right in holding that the plaintiff's suit was maintainable, and that it would make no difference even if the melcherthdar was at liberty himself to file another suit to evict the kanomdar. The learned District Judge's decree is dated 7th July 1936. Some months later in this Court in Viroopakshan Nambudripad v. Tarwad Karnawan : AIR1937Mad214 a Full Bench decided the point now at issue. To put it very shortly, it was there decided that the jenmi's right to maintain a suit to evict the kanomdar was not affected by the circumstance that the period of a melcherth previously granted had not expired. That also was a suit in which the melcherthdar or rather his assignee had obtained a decree but had proceeded no further and had allowed his decree to become time-barred. So much for the main question at issue in this appeal. Learned Counsel for the respondents has raised a point which is important. The plaintiff in this plaint stated that the kanartham in this case was more than 45 per cent, of the value of the jenmi's rights in. the property. That averment was made in view of Section 17(c), Malabar Tenancy Act, Section 17 provides that a kanomdar shall, on the expiry of the kanom under which he holds, be entitled to claim, and his immediate landlord shall be bound to grant a renewal of the demise. But Clause (c) of Section 17 provides amongst other things that nothing in that Section shall apply to a kanom in North Malabar where the kanartham exceeds 40 per cent. In the written statement the kanomdar defendants stated that they were persons who under Section 17(a) were entitled to a renewal. Learned Counsel for the respondents now urges that that point has not been tried and that it is necessary that it should be tried. The learned District Judge on appeal has said something about this matter. In para. 7 he says:
It is alleged In the plaint that the kanom amount exceeded 40 per cent, of the jenmi value and as such Section 17, Tenancy Act, does not apply.
7. In other words the defendants were not entitled to a renewal of the tenancy. The defendants disputed this in their written statement but no issue was raised on it and the only inference that could be drawn from this as well as the fact that absolutely no mention is made of it in the lower Court's judgment, is that this point was not pressed. There is no reference to it even in the grounds of appeal. For the first time at the hearing of the appeal the learned advocate for the appellants alludes to it. It is wholly an afterthought. The question for decision now is whether this point has been properly raised and should have been put in issue and tried. I do not think the point has been properly raised by the kanomdar defendants. Under Section 17 they are entitled to ask for a renewal when the tenancy expires. This tenancy expired in 1919. The Act was not in force in 1919; the landlord was not bound to grant a renewal then if it had been asked for, but that was no reason why the tenant should not have asked for it. There is no averment in the written statement of these defendants that they ever did ask for it at that time.
8. Or again under Section 23(b) a further opportunity was afforded to these defendants of applying for a renewal. Section 23(b) is 'If the landlord sues to evict on ground (3) referred to in Section 20' (precisely the case here) 'the tenant shall be entitled to make an application or fresh application under Sub-section (1) of Section 22,' (that is to say, for the execution of a renewal deed) 'and the suit shall abide and follow the result of such an application.' Since therefore there was no previous application for renewal either at the time of the expiration of the tenancy or at any subsequent time, the opportunity to apply came again when this suit was filed and that opportunity was not availed of. It seems to me therefore to follow that the defendants of set purpose did not press their claim in the Court of first instance, that the provisions of Section 17 applied to them. If they really believed that, they would obviously have filed a petition under Section 23(b) and the questions that have been raised in this suit would have had to abide and follow the result of that application. This form of procedure to my own certain knowledge is very well known in Malabar. I have no hesitation in agreeing with the lower Appellate Court that this point was not pressed. This is sufficient to dispose of the question raised in the appeal and my finding must be that the appeal of the plaintiff is allowed and the decree of the lower Appellate Court is set aside and the appellant will have his costs throughout.
9. A further point has arisen however at the hearing of the appeal with which the appellant himself is not concerned. It arises out of the fact that in a suit of this kind in Malabar a particular subject of contest is very often the amount which the plaintiff has got to pay to the outgoing tenant for the value of improvement effected by the latter. There is no dispute about the figure which the lower Court has decreed under the head. But a difficulty arose at the trial for the reason that the rights of the persons entitled to this money also had to be adjudicated by the Court. There were lessees under the kanomdars and there were submortgagees under the kanomdars. There was a contest at the trial between these various persons as to how the money should be apportioned. In respect of one item of property, namely item 20, the trial Court directed that the value of the improvement attributable to this item should be paid to defendants 3 and 7. On appeal this decision was modified to a slight extent, the lower Appellate Court holding that out of the amount so declared payable to defendants 3 and 7, defendant 4 was entitled to get the amount of a usufructuary mortgage dated 7th November 1894, Ex. 3.
10. All the defendants got notice in this appeal and defendant 4 appeared by counsel and defendants 3 and 7 appeared by counsel and at the close of the hearing of the appeal learned Counsel for the latter stated that he wished to challenge the findings of the lower Appellate Court and to obtain a restoration of the decree of the trial Court so far as it was to the advantage of his clients. The learned advocate for defendant 4 points out that he has had no notice of this claim. There is no reason why the claim if it involves a point of law should not be investigated on second appeal; but I am at present faced with a difficulty that I can only hear one side. It is better therefore that this question be left open for further hearing after learned Counsel for defendant 4 has obtained instructions in the matter. It will be, I think, most convenient for all parties if on behalf of defendants 3 and 7 a statement in the form of an ordinary memorandum of appeal is filed and given to the learned advocate for defendant 4 and then some near date will be fixed for the hearing of this point.