1. The appellant has obtained a decree for redemption and has been ordered to pay compensation in respect of trees of spontaneous growth grown during the period of the tenancy and also in respect of certain reclaimed lands called kari nilam. As regards the trees of spontaneous growth, it is found by the District Judge that they grew during the period of the tenancy and that although they may have replaced the trees cut and burnt down by the tenant, they add to the value of the holding and that the land would be worthless as soil for punam if they were not on it. He has further held that they answer the definition of 'improvement' on the strength not of Section 3 of the Act (Compensation for Malabar Tenant's Improvements Act 1 of 1900) which defines the word 'improvement' but on the strength of certain remarks in two judgments of this Court. The first one is that of Sadasiva Ayyar, J., in T. Raman v. K.P. Manakkal Karnavan : AIR1915Mad1215 .
Section 10 says (as I understand it) that trees and plaints of spontaneous growth during the period of the tenancy must also be considered as improvements made by the tenant.
2. It is not suggested that the trees and plants of spontaneous growth cannot possibly be improvements within the meaning of the Act and the question of whether such trees were improvements, although they were not the 'product of work' and did not add to the value of the land, has not been considered by the learned Judge. That remark has no application to the facts of the present case. The second case relied upon is In re Narayani Amma v. Kunhu Kutti Ammo : (1917)32MLJ541 , where the present learned Chief Justice (then Coutts-Trotter, J.) says:
I do not think it is necessary in an Act so loosely drafted as to this follows Mr. Menon's minute deductions from the language of Sections 5 and 6 and to say that the Act enacts that a tenant who passively allows trees to take root and grow on the land is making improvements' within the meaning of the Act, I think it is sufficient to say that the Act in enumerating certain things for which the tenant should be given compensation, the great majority of which can be properly described as improvements made by him, includes in the list spontaneously grown trees which can hardly be properly described, as 'improvements' and certainly cannot be said to be made by him or anybody else. I am therefore of opinion that the Act awards compensation to the tenant in respect at all spontaneously grown timber left on the holding on ejectment which came into existence either during the terms of the tenant or that of his predecessor, provided that no compensation has already been paid for it.
3. Although, therefore the District Judge has found that these trees were not the product of work within the meaning of Section 3, he has held in accordance with the above decisions they do constitute an improvement within the meaning of Section 10 of the Act. When the learned Judge in 32 M.L.J. says:
I think it is sufficient to say that the Act in enumerating certain things for which the tenant should be given compensation, the great majority of which can be properly described as 'improvements' made by him, includes in the list spontaneously grown trees which can hardly be properly described as 'improvements' and certainly cannot be, said to be made by him or anybody else,
he may be taken as meaning that the spontaneously grown trees must be deemed to be an improvement, although they do not come within the definition of improvement, in Section 3; but I do not think it is necessary to read that meaning into the words, for he further says that they cannot be said to be made by the tenant; trees and crops on land can hardly be said to be made by the agriculturist but they are the result of his work aided by the forces of nature and in that respect trees grown spontaneously would be just as much made by the tenant as any other growth which was due to his agricultural work. If, however, the learned Judge meant to say that the word 'improvement' in Section 10 has a different meaning to that which the same word has in other sections of the Act and has not the meaning defined in Section 3, with all respect we are not prepared to agree.
3. It is contended for the respondent that we must give the word 'improvement' in Section 10 a different meaning to what it bears in other portions of the Act. Section 3, Clause 3, runs as follows:
Improvements means any work or product of a work which adds to the value of the holding, is suitable to it and consistent with the purpose for which the holding was let, mortgaged or occupied
and in the beginning of the section there is the proviso,
unless there is something repugnant in the subject or context.
4. It cannot be argued that in Section 10 there is anything absolutely repugnant to the application of the definition in Section 3. When an improvement consists of timber trees or other useful trees or plants spontaneously grown during the period of the tenancy, it cannot be argued that such plants cannot in any circumstances be an improvement within the definition in Section 3. If they were protected or maintained by the tenant and at the same time (added to the value of the holding and were suitable to it and consistent with its purpose, they would come within the definition in Section 3, and, therefore, the proviso to that section does not apply. Cases of plants spontaneously grown there may be, in which those plants do not comply with the definition in Section 3; but that is not sufficient, for unless it is impossible to apply the definition in Section 3 to the word improvement in Section 10, the word in that section must be governed by Section 3. On the finding of the District Judge, the present trees were not an improvement within the Act, for he has found that they were not the product of work although it is clear that a product of work must include a product which is the result of natural causes either started or assisted by the act of the tenant. When trees have grown spontaneously, it would not be an unreasonable inference that they have been protected, for as is well known, a tree is in its early stages liable to be trampled upon or otherwise destroyed; and the mere fact that it grows up into a tree is some presumption that it has been protected. In that view the District Judge's finding of fact is possibly not correct, but it is unnecessary here to consider that matter for there is no finding that the spontaneous growth in question has added to the value of the holding, i.e., the value of the holding when it came into the tenant's possession. The District Judge on doubt says:
They add to the value of the holding for the land would be worthless as soil for punam if they were not on it.
5. It is, however, admitted that there were trees on the land when it was first leased, as is only to be expected when it is described as forest, and it was the intention of the parties that this forest should be cut down in places and cultivated under what is called 'punam' cultivation. In order therefore to show that the value of the holding was added to, it must be shown what the value of the holding was on the date of the lease and proved that it has an enhanced value at the present time. That has not been done and it will be impossible now to prove this fact considering that the lease began a hundred years ago. It is therefore unnecessary to call for a finding on this point. We are therefore of the opinion that the District Judge is wrong in stating that these trees are improvements within the meaning of the Act for which compensation should be given.
6. The second point argued is that compensation ought not to be given for the kari nilam or reclamation of forest land. The District Munsif found that there were no new reclamations but in appeal the District Judge has held that some of the kari nilams were made since the last lease was taken. This is a question of fact which is binding upon us in second appeal and so far the appeal must be disallowed. The decree will be modified by disallowing the compensation awarded for the trees that are of spontaneous growth, but in other respects confirmed. Parties will pay. and receive proportionate costs throughout.