1. The 1st defendant is the appellant. The suit was for redemption of a Tcanoin for taking the accounts as between the mortgagor and mortgagee, including the value of improvements due to the mortgagee, and for the usual other reliefs.
2. The lower Appellate Court has decreed redemption and has given certain directions as to how the value of the improvements is to be calculated. The questions raised by the first defendant in this second appeal are:
3. (1) Whether the plaintiff could redeem that portion of the lands demised on the kanom of 1850 which portion is in the possession of the 1st defendant, on payment of the proportionate kanom amount and of the value of the improvements made on that portion by the 1st defendant;
4. (2) whether the 1st defendant is entitled to the value of the cost of the conversion of the jungle lands into paramba lands; and
5. (3) whether the rate of compensation to be allowed per para of seed-sowing lands is to be Rs. 7 per para as agreed upon between the mortgagor and the mortgagee under the document, Exhibit A of 1850, or whether the value should be calculated in accordance with the provisions of Sections 9 to 18 of the Madras Act I of 1900, palled the Malabar' Compensation for Tenants' Improvements Act.'
6. As regards the first question, there is the distinct finding of the lower Appellate Court that the original mortgage of 1850 had been split up with the consent of both the parties and it is also stated in the lower Court's judgment that the objection was given up by the 1st defendant in the District Munsif's Court and was not argued in the lower Appellate Court.
7. Coming to the 2nd and 3rd questions, the lower Appellate Court construed the Full Bench decision in Randupurayil Kunhisore v. Neroih Kunhi Kantian (1) as deciding that in the case of contracts made prior to 1st January 1885, the right to claim compensation depends upon the terms of the contract and the rate of compensation is also governed by the terms of the contract, and not by the provisions of the Malabar Compensation for Tenants' Improvements Act. As one of the terms of the Jianom, Exhibit A, is that the mortgagor need not pay the cost of clearing the jungle lands and converting them into parambas, the lower Appellate Court disallowed that cost.
8. The decision in Randupurayil Kunhisore v. Neroth Kunht, Kannan 1 Ind. Cas. 207 : 32 M.P 1 : 18 M.L.J. 98 : 5 M.L.T. 277 has, however, been interpreted by the later Full Bench decision Kochu Rabia v. Abdur Rahman 24. Ind. Gas. 106 : 6 M.L.J. 523 : 1 L.W. 433 : 15 M.L.T. 356 as not inconsistent with the decision in Koshikot Pudiya Kovilagath Sreeman Vikraman v. Oliundayil Madattul Anant Pattar 6 Ind Cas. 887 : 34 M.P 61 : (1910) M.W.N. 409 : 8 M.L.T. 218 : 20 M.L.J. 849 and in Neechooli Paris Amma v. Ghathanadath Kallaisin Kunhi Kandan 12 Ind. Cas. 765 : 36 M.P 410 : (1911) 2 M.W.N. 513 : 11 M.L.T. 30. In the case of Neechooli Parie Amma v. Ghathanadah Kal-lassin Kunhi Kandan 12 Ind. Cas. 765 : 36 M.P 410 : (1911) 2 M.W.N. 513 : 11 M.L.T. 30 it was held that where the kamomdar was not restrained by a contract made prior to January 1886 from making improvements, but was only restrained from claiming a right to compensation for such improvements, the Itanomdar is entitled to claim compensation under the Act, notwithstanding the provision in the agreement. We are bound to follow the later Full Bench ruling and we hold that notwithstanding the terms of Exhibit A, the 1st defendant is entitled to claim compensation for conversion of jungle lands into parambas.
9. As regards the 3rd question, the same Full Bench ruling reported in Kochu Rabia v. Abdur Rahman 24. Ind. Gas. 106 : 6 M.L.J. 523 : 1 L.W. 433 : 15 M.L.T. 356 has held that the earlier Full Bench decision in Randupurayil Kunlusore v. Nevoth Kimhi Kannan 1 Ind. Cas. 207 : 32 M.P 1 : 18 M.L.J. 98 : 5 M.L.T. 277 should not be construed as negativing the tenants' right to claim compensation for improvements according to the Act, if the terms of the mortgage agreement are less favourable to him as regards such right, even though the mortgage agreement was executed before 1886. Mr. C.V. Ananthakrishna Aiyar, the plaintiff's learned Vakil, argued that the opinion of the Full Bench on this point in Koohu Rabia v. Abdur Rahman 24. Ind. Gas. 106 : 15 M.L.T. 356 as to the construction of the judgment in Randupurayil Kunhisore v. Neroth Kunhi Kannan 1 Ind. Cas. 207 : 5 M.L.T. 277 was erroneous. We naturally refused to listen to this argument.
10. In the result, we request the Subordinate Judge to submit findings as to the compensation due to the 1st defendant for the conversion of judgle lands into parambas and for the conversion of lands into rice-producing fields in accordance with the provisions of the Malabar Tenants' Improvements Act.
11. Time three months from receipt of records and ten days for filing memorandum of objections.
12. In compliance with the order contained in the above judgment, the Temporary Subordinate Judge of Palghat at Calicut submitted the following.
13. Findings.--I am asked by the High Court to submit findings on the following points:
14. What is the compensation due to the 1st defendant (1) for the conversion of jungle lands into parambis, and (2) for the conversion of lands into rice-producing fields, in accordance with the provisions of the Tenants' Improvements Act?
15. 1st point. There is no evidence that the parambas yield any income. Apparently they do not yield, because they are in the course of reclamation into paddy fields. Jungle must be first removed, then there must be levelling and putting up Of ridges by removing the roots of trees, but only the first portion of the work has been done, and the rest remains to be done. So, there will be no yield now. The 1st defendant is, therefore, entitled only to the costs of clearing the jungle tinder Section 11 of the Act. There were two Commissions in this case, and both Commissioners agree that the costs will be Rs. 318-11-3.
16. 3. I find that the 1st defendant is entitled to Rs. 318-11-3 on this head.
17. 4. 2nd point. In deciding this point there are three things to be considered and they are (a) extent of lands, (b) the rent of the lands, and (c) the price of paddy, and I shall consider each head separately.
18. 5. (a) I have already found the extent in paragraph 11 of my previous judgment, because it was upon the extent that I calculated the value of improvements at so much per para. The extent is 283-1/4 paras approximately.
19. 6. According to survey measurements, 10 paras make one acre, and so there are about 28 and odd acres now. At the time of survey, the extent was 25 acres. So there is an excess of 3 odd acres now, or about 33 odd jaras.
20. 7. Out of 25 acres which existed at the time of Settlement, 15 was double crop and 10 single crop, as we see from the Settlement register. It is admitted by 1st defendant that he has not done anything for those lands since then. All the lands except plots L series are old lands, and yet the 1st defendant says that all of them except G series are double crop lands. This cannot be true. The extent of G series is only 16f paras, a little over If acres only, whereas we found that there were 10 acres of single crop lands. So, it is clear that many of the plots claimed by 1st defendant to be double crop are only single crop lands, and the Commissioners have found so in respect of several plots by actual observation. With legard to some other plots, the Commissioners have not expressed an opinion. However, it is certain that the extent of old single crop lands is at least 10 acres or 100 paras, and not 16 odd paras as contended by 1st defendant.
21. 8. The Commissioners have made their calculation on the supposition that the 1st defendant will prove his assertion. They have taken all the lands pointed out by 1st defendant as double crop, and on that supposition they have prepared the account. So, they have made a mistake as to the rent also. For double crop lands they have calculated rent at 6-fold or so, and for single crop lands at 3-fold or so, and in that way they have arrived at tile rent, but if the extent of double crop lands is less, there must be a diminution of rent also. For 150 paras of double crop the rent will be 900 paras of paddy, and for 100 paras of single crop the rent will be 300 paras, and thus the total will be 1200 paras, and this is the rent we find in Exhibit R. So, the rent of old lands is only 1200 paras.
22. 9. I find that the extent of double crop lands is about 150 paras, and that of single crop lands 133 odd (including the new lands). Total is already found by me.
23. 10. (b) In considering the first point, I have already said that the rent of old lands is only 1200 paras. The rent of new lands is only 93 odd as found by the Munsif.
24. 11. I find, therefore, that the total rent is only 1293 paras and1 1/2 danglies.
25. 12. (c) As to the price, the Munsif says that he caused the Commissioners to malce experiments and thus arrived at the figure according to the Government notification which was then in force. They, therefore, found that the price was 2 paras 6 danglies 2 3/4 nazhies a rupee. According to the latest notification dated 16th June 1914, the rate is 21-69 danglies per rupee, and this will come to about the figure arrived at by the Commissioners by actual experiment.
26. 13. I find, therefore, that the price must be calculated at 2 paras 6 danglies 2-3/4 nazhies per rupee.
27. 14. It follows, therefore, that the value of reclamation will come to Rs. 4,492-14-0, and I find accordingly.
28. 15. It must be stated here that the plaintiff's Vakil argued that the jenmi's rent must be deducted along with revenue and cultivation expenses, but there is no provision in the Act for such deduction, and it has not been usual to make such deduction till now. I disallow this contention. And it does not seem to have been taken in the lower Court.
29. 16. Then, it was argued that the cost of eries and tanks must be taken as a part of the cost of making the reclamation and that the eries and tanks should not be separately paid for; in addition to the value of reclamation. The Act says that eries and tanks will be improvements. Further, there is no evidence that the crop can be raised only with the help of the eries and tanks. Sometimes these may be necessary, and at other times the rain water alone may be sufficient. There is no evidence on the point, apparently because the same was not taken in the lower Court. This is a new point raised here, and as it depends on evidence which is not on record, it cannot be allowed.
30. 17. My finding is that on both heads together the 1st defendant is entitled to Rs. 4,811-9-3.
31. 18. It may also be mentioned here that the 1st defendant purchased the property for Rs. 3,880 only, and after that he has made only about 93 odd paras of single crop lands and some parambas, and he is now getting more than Rs. 8,300.
32. This second appeal coming on for final hearing after the return of the finding of the lower Appellate Court upon the issues referred by this Court for trial, the Court delivered the following.
33. Judgment.--We accept the finding. We modify the decree of the lower Appellate Court by allowing to the 1st defendant Rs. 4,811-9-3 for improvements (on account of reclamation) in substitution of the amount of Rs. 1,983-1-7 awarded by the decree of that Court.
34. The plaintiff-respondent will pay the appellant-1st defendant's costs in this second appeal.
35. Time for redemption will be extended to six months from to date.