Parameswaran Namboothiripad v. Variathu — 1949 DIGILAW 6 (KER)

JUDGMENT : S. KRISHNA PILLAI, J. 1. The plaintiff in O.S. No. 128 of 1120 on the file of the District Judge of Trichur is the appellant. The plaint properties of the Malloor Devaswom were outstanding on a Kanom of the year 1081 with one Govinda Adigal. On a Melcharth executed in favour of the first defendant on 3.11.1100 (Ext. VIII) the properties were redeemed and reduced to the first defendant’s possession. The plaintiff who has succeeded to the rights of the Devaswom for collecting the Michavaram which has fallen into arrears and for redemption under the terms of Ext. 8 mortgage of 12.10.1120 has brought the suit for recovery of the arrears and for redemption of the mortgage. The second defendant owns a half share in the tenancy rights of the first defendant and is sought to be made liable along with the first defendant. He denied the liability for Michavaram on the ground that the first defendant was in exclusive possession. The fifth defendant was impleaded as a person in possession of some items but he set up independent title and claimed exoneration from the plaint claim. The lower Court granted a decree for arrears as claimed in the plaint against defendants 1 and 2 except for a small portion of one hundred and seventy paras of parddy forming part of the Michavaram for the year 1118, refused redemption and left open the question of the fifth defendant’s rights. Against this decree the plaintiff has brought this appeal in which he raises the question of redemption and the disallowed portion of the Michavaram due for the year 1118. 2. On the question of the redeemability of the tenure the learned Counsel for the appellant conceded before us that it was incumbent on this Court to stay its hands by reason of the provisions contained in S. 3 of the Royal Proclamation VI of 1124 of Cochin. 2. On the question of the redeemability of the tenure the learned Counsel for the appellant conceded before us that it was incumbent on this Court to stay its hands by reason of the provisions contained in S. 3 of the Royal Proclamation VI of 1124 of Cochin. That Section is as follows: “Notwithstanding anything contained in the Cochin Tenancy Act XV of 1113, no suit for the redemption of the Kanom falling within the meaning of the term ‘Kanom’ as defined in the said Act, created on or after the 9th day of Thulam 1090 shall be maintainable in OUR Court and all suits, appeals, revisions, reviews and proceedings on execution of a decree for the redemption of such Kanoms shall be stayed by OUR Courts in so far only as they relate to the relief for redemption: Provided that this proclamation shall not preclude a landlord from instituting a suit for the recovery of arrears of Michavaram or Puravaka dues for which the tenant shall be liable”. We are told that this prohibition is still in force. We are in law bound to give effect to this provision. We do so and order that the appeal, in so far it relates to the trial of the issue of redeemability will stand over for consideration until otherwise ordered. The postponement of this question, however, does not prevent the Court from disposing of the other disputes involved in the appeal. 3. It is one of the terms of the demise that if, in any one year, any part of the land were to lie fallow the tenant would be entitled to a rebate of the proportionate Michavaram chargeable on them. The amount for each item is also separately specified. Accordingly if the defendant’s case is true that items 3 to 5 were not cultivated in 1118 his claim for rebate to the extent of one hundred and seventy parahs of paddy should be upheld. The lower Court has found the defendant’s case to be true. On hearing the evidence in the case we are not inclined to differ from the conclusions of the lower Court. The plaintiff himself has admitted the best part of the defendant’s case as true for, according to his own witness PW 2, the lands were inundated by floods in 1118 and cultivation in the ordinary course could not be performed that year. The plaintiff himself has admitted the best part of the defendant’s case as true for, according to his own witness PW 2, the lands were inundated by floods in 1118 and cultivation in the ordinary course could not be performed that year. He would, however, try to get over the difficulty by stating that the lands were cultivated with Kuttadan crops, a cultivation which can be performed even when the land is under floods. There is no evidence however worth the name that the defendant raised such crops so as to render him liable for at least a part of the crops. The learned Counsel makes much of an omission made by the lower Court which did not take the trouble to discuss the evidence of the defence witness or record his conclusions as to their credibility. This seems to us to be a bare omission which does not affect the case on its merits. The lower Court has disbelieved the plaintiff’s evidence and disallowed his claim for the reason that the defendant was unable to cultivate the lands on account of the floods. There is no reliable evidence in support of the plaintiff’s story about the Kuttadan cultivation. We therefore confirm this part of the lower Court’s decree. 4. The second defendant has filed an objection memorandum in which he questions the legality of the personal decree passed against him. He states that though he has succeeded to the interest of the first defendant to the extent of a half share he has not been able to secure possession but that the first defendant is in sole occupation. He therefore contends that the liability to pay the rent must be that of the first defendant. It is conceded that he became entitled to a moiety of the tenancy rights as early as the year 1105 and that he allowed the first defendant to carry on the cultivation by himself on the understanding or in the hope that the first defendant would pay him his share. If that were the only defence set up by him, we would have felt little difficulty in over-ruling him, for this liability arises not from possession, but from the privity of estate which has been brought about by the assignment. The decision of the Privy Council in Ram Kinkar Banerji v. Satya Charan Srimani, ILR (1939) 1 Cal. If that were the only defence set up by him, we would have felt little difficulty in over-ruling him, for this liability arises not from possession, but from the privity of estate which has been brought about by the assignment. The decision of the Privy Council in Ram Kinkar Banerji v. Satya Charan Srimani, ILR (1939) 1 Cal. 283, puts the matter beyond all doubt. In unequivocal terms Their Lordships of the Judicial Committee have pointed out that an assignee of a lease is liable by privity of estate for all the burdens of the lease, burdens which are imposed upon him by the mere assignment whether he enters into possession or not. 5. But it was contended that this rule would not apply as his possession was not that of an assignee, but only that of a tenant at sufferance whose liability was founded on user and occupation. The argument was that the demise being for a term of twelve years commencing from 3.11.1100 must be deemed to have terminated by efflux of time on 3.11.1112 and that the tenancy must therefore be treated as a tenancy at sufference in which the liability for rent would arise by reason of possession and not by reason of the agreement or privity of estate. This contention is not sound. A tenancy at sufferance arises when the possession commences under a lawful title and continues after that title has determined and such continuance is without the consent of the person entitled. If either of these conditions is not satisfied there can be no tenancy at sufferance under law. In Halsbury’s Law of England, Second Edition, Vol. 20, Page 122, the following passage on the subject occurs: “One who enters on land by a lawful title, and after his title has ended continues in possession without obtaining the consent of the person then entitled, is said to be a tenant at sufferance. This is so whatever was the nature of his original estate, whether he was tenant for years, or the under tenant of a tenant for years, or a tenant at will.” It is also added therein, that “the tenancy requires no notice to determine it; consequently the landlord may enter, or the tenant may leave, at any time with out notice; and a tenant at sufferance is not entitled to emblements.” 6. The position of a Kanom tenant is different. The position of a Kanom tenant is different. A Kanom tenancy is created for a definite period and also for a money consideration. Under this tenure the tenant is entitled not only to hold it for a period (of twelve years generally) but also to hold it so long as the Kanom amount remains unpaid. It is not therefore true to say that his title becomes extinguished by the expiry of the term. Nor can it be said that he is a person who holds over without the consent of the landlord for he is there by reason of the charge without payment of which he is not liable to be turned out. He is entitled to hold it whether or not it pleases the landlord. Such tenant cannot therefore be treated on the same footing as a tenant at sufferance. The learned Counsel relied on Sankaran Nayar v. Narayanan Nayar, 19 Cochin Law Reports 47. In this case a lease for a period of one year was assigned by the lessee to another person long after the expiry of the term. It was held that at the time of the assignment the assignor was in the position of a tenant at sufferance and that the assignment made by such a person would not create any privity of estate between the assignee and the original lessor and that therefore the assignee could not be made personally liable for the rent of the properties. That case cannot apply to Kanom demise where the tenant is holding not only for a term either fixed or implied but also for a fixed premium. The position of a tenant for a term of years as distinguished from a tenant who has advanced a premium by virtue of which he holds the property for a term and without payment of which he cannot be ousted of possession at the expiry of the term cannot be put on the same footing as a trespasser simply because the term has expired. This is supported by the decision reported in Vasudevan Vadhyan Numbudri v. Sankara Ayyer, 34 Cochin Law Reports 76. The respondent is not prepared to concede that the demise of 3.11.1100 does not confer on him any right of permanent occupancy but he concedes that he has a Kanom interest in the property which can be liquidated only by payment. This is supported by the decision reported in Vasudevan Vadhyan Numbudri v. Sankara Ayyer, 34 Cochin Law Reports 76. The respondent is not prepared to concede that the demise of 3.11.1100 does not confer on him any right of permanent occupancy but he concedes that he has a Kanom interest in the property which can be liquidated only by payment. He even contends that such Kanom exceeds even Rs.2000 the amount for which Ext. A was executed. Whatever be the nature of the tenure, whether an irredeemable Kanom or a redeemable mortgage, he cannot be put on the same footing as a tenant at sufferance even though the term for which his tenancy was to last has terminated. He cannot treat himself as a trespasser for nonpayment of rent and a lessee for realisation of Kanom. We therefore overrule the second defendant’s contention. 7. It is contended as a last alternative that the second defendant’s interest being only of a half share his liability should not be put higher. We do not think that the plea is good against the landlord, but in the peculiar circumstances of the case we would allow it. While therefore we would leave the decree for arrears against the first defendant and the entire Kanom rights as it is, we would limit the personal liability of the second defendant to one half of the plaint claim. We do so only on equitable grounds and not on any legal basis. 8. The fifth defendant contended that 97 cents in survey number 405 and 38 cents in survey number 447, being in his possession under a demise of an earlier date granted to some other tenant, cannot be made liable for the Michavaram due from the defendants 1 and 2. The lower Court did not try this issue for the reason that the demise was found to be irredeemable. The trial of that question has now been stayed by us. The question may not be material at this stage as the land is not to be recovered at all under the decree. Still there is a possibility of the Kanom right being purchased in execution of the decree; in which event the question of possession by the auction-purchaser might arise. The question may not be material at this stage as the land is not to be recovered at all under the decree. Still there is a possibility of the Kanom right being purchased in execution of the decree; in which event the question of possession by the auction-purchaser might arise. In the circumstances we would confine the Kanom rights of defendants 1 and 2 to the other items and leave open the question for determination after the stay is vacated. 9. In the result we stay the appeal in so far as it relates to the redeemability of the tenure, confirm the decree of the lower Court in other respects except the personal decree against the second defendant which we reduce to a moiety of the decree amount. The memorandum of objections is dismissed without costs. The appeal is disposed of in the manner and to the extent indicated above. There will be no order as to the costs of this appeal.