Kochu Varkey v. Cochin Thirumala Devaswom — 1951 DIGILAW 86 (KER)

Judgment :- 1. The plaintiff in O.S. No. 77 of 1121 of the District Court of Anjikaimal is the appellant in this case. The plaint schedule properties belong to the Cochin Thirumala Devaswom which on the date of the suit was under the management of the Cochin Government. The Devaswom is now managed by its own trustees. The properties have been originally leased to one Puthenangadi Cheriathu Ouseph on 31.9.1194. Ext. A is the lease deed. The extent of the properties is 11 acres and 15 cents. They consist of paddy lands and cocoanut gardens. According to the plaintiff, the paddy land on the date of the lease, was 4 acres and 57 cents in extent, the remaining area being garden land. The annual rent is Rs. 306 As. 11 Ps. 7 inclusive of puravaka consisting of one bunch of cocoanuts and 451 cocoanut leaves valued at Rs. 20-1-11. The plaintiff took an assignment of the lease hold right from Cheriathu Ouseph. 2. According to the plaintiff a sum of Rs. 1531-11-2 was due to the Devaswom as arrears of pattom for the years 1116 to 1120. But the Devaswom claimed a much larger amount as arrears of pattom and took steps under the Cochin Revenue Recovery Act to realise the same. The plaintiff was therefore forced to pay Rs. 2069-11-7 in different instalments. It is alleged that the Devaswom collected an excess sum of Rs. 538-0-5. The suit is for reimbursement of the amount with interest at 6% per annum. 3. The Devaswom calculated pattom in respect of the garden land on the basis of S.5 sub-s. 2 of the Cochin Verumpattamdars Act VII of 1118. S.5 sub-s. 2 of that Act reads thus "Where cocoanut is the major produce of a garden land and the pattom fixed therefor under the contract of tenancy is payable in money, it shall be obligatory on the part of the verumpattomdar to give and the lessor to accept the pattom accruing due after the commencement of this Act in kind computed on the basis of the market value of cocoanuts prevailing on the date of the contract of tenancy or the money value thereof computed at the market rate prevailing on the date on which such pattom accrues due". On the basis of this sub-section the Devaswom treated the pattom in respect of the garden land as one payable in kind computed on the basis of the market value of cocoanut prevailing on the date of the lease deed and claimed its money value computed at the market rate prevailing on the date on which pattom accrued due. It was on that basis that the Devaswom realised Rs. 2069-11-7 as arrears of pattom from 1116 to 1120. 4. The plaintiff's case is that S.5 sub-s. 2 of the Cochin Verumpattamdars Act VIII of 1118 does not apply to the lease transaction in question. There is a further allegation in the plaint that in any case pattom ought to have been computed on the basis of the Cochin Verumpattamdars Amendment Act XVII of 1120. By that Act the basis of computation provided in S.5 sub- s. 2 of Act VIII of 1118 was varied. According to the Amendment Act the pattom accruing after the commencement of that Act should be computed on the basis of the average market value of cocoanuts for a period of 20 years prior to the date of the contract of tenancy or the money value thereof computed at the market rate prevailing on the date on which such pattom accrues due. This amendment however came into force only on the 23rd Mithunam 1120, and it is expressly made applicable only to pattom that accrues due after that date. The pattom in respect of which the reimbursement is claimed by the plaintiff is that which accrued due before 23rd Mithunam 1120. Therefore the amendment Act can have no application to the present case. The only point to be decided in this appeal is whether S.5 sub-s. 2 of Act VIII of 1118 applies to the lease transaction in question. If the sub-section applies then the Devaswom was justified in claiming Rs. 2069-11-7 as arrears till 1120. If on the other hand the sub-section does not apply, the plaintiff will be liable to pay pattom only at the rate of Rs. 306-11-7 as provided in Ext. A. 5. According to the learned advocate for the appellant three conditions will have to be satisfied for the application of the sub-section. One is that the leasehold should consist only of garden land. The second is that the major produce of the garden land should be cocoanuts. 306-11-7 as provided in Ext. A. 5. According to the learned advocate for the appellant three conditions will have to be satisfied for the application of the sub-section. One is that the leasehold should consist only of garden land. The second is that the major produce of the garden land should be cocoanuts. The third condition is that there must be a pattom fixed for the garden land under the contract of tenancy which is payable in money. 6. It was also argued by the learned advocate for the appellate that sub-s. 2 of S.5 should be strictly construed in the light of the provisions contained in sub-s.1 of that section. Sub-s.1 reads thus: "Subject to sub-s. 2 and to any remission to which a Verumpattamdar may be entitled under the provisions of this Act, the pattom payable by him in respect of his holding under the contract of tenancy shall not be enhanced or reduced." Therefore, it is argued by the learned Advocate, that sub-s. 2 should be interpreted in such a manner as to give effect as far as possible to the principle laid down in sub-s. 1. According to the learned Advocate for the respondent the object of the Cochin Verumpattamdars Act is to give fixity of tenure to verumpattamdars as is clear from the preamble to the Act. S. 4 of the Act provides that notwithstanding any law, custom or contract to the contrary, every verumpattamdar shall have fixity of tenure in respect of his holding and shall not be evicted therefrom except as provided in S. 8 of the Act. S. 8 allows eviction only in certain specified cases. It is therefore argued that S.5 sub-s. 2 was enacted for the purpose of giving some compensation to jenmies in return for their virtual loss of ownership in leasehold properties. In this view of the matter, it is contended that sub-s. 2 of S.5 should be given a liberal interpretation. It will be unsafe to speculate on the intention of the legislature apart from what is expressed by the words used in the sub-section. It is only in case of ambiguity with regard to the meaning of the words used in the sub-section that we shall be justified in referring to other provisions in the Act for ascertaining the intention of the legislature. It is only in case of ambiguity with regard to the meaning of the words used in the sub-section that we shall be justified in referring to other provisions in the Act for ascertaining the intention of the legislature. The object of the legislature in enacting the sub-section is to enable the jenmies of cocoanut gardens to get as pattom the same number of cocoanuts which they would have got on the date of the lease transaction with the money fixed as pattom for the property, or in other words, to enable them to get the benefit of the rise in the price of cocoanuts. The question for consideration is whether according to the wording of the sub-section the jenmies are entitled to claim this benefit in the case of a composite holding, i.e., a holding consisting both of garden land and paddy land. 7. With regard to the first point raised by the learned Advocate for the appellant, i.e., that the sub-section applies only to cases of leasehold consisting of garden land alone, we do not think that such a restricted interpretation is justified by the wording of the sub-section. According to the sub-section it is enough if there is a garden land included in the leasehold. We do not think that the mere fact that some paddy land also is included in the lease hold will exclude the garden land from the operation of the sub-section. Relying on the ruling reported in A.I.R. 1943 Mad. 181 (Kunhammad Koya v. Mullasseri Gopala Menon and another) the lower court has taken the view that if the holding is used principally for growing fruit-bearing trees or if the principal user of the holding as a whole is growing fruit-bearing trees it should be regarded as a garden land. That ruling is based entirely on the definition of "garden land" as given in the Malabar Tenancy Act. The expression "garden land" is defined in Cl. (g) of S. 3 of that Act as "any land used principally for growing fruit-bearing trees. The term garden land is not defined in the Cochin Verumpattamdars Act. That ruling is based entirely on the definition of "garden land" as given in the Malabar Tenancy Act. The expression "garden land" is defined in Cl. (g) of S. 3 of that Act as "any land used principally for growing fruit-bearing trees. The term garden land is not defined in the Cochin Verumpattamdars Act. We agree with the learned advocate for the appellant in his contention that in the absence of the definition of the term "garden land' in the Proclamation it will not be proper to adopt the definition given to it in the Malabar Tenancy Act for certain purposes and to treat the paddy land portion in the lease hold also as garden land if the principal user of the holding as a whole is growing fruit-bearing trees. But that does not mean that the portion of the holding which is really garden land as understood in the ordinary meaning of the expression should not be treated as such merely because another portion of the holding is paddy land. Even according to the appellant's learned Advocate out of the total area of 11 acres 15 cents an extent of 6 acres 58 cents consists of garden land. Therefore, admittedly the major portion of the properties included in the leasehold is garden land. The mere fact that an extent of 4 and odd acres consists of paddy land cannot take the lease transaction in respect of the garden land out of the purview of the sub-section. If the other conditions laid down in the sub-section are satisfied we are of opinion that the sub-section will apply to a case in which a portion of the lease hold is garden land. 8. With regard to the second condition, namely, that cocoanut should be the major produce of the garden land, it is not disputed in this case that cocoanut is the major produce of that portion of the leasehold which consists of garden land. The third condition is that there should be a pattom fixed for the garden land under the contract of tenancy payable in money. It was strenuously argued by the learned Advocate for the appellant that under the contract of tenancy in this case no separate pattom is fixed for the garden land forming part of the leasehold. Under Ext. A a total pattom of Rs. It was strenuously argued by the learned Advocate for the appellant that under the contract of tenancy in this case no separate pattom is fixed for the garden land forming part of the leasehold. Under Ext. A a total pattom of Rs. 306-11-7 is fixed for the whole leasehold including the garden land and the paddy land. It is therefore argued that it cannot be said that pattom is fixed for the garden land under the contract of tenancy. According to the learned Advocate for the respondent pattom was fixed separately for the garden land and for the paddy land although it is not so stated in the lease deed. He referred to the evidence in the case both documentary and oral in order to show that pattom was fixed separately for the garden land and the paddy land when the lease transaction was entered into. Ext.1 is the Devaswom file relating to leases including Ext. A lease transaction. The original lessee was one Lekshmana Iyer. The Government of Cochin which was in management of the Devaswom published rules relating to the renewal of leases of properties belonging to the Devaswom. Ext. XI is a copy of the Gazette Notification embodying the rules. Those rules prescribe the basis on which pattom should be fixed for garden lands and for paddy lands. Notice was issued to Lekshmana Iyer demanding renewal of the lease on the basis of the rules published by Government. Ext.1 contains the copy of the notice. That will show that the Devaswom calculated pattom separately for the paddy land and for the cocoanut garden. Ext.1 and the evidence of D.W.1 the ten Revenue Kariakar of the Devaswom show how pattom was fixed for the garden land and for the paddy land. On the basis of the method of calculation contained in Ext. XI rules Rs. 197-5-0 was fixed as pattom for the cocoanut trees in the leasehold and Rs. 85-6-8 as pattom for the paddy land and Rs. 3-14-0 as Payatu Pattom. These three items and the puravaka of Rs. 20-1-11 make up the total pattom of Rs. 306-11-7. There is no reason to doubt the authenticity of Ext.1 or to disbelieve D.W. 1. D.W. 2 the pattamali of the Devaswom and D.W. 3 the Devaswom manager also support the evidence of D.W. 1. 9. 3-14-0 as Payatu Pattom. These three items and the puravaka of Rs. 20-1-11 make up the total pattom of Rs. 306-11-7. There is no reason to doubt the authenticity of Ext.1 or to disbelieve D.W. 1. D.W. 2 the pattamali of the Devaswom and D.W. 3 the Devaswom manager also support the evidence of D.W. 1. 9. We have therefore no doubt that pattom was separately fixed for the garden land and for the paddy land included in the leasehold and that it was the sum total that was mentioned in the document as the annual pattom for the leasehold. Lekshmana Iyer refused to take a renewal on the terms mentioned in the notice. He objected to the rate fixed both for the paddy land and for the cocoanut garden. But Cheriathu Ouseph agreed to the terms and executed Ext. A lease deed. It is therefore argued for the respondent that in this case pattom was in fact fixed separately for the garden land and for the paddy land under the contract of tenancy although it was not so mentioned in the lease deed. The further question for consideration is whether in a case in which it is not stated in the lease deed that pattom was separately fixed for the garden land and for the paddy land the court can go into the question whether pattom was as a matter of fact separately fixed for the garden land and for the paddy land. 10. The learned Advocate for the appellant argues that since Ext. A fixes Rs. 306-11-7 as pattom for the whole leasehold and since no separate pattom is fixed for the garden land and for the paddy land the defendant cannot be allowed to adduce extrinsic evidence to prove that pattom had been separately fixed by the parties when the lease transaction was entered into. According to him the admission of such evidence is prohibited by S. 91 and 92 of the Evidence Act. S. 91 only provides that the terms of a written contract should be proved by the document itself or by secondary evidence of its contents. In this case there is no dispute between the parties with regard to the terms of Ext. A, and there is no attempt on the part of the defendant to prove those terms by extrinsic evidence. In this case there is no dispute between the parties with regard to the terms of Ext. A, and there is no attempt on the part of the defendant to prove those terms by extrinsic evidence. The learned Advocate for the appellant referred to various rulings in support of the position that when the terms of a contract have been reduced to writing it is only the final written contract that can be referred to for proving the terms thereof and not the correspondence or verbal negotiations that preceded it or the antecedent communications that led up to it. A.I.R. 1923 Mad. 546,1930 Oudh 105 at 107,1924 Cal. 452 and 1929 Privy Council 34 are the cases cited by him. But extrinsic evidence was not adduced in this case for proving the terms of Ext. A, and therefore we do not think that these rulings apply to the facts of this case. 11. S.92 provides that when the terms of a written contract have been proved no evidence of any oral agreement shall be admitted for the purpose of contradicting, varying, adding to, or substracting from, its terms except in certain specified cases. In this case, there is no attempt on the part of the defendant to adduce evidence for the purpose of contradicting, varying, adding to, or substracting from, the terms of Ext. A. The defendant only wants to show how pattom mentioned in Ext. A was arrived at. In other words, he wants to show that the pattom of Rs. 306-11-7 pies mentioned in Ext. A is the sum total of pattom separately fixed for the garden land and for the paddy land in the leasehold. We do not think that this would amount to contradicting, varying, adding to, or substracting from, the terms of Ext. A. In this view of the matter, neither S. 91 nor S. 92 of the Evidence Act can be a bar to the defendant adducing evidence to show that pattom was separately fixed by the parties for the garden land and for the paddy land and that it was the sum total of the pattom so fixed that was mentioned in Ext. A as the total pattom for the holding. A as the total pattom for the holding. If S.5 sub-s. 2 of the Verumpattamdars Act allows parties to plead and prove that pattom was separately fixed for the garden land and for the paddy land in a holding although it is not so stated in the lease deed, we do not think that Ss. 92 and 92 of the Evidence Act will be a bar to adducing evidence to substantiate the plea. 12. The real question for decision therefore is whether S.5 sub-s. 2 applies only to cases in which pattom for the garden land is separately fixed in the lease deed itself or whether it applies also to cases in which the pattom for the garden land and for the paddy land although not separately mentioned in the lease deed, was as a matter of fact separately fixed by the parties when they entered into the lease transaction and the total pattom so fixed is mentioned in the document as the pattom payable for the holding. We are of opinion that S.5 sub-s. 2 will apply to the latter class of cases also. In other words, if it can be proved that in the case of a leasehold consisting of garden land and paddy land pattom was separately fixed by the parties for the garden land and for the paddy land when the lease transaction was entered into and that it is the total pattom so fixed that is mentioned in the lease deed as the pattom payable for the holding we are of opinion that S.5 sub-s. 2 will apply to the pattom fixed for the garden land. The expression "pattom fixed therefore under the contract of tenancy" in the sub-section will, in our view, apply to such cases also. It cannot be said that in such a case it was not under the contract of tenancy that pattom was separately fixed for the garden land and for the paddy land. The fact that pattom was not separately mentioned in the document cannot preclude the parties from proving that as a matter of fact it was separately fixed. The words used in the sub-section are "fixed therefore under the contract of tenancy" and not "in the contract of tenancy". The fact that pattom was not separately mentioned in the document cannot preclude the parties from proving that as a matter of fact it was separately fixed. The words used in the sub-section are "fixed therefore under the contract of tenancy" and not "in the contract of tenancy". For the above reasons we hold that S.5 sub-s. 2 of the Act applies to the pattom payable to the defendant Devaswom in respect of the garden land included in Ext. A. 13. The Devaswom was therefore justified in calculating pattom for the garden land on the basis of S.5 sub-s. 2 of the Act. If pattom is so calculated it is not disputed by the plaintiff that the Devaswom was entitled to the whole amount of Rs. 2069-11-7 realised as arrears of pattom for the years 1116 to 1120. Therefore, the plaintiff is not entitled to reimbursement of any amount. 14. It was represented by the appellant's learned Advocate that in the decree of the lower court a mistake was committed with regard to the advocate's fee due to the plaintiff, namely, instead of Rs. 15 only Rs. 50 was entered as the Advocate Fee. The respondent's learned Advocate has no objection to this mistake being corrected. This mistake will therefore be corrected. 15. Subject to this direction the decree of the lower court is confirmed and the appeal is dismissed with costs. Dismissed.