JUDGMENT : Joseph Vithayathil, J. These five appeals were heard together since common questions of law arise for consideration in these appeals. S.A. No. 779 of 1950 The 2nd defendant in O.S. No. 1587 of 1119 of the Sherthallai Munsiff’s Court is the appellant in this Second Appeal. The appeal relates to an order in execution refusing to stay delivery of the decree schedule property under the Travancore Holdings (Stay of Execution Proceedings) Act (Act VIII of 1950). The decree is for recovery of possession of property on the basis of a document which, according to the plaintiff, is a mortgage, while according to the defendants, is a kanapattom. When the plaintiff applied for delivery of possession of the property the 1st defendant objected contending that Act VIII of 1950 applied to the case and that delivery of possession of the property should be stayed as provided in that Act. He also contended that the case would come within the purview of Act XXII of 1124 (The Travancore Prevention of Eviction Act). The execution court held that Act VIII of 1950 would not apply to the case, that the 1st defendant was not a kudikidappukaran coming within the purview of Act XXII of 1124 and therefore dismissed his petition and ordered delivery of the property. The appeal filed from this order was dismissed by the District Court. Hence this Second Appeal. 2. With regard to the contention that the case would come within the purview of Act XXII of 1124, it was not pressed by learned counsel for the appellant since the kudiyirippu has not been registered as required by the provisions of that Act. The only question to be decided in this Second Appeal is whether the decree in this case comes within the purview of Act VIII of 1950. The document which was the basis of the suit was not produced either in the execution Court or in the lower appellate court. These courts proceeded on the basis of the provisions of the document contained in the decree. The appellant produced in this court the document which is the basis of the suit and also two other documents relating to the property in dispute. The respondents also produced in this court some documents relating to the property. All the documents were admitted in evidence. The documents produced by the respondents were marked as Exts. The appellant produced in this court the document which is the basis of the suit and also two other documents relating to the property in dispute. The respondents also produced in this court some documents relating to the property. All the documents were admitted in evidence. The documents produced by the respondents were marked as Exts. A, B and C and those produced by the appellant as Exts. I, II and III. Ext. I dated 14.6.1074 is a venpattom deed executed by the uncle of the defendant’s mother in favour of the plaintiff’s family in respect of the decree schedule property. On 27.10.1083 the plaintiffs’ ancestor executed a pattapanayam, Ext.A in favour of the defendants’ mother. The lessees under Ext. I assigned their leasehold interest in favour of the defendants and their mother under Ext. II dated 13.11.1086. Subsequently the plaintiffs’ predecessor-in-interest executed a pattapanayam, Ext.III, on 17.2.1098 in favour of the defendants’ mother in renewal of Ext. A. The suit was brought on the basis of Ext. III for redeeming the property. The defendants contended that Ext. III created an irredeemable kanom and that therefore the suit for redemption was not maintainable. That contention was repelled by the trial court and the suit was decreed. The appeal filed from that decree was also dismissed. 3. It is argued for the respondents that the finding on the trial side that Ext. III is a redeemable mortgage and not an irrdeemable kanom is res judicata between the parties so far as the question in issue is concerned. We do not think that it is so. The question that was raised and considered on the trial side was whether Ext. III is a redeemable mortgage or an irredeemable kanom. The present contention of the defendants is that, although the demise under Ext. III is not an irredeemable kanom it is a redeemable kanapattom coming within the purview of S. 2 of Act VIII of 1950. The question that has to be decided in these proceedings is not whether the transaction evidenced by Ext. III is an irredeemable kanom or not but whether it is a kanapattom coming within the purview of S. 2 of Act VIII of 1950. The question that has to be decided in these proceedings is not whether the transaction evidenced by Ext. III is an irredeemable kanom or not but whether it is a kanapattom coming within the purview of S. 2 of Act VIII of 1950. S. 2 of the Act reads thus: “Holding means any immovable property held under a single transaction by which a leasehold right in the property is created and possession of the property is transferred by one person in favour of another. Explanation:- Holding shall also include kanapattom but shall not include varom or pathivarom”. 4. The first argument advanced on behalf of the respondents is that the word “holding” as defined in S. 2 of the Act can apply only to a case in which a leasehold right is created and that therefore the explanation in the section cannot enlarge the scope of the definition. We do not think that there is any force in this contention. Kanapattom mentioned in the Explanation is in one sense a pattom or lease although it has got the characteristics of a mortgage also. Therefore it cannot be said that the Explanation enlarges the scope of the definition. 5. The next argument advanced on behalf of the respondents is that even if Ext. III created a leasehold right it was not created under a single transaction and possession of property was not transferred under a single transaction as required by S. 2. The basis of this argument is that the property was originally given on lease under Ext. I to a third person, that subsequently the defendants’ mother got Ext. A pattapanayam without actual possession of the property, that she got possession only under Ext. II, and that under Ext. III which is the basis of the suit no possession was actually transferred to her. The use of the words “under a single transaction” in the definition of ‘holding’ in S. 2 of the Act has indeed created some difficulties. It is argued that those words restrict the operation of the section to cases in which a person who is in actual possession of a property leases it to another and transfers possession to him. According to this interpretation of the section if a person obtains a usufructuary mortgage of a property and then leases the property the section will not apply. According to this interpretation of the section if a person obtains a usufructuary mortgage of a property and then leases the property the section will not apply. Again, if the property is already outstanding on lease and the owner executes a superior lease in favour of another directing him to recover possession from the prior lessee then also the section will not apply. We do not think that this interpretation is justified by the wording of the section and that the legislature intended to exclude cases of this kind from the purview of the Act. The definition of ‘holding’ in S. 2 of the Act seems to have been borrowed from the Malabar Tenancy Act (Act XIV of 1939), wherein, the word ‘holding’ is defined thus: “Holding means a parcel or parcels of land held under a single engagement by a tenant from a landlord and shall include any portion of a holding as above defined, which the landlord and the tenant may agree to treat as a separate holding.” The words ‘under a single engagement’ are used in the definition in order to make it clear that when parcels of land belonging to landlord are held by a tenant under more than one engagement they will be regarded as separate holdings for purposes of the Act. The reason why it should be so made clear is that under the Malabar Tenancy Act a tenant is liable to be evicted from a holding if he commits wilful waste on the holding or defaults payment of rent for the holding or allows a stranger to encroach on the holding or willfully denies the title of the landlord to the holding. The legislature wanted to make it clear that it will be only in cases in which different properties are held under a single engagement that the tenant will be liable to be evicted from all or any of the properties if he commits any of the Acts mentioned above in respect of any one of the properties. The definition in the Malabar Tenancy Act itself seems to have been borrowed from the Madras Estates Land Act (I of 1908). The definition in the Malabar Tenancy Act itself seems to have been borrowed from the Madras Estates Land Act (I of 1908). In that Act the term ‘holding’ is defined thus: “Holding means a parcel or parcels of land held under a single patta or engagement in a single village; provided that if the landholder and ryot so agree in writing any portion of a holding as above defined shall be treated as a separate holding”. 6. Thus the use of the words ‘under a single transaction’ in the definition of ‘holding’ does not justify the interpretation attempted to be put upon the section by learned counsel for the respondents. Those words only point out that properties held under a single transaction will be one holding while properties held under more than one transaction will be different holdings. According to the literal interpretation of the section when a leasehold right is created by a single transaction it will come within the purview of the section. There is no scope for an enquiry into the question as to how the lessor got the property leased out by him. Neither is it necessary that actual possession of the property should be given to the lessee by the lessor himself. For transfer of possession of immovable property the transferee need not be put in physical possession of the property by the person who executes the deed of transfer. Transfer of the right to be in possession amounts to transfer of possession. That it is so, is clear from the definition of lease as given in the Transfer of Property Act. S. 105 of the Act defines lease thus: “As lease of immovable property is a transfer of a right to enjoy such property..............” In this case the leasehold right was created by a single transaction evidenced by Ext. III. It was on the basis of Ext. III that the suit was brought. It cannot be contended that Ext. III embodies more than one transaction. There is therefore no substance in this contention. 7. The more important question for consideration is whether the transaction evidenced by Ext. III is a kanapattom or not. III. It was on the basis of Ext. III that the suit was brought. It cannot be contended that Ext. III embodies more than one transaction. There is therefore no substance in this contention. 7. The more important question for consideration is whether the transaction evidenced by Ext. III is a kanapattom or not. Before going into the incidents of a kanapattom mentioned in the explanation in S. 2 of the Act it is useful to compare the definition of a holding as given in Act XXI of 1124 and Ordinance II of 1125 which preceded Act VIII of 1950 with the definition in the latter Act. In Act XXI of 1124 ‘holding’ was defined thus: “In this Act unless there is anything repugnant in the subject or context - ‘holding’ means immovable property held under a single transaction by which a right or interest therein is created and possession is transferred by one person in favour of another and includes, property held on Pattom, Otti, Panayam with possession, and kanom not governed by the provisions of the Travancore Jenmi and Kudiyan Act (V of 1071) but does not include Varom or Pathivaram”. In Ordinance II of 1125 the following definition was given: “In this Ordinance unless there is anything repugnant in the subject or context - ‘holding’ means any immovable property held under a single transaction by which a leasehold right in the property is created and possession of the property is transferred by one person in favour of another; but shall not include Varom or Pathivarom”. It will thus be seen that according to the definition in Act XXI of 1124 it was not necessary that the right created in the property should be a leasehold right. It was enough if a right or interest was created and possession was transferred under a single transaction. The definition expressly included within the scope of the Act property held on pattom, otti, panayam with possession and kanom not governed by the provisions of the Travancore Jenmi and Kudiyan Act (V of 1071). When referring to Kanom the qualifying words “not governed by the provisions of the Travancore Jenmi and Kudiyan Act (V of 1071)” were used in order to make it clear that the term did not refer to irredeemable kanom coming within the provisions of the Jenmi and Kudiyan Act but to redeemable kanom. When referring to Kanom the qualifying words “not governed by the provisions of the Travancore Jenmi and Kudiyan Act (V of 1071)” were used in order to make it clear that the term did not refer to irredeemable kanom coming within the provisions of the Jenmi and Kudiyan Act but to redeemable kanom. In Ordinance II of 1125 the definition was altered in such a way as to make the Act applicable only to cases of ordinary lease. According to that definition it was necessary that a leasehold right in the property should be created. Transactions of the nature of otti, panayam with possession, and redeemable kanom were excluded from the purview of the Act. In Act VIII of 1950 “holding” was defined in such a way as to make the Act applicable only to cases in which leasehold right is created in the property but by the explanation kanapattom also was brought within the purview of the Act. Thus Act VIII of 1950 was a compromise between Act XXI of 1124 and Ordinance II of 1125. 8. From this it is clear that rulings which relate to cases coming under Act XXI of 1124 or Ordinance II of 1125 cannot govern cases that come under Act VIII of 1950. The decision of this Court in Ouseph v. Krishna Iyen, 1951 K.L.T. 73, to which one of us was a party, was a case to which Ordinance II of 1125 applied. As stated above, kanapattom was not included in the definition of ‘holding’ in that Ordinance. It was therefore not necessary to consider in that case whether the document which was the basis of the suit was a kanapattom or not. It is true that when the appeal was decided Act VIII of 1950 had come into force. But when application for delivery of property was made in that case and when objection was filed by the judgment-debtor it was Ordinance II of 1125 that was in force and therefore that case had to be decided on the basis of the provisions of that Ordinance. The only question that was considered in that case was whether the document which was the basis of the suit evidenced a lease or a mortgage, and it was held that it was a mortgage. The question whether it would amount to a kanapattom was not considered by this Court. 9. The only question that was considered in that case was whether the document which was the basis of the suit evidenced a lease or a mortgage, and it was held that it was a mortgage. The question whether it would amount to a kanapattom was not considered by this Court. 9. The decision of this Court in Sanku Vava v. Ammukutty, (1951) 6 D.L.R. Travancore Cochin 512, which was cited at the Bar is also of no help in deciding whether the transaction in the present case is a kanapattom or not. In that case also on a construction of the provisions of the document which was the basis of the suit, this court held that it created a usufructuary mortgage. The question whether it would amount to a kanapattom or not was not considered in that case. 10. We have therefore to consider in this case whether the transaction evidenced by Ext. III amounts to a kanapattom or not. An argument was advanced on behalf of the respondents that the word, ‘kanapattom’ used in S. 2 of the Act was the same meaning as kanapattom used in the Jenmi and Kudiyan Act (V of 1071). Before dealing with that question it is necessary to consider the incidents of kanapattom tenure as it is generally understood. 11. The leading case of the Madras High Court in which the incidents of kanapattom tenure were considered is Silapeni v. Ashtamurthi Namboothiri - I.L.R. 3 Mad. 382 which was a decision by a Full Bench of 5 Judges. In that case Innes, J. described the characteristics of a kanom tenure in the following words: “In some cases it may be a mere lease, a sum being advanced as security for the rent or for proper cultivation, to be repaid on the expiry of the term. In other cases, and most frequently, it is created as a lease by way of mortgage to secure a loan advanced to the jenmi (Proprietor). Rent is payable in the case of every kanom, but all kanoms partake also to a certain extent of the incidents of a usufructuary mortgage. The mortgagee in all such holdings is assumed to be able to derive from the lands placed in his possession enough to pay the interest, at least of the money advanced. The discharge of the principal is not immediately contemplated. The mortgagee in all such holdings is assumed to be able to derive from the lands placed in his possession enough to pay the interest, at least of the money advanced. The discharge of the principal is not immediately contemplated. The holder of the kanom, therefore, pays himself the interest and also pays the Government tax, either directly or through the landlord. The overplus or a certain fixed amount in grain or money is paid to the landlord. If, when viewed scientifically, it cannot be wholly regarded as a mortgage, it certainly cannot be wholly regarded as lease, as undoubtedly the land enures as security, if not for the principal at least for the interest of the loan advanced”. 12. Other decisions of the Madras High Court in which the incidents of kanom tenure are discussed are Ramunnni v. Brahmadatta, 15 Mad. 366; Kannakurup v. Varma Raja, A.I.R. 1921 Mad. 243: Gopalan Nair v. Kunhan Menon, 30 Mad. 300; Unnirakutty v. Narayanan Chettiyar, A.I.R. 1929 Mad. 777, Vliakalliyani v. Krishnan, A.I.R. 1932 Mad. 305; and Parvathi v. Meakkam Amma, A.I.R. 1951 Mad. 187. The observations of Krishnan Pandalai, J. in Unnirakutty v. Narayanan Chettiyar are worth reproducing. The learned Judge says: “If the contract was really and substantially not for lending money but for a tenure in land the fact that one of the incidents of the tenure is that the kanom tenant advances money to the jenmi and that there are stipulations for the return of the sum or such portion of it as is left after settling of arrears of rent at the termination of the tenure, is not in my opinion sufficient to make the contract one of borrowing or lending....... To those conversant with the system of property holding in Malabar, including in that expression the whole of the Malayalam speaking country, it would certainly come as a startling surprise to learn that a bargain for a kanom was one for money and not for land. In the States of Travancore and Cochin the State has intervened by legislation to confer on the holders of this tenure rights of permanent occupancy which were imperilled by the development of the notions of mortgage and redemption and second mortgage introduced by modern courts interpreting western jurisprudence. It is a matter of public knowledge that similar legislation is in foot in this Presidency. It is a matter of public knowledge that similar legislation is in foot in this Presidency. Lawyers are familiar with the early controversies as to whether a kanom is a lease or mortgage. The decisions on this topic which will be found set forth in Moore’s Malabar Law were that the kanom is a lease or a combination of a lease and mortgage. The modern doctrine, the result partly of legal analysis and partly of considerations of convenience, is that it is an anomalous mortgage. But to give it a legal label which really means that the so called mortgage is liable to incidents in it by custom or by contract that do not fit in with any of the recognised forms of mortgage only emphasises that that description alone cannot be a guide in deciding whether the transaction is substantially one of borrowing and lending money or one by which the kanom tenant bargains for a substantial interest in the jenmi’s property for the purpose of occupation, cultivation and improvement”. Reference may also be made to Sundara Iyer’s Malabar and Aliyasandanam Law (1922 Edn.) p. 290-298 where the characteristics of kanom tenure are dealt with. At page 291 the learned author says: “Tenures resembling kanom are to be met with elsewhere also, but the special feature in Malabar is that kanom tenure is the ordinary mode of enjoying land with the territorial magnates so that it is regarded in much the same light as leases from year to year elsewhere”. 13. The definition of kanom given in the Malabar Tenancy Act contains the main incidents of the tenure. 13. The definition of kanom given in the Malabar Tenancy Act contains the main incidents of the tenure. S. 3(1) of the Act defines kanom thus: “Kanom means the transfer for consideration in money or in kind or in both by a landlord of an interest in specific immovable property to another called the [kanomdar] for the latter’s enjoyment, the incidents of which transfer include [1] a right in the transferee to hold the said property liable for the consideration paid by him or due to him which consideration is called ‘Kanartham’; [2] the liability of the transferor to pay the transferee interest on the kanartham; [3] the payment of ‘michavaram’ by the transferee; [4] the right of the transferee to enjoy the said property for 12 years or any other period; and [5] the liability of the transferee to pay a renewal fee to the transferor if the transferee is permitted to enjoy the said property for a further period after the termination of the original period”. 14. The main features which distinguish a kanom from an ordinary usufructuary mortgage seem to be these; Kanom is primarily a demise of land for enjoyment, although it is coupled with an advance of money by the person who takes the demise. But the income from the property will generally have no proportion to the interest the kanom tenant has to realise for the amount advanced by him. Usually a low pattom will be fixed as payable to the jenmi. The relationship between the jenmi and the kanomdar is more of the nature of landlord and tenant than that of debtor and creditor. This feature of the transaction is recognised by the payment of customary dues to the jenmi by the tenant in the form of Kalcha etc. during onam and other festivals in the jenmi’s family. The right of the tenant to be in possession of the property for a period of not less than 12 years is an essential feature of the transaction, and when the demise is renewed at the expiry of the term the jenmi has to be paid a renewal fee. It will thus be seen that while a kanom transaction has the incidents of a possessory mortgage the dominant feature of the transaction is that of a lease. It will thus be seen that while a kanom transaction has the incidents of a possessory mortgage the dominant feature of the transaction is that of a lease. The question whether a particular transaction is a kanom or a mortgage will have to be decided on the basis of the main feature of the transaction. The nomenclature of the document will not be a decisive test. We shall examine Ext. III in the light of the above discussion relating to the distinguishing features of a kanom transaction. The document is described as Pattapanaya - Ethiradharam. The property demised is a garden land 90 cents in extent. A pattom of Fs. 35 Cash 4 is fixed for the property. The panayartham is Rs. 191½ Fs. 33 is fixed as interest on that amount and a pattamicham of Fs. 2 cash 4 is made payable to the jenmi every year. The tenant is given what is called a Kettuthengu and for that the jenmi has to be paid one-fourth of a chethana of cocoanut oil every year. Besides this, the tenant has to pay Fs. 3 Ca. 12 towards Sirkar tax, 25 kadjan leaves and 1¾ fanams as onakalcha. For special feasts in the jenmi’s family double the amount has to be paid as onakalcha. The tenant is authorised to plant cocoanut trees and other trees and to enjoy the property for 12 years. Provision is also made for payment of compensation for improvements that may be effected by the tenant. There is provision for surrender after the expiry of the term. A renewal fee of 52 and odd fanams was paid by the tenant on the date of the execution of the document. These provisions clearly show that the demise was one for enjoyment of the land and that it was not a mere arrangement for lending money. The relationship created between the parties to the transaction is not primarily that of debtor and creditor but that of landlord and tenant. The pattom fixed has obviously no proportion to the actual income derivable from the property and the pattamicham payable to the jenmi is a nominal amount. The provision for payment of cocoanut oil, cadjan’s and onakalcha are in a way reminiscent of what may be described as feudal relationship. 15. These facts go to show that the transaction evidenced by Ext. The provision for payment of cocoanut oil, cadjan’s and onakalcha are in a way reminiscent of what may be described as feudal relationship. 15. These facts go to show that the transaction evidenced by Ext. III is not an ordinary usufructuary mortgage but a kanapattom as it is generally understood. It is certainly not an irredeemable kanom, but a kanom is not necessarily irredeemable. Originally all kanoms were redeemable unless otherwise provided for in the kanom deed. It was by legislation that certain classes of kanoms were made irredeemable. In Travancore kanapattoms executed in favour of Malayala Brahmin Jenmis in respect of their jenmom properties were made irredeemable by the Royal Proclamation of 1042. This proclamation was implemented by the Jenmi and Kudiyan Act (Act V of 1071). Therefore the mere fact that the tenure created by a kanom is irredeemable after the expiry of 12 years will not take it out of the category of kanom as the tenure was originally understood. 16. It was strenuously contended on behalf of the respondents that the word kanapattom used in S. 2 (Explanation) of the Act should be interpreted in the same sense in which the term is used in the Jenmi and Kudiyan Act. S. 3, sub-s. (4) of that Act describes kanapattom thus: “Kanapattom means a demise of jenmom land made or renewed by the jenmi by whatever name such demise is designated”. According to this definition kanapattom can relate only to jenmom lands. Jenmom land is defined in S. 3 sub-s. (2) as “land other than pandaravagai, sripandaravagai, kandukrishi or sirkar devaswom lands recognised as such in the Sirkar accounts, which is either entirely exempt from Government tax or if assessed to public revenue, is subject to rajabhogam only, and the occupancy right in which is created for a money consideration [kanom] and is also subject to the payment of michavarom and customary dues and the periodical renewal of the right on payment of renewal fee”. Jenmi is defined in sub-s. (2) as a “person in whom the property right over jenmom lands is vested”. According to this definition kanapattom can relate only to jenmom lands demised on a tenure which is subject to periodical renewal. Obviously it cannot be in this sense that the term is used in Act VIII of 1950. Jenmi is defined in sub-s. (2) as a “person in whom the property right over jenmom lands is vested”. According to this definition kanapattom can relate only to jenmom lands demised on a tenure which is subject to periodical renewal. Obviously it cannot be in this sense that the term is used in Act VIII of 1950. If the tenure is irredeemable there is no meaning in providing for stay of delivery of a holding demised under such tenure. For the applicability of the Act the holding must necessarily be a redeemable one. It therefore follows that kanapattom mentioned in the Explanation in S. 2 of the Act must be kanapattom not coming within the purview of the Jenmi and Kudiyan Act. That the legislature contemplated the existence of such kanapattom is evident from the definition of ‘holding’ given in Act XXI of 1124. The words used by the legislature in that Act with reference to kanom included in the definition of a ‘holding’ are: “Kanom not governed by the provisions of the Travancore Jenmi and Kudiyan Act (V if 1071).” The provisions of the Jenmi and Kudiyan Act themselves show that there could be kanapattom not coming within the purview of that Act. Although the Royal Proclamation of 1042 related only to kanapattom in respect of jenmom land, as interpreted by the courts, and although the Jenmi and Kudiyan Act purported to implement this Proclamation as is clear from the preamble to the Act, S. 5 of the Act contains a provision relating to non-jenmom lands. The provision is to the following effect: “In the absence of an express contract nothing in this section shall be taken to confer the right of permanent occupancy on the kudiyan of a non-Malayala Brahmin Jenmi unless he or his predecessors-in-interest or both have uninterruptedly held the holding for a period of not less than 25 years”. This shows that even according to the framers of the Jenmi and Kudiyan Act there could be kanapattoms in respect of non jenmom land belonging to non-Malayali Brahmin Jenmies. It has however to be noted that the use of the word ‘Kudiyan’ in S. 5 of the Act is inconsistent with the definition given for that word is S. 3. Apart from that, S. 5 clearly indicates that there could be kanapattom not coming within the purview of the Jenmi and Kudiyan Act. 17. It has however to be noted that the use of the word ‘Kudiyan’ in S. 5 of the Act is inconsistent with the definition given for that word is S. 3. Apart from that, S. 5 clearly indicates that there could be kanapattom not coming within the purview of the Jenmi and Kudiyan Act. 17. Learned Counsel for the respondents referred to the observations of Viraraghava Iyengar, J. in Pyli Pyli v. Nilacantan Sankran, 5 T.L.J. 464 at p. 471, where the learned Judge says: “Kanapattom tenure is an ancient tenure and it has all along been understood as aplicable to - apart from the operation of the doctrine of estoppel - and to operate upon, jenmom lands. A character of irredeemability and renewability has been attached to it by the legislature first under the Proclamation and then by Regulation V of 1071”. At page 472 the learned Judge observes thus: “The incidents of the kanom tenure being then incidents created by statute and operating only on a particular class of lands there does not appear to be in my humble view - apart from questions of estoppel that may arise - any warrant for holding that the same tenure could be created by the act of the parties with respect to other classes of land. It may be that parties may by the use of apt expressions stipulate for the permanent occupancy right over land other than jenmom land, but then such transactions could not in my view be called kanapattom documents carrying with them all the incidents attached by the law to them”. In that case the question that was considered by the learned Judge was whether the transaction in question created an irredeemable tenure or not. It was in the sense in which the term is used in the Jenmi and Kudiyan Act, namely, an irredeemable kanom, that the word kanapattom was used by the learned Judge in his judgment. The question whether the term kanapattom as understood in the ordinary sense will include a redeemable kanom also was not considered in that case, neither did it arise for consideration. 18. The question whether the term kanapattom as understood in the ordinary sense will include a redeemable kanom also was not considered in that case, neither did it arise for consideration. 18. After the Royal Proclamation of 1042 the question came up for consideration in many cases whether the Proclamation would apply to non-Malayala Brahmin Jenmies, and the Travancore High Court held that it would not apply to such jenmies, and consequently it was held that kanapattom executed in respect of lands not belonging to Malayala Brahmin Jenmies did not create an irredeemable tenure unless the terms of the document conferred on the tenant a permanent right of occupancy. After the Royal Proclamation and the Jenmi and Kudiyan Act the term kanapattom was often used in a restricted sense, viz. an irredeemable kanom. It is in that sense that the term is used by Viraraghava Iyengar, J. in 5 T.L.J. 464. The observations of Kunhiraman Nair, J. in Vicar Apostolic of Malabar v. Narayanan Revi Namboothiripad, 4 T.L.R. 44 F.B., extracted by Viraraghava Iyengar, J. in 5 T.L.R. 464 show that the term kanapattom would include redeemable kanom also. The learned Judge says thus: “The state of things in the period prior to the issuing of the Royal Proclamation seems to have been this: The jenmi was in theory the absolute owner of the lands and had the right to dispense with his kanom tenant at the end of 12 years. In practise however the bulk of the jenmies continued their tenants by means of the system of renewals though a few jenmies used to assert their full rights and did in some instance successfully exert the right of eviction. This uncontrolled power of eviction at the end of 12 years was felt a hardship and the legislature consequently stepped in to give the tenants of certain classes a statutory right of compelling the jenmies to renew the leases on certain terms......... It will thus be seen that thee Royal Proclamation of 1042 and the Jenmi and Kudiyan Act conferred permanent right of occupancy on certain classes of kanapattom tenants. That does not mean that there could not be other classes of kanapattom tenants who did not come within the purview of the Proclamation and the Act and could not therefore get the benefit of the permanent right of occupancy”. That does not mean that there could not be other classes of kanapattom tenants who did not come within the purview of the Proclamation and the Act and could not therefore get the benefit of the permanent right of occupancy”. Rama Menon, C.J. who was one of the Judges who took part in the decision in 5 T.L.J. 464 observed thus in Ouseph v. Narayanan, 7 T.L.J. 397. “It is permissible to create by contract irredeemable tenures even in respect of lands which are not ‘statutory jenmom’. Whether such tenures can be approximately called kanapattom, I need not pause now to consider”. 19. It was also argued for the respondents that kanapattom mentioned in S. 2 of the Act VIII of 1950 is kanapattom referred to in S. 42 of the Jenmi and Kudiyan Act. S. 42 of the Act provides thus: “Notwithstanding anything contained in the foregoing, the provisions of this Regulation shall not apply to any kanapattoms executed since the 25th day of Karkadagom 1042 which expressly provide for redemption”. This argument is in one sense against the contention of the respondents that the word kanapattom mentioned in Act VIII of 1950 has got the same meaning as kanapattom as defined in the Jenmi and Kudiyan Act. In other words, S. 42 shows that a kanapattom need not necessarily be an irredeemable tenure. The fact is that the Jenmi and Kudiyan Act purported to bring within its purview only certain classes of kanapattom. That does not mean that there could be no other kanapattom. The word kanapattom was defined in the Jenmi and Kudiyan Act for a particular purpose and it will be unsafe to adopt that definition for all purposes. The word kanom is defined in the Jenmi and Kudiyan Act as “the arthem or consideration [in money or in kind] paid for the kanapattom and shall also include the value of improvements made by kudiyans and treated as arthem or consideration”. If this meaning is given to the word ‘kanom’ as used in Act XXI of 1124 it will lead to absurd results. In the same way it will not be proper to give the word kanapattom as used in Act VIII of 1950 the same meaning in which it is used in the Jenmi and Kudiyan Act. If this meaning is given to the word ‘kanom’ as used in Act XXI of 1124 it will lead to absurd results. In the same way it will not be proper to give the word kanapattom as used in Act VIII of 1950 the same meaning in which it is used in the Jenmi and Kudiyan Act. We do not think that the legislature intended to include in the Explanation in S. 2 of the Act only kanapattom referred to in S. 42 of the Jenmi and Kudiyan Act. We hold that the word ‘kanapattom’ is used in Act VIII of 1950 in the ordinary sense in which the term is used viz., a transaction having the features of a kanom tenure. 20. We saw what the incidents of a kanapattom are. We have no doubt that the transaction evidenced by Ext. III contains those incidents. The result is that the decree schedule property in this case is a ‘holding’ as defined in S. 2 of the Act VIII of 1950. The decree being one for recovery of possession of a holding coming within the purview of S. 4 of the Act delivery of possession of the holding has to be stayed as provided in that section. The decree-holders have no case that the defendants have either committed waste on the property or have failed to pay the rent of the holding that accrued due after the commencement of the Act. The defendants are therefore entitled to the benefit of the Act. The orders of the courts below are set aside and Second Appeal No. 779 of 1950 is allowed with costs. CIVIL MISCELLANEOUS APPEAL NO.298 OF 1951 The decree-holder is the appellant in this Miscellaneous Appeal. The appeal is from an order of remand. The decree is for redemption of property on the basis of a document which, according to the decree-holder is a mortgage, while, according to the judgment-debtor, is a kanapattom. In execution of the decree the decree-holder obtained possession of the property on 29.3.1950. Act VIII of 1950 relating to stay of delivery of holdings in execution of decrees was published on 5.4.1950. Under sub-s. (3) of S. 1 of the Act it shall be deemed to have come into force on 25th March 1950. On the basis of this Act the judgment-debtor applied for redelivery of the property. Act VIII of 1950 relating to stay of delivery of holdings in execution of decrees was published on 5.4.1950. Under sub-s. (3) of S. 1 of the Act it shall be deemed to have come into force on 25th March 1950. On the basis of this Act the judgment-debtor applied for redelivery of the property. The execution court dismissed that application on the ground that the property is not a holding as defined in S. 2 of the Act. The reason given was that the property was not held under a single transaction. The property was originally outstanding on kanom with Thathrickal family from whom the predecessor of the defendants first took a sub-mortgage and then an assignment of the kanom. Subsequently the Jenmi executed the suit document in favour of the first defendant and another. On this ground the execution court held that the defendants were not holding the property under a single transaction and that therefore it was not a holding. In appeal this finding was reversed. It was contended on behalf of the decree-holder that the document on the basis of which the suit was filed created a usufructuary mortgage and that therefore the property could not be held to be a ‘holding’ as defined in S. 2 of the Act. This contention was repelled by the court below which held that the transaction evidenced by the suit document is a kanapattom and not a mortgage. That court therefore held that the judgment-debtor was entitled to the benefit of Act VIII of 1950 and to get redelivery of the property which was wrongly delivered from him. Since the decree-holder had averred in his objection that he had effected improvements in the property after he got delivery of it the lower appellate court remitted the petition for redelivery to the execution Court with direction for delivering the property to the judgment-debtor after ascertaining the value of improvements, if any, due to the decree-holder. The appeal is filed from this order. 2. With regard to the contention that the property was not held under a single transaction we do not think that there is any force in it. The suit was filed on the basis of a document dated 2.11.1097 executed by the decree-holder’s family in favour of the 1st defendant and another. The appeal is filed from this order. 2. With regard to the contention that the property was not held under a single transaction we do not think that there is any force in it. The suit was filed on the basis of a document dated 2.11.1097 executed by the decree-holder’s family in favour of the 1st defendant and another. If that document evidences a kanapattom there is no reason why it should not come within the purview of the Act. In our judgment S.A. 779 of 1950 we have explained the meaning of the term ‘single transaction’ as used in the definition of a holding’ and it is not necessary to discuss the point again. The learned District Judge has rightly reversed the finding of the execution court on this point. 3. The real question for decision in this C.M. Appeal, and the one that was pressed by learned counsel for the appellant, is whether the transaction which is the basis of the suit in this case is a mortgage or a kanapattom. In our judgment in S.A. 779 of 1950 we have explained the features of a kanapattom mentioned in the Explanation of S. 2 of the Act VIII of 1950 and it is not necessary to discuss the question again. A perusal of the document which is the basis of the suit makes it clear that it evidences a kanapattom as found by the learned District Judge. The document is described as a kanapattom. It was a renewal of a prior kanom. As amount of Rs. 1462 1/2 is paid as kanarthom. A pattom of 84 and odd fanams is fixed for the property. The tenant has undertaken to pay michavaram of 23 and odd fanams and also customary dues in the form of cocoanut oil, cadjan leaves and onakalcha. On occasions of special feast-double the amount of the usual onakalcha and cocoanut oil, have to be paid to the jenmi. The tenant is directed to plant trees and effect other improvements and to enjoy the property for 12 years. Adukkuvathu was also paid by the tenant at the time of the execution of the document. The document has all the normal incidents of the kanom demise. In fact the terms of the document are exactly similar to those of the document which was the basis of the suit in S.A. 779 of 1950. Adukkuvathu was also paid by the tenant at the time of the execution of the document. The document has all the normal incidents of the kanom demise. In fact the terms of the document are exactly similar to those of the document which was the basis of the suit in S.A. 779 of 1950. We therefore agree with the learned Judge in his view that the property in this case is a holding coming within the purview of Act VIII of 1950. The C.M.A. is accordingly dismissed with costs. S.A. NO.936 of 1950 The 3rd defendant is the appellant. The decree is for redemption of property on the basis of a document which according to the decree-holder is a mortgage. The judgment-debtor contends that it is a kanapattom. When the decree-holder applied for delivery of possession of the property the 3rd defendant objected on the ground that the decree would come within the purview of Act VIII of 1950. The decree-holder replied that the Act would not apply to the case and also contended that the judgment-debtor had defaulted payment of rent that accrued due after the commencement of the Act. The execution court held that the document which was the basis of the suit was not a mortgage but a kanapattom coming within the definition of a holding in S. 2 of the Act. But since the defendants had, according to that court, defaulted payment of the rent that accrued due after the commencement of the Act it was held that they were not entitled to the benefit of the Act. The 3rd defendant appealed from that order and that decree-holder filed an objection memorandum relating to the finding that the suit document is a kanapattom and not a mortgage. On the question whether the judgment-debtors had defaulted payment of rent no definite finding was recorded by the learned District Judge. The learned Judge did not think it necessary to go into that question as he was of opinion that the suit document is a mortgage and not a kanapattom. He therefore reversed the finding of the execution court on that point and dismissed the appeal. 2. The learned Judge did not think it necessary to go into that question as he was of opinion that the suit document is a mortgage and not a kanapattom. He therefore reversed the finding of the execution court on that point and dismissed the appeal. 2. The two questions that arise for consideration in this Second Appeal are whether the suit document in this case is a mortgage or a kanapattom and, if it is a kanapattom coming within the purview of Act VIII of 1950 whether the judgment-debtors have forfeited the benefit under the Act by reason of failure to pay the rent of the holding which accrued due after the commencement of the Act. The appellant has produced in this Court the copy of the document which is the basis of the suit. The document is described as a “pattapanayadharam.” The terms of the document are similar to those of the document which is the basis of the suit in S.A. 779 of 1950. The document has got all the incidents of an ordinary kanapattom. For the reasons mentioned in our judgment in S.A. 779 of 1950 we hold that the decree in this case is one for recovery of possession of a holding as defined in S. 2 of Act VIII of 1950 and that therefore it comes within the purview of the Act. The finding of the learned District Judge on this point is reversed and that of the execution Court is restored. 3. The other point for consideration is whether the judgement-debtors have forfeited the benefit under the Act by reason of failure to pay the rent of the holding that accrued due after the commencement of the Act. As stated above, the lower appellate Court has not recorded a finding on this point. The Act came into force on 25.3.1950. It is seen that the judgment-debtor deposited 120 and odd fanams on 16.1.1951. That will be one year’s rent as per the terms of the decree. The decree was passed on 28.9.1950. Till the date of the decree rent will have to be paid according to the terms of the lease and after the decree according to the terms of the decree, as held by this Court in Narayana Pillai v. Sankaran Nambooripad, 1951 K.L.T. 568. The lease deed provides for payment of pattamicham in Makaram and onakalcha in Chingom. Till the date of the decree rent will have to be paid according to the terms of the lease and after the decree according to the terms of the decree, as held by this Court in Narayana Pillai v. Sankaran Nambooripad, 1951 K.L.T. 568. The lease deed provides for payment of pattamicham in Makaram and onakalcha in Chingom. It is not clear whether under the terms of the lease deed any rent accrued due after the commencement of the Act and before the decree was passed, or whether under the terms of the decree any rent accrued due before 16.1.1951. Under the decree the judgment-debtors are liable to pay mesne profits at the rate of 188 and odd rupees a year from the date of deposit of the kanom amount and value of improvements by the decree-holder. It is represented that the judgment-debtors deposited Rs.120 on 29.1.1951 towards mesne profits. In the execution application the decree-holder claimed mesne profits from 21.10.1123, on which date he claims to have set off the kanom amount and value of improvements against the arrears of rent due to him. He did not deposit in Court the kanom amount and value of improvements. The question whether he is entitled to mesne profits or only to rent is also a matter to be decided by the execution Court. 4. In deciding this question it is necessary, at the outset, to consider the effect of the proviso to S. 4 of the Act. Two points were urged by learned counsel for the appellant with regard to the interpretation of the proviso. The first is that the proviso contains only an enabling, and not a mandatory, provision. The second is that the question of failure to pay rent will have to be determined with reference to the time when the order for delivery is passed and not the date when the rent accrued due. The first is that the proviso contains only an enabling, and not a mandatory, provision. The second is that the question of failure to pay rent will have to be determined with reference to the time when the order for delivery is passed and not the date when the rent accrued due. S.4 reads thus: “Notwithstanding any law to the contrary, proceedings in execution of a decree in a suit for the recovery of possession of a holding shall, so far as they relate to the delivery of possession of the holding, be stayed for a period of one year from the date of the commencement of this Act: provided that nothing contained in this section shall preclude the court - [a] from ordering the delivery of possession of the holding to the decree-holder if the court is satisfied either that the lessee has committed intentional and wilful acts of waste or that he has failed to pay the rent of the holding which has accrued due after the commencement of this Act; or [b] from granting any other appropriate relief to which the decree-holder may be entitled”. The distinction between the wording of the section and that of the proviso is noteworthy. While the words used in the section are “proceedings ............... shall ..................... be stayed” those used in the proviso are “Nothing contained in this section shall preclude the court from ordering the delivery of possession of the holding.” In effect the proviso only says that it shall be lawful for the Court to order delivery of possession of the holding. It is therefore argued that even in a case in which the court is satisfied that the lessee has committed wilful waste or has failed to pay rent the court is not bound to order delivery of possession of the holding. Though the wording of the proviso is such that prima facie it may appear to be only an enabling provision the context shows that the power conferred on the Court is not one which the court can arbitrarily refuse to exercise even if the conditions laid down in the proviso are satisfied. Though the wording of the proviso is such that prima facie it may appear to be only an enabling provision the context shows that the power conferred on the Court is not one which the court can arbitrarily refuse to exercise even if the conditions laid down in the proviso are satisfied. At the same time we are of opinion that according to the wording of the proviso the court has got a discretion - of course a judicial discretion - in the matter of deciding whether in a particular case delivery of possession of property should be ordered or not. In other words the court can go into the question whether it will be reasonable to order delivery of possession of the holding even if the conditions laid down in the proviso are satisfied. 5. Reference may be made in this connection to Maxwell on The Interpretation of Statutes (9th Edition, pages 252-256.) The learned author says thus: “According to Lord Cairns such words as “it shall be lawful” are always simply permissive or enabling. They confer a power and do not, of themselves, do more. But there may be something in the nature of the thing empowered to be done, something in the object for which it is to be done, something in the conditions under which it is to be done, something in the title of the persons for whose benefit the power is to be exercised, which may couple the power with a duty, and make it the duty of the person in whom the power is reposed to exercise it when called to do so.............. Lord Penzance said that the words “it shall be lawful” are distinctly words of permission only, and the true question is, not whether they mean something different, but whether, having regard to all the circumstances - to the person enabled, to the general object of the statute, and to the persons for whose benefit the power may have been intended to be conferred - they do or do not create a duty in the person on whom it is conferred to exercise it ............. The effect of the cases in which the exercise of the power conferred was held to be obligatory was that, though the statues concerned had in terms only conferred a power, the circumstances were such as to create a duty and to show that the exercise of any discretion by the person empowered could not have been intended”...................... The question whether a Judge or public officer to whom a power is given by such words is bound to use it upon any particular occasion, or in any particular manner, must be solved aliunde and in general it is to be solved from the context, from the particular provisions, or from the general scope and objects of the enactment conferring the power ................... Lord Blackburn’s opinion was that the enabling words gave a power which prima facie might be exercised or not, but if the object or which the power is conferred is for the purpose of enforcing a right whether public or private, there may be duty cast upon the donee of the power to exercise it for the benefit of those who have that right, when required on their behalf. Where there is such a duty it is not inaccurate to say that the words conferring the power are equivalent to saying that the donee must exercise it”. At page 255 and 256 the learned author says:- “It is important here to notice the distinction between a discretion to exercise a poser and a discretion to determine only whether the occasion for it has arisen ........ An arbitrary or capricious exercise of a discretion would be no exercise at all”. 6. In the light of these principles it is clear that if the conditions laid down in the proviso are satisfied in a particular case the court is bound to exercise its judicial discretion and decide whether it would be reasonable to order delivery of possession of the holding. The wording of the proviso and the use of the word “satisfied” go to show that some amount of judicial discretion is given to the Court in the matter of ordering delivery of possession of a holding. There may be cases in which the lessee was prevented by justifiable cause from paying rent on the due date, or there may be bonafide dispute between the parties relating to the amount of rent to be deposited. There may be cases in which the lessee was prevented by justifiable cause from paying rent on the due date, or there may be bonafide dispute between the parties relating to the amount of rent to be deposited. In such cases the court may exercise its discretion in a judicial manner and refuse delivery of possession of the holding. 7. With regard to the second point, namely the date with reference to which the question of failure to pay rent should be determined, the wording of the proviso is rather ambiguous. The words used are: “If the court is satisfied .............. that he (the lessee) has failed to pay the rent of the holding which has accrued due after the commencement of the Act”. It is not clear whether the failure to pay should be on due date or when the application for delivery of the holding is made or when the court passes the order for delivery. It was argued for the appellant that, according to the language of the proviso, the court will get jurisdiction to order delivery of possession of the holding only if the lessee fails to pay the rent that has accrued due after the commencement of the Act before the order for delivery is made. It was also argued that, in any case, if the payment has been made before the date of the application for delivery of the holdings the court will have no jurisdiction to order delivery. Lastly it was argued that failure to pay the rent on the due date does not entail forfeiture of the benefit under the Act and that in any case the Court must be satisfied that the lessee has, without any lawful excuse, failed to pay the rent even after he was given a reasonable opportunity to pay the same. Reliance was placed by learned counsel for the appellant on the decision in Bird v. Hilldage, (1948) K.B.D. 91. That was a case under the Rent and Mortgage Interest Restrictions (Amendment) Act, 1933. Schedule I to that Act provided thus: “A Court shall for the purposes of S. 3 of this Act have power to make ............ an order .............. for ................ possession of any dwelling house within the Rent Restriction Act .............. That was a case under the Rent and Mortgage Interest Restrictions (Amendment) Act, 1933. Schedule I to that Act provided thus: “A Court shall for the purposes of S. 3 of this Act have power to make ............ an order .............. for ................ possession of any dwelling house within the Rent Restriction Act .............. without proof of suitable alternative accommodation [where the court considers it reasonable so to do] if [a] any rent lawfully due from the tenant has not been paid or any other obligation of the tenancy ............ has been broken or not performed...................”. The tenant failed to pay the rent due on March 25, 1946 and the landlord filed a plaint on May 21, 1946 claiming possession of the dwelling house on the ground of (a) non-payment of rent and (b) alleged breaches of covenant. The County Court Judge decided the case against the landlord on both grounds. It was found that the rent was not paid on the due date but the Judge held that in view of the previous conduct of the parties in relation to the payment and the acceptance of rent after the due date he had no jurisdiction under S. 3 of the Act and the 1st schedule to make an order for possession. The landlord appealed from that decision. Their Lordships held that the reason given by the Judge did not justify the conclusion which he had reached. Their Lordships then went into the question whether by the terms of the Statute the court had jurisdiction to make an order for possession. It was found that the rent due on March 25 had been tendered before action was brought by the landlord and that the tenant subsequently paid the rent into the court. The tenant contended that no rent lawfully due from him remained unpaid. In dealing with the question Their Lordships observed thus: “The first question that arises is the date on which we have to determine whether the rent had been paid or not. Counsel for the landlord argued that that date was the date fixed by the contract for the payment thereof. He pointed out that, under the second branch of paragraph [a] of the schedule, in determining whether an obligation had been broken, the court had merely to look at the terms of the obligation and see whether it had in fact been broken. He pointed out that, under the second branch of paragraph [a] of the schedule, in determining whether an obligation had been broken, the court had merely to look at the terms of the obligation and see whether it had in fact been broken. The fact that the breach had been made good would not deprive the court of jurisdiction though, it would, of course, be relevant in determining whether it was reasonable to make an order for possession. So, said counsel, in the case of rent, events subsequent to the due date fixed by the terms of the tenancy for the payment or rent are relevant only on the question of reasonableness. We are unable to accede to this argument. It requires, as it seems to us, the word ‘punctually’ to be read into the language of the paragraph would, we think, have read somewhat as follows: “Any obligation of the tenancy [whether as regards rent or otherwise and whether under the contract of tenancy or under the principle Acts] so far as the obligation is consistent with the provisions of the principle Acts has been broken or not performed”. S. 3 and Schedule I lay down the circumstances in which the court may make an order or give a judgment for recovery of possession and we think that in reaching a conclusion whether any rent is lawfully due and has not been paid, the court must look at the date of institution of the proceedings by which the landlord is seeking to recover possession. The rights of the parties crystallized at that date, and nothing happening thereafter could, in our opinion, deprive the court of jurisdiction to make an order for recovery of possession, if the court thought it reasonable to do so ....... Before the Court can have jurisdiction the landlord must prove two things viz., [1] that some rent was lawfully due from the tenant at the date of the institution of the proceedings and [2] that that rent was unpaid. The question, therefore, arises in the present case, was any rent lawfully due from the tenant on May 21, 1946 to the landlord? In our view rent is not lawfully due unless it can be recovered by process at law. A landlord may recover rent lawfully due in two ways, that is, either by distress or by judgment in an action. In our view rent is not lawfully due unless it can be recovered by process at law. A landlord may recover rent lawfully due in two ways, that is, either by distress or by judgment in an action. In this case it is admitted that a valid tender of the rent due on March 25, 1946, amounting to 15 Pounds. 5s. was made on May 16, 1946. As a result of that tender the landlord could not thereafter distrain for his rent: Johnson v. Upham, [1859] 2 E & E 250, and see Hill & Redman. Law of Landlord and Tenant (10th Edn. page 323]. Equally, in view of that tender and the payment into court which the tenant was entitled to make and did make as a result of that tender, the landlord could not obtain judgment for his rent and in fact did not do so: See Johnson v. Clay, [1817] 7 Taunt 486 and James v. Lord Vane, [1860] 29 L.J. [Q.B.] 169 - per Cockburn, C.J. The result is, in our view, that, where tender of rent is made, even after the due date, where time is not made the essence of the contract, such a tender prevents rent from being lawfully due from the tenant to the landlord within the meaning of the schedule:-” 8. It will be seen that this decision is based mainly on the construction of the words “rent lawfully due”. Their Lordships held that so long as the landlord could not recover rent from the tenant either by distress or by judgment in an action, it could not be said that rent was lawfully due from the tenant. On this ground Their Lordships held that the Court had no jurisdiction under Schedule I of the Act to order delivery of the dwelling house. We do not think that this reasoning will apply to a case coming under S. 4 of Act VIII of 1950. It cannot be said that if the lessee was bound to pay rent on a particular date such rent was not lawfully due from him, especially when a decree for rent has been passed against him. Moreover, the expression “rent lawfully due” does not find a place in the proviso to S. 4 of Act VIII of 1950. It cannot be said that if the lessee was bound to pay rent on a particular date such rent was not lawfully due from him, especially when a decree for rent has been passed against him. Moreover, the expression “rent lawfully due” does not find a place in the proviso to S. 4 of Act VIII of 1950. We therefore do not think that the decision in Bird v. Hilldage is an authority for the position that in a case in which rent that has accrued due after the commencement of Act VIII of 1950 has not been paid on the due date but was tendered or paid before the court orders delivery of possession of the property the Court has no jurisdiction to order delivery of possession of the property. We do not also think that on the basis of that decision we can hold that in a case in which the lessee tenders or pays the rent before the decree-holder applies for delivery of possession of the property but after the due date of payment the court has no jurisdiction to order delivery of the property. We are of opinion that even in cases in which the lessee has tendered or paid rent before the decree-holder applies for delivery of possession of the property, but after the due date of payment, the Court has jurisdiction to order delivery of possession of the property if it is reasonable to do so. 9. With regard to the argument that the failure to pay rent on the due date does not by itself entail forfeiture of the benefit under the Act and that the proviso gives a discretion to the Court for deciding whether in a particular case delivery of possession should be ordered even if rent was not paid on the due date, we think that this position is supported by the wording of the proviso and that it should be accepted. We also think that the words ‘has failed to pay the rent’ do not necessarily import failure to pay on the due date. If the idea of the legislature was that in all cases in which the lessee has defaulted to pay the rent on the due date he should forfeit the benefit under the Act we would have found some expression in the proviso to indicate that intention. If the idea of the legislature was that in all cases in which the lessee has defaulted to pay the rent on the due date he should forfeit the benefit under the Act we would have found some expression in the proviso to indicate that intention. As observed by Their Lordships in Bird v. Hilldage, “it requires, as it seems to us, the word “punctually” to be read into the language of the paragraph before the word “paid”. As we have already observed, the proviso itself is in the form of an enabling provision, and such a provision implies a judicial discretion in the Court to decide whether the facts of the case justify the exercise of the power conferred on it by the statute. This interpretation of the proviso is further strengthened by the use of the words “if the court is satisfied.” The omission of words like “on the due date” or “punctually” when referring to failure to pay rent also gives support to this view. The fact that the legislation itself is intended as a beneficial measure to afford temporary relief (for a period of one year) to tenants of holdings also justifies this liberal interpretation of the proviso. Reference may be made in this connection to the following observation of Mahajan, J. in Rai Ram Taran v. Mrs. Hill, A.I.R. 1949 Federal Court 135: "The words of a remedial statute must be construed, so far as they reasonably admit, so as to secure that the relief contemplated by the statute shall not be denied to the persons intended to be relieved." 10. Reference may also be made to the decision of the Court of Appeal in Dellenty v. Pello, (1951) All England Law Reports 716. That also was a case under the Rent and Mortgage Interest Restrictions (Amendment) Act, 1933. The landlord claimed possession on the ground of non-payment of rent. On the date of the hearing the tenant paid the arrears into Court. There was evidence that the tenant had been frequently in arrears and that on a number of occasions it had been necessary to issue summonses against him. The landlord claimed possession on the ground of non-payment of rent. On the date of the hearing the tenant paid the arrears into Court. There was evidence that the tenant had been frequently in arrears and that on a number of occasions it had been necessary to issue summonses against him. Their Lordships held that once the landlord showed in proceedings under the Rent Acts that at the commencement of those proceedings rent was in arrear, the court had jurisdiction to make an order for possession, the only effect of the payment of rent into Court being that prima facie, it would not then be reasonable to make an order. Jenkins, L.J. observed thus: “I would agree that, prima facie, where possession is sought on the ground of non-payment of rent in the ordinary case and the tenant pays the rent into court or tenders the rent before judgment, it would not be reasonable to make an order for possession if there was no more in the case than that”. It is true that in Schedule I to the Rent and Mortgage Interest Restrictions (Amendment) Act, 1933 there are the words “where the court considers it reasonable so to do” which do not find a place in the proviso to S. 4 of Act VIII of 1950. But if the language of the proviso gives a discretion to the court in the matter of ordering delivery of possession of a holding coming within the purview of the Act the absence of these words cannot make the principle laid down in the above decision inapplicable to the present case. 11. We therefore hold that even if it is found that the tenant has not paid the rent that accrued due after the commencement of the Act on the due date the Court has discretion to refuse to order delivery of possession of the holding. This discretion will certainly have to be exercised in a judicial manner. Ordinarily the court will not order delivery of possession of the holding if the tenant pays the rent before delivery is ordered. But in exceptional cases the court may order delivery even if the rent is tendered or paid before delivery is ordered. The question for consideration in such cases will be whether there has been wilful and unjustifiable default on the part of the tenant in paying the rent. But in exceptional cases the court may order delivery even if the rent is tendered or paid before delivery is ordered. The question for consideration in such cases will be whether there has been wilful and unjustifiable default on the part of the tenant in paying the rent. As a rule of practice it may be stated that only in cases in which a demand for rent has been made by the landlord or notice has been given to the tenant by the court to show cause why delivery of possession of the holding should not be ordered, and the tenant without any lawful excuse fails to pay the rent, that it can be held that the tenant has failed to pay the rent of the holding as contemplated by the proviso. We wish however to make it clear that this is only a rule of practice that may be adopted by the Courts, and that the question is primarily one of discretion to be exercised by the courts in a judicial manner. 12. In this particular case the execution court has not exercised its discretion in the matter and the lower appellate court has not decided the question. In the circumstances, we set aside the orders of the courts below and remand the case to the execution court for fresh disposal according to law and in the light of the observations made above. There will be no order as to costs. A.S. No. 512 of 1951 The 1st defendant is the appellant in this case. His petition for staying delivery of possession of the holding was rejected by the Court below on the ground that he has forfeited the benefit under the Act on account of failure to pay the rent that accrued due after the commencement of the Act. The decree in this case was passed on 17.3.1951. The first defendant deposited Rs.125/- on 9.5.1951. The Court below dismissed the petition of the 1st defendant on the ground that the payment of rent was after the due date. The question whether he has forfeited the benefit under the Act by reason of default to pay the rent on the due date will have to be reconsidered by the court below in the light of the observations made by us in our judgment in S.A. No. 936 of 1951. The question whether he has forfeited the benefit under the Act by reason of default to pay the rent on the due date will have to be reconsidered by the court below in the light of the observations made by us in our judgment in S.A. No. 936 of 1951. The order of the learned Munsiff is therefore set aside and the case is sent back to the court below for fresh disposal according to law. There will be no order as to costs in this appeal. S.A. No. 264 of 1951 Defendants 4 and 5 are the appellants in this Second Appeal. The decree is for recovery of possession of a holding coming within the purview of Act VIII of 1950. When the decree-holder applied for delivery of possession of the decree schedule properties defendants 4 and 5 objected contending that they were entitled to the benefit of Act VIII of 1950. The execution Court held that the defendants had forfeited the benefit under the Act by reason of their failure to pay the rent that accrued due after the commencement of the Act on the due dates. This order was confirmed in appeal. The decree in this case was passed on 21.2.1949. The defendants paid Rs. 1700 towards the decree debt on 6.6.1125 and a further sum of Rs. 260/- on 28.2.1951. The Courts below have not taken into account the payment on 28.2.1951. The question whether the defendants have forfeited the benefit under the Act by reason of their default to pay the rent on the due dates will have to be reconsidered in the light of the observations made by us in S.A. No. 936 of 1951. We therefore set aside the orders of the courts below and remand the case to the execution court for fresh disposal according to law. There will be no order as to the costs of this appeal. Govinda Pillai, J.:- I accept the conclusions of my learned brother Vithayathil, J. regarding the requisites of a Kanapattom. It is an anomalous mortgage and will not come under the category of a lease as is ordinarily understood. But the Legislature by the proviso to S. 2 included that also in the category of the holdings to which the stay of execution regarding delivery of possession is applied. It is an anomalous mortgage and will not come under the category of a lease as is ordinarily understood. But the Legislature by the proviso to S. 2 included that also in the category of the holdings to which the stay of execution regarding delivery of possession is applied. I also agree to the finding that the judgment-debtor would forfeit the benefit under the Act by failure to pay the rent of the holding that accrued due after the commencement of the Act or by committing intentional and wilful acts of waste in the holding. I regret I cannot agree with the qualified conclusion arrived at in paragraph 11 of the judgment in S.A. No. 936 of 1951. 2. The expression “Nothing contained in this section shall preclude the Court” in the proviso to S. 4, has the effect of only taking away the bar mentioned in the section. With a judicial determination of the allegations of the decree-holder regarding waste or failure to pay the rent, the court has no further discretion except in enforcing the decree if the finding is against the lessee. There is already the command of the court in passing the decree to put the decree-holder in possession of the property. The Legislature then intervened and laid down provisions to stay the enforcement of the decree for a definite period on the lessee abstaining from doing or doing certain acts. If the lessee does not abstain from doing or does these acts, then he loses the benefit conferred by the Act, and his liabilities and obligations would be determined by the provisions of the decree. 3. If a lessee has forfeited his right to the property by non-payment of rent, and the lessor sues to eject the lessee, then under the conditions laid down in S. 114 of the Transfer of Property Act, the Court without passing a decree for ejectment can allow the lessee to hold the property leased as if the forfeiture has not occurred. The discretion is given to the court before the decree for eviction is passed, and all the decisions referred to by my brother relate only to actions in ejectment, and not to decrees passed after hearing the defendant or giving him an opportunity to defend himself. The situation will change entirely when the decree is passed. The discretion is given to the court before the decree for eviction is passed, and all the decisions referred to by my brother relate only to actions in ejectment, and not to decrees passed after hearing the defendant or giving him an opportunity to defend himself. The situation will change entirely when the decree is passed. I respectfully adopt the opinion of Maxwell quoted in paragraph 5 of the judgment in S.A. 936 of 1951. If the object for which the power is conferred on the Court is for the purpose of enforcing a right whether public or private, there may be a duty cast upon the court to exercise it for the benefit of those who have that right when required on their behalf. Where there is such a duty it is not inaccurate to say that the words conferring the power are equivalent to saying that the Court must exercise it. 4. The lessee has to pay the rent on the dates mentioned in the lease deed till the date of decree in cases of pending suits for eviction, or on the date or dates fixed in the decree (Vide 1951 K.L.T. 568 referred to in paragraph 3 of the judgment.) If the decree is silent as regards the date of payment of rent, it has to be taken that in the case of rents to be paid periodically the rent was due within the expiry of one period from the date of decree. If the rent is not paid on or before the due date, then the tenant is one who has failed to pay the rent of the holding which has accrued after the commencement of the Act. To hold the property against the provisions of the decree, the lessee has a duty to attend to certain matters and if he fails to do so he forfeits the right. In such cases the power conferred on the court by the proviso to S. 4 has to be exercised. The Court will have no power to condone such a default and the courts are to hold the scales of justice evenly and without other considerations. 5. I agree to the decisions in S.A. 779 of 1950 and C.M.A. 298 of 1951. The Court will have no power to condone such a default and the courts are to hold the scales of justice evenly and without other considerations. 5. I agree to the decisions in S.A. 779 of 1950 and C.M.A. 298 of 1951. As regards S.A. 936 of 1951, the lower appellate Court had not decided the question whether the tenant had defaulted to pay the rent that accrued after the commencement of the Act. So the case has to go back to the District Court for the determination of this question and disposal of the appeal. There is default of payment of rent on the due dates in A.S. 512 and S.A. 264 of 1951 and these two appeals are to be dismissed. Koshi, C.J. I agree to the reasoning and conclusion of the judgments my learned brother Joseph Vithayathil has delivered in these appeals. As Mr. Justice Govinda Pillai differs from the leading judgment and from me on one aspect common to some of these cases I think it proper to add a few words of my own setting out the reasons which induce me to differ from him. In my view the words which introduce the proviso to S. 4 of Act VIII of 1950 sufficiently indicate that on the happening of the events mentioned in the proviso the Court is only given a discretion to order delivery of the holding. If the legislature intended that on either of the events referred to in the proviso happening the lessee shall lose the benefit conferred by the body of the section it had only to state that he shall not be entitled to the benefit of the section if he commits wilful waste or fails to pay rent. That is not what the Legislature has stated. It has stated that nothing contained in the section shall preclude the Court from ordering the delivery of possession of the holding to the decree-holder if the Court is satisfied either that the lessee has committed intentional and wilful acts of waste or that he has failed to pay the rent of the holding which has accrued due after the commencement of the Act. When the Legislature has thought fit to regulate post decree relations between the decree-holder and the judgment-debtor I venture to state that the analogy of S. 114, T.P. Act cannot be of much help to solve the question whether the provision should be deemed to be mandatory or not. It is a settled rule of interpretation that the words of a remedial statute must be construed, so far as they reasonably admit, so as to secure that the relief contemplated by the statute shall not be denied to the persons intended to be relieved. See 71 Indian Appeals 56 at 63 and A.I.R. 1949 F.C. 135 at 139. To construe the proviso as mandatory will in my view lead to serious hardships. The delay to pay rent may sometimes be of one day or of a like short period. Likewise a short payment may be of a very small sum like a fraction of a rupee. To my find it is difficult to believe that in a remedial statute intended to be in force for a transitory period the Legislature contemplated that the drastic consequences the opposite view would bring should follow such delays or short payments. This approach would show that the Legislature could not have intended the proviso to be mandatory. The passages my learned brothers refer to from Maxwell only go to show that the discretion should not be exercised arbitrarily or capriciously. The proviso does not enjoin on Courts to direct delivery whenever and wherever the events referred to in it are seen to be present. The Court is given a discretion in the matter; the only thing is that it should be exercised in a judicial manner.