Judgment.- This is a second appeal preferred against the decree and judgment of the learned District Judge of North Malabar in A.S. No. 12 of 1946, reversing the decree and judgment he learned District Munsiff of Badagara in O.S. No. 763 of 1944. The suit property belonged in jenm to one Koiloth tarwad. This property along with another property was granted on a kanom of Rs. 1,600 to the 1st defendant’s father one Krishnan Nambudiri by the then karnavan and the other members of the Koiloth tarwad. Ex. P-1 is the marupat executed by Krishnan Nambudiri to the Koiloth tarwad. Subsequently there was a partition karar in this Koiloth tarwad by which the tarwad got divided into two tavazhis known as Koiloth and Kuningat. The properties included in the marupat Ex. P-1 were equally divided. Half the properties and half the kanom were allotted to Koiloth tavazhi and the other half to Kuningat tavazhi. The entire rent payable by the 1st defendant’s predecessor was 30 edanglis of paddy. The rent also was equally divided between the two tavazhis. This karar was in 1922. Subsequent to this karar the properties were enjoyed as per the terms of the karar. The suit property was held under the Kuningat tavazhi. Krishnan Nambudiri died and his rights passed to the 1st defendant. 1st defendant in his turn assigned the Rs. 800 kanom and other rights over this property to the 2nd defendant as per Ex. D-1 in 1941. So the 2nd defendant is the present kanari of the property.‘While so all the members of Kuningat tavazhi who became entitled to the jenm right of this property, assigned their interest in this property to the plaintiffs and one Ummerkutti, another brother of theirs. This Ummerkutti died and his rights also passed to the plaintiffs. Ex. P-2 is the assignment deed in favour of the plaintiffs and Ummerkutti. The kanom amount standing saddled on the aforesaid nilam is more than 40 per cent. of the jenmam value thereof, in accordance with the Malabar Tenancy Act. The property mentioned in the plaint schedule, does not come within the ambit of the provisions of the Tenancy Act. Yet, if it be found that the jenmam value is less than 40 per cent. of the jenmam value thereof, in accordance with the Malabar Tenancy Act. The property mentioned in the plaint schedule, does not come within the ambit of the provisions of the Tenancy Act. Yet, if it be found that the jenmam value is less than 40 per cent. of the kanom amount, since the aforesaid nilam has been purchased in jenmam right, for holding the same in plaintiffs’ possession for their direct cultivation and for enjoying the annual income therefrom, it is necessary that on that footing also the plaintiffs should secure recovery of possession of the aid nilam after eviction. The 2nd defendant, who is the kanari, opposes the plaintiffs’ suit on two grounds, viz., firstly, that the predecessor karnavan of Kuningat tavazhi one Raman Nambiar, has agreed to renew the property to the 2nd defendant and taken a manusham of Rs. 15 from him. This agreement is said to be on 20th September, 1942. The 2nd defendant further says that Raman Nambiar passed a counterfoil receipt Ex. D-2 to him for that. According to him he is now holding the property by virtue of this agreement as evidenced by Ex. D-2. He is entitled to be in possession of the property for a further period of 12 years from 1942. The agreement was that the property was to be renewed on the same terms as Ex. P-1. The 8th defendant is the present karnavan of Kuningat tavazhi. The 2nd defendant further says that he had told the 8th defendant and also the 1st plaintiff about the agreement to renew and that the plaintiffs are thus not entitled to recover possession as they are aware of this agreement before the purchase. Secondly, it is urged in paragraph 12 of the written statement that the allegation that the kanom amount is in excess of 40 per cent. of the jenm value is not correct and that the allegation made that the nilam should be surrendered possession of for personal cultivation is also not true, that the plaintiffs are residing two miles away from the said nilam, that they are merchants dealing in stationery, that the demand made that it is necessary for direct cultivation is not a bona fide one and that the plaintiffs were not cultivators till now. The plaintiffs constitute members of a Moplah family living in Badagara and who own parambas fetching Rs. The plaintiffs constitute members of a Moplah family living in Badagara and who own parambas fetching Rs. 10 per annum two furlongs from the suit property and who realize rents in respect of certain other items of properties which they have leased out to tenants who cannot be evicted, amounting to Rs. 230 per annum and who run a lorry along with one Kunhiram to transport goods to a mill owned by this Kunhiram and which is naturally a fluctuating income between Rs. 35 to Rs. 45 a month and who run a stationery and cutlery shop in Badagara town which is said to fetch according to the learned District Munsiff about Rs. 1,100 per annum and which is alleged to be less by the plaintiffs and which naturally is also likely to be correct because the income from the shop is a fluctuating one dependent upon so many incalculable circumstances. The family of these plaintiffs consists of 13 adults and two children. In Ammalu Kutti Amma v. Ramunni Menon1, it was mentioned that the practice of the Courts in calculating maintenance was to treat, as a matter of evidence, two minors as equal to an adult. It is a notorious fact that these fertile Moplah families increase in geometrical progression and we do not know the additions since 1945. On the other hand, the 2nd defendant is a vakil’s clerk in Badagara for over a period of 20 years and his house is situated north of the plaintiffs’ shop and this 2nd defendant himself is only a recent assignee from the 1st defendant. It is common ground that the suit property is less than two miles from the house of both the plaintiffs and the 2nd defendant. It is common ground that the suit property is less than two miles from the house of both the plaintiffs and the 2nd defendant. In order to understand the point in controversy which are two in number on the side of the plaintiffs, viz., that the suit kanom is not a lease but a mortgage and therefore does not fall within the purview of the Malabar Tenancy Act, in regard to renewals; and secondly that the lands are required by the plaintiffs bona fide for the purpose of raising crops or other produce for their own maintenance and that of the members of their family who have a proprietary or beneficial interest in the holding as contemplated by clause (5) of section 20 of the Malabar Tenancy Act (XIV of 1930) as amended by Act XXIV of 1945 and two points on the side of the 2nd defendant, viz., that there was an agreement to renew the kanom and secondly, that the plaintiffs have not shown that they are entitled to get possession of the lands for the reasons mentioned in clause (5) of section 20, we must bear in mind sections 3, 10, old section 17 (now omitted), sections 20 and 52-A of the Malabar Tenancy Act as amended in 1945 and 1951. Section 3 purports to embody the customary incidents of the kanom transaction as settled by usage and judicial decisions. The term kanom is used in a variety of senses. It is derived by Dr. Cundert from the root kanu (to see) and its primary meaning is given as that which appears or is visible. Hence, it is said to mean visible property or wealth. He defines it as (1) possession of the goods, (2) mortgage, (3) loan of money as equivalent for a mortgage, and (4) valuable consideration. In this Act, it is used to denote the nature of certain engagement between the parties thereto. It is therefore defined as the transfer of an interest in land. In Dewan Bahadur (then Sir) M. Krishnan Nair’s Bill, it is defined as the consideration paid by the kanomdar for his holding, which in the present Act is called the kanartham. In this Act, it is used to denote the nature of certain engagement between the parties thereto. It is therefore defined as the transfer of an interest in land. In Dewan Bahadur (then Sir) M. Krishnan Nair’s Bill, it is defined as the consideration paid by the kanomdar for his holding, which in the present Act is called the kanartham. In the Travancore Janmi and Kudiyan Regulation, 1071, “kanom” is defined as the consideration paid by the kanomdar including the value of improvements due to him when a nilam or rice land is the subject-matter of the kanom contract, the tenure is called kanom Kohu or Ubhayapattam as every kanom includes a lease also: Neela Kandhan v. Ananthanarayana Pattar2. No tenures resembling kanoms are to be met with elsewhere also but the special feature in Malabar as pointed out in Sundara Iyer’s Malabar and Aliyasanthana Law (Revised by B. Seetharama Rao, 1932, M.L.J. Office, Madras) 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 “P. 291.” This is not the place for tracing the history of this most interesting tenure and those desirous may consult with profit the 1951 edition of Vol. I of Logan’s Malabar Manual by the Superintendent, Government Press, Madras. The customary incidents of the kanom transaction as settled by judicial decisions are as follow: The nature of a kanom was discussed by a full Bench of the Madras High Court in Nellayya Varuiath Silpani v. Ashtamurti Nambudiri3, and was thus described by Innes, J., with whom the rest of the Court concurred: 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. 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 mortgagees in all such holdings is assumed to be able to derive from the lands placed in his possession enough to pay the interests at least to the money advanced the discharge of the principal is not immediately contemplated. The mortgagees in all such holdings is assumed to be able to derive from the lands placed in his possession enough to pay the interests at least to 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 surplus 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 a lease as undoubtedly the land enures as security, if not for the principal at least for the interest of the loan advanced. The decisions of our Court have ever since proceeded on the basis that the kanom partakes of the nature of both a mortgage and a lease. Here to the uninitiated it may be pointed out that the mortgagee is called the kanomdar, the mortgagor kanari, the advance kanartham, the kanom deed Ubhayapattola Karanam, the counter-part granted by the tenant to Jenmi Kychit, copy of the kanom deed, Marupattam the balance of attam or rent after deducting mortgage interest michavaram or porapadu the nazzer paid at the time of renewal Kekkuli, Silakkasu, Manusham, etc. It is now settled that a kanom is an anomalous mortgage within the meaning of section 98 of the Transfer of Property Act. Kanna Kurup v. Sankara Varma Rajah1 to which the doctrine of clog on redemption would apply, although a contract to grant a kanom has been held to be capable of specific performance: Unniri Kutty v. Narayana Chettiar2. Whether kanom be a mortgage or a lease, a kanomdar is entitled to the rights of both a tenant and a mortgagee: Narayanan Nambudiripad v. Krishna Patter3. It is a transaction which is both a mortgage and a lease and there is no profit or use in speaking of a mortgage as partaking of the nature of a lease, as if we could have a mortgage with a tinge of flavour of a lease in it. It has been compared to the zuri peshgi lease of Northern India: Meenakshisundara Mudaliar v. Rathnaswami Pillai4: Kanom is not really a contract for borrowing or lending money but one for land. It has been compared to the zuri peshgi lease of Northern India: Meenakshisundara Mudaliar v. Rathnaswami Pillai4: Kanom is not really a contract for borrowing or lending money but one for land. It is generally understood as an estate or tenure in land for the purpose of occupation, cultivation and improvement in which the kanomdar has a substantial interest. The present definition steers clear of all difficulties by refraining from designating the transaction either as a mortgage or as lease and by resting content with the enumeration of its essential incidents. It,is on the lines of the definition of Mr. Justice Holloway in Vayalil Pudia Madathemmil Moidin Kutti Ayissa v. Udaya Varma Valia Rajah5 to the effect that “the contract of kanom is substantially an agreement by one party, in consideration of receipt of a sum of money from the other, to place real property in possession of that other for a period of twelve years.” This definition has been reiterated in Achayi v. Parameshwaran6. Mr. Reid, the District Judge of North Malabar, defined ‘kanom’ as a tenure under which the grantor received a loan, stipulating that, in consideration of the loan, the lender shall take his interest out of the usufruct, and pay a certain rent to the grantor and enjoy the property so granted on kanom for a period, which if not otherwise expressly defined, is twelve years: Kanara v. Govindan7. In other words, a kanom is a combination of both a mortgage and a lease: Valia Kalyani v. Krishnan8. A transaction which otherwise fulfils the requirements of a kanom as defined in section 3(1) of the Malabar Tenancy Act does not cease to be a Kanom simply because the renewal fee calculated according to the provisions of the Act comes to nothing: Kannathazha Pakram v. Puthalath Amina Ummar9. A transaction which otherwise fulfils the requirements of a kanom as defined in section 3(1) of the Malabar Tenancy Act does not cease to be a Kanom simply because the renewal fee calculated according to the provisions of the Act comes to nothing: Kannathazha Pakram v. Puthalath Amina Ummar9. A document contained all the material terms that are generally found in a kanom deed and the parties agreed to one or two terms which are not ordinarily found in a kanom deed, as for instance stipulating interest on advance amount paid and the reservation of the right to bring the property to sale in case of non-return of the advance amount in time, etc., it was held that the fact that the deed partook the character of a mortgage and contained some terms other than those found in the definition of a kanom did not make it any the less a kanom: Madhavi Amma v. Kalathi Sucheela1, Mr. Moore thinks that in its origin kanom was an usufructuary mortgage in North Malabar while in South Malabar it was a lease. In the famous parliamentary Fifth Report, Volume II, page 440, it is stated that it is an easy tenure at an easy rent and that it can be transferred or mortgaged, the land to one and the building to another. It is unnecessary to multiply these details to show that a kanom has to be considered and treated as a mortgage in certain cases and has to be construed and treated as a lease in other cases. Madras Act XXXIII of 1951 which has amended the Madras Act XIV of 1930 has completely substituted section 10 for the old section 10 and the provisions which were formerly embodied in section 17 has been embodied under section 19 of the amended Act which states that sections 16 to 19 of the said Act and the heading “Chapter IV Renewals” shall be omitted. This section 10 starting with the proposition “Notwithstanding any contract to the contrary, whether entered into before or after the commencement of this Act” lays down that every kanomdar shall have a fixity of tenure in respect of his holding and shall not be evicted therefrom except as provided in this Act and which provisions are to be found in section 20. Then section 10 contains two provisions, viz., that this right to certain classes of tenants like kanomdars to fixity of tenure is concluded in the case of two categories, viz., tenants of commercial sites where no fixity of tenure had been acquired before the Amendment Act of 1951 and with which we are not concerned here and secondly, in the case of a kanomdar whose kanartham exceeds in South Malabar sixty per cent. of the value of the jenmi’s rights in the holding and in other places (North Malabar 40 per cent. of the value of such rights). Then the Explanation to the section lays down the principles for evaluating jenmi’s rights in the holding. The newly added section 52-A by the Amendment of 1951 reiterates principles laid down in section 10 for the guidance of the Rent Settlement authorities. The reasons on the basis of which these kanoms wherein the kanartham exceeds 60 per cent. of the jenmi’s right in the holding in South Malabar and 40 per cent. of the value of the jenmi’s rights in North Malabar are based upon the following reasons pointed out by Mr. C. Govindan Nair in his interesting Commentary on the Malabar Tenancy Act XIV of 1930 (Associated Publishers, Ltd., Higginbothams, Madras, 1931) as follows: “That there is a well-marked distinction between the kanom tenure of North and South Malabar has been recognised by all concerned. They are different in their genesis, growth and development. In South Malabar the kanom is a cultivating lease, the kanarthan is small compared with the extent of the holding, the rent reserved is a substantial amount, the transaction is regarded as the creation of a tenure between a landlord and a tenant and the renewal thereof is the rule. In North Malabar, kanoms are really mortgages, the kanartham is heayy, little or no rent is payable, as the interest quite covers the value of the produce, the transaction is regarded as one between a lender and borrower without any notion of tenancy or tenure attached to it and the adherence to the twelve years’ term and the exaction of renewal fees every twelve years is the exception and not the rule. Dewan Bahadur (then Sir) Krishnan Nair, therefore, excluded kanams of North Malabar altogether from the scope of his Bill. Dewan Bahadur (then Sir) Krishnan Nair, therefore, excluded kanams of North Malabar altogether from the scope of his Bill. The Raghavayya Committee considered it to be a wrong way of dealing with the situation as there were similar kanamas in the nature of mortgages in South Malabar also. According to the Committee, the logical method was to exclude from the scope of legislation all kanoms which are essentially mortgages, whether in North or South Malabar. The Committee, therefore, recommended the exclusion of all kanoms wherein the kanartham exceeded 60 per cent. of the junmam value of the holding both in North and South Malabar on the basis that the proportion of 60 per cent. indicated a real security under section 66 of the Transfer of Property Act. The Legislative Council considered that some discrimination was necessary and hence varied the percentage in the two districts.” Section 20 enumerates the grounds for eviction of a kanomdar. They cannot be evicted on grounds other than those falling within the range of the circumstances mentioned in this section. The grounds may be grouped under three classes, those involving misconduct on the part of the tenant under one class, those which are personal to the landlord which term will embrace a Hindu idol or institution like a Devaswom (Chozni v. Parameswaram1) under another class and the residuary ground under a separate class by itself. The grounds specified in classes (1), (2) and (4) of section 20 fall under the first class, those set out in classes (5) and (6) fall under the second class and the grounds mentioned in clause (3) of the old section 20 of the Malabar Tenancy Act (XIV of 1930) constitute the third class. The Amendment Act XXXIII of 1951 states in section 20, clause (2) that clause (3) of the said Act, viz., “that the period of the . . . . kanom has expired and no renewal has been obtained” shall be omitted. The Amendment Act also states that in clause (5) the words “and there has been no renewal” shall be omitted. . . . kanom has expired and no renewal has been obtained” shall be omitted. The Amendment Act also states that in clause (5) the words “and there has been no renewal” shall be omitted. In other words, clause (5) of section 20 stands as follows: “That the period of the............kanom............has expired and there has been no renewal and the landlord needs the holding bona fide for the purpose of raising crops or other produce for his own maintenance or for that of any member of his family or tarwad or tavazhi who has a proprietary and beneficial interest in the holding”. The grounds for eviction under section 20 as amended in 1945 may be briefly grouped under the heads (i) forfeiture and (ii) bona fide requirements. The landlord can enforce eviction on the first set of grounds at any time, even during the subsistence of the tenure, while he can avail himself of the other grounds only after the period of kanom had expired. Under the first set of grounds there is no restraint on the powers of alienation of the landlord on resumption of the lands by him; nor is there any obligation on him to use the lands himself in any particular case. But under the second set of grounds, eviction is subject to the tenant’s right to restoration on alienation or non-user as provided for in section 21. Under all these grounds the eviction will be in respect of the entire holding except in the case of eviction based on clauses (4) and (6) where it will be confined to the portion encroached upon or bona fide required by the landlord. In order to entitle the landlord to evict the tenant under clause (5) three conditions should be fulfilled viz., (i) that the period of the kanom has exprired; (ii) that there has been no renewal; and (iii) that the landlord bona fide requires the holding for the cultivation of himself or of his own family. This third condition, viz., the landlord needing the holding bona fide is in reality a ground for denying the right of renewal to a tenant. The terms of section 20 quite clearly prohibit any suit being brought for eviction of a kanomdar except on any of the grounds specified therein, quite irrespective of any contract or bargain between the parties. This third condition, viz., the landlord needing the holding bona fide is in reality a ground for denying the right of renewal to a tenant. The terms of section 20 quite clearly prohibit any suit being brought for eviction of a kanomdar except on any of the grounds specified therein, quite irrespective of any contract or bargain between the parties. It is clear that the Act was intended to supersede the customary and contractual rights, liabilities and incidents pertaining to the various forms of land tenure prevailing in the district to the extent to which such rights, liabilities and customs ran counter to the provisions enacted therein: Chandu v. Sankaran2. The language employed by section 20 of the Malabar Tenancy Act is plain and peremptory, and prohibits a suit for eviction being instituted except on one or more of the several grounds specified in that section. There are no words in it showing an intention on the part of the legislature to save contracts entered into before or after the Act. Consequently a contract between the landlord and the tenant entered into before the Act and conferring a right of eviction on grounds other than those enumerated in section 20 cannot be enforced at the instance of the landlord: Chandu v. Sankaran2. In other words, the suit for eviction might be instituted on all or any of the grounds specified in this section. But a party will not naturally however be permitted to fight out the case on a ground different from that put forward by him. In this connection two decisions of single Judges of this Court have been brought to my notice by the learned advocate for the respondent. In Amma Amma v. Kunnapadi Kalan3, Yahya Ali, J., held without giving any reason, that where in a case falling within the category of cases covered by clause (5) of section 20, one of the requirements of that section is not satisfied it is obviously not open to the party to claim eviction by falling back upon clause (3) as it is repugnant to the scheme of the Act as well as section 20. In Kuncheethu v. Vasunni1, Raghava Rao, J., held that “where in a suit laid under section 20 (5) of the Malabar Tenancy Act, the plaintiff fails to make out his right to evict on the allegations in the plaint made with reference to clause (5) of section 20 of the Act, the only course open for the Court to adopt is to dismiss the suit. It will not in such a case be open to the plaintiff who has failed to make out the foundation for the suit with reference to the requirements of clause (5) of section 20, to fall back upon the consideration that two of the three requirements of clause (5) which are the requirements of clause (3) stand made out and that the suit must be dealt with as a suit under clause (3) of section 20”. Once again I have to point out the learned Judge beyond mentioning that he followed Amma Amma v. Kunnapadi Kalan2, cited above did not give any reason for his conclusion and in fact he has pointed out as follows: “I am prepared to follow that decision as sound, although it occurred to me strange, before I had the object and policy of the two particular clauses expounded by counsel before me, that a suit which failed on the allegations in clause (5) of section 20 of the Act should not be allowed to be considered with reference to the requirements of clause (3) of section 20 of the Act which are the same as two out of the three requirements of clause (5).” In fact this very point has been fully considered by Varadachariar, J. (as he then was) in Narayanan Moossad v. Mammadissa3. The learned Judge has pointed out as follows: “I agree with Mr. Kuttikrishna Menon that the clauses are not perhaps very happily worded or located. I find it stated in one of the commentaries on the Act that clauses (5) and (6) were added after the Bill had left the Select Committee. That perhaps explains why they were put in the particular form and place, in which they are now found in the Act. I find it stated in one of the commentaries on the Act that clauses (5) and (6) were added after the Bill had left the Select Committee. That perhaps explains why they were put in the particular form and place, in which they are now found in the Act. It would perhaps have been more appropriate if the Act had provided that the landlord’s bona fide requirements will be an answer to the tenant’s application for renewal, instead of tacking on that requirement in the provisions dealing with the right to eject. On the language of section 23 Mr. Kuttikrishna Menon is justified in saying that once a landlord alleges an intention to put forward a case under any clause other than clause (3) of section 20, the Court has no option but to dismiss the tenant’s application for renewal. In interpreting section 23 also, it must be remembered that clauses (5) and (6) to section 20 were inserted at a later stage and the necessity for making corresponding modifications in section 23 might have been lost sight of. The Act has proceeded on the footing that the other grounds of eviction will only be alleged at a date when the tenancy had not expired and therefore provided that if such allegation is made, the application for renewal shall be dismissed. It did not contemplate a case where both the grounds of eviction may co-exist. If in a case where both the grounds other than the expiry of time have not been substantiated, the result is that the Court will have to deal with the case only on the footing of a claim based on expiry of time and immediately the tenant’s right to apply under sections 22 and 23 will have to be dealt with as if no other ground existed. This seems to me the only way in which I can reconcile the various provisions of the Act and give reasonable effect to its scheme.” In other words, we have to examine both the aspects of the case here as pointed out by Varadachariar, J. The other important question which arises from section 20 is the requirements which will have to be made out by a landlord to the satisfaction of the Court (Subbarayan Chettiar v. Amir Mohidin Rowther4) in order to benefit by the concession shown to him under clause (5). Originally in the Malabar Tenancy Act of 1930 the words used were “the landlord requires the holding bona fide for his own cultivation or for that of any member of his family or tarwad or tavazhi who has a proprietary and beneficial interest therein”. The word “requires” was construed in three decisions of this Court. In Rama Nayar v. Kasavan Embarandri5 Venkataramana Rao, J., held that a mere desire on the part of the landlord to have the land for his own cultivation even if bona fide is not enough. The learned Judge said that in coming to a conclusion on the question of the landlord’s need being bona fide, the Court should in each case consider whether the circumstances are such that the land must be restored to the landlord for his own cultivation or cultivation by any member of the family or tarwad, the test being the need of the landlord. In forming this opinion the learned Judge placed reliance on the decision of the Calcutta High Court in Rekhabchand Doogar v. J.R. D’Cruz1. That was a case under the Calcutta Rent Act, section 11, which prohibited the landlord from recovering possession from a tenant so long as the tenant paid the rent to the full extent allowable by the Act and performed the conditions of the tenancy. That section incorporated a proviso giving the landlord the right to resume possession if the premises were required by him bona fide for purposes of building or rebuilding or for his own occupation or for the occupation of any person for whose benefit the premises were held. The same question arose in this Court in another case Erayi Erayi Achuthan v. Poochakkendi Panakat Khatheeja Bi2. In that case King, J., discussed the meaning of the words “requires”, “needs” and “bona fide”. King, J., stated “I find on referring to the Oxford Dictionary that the primary meaning of the word” require “, as is indeed clear from its Latin derivation, is to ask for or demand something and in this primary meaning, there is no element of need necessarily present”. King, J., stated “I find on referring to the Oxford Dictionary that the primary meaning of the word” require “, as is indeed clear from its Latin derivation, is to ask for or demand something and in this primary meaning, there is no element of need necessarily present”. He further held that the word “require” would mean “is in actual positive need” and that the expression “bona fide ” cannot apply to a state of circumstances but only to the statements or intentions or actions of a human being and that all therefore that was necessary, in his opinion, was for the Court to decide whether when the landlord demands or asks for or sues for any land on the ground that he wishes to cultivate it himself, his statement that he wishes to cultivate it himself, is a statement made bona fide. On account of his differing from Venkataramana Rao, J., King, J., granted leave to appeal. This defference of opinion between Venkataramana Rao, J. and King, J., was the subject-matter of the Bench decision in Narikkal Chathan v. Veethivottillath Kesavan3. The Bench held that the words mean that the landlord should have a genuine intention to cultivate the land and not that he should show a real need to do so and approved Achuthan v. Katheeji Bi2 and disapproved Raman Nayar v. Kesavan Embrandri4. Therefore, when the Malabar Tenancy Act came to be amended by the Second Amendment Act XXIV of 1945 the word “needs” was replaced by the word “requires” and in effect restored the interpretation of Venkataramana Rao, J. There can be no doubt that under the present amended clause (5) the Jenmi has to prove that he needs this holding bona fide for the purpose of raising crops or other produce for his own maintenance or for that of any member of his family tarwad, thavazhi, etc. The Court is not bound to decree the suit on the jenmi’s statement that he needs the land for his own cultivation. On the other hand, the Court is bound to go into the matter and find out whether the jenmi genuinely requires the land for his own cultivation. The Court has to take into consideration all the relevant circumstances placed before it: Subbarayan Chettiar v. Ammer Moddin5. But in construing the circumstances, the Court must be fair both to the jenmi as well as to the kanomdar. The Court has to take into consideration all the relevant circumstances placed before it: Subbarayan Chettiar v. Ammer Moddin5. But in construing the circumstances, the Court must be fair both to the jenmi as well as to the kanomdar. The Court must bear in mind that the object of this provision is twofold, viz., to prevent absentee landlordism and rack-renting and secondly, that the landlords should be encouraged to go in for self-cultivation and put into their lands their skill, energy and funds and maintain themselves without unnecessarily depending upon the State for providing them with rations and multiply the progressive landed gentry personally cultivating the lands. Therefore the relevant circumstances which would have to be examined by a Court in cases of this nature would be on some such lines as follows: What are the needs in the way of physical requirements of foodstuff of the persons who want to go in for personal cultivation; where do they live, viz., far away from the lands or near the lands; have they the intention and the opportunity to go in for personal cultivation or is it merely a device to take the lands from X and give it to Y at a enhanced rental; have they other supplementary sources of livelihood which would completely absorb their energies and make this declaration to cultivate personally lands a mere pretence whether the holding required is far in excess of their requirements or do they own other landed properties on which they can raise their crops or other produce for their maintenance. What is essential is that the Court must be satisfied that the landlord honestly and genuinely requires the holding for the stated purposes and that he is not actuated by any indirect or ulterior motive. Mathunsa Rowthan v. Apsa Bin1. There is a general presumption in favour of bona fides and against misconduct of all kinds. In the ordinary transactions of life fairness and honesty are presumed; (Savlappa v. Devchand2. But in view of the specific provisions in these clauses entitling the landlord to evict only in the case of bona fide requirements affirmative proof by the landlord is necessary. This does not mean that we should attribute a “double dose of the original sin” to all jenmis and scan their ostensible needs with such suspicion, illiberality and meticulousness as to render this option given to the landlord quite illusory. This does not mean that we should attribute a “double dose of the original sin” to all jenmis and scan their ostensible needs with such suspicion, illiberality and meticulousness as to render this option given to the landlord quite illusory. Courts administering this section should bear in mind the wise words of Justice Pandalai that the new measure is intended to bring happiness and contentment to both jenmis and intermediaries and this depends on the good will of all the parties including the Court (Preface to Govinda Nair’s Malabar Tenancy Act). Bearing these principles in mind let us examine the facts of this case in regard to the three grounds put forward by both the parties viz., that this kanom is a mortgage and therefore the kanomdar is not entitled to fixity of tenure and his eviction has to be ordered; and secondly, that there is an agreement to renew which if true would naturally be binding upon the jenmi and disentitle him to the eviction asked for; and thirdly, whether the jenmi requires this holding for bona fide personal cultivation as contemplated under the amended clause (5) of section 20. Point 1.-I have already reproduced the contention of the plaintiffs in the plaint and the denial of the 2nd defendant in the written statement and it now remains for me to deal with the proof of the same. It has been elicited from the 1st plaintiff in cross-examination as follows: “The jenm value was fixed at Rs. 1,800 out of which kanom was Rs. 800. Out of the balance, Rs. 1,000, Rs. 304 was reserved with me for paying off a mortgage due to Gopalan Nair. Rs. 696 was paid in cash towards jenm value. Rs. 100 was paid towards arrears of rent.” This matter has not been pursued further and there can be no doubt that the 1st plaintiff’s statement stands uncontradicted. The 2nd defendant on the other hand has not stated one word in support of the contention advanced by him in the written statement obviously because he had no legs to stand upon. The learned District Munsif Sri T. Sankaranarayana Menon has found that this is a case where the kanom exceeds 40 per cent. The 2nd defendant on the other hand has not stated one word in support of the contention advanced by him in the written statement obviously because he had no legs to stand upon. The learned District Munsif Sri T. Sankaranarayana Menon has found that this is a case where the kanom exceeds 40 per cent. of the jenmi’s right in the property and bases his conclusion upon the one significant circumstance that the 2nd defendant did not apply for the renewal of the kanom in respect of this property even though he set up an agreement for renewal. If the kanom did not exceed 40 per cent. of the jenmi’s right, the 2nd defendant who is a vakil’s clerk and who knows all about the intricacies of the Malabar Tenancy Act would have applied for renewal. The learned District Judge considered that the finding of the learned District Munsif was based upon an inadequate appreciation of the evidence and called for a fresh finding in regard to the plaintiffs needing the land for bona fide cultivation. The learned District Munsif who submitted the finding viz., Sri K.N. Padmanabhan Nayar pertinently pointed out in paragraph 2 of his finding that in this case it has been clearly shown that the kanom amount exceeded 40 per cent. of the jenmi’s rights but that in view of the terms of the directions of the learned District Judge he was not concerned with this aspect of the matter. On hearing the appeal the learned District Judge made no reference to the evidence elicited from the 1st plaintiff in cross examination and the utter absence of any evidence on the side of the defendants but stated that the 2nd defendant might have other reasons for not asking for a renewal, which the 2nd defendant himself did not vouchsafe because the 2nd defendant’s case throughout was an agreement to renew which was found to be wholly false by both the Courts, and that the prices prevailing in 1930 should have formed the subject of evidence and which is meaningless in view of the uncontradicted statement of the 1st plaintiff elicited in cross-examination. Therefore, I have no hesitation in setting aside this finding of the learned District Judge, and restoring the finding of the learned District Munsif that the kanartham exceeded 40 per cent. Therefore, I have no hesitation in setting aside this finding of the learned District Judge, and restoring the finding of the learned District Munsif that the kanartham exceeded 40 per cent. of the jenmi’s right in this case and therefore this kanom is a mortgage in regard to which the kanomdar cannot claim fixity of tenure. The appeal should have been dismissed on this short point alone. Point 2.-The agreement to renew has been exhaustively examined by the learned District Munsif in paragraphs 14 to 18 of his judgment (pages 3 to 7) of the printed Judgment and he came to the conclusion that the agreement to renew set up by the 2nd defendant was not true. The learned District Judge did not upset this finding. Therefore, in both the lower Courts this plea of the 2nd defendant has failed. I am bound by this finding of fact. Point 2 is decided against the 2nd defendant. Point 3.-The following circumstances clearly show that the jejuni has proved to the hilt that he needs the holding bona fide for the purpose of raising crops or other produce for his own maintenance and the members of his family. This property has been purchased by these plaintiffs only for the purpose of raising foodstuffs like paddy and tapioca for the raising of which this holding is well suited. Secondly, this family consists of 13 adults and two children who require in a deficit area like Malabar rice and tapioca for their food. It cannot be disputed that the entire produce which can be raised upon this holding will be less than the total requirements of this entire family, multiplying year after year. Thirdly, the plaintiffs live within two miles of the land and own a Paramba within two furlongs of this land and it is their intention, if they recovered possession of this holding to live on the Paramba and attend to the cultivation of these lands personally. Fourthly, they have been cultivating these lands for three years after they obtained a decree in the trial Court and before it was upset by the learned District Judge. Thus the plaintiffs have had a trial run as personal cultivators and have acquitted themselves creditably. Fourthly, they have been cultivating these lands for three years after they obtained a decree in the trial Court and before it was upset by the learned District Judge. Thus the plaintiffs have had a trial run as personal cultivators and have acquitted themselves creditably. Fifthly, the other sources of income pointed out, apart from being irrelevant for the purpose of construing the section by themselves, are inadequate for maintaining this family consisting of 15 people. On the other hand, if the plaintiffs cultivated the holding they would provide themselves with food which is their main requirement and for their menchelavu could indent upon the other sources of income which under all heads, allowing for fluctuation, would be less than Rs. 1,000 per annum. This sum divided by 15 would not make a brave show. In construing the word “maintenance” we cannot only think of food because in regard to Malabar the term “maintenance” has been construed in several judicial decisions as including not only the bare necessities of life but also what is usually called in Malayalam as menchelavu or extra expenses. The term “maintenance” has been held to include the reasonable and legitimate expenses of medical treatment, marriages, pilgrimages, defence in criminal cases, etc. (Govinda Nair v. Kunjan Nair1; Parvati v. Kumaran2; Ammalu Kutti v. Ramunni Menon3; Valia Konekkal v. Lakshmi Nattiyoor4; Devaraja v. Seshappa5. Recently Chandra Reddi, J., in Mariyam Umma v. Kayyat Anderman S.A. No 1939 of 1948 held that in construing what is the quantum of maintenance needed under section 20 several factors like the status of the parties, the necessities and rights of the members and the mode of living, etc., should be taken into consideration, vide Ekradeshwari Bahuasin v. Homeshwar Singh6. The 2nd defendant in this case need not be pictured to be a tiller of the soil sought to be deprived of his means of livelihood, viz., toiling and moiling and earning his livelihood by the sweat of his brow and who are the class of persons contemplated under the Malabar Tenancy Act, but a vakil’s clerk of 20 years’ standing living in Badagara just north of the plaintiffs’ shop and eking out his livelihood not with the plough but with the pen. The only soil which he has cultivated is paper and the only irrigation to which he is accustomed is with ink and the only seeds he has sewn are the seeds of litigation. Over and above all, if we take into consideration the extraneous circumstances mentioned by the learned District Judge we would be making the Malabar Tenancy Act the instrument for creating new varnas in the already varna-ridden Malabar because the net result would be once a cobbler albeit a successful cobbler, he must stick to his last. For instance, if we are to apply the tests of the learned District Judge, a cobbler living in Badagara and who owns a couple of acres of lands and wants to cultivate it, if he happens to be a lazy, idle and unthriving cobbler he would be allowed and if he happens to be an industrious and intelligent and thriving cobbler he would forever be excluded from cultivating his lands. This is really creating with a vengeance varnas of our own and we would be even offending the principles of the Constitution of India regarding the freedom to practice, the trades and professions one wants to do and the wise restraints which the Malabar Tenancy Act wants to place upon absentee and rack-renting landlords, which would constitute legitimate restraints, would become illegitimate restraints and the provisions themselves ultra vires of the Constitution. I set aside without hesitation the finding of the learned District Judge as thoroughly perverse and restore the finding of the learned District Munsif and find issue 1 in favour of the plaintiff. In the result, the appeal is allowed and the decree and judgment of the learned District Judge are set aside and those of the learned District Munsif are restored with costs throughout. No leave. V.P.S. ----- Appeal allowed.