Krishna Ayyar v. Kuthiravattath Nayar — 1958 DIGILAW 87 (KER)

JUDGMENT G. Kumara Pillai, J. 1. This appeal relates to apportionment between the landlord and tenant, of the compensation amount awarded in a Land Acquisition Case. The properties acquired, namely, 84 cents of paddy land, 23 cents of garden land, and a tank measuring 1 acre 15 cents, belonged in jenmam to the Kakkayur Devaswom of Kuthiravattathu Nayar and formed part of the kanom holding comprised in Ext. B4. The original kanom grant was Ext. B1 dated 15-11-1894. It was renewed by Ext. B2 in 1913, by Ext. B3 in 1925, and by Ext. B4 in 1940. The notification for the acquisition was published on 28th May 1952. 2. Details of the compensation awarded are as follows: I Paddy land:- Rs. A. P. Land value at Rs. 2250/- per acre for 84 cents 1,890 0 0 Value of 6 palmyra trees standing on the spot 36 0 0 Total 1,926 0 0 15 per cent solaium 288 14 5 Total 2, 214 14 5 II (a)Garden land measuring 10 cents: Rs. A. P. Value of annual yield of trees 21 0 0 Capitalised value of same for 20 years 420 0 0 Value of house 77 5 7 Total 497 5 7 15 per cent solarium 74 9 8 Total 571 15 3 (b) Garden land measuring 13 cents: Value of annual yield of trees 7 8 0 Capotalised value of same for 20 years 15 per cent solaium 150 0 0 Total 172 8 0 Total of (a) &(b) 744 7 3 III Tank of 1 acre 15 cents: Value of land 345 0 0 Cost of excavation 5,080 5 1 Cost of construction of retaining walls 1,024 12 10 Less depreciation 15 per cent 153 11 6 Value of trees on bank of tank 78 0 0 Total 6,374 6 5 Solatium 956 2 7 Total 7,330 9 0 Total compensation awarded including 15% solatium 1,02,89 14 8 3. As there were disputes between the jenmi and the kanomdar regarding apportionment of this compensation amount, the land acquisition officer referred the case to the court of the Subordinate Judge of South Malabar at Palghat, and the learned Subordinate Judge has passed a decree awarding to the jenmi (landlord), who was respondent 1 in the proceedings before him, Rs. As there were disputes between the jenmi and the kanomdar regarding apportionment of this compensation amount, the land acquisition officer referred the case to the court of the Subordinate Judge of South Malabar at Palghat, and the learned Subordinate Judge has passed a decree awarding to the jenmi (landlord), who was respondent 1 in the proceedings before him, Rs. 6,539-3-9 being one-third of land value, half solatium, three-fourth of excavation charge of tank with solatium thereon, and one-fourth value of the palmyra trees with proportionate solatium; and to the kanomdar (tenant), who was respondent 2 before him, Rs. 3,750-10-11 being two-third land value with half solatium one-fourth excavation charge with solatium and three-fourth value of the palmyra trees. The appeal is filed by the kanomdar, i. e., respondent 2 before the lower court, against the above decree. 4. The acquisition in this case was made for the purpose of the Malampuzha Scheme, and there were many references in the court below in connection with the acquisitions made for that project. Some of those references were decided before this case, some along with this case, and some after it. Professing to follow the decision of the Madras High Court in Natesa Aiyer v. Khaja Maruf Sahib (AIR 1927 Mad. 489), the lower court awarded in these cases one-third of the value of land and half the solatium to the jenmi; and it was following that practice that the lower court awarded in this case also one-third land value and half the solatium to the jenmi and two-third land value and half the solatium to the kanomdar. So far as the tank is concerned the kanomdar's case was that it was he who dug the tank, but the finding of the lower court is that it was the landlord who dug it. This finding as well as the mode of apportionment adopted by the lower court, both in regard to the value of land, trees and tank and the solatium, are objected to by the appellant in this court. 5. The contention that it was the tenant who dug the tank and built the retaining walls is groundless. The tank and its bunds are expressly referred to in Ext. Bl, the earliest kanom document which was executed on 15-11-1894. Rw. 5. The contention that it was the tenant who dug the tank and built the retaining walls is groundless. The tank and its bunds are expressly referred to in Ext. Bl, the earliest kanom document which was executed on 15-11-1894. Rw. 1, who is a cousin of the appellant, has given evidence to the effect that it was the appellant's grandfather who built the retaining wall. His evidence has, however, been disbelieved by the lower court, and after going through his deposition we also do not see any reason to differ from the lower court's opinion, especially in view of the reference to the tank and its bunds in Ext. Bl and the subsequent documents. We, therefore, hold that the tank was built, and the retaining walls and bunds were also constructed, by the jenmi even before the kanom was granted. 6. On behalf of the respondent, i. e., the jenmi, it was contended in this court that as the tank was dug and the retaining walls built by him and as also the tenant could not have derived any profit directly from the tank, the jenmi is entitled to the entire compensation awarded for the tank and that the tenant has no right to any portion of it. 'But the jenmi has not filed any appeal against the apportionment made by the lower court giving only three-fourth of the compensation amount for the tank to him and awarding the balance one-fourth to the tenant; and so, it was urged on his behalf that, as the lower court has awarded to him only something less than what he was entitled to, the lower court's decree in so far as it relates to the apportionment of the compensation amount for the tank might be left in tact. Although the tenant might not have derived any profit directly from the tank it cannot be denied that the tank is as much part of the holding as the other properties included in Exts. B1 and B4. The translations of Exts. Bl and B4 given in the printed papers are not quite correct. There are five items of properties in the schedule in Exts. Bl and B4. Items 4 is the tank and its bunds. B1 and B4. The translations of Exts. Bl and B4 given in the printed papers are not quite correct. There are five items of properties in the schedule in Exts. Bl and B4. Items 4 is the tank and its bunds. It might appear from the translations in the printed papers that only the paddy land portion in the five items of properties described in the schedule has been granted on kanom to the tenant. But from the Malayalam originals of the documents it can be clearly seen that what was granted on kanom was the whole of the five items of properties which were 60 paras of paddy land and other items. It is also not quite correct to say that the tenant was not deriving any profit from the tank. It may be that there was no direct yield from the tank. But both sides admit that the water in this tank was being used by the tenant for cultivating the paddy lands included in the kanom holding and that before the Malampuzha project and the connected works lie had no other source of water supply for the cultivation of the holding. It must have been on account of this fact that the tank was expressly included in Exts. B1 and B4 and given as part of the kanom holding to the tenant. The tank was therefore highly necessary for the beneficial enjoyment of the other parts of the kanom holding, and in this view, the yield derived from the other parts of the kanom holding was the result of the contribution from the waters of the tank also. As the tank was expressly made a part of the kanom holding by Exts. B1 and B4 and as it was also highly necessary for the beneficial enjoyment of the remaining parts of the kanom holding, the kanomdar was as much entitled to it and the compensation awarded for it as to the other parts of the kanom holding and the compensation awarded for the same. Although it was the jenmi who dug the tank and built the retaining walls he gave them over to the tenant by the kanom deed, just as he gave by that deed the other lands comprised in them with the trees and other improvements in them existing at the time of the demise. Although it was the jenmi who dug the tank and built the retaining walls he gave them over to the tenant by the kanom deed, just as he gave by that deed the other lands comprised in them with the trees and other improvements in them existing at the time of the demise. No differentiation can, therefore, be made between the tank and the other parts of the kanom holding acquired in this case. We hold that the compensation amount in respect of the tank has to be apportioned between the jenmi and the tenant in the same ratio or proportion as the compensation amount in respect of the other lands comprised in the kanom holding. 7. Both sides admit that, after the amendment of the Malabar Tenancy Act by the Malabar Tenancy (Amendment) Act, XXXIII of 1951, the relevant portions of which came into force before the notification for the acquisition in this case, the tenant, whether he is a kanomdar or verumpattamdar, has a valuable interest in the property. Even before the enactment of the Malabar Tenancy Act the kanomdar had a valuable interest in the property inasmuch as his occupancy right was one created for a money consideration and he was entitled to hold the property for the period mentioned in the kanom document or the customary period of twelve years, and the jenmi could not evict him without repaying the money consideration received from him, i. e., the kanartham. By the Amendment Act or 1951, save in two very exceptional cases, which do not arise for consideration now, fixity of tenure has been conferred on all classes of tenants, whether kanomdars, or verumpattamdars, or kuzhikanomdars, etc. The kanomdar has now no liability to take a renewal of the kanom on the expiry of the period of the original amount or pay renewal fees. No tenant, whether kanomdar or verumpattamdar, is also now liable to be evicted even for default of payment of the rent. The only remedy open to the jenmi in case of default of payment of the rent is to sue for the arrears claiming a charge for the same on the kanom holding or the leasehold. The other rights which the jenmi can claim after the Amendment Act of 1951 are those indicated in sections 25 and 56 of the Amended Act which read as follows: "25. The other rights which the jenmi can claim after the Amendment Act of 1951 are those indicated in sections 25 and 56 of the Amended Act which read as follows: "25. No suit for eviction of a customary verumpattamdar, kanomdar, kanom-kuzhi-kanomdar or kuzhi-kanomdar shall lie at the instance of his landlord except on the following grounds:- (1) That the tenant has wilfully denied the title of the landlord before the date of such suit. Explanation: A denial of the landlord's title under a bona fide mistake of fact is not wilful within the meaning of this clause; (2) that the tenant has intentionally and wilfully committed such acts of waste as are calculated to impair materially and permanently the value or utility of the holding for agricultural purposes; (3) that the tenant has conclusively allowed a stranger to encroach on the holding or part thereof adversely to the interests of the landlord ; (4) that the period of the verumpattam, kanom, kanom-kuzhikanom or kuzhikanom, as the case may be, has expired 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 tarwad, tavazhi, illom, kutumba, kavaru or family who has a proprietary and beneficial interest in the holding; Explanation : In considering requirements for maintenance, regard shall be had only to primary needs. (5) that the period of the verumpattam, kanom, kanom-kuzhikanom, or kuzhikanom, as the case may be, has expired and the landlord needs the holding or part thereof for the purpose of constructing a building bona fide for his own residence or for that of any member of his tarwad, tavazhi, illom, kutumba, kavaru, or family who has a proprietary and beneficial interest in the holding; (6) that the period of the verumpattam, kanom, kanom-kuzhikanom or kuzhikanom, as the case may be, has expired and the landlord being the trustee of a temple, mosque, church or other place of public religious worship and holding the land in trust for the purposes thereof, needs the holding for the extension of the temple, mosque, church or other place and the Collector certifies that the holding is so needed; Provided that, in cases falling under clause (3), Clause (5) or Clause (6), where only a part of the holding has been encroached upon or is needed, as the case may be, the eviction shall be from such part of the holding only: Provided further that- (1) no tenant shall be evicted on the ground specified in clause (4) or clause (5) by any sthani or by the trustee of any temple, mosque, church or other place of public religious worship or of any other public religious or charitable institution or endowment; (ii) nothing contained in clauses (4) to (6) shall apply to the holding or that portion of the holding which consists of a kudiyiruppu, a protected ulkudi or a kudikidappu; (iii) no person whose right to evict arises under an instrument or transfer inter vivas shall be entitled to sue for eviction on the ground specified in clause (4) or clause (5) until the expiry of two years from the date of the instrument: Provided also that no suit for eviction on the ground specified in clause (4) or clause (5) shall be instituted except (a) in cases where the period of the lease has expired before the commencement of the Malabar Tenancy (Amendment) Act, 1951, within one year from the date of such commencement and in every twelfth year thereafter; and (b) in other cases, within one year from the expiry of the period of the lease and in every twelfth year thereafter. Explanation : In the case of a landlord governed by a law other than the Marumakkathayam law or the Aliyasantana law, the wife or husband and the father, mother and children of the landlord shall be deemed to be members of the landlord's family having a proprietary and beneficial interest in the holding". "56. Nothing in this Act shall affect the right of a jenmi in any of his holdings:- (1) To make irrigation channels, footpaths, roads, and ways into adjacent and other holdings, (2) to work laterite and other quarries, and (3) to cut and remove the trees or enjoy the usufruct of trees and pepper vines belonging to him: Provided that the tenant shall be entitled to a proportionate reduction of michavaram or rent if by the exercise of such right his profits are decreased." Eviction of the tenant and resumption of the holding by the jenmi is not possible after the Amendment Act of 1951 except under the six contingencies mentioned in clauses (1) to (6) of section 25 extracted above. Of these six, three, namely, those mentioned in clauses (1) to (3) can arise only on the kanomdar's misconduct by wilfully denying the landlord's title, intentionally and wilfully committing acts of waste, and collusively allowing trespass. The contingencies mentioned in clauses (4) to (6) cannot happen in this case, for the jenmi is a devaswom or temple belonging to a sthani and, under the proviso to section 25, such a jenmi cannot claim the benefit of clauses (4) and (5), and the devaswom in question not being situated in any plot adjacent to Ext. B4 holding, no part of that holding is likely to be required under clause (6) for the extension of the temple. Having regard to all these circumstances, it appears to us that, for all practical purposes, a kanomdar or other tenant under a sthani or the trustee of a temple, mosque or church or other place of a public religious worship or charitable endowment has to be treated as a coowner of the property with the jenmi. 8. Having regard to all these circumstances, it appears to us that, for all practical purposes, a kanomdar or other tenant under a sthani or the trustee of a temple, mosque or church or other place of a public religious worship or charitable endowment has to be treated as a coowner of the property with the jenmi. 8. As the compensation amount awarded for the acquisition represents the price or market value of the property acquired, when there are more than one person entitled to the property, or having rights in it, the most equitable course would be to apportion the compensation amount among those persons according to the market value of the interest which each person has in it; and the ascertainment of the market value of the interests of each person would usually be a matter of evidence. But, there is no evidence in this case of the price paid for private alienations of the rights of the jenmi and kanomdar of similar properties; and, on account of the situation brought about by the numerous amendments to the Malabar tenancy Act of 1929 in recent years and the stay of suits and other proceedings enjoined by the several amending Acts, private alienations of such rights have become so few and rare and, when made, are made in such circumstances that the prices paid for those alienations cannot be accepted as a safe indication of the market value of the interests of the landlord and the tenant. The lower court has apportioned the compensation amount in respect of the land (as distinguished from the compensation for the tank) between the jenmi and the tenant in the proportion of one-third to the jenmi and two-third to the tenant, on the strength of the decision in Natesa Aiyer v Khaja Maruf Sahib (AIR 1927 Mad. 489). The reason for adopting this proportion in apportioning the amount has been stated as follows at pages 489 and 490 of the report in 1927 Mad. 489: "Now it is contended that all the interest that the landlord has reserved to himself at the time of the acquisition of this land is the right to receive Rs. 4 from the tenants and that he has only a right to be compensated for that sum of money; in other words, if we give him a capitalised sum which would bring him Rs. 4. 4 from the tenants and that he has only a right to be compensated for that sum of money; in other words, if we give him a capitalised sum which would bring him Rs. 4. at a reasonable rate of interest say 5 per cent that will be the only compensation that he is entitled to. This argument overlooks the fact that the landlord does not part with all his interest in the land by this sale. He has only sold the kudivaram interest. The melvaram interest is with him. It is difficult to say exactly what these two interests are. Kudivaram interest, one understands, is the interest the man in occupation of the land gets in the land for cultivating the land or utilizing the land for any purpose for which it has been given. He gets possession of the land and he has also the user of the land. The melvaramdar has the rest of the interest in the land in himself. It is not merely a right to receive rent; he has got several other rights. For example, he could recover the land itself from the tenant; if the tenant denies his title there might be a forfeiture of the permanent tenancy. In that case the landlord would get back the land. There are other rights which the melvaramdar has in the land. To value the melvaramdar's interest merely at 20 years' purchase of the rent that is reserved in his favour would, it seems to me, to be quite unfair so far as he is concerned. It is not an easy thing in any case to apportion the value of land between two persons who have got somewhat indefinite rights in the land, such as the melvaramdar and the kudivaramdar. The Subordinate Judge has divided the compensation as between the landlord and the tenant at 1/3 and 2/3rds. I am not satisfied that it is really erroneous. The suggestion made by the learned Vakil for the appellant seems to me, on the fact of it, inequitable. When the land was leased out under Ext. A it was apparently a waste land fit only for pasturage of cattle and consequently valued at a very low figure. Now that the Railway Company has come forward and acquired the land the compensation has been given for it apparently on the footing of a building site. When the land was leased out under Ext. A it was apparently a waste land fit only for pasturage of cattle and consequently valued at a very low figure. Now that the Railway Company has come forward and acquired the land the compensation has been given for it apparently on the footing of a building site. This enhanced value is not due to the exertion either of the landlord or the tenant, it is a sort windfall which has come to both the parties. There is no reason why one alone should have the whole of it and not the other. If we give the landlord only Rs. 80 we will be ignoring altogether the general rights as melvaramdar which is in him. It seems to me therefore that this is not a fit case for interference in appeal". 9. The incidents of the lease in AIR 1927 Mad. 489 and the incidents of the kanom in the present case, which have been referred to in paragraph 7 above, are entirely different. Further, the land in the present case was not a waste land but good arable land which was under cultivation at the time of the original kanom itself, and there was no difference between its condition at the time of the grant and its condition at the time of the acquisition. It was expressly stated in Ext. Bl, executed in 1894, that the verumpattam of the entire kanom holding, i. e., rent which the kanomdar could get by leasing out the property on a simple lease, was 540 paras of paddy per year. In Ext. B4 also, executed in 1940, it was stated that the verumpattam of the property at that time would be 540 paras of paddy per year. The compensation amount in the present case does not therefore represent any windfall but is really the price of the property, i. e., the value of the full rights in the property inclusive of both the interests of the kanomdar and the interests of the jenmi. So far as the incidents of the tenure are concerned, the most important difference between AIR 1927 Mad. So far as the incidents of the tenure are concerned, the most important difference between AIR 1927 Mad. 489 and the present case is that, whereas the tenure in the former case was a redeemable one (see paragraph 2 of the passage extracted above), the tenure in the present case is irredeemable, a difference which makes the tenant's interest in the present case far more valuable than in AIR 1927 Mad. 489. The lower court has failed to take note of these points of difference. Having regard to them, we do not consider that the mode of apportionment adopted in AIR 1927 Mad. 489, which is based on no principle at all but made almost arbitrarily or at best on a rough and ready basis, can be followed in the present case. 10. Various other cases were also brought to our notice by counsels appearing for the two sides, in which other modes of apportionment have been accepted by courts. The case most strongly relied upon by the appellant's counsel was Dinendra Narain Roy v. Tituram Mukerjee, ILR 30 Cal. 801, in which it was held that in apportionment of compensation between the landlord and the tenant the court ought to proceed on the principle of ascertaining what the value of the interest of the landlord is on the one hand and that of the tenant on the other and to divide the sum between them in accordance with these values and that where rent is fixed in perpetuity the landlord is not entitled to more than the capitalised value of its rent. Since, under the law as it stood at the time of the notification in this case, the jenmi had no right to claim an enhancement of the rent in respect of the kanom holding, it was contended on behalf of the appellant that the mode of apportionment adopted in Dinendra Narain Roy v Tituram Mukerjee (ILR 30 Cal. 801), in which also the landlord had no right to claim any enhancement of the rent as it was fixed in perpetuity, is best suited for the present case. But, it would appear from the report in that case that, except the right to get this rent perpetually fixed, the landlord had practically no further right in the property. That is not the case so far as tenures under the Malabar Tenancy Act are concerned. But, it would appear from the report in that case that, except the right to get this rent perpetually fixed, the landlord had practically no further right in the property. That is not the case so far as tenures under the Malabar Tenancy Act are concerned. Reference has already been made in paragraph 7 above to the rights which the landlord has under sections 25 and 56 of the Malabar Tenancy Act. Some of those rights, such as those which all classes of jenmies or landlords have under clauses (1) and (2) of section 56 and those which jenmies other than sthanies and trustees of institutions like temples, mosques, churches, etc., have under clauses (4) and (5) of section 25 are very important and valuable. Under clauses (1) to (3) of section 25 all classes of landlords have also the right to enforce forfeiture in case of certain acts of misconduct on the part of the tenant. Even in the case in which the landlord is a trustee of institutions like temples, mosques, churches, etc. he has a right to resume the holding if it is required for the actual extension of the temple, mosque or church as the case may be. In view of the provisions of sections 25 and 56 it is not just or equitable to value the jenmi's interest in the property by merely capitalising the annual rent he is entitled to get. 11. Two other decisions of the Calcutta High Court, brought to our notice, were Manmohan Dutt v Collector of Chitagong (ILR 40 Cal. 64) and Collector of Dacca v Gholam Kuddus Choudhury (AIR 1936 Cal. 688). In the former case the Government was the landlord, and the tenure allowed a right to the landlord to claim an enhancement of the rent at the end of fifteen years. It was held therein that in assessing the amount of compensation due to the landlord regard must be had to the question of how much he is actually realising from the land and that account must also be taken of the fact that by the acquisition he was losing a chance of enhancing rent after the determination of the period of fifteen years. In the Collector of Dacca v. Gholam Kuddus Choudhury (AIR 1936 Cal. In the Collector of Dacca v. Gholam Kuddus Choudhury (AIR 1936 Cal. 688) in which also the principle that the apportionment as between the landlord and tenant has to be made on the basis of, or with reference to, their interests of different degrees was accepted, two-fifth of the compensation amount was awarded to the landlord and three-fifth to the tenant as there was evidence in that case of private alienations of tenant's rights in respect of similar holdings, showing that the tenants were getting generally three-fifth of the value of the entire property. It was observed in that case: "The position however must be recognised, as was pointed out by their Lordships of the Judicial Committee of the Privy Council in the case mentioned above (ILR 26 Bom. 1), that in all valuation, judicial or otherwise, there must be room for inference and inclinations of opinion which being more or less conjectural, are difficult to reduce to exact reasoning or to explain to others; there is more than ordinary room for guess work; and it would be very unfair to require an exact exposition of reasons for the conclusions arrived at............" The difficulty experienced on account of which the above observation was made in AIR 1936 Cal. 688 was felt in Balakidas Hardas v. Chota Paikan (AIR 1942 Nag. 84) also and has caused the learned Judge who decided that case to say: "As I have said it is difficult to deduce any principle from these cases except the one that the first thing to do is to find out the market value of the land and then apportion that between the landlord and the tenant according to their several interests in the land. What those interests are can only be ascertained by the evidence in each case, but when, as here, there is next to no evidence it is only possible to follow a rough and ready rule. This rule has differed so widely in the various cases that I am obliged to make one for myself in this case". After saying this, the learned Judge apportioned the compensation amount in that case between the landlord and the tenant in the proportion of 1:3 following the instructions given to the officers of the Revenue Department for apportionment of the compensation amount in the case of holdings held on tenure similar to the tenure of the land acquired therein. After saying this, the learned Judge apportioned the compensation amount in that case between the landlord and the tenant in the proportion of 1:3 following the instructions given to the officers of the Revenue Department for apportionment of the compensation amount in the case of holdings held on tenure similar to the tenure of the land acquired therein. The general rule that the compensation amount should be apportioned between the landlord and the tenant according to the value of the interest which each has in the land has been recognised by the Allahabad High Court also in Rohan Lal v The Collector of Etah (ILR 51 All. 765) and Shiani Lal v Collector of Agro (ILR 55 All. 897), but the actual apportionment made in both these cases was ten for the landlord and six for the tenant. Thus, although there is unanimity of opinion as regards the general rule that the compensation amount should be apportioned between the landlord and the tenant according to the value of their different interests in the property acquired, in the application of this general rule to concrete facts considerable difficulties have been experienced and different courts have accepted different proportions for dividing the amount between the landlord and the tenant due partly to the difference in tenures in the several provinces and in the several instances, partly to the difficulty of valuing indefinite rights, and partly also to the personal equations of the Judges concerned, so aptly expressed in the passages quoted above from AIR 1936 Cal. 688 and AIR 1942 Nag. 84. 12. Regarding kanapattams themselves, reference was made at the Bar to four cases, one decided by the former High Court of Travancore - Cochin, another by the former High Court of Cochin, and two by the former High Court of Travancore. Under the provisions of the Verumpattamdars Act compensation amount has to be apportioned between verumpattamdars and landlords in the proportion of 1: 7, l/8th to the verumpattamdar and 7/8th to the landlord. Under the provisions of the Verumpattamdars Act compensation amount has to be apportioned between verumpattamdars and landlords in the proportion of 1: 7, l/8th to the verumpattamdar and 7/8th to the landlord. The question which arose for decision in the Travancore - Cochin case, namely, Neela-cantan Nambudiri v Kurian (1956 K. L. T. 859), was, when the jenmi had demised the land on kanom and the kanomdar had granted a verumpattam, whether it was from the share of the jenmi or from the share of the kanomdar in the compensation amount that the l/8th of the compensation amount due to the verumpattamdar under the Verumpattamdars Act should be paid. The court held in that case that the amount due to the verumpattamdar, namely, l/8th of the compensation amount, should be deducted equally from the shares of the kanomdar and the jenmi. Except as regards the question who was to bear the liability in respect of the amount due to the Verumpattamdar or how that liability was to be shared by the jenmi and the kanomdar there was no dispute in that case regarding the proportion in which the compensation amount was to be divided between the jenmi and the kanomdar, and the question of the apportionment of the compensation amount as between the jenmi and the kanomdar was not considered and decided in that case. But, in the judgment in that case, the learned Chief Justice had observed: "12 Cochin Law Reports 237 (F. B.) evolve an equitable rule that when land outstanding on an irredeemable kanom is acquired by the State the land value should be shared equally by the landlord and the kanomdar". This observation is relied upon by the respondent's counsel in support of a contention that 50 : 50 would be an equitable apportionment between the landlord and the tenant. But, it is not quite correct to say that the rule of apportionment evolved in 12 Cochin Law Reports 237 is that the land value should be shared equally by the landlord and the tenant. But, it is not quite correct to say that the rule of apportionment evolved in 12 Cochin Law Reports 237 is that the land value should be shared equally by the landlord and the tenant. What was actually decided in that case was that, from out of the compensation amount for the land and the improvements in it the kanom amount and the tenant's share of the value of improvements should first be paid to the tenant, then an amount representing the rent reserved to the jenmi and the renewal fees payable to him should be paid to the jenmi, and if any balance was left after making these payments such balance should be divided equally between the jenmi and the tenant. In paragraph 3 of his judgment in 12 Cochin Law Reports 237 Narayana Menon, J., says: "Now, we will try to apply as far as possible what we have been observing above, to the work of apportionment. In so doing we will first take up the matters that were referred to above as definite. We have therefore first to allow the tenant out of the total compensation for land and improvements, the kanom amount and the tenant's share of the value of improvements. Out of the balance the jenmi will have a claim for an amount that will represent the amount of rent reserved and the renewal fees obtainable. If such amount will be equal to or more than such balance, the jenmi will get the whole of the balance and there will be an end of the apportionment. But, if over and above such amount a balance is still left, as would be seen to be the case in the present instance, the difficulty would be to apportion such further balance, in view of the indefim-teness of the quantum of the remaining respective interests of the two. But as we have found that such interests are both substantial and as there is no practicable means of striking a proportion between the two, we think that the safest and the most equitable method of apportioning would be allowing each half of the further balance, on the assumption that where it is impossible to say that the share of the one is more or less than that of the other, it will be least subject to error to hold that the shares are equal. We do not pretend that in this equal apportionment there may not be an element of arbitrariness; but, our only justification is that either upon authorities or upon any definite computation based upon reason can we arrive at any other fraction". (underlining ours) Narayana Iyer, C. J., and Varghese, J., who were the other members of the Full Bench which decided that case have only agreed to Narayana Menon, J.'s judgment. In paragraph 1 of his judgment Narayana Iyer, C. J., said : "In agreeing with the judgment of my colleague Narayana Menon, J., I wish to make a few remarks with reference to the decision in 8 Cochin Law Reports 239 to which I was a party"., and again in paragraph 3 of his judgment he said: "I agree to the order of Narayana Menon, J.". Varghese, J., had only said "I also agree". The decision in 1956 KLT 859 that the liability in respect of the amount payable to the verumpattam-dar should be shared equally by the jenmi and the kanomdar is based on the equitable principle accepted in 12 Cochin Law Reports 237 that the balance of the compensation amount after paying the amounts due to the jenmi and the kanomdar on account of their different interests should be divided equally between them. Neither of these decisions has accepted the rule that the entire compensation amount should be divided equally between the jenmi and the kanomdar. Further, the incidents of the kanom tenure as the law stood in the Cochin State at the time of 12 Cochin Law Reports 237 were far different from the incidents of the kanom tenure under the Malabar Tenancy Act. The incidents of the Kanom tenure under the Malabar Tenancy Act have already been referred to in paragraph 7 above. The incidents of the tenure in 12 Cochin Law Reports 237 can be seen from the following observations in paragraph 2 of the judgment of Narayana Menon, J: "In confining ourselves to a consideration of the respective interests of the landlord and the tenant, involved in a tenure of the present description, we have to note the following:-- The landlord is entitled to the michavaram reserved, under ordinary circumstances for all time to come. But, he has the right of enhancing it under certain specified circumstances, (S.30 of Regulation II of 1090) and at the same time, the tenant is also entitled to an abatement of the rent, under other specified circumstances (section 31). The landlord is also entitled to renewal fees at certain specified rates at every 12th year, (sections 22 and 26). On the other hand, under ordinary circumstances the period of the tenant's holding might be indefinite and provided he is prepared to meet his liabilities under the Regulation, it may even be perpetual, as he is entitled to repeated renewals, under certain conditions, (section 22). But, such indefinite period is made terminable under certain conditions in which the landlord will be entitled to redeem the property, (section 23). He will be entitled to such redemption even under circumstances which involved no default on the part of the tenant, (sections 23(1), (a) and (b)). This restricted privilege of the landlord so redeem is, however, subjected to certain limitations. Again, while the tenant has the right of alienation of his interest;, certain conditions are imposed upon such right, (section 23(1)(i)) and while in connection with occupancy right the landlord has the right of reversion under certain circumstances, according to certain systems such as the Bengal Tenancy Act and Madras Land Estates Act, no such right is recognised by our Tenancy Regulation. Thus, it will be seen that while the plenary rights of the landlord in the land are theoretically recognised, there is the broad tendency to give the tenant an occupancy right as far as possible. Bur, these rights of the one and the other are again placed under certain checks and counter checks. It is thus exceedingly difficult, practically almost impossible, to definitely denote the quantum of the rights of the landlordaod the tenant; and even if it is possible to do so, even with rough approximation, it is still more so to represent it in money value. But certain things are however quite clear. The tenant has come to substantial interest in the land, over and above his right to the kanom amount and the value of have a his improvements and this has been recognised both in 6 CLR 261 and 8 CLR 239-The landlord has the right to pet the reserved rent, the periodical renewal fees due and his share of the value of improvements. Over and above this, what are called his chance rights such as to increase the rent, enhance the kanom amount and to redeem the property cannot, in our opinion, be regarded as merely illusory or negligible, as has been done in some of the British Indian decisions with reference to certain permanent tenures." Having regard to these facts and circumstances, we do not consider that in the cases of kanoms governed by the provisions of the Malabar Tenancy Act, it would be equitable to apportion the compensation amount on a 50 : 50 basis or on the basis of the decision in 12 Cochin Law Reports 237. 13. The two cases decided by the former High Court of Travancore, referred to at the Bar, are Govindaru Naraycnaru v Kumaran Neelakantaru (37 TLR 292) which was a Full Bench case, and Neeli Antharjanam v. Diwan of Travancore (22 TLJ 402). 13. The two cases decided by the former High Court of Travancore, referred to at the Bar, are Govindaru Naraycnaru v Kumaran Neelakantaru (37 TLR 292) which was a Full Bench case, and Neeli Antharjanam v. Diwan of Travancore (22 TLJ 402). The rule of apportionment accepted in 37 TLR 292 is stated in paragraph 21 of the judgment in that case which reads as follows: "Our conclusion, therefore, is that, where land comprised in a kanom holding is compulsory acquired or purchased by the Sirkar, the purchase money or compensation money awarded on account of ground value, value of trees of spontaneous growth and value of trie items of improvements specified as (c) and (d) in Explanation I annexed to clause (14), section 3 of the Jenmi and Kudiyan Regulation (but excluding the value of the other items of improvemerJt specified in the same Explanation, which are claimable by the Kudiyan exclusively), shall be so divided between the Jenmi and the Kudiyan, that the Jenmi's share thereof shall bear to the Kudiyan's share the same proportion as would be borne by the annual Jenmikkaram chargeable on the land to the average net annual profits derivable from the land by the Kudiyan, such Jenmikkaram being ascertained by the commutation of annual and periodical dues and fees into fixed annual payments and by the addition to the aggregate so arrived at of an amount equal to one-tenth of such aggregate, and the Kudiyan's average net annual profits being ascertained by deducting from his average gross profits costs of seed and labour, expenses of cultivation and upkeep of property, Jenmikkaram, Sirkar tax and other public cesses chargeable on land, etc." The improvements mentioned in clauses (c) and (d) of section 3(14) of the Jenmi and Kudiyan Act of 1071 as it stood before the amendment of 1108, and the value of which has to be divided between the Jenmi and the Kanomdar (kudiyan) as per the dictum in the above case are the plainting of trees and the reclaiming, enclosing, levelling and terracing of land for agricultural purposes and other works. The other improvements, the value of which has to be excluded from the division and given exclusively to the kanomdar are the constructions and renewals of dwelling houses, wells, permanent walls, and works of similar nature. The other improvements, the value of which has to be excluded from the division and given exclusively to the kanomdar are the constructions and renewals of dwelling houses, wells, permanent walls, and works of similar nature. The principle of this decision was accepted and followed in Neeli Antharjanam v Diwan of Travancore (22 TLJ 402). 14. Although, as the law stood in Travancore at the time of 37 TLR 292, the kanomdar was liable to take a renewal and also pay renewal fees to the jenmi on the termination of the period of the original or renewed grant, as the case may be, and under the amended Malabar tenancy Act the kanomdar had no such liability, a similar mode of apportionment appears to us to be best suited for application to cases of tenancies under the Malabar Tenancy Act also on principles of justice, equity and good conscience. As the compensation amount represents the full value of the land and all the improvements in it, effected both before and after the creation of the tenancy and the practical result of the Malabar Tenancy Act and its several amendments is that the jenmi and tenant have become coowners of the land and all the improvements, except such improvements and trees as belong exclusively to either of them on account of any contract or because of section 56(3), and their rights and liabilities being those indicated in paragraph 7 above, it is only just and equitable that the compensation amount in respect of the land and all improvements other than those belonging exclusively to either party should be divided between them in the proportion of what they were actually deriving from the property. The division of the compensation amount in" the proportion of what each of them was actually deriving from the property would, enable the jenmi to get something more than the mere capitalised (on the basis of 4 or 5 per cent return) value of what he was getting annually from the property; and that difference would, in our opinion, be a proper and adequate compensation to him for the rights which he has under sections 25 and 56(1) of the Malabar Tenancy Act. If the tenant had constructed any building, made any well or tank or put up permanent protective works, such as bunds, culverts, etc., he alone would be entitled to the value of such improvements ; and if there were any trees or other improvements reserved under the contract of tenancy to the jenmi exclusively or any trees or plants in respect of which he had the rights mentioned in section 56(3), or any quarries which he was working under section 56(2) and for which compensation has been awarded not merely on the basis of land value, the value of such trees, plants, improvements, and quarries should be given to the jenmi. Subject to these special rights the entire compensation amount should be divided between the jenmi and the tenant in the proportion of what they were deriving from the property. So far as the jenmi is concerned what he is ordinarily entitled to get under the Malabar tenancy Act is only the rent payable in respect of the holding, and what, the kudiyan (Tenant) gets from the property is the gross income thereof minus the expenses of cultivation, government Mst, and rent payable to the jenmi. 15. So far as the jenmi is concerned what he is ordinarily entitled to get under the Malabar tenancy Act is only the rent payable in respect of the holding, and what, the kudiyan (Tenant) gets from the property is the gross income thereof minus the expenses of cultivation, government Mst, and rent payable to the jenmi. 15. On the question of apportionment, our conclusion, therefore, is that, incases of tenancies governed by the Malabar Tenancy Act, where there is no satisfactory evidence as regards the market value of the interests of the tenant and the landlord, the compensation amount should be apportioned on the following basis, namely: (1) If the tenant has constructed , any building, made any well or tank,, or put up permanent protective works, such as bunds, culverts, etc., he alone will be entitled to the value of such improvements ; (2) If there are any trees or other improvements reserved under the contract of tenancy to the jenmi exclusively or any trees or plants in respect of which he has the rights mentioned in section 56(3) of the Malabar Tenancy Act the value of such trees, plants and improvements should be given to the jenmi; (3) If the jenmi was working any quarries by virtue of the right under S.56(2) of the Malabar Tenancy Act and if separate compensation has been awarded for the same not merely on the basis of land value, the amount awarded in respect of them should also be given to the jenmi; (4) Subject to the above special rights the entire compensation amount including any amount awarded in respect of trees and plants planted by the kanamdar after the kanom demise should be divided between the jenmi and the tenant in the proportion of what they were deriving from the entire kanom holding of which the acquired property formed a part -- the annual rent which the jenmi was entitled to get under the provisions of the Malabar Tenancy Act at the time of the acquisition being treated as what the jenmi was deriving from the property; and the gross income of the property less the expenses of cultivation cost of maintenance of the property, government kist, and the dues payable to the jenmi being treated as what the kanomdar was getting from the property ; (5) If there was any tank in the property which was dug before the kanom was granted and which was included in the kanom and given to the kanomdar along with the rest of the kanom holding such tank also should be treated as part of the kanom holding, and the compensation amount awarded in respect of it should be apportioned between the jenmi and the kanomdar in the same proportion as the compensation amount awarded for the rest of the kanom holding; and (6) The right to the solatium follows the right to the compensation amount, and the share of the solatium which the jenmi and the kanomdar are each entitled to get should be proportionate to the share he gets out of the entire compensation amount, i.e, each of them is entitled to get as solatium 15 per cent of the compensation he is found entitled to, 16. To apply the above rule to the present case, there is no building or other improvement in the property acquired for which the tenant alone is entitled to get value of improvements. Nor is there any quarry or tree reserved for the landlord's use or which he is entitled to cut down under section 56(3). Therefore, no special payment has to be made in this case either to the jenmi or to the tenant. From Exts. Bl and B4 it is seen that the Verumpattom of the property is 540 paras of paddy per year. As there is no other evidence, for practical purposes, the Verumpattom fixed in Ext. B4 may be taken as what the tenant would pet from the property after meeting the cultivation expenses and costs of maintenance. Ext. B4 shows that the annual kist payable to Government is Rs. 34-1-0 and that the annual rent payable to the jenmi is 60 paras of paddy, 3 1/2 nazhies of gingely oil, 50 palmyra leaves and a further sum of Rs. 4-4-7. The commutation price of paddy is given in Ext. B4 as 8 annas per para, 3 1/2 nazhies of gingely oil as 10 annas, and 50 palmyra leaves as 12 annas. The landlord was, therefore, deriving Rs. 35-10-7 per year from the property made up of Rs. 30/-on account of 60 paras of paddy, 10 annas on account of 3 1/2 nazhies of gingely oil, 12 annas on account of 50 palmyra leaves and Rs. 4-4-7 on account of cash payment; and the tenant was deriving Rs. 200-4-5, being Rs. 270/- (the commutation price of 540 paras of paddy as per the provisions of Ext. B4) less Rs. 35-10-7 payable to the jenmi and Rs. 34-1-0 payable to the Government on account of kist. The compensation amount has, therefore, to be divided between the jenmi and the tenant in this proportion, namely, 6847 (to the jenmi): 38453 (to the tenant). 17. In the result, the decree of the lower court is set aside and total compensation amount including the solatium is directed to be divided between the jenmi and tenant in the above proportion , i.e., 6,847 (to the jenmi) : 38,453 (to the tenant). The appeal is allowed as above. Parties will bear their costs.