Judgment :- 1. Defendants 2, 5 and 6 in O.S. 159 of 1122 on the file of the District Court of Anjikaimal has filed this appeal against the preliminary decree passed in the suit. The suit was for recovery of the plaint schedule property with arrears of rent. Plaint items 1 and 2 belong to the mother of the plaintiffs. They were outstanding on lease in the family of the defendants from 1082 onwards. On 1-1-1096 defendants 1 and 2 took them on lease. Item No. 3 called x'21'07) cMZ3 was sold in revenue auction by the Government and was purchased by the 1st defendant. He sold his rights in the property to the plaintiffs' mother under a registered document Ext. N in 1098. Defendants 1 and 2 then executed a fresh lease deed Ext. A and in the schedule of properties to the lease deed besides items Nos.1 and 2, item No. 3 was also included. The plaintiffs' case is that even though all the three items are shown in the schedule only item Nos.1 and 2 were actually leased and that item No. 3 was entrusted to the defendants as the plaintiffs' agents or care-takers. 2. The first defendant died and defendants 3 to 6 are his legal representatives. The defendants contended that item No. 3 is also being enjoyed by them as lessees, that it had been reclaimed and planted with valuable kuzhikoors and that the plaintiffs or their mother have not spent any money for the purpose. They set up an agreement whereby the arrears of pattom till 1112 was fixed at Rs. 2000?- and for the reduction of future pattom. They claimed to be agriculturists entitled to the benefits under the Agriculturists Relief Act.In 1124, Proclamation No. 6 was passed staying suits for eviction filed by the landlords and so the plaintiffs became disentitled to recover possession of items 1 and 2. So they applied for amendment of the plaint claiming recovery of plaint item No. 3 on the ground that there was no lease in respect of that item and that the Proclamation does not apply. The amendment was not allowed by the trial court, but this court in C.R.P. 536 of 1950 allowed the petition and the plaint was accordingly amended. The amendment was not allowed by the trial court, but this court in C.R.P. 536 of 1950 allowed the petition and the plaint was accordingly amended. The defendants thereupon filed further written statement contending that the case set up by the plaintiffs regarding item No. 3 is not true and that item No. 3 is also held on lease under the lease deed Ext. A. 3. The learned District Judge found that there was no lease in respect of item No. 3, that the defendants were only care-takers or agents of the plaintiffs in respect of that item and hence were entitled to recover possession of the item and that the defendants are liable to render accounts of the management. The plea of settlement of arrears of rent at Rs. 2000/- and reduction of future rent was found against. It was also found that the defendants are not entitled to the benefits under the Agriculturists Relief Act. A preliminary decree was therefore passed for the taking of accounts. 4. The learned counsel for the appellants raised three main contentions: Firstly that in respect of item No. 3 in the plaint schedule the defendants are lessees and not care-takers and they are not liable to be evicted; Secondly that the defendants are agriculturists within the meaning of the Cochin Agriculturists' Relief Act, XVIII of 1114 and the rent is liable to be scaled down under the provisions of the said Act; and Thirdly that the arrears of rent must be deemed to be subsisting and they are entitled to obtain a discharge by depositing one year's pattom under S.34 of the Kerala Agrarian Relations Act, 1961 and that they are entitled to get back the sum of Rs. 27000/- deposited by them in court after deducting one year's rent. 5. We will take up the question whether Ext. A evidences a lease transaction in respect of item No. 3 also of the plaint schedule properties. It is true Ext. A is styled as a pattachit ]m< It had been laid down in Lumber v. Phillips (1904 App. Case 405) and King v. Allen & Sons ( (1916) 2 App. Case 54) that in construing such grants the substance of the transaction must be considered and not merely the nomenclature used by the parties. It is true Ext. A is styled as a pattachit ]m< It had been laid down in Lumber v. Phillips (1904 App. Case 405) and King v. Allen & Sons ( (1916) 2 App. Case 54) that in construing such grants the substance of the transaction must be considered and not merely the nomenclature used by the parties. This principle has been followed in the decision in Paranchu Ouseph v. Pakku Kunjathu (1951 K.L.T. 44), where reference has been made to the rulings in In re Burmah Shell Oil Storage and Distributing Co. Ltd., of India (AIR. 1933 All. 735); Sherif Dodumivaji v. Emperor (1930 Bom. 165); Sabdi Bepari v. Budhi 1925 Cal. 370) and B.N.W. Rly. Co., Ltd. v. Janaki Prasad (1936 Pat. 362) where the same view was taken. 6. So it is necessary to consider carefully the terms of Ext. A to find out the nature of the transaction. It includes within the schedule all the three items. In the earlier portion of the document it is stated On this description the appellants base their argument that the lease is in respect of all the three items. But a reading of the other recitals in the document would show that the can have reference only to items 1 and 2. It is recited that the properties mentioned in the plaint schedule were being enjoyed by Ouseph, the brother of the first defendant and father of the 2nd defendant under a registered lease deed of the year 1091. That document has been produced and marked as Ext. F and it would show that items 1 and 2 alone were held on lease by Ouseph. Item No. 3 was sold in auction by Government and purchased by the first defendant only on 6-5-1097. The first defendant sold his rights in the property to the mother of the plaintiffs only on 8-8-1098. So the reference could not have been to item No. 3. Ext. A proceeds further to state that as per Ext. F, the pattom was only Rs. 1000 and that it has been enhanced to Rs. 1400 and that the defendants are in occupation on such increased rent from 1-1-1096 and that the pattom till 32-12-1097 has been paid. Therefore the reference to 'there can be only to item Nos.1 and 2 and not to item No. 3. F, the pattom was only Rs. 1000 and that it has been enhanced to Rs. 1400 and that the defendants are in occupation on such increased rent from 1-1-1096 and that the pattom till 32-12-1097 has been paid. Therefore the reference to 'there can be only to item Nos.1 and 2 and not to item No. 3. It is with reference to these items that the further stipulation is made These recitals make it clear that the lease is only in respect of items 1 and 2 and the stipulation with regard to the payment of rent is only in respect of these two items. 7. In regard to item No. 3 the only reference is (Plaintiffs' mother) (improvements). There is no mention in any part of Ext. A of any words creating any right, title, interest or possession in respect of item 3. A clear differentiation is made between item Nos.1 and 2 and item No. 3. No possession or right of enjoyment is given to the defendants in respect of item No. 3. On the other hand possession is reserved with the owner, to whom is reserved the right to plant trees and the defendants are only to look after and take care of the improvements so made. No mention is made as to what would happen when the planted trees begin to bear and the natural presumption would be that the landlord continues to be in possession of such trees. If the right of enjoyment of the planted trees were intended to be conferred on the defendants there would have been some provision for the payment of rent for the enjoyment of the trees. It is only for looking after the improvements that the defendants were put in possession and provision is made to surrender possession which would only mean that they should cease to be agents. The provision that the plaintiff is to plant trees and that the defendants have to take care of them invest them with the position of a care-taker or agents of the plaintiff. 8. Ext. A cannot be taken to create a lease within the meaning of S.105 of the Transfer of Property Act or of S.2 sub-clause (50) of Act 4 of 1961. One of the essentials of the lease under S.105 of the Transfer of Property Act is the presence of 'consideration' for the transaction. 8. Ext. A cannot be taken to create a lease within the meaning of S.105 of the Transfer of Property Act or of S.2 sub-clause (50) of Act 4 of 1961. One of the essentials of the lease under S.105 of the Transfer of Property Act is the presence of 'consideration' for the transaction. This consideration must be either premium or rent as defined by the section. In other words, if the consideration for the transfer is not either premium or rent the transaction will not be a lease. Premium is the price paid or promised for the lease, that is for the transfer of the right to 'enjoy' the property. S. 2 (50) of Act 4 of 1961 requires that rent or other consideration must be paid or promised to be paid. That section is more restricted than S.105 of the Transfer of Property Act. Under S.105 of the Transfer of Property Act performance of some service, may be consideration, but under S.2 (50) of Act IV of 1961 the consideration must be paid or promised to be paid. The defendants have not paid or agreed to pay rent or other consideration for item No. 3 and will not come within the term tenant. 9. It is also significant that no right is given to the defendants to enjoy item No. 3. We cannot accede to the contention of the learned counsel for the appellants that the expression would imply that the defendants have been put in possession to 'enjoy the property. The right granted, in the context would only refer to the possession for the purpose of taking care of the trees planted by the lessors. Lease involved the transfer of a right to enjoy immovable property. The word enjoy must be taken to include possession also. There must, therefore, be a transfer of the exclusive right of possession of the leased property in order to constitute a lease. In Chitaley's Transfer of Property Act, 3rd Edition, Vol. 3, Note 5 to S.105 it is stated: "There must be a transfer of the exclusive right of possession of the leased property in order to Constitute a lease. The continuance in the transferor, after the transfer, of any share in the right of possession is detrimental to its character as a lease. The transferor cannot reserve to himself any share in the right of possession." 10. The continuance in the transferor, after the transfer, of any share in the right of possession is detrimental to its character as a lease. The transferor cannot reserve to himself any share in the right of possession." 10. Reference may be made to the decision in Paranchu Ouseph v. Pakku Kunjathu (1951 K.L.T. 44). The head-note reads as follows: "The word" enjoy "is not used as the equivalent of "possess". The connotation of the words "possession" as used in the Act is distinct from ‘enjoyment' and does not necessarily include enjoyment. Under a lease, the usufruct of the property belongs to the lessee. The transfer of a bare right of possession without the right of usufruct is not a lease. Thus the word" enjoy seems to be used in the sense of the beneficial occupation of property. There must be a transfer of the exclusive right of possession of the leased property in order to constitute a lease." It is not disputed in this case that the document, shows that the owner has been invested with the right of planting trees in item No. 3. This clearly indicates that the defendants were not given exclusive possession of the property and therefore it will not come under the category of a lease. 11. In Acting Secretary, Board of Revenue v. The Agent, S. I. R. Trichy, (A.I.R.1925 Mad. 434) it was held that the test whether a document was a lease or not was whether it vested any exclusive interest in immovable property in the transferor or whether it gave him merely, a right to enter on the property and to do something thereon. To the same effect are the decisions in Parameswaran Kartha v. Ouseph (1958 K.L.T. 359). and Aiyappan Sanku v. Raghava Kaimal (1958 K.L.T. 1054), where it was held that if exclusive possession of the property which is a requisite of a lease was not given under the document it may be taken to be indicative that the lease aspect as such was not in the intention of the parties. 12. It must also be noted that the mere fact the defendants are in possession of the property will not make them tenants in the eye of the law, once the case of the plaintiffs of the permissive nature of the occupation is accepted. 12. It must also be noted that the mere fact the defendants are in possession of the property will not make them tenants in the eye of the law, once the case of the plaintiffs of the permissive nature of the occupation is accepted. The observations of the Calcutta High Court in the case in Dinnendro v. Union of India (A.I.R.1952 Cal. 915 at p. 918) is very apposite: "The difference between a tenant and an occupier is well known. There must he contract of tenancy before a person can be a tenant. But if there is no contract and the possession of a person is permissive, then it is a case of an occupier". This decision has been followed in Venkiteswara Vadhyar v. Lekshmi (1957 K.L.T. 1043). It follows that the trial court was right in holding that a lease-hold interest was not created in respect of item No. 3 by Ext. A. 13. The subsequent conduct of the parties after the execution of Ext. A also discloses the actual relationship between them in respect of item 3. The learned counsel for the appellants argued that subsequent conduct is inadmissible for the interpretation of a written contract and referred to some of the cases on the question of admissibility of such evidence. The first case to which reference was made was to Achutharamaraju v. Subbaraju (I.L.R. 25 Mad. 7). In that case on 23rd September 1876, defendant wrote to the plaintiff, inviting plaintiff, to execute a sale-deed of certain land in favour of defendant and promising that if plaintiff did so, defendant would discharge plaintiff's debts out of the income to be derived from the land, and would, after the debts had been discharged, or before, if so requested, restore the land to plaintiff, upon payment by plaintiff of a sum of money that had been advanced to him by defendant. This document was not registered on 29th September 1876 & plaintiff executed a deed of sale of the land in defendant's favour, which was unconditional in its terms, and which was duly registered. This document was not registered on 29th September 1876 & plaintiff executed a deed of sale of the land in defendant's favour, which was unconditional in its terms, and which was duly registered. Plaintiff subsequently brought a redemption suit against defendant on the deed of 29th September and he contended that though that deed was, in its terms, an absolute conveyance, he was entitled to adduce evidence of the subsequent conduct of himself and defendant, to show that the transaction was, in fact, not a sale but a mortgage. Their Lordships Benson and Bhashyam Ayyangar, JJ. held that the evidence was not admissible and stated that the question was really concluded by the decision of the Privy council in Balkishan Das v. Legge (I.L.R. 22 All. 149) where it is stated: "Their Lordships do not think that oral evidence of intention was admissible for the purpose of construing the deeds or ascertaining the intention of the parties. By S.92 of the Indian Evidence Act (Act I of 1872) no evidence of any oral agreement or statement can be admitted as between the parties to any such instrument or their representatives in interest for the purpose of contradicting, varying or adding to, or substracting from, its terms, subject to the exceptions contained in the several provisos. It was conceded that this case could not be brought within any of them. The cases in the English court of Chancery which were referred to by the learned judges in the High Court was not, in the opinion of their Lord-ships, any application to the law of India as laid down in the Acts of the Indian Legislature. The case must therefore be decided on a consideration of the contents of the documents themselves with such extrinsic evidence of surrounding circumstances as may be required to show in what manner the language of the document is related to existing facts". To the same effect are the decisions in Minor George represented by guardian mother Rosa v. Mathai (40 Cochin 1); Chandra Sekhar Pathak v. Mural Gope (A.I.R.1957 Pat. 673); and Ramlochan Singh v. Pradip Singh (A.I.R.1959 Pat 230) referred to by the learned counsel. 14. Those decisions have no application to the facts of this case. To the same effect are the decisions in Minor George represented by guardian mother Rosa v. Mathai (40 Cochin 1); Chandra Sekhar Pathak v. Mural Gope (A.I.R.1957 Pat. 673); and Ramlochan Singh v. Pradip Singh (A.I.R.1959 Pat 230) referred to by the learned counsel. 14. Those decisions have no application to the facts of this case. What was decided there, was only that the express written intention should prevail and that intention cannot be permitted to be contradicted by oral evidence or evidence of conduct. In this case the subsequent conduct shows that the defendants are to utilise various amounts of the plaintiffs coming into their hands including the pattom amount of items 1 and 2 for reclaiming item No. 3 and planting trees thereon keeping an account of the credits and debits and sending to the plaintiffs details of such amounts. This subsequent conduct clearly shows the relationship of principal & agent, defendants being employed by the plaintiffs to do particular acts, expend money on their behalf from out of the sums coming into their hands and from out of the pattom payable by them to the plaintiff. This evidence does not at all contradict, vary, add to or subtract anything in Ext. A. 15. Such evidence of subsequent conduct has always been held to be admissible where there is a doubt as to the true meaning and scope of the words used in an instrument. The expression in Ext. A is not very clear as to the nature of the relationship between the parties in respect of item No. 3, though certainly it does not create a lease or any interest in the property. The evidence of subsequent conduct is only directed to show that the intention of the parties was the creation of a relationship of principal and agent and not of lessor and lessee. It cannot be disputed that if the terms of a document are not clear, evidence is admissible to aid its construction. 16. In this connection we may usefully refer to the dictum of Mahajan, J., in Abdulla Ahmed v. Animendra Kissen Mitter (A.I.R.1950 S.C.15 at p. 21): "Extrinsic evidence to determine the effect of an instrument is permissible where there remains a doubt as to its true meaning. 16. In this connection we may usefully refer to the dictum of Mahajan, J., in Abdulla Ahmed v. Animendra Kissen Mitter (A.I.R.1950 S.C.15 at p. 21): "Extrinsic evidence to determine the effect of an instrument is permissible where there remains a doubt as to its true meaning. Evidence of the acts done under it, is a guide to the intention of the parties in such a case and particularly when acts are done shortly after the date of the instrument" 17. In Umesh Chandra Roy v. Surendra Chandra Dutta (49 I.C. 8) a Division Bench of the Calcutta High Court stated: "Where the intention of the parties to a document cannot be determined from the terms of the document with absolute certainty, the conduct of the parties under the document during a long series of years is a very material element for consideration". Their Lordships in that case have quoted the words of Tindal, C.J., in the case a in Deo D. Pearson v. Ries (131 E.R. 369): "Upon the general and the leading principle in such cases, we are to look to the words of the instrument and to the acts of the parties to ascertain what their intention was; if the words of the instrument be ambiguous, we may call in aid the act done under it as a clue to the intention of the parties". The same learned judge in a later case Chapman v. Bluck (132 E.R. 760) formulated the rule in very explicit terms: "There is no better way of seeing what they intended than seeing what they did, under the instrument in dispute". 18. The Privy Council has also taken the same view. In Ma Thaung v. Ma Than (1924 P. C. 88) Ameer Ali, J. observed: The conduct of the parties to a contract reduced into writing may not vary or alter it, but their conduct may help to explain or elucidate a contract open to different meanings". Therefore where a document is subsequently found or any of its clauses contain a real ambiguity evidence of the conduct of the parties is admissible to construe the document. Where the document which is alleged to create a tenancy is ambiguous the evidence of the mode of tenancy is admissible. Applying these principles to the case before us, the evidence of subsequent conduct of the parties is certainly relevant and can be looked into. 19. Where the document which is alleged to create a tenancy is ambiguous the evidence of the mode of tenancy is admissible. Applying these principles to the case before us, the evidence of subsequent conduct of the parties is certainly relevant and can be looked into. 19. Immediately after Ext. A was executed the defendants started sending statements of accounts to the plaintiffs' mother regarding money expended on item No. 3. Ext. G is the statement of accounts for the period from 1098 to 1104 sent to the plaintiffs. It is a copy of the peredu kept by the defendants in the name of Kottiazhath tarwad. In Ext. G we find various sums of money due to the plaintiffs which had been collected by the defendants being credited, the interest due by the defendants to the plaintiffs in respect of a usufructuary mortgage transaction, the promissory note transaction and a credit of Rs. 1400 at the end of every year, the said sum representing the pattom payable by the defendants to the plaintiff in respect of items 1 and 2 in the schedule. As against these credits we find various items of debits also, such as payment of sirkar tax on behalf of the plaintiff for the suit properties as also expenses incurred by the defendants for reclamation of item 3 and planting trees thereon. This system of accounts kept by the defendants in the name of the plaintiffs is admitted to have been continued, even though the defendants have not produced their accounts for the period from 1104 to 1107. Item No. 3 is admitted to have been fully reclaimed and planted during the period from 1104 to 1107 and it is significant that it is the accounts of that period that have not been produced in spite of summons to produce them. Debit of expenses incurred for item No. 3 in Ext. G and in the subsequent accounts of the defendants from 1107 is inexplicable except on the hypothesis of the defendants doing those acts in item 3 as agents on behalf of the plaintiffs and reimbursing themselves to the extent possible and debiting the balance against the plaintiffs. Dw. 8 the second defendant has clearly admitted that mentioned in the accounts relate to item 3 and that the major item of debit namely Rs. 649-9-6 in Ext. G under date 32-12-104 relates to item 3. 20. Dw. 8 the second defendant has clearly admitted that mentioned in the accounts relate to item 3 and that the major item of debit namely Rs. 649-9-6 in Ext. G under date 32-12-104 relates to item 3. 20. The learned counsel for the respondent also referred to the subsequent accounts of the defendants produced in court, in which also similar entries are found. There is a peredu kept for the plaintiffs and in that peredu we find expenses incurred by the defendants on behalf of the plaintiffs including the expenses relating to item No. 3 debited against the plaintiff. The system of keeping a separate account in the name of the plaintiffs for a long number of years and the debiting of expenses in respect of item No. 3 against the plaintiffs negative the theory of the defendants being lessees of item No. 3. It would be meaningless to debit the expenses for repairs and for effecting improvements in the leased property against the lessor. The defendants have no explanation to offer why they debited the plaintiffs with the amounts which the defendants spent on this item of property. The learned counsel was at his wit's end to explain these entries and stated that these entries do not show anything more than that the defendants rightly or wrongly claimed this amount from the plaintiff's mother. The defendants were the bast persons who ought to have explained as to why they maintained such accounts and why they were sending copies of the statements of accounts to the plaintiffs if really they had taken on lease all the three items of properties. 21. The learned counsel for the appellant had advanced the argument that the plaintiffs have not produced any evidence to show that they have spent any money for the reclamation or planting of trees in item No. 3 and commented on the conduct of the plaintiffs in allowing the defendants to enjoy the income of the property for all these years without claiming any rent of the property and submitted that it would indicate that item 3 would also have been taken on lease. Whatever that may be, as stated in the decision in Narayan Bhagwantrao Gosavi Balajiwala v. Gopal Vinayak Gosavi (A.I.R.1960 S.C.100): "An admission is the best evidence that an opposing party can rely upon, and though not conclusive, is decisive of the matter unless successfully withdrawn or proved erroneous". The learned judge has elaborately considered all the aspects of the question and correctly come to the conclusion that Ext. A does not evidence a lease transaction in respect of item 3. On a careful consideration of all the facts and circumstances we have also no hesitation in holding that item No. 3 was not leased to the defendants and that they were put in charge of the item only as care-takers or agents of the plaintiff. 22. An argument was raised that the defendants can at any rate be regarded as tenants of item No. 3 as defined in S.2 (d) of the Kerala Compensation for Tenants Improvements Act 29 of 1958. S.2 (d) of the Kerala Compensation for Tenants Improvements Act, 1958 defines a "Tenant". It reads: xxx xxx (d) "tenant" with its grammatical variations and cognate expressions includes (i) a person who, as lessee, sub-lessee, mortgagee or sub-mortgagee or in good faith believing himself to be lessee, sub-lessee, mortgagee, or sub-mortgagee of land, is in possession thereof; (ii) a person who with the bonafide intention of attorning and paying a reasonable rent to the person entitled to cultivate or let waste-land, but without the permission of such person, brings such land, under cultivation and is in occupation thereof as cultivator; and (iii) a person who comes into possession of land belonging to another person and makes improvements thereon in the bonafide belief that he is entitled to make such improvements." The defendants will not come under sub-clause (i), as Ext. A we have already found, does not create a lease. They will not come under sub-clause (ii) also, as it would apply only, to a person who commences occupation without the permission of the owner and here there is no such case. The learned counsel for the appellants relied on sub-clause (iii), but the defendants cannot be said to have been under a bonafide belief that they would be entitled to effect improvements in view of the stipulation in Ext. A regarding item 3. The learned counsel for the appellants relied on sub-clause (iii), but the defendants cannot be said to have been under a bonafide belief that they would be entitled to effect improvements in view of the stipulation in Ext. A regarding item 3. All the clauses are excluded by the fact that in respect of the expenses incurred for item No. 3 the defendants have maintained accounts and debited such expenses against the plaintiffs with a view to reimburse the same from the plaintiffs. The conduct of the party would show that the relationship between the plaintiffs and the defendants in regard to item 3 was only that of a debtor and creditor or principal and agent where there are mutual pecuniary claims between them pending adjustment. If the defendants are agents, as we have held, their possession is the possession of the principal and no question of a claim for improvements under Act 29 of 1958 can be put forward and they can only claim the actual expenses incurred by them. The decision in Lekshmi Ammal v. Velayudhan Kittu (1958 K.L.T. 159) may be referred to in this connection where Varadaraja Iyengar, J., has extracted a passage from Mitra in his Tagore law lectures on Limitation, 6th Edn. Vol. I at page 147: "The possession of a thing through our servant, bailiff, or other representative is our possession, not fictitiously or constructively, but really and directly .......................................................................................................................................................................... The so-called possession of the representative is "detention", not "possession" in a legal or juridical sense. It 23. Another point that was raised was whether the defendants are liable to account for the yield of the properties. Under Ext. A as we have found already the defendants did not get any right of beneficial enjoyment over item 3. They are only care-takers of the improvements effected by the owner. If any amounts are spent on behalf of the owners they must get the same, but at the same time the law enjoins a liability on them to account for what they have derived from the yield of the trees of which they were the caretakers. They are mutual accounts to be gone into and settled and such an accounting is directed to be done by the preliminary decree. 24. It is not correct to say that the defendants would be liable only for the profits for six years. They are mutual accounts to be gone into and settled and such an accounting is directed to be done by the preliminary decree. 24. It is not correct to say that the defendants would be liable only for the profits for six years. When the relationship is one of principal and agent Art.89 of the Limitation Act would apply and limitation starts only upon a demand and refusal to render accounts or on the termination of the tenancy. There is neither a termination of agency nor is there a demand and refusal to render accounts in this case. 25. The next question is whether the defendants are agriculturists within the meaning of the Cochin Agriculturists' Relief Act--Act 18 of 1114 entitled to the benefits under the Act. It is not disputed that the defendants come within the definition of 'Agriculturist' in S.3 (ii) of the Act, but it is claimed by the plaintiffs that they are taken out of the class of 'Agriculturist', because they fall within proviso (b) to the Section. The question is whether the plaintiffs have succeeded in bringing the defendants or any one of them within the proviso. The learned judge has not considered the case of each of the defendants separately and recorded a finding in order to disentitle the defendants from the benefits of the Act. The plaintiffs have to show that they were in receipt of an annual non-agricultural income of more than Rs. 900/- either in the year 1113 or 1114. Practically no evidence worth the name has been adduced by the plaintiffs, and whatever evidence that can be gathered from the accounts of the defendants or their testimony in court is so vague that no definite conclusion could be arrived at to bring them within the proviso. It is true that the burden is on the defendants to show that they are 'agriculturists', but having shown that they fall within the definition they would be entitled to the reliefs unless they are deprived of the privilege by one of the proviso and the burden is upon the person so asserting to prove his case. The plaintiffs have not discharged this onus and we have to hold that the defendants are agriculturists entitled to the benefits under the Act. 26. The plaintiffs have not discharged this onus and we have to hold that the defendants are agriculturists entitled to the benefits under the Act. 26. Having found that the defendants are entitled to the benefits of the Act, the further question that arises is what is the relief that they are entitled to. S.16(1) provides the relief that they are entitled to, but this is subject to S.16(4). That clause lays down that, if the tenant makes a default in paying the current pattom in any year on the due date the landlord shall be entitled to recover the entire arrears for the period after 1-1-1107 till 1-1-1115 together with interest at six per cent per annum. Dws. 2 and 8 have admitted that the current pattom of 1114 or of the subsequent years have not been paid by the defendants. Therefore the plaintiffs are entitled to recover the entire arrears from 1107 to 1114. 27. In regard to discharge of interest outstanding on 1-1-1115 the plaintiffs' case is that no such interest is outstanding as all amounts paid by the defendants were first appropriated towards the outstanding interest and the balance towards the principal. The defendants have admitted that they did not make any appropriation when they made the payments. Both Dws.1 and 3 have admitted that if there is no direction by the debtor the creditor is entitled to appropriate the payment of interest first. Ext. A provides for 12 per cent interest and the payments made have been rightly appropriated towards interest first and the balance towards the principal. The decisions in Venkatadri Appa Rao v. Parthasarathi Appa Rao (I.L.R. 44 Mad. 570); Narayani Amma v. Pappi Amma (35 Cochin 606); and Ramalinga Pattar Sankaranarayana Iyen v. Vasudevan Nambudiri Neelakantan Namburi (1953 K.L.T. 854) would show that the plaintiffs are entitled to do so. There fore the only relief to which the defendants would be entitled to is a reduction of interest from 12 per cent to 6 per cent on the arrears of pattom after 1115. 28. The third question raised by the learned counsel for the appellants is with regard to the deposit made by the defendants in court to obtain the benefits of S.8(2) of the Cochin Verumpattomdars Act. The suit was filed in 1123 claiming arrears of rent to the tune of Rs. 26603-9-10. 28. The third question raised by the learned counsel for the appellants is with regard to the deposit made by the defendants in court to obtain the benefits of S.8(2) of the Cochin Verumpattomdars Act. The suit was filed in 1123 claiming arrears of rent to the tune of Rs. 26603-9-10. Sub-section (2) of S.8 of Act VIII of 1118 as amended by Cochin Verumpattomdars Act 6 of 1122 provided among other things that if a verumpattomdar who is sued for eviction on the ground of rent being in arrears tenders to the lessor the pattom in arrears together with interest thereon and his full costs of the suit, the court shall, in lieu of passing a decree, pass an order condoning the default. To take advantage of this provision the defendants deposited a sum of Rs. 27,000/- in court along with the petition M.P.1596 of 1122. In the petition the defendants categorically stated that they are agreeable to the amount being paid over to the plaintiffs under S. 8 (2) and if there is any excess amount it could be set off towards future rent. The plaintiffs no doubt, disputed the correctness of the amount, but this will not detract from the deposit made by the defendants being unconditional and in full compliance with S.8 (2) with the result that the money becomes that of the plaintiffs and the defendants get the benefit under S.8 (2) of the Act. 29. In Noor Rowther v. Chennimala Koundar (38 Cochin 510) a similar question came up for consideration. In that case the deposit was made and in the petition it was stated by the defendant that if their contention is accepted they would be entitled to get back some amount and the amount would then be realised from the plaintiffs. It was held that the deposit was not subject to any condition as far as payment of the plaintiffs are concerned and that the deposit is sufficient payment as required by the provision of the section and that they must be deemed to have paid in full the arrears of rent. This decision was followed in Chakkappan v. Aryan Bhattathiripad (40 Cochin 95) and later by the Travancore-Cochin High Court in Narayanan Ambrandhiri v. Sinaba (A.I.R.1953 T.C. 397). 30. If the deposit made is unconditional and could be withdrawn by the plaintiffs it is a valid tender. This decision was followed in Chakkappan v. Aryan Bhattathiripad (40 Cochin 95) and later by the Travancore-Cochin High Court in Narayanan Ambrandhiri v. Sinaba (A.I.R.1953 T.C. 397). 30. If the deposit made is unconditional and could be withdrawn by the plaintiffs it is a valid tender. The fact that the creditor disputes the amount deposited does not affect the validity of the tender or render it a conditional tender. The effect of the deposit is that it will go in discharge of whatever arrears of pattom is ultimately found due and there is no question of such arrears being still subsisting. The plaintiffs have already withdrawn the amount as required by the defendants and there is a discharge of the arrears of pattom to the extent of the amount withdrawn. S.34 of the Kerala Agrarian Relations Act, 1961 will apply only if there is any arrears of rent outstanding on 11-4-1957. In this case there is no rent outstanding and as such no question of any relief under S.34 would arise. 31. In the result, the preliminary decree will be modified by reducing the interest to 6 per cent per annum on the arrears of rent instead of 12 per cent per annum decreed. In other respects the preliminary decree is confirmed and this appeal is dismissed with costs.