1. Defendant 1 is the appellant. This second appeal arises out of a suit instituted by the plaintiff to recover possession of the suit property after the removal of the house standing on it. The appellant obtained the property, which was a vacant site, on lease for erecting a house for residential purposes. Under the lease-deed (Ex. H) her agreed to remove the house at his own expense whenever required by trie owner He now claims that before he is ejected he is entitled to be paid the value of the house under the Malabar Tenants' Improvements Act (Act 1 of 1900). It is conceded the 'house'falls within the meaning of the term 'improvement'as defined in the Act and that if the Act applies, the undertaking to remove it cannot be enforced as it offends against the provisions of Section 19 of the Act. The learned District Judge disallowed the Compensation for the house on the ground that the lease, being not an agricultural one, is governed by the Transfer of Property Act and not by the Malabar Tenants' Improvements Act.
2. The question we have to decide is whether the Malabar Tenants' Improvements Act applies only to agricultural leases and not to building leases (i.e., lease of vacant sites for building purposes) as well. On one side, it is argued that there is a statement in Mr. Logan's Malabar Manual, Vol. 2, App. 3 (cxc) that under the Customary law of Malabar only agricultural tenants were entitled to improvements, that such a statement was made as to the effect of Act 1 of 1887 in the Legislative Council, that an unreported decision of this Court--S. A. No. 1445 of1889. (Under Act 1 of 1887) held that that was the law, that there is no reason to imagine that the legislature in passing Act 1 of 1900 departed from this rule and that the unreported decision has been followed very recently by Anantakrishna Ayyar, J. in S. A. No. 614 of 1928 which we may say, was decided during the time this second appeal remained part heard. On the other side, it is urged that having regard to the provisions of the present Act (Act 1 of 1900) which are clear, the statements made in Mr. Logan's Malabar Manual and in the Legislative Council should be disregarded that the Act clearly applies to building leases and that it was recently held by Jackson, J. in Chathukutty v. Kunhappan, : AIR1927Mad776 .
it has invariably been held in Malabar that the Act applies to agricultural holdings and also to what are known as kudiyiruppu, i.e., vacant sites available for building purposes.
and that Anantakrishna, Ayyar, J. does not dissent from the decision in Chauthu kutty v. Kunhappan : AIR1927Mad776 .
3. We shall first refer to the provisions of the two Acts to which our attention was drawn. The first Act that was passed by the Madras Legislative Council to secure to tenants in Malabar compensation for the value of improvements was Act 1 of 1887. Section 2, Clause 1 of this Act definies 'tenant'as follows:
in this Act, unless there is something repugnant to the context or subject-matter 'tenant'means a person who holds land under another person and is, or but for special custom or contract would be liable to pay rent for that land to that parson,
4. Section 3, Clause 1 defines 'improvements' as meaning:
any work which adds to the value of the holding which is suitable to the holding and consistent with the purpose for which it was let.
5. Clause 2 of this section in enumerating what are deemed to be improvements states amongst others that:
until the contrary is shown the following shall be presumed to be improvements within the meaning of the Act: (a) the erection of dwelling houses, buildings appurtenant thereto and farm buildings; (b) the construction of tanks wells, channels, dams and other works for the storage or supply of water for agricultural or domestic purposes. Section 4 states that every tenant who is ejected from his holding shall notwithstanding any custom to the contrary be entitled to improvements.
6. As Act 1 of 1887 failed to achieve its purpose fully, the legislature amended the law by repealing it and enacting the present Act 1 of 1900. By this Act the definition of the term 'tenant'was thoroughly recast and its scope was enlarged to include the claim of a 'squatter'for compensation which it was thought did not fall within the definition under the repealed Act. The definition of the term 'improvement'was also modified by adding 'the product of a work'to the definition under the old Act. By Section 3, Clause 1 of this Act the term 'tenant'is defined as follows:
Tenant, with its grammatical variations and cognate expressions, includes 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, or who with the bona fide intention of attorning and paying the customary rent to the person entitled to cultivate or let waste land, but without the permission of such person brings such land under cultivation and in occupation thereof as cultivator.
7. Sub-Clause 3 of the 'same section defines 'improvement'to mean:
any work or product of a work which adds to the value of the holding, is suitable to it, and consistent with the -purpose for which the holding was let, mortgaged or occupied.
8. Section 4 deals with what are deemed to be 'improvements 'and states amongst other things:
that the crection of dwelling houses as under the old Act shall be presumed to be an improvement and Section 5 states that every tenant shall be entitled to compensation on ejectment.
9. It is nowhere stated in the Act that its operation is limited to agricultural tenancies; on the other hand, such indications as we have of the intention of the Act show that it would be difficult to restrict its operation to such tenancies. The title and the preamble of the Act show that it applies generally to all tenants in the Malabar District and if it had been the intention of the legislature to restrict its operation to agricultural tenancies only, nothing was easier than to add the qualifying words 'agricultural 'before the word 'tenants.' The first part of the definition of 'tenant 'ending with the word 'thereof 'is wide enough to include a person to whom land has been let for building purposes. We cannot accept the plea that the scope of this part of the definition which stands apart from the rest of the clause should be limited to agricultural tenancies because when referring to quite a different class of people as tenants in the same clause (viz., 'squatters ') the words 'cultivation 'and cultivator 'are used; on the other hand, it may well be argued that the absence of such words in the first part of the definition shows that the legislature deliberately intended to include non-agricultural tenants, such as lessees holding land for building purposes within its scope. The plea, urged before us was rejected by Anantakrishna Ayyar, J , when it was urged before him in S. A. No. 614 of 1928. Another indication as regards the intention of the legislature may be found in Section 4 of the Act which in Clause (a) refers to
the erection of dwelling houses as a work which shall be presumed, until the contrary is shown, to be an improvement for the purposes of the Act.
10. Clause (b) of this section refers to certain other works 'for agricultural purposes,'The absence of such a qualification in Clause (a) lends support to the suggestion that 'dwelling houses 'shall always be deemed to be improvements until the contrary is shown irrespective of the purpose for which the land on which these stand may have been leased. The fact that 'dwelling houses'are' grouped together with 'farm buildings 'in the same clause cannot in our opinion be relied on to show that these, to be deemed improvements, should be appurtenant to a holding for agricultural purposes. If that was the intention of the legislature appropriate words might have been used to express that intention as has been done in the subsequent clause which refers to tanks, wells, channels, etc. Agricultural tenancies of land as distinguished from other forms of tenancies are well known to law and if the intention of the legislature was to restrict the operation of the Act to agricultural tenancies alone nothing was easier for the legislature than to state it in the preamble or in the sections of the Act, as was done for example in the corresponding Act in the N. W. P. (Act 12 of 1881 as amended by Act 14 of 1886) which enacted:
Nothing harem contained applies to land for the time being occupied by dwelling houses or manufactories or appurtenant thereto, so long as such land is not let to agricultural tenants.
11. In this connexion the observations of Sundara Ayyar, J., in his book on Malabar Law edited by Mr. Sitarama Rao (see p. 297) as regards the' scope of the two Acts may be referred to with advantage:
The Act applies not only to the kanomdar bat also to all classes of lessees, sub-lessees, mortgagees, sub-mortgagees, in possession and also to persons who are bona fide in possession with the intention of paying rent to the person entitled to let the waste land but without the permission of that person. The last is the case of a pure squatter that used to be introduced by the Govarnment to whom reference has already been made. In Mr. Logan's Manual, Vol. 2, App 3 (cxc) there is a statement that under the Customary law, only agricultural tenants are entitled to improvements. A similar statement was made as to the effect of the Act of 1887 by Mr. Subraminia Ayyar, as he then was, in the Legislative Council. It is doubtful if this is correct; at any rate, it would seem difficult to so restrict the later Act.
(The italics are mine).
12. In this connexion see also p. 345. In our opinion Act 1 of 1900 applies to non agricultural tanants such as lessees of vacant sites leased for buildings purposes.
13. If the sections of the present Act clearly indicate that its operation is not limited to agricultural tenancies alone, it is needless to inquire what the Customary law that prevailed prior to the legislation was, and whether the repealed Act 1 of 1887 applied only to agricultural tenancies; for we should be guided only by the plain words of the statute. However, as the point was argued, we shall briefly deal with it. Assuming that under the Customary law of Malabar only agricultural tenants were entitled to the value of the improvements, it is not quite clear whether the; Courts in actually administering the law before the Act 1 of 1887 was passed ever gave effect to the Customary law with strictness, for we find in a well-known book of Malabar law entitled 'A Manual of Malabar law as administered by the Courts'by Cuddalore Ramachandra Ayyar, Subordinate Judge of South Malabar, Calicut, published in July 1883, reference to a decision of this Court, S. A. No. 361 of 1880 to the effect that a lessee of vacant land let out for building purposes was entitled before ejectment to get compensation for the dwelling house he had erected on it. In Section 301 of the book under the heading, Illus. (b) the facts of the case are thus, summarized:
Where a house worth Rs. 3,000 had been erected on a waste paramba given by the kerna van of a tarwad to his own wife, the High Court refused to allow the tenant to be disturbed without receiving compensation, though the plaintiff sought to set aside the alienation of the site as prejudicial to the interests of the tarwad; see S. A. No. 361 of 1830.
14. On examining the record we find that the plaintiff claimed compensation for a house built on a vacant site in a crowded locality of residential houses in Kollengode village. The District Munsif granted compensation. The . District Judge thought that the claim was not justified under the Customary law; but the High Court maintained the Munsif's decree on the ground that
it would be contrary to the rule of good conscience that the plaintiff should recover without compensating defendants 4 and 5....
15. This case shows that a claimant to compensation for improvements in Malabar, even though his title to the holding fails, that is, even though he is in the position of a squatter, is not disentitled to claim the value of the dwelling house which he has erected on the vacant site leased to him. It would thus appear that prior to the Act of 1887 it was usual to give compensation in cases like the present whether the grant was justified by Customary law or not. We may mention that the right to compensation in the abovementioned case is referred to in Mr. Ramachandra Aiyar's book as based on custom. In our view, this right to claim compensation for dwelling houses erected on vacant sites was recognized by Act 1 of 1887. Section 4 of the Act already quoted states that until the contrary is shown the erection of dwelling houses shall be presumed to be improvements for the purposes of the Act, In the commentaries of Act 1 of 1887 reference is made to Section 301 of Mr. Ramchandra Ayyar's book. It follows therefore that prior to this Act dwelling houses were always considered to be improvements and this has been so subsequent to the Act also. We may here refer to S. A. No. 1445 of 1889, the un-reported decision relied on by the respondent. It, no doubt, held that the provisions of the Act of 1887, the repealed Act, do not apply to building leases. This conclusion is based on the following reasoning:
Dwelling houses described in Section 3, Clause 2 of the Act are grouped together with farm houses, and the term 'improvement'itself is defined in the Act as 'a work which adds to the value of the holding.'In their ordinary sense the words appear to us to refer to dwelling houses appurtenant to a holding for agricultural purposes and not to dwelling houses within the limits of a town for purposes of residence only.
16. The learned Judges state also that
dwelling houses for which compensation was claimed in this suit form admittedly no part of an agricultural holding.
17. We may observe that they do not refer in their judgment to the definition of the term 'tenant'which is very wide and that the word holding'does not necessarily mean that the land held is agricultural land. The term is not defined although it is used in several places in the Act. According to the Oxford Dictionary it means 'tenure'or 'occupation of land'and in the absence of a definition it may be taken that the word is used in this sense. If the legislature intended that the word should mean 'agricultural holding,'then it would have used 'agricultural'before the word 'holding.'Legislatures are not unfamiliar with the expression 'agricultural holding:'see for example the English Agricultural Holdings Act, 1883. Wo may also observe that the grouping of 'dwelling houses'along with farm buildings in enumerating what shall be deemed to be 'improvement'under the Act either by itself or by combination with 'holding'is as we have already shown, not a sufficient justification to show that dwelling houses in Clause (a), Section 3 mean dwelling houses appurtenant to a holding for agricultural purposes. The construction adopted by the learned Judges is opposed to the plain words of the section in enacting which the legislature simply gave sanction to the practice followed in Malabar of treating 'dwelling houses'as improvements for which compensation may be claimed. It is open to considerable doubt whether the decision in S. A. No. 1445 of 1889, being unreported and presumably unknown, was ever used in Malabar in preference to the ruling in S. A. No. 861 of 1880 which must have been familiar to those who had to deal with questions of the kind raised in that case. For these reasons we are of opinion that in spite of the decision in S. A. No. 1445 of 1889 compensation was always given to lessees who built dwelling houses on vacant sites leased to them for erecting houses for residential purposes whether such houses were erected in villages or towns and that Act 1 of 1887 was never understood to stand in the way of awarding compensation in such cases.
18. The argument that the old Act (Act 1 of 1887) was intended only to apply to agricultural tenancies and- there is no reason why a different intention should be imputed to the legislature, when it passed the Act 1 of 1900 does not present to us any difficulty. It may be that it was intended that the Act of 1887 should apply only to agricultural tenancies as at the time that is, 1887, the local legislature under the Indian Councils Act 1861 could not pass legislation affecting the operation of the Transfer of Property Act--an Imperial Act which applied to all tenancies other than agricultural. But the intention, as we have shown, does not seem to have been carried cut effectively in actual practice. As pointed out in Sundara Ayyar, J's. book, it is doubtful if, the statement that the repealed Act applied only to agricultural tenancies is correct. But however that may be, this disability of the local legislature to pass Acts affecting the operation of the Imperial Acts was removed by the Statute of 1892, so that in 1900, when the Improvements Act 1 of 1900 was passed, it-had power with the sanction of the Governor-General in Council to pass legislation regarding tenancies other than agricultural.
19. The new Act is not a mere repetition of the old Act. Its scope was enlarged and it was modified in various respects. If the old Act was intended to apply only to agricultural tenancies, there is nothing to show that the intention of the new Act is the same, having regard to its sections which, as we have already shown do not restrict its operation to agricultural tenancies. When the statute is clear, it cannot be qualified or neutralized by indications of intention gathered from previous legislation on the same subject: see Administrator-General of Bengal v. Premlal Mullick [1895] 22 Cal. 788.
20. We shall now consider the decisions of this Court under the Act (Act 1 of 1900) having a bearing on this point. There are only two decisions directly bearing on the question, these two being a decision of Jackson, J., in Chathukutty v. Kunhappu : AIR1927Mad776 ., and a recent decision by Anantakrishna Ayyar, J, in S. A. No. 614 of 1928. Before we discuss these cases attention may be drawn to two other decisions of this Court, viz. Kallingal Moosa Kutti v. Secretary of State [1920] 43 Mad. 65 and Ullattuthedi Choyi v. Secy. of State A.I.R. 1921 Mad. 409 which, though not useful as direct decisions on the point are yet, in our opinion, very helpful as an inference may be drawn from them regarding the view generally held as regards the scope of Act 1 of 1900. The facts of the cases, so far as they are relevant to the point under consideration, are very similar to the facts of the present case, the only important difference being that in both the cases the lessor was the Secretary of State for India in Council. In both the cases the leases were of parambas and in one there was a clear undertaking on the part of the lessee to pull down and remove all the buildings at the time of surrender without demanding compensation. The lessees claimed compensation for the value of the dwelling houses erected by them when they were called upon to surrender the lands and it was held that the provisions of the Malabar Tenants' Improvements Act as to eviction of tenants on payment of compensation to them for improvements does not apply to Crown grants which do not provide accordingly: see Ullattuthedi Choyi v. Secy. of State A.I.R. 1921 Mad. 409 following Kallingal Moosa Kutti v. Seay. of State [1920] 43 Mad. 65. No attempt was made in either of these cases to justify the disallowance of compensation on the ground that the Malabar Tenants' Improvements Act applied only to agricultural tenancies and not to building leases. The judgments would rather show that it was assumed that the Malabar Tenants' Improvements Act would apply but for the provisions of the Crown Grants Act. In this connexion attention may be drawn to the following extract from the judgement in Kallingal Moosa Kutti, v. Secy. of State [1920] 43 Mad. 65:
On the second point we feel no doubt that the wide language of Section 3, Crown Grants Act, is conclusive. The Government have especially armed themselves with powers 'Which they have withheld from private parties, presumably on the ground that they are not likely to misuse them. It is clear to us that these contracts are not within the mischief of Section 19, Malabar Compensation for Tenants' Improvements Act.
21. This would show by implication that the learned Judges were prepared to apply the Tenants' Improvements Act but would not do so on account of Section 3, Crown Grants Act. In Ullattuthedi Choyi v. Secy. of State A.I.R. 1921 Mad. 409, the following observations occur:
It is now said that he cannot be evicted until he has received compensation under the provisions of the Malabar Compensation for Tenants' Improvements Act. To allow such a provision of that Act to take effect would prevent the Crown Grant in question from taking effect according to its tenor. We entirely agree with the decision on this point in Kallingal Moosa Kutti v. Secry. of State. [1920] 43 Mad. 65.
22. In this case Ullattuthedi Choyi. v. Secy. of State A.I.R. 1921 Mad. 409, it may have been possible to say that the lease was an agricultural one; but the proceedings in the case show that it was throughout treated as a lease of a paramba. Attention may be drawn to the following observations of the District Munsif as they refer to the practice followed in Malabar in such cases and also show that the argument put forward was that the lease being a non-agricultural one the tenant cannot plead Section 19 of the Act.
The more important question is about the buildings in the paramba. One or two of them are useful as dwelling houses...it has been the usual practice to allow their value in favour of the tenant. There is hardly any lease in Malabar given for the purpose of building shops or dwelling houses. Yet it has been the rule to allow the tenant the value of shops and dwelling houses when none of them is inconsistent with the holding. I do not think that Government who are most solicitous about the welfare of the tenant ought to ask the Court to construe the provisions of the Act against the interests of the tenant.
23. The District Munsif overruled this argument and allowed compensation. The learned District Judge treated the lease as a Crown grant and set aside the order of the District Munsif. The High Court also, as may be seen from the extract quoted above proceeded on the same lines.
24. Coming now to the decisions under Act 1 of 1900 which have a direct bearing on the question we shall first deal with Chathulcutty v. Kunhappu : AIR1927Mad776 . The facts in that case were as follows:
The plaintiff let to the defendant a shop in a town in Malabar for five years the tenant agreeing to remove a bakery oven erected by him thereon, when surrendering the shop at the end of five years. At the end of five years the plaintiff sued to recover arrears of rent and the land. The defendant pleaded, inter alia, that he should be paid compensation for the oven....
25. In support of the plea that the tenant was not entitled to compensation, two arguments were pressed before the learned District Judge (Mr. V. P. Rao), these being: (1) that the tenant of a house is not a lessee of land within the meaning of the Act and (2) that the Act applied only to agricultural tenancies. The first was disallowed on the ground that the point was taken for the first time in appeal and on the second the learned District Judge expressed the opinion that the Act (Act 1 of 1900) was not confined to agricultural tenancies. On this point he stated:
The Act has been hitherto applied in practice to Kudiyiruppu tenants i.e., tenants of land for building houses for themselves and they have been awarded compensation for such houses without any question in all these years.
26. In the result, compensation under the Act was awarded to the tenant. In Second appeal it was held by Jackson, J., that the defendant was not entitled to compensation as the tenant of a house or a shop is not a lessee within the meaning of the Malabar Tenants' Improvements Act. On the second point which is the one we are concerned with in this case he agreed with the District Judge and stated thus:
I think it has invariably been held in Malabar that the Act applies to agricultural holdings and also to what are known as Kudiyiruppu or vacant sites available for buildings.
27. The present case as it relates to a claim for compensation for a house built on a vacant land leased out for erecting buildings, cornels literally within the latter part of this rule and therefore the tenant should be held entitled to claim compensation for the bouse. This case i.e., Chathukutty v. Kunhappu : AIR1927Mad776 . is referred to in Pathumma Umma v. Moideen : AIR1928Mad929 decided by Srinivasa Ayyangar and Reilly. JJ. A perusal of the judgment of Reilly, J., leaves the impression that he was inclined to hold, if necessary that even the lessee of a house in Malabar comes within the purview of this Act; but it was not necessary for him to express any opinion on tie point as he found that the house in that case-was not an improvement within the meaning of the Act. In the present case the questions whether the tenant of a house leased to him comes within the Act or not and whether the scope of the Act is restricted to agricultural lands and vacant sites do not arise for consideration and we express no opinion on them. On the point we are called upon to decide that is whether a lessee of a vacant site is entitled to compensation under the Act for the house erected by him both the learned Judges agree with the judgment of 'Jackson, J., in Chathukutty v Kunhappu : AIR1927Mad776 .
28. The next case having a somewhat direct bearing on the point is the decision of Anantakrishna Ayyar, J., in S. A. No. 614 of 1928. In that case the President District Board, Malabar, leased to the defendant a roadside poramboke. When he was called upon to surrender the site he claimed compensation under the Act for a house which he had built on it though he had undertaken in the lease deed not to'claim compensation for the improvement that he might make on the property. His claim was disallowed in all the Courts. The judgment in the second appeal is relied on to show that Act 1 of 1900 applies only to agricultural tenancies. The learned Judge no doubt refers amongst other things to the unreported decision S. A. No. 1445 of 1889 and also to Act 1 of 1887 and the speech in the Legislative Council when that Act was introduced, considerations which might lead one to think that in his opinion the present Act applies only to agricultural tenancies but on a careful perusal of the judgment we can find nowhere in it any such decisive statement. On the other hand he agrees with the decision in ChathuKutti v. Kunhappu : AIR1927Mad776 . and distinctly says that he does not think it requires any reconsideration. In his view that decision did not apply to the case before him because he understood the finding in the ease to be that the suit land is a roadside poramboke; in other words, it is neither an agricultural holding nor a building site available for building purposes. He also held that in the circumstances of the case the house in question was not an improvement within the meaning of the Act.
29. In our view the decision in S. A. No. 614 of 1928 does not lend any substantial support to the argument of the respondent. However if the decision is to be understood as an authority for the position that the Malabar Tenants' Improvements Act of 1900 applies only to agricultural tenancies then with all deference to the learned Judge, we cannot agree with his view. In passing, we may observe that though the facts in S. A. No. 1445 of 1889 are similar to these in Chathukutty v. Kunhappu : AIR1927Mad776 having regard to the reasoning in the judgment in that case and the principle on which the judgment was rested it appears to us that the question which Jackson, J., had to decide in Chathukutty v. Kanhappu : AIR1927Mad776 was res integra. We may also say that the decision in S. A. No. 1445 of 1889 was used before us solely for showing that the operation of Act 1 of 1887 was restricted to agricultural tenancies and we do 'not understand the case to have been used for any other purpose in S. A. No. 614 of 1928.
30. For the above reasons, we are of opinion that the operation of Act 1 of 1900 is not restricted to agricultural tenancies, that it applies to building leases as well, that in this view it is unnecessary to consider what the law was prior to 1900 and that even if it is necessary to refer to the prior law on the ground that the words of the statute are not very clear, the law administered in Courts without any question for over a century has always been to the effect that in Malabar the tenant of a vacant site is always entitled to claim compensation for dwelling houses that he may have erected on the site. We think it is now too late to reconsider the law on the strength of an unreported decision of this Court as old as 1889 and on the policy of the Act of 1887 which itself is not very clear.
31. We would therefore allow this second appeal and grant the appellant compensation for the value of the house erected on the plaint site. But as the lower Courts have not recorded a finding on this point, before we allow the Second appeal, we would ask the District Judge to submit a finding as regards its value; the District Judge is at liberty to send the case to the Sub-Court for the finding. Fresh evidence on this point may be taken. Two months for the finding and ten days for objections.
32. (In compliance with the order contained in the above judgment, the Subordinate Judge of Cochin submitted the following)
What is the value of the building to which the defendant is entitled.
33. In conclusion my finding is that the defendant is entitled to Rs. 899-6-2 only. (This appeal coming on for final hearing after the return of the finding of the lower Court upon the issue referred by this Court for trial, the Court delivered the following)