K.V. Govindan Nair and anr. Vs. Appukutty - Court Judgment

P.V. Rajamannar, C.J.

1. The only question in this Civil Revision Petition is whether there should be a stay of a suit pending in the Court of the Additional District Munsiff of Calicut for ejectment against the petitioners under Section 4 of the Madras Tenants ind Ryots Protection Act (XVII of 1946). The document under which the petitioners claimed cheir rights is described as an othi deed bearing date of the Malayalam year corresponding to 14th January, 1920. The District Munsiff held that the petitioners were not entitled to the benefit of the provisions of that section and dismissed their application for stay of the suit. When the Civil Revision Petition came on before Panchapagesa Sastry, J., he directed the petition to be posted for hearing and determination by a Bench, because of a conflict between the decision in Ranga Aiyar v. Subbayya Gounder : (1942)2MLJ739 and the decision in Raman Nambiar v. Govindan Nayar : (1948)2MLJ381 .

2. Under Section 4(1) of the Madras Act XVII of 1946 a suit for the eviction of a tenant from his holding or a suit in which a claim for such an eviction is involved whether in addition to a claim for rent or not, shall be stayed, subject to certain conditions, which are not material now. Under Section 2(b) of the same Act the expressions, ' eviction,' ' holding, ' ' rent ' and ' tenant ' shall in relation to cases governed by the Malabar Tenancy Act, 1929, have the same meanings respectively as in that Act. In the Malabar Tenancy Act, a ' tenant ' is defined thus:

any person who has paid or has agreed to pay rent, or other consideration, for his being allowed by another, to enjoy the land of the latter, and includes an intermediary, a kanamdar, a kuzhikanam dar and a verumpattamdar of any description.

An 'Intermediary' is defined thus in Clause (j) of Section 3:

Any person, who not being a jenmi, has an interest in land, and is entitled by reason of such interest, to possession thereof, but has transferred such possession to others;

3. To understand the contentions of the parties in this petition, it is necessary to refer to the main provisions of the othi deed : It recites that properties mentioned in the schedule which belong to the transferors in jenm are demised to the transferees on othi tenure on a pattom (rent) of Rs. 20 and that the transferors had received from the transferees Rs. 150 for meeting tarwad expenses. The term was fixed at 12 years, during which time the transferees were entitled to continue in possession and cultivate the land. Out of the agreed pattom of Rs. 20, Rs. 15, had to be appropriated towards interest on the othi amount, and the transferees were directed to pay the Government revenue of Rs. 4-12-0 and the balance of 4 annas as rent every year. It is provided that at the end of 12 years, the properties should be surrendered on repayment of the othi amount. The transferees were entitled to be paid the value of any improvements which they might make, according; to the custom of the locality. It was contended an behalf of the respondent that the petitioners were not tenants because under this document they were not persons who had to pay, or who had agreed to pay, rent, or other consideration, for being allowed to enjoy the land, and that the deed was in essence a deed of usufructuary mortgage. The mention of a rent or pattom would not be conclusive of the matter and would not give rise to the relationship of the landlord and tenant between the parties. The case in Venkateswara v. Kesava Shetti I.L.R. (1879) Mad. 187 was relied upon: in support of this contention. Reliance was also placed on the decision of Happen, J., in Pottentakath Kunholan v. Krishnan : AIR1942Mad652 . The learned Judge there held, on more or less similar facts, that the surplus of the usufruct paid by a usufructuary mortgagee to the mortgagor is not rent. Recently, several learned Judges have had occasion; to discuss this aspect of the question and the test laid down by them to find out whether a person was or was not a tenant on the ground that he had agreed to pay rent or other consideration for his being allowed by another to enjoy the land of the latter is to consider, from a perusal of the material deed, whether its primary object is that the person put into possession should enjoy the land or whether it was primarily intended that the land should be security for the debt. Vide Kottulungal Muhammad v. Akkiraman Nambudir : (1948)2MLJ428 . Velappil Tami v. Pazhayakath Kinhikali Umma C.R.P. No. 793 of 1947, Chandu alias Kuttiappu v. Puthikqyil Valappil Ummatha Kutti Umma C.R.P. No. 794 of 1947. and Karunakaran Nair v. Manavedan alias Valia Thirumalpad C.R.P. No. 987 of 1947.. It is not necessary however to decide whether the test laid down in these decisions is the correct test Or to examine the provisions of the deed to decide whether the transferee is liable to pay rent: under the deed in question, because in our opinion this case can be decided on another point.

4. There can be no doubt that the transferees in this case would be intermediators, construing the definition of ' intermediary ' according to the plain language of the statute. They are persons having an interest in land and are entitled by reason of such interest to possession thereof. It is common ground that they have transferred such possession to others. An intermediary is expressly included in the definition of a 'tenant' in Clause (v) of Section 3 of the Malabar Tenancy Act... But it is contended by counsel for the respondent that a mere intermediary would of be a tenant but he should also be a person who had paid, or has agreed to pay, rent or other consideration for his being allowed to enjoy the land of the latter....This contention found favour with Horwill, J., in Raman Mambiar v. Govindan Mayor : (1948)2MLJ381 . The learned Judges held that though a usufructuary mortgagee was certainly a person who satisfied the definition of an intermediary in Section 3(j) of the Act, he would not be a tenant within the meaning of Section 3(o) because in the latter clause, the word intermediary has to be read with the other parts of the definition and the intermediary referred to must be an intermediary who pays rent or other consideration for his being allowed by another to enjoy the land of the latter. The learned Judge made a reference to the decision of a Bench in Ranga Aiyar v. Subbayya Gounder : (1942)2MLJ739 . In that decision Wadsworth and Patanjali Sastri, JJ., held that a usufructuary mortgagee who had parted with possession in favour of others would be an intermediary. The following observations of Wadsworth, J., in that decision are very apposite:

No doubt the definition of ' tenant' includes an intermediary but, from this fact we are not prepared to infer that an intermediary must necessarily be a person who himself pays rent. The term 'tenant' in the Malabar Tenancy Act is used in a very wide sense and it is only certain specific classes of tenants who are entitled to renewals or fixity of tenure in certain specified circumstances. Though, no doubt, in the vast majority of cases the intermediary will be a person who both receives and pays rent, we are not prepared to hold that the payment of rent is a necessary qualification for inclusion within the definition of that term.

5. With great respect to the learned Judge, Horwill, J., I do not find any justification for holding that an intermediary included in the definition of a tenant in Clause (v) must, in addition to being a person falling within the definition of an intermediary in Clause (j), also be a person who has paid or has agreed to pay rent or other consideration for his being allowed by another to enjoy the land of the latter. If a person pays or agrees to pay rent or other consideration, then such a person would be a tenant within the first part of Clause (v), whether he is an intermediary or not. Horwill, J., observed that if all intermediaries were tenants within the meaning of Section 3(v), it would lead to the anomalous position that a person who was not a tenant could make himself a tenant by parting with some measure of his interest in land. On the other hand, having regard to the policy underlying the Malabar Tenancy Act, it may be that it was thought necessary to confer the rights of a tenant on an intermediary if he had transferred possession toothers who were in actual cultivation of the land, so that ultimately the actual cultivator might have a secure tenure. The case dealt with by Horwill, J., in that decision, furnishes an illustration. In that case, the othidar had inducted other persons as his tenants. The learned Judge rules that they would not be tenants within the meaning of Section 3(v) of the Act and that they were liable to be evicted, because if the person from whom they held was not a tenant, the so-called sub-tenant would have no right to remain in possession. It may well be that to secure the rights of persons in actual cultivation of the land it was necessary to secure the rights of persons who were intermediaries as defined in Clause (j). Otherwise, if they were liable to be evicted, their tenants would equally be liable, to be evicted. Whatever may be the policy underlying the Act, on a reading of the plain language of Clauses (j) and (v) of Section 3 of the Act, I am of opinion that an othidar or a usufructuary mortgagee who has in his turn parted with actual possession of the land to others would be a tenant entitled to the benefit of the provisions of Madras Act XVII of 1946.

6. The civil revision petition is, therefore, allowed. There will be a stay of the. suit.

Viswanatha Sastri, J.

7. I agree. There has been some diversity of opinion in this Court on the question whether an ' othidar ' is a ' tenant ' within the meaning; of Section 3(v) of Madras Act XIV of 1930 so as to entitle him to apply under Madras Act XVII of 1946 for a stay of proceedings by way of redemption. The question turns upon a construction of the particular deed on the basis of which, eviction is sought or resisted. The terms of the othi with which we are concerned liave been set out in the judgment of my Lord. There is here an advance of money as a loan under a mortgage with possession. There is also a provision for the payment of an annual ' pattom ' or rent by the othidar after deducting Rs. 15 for the interest due on the loan, for payment of interest on arrears of pattom and for payment of compensation ' according to local usage ' for improvements effected by the othidar. It is said for the respondent that the transaction is only a mortgage, the land being security for the loan and does not involve the creation of a tenure and that the rent payable, being a very small sum, would only form an item in the account between the mortgagor and the mortgagee. The othidar, being a secured creditor, must receive the debt if paid and give up the security. The petitioner contends that the ' othidar' in the present case is a ' tenant' paying, rent within the first part of the definition in Section 3(v) of the Malabar Tenancy Act or at any rate an ' intermediary,' within the latter part of the definition and in either case, entitled to a stay of the proceedings for redemption which involve and would result in this eviction.

8. The decisions of this Court in which this question has been considered are referred to in the judgment of my Lord, which I have had the advantage of perusing. In every case the decision must depend on an ascertainment of the rights and liabilities of the parties under the document, construed if need be, in the light of surrounding circumstances. Where, as here, there is a formal document of othi, its substance can only be gathered from a consideration of all the terms of the document. You cannot, in the search for substance, substitute different legal rights and liabilities for those that emerge from the terms of the document construed according to ordinary legal principles. Nor can you wholly ignore the legal form or shape given by the parties themselves to the bargain between them. With the utmost respect, I cannot agree with the conclusion reached in one of the cases cited to us, that if the mortgagor is an affluent jenmi, an othi granted by him is only an arrangement by way of lease and should be construed to be such. The true character of the transaction and its effect upon the rights of parties would depend upon a fair interpretation of all the terms of the document in question and the nature of the dispute that has arisen between them.

9. Dealing with a usufructuary mortgage and a lease back of the properties to the mortgagor, the Judicial Committee observed:

Their Lordships agree with the High Court in thinking that the mortgage and lease were parts of one and the same transaction. But there is no inconsistency between the two instruments. Nor would there have been any inconsistency if the mortgage itself had contained a provision for granting a lease on the terms upon which the lease was actually granted.' Abdullah Khan v. Basharat Husain (1912) 25 M.L.J. 91 : L.R. 40 IndAp 31 : I.L.R. 35 All. 48 (P.C.)

Their Lordships held that effect must be given both to the mortgage and the lease, though they formed component parts of the same transaction and reversed the decision of the Allahabad High Court to the effect that the mortgage was usufructuary only in form and that the real object was only to secure the payment of interest out of the rents and profits. In effect the contention of the respondent is that you must ignore the stipulation for payment of pattom on the due dates, with interest on default and the stipulation for payment of compensation for improvements according to local usage and consider the creation of a security for the loan as the substance and effect of the othi transaction. As pointed out by the Judicial Committee, there is no inconsistency in construing different parts of the same document as giving rise to different legal rights and liabilities.

10. These considerations will have to be kept in view in deciding whether the payment of pattom by an othidar is a payment by way of rent properly so called or whether it is merely a payment of the surplus income to the mortgagor by a usufructuary mortgagee. In the present case it is not necessary to decide this question, for it is clear that, even if the othidar is considered to be only a usufructuary mortgagee, he would be an ' intermediary,' within the second part of the definition in Section 3(v) of Madras Act XIV of 1930, he having leased the mortgaged lands, to other persons. There is no warrant in the statute for the contention that Madras Acts XIV of 1930 and XVII of 1946, were not intended for the protection of ' intermediaries ' but only for the benefit of the actual cultivating kanomdar, kuzhikanamdar or verumpattamdar as the case may be. A lessee or sub-lessee cannot claim higher rights than the lessor or head-lessee and Acts XIV of 193a and XVII of 1946, while protecting the tenant in actual possession, incidentally protect the ' intermediary ' who let out the land. The protection given to the last derivative title enures for the intermediate title as well.