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Attorney(S)
  • Mr. V.P Gopalan Nambiar for Appt.
  • Mr. C. Unikanda Menon for Respts.
Judges
  • Gentle, C.J
  • Rajamannar, J.
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Citation Codes
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Attorney(S)
  • Mr. V.P Gopalan Nambiar for Appt.
  • Mr. C. Unikanda Menon for Respts.
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  • Gentle, C.J
  • Rajamannar, J.
Acts
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Smart Summary

Structured Summary of the Opinion (Letters Patent Appeal)

Factual and Procedural Background

The dispute concerns four items of agricultural land governed by the Malabar Tenancy Act. The jenmi (owner) originally leased the property to the Peralikunnath tarwad. After the original term of the lease expired, the lands were held on a tenancy from year to year. On 15 May 1912 the tarwad sub‑leased the property to defendants 2–5; those defendants assigned their interest to the first defendant, who in turn sub‑let item 4 to defendants 6–12.

The tarwad fell into arrears of rent to the jenmi; the jenmi assigned those arrears to the plaintiff, who obtained a decree for the arrears. In execution of that decree the rights of the Peralikunnath tarwad were sold and purchased by the plaintiff, who thereby stood in the tarwad's position.

The plaintiff sued defendants 1–12 in the District Munsiff Court at Walluvanad seeking possession of the four items and arrears of rent and mesne profits. The trial Court decreed the suit, directing possession to be given upon the plaintiff paying prescribed amounts for munpattom and for improvements. The first defendant appealed to the Subordinate Judge of Ottapalam; that appeal was dismissed though the amount for improvements to be paid by the plaintiff was increased. The first defendant's second appeal to this Court (Shahabuddin, J.) was dismissed. Defendants 2–12 did not appeal. This proceeding is a Letters Patent Appeal by the first defendant alone.

Legal Issues Presented

  1. Whether, in the context of the Malabar Tenancy Act, the plaintiff as landlord was entitled to an order for eviction or possession without having first terminated the tenancy by an appropriate notice to quit (i.e., whether termination of the tenancy was a prerequisite to obtaining possession).
  2. Whether the first defendant qualified as a "cultivating verumpattamdar" (Section 3(w)(o) of the Act) and hence was entitled to the statutory protection including fixity of tenure under Section 10, particularly in light of his having sub‑let part of the holding (item 4).
  3. What is the correct legal effect of Section 14 of the Malabar Tenancy Act — specifically, whether Section 14 confers upon a landlord a direct right to obtain eviction upon the happening of the events specified therein, or whether it merely limits the grounds on which eviction may be granted and thereby protects the tenant.
  4. Whether the first defendant may raise, in this Letters Patent Appeal, the point that no notice to quit had been given or the tenancy terminated, despite that point not having been pressed in earlier Courts.

Arguments of the Parties

First Defendant (Appellant) — principal contentions

  • Denied that any demand for possession had been made by the plaintiff; asserted that no registered notice was ever sent to him (paragraph 7 of the written statement).
  • Alleged entitlement to a permanent right or "fixity of tenure" under Section 10 of the Malabar Tenancy Act (additional written statement).
  • Claimed that the plaintiff had not validly terminated the tenancy and thus had no right to evict or recover possession.

Plaintiff (Respondent) — principal contentions

  • Before instituting suit the plaintiff demanded surrender of possession; the first defendant stated he was ready and willing to surrender possession provided he was paid munpattom and improvements (the plaintiff did not pay these sums).
  • Submitted that the first defendant's statement that he was willing to surrender constituted an agreement by the first defendant to give possession and thus the first defendant could not now rely on absence of a notice to quit or termination of the tenancy.
  • At a later stage plaintiff's counsel disclaimed reliance on any right purportedly conferred by Section 14 and argued that the claim to possession was based on the landlord–tenant relationship and that the contractual relationship had been determined by the demand for surrender; counsel also contended the absence of any notice to quit was not raised below and hence could not be raised on appeal.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Krishna Setti v. Gilbert Pinto (1918) 36 M.L.J. 367; I.L.R. 42 Mad. 654 (Full Bench) The principles embodied in Sections 105–116 of the Transfer of Property Act may be applied to agricultural leases in the absence of special reason; in particular, agricultural leases should be treated as requiring termination by prescribed or reasonable notice. The Court relied on this Full Bench decision to hold that an agricultural lease (though excluded from those Transfer provisions by Section 117) must be treated as requiring termination by proper notice; hence termination of the tenancy by notice was a necessary prerequisite to successful claim for possession.
Umar Palaver v. Dawood Rowther (1918) 36 M.L.J. 367; I.L.R. 42 Mad. 654 Followed the principle that rules analogous to Sections 105–116 of the Transfer Act apply to agricultural leases in the absence of special reasons. Identified as a later decision following the same principle set out in Krishna Setti; used to support the proposition that notice/determination requirements apply to agricultural leases.
Bheema Bhatta v. Narayana Bhatta (1946) 2 M.L.J. 45 (Short Notes) Another instance of the Court following the principle that English law rules (embodied in the Transfer Act sections) may apply to agricultural leases. Referred to as subsequent authority consistent with the Full Bench rule that agricultural leases require termination by notice in ordinary circumstances.
Venkatappier v. Ramaswami Iyer (1919) 10 L.W. 137 Order 41, Rule 2 of the Code: appellant shall not, except by leave of the Court, urge a ground not set forth in the Memorandum of Appeal; appellate Court not confined to grounds set forth. Cited in discussing whether a point not taken below (absence of notice to quit) could be raised in appeal; the Court observed that Order 41, Rule 2 does not strictly confine the Court from considering additional grounds and noted that in the present Letters Patent Appeal the absence of notice to quit was included in the memorandum of appeal.
Muthu Reddi v. Muthuvenkatapathi Reddi (1919) 10 L.W. 137 Principle that where a plaint expressly alleges that notice to quit had been given and that allegation is uncontroverted, appellants cannot later challenge that point for the first time on appeal. Distinguished by the Court: those cases involved an uncontroverted pleading that notice had been given, which is not the situation here; therefore they do not prevent the present defendant from raising the absence of notice to quit on appeal.
Raman Menon v. Secretary of State for India in Council (1924) 20 L.W. 433 Similar to Muthu Reddi: where notice to quit was expressly alleged in the plaint and not denied, appellants could not take the point for the first time on appeal. Referred to and distinguished for the same reason as Muthu Reddi: the present case lacks an allegation that notice to quit was given, so those authorities do not bar raising the point on appeal.
Abdulla Ravuttan v. Subbarayar (1878) I.L.R. 2 Mad. 346 Holds it was competent for the Court to entertain an objection in a second appeal which had not been raised earlier. Referred to in support of the proposition that an appellate Court may entertain points not raised below; the Court relied on such authorities to permit the first defendant to raise the absence of notice to quit.
Subbarayudu v. Narasimharao (1924) 47 M.L.J. 558 In an ejectment suit the plaintiff must prove not only that the defendant is his tenant but also his right to eject; to prove right to eject, plaintiff must show tenancy was terminable and validly terminated. The Court regarded this decision as directly applicable: the plaintiff had the burden to establish termination of the tenancy before claiming eviction; because the plaintiff failed to prove termination, he failed to make even a prima facie case for eviction and the decree could not stand.

Court's Reasoning and Analysis

The Court proceeded by examining statutory context and precedent and then applied the legal principles to the facts.

  1. Statutory and precedential foundation:
    • The Court acknowledged that Section 117 of the Transfer of Property Act excludes agricultural leases from Sections 105–116, but relied on the Full Bench decision in Krishna Setti which held that the principles embodied in those sections apply to agricultural leases in the ordinary case. Thus rules requiring termination by prescribed or reasonable notice apply to agricultural leases in absence of special reason.
  2. Interpretation of Section 14 of the Malabar Tenancy Act:
    • The Court concluded that Section 14 does not itself confer upon the landlord any new right to obtain eviction. Rather, it limits eviction to the specified grounds (Nos. 1–7) and furnishes protection to the tenant. Section 14 does not displace the ordinary law requiring termination of a tenancy before a landlord may obtain an order for possession.
  3. Analysis of the facts against the legal requirements for eviction:
    • The tenancy was a yearly tenancy commencing 15 May (date of original lease), and a notice terminating a tenancy from year to year must expire on the yearly date. The plaint did not allege any notice to quit nor termination of the tenancy; no registered notice had been given according to the first defendant's denial.
    • A simple demand for surrender of possession is not equivalent to a notice to quit; such a demand corresponds only to repeated demands for payment in other contexts and does not terminate the tenancy.
    • The first defendant's statement that he would surrender possession if paid munpattom and value of improvements was a conditional offer, not an unconditional admission or acceptance; because the plaintiff never paid, there was no acceptance and thus no agreement that would have had the effect of terminating the tenancy.
  4. On procedural point (raising new point on appeal):
    • The Court examined authorities on whether a point not taken below may be raised in appeal. It distinguished cases where notice to quit was expressly pleaded and uncontested (in which circumstances an appellant could not be allowed to raise the contrary for the first time). The Court found that, in the present case, the absence of notice to quit was a matter appropriate for consideration on appeal and in fact was included among the grounds in the memorandum of appeal in this Letters Patent Appeal.
    • The Court also relied upon authorities (e.g., Abdulla Ravuttan and Subbarayudu) establishing that an appellate Court may entertain an objection in a later appeal that was not pressed earlier, particularly where the point goes to a condition precedent to the plaintiff's right to relief.
  5. Conclusion from analysis:
    • Because the plaintiff had not alleged or proved termination of the tenancy (no notice to quit and no acceptance of the conditional offer to surrender), he failed to establish his right to eject. The absence of termination went to the root of the plaintiff's claim and meant the plaint did not disclose any cause of action to recover possession.

Holding and Implications

Holding: The Court allowed the Letters Patent Appeal and set aside the decree of the trial Court. The essential ruling is stated as:

Letters Patent Appeal allowed; the decree of the trial Court is set aside.

Implications and direct effects

  • Direct effect on the parties: The plaintiff is not entitled to an order for possession because he failed to establish termination of the tenancy by notice to quit or otherwise; consequently, the trial Court's decree for possession (conditional on payment of munpattom and improvements) cannot stand and has been set aside.
  • Costs: The Court declined to award costs in favour of the appellant for succeeding on a point not previously taken; it would not be just to award costs to him at the expense of the unsuccessful plaintiff respondent.
  • Broader precedent: The opinion applies and reaffirms existing principles (notably those in Krishna Setti and Subbarayudu) regarding the need to terminate an agricultural tenancy by notice before obtaining possession and the protective scope of Section 14. The judgment does not purport to create a novel legal principle beyond applying and clarifying those authorities.

Source: Extracted and summarized strictly from the provided opinion text. No information beyond that text has been added.

Show full summary ...

    K. Narayanan Nair v. A. Kunhan Mannadiar And Others.

    1. This is a Letters Patent Appeal from the decision in second appeal of Shahabuddin, J. The subject-matter is four items of landed property to which the Malabar Tenancy Act (hereinafter called " the Act ") applies. The property had been leased by the jenmi to the Peralikunnath tarwad ; at the end of the term of the lease (whenever it may have been), the lands were thereupon held upon a tenancy from year to year ; on May 15, 1912, the tarwad sub-leased the property to defendants 2 to 5, who assigned their interest to the first defendant, who, in turn, sub-let item 4 of the four items of property to defendants 6 to 12; the tarwad fell into arrear with the rent due to the jenmi, who assigned those arrears to the plaintiff; he obtained a decree for the amount of those arrears and, in execution of his decree the rights of Peralikunnath tarwad were sold and purchased. by the plaintiff; whereupon, in effect, he stood in the shoes of the tarwad. In the suit in the Court of the District Munsiff of Walluvanad, out of which this appeal arises, the plaintiff claimed from defendants 1 to 12 possession of the four items of property and for arrears of rent and mesne profits. The suit was decreed, possession being directed to be given upon the plaintiff paying some prescribed amounts by way of munpattom and for improvements. An appeal, by the first defendant, to the Court of the Subordinate Judge of Ottapalam, was dismissed, but the amount payable for improvements by the plaintiff was increased. The second appeal by the first defendant to this Court was dismissed by Shahabuddin, J. No appeal was preferred by defendants 2 to 12. This is an appeal by the first defendant alone.

    2. It was not suggested that the original lease contained a provision by which the demise became terminated or forfeited upon the lessee sub-letting the property or any part of it or upon rent falling into arrear.

    3. Prior to instituting the suit, the plaintiff demanded surrender of possession of the property ; the first defendant informed the plaintiff that he was ready and willing to surrender possession if he were paid for munpattom and improvements, which amounts were not paid by the plaintiff. Those two matters are pleaded in the plaint and in the written statement of the first defendant respectively ; in his written statement, the first defendant denies any demand was made upon him for surrender of possession and he alleges that he was given no registered notice by the plaintiff. In his additional written statement, the first defendant, alleges that he is entitled to a permanent right (or fixity of tenure) to the property pursuant to the Act (Section 10 of which is the relevant provision). The plaint does not allege that, prior to the suit, the tenancy had been duly determined by notice to quit given by the plaintiff. In the trial Court, the suit was treated as if the plaintiff was the lessor and the defendants were the lessees, in the appellate Court and before us, as if the first defendant was the lessee of the plaintiff lessor.

    4. In the Courts below and in second appeal to this Court the questions arising appear to have been considered from the aspect whether the first defendant was a" cultivating verumpattamdar " as defined by Section 3(w)(o) of the Act and in respect of whom Section 14 applies. In substance, the findings were that since the first defendant had sub-let item 4, of the four suit items of property to defendants 6 to 12 he was not cultivating the whole holding and consequently was not a cultivating verumpattamdar entitled to the benefits conferred by the Act, including fixity of tenure prescribed in Section 10.

    5. It is common ground that the property in suit is agricultural land. Section 117 of the Transfer of Property Act expressly excludes the provisions of sections 105 to 116 of that act from application to leases for agricultural purposes, except in circumstances prescribed in Section 117, which do not exist in the present instance. It was, however, held by a Full Bench of this Court in Krishna Setti v. Gilbert Pinto(1918) 36 M.L.J. 367: I.L.R. 42 Mad. 654 (660) that the principle embodied in the excluded sections apply to agricultural leases. At page 660 of the report, Sir John Wallis, C.J., observed in his Judgment, with which Napier, J., and Kumaraswami Sastri, J., agreed as follows:

    The fact that agricultural leases such as this one are excepted from the operation of Sections 105 to 116, Transfer of Property Act does not, in my opinion affect the present question. The Act was framed by eminent English lawyers to reproduce the rules of English law, in so far as they are of general application and rest on principle as well as authority, and its provisions are in my opinion binding on us as rules of justice, equity and good conscience, when we have to deal with agricultural leases in the absence of any special reason for not applying them. The legislature wisely, in my opinion, if I may say so, has refrained from making these sections applicable proprio vigore to agricultural leases for fear of unnecessarily interfering with settled usages which it is undesirable to disturb. But in the absence of special reasons, there is no ground for applying a different rule in the cases of agricultural leases and there are many decisions to that effect.

    6. The above decision and the principles laid down by it have been followed in this Court on subsequent occasions, for instance, in Umar Palaver v. Dawood Rowther (1918) 36 M.L.J. 367 : I.L.R. 42 Mad. 654 (660) and in Bheema Bhatta v. Narayana Bhatta (1946) 2 M.L.J. 45 (Short Notes).

    7. One of the principles which the Full Bench decision of this Court, cited above, laid down should have application in respect of an agricultural lease, is that the lease must be determined by some prescribed notice or at any rate by reasonable notice, that is to say, a notice giving a reasonable time to the tenant to vacate his holding. At the date of the institution of the suit, out of which this appeal arises, the tenancy was one from year to year, commencing from May 15, since it was upon that date that the original lease for years was granted, and when the subsequent tenancy from year to year commenced after the termination of the term of years, and that date would be the one upon which the yearly tenancy would determine.

    8. It is convenient at this juncture to make some observations with regard to a provision of the Malabar Tenancy Act. It would seem that it has been generally thought and believed that Section 14 of the Act confers upon a lessor of land, to which the Act applies, a right to recover possession of the holding immediately upon the happening of one or move events specified in the section. The relevant provisions of section 14 are that:

    No suit for eviction of a cultivating verumpattamdar from his holding shall lie at the instance of his landlord except on the following grounds:

    (1) denial by the tenant of the landlord's title ;

    (2) wilful waste committed by the tenant;

    (3) non-payment of rent;

    (4) collusion with a stranger to encroach on the holding or part of it adversely to the landlord ;

    (5) the holding being required by the landlord for his own cultivation, or for that of any member of his family, or for (6) building purposes ;

    (7) failure by the tenant to pay an advance of rent or to give security when directed so to do by a Court, pursuant to Section 13(3).

    9. A proviso to Section 14 limits eviction to the part of the property encroached upon or required for building under Clauses (4) and (6).

    10. Section 14 does not, in my view, confer upon a landlord any right to obtain eviction either upon the happening of the events specified in it or in any other circumstances. It provides that no eviction shall lie except upon the grounds specified in the section. The section confers no right whatever upon the landlord ; it does confer rights upon a tenant inasmuch as he can resist a claim for eviction brought by the landlord save when the claim is made on a ground set out in Section 14; for instance, it would seem, that upon expiration by effluxion of time of a term of years of the land to which the Act applies, the landlord being unwilling for the tenant to remain, so that a tenancy from year to year, after the expiration of the term of years, does not arise, a suit for possession could be resisted by the tenant in the absence of the landlord being able to show the existence of one of the grounds Nos. 1 to 7 contained in the section. Section 14 does not change, or in any way interfere with, the ordinary law, save to the extent to which it provides protection to the tenant. Before a landlord can sue for eviction of a tenant or for possession of the land occupied by the tenant, he must terminate the tenancy. That is done either by effluxion of time or by determination of a lease providing for a forfeiture or by a notice to quit in accordance with law. Section 14 in no way interferes with those provisions. Unless and until a tenancy or a lease is determined, a landlord is not entitled to obtain from a Court an order for eviction or possession.

    11. In paragraph 12 of the plaint, it is alleged that possession of the suit property together with mesne profits, had not been given in spite of several demands made to the defendants, both directly and through others, that they should surrender possession of the property. As already pointed out, it is denied by the first defendant that any demand was made by the plaintiff upon him, and paragraph 7 of the written statement, containing the denial, goes further by alleging that no registered notice of any kind had been sent to him. A demand for possession of immoveable property occupied by a tenant is not a notice to quit; in the form in which the allegation is made in paragraph 12 of the plaint, it corresponds to the plea which one finds in a plaint in a suit on a promissory note, that payment has not been made in spite of repeated demands. Apart from the allegation of a demand or demands for possession, it is not alleged anywhere either that notice to quit, so as to terminate the tenancy, had been given or, indeed, that the tenancy or occupancy right had ever been determined. Since the lease date is May 15, as pointed out previously, a notice terminating the tenancy, which clearly was one from year to year, must expire on that day, whatever period of notice was required, whether six months or a less period is necessary in a notice to quit terminating an agricultural lease. No such notice was ever in fact given.

    16. In the course of argument, learned counsel for the plaintiff-respondent contended that, since the first defendnat had stated his willingness to surrender the holding, thereby he had agreed to give possession of it to the plaintiff and he could not now rely upon the absence of any notice terminating the tenancy or of the failure to terminate the tenancy by any means whatever. A statement by the first defendant to the plaintiff, that he had always been ready to surrender possession of the four items of property if he were paid munpattom and the value of improvements, is set out in paragraph 7 of his written statement. That statement was not a bare acknowledgement, of any right of the plaintiff, but it was made contingent upon the plaintiff paying the munpattom and improvements, in which event the first defendant was prepared to give up occupation of the holding. Those sums were never paid. The Statement in my opinion, was no more than an offer which could not have effect save upon its acceptance by the plaintiff and his making the payment required ; the payment not having been made there was no acceptance of the offer, consequently, there was no agreement between the parties entitling the plaintiff to possession and there was no obligation upon the first defendant to afford possession.

    17. During the latter part of his argument, learned counsel for the plaintiff disclaimed that his client was seeking to exercise any right, which might at one time thought to have been given by Section 14 of the Act. He contended that the claim to possession was made solely by reason of the position between the parties of landlord and tenant, and that the contractual relationship between them had been determined by the demand for surrender of possession. Previously, I have pointed out that there was no termination of the contractual relationship and the tenancy between the parties. Learned counsel further contended that the absence of any notice to quit, was not raised in any of the Courts below or in second appeal, and consequently this Court, in Letters Patent Appeal, cannot hear the first defendant upon that point and he is not entitled to raise it and must be prevented from raising it,

    18. In support of the contention that this Court cannot entertain the argument relating to the failure to give, and the absence of, a notice to quit, reference was made to some authorities. In Venkatappier v. Ramaswami Iyer (1919) 10 L.W. 137, it was pointed out that Order 41, Rule 2 of the Code provides that the appellant shall not, except by leave of the Court, urge or be heard in support of any ground of objection not set forth in the Memorandum of Appeal but the appellate Court shall not be confined to the ground set forth.

    19. With reference to that provision, it was observed in the judgment of the Division Bench that it was not thought that the Court was bound in second appeal to do more than decide whether the lower appellate Court's decision was wrong. It is to be noticed that there is no suggestion that the appellate Court, in second appeal, could not entertain a ground not set forth in the memorandum of appeal; in any event, that is not the position which arises in the present instance, since the absence of notice to quit is one of the grounds contained in the memorandum of appeal in this Letters Patent Appeal. In Muthu Reddi v. Muthuvenkatapathi Reddi (1919) 10 L.W. 137 and in Raman Menon y. Secretary of State for India in Council (1924) 20 L.W. 433, the plaint expressly alleged notice to quit had been given. The correctness of that allegation, in each case, was not denied ; but in appeal it was sought to be challenged. In the former case, it was observed at page 173 of the report that in these circumstances, the appellants could not put forward such a contention. for the first time. In the other decision, Krishnan, J., observed no more than that, ordinarily, an appellant should not be allowed to take a point which had not been taken in the first Court. In my view, none of the decisions cited can in any way prevent a point of law being taken by this defendant in appeal which was not taken either at the trial Court or in the lower appellate Court or in second appeal.

    20. There are decisions of this Court to which the learned Government Pleader, appearing for the appellant, referred. In Abdulla Ravuttan v. Subbarayar (1878) I.L.R. 2 Mad. 346, it was held that it was competent to the Court to entertain an objection in second appeal which had not been raised earlier. In Subbarayudu v. Narasimharao (1924) 47 M.L.J. 558, it was observed in judgment of the Division Bench delivered by Spencer, J., at page 561 as follows:

    It had been made clear in two authorities cited, that when a plaintiff seeks to eject a defendant from possession on the ground that the latter is his tenant whose tenancy has been terminated, he must prove not only that the defendant is his tenant as alleged, if that is denied, but also his right to eject. In order to prove a right to eject, he must necessarily show that the tenancy is a terminable one and has been validly terminated. This onus is. unaffected by any defence of permanent rights of occupancy that the defendant may set up but fails to prove. The principle that in a suit for ejectment the plaintiff must first prove his right to eject before the onus is shifted to the defendant to prove that he has a permanent right of occupancy has been re-affirmed.

    21. The decision last mentioned is directly in point in the present instance. The first defendant asserted permanency of tenure, or, as it is called in Section 1 o of the Act " fixity of tenure." But, nevertheless, the plaintiff, as landlord, had to accept and discharge the burden of establishing that he was entitled to possession of the premises by reason of the termination of the tenancy. He did not establish termination of the tenancy and it has not been determined. It must follow that he has not shown even prima facie case for an order being given in his favour to evict the first defendant. The absence of notice to quit and of termination of the tenancy goes to the root of the plaintiff's claim for possession, and when that has neither been alleged nor established, in my view, it destroys the right, if ever there was one, for the plaintiff to succeed in his suit and to recover possession. Indeed, he never could have had a right to possession at all, and the plaint which does not plead termination of the tenancy, which undoubtedly and admittedly did exist, does not disclose any cause of action.

    22. In my view, the appellant should not be prevented from raising now, what he did not do below, the point regarding termination of the tenancy, since that necessity is a condition precedent to the plaintiff succeeding. The tenancy was not determined, and the plaintiff in consequence is not entitled to an order for possession. For the reasons given, in my opinion, this appeal must be allowed and the decree of the trial Court set aside. As regards costs, since the appellant has succeeded upon a point not heretofore taken, it would not be just to award any costs to be paid to him at the expense of the unsuccessful plaintiff respondent.

    Rajamannar, J.

    22. I entirely agree.

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    K. Narayanan Nair v. A. Kunhan Mannadiar And Others.
    (Sep 16, 1947)