P.T. Raman Nayar, J. -
(1.)IN these cases the validity of section 11A of the Kerala Agriculturists Debt Relief Act, 31 of 3958, which provides for the premature termination of melpattoms granted by an agriculturist before the commencement of the Act for periods of two years or more on application made by the grantor, is challenged by the grantees, melpattomdars as they are called. The original petitions are such applications withdrawn to this court under Article 228 of the Constitution while the revision petitions and the appeal are from orders made by subordinate courts on such applications. The cases have been referred to a Full Bench because of the general importance of the questions involved. Section 11A runs as follows:
11 A. Special provisions regarding certain melpattoms -
(1) This section applies to all subsisting melpattoms granted by an agriculturists before the commencement of this Act for periods of two years or more.
(2) Notwithstanding that the period of the melpattom has not expired, the person who granted the melpattom shall, on application, be entitled to terminate the melpattom on depositing into court one -third of the advance outstanding.
Explanation: -For the purpose of this sub -section "advance outstanding" means an amount which bears to the total amount of the advance the same proportion as the unexpired term of the melpattom bears to its full term.
(3) If there is dispute regarding the amount of the advance outstanding, the court may provisionally determine the amount after such summary enquiry as it deems fit and direct the deposit of the deficit, if any. On such deposit, the rights of the melpattomdar to collect the usufructs shall cease and the person who granted the melpattom shall be entitled to take the usufructs.
(4) As soon as may be after the provisional determination of the amount, the court shall, after due enquiry, finally determine the amount and pass orders -
(i) for the deposit of the deficit or the adjustment or refund of the excess, if any, as the case may be; and
(ii) directing the person who granted the melpattom to deposit the balance amount, if any, in ten equal half -yearly instalments together with interest which accrued due on such balance outstanding till the date of payment of each instalment at five per cent per annum, simple interest, the first installment being payable within a period of six months from the date of the first deposit or the date of the provisional determination of the amount of advance under sub -section (2) or sub -section (3) as the case may be.
(5) The melpattomdar shall have a charge on the land, the usufructs from which formed the subject of the melpattom, for the amount due, and such charge shall have priority over all other charges created after the date of the melpattom.
(6) Court fees on the amount outstanding after the deposit under sub -section (2) shall be paid by the applicant before the recording of evidence or, where no such evidence is recorded before the final determination under sub -section (4).
(7) An order passed under sub -section (4) shall also direct the sale of the land on which charge has been created under sub -section (5) for realising any amount due, and such order shall be deemed to be a decree.
And, "melpattom" -the Act itself spells the word differently in different places -is thus defined in section 2 (ff):
melpattam means any transaction relating only to the usufructs of trees for a specific period in recoupment of an advance made or promised.
(2.)THE deeds in which the transactions in question are embodied call themselves melpattom deeds and the transaction, a melpattom. A melpattom (literally, a lease of what is above the surface) is a lease of trees with no interest in the land, ordinarily enuring for one year -see Sundara Iyer's, Malabar and Aliyasanthana Law, pages 290 and 453 and C. Ramachandra Aiyar's, A Manual of Malabar Law, page 42. The principal argument advanced on behalf of the melpattomdars is, however, that the transactions we are considering, though called melpattoms, are really sales of goods, namely, coconuts, in one case arecanuts, as well, existing and future. The contention is that the transactions do not come within the definition of melpattom in section 2 (ff) which postulates a debtor -creditor relationship between the grantor and the grantee. If, however, they do, then section 11 A is beyond the legislative competence of the State and is also bad for offending Articles 14, 19, 301 and 304 of the Constitution.
The melpattom deeds in the original petitions are in similar terms and they lend themselves best -though by no means well enough -to the contention put forward. That in O.P. No. 2549 of 1962 may be translated (rather freely) thus:
Melpattom deed executed by Kunjikutty, son of Kunken, mason, to Balan, son of Narayanan, merchant. In the property (described) belonging to me on kuzhikanam right and in my possession, the pattam for the coconut produce meaning mature nuts and excluding tender nuts, fronds and other produce of the trees) of all the coconut trees and plants excluding the one tree south of the house has been fixed at Rs. 100/ - per year and (the property) given to you on melubhayapattom for a period of six years from this date. Hence, excluding the one coconut tree mentioned above you may enjoy the produce of all the remaining coconut trees and plants in the property for the period of six years mentioned above ending with the 7th Thulam 1139 M. E. After the above said period I shall myself take and enjoy the produce. I have received an advance from you the melubhayapattom amount of Rs. 600/ - for the above mentioned period of six years for discharging the mortgage on the property and for other purposes. Tax, purapad, etc., will be paid by me during the above period.
(3.)THE deed in the second appeal may be taken as illustrative of the deeds in the remaining cases. (The deed in C.R.P. No. 1001 of 1961 is not in the record. It appears to have been put in evidence in a prior case under section 9 (3) of the Act. But the order of the lower court shows that it was an ordinary melpattam deed in respect of coconut trees for a period of eight years at a rent of Rs. 100/ - per year paid in advance):
Melpattom deed executed in favour of Abdulla, son of Ayyattu, Merchant, by Narayanan alias Krishnan Nambiar, agriculturist. All the cocoanut trees in the northern portion of the properties (described) held by me on kuzhikanam right are hereby given to you on melpattom for a period of ten years from today up to the 23rd Mithunam 1143. Accordingly you shall enjoy the aforesaid trees from to -day on melpattom protecting and nourishing them Of the purapad of Rs. 55/ - per annum stipulated as payable by you I have to -day received a sum of Rs. 510/ - in advance for discharging a debt charged on the property and for making improvements. This sum of Rs. 510/ - shall be adjusted towards the purapad at the rate of Rs. 51/ - per year for ten years and the balance of Rs. 4/ - per year shall be paid by you to the jenmi on my behalf. On the 23rd Mithunam 1143, the date of expiry of the ten year period, you shall relinquish the melpattom right in my favour after taking the mature cocoanuts.
X X X
By this lease the land is not put in your possession.