GOPALA PANIKKAR Vs. KUNHIKUTTY PIZHARASYAR
HIGH COURT OF KERALA
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(1.) The appellant, having obtained an assignment of the landlord's rights on November 4, 1942, had instituted this suit in 1942, obtained a decree on July 31, 1944, for resumption of the property from the respondents who had been holding the same under a kanom of 1877 followed by a Purakkadom of 1918, and in execution thereof got delivery of the property on August 3, 1945. The Malabar Tenancy Amendment Act, XXII of 1956, having been, passed on October 27, 1956, the respondents filed E. A. No. 318 of 1957 for redelivery of the properties to them under S.5(2) of the Act. As item No. 3 of the properties involved has been already transferred to the 3rd respondent he was also made a party to the application. The executing court overruled the objection of the appellant and ordered redelivery of properties to the respondents, excepting item No. 3. The appeal before the Subordinate Judge failed. Therefore this second appeal.
(2.) Counsel for the appellant contends that the resumption of the property was for the bona fide primary needs of the appellant and his family and therefore no redelivery may be ordered. According to him, the expression "family" in the relevant S.20(5) of the original Malabar Tenancy Act, corresponding to S.25(4) of the Act as amended in 1954, would include wife and children. That contention has been repelled by the courts below. The Munsiff has observed: "The 1st respondent has admitted in the box that if his maintenance alone were to be taken to account then the income (of his other properties) would be sufficient for the purpose. His hardship in maintaining his children and grandchildren, although they may be dependent upon him, is not a point to be considered". It is that view of law that is in challenge in this second appeal.
(3.) The Malabar Tenancy Act, 1929, even as it stood originally, contained an Explanation to the concerned section which read thus:
"In the case of a landlord governed by a law other than the Marumakkathayam law, the wife or husband and the children of the landlord shall be deemed to be members of the landlord's family having a proprietary and beneficial interest in the holding".
This Explanation has been construed by the courts below to exclude the wife and the children of a Marumakkathayee from his family. I do not think it to be correct. In the case of a Christian or Muslim landlord, neither his wife nor children can have any proprietary or beneficial interest in his property during his lifetime, yet they would be, under the aforesaid Explanation "deemed to be members of the landlord's family having a proprietary and beneficial interest in the holding." It is then obvious that the proprietary & beneficial interest contemplated by the Act is only the chance of using its produce for maintenance. No doubt the Explanation relates to landlords other than those following the Marumakkathayam law. In my view, the exception is only from the imperative of the section probably because of the then practice in many Marumakkathayam tarwads of women with their children living in their tarwads, and not with their husbands, when the husband had not to maintain them. If in a particular case the wife or children are found actually dependent on a Marumakkathayee landlord and maintained by him, there is nothing in the Explanation prohibiting their being counted as members of his family. Any other construction would, I am afraid, involve the provision in unreasonable discrimination, particularly since S.13 of the Madras Marumakkathayam Act, XXII of 1933, which came into force on August 1, 1933, commands: "The wife and minor children other "than married minor daughters under the guardianship of their husbands, "shall be entitled to be maintained by the husband or the father, as the case "may be". It is averred by the appellant in his reply to the respondents' motion under S.5(2) that he has been always living with his wife & children who had or have no property to count for their maintenance and were dependent on him solely. The view taken by the courts below that the section entitles resumption only for the personal maintenance of a Marumakkathayee landlord exclusive of his wife and children is not correct. I would therefore set aside the order of the courts below and direct an enquiry on the merits of the case of either party in the light of my observations above. There will be no order as to costs in this second appeal.;
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