Decided on August 10,1953



Chandra Reddi, J. - (1.) The question to be answered by the Full Bench. is whether a provision in a Kanom demise that a tenant shall pay to his landlord one-third of the price realised by leasing out the full growing forests for cutting trees is unenforceable as contravening the provisions of the Malabar Compensation for Tenants' Improvements Act (hereinafter to be referred to as the Act). The reference was necessitated by a conflict between two Bench decisions of this Court in -' Neelakantan v. Anantanarayana', AIR 1934 Mad 718 (A) and --'Sreedevi v. Kurikkal', AIR 1939 Mad 934 (B).
(2.) The suit out of which this reference arose was instituted in the Court of the District Munsif of Palghat for the recovery of Rs. 1336-12-11 being the one-third share of the amount realised by defendants by granting a felling lease of the reared forest comprised in the holding for Rs. 3800 and interest thereon The properties in question belonged in jenm Olappamanna Mana of which the plaintiffs are receivers appointed in O.S. No. 27 of 1938 Sub Court, Ottapalam, the defendants' family having held these properties on kanom demise ever since 1872. Part of the holding consists of a forest where fuel trees grow spontaneously and the mode of enjoyment of this forest is by granting a felling licence by the demises in four or five years. The material terms of the lease are as follows: "It is further agreed that the reared forests existing in properties items Nos. 9, 10, 11 and 12 of the schedule have to be looked after by me and at the time when they are to be felled and sold away one-third of the sale proceeds thereof should be paid to the Mana by way of jenmabhogam (Jenmi's share)." 'The suit was brought on the strength of this provision in this document alleging that the defendants had realised a sum of Rs. 3800 by granting a felling lease of the forest. The suit was resisted on the grounds that the stipulation for the payment of 'jenmabhogam' to the jenmi offends against the provision of Section 19 of the Malabar Compensation for Tenants Improvements Act and that the lease was granted not for Rs. 3800 but only for Rs. 900. The Courts below decreed the suit finding that the consideration fixed for felling trees was Rs. 3800 as alleged by the plaintiffs and not Rs. 900 and that the term for payment of jenmabhogam is enforceable as it is not hit at by Section 19 of the Act,
(3.) In the second appeal the only question agitated is as to the validity of the said provision in the lease. When it came on before our learned brother Satyanarayana Rao J. he felt that the case had to be decided by a Full Bench in view of the conflict mentioned above.;

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