Decided on October 06,1944

Parambath Chattankandy Alias Ponnambalath Parapravan Mammu Haji Appellant
Nitumkandathil Koyakutti Respondents


- (1.) THE plaintiff who has failed in both the lower Courts in his attempt to set aside a lease granted by the preceding karnavan is the appellant before me. The tarwad possesses among other properties an extensive forest in the Western Ghats which was hot explored till the respondent appeared on the scene and offered to take a felling contract of the trees in that forest. There were three documents which were executed in favour of the defendant in succession, Exs. D -3, D -2 and D -1. Ex. D -3 was executed on the 15th March, 1941, for a, period of three years. On the 30th June; 1941, about 3,1 months later owing to certain difficulties which are mentioned in Ex. D -2, a fresh document was executed for a period of three years. After the defendant worked in the forest for sometime and when further difficulties were found, the suit document was executed on 5th March, 1942, for a period of ten years (Ex. D -1). The plaint was filed on the 1st April, 1942, within a month after Ex. D -1 for a declaration that the lease is not binding on the tarwad and for an injunction restraining the defendant from exercising any right under Ex. D -1, The wording of the prayer is that the Court may be pleased to restrain the second defendant from doing anything in the schedule properties on the strength of the karar granted to him by the first defendant. The first defendant was" the lessor karnavan and the second defendant his lessee. The first defendant died during the pendency of the litigation and the plaintiff has become the karnavan of the tarwad. Both the lower, Courts have held that the lease is a proper one and that it is binding on the plaintiff and the tarwad. The main attack of Mr. Govinda Menon, the learned advocate for the appellant is that the case comes under Section 8(1) of the Mapilla Marumakkattayyam Act, XVII of 1939, and that under that section the transaction is invalid for the reason that the written consent of the majority of the major members of the tarwad was not obtained for Ex. D -1. If that is so the appellant is clearly entitled to succeed. Section 8(1) runs as follows: Except for consideration and for tarwad necessity or benefit and with the written consent of the majority of the major members of the tarwad, no karnavan shall sell immovable property of the tarwad or mortgage with possession or lease such property for a period exceeding twelve years.
(2.) AS Mr. Sitarama Rao, the learned advocate for the respondent, has pointed out, Section 8(1) refers to sales, mortgages and leases. A sale or a mortgage with possession or a lease for over twelve years are the only transactions prohibited. In the present case Mr. Govinda Menon was not able to put his case higher than that Ex. D -1 created an interest in immovable property. It is not his case that the transaction in question amounts either to a sale or a mortgage or a lease for over twelve years. In this case the period is admittedly ten years; it is not a mortgage and it is clear from a consideration of the decisions in Semi Chettiar v. Santhanathan Chettiar , (1896) 6 M.L.J. 281 : , I.L.R. 20 Mad. 58 and Mummikutti v. Puzahkkal Edom, I.L.R. (1906) Mad. 353 that this is not a lease either. It is at best a licence or a contract that for a period of ten years the defendant shall have the right to cut and carry away certain trees of a particular girth. Section 8(1) of the Act therefore has no application and it is unnecessary to deal with the several decisions cited by Mr. Govinda Menon to show" that the document in question creates an interest in immovable property. Even if it be held that it creates an interest in immovable property it is not a sale or a mortgage or a lease for over twelve years, and therefore it is valid.
(3.) THE only other question is whether in the circumstances of the case the lease is beneficial and binding on the tarwad. This question is one of fact. All the relevant circumstances are discussed by the District Judge at great length. This is a virgin forest. Various difficulties were found in the working of it; roads had to be made, bridges had to be constructed over channels and even rivers; and it was found in 1941 that the period which had been fixed first under Ex. D -3 and later under Ex. D -2 was quite insufficient to enable the defendant to work the forest or to recoup the large sum of money advanced by him under the first document as consideration. The length of time to be given in such cases must largely depend upon the circumstances of each case., Having regard to the various considerations set out in the judgment of the lower Courts I cannot say that any ground is shown for interference in second appeal. The second appeal is dismissed with costs. Leave to appeal is refused.;

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