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Judgment
Kuppuswami Aiyar, J.—The only three points for consideration in this appeal are: (1) whether a petition u/s 33, Malabar Tenancy Act (Act
14 [xiv] of 1930), is not maintain-able at the instance of a person who cannot enter into a contract, being insane; (2) what is the correct value to be
paid for the Kudiyiruppu; and (3) whether the lower Court is wrong in having treated the hudiyiruppu as a separable hudiyiruppu and allotting the
part so separated to the tenant. In this case it is not a case of enforcement of a contract. No doubt the words ""offer"" and ""acceptance"" are used in
the Act but that would not make the transaction a contract. It is the order of Court confirming the right in respect of the portion of a holding as
separable hudiyiruppu that confess the right. It is true the petitioner was insane; but then she was represented by a guardian, and if a guardian could
file a suit or contest a suit he could also file a petition u/s 38. In these circumstances, I do not think there is any force in the contention that the
petition was not maintainable u/s 38 because the petitioner was an insane person and, therefore, not entitled to enter into any contract. If this
contention were to be upheld, it would mean that no minor, no insane person or person under a disability can file a petition u/s 83 which cannot be
said to have been the intention of the framers of the Act. It is only a protection to the tenant, to the helpless man who is not able to find any
residence. Persons under a disability are likely to be at a greater disadvantage than other men, and I do not, therefore, think that the framers of the
Act intended that such persons should be denied the benefits of the Act. I, therefore, find this point against the appellant.
The other two points are both points arising out of questions of fact. The lower Court has found that the hudiyiruppu was a separable
hudiyiruppu and it has directed only a portion of the land to be given to the tenant. If the holding is not capable of being divided into two separate
hudiyiruppus then it must be considered to be a case of separate hudiyiruppu and the tenant''s request was that the whole holding should be given
to her as a hudiyiruppu. The order appealed against is an order in favour of the petitioner which has given only a portion of the holding as a
separable hudiyiruppu. There is, therefore, no force in the contention of the appellant either. With regard to the value of the hudiyiruppu, that again
is a question of fact. It depends on the market value and the Court has fixed the market value with reference to the report of the commissioner and
with reference to the prior dealings with regard to this property. In these circumstances the appeal has to be dismissed and is accordingly dismissed
with costs.