KUNHICHATHAPPAN NAMBIAR KAIMAL Vs. KRISHNAN
LAWS(KER)-1962-3-23
HIGH COURT OF KERALA
Decided on March 12,1962

KUNHICHATHAPPAN NAMBIAR KAIMAL Appellant
VERSUS
KRISHNAN Respondents

JUDGEMENT

- (1.) This second appeal arising in execution raises a short question whether a melvaram right is liable for attachment and sale in execution of a decree. The judgment debtor appellant unsuccessfully contended before the lower courts that it was not attachable because of S.60(f) of the Code of Civil Procedure. The same contention is raised in second appeal as well.
(2.) Only two documents were marked in evidence before the lower courts, Ext. A1 being a kanom document executed by the judgment debtor in favour of a third party and Ex. B1 being the judgment of the Madras High Court in S. A. No. 1055 of 1894. No evidence appears to have been adduced to show the real nature of melvaram right; that is, whether it was a service tenure or not. Before me a certified copy of the judgment in O. S. No. 422 of 1892 on the file of the Court of the District Munsiff of Taliparamba, which ultimately went up to the High Court in S. A. No. 1055 of 1894 has been produced. That was a suit between the judgment debtor's predecessor, i. e., the successor of the original grantee, and the successors of the original grantor of the melvaram right. In considering Issue No. 6 in that suit, namely, whether the latter were legally bound to pay the melvaram to the former, the learned District Munsiff held that the ancestors of the grantee were the Chief Feudatories under the Northern Kolathiries and as such they were at one time the protectors of trade and the guardians of peace. According to the learned District Munsiff the melvaram right was a service tenure for such services rendered by the grantee and his ancestors. Without pronouncing any final opinion regarding the origin of the melvaram right, I would accept this observation of the learned Munsiff and proceed to consider the question in dispute on the basis that the melvaram right involved in this case originated as a service tenure.
(3.) It is admitted that no service is being done now; and the point for consideration is whether that has any bearing on the question in dispute. There are decisions of the Privy Council to the effect that in the case of service tenures even if the services become obsolete, the grantor cannot resume the lands: see Alexander Jones Forbes v. Meer Mahomed Tuquee (13 MIA 438) and Kooldeep Narain Singh v. The Government (14 MIA 247). The underlying principle appears to be that in every case the right to resume must depend in a great measure upon the nature of the particular tenure or the terms of the particular grant; that there is a clear distinction between the grant of an estate burdened with a service and the grant of an office the performance of whose duties are remunerated by the use of certain lands; and that in the latter case the lands may be resumed if the duties need no longer be performed, but in the former the lands cannot be resumed even if the services become obsolete. For the sake of argument, I would accept that the melvaram involved in the case before me is a service tenure, which cannot be resumed even if the services have become obsolete.;


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