DAMODARAN Vs. SANKARANARAYANAN NAMBOOTHIRIPAD
LAWS(KER)-1963-10-12
HIGH COURT OF KERALA
Decided on October 08,1963

DAMODARAN Appellant
VERSUS
SANKARANARAYANAN NAMBOOTHIRIPAD Respondents


Referred Judgements :-

PADMANABHARU GOVINDARU NAMBOODIRIPAD VS. STATE OF KERALA [REFERRED TO]



Cited Judgements :-

MOHAMED VS. NARAYANAN NAIR [LAWS(KER)-1966-6-9] [REFERRED TO]


JUDGEMENT

- (1.)THE question before the courts below was whether the transaction embodied in Ext. P-1, dated 5th Kumbhom 1097 M. E. (16th February 1922 a. D.), under which the appellant judgment-debtor holds, is a kanam within the meaning of S. 2 (18) of Kerala Act 4 of 1961 so as to make him a tenant within the meaning of S. 2 (50), and, by reason of S. 6, render him immune from eviction in execution of the decree for redemption obtained against him by the respondent-decree-holder. In view of the enactment of Kerala Act 7 of 1963, the question now is whether the transaction is a kanam as defined by S. 3 (8) of that act, so as to make the appellant a tenant as defined by S. 3 (26) and require these proceedings for his eviction to be stayed by reason of S. 5.
(2.)IT is said on behalf of the appellant that Act 4 of 1961 is still in force in respect of land of the kind to which the suit property belongs (thanthu thettom) not having been struck down by the Full bench decision in Govindaru Namboodiripad v. State of Kerala (1962 KLT. 913) so far as such lands are concerned, and that it may, therefore, be necessary to consider whether the appellant is entitled to fixity under S. 6 of that Act in which case the execution application against him will have to be dismissed. But, in my view, the question of the applicability of Act 4 of 1961 can arise only if Act 7 of 1963 does not apply, in other words, only if the transaction in question is not a kanam within the meaning of the latter Act, but is a kanam within the meaning of the former Act, something which is not possible having regard to the definitions in the two Acts. Any transaction which is a kanam within the meaning of Act 7 of 1963 must necessarily be a kanam within the meaning of Act 4 of 1961, although the converse is not true in view of the addition of the words, "or by any other name" in the first paragraph of the definition in the former Act. If a transaction is a kanam within the meaning of Act 7 of 1963, any proceeding for the eviction of the kanamdar - and a proceeding like the present for delivery in execution of a decree for redemption would be such a proceeding - must necessarily be stayed under S. 5 of that Act. And this notwithstanding that, under the provisions of Act 4 of 1961, the proceeding would have to be dismissed in view of the fixity granted to the kanamdar tenant.
Ext. P-1 runs as follows: "nadappupanayadharam executed by Vasudevan Nilakantan namburippad in favour of Kuruvilla Kurien and Kuruvilla Ulahannan on the 5th kumbhom,1097. The nilam comprised in Survey No. 351/4 of Vadayar village, Vaikom Taluk and having an extent of 82 cents and seed capacity of 6 paras is our thanathu thettom land. This land which had been demised on kanam to the Payyappalli house people was subsequently reduced to our possession after a court sale and delivery. Thereafter, you are in possession under a verumpattom given to you for that year and have raised crops thereon. We are giving you this Nadappupanayam for the said land on a pattam of 27 Sirkar paras and 2 edangalis of paddy (equivalent to 21 paras of our Illom patta para) and are in receipt of a panayartham of Rs. 35 made up of, (1) Rs. 15 which had been given by the second party as advance rent ap3]mw on 12-11-1096 and, (2) Rs. 20 received in cash today. For the said sum of Rs. 35 you shall cultivate is the word used) the said land on payment at our Illom treasury of an annual michavaram of 23 paras, 4 edangalis of paddy (being the annual pattam less 3 sirkar Paras 9 edangalies of paddy adjusted towards interest on the panayartham) and 6 annas towards Onakazhcha and obtain receipt therefor. x x x it is further agreed that the arrears if any will be realised with interest on the paddy portion at the rate of 2 per 10 and money portion at the rate of 12 per 100 from you and charged on the panayartham and that when the panayartham is paid you shall surrender (the property ). "

It might be as well to extract the relevant portion of the definition of kanam in S. 3 (8) of Act 7 of 1963, namely, the first part of that definition, which applies to the entire State. The second part of the definition which applies only to the non-Malabar area (from which this case arises)is, as I have explained at some length in Second Appeals Nos. 548 and 583 of 1962, completely otiose since all that it does is to add (for the non-Malabar area) to the definition in the first part (applicable to the whole State) what is really included in that part. " (8) 'kanam' means the transfer for consideration in money or in kind or in both, by a landlord of an interest in specific immovable property to another for the latter's enjoyment whether described in the document evidencing the transaction as kanam or kanapattam or by any other name, the incidents of which transfer include- (a) a right in the transferee to hold the said property liable for the consideration paid by him or due to him; (b) the liability of the transferor to pay to the transferee interest oh such consideration unless otherwise agreed to by the parties; and (c) payment of michavaram or customary dues or renewal on the expiry of any specified period, xxx xxx xxx xxx"

(3.)IF we turn now to Ext. P-1 we find that it is a transfer for consideration by a landlord of an interest in specific immovable property to another, and that the incidents of the transfer include " (a) a right in the transferee to hold the property for the consideration paid by him; (b) the liability of the transferor to pay to the transferee interest on such consideration; and (c) the payment of michavaram and customary dues (Onakazhcha is customary dues- See the definition in S. 3 (2 ).)" The only other requirement to make the transaction a kanam is that the transfer is for the transferee's enjoyment - that the transaction is described in the document as a Nadappupanayam and not as a kanam or kanapattam is of no significance since, in terms of the definition, the transaction may be described as "kanam or kanapattam or by any other name", and it is not possible to read the words, "or by any other name" ejusdem generis with "kanam or kanapattam". The three incidents in clause (c) of the definition are in the alternative - any one will do. Two are here present, namely, michavaram & customary dues, and the absence of the third, namely, renewal, an essential incident according to the second part of the definition in S. 3 (8), does not matter since, as I have already said, a transaction, even of a non-Malabar area, which qualifies under the first part of the definition need not qualify under the second in order to be a kanam for the purposes of the Act.
On the question whether the transfer in this case was for the enjoyment of the property by the transferee, or was by way of security for the consideration advanced by him, there can be no doubt whatsoever that it was the former. The consideration advanced was only Rs. 35 of which as much of rs. 15 was by adjustment of the munpattam paid under a previous verumpattom, so that the amount received in cash was only Rs. 20. It is difficult to think of 82 cents of wet land being possessorily mortgaged by a jenmi in order to raise a loan of the petty sum of Rs. 20, even making due allowance for the fact that the transaction was in 1097 M. E. (1921-22) when land and paddy were cheap. That the consideration advanced must have been much less than 1/7th of the value of the property is apparent from the circumstance that the interest on the advance, namely, 3 paras and 9 edangazhis, is less than 1/7th of the total pattom of 27 paras and 2 edangazhis - it could not have been more than about 2 years' rent seeing that the munpattam under the verumpattam was Rs. 15. Then, there is the provision for payment of onakazhcha. And it is not without significance that the transfer was by a member of a land-owning non-cultivating class to actual cultivators. All these incidents, and the absence of any provision for repayment of the consideration advanced otherwise than on redemption seem to me to unmistakably stamp the transfer as one for the enjoyment of the land rather than for security for the money advanced.

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