NARAYANASWAMI IYER Vs. KUTTAN
HIGH COURT OF KERALA
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P.SUBRAMONIAN POTI,J. -
(1.) THESE two appeals are against the same judgment and decree,the former by the second defendant in the suit and the latter by the plaintiff.The suit is one for redemption of a karipanayam dated 25th Vrischigom 1099 corresponding to 10th December,1923 on deposit of the karipanayam amount of Rs.9,500 and the value of improvements.Purapad at the rate of 713 paras of paddy per annum is also claimed in the suit.The suit was resisted on several grounds one of which was that the plaintiff had no right to redeem since the defendants were holding as lessees.It was also contended that the provisions of the Kerala Land Reforms Act as amended by Act XXXV of 1969 enabled the defendants to contend that they are to be deemed tenants within the meaning of that Act.The court below found that the defendants were holding as mortgagees under the karipanayam and therefore they were liable to be redeemed but in the case of defendants 3 and 5 to 15 a different view had to be taken since they,being lessees of the mortgagees whose lease was prior to 26th February 1961,were entitled to fixity of tenure in regard to portions in their possession.It is this part of the decree that is challenged in the appeal by the plaintiff.The second defendant challenges the decree in so far as it holds that defendants 1 and 2 have been in possession under a mortgage and not a lease.
(2.) THE plaint schedule properties belonged to Nedumpulli Tharananallur Mana in jenm.The karanavan of the mana,one Padmanabhan Namboodiripad executed a karipanayam mortgage in respect of the plaint schedule properties for a sum of Rs.9,500 in favour of Krishna Pattar and Sundara Iyer,both sons of Pichu Pattar Karikkar.The kychit executed by Krishna Pattar and Sundara Iyer in favour of the mana evidencing the karipanayam is Ext.A -1 in the case.It is seen from the recitals in this mortgage that the properties were being held even earlier by Krishna Pattar and Sundara Iyer pursuant to an earlier kanom demise.This is Ext.B -1 of 25th December 1904 executed by the mana in favour of Pichu Pattar.Exhibit A -1 was taken after Ext.A -7 release deed was executed on the same date by Krishna Pattar and Sundara Iyer in favour of the mana.Towards the mortgage amount and value of improvements under Ext.B -1 a sum of Rs.9,000 was received under Ext.A -7 release.That formed the main part of the consideration of Rs.9,500 under Ext.A -1.The plaintiff in the suit is an assignee of the rights of the mana which executed the karipanayam.Ext.A -3 of 3rd April 1965 evidences such assignment in favour of the plaintiff and it is on the strength of this that he seeks redemption.The rights of the mortgagees Krishna Pattar and Sundara Iyer were assigned to defendants 1 and 2 on 6th November 1937 under Ext.B -2 and these defendants are holding under this document.There was an arrangement of partition between the first defendant and 2nd defendant evidenced by Ext.A -9 and thereafter the first defendant had granted a lease,Ext.B -6,in 1956 in favour of one Vamanan Namboodiri and such tenancy rights have been transferred to defendants 3 and others under whom defendants 3 and 5 to 15 are now claiming tenancy rights.
That,read by itself,Ext.A -1 evidences a mortgage transaction is not disputed.But counsel for the second defendant,appellant in A.S.64 of 1971,contends that prior to the karipanayam the parties were holding under a kanom and that though the karipanayam is a mortgage it satisfies the definition of a kanom in section 2(22)of the Kerala Land Reforms Act 1 of 1964 as amended by Act 35 of 1969 since it is a transfer for consideration for the enjoyment of the transferee and there is provision for payment of michavaram.It is further urged that section 4A of the said Act would apply to the transaction and therefore the mortgage should be deemed to be a tenancy.Section 6B is another provision which enables a mortgagee with possession of immovable property at the commencement of the Kerala Land Reforms(Amendment)Act 35 of 1969 in any area in the State to which the Malabar Tenancy Act extended to claim that he should be deemed to be a tenant on satisfying certain conditions.One of such conditions is that he should be holding such property in consideration of payment of customary dues or any amount specified as michavaram in the document evidencing the transaction.The case of the second defendant is that the provisions of section 6B should at any rate apply,since the mortgagee should be found to be holding the property in consideration of payment of amount specified as michavaram in the document evidencing such transaction.
(3.) WE would first consider the question whether defendants 1 and 2 should be deemed as tenants within the meaning of section 6B of Act 1 of 1964.That section runs: 6B.Certain mortgagees in areas to which Malabar Tenancy Act extended to be deemed tenants."Notwithstanding anything to the contrary contained in any law,or in any contract,custom or usage,or in any judgment,decree or order of court,a mortgagee with possession of immovable property at the commencement of the Kerala Land Reforms(Amendment)Act,1969,in any area in the State to which the Malabar Tenancy Act,1929,extended,shall be deemed to be a tenant if " (a)he was holding such property in consideration of payment of customary dues or any amount specified as michavaram in the document evidencing the transaction;or
(b)there is a provision in such document for renewal on the expiry of a specified period.
Reference has necessarily to be made to the terms of the karipanayam deed Ext.A -1.The consideration for the karipanayam,as we have stated earlier,is Rs.9,500.The rent of the properties is mentioned in Ext.A -1 as 1663 paras of paddy and Rs.10 per annum.Out of this the interest on the mortgage amount is shown as 1163 paras of paddy and Rs.9 with the result the balance left is 500 paras of paddy and Re.1 per annum.This is made payable as purapad annually.Though the reference is made to this payment as purapad there is reference to this also as michavaram.The relevant passage in Ext.A -1 reads:
...[VERNACULAR TEXT OMITTED]...
It is evident from this passage that the word michavaram has been used as a synonym for purapad and default in payment of purapad has been referred to as default in payment of michavaram.It is therefore contended that the document evidences holding of properties by the mortgagees in consideration of payment of amounts specified as michavaram in the document evidencing the transaction.This contention appears to us to be quite sound,as we will presently show.At the hearing counsel for the plaintiff urged several points in answer to the case of the second defendant that he should be deemed to be a tenant under section 6B of the Act.According to the plaintiff,( i)defendants 1 and 2 are not mortgagees in possession within the meaning of section 6B of the Act,( ii)no michavaram,is as such specified in the document Ext.A -1 and(iii)no ˜amount ™is specified as michavaram in the document.;
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