BHARATHA PILLAI DEVASWOM Vs. JOSEPH
HIGH COURT OF KERALA
BHARATHA PILLAI DEVASWOM
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(1.) This is a second appeal by the plaintiff who had demised the suit properties under the Panayam deed Ext. A dated 7.12.1065. His suit for redemption was resisted by the tenants holding the property under Ext. A, by contending that the demise evidenced by Ext. A is an irredeemable kanam. Both the lower courts accepted this plea and non suited the plaintiff and hence this second appeal.
(2.) The jenmi who executed Ext. A has taken care to make an express stipulation in the document reserving his right to redeem the property at any time he chooses subsequent to the year 1075. The tenant is a party to this document and he accepted the demise subject to such an express stipulation. The scope and effect of this stipulation do not appear to have been understood and appreciated by the lower courts. When the Royal Proclamation of the year 1042 was issued by the then Maharajah of Travancore, conferring permanent occupancy right on certain classes of tenants, a special provision was made to preserve the rights of jenmies. In Clause.8 of that Proclamation, it was stated that the jenmies demising their properties on kanapattom subsequent to the date of the Proclamation must make an express stipulation in the document that they reserve their right to redeem the property after a specified date and that in such cases alone they can claim the demise to be a redeemable mortgage and that in all other cases the demises taking the nature of kanam will be treated as irredeemable. The rights thus conferred on jenmies has been preserved intact by S.42 of the Travancore Jenmi and Kudyan Act of the year 1071 and also in the amended Act of the year 1108. Ext. A contains such an express stipulation and hence the statutory rights conferred by the above provisions has to prevail. It is no answer to such a right that the jenmi had accepted Adukkuvathu or renewal fees subsequent to the date of Ext. A, as is evidenced by Ext. A. Such a conduct by itself is not sufficient to replace the contract of redeemability as embodied in Ext. A or to nullify the effect of the statutory provisions already referred to. As pointed out in 24 TLJ 542 and 39 Cochin 400, the subsequent conduct of the parties is not relevant in gathering the intention of the parties when it is clearly expressed in the document. The position that the stipulation of the kind embodied in Ext. A will prevail even in spite of acceptance of renewal fees, has also been accepted as the correct position in 30 TLJ 161 and in AIR 1952 TC 447. Thus there is no doubt that Ext. A evidences only a redeemable mortgage. Exts. B and C of the same date between the same parties, show that when irredeemability was intended to be conferred on the tenant, the documents were couched in an entirely different manner.
(3.) In the result, this second appeal is allowed and plaintiff, is given a decree as prayed for in the plaint, with costs throughout. Defendants will get credit for payments made on the basis of Ext. A.;
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