Decided on August 05,1955

MARIAM Appellant


- (1.) These two second appeals arise out of a suit for redemption and were referred to a Division Bench as they involved questions of some importance. S.A. No. 112 of 1952 is by the 5th defendant and S.A. No. 199 of 1952 is by the plaintiff. There are two schedules of property A and B attached to the plaint. A schedule is a plot of wet land 2 parahs in extent while B schedule is another plot 1 acre 27 cents in extent. A schedule belonged to the plaintiffs Swaroopam in jenm and was demised under usufructuary mortgage in the year 1078 to one Porinchu, the grandfather of the 1st defendant. Plaint B schedule is Pandaravaka land for which the plaintiff Swaroopam had obtained Patta. It is plaintiffs case that B schedule property lies adjacent to A schedule and is in possession of the defendant as an accession to the mortgage holding and as such is liable to be redeemed along with item 1. The suit was laid therefore for redemption of both A and B schedules. The main contentions of the defendants were that A schedule item was not redeemable as the document of 1078 was in the nature of a Kanom and as regards B schedule, the defendants were in possession thereof independently of A schedule and hence that item also was irredeemable. The trial court accepted the defendants contentions and dismissed the suit. In appeal by the plaintiff the court below allowed redemption of A schedule and dismissed the suit in regard to the B schedule. The parties have questioned by their separate appeals the decree of the court below to the extent it is against either of them respectively.
(2.) Taking up the defendants appeal, S.A. No. 112 of 1952, Ext. III of 1078 is the mortgage with reference to A schedule property executed by the plaintiff Swaroopam in favour of Porinchu. On the same date Porinchu executed an Ethir deed Ext. B in favour of the Swaroopam. Whether Ext. III amounts to a kanom and therefore evidences an irredeemable tenure depends on the nature of the provisions. The following are its incidents. It is styled a panayam. It has an initial lump sum consideration in money which bears a specific interest. There is provision for payment of michavarom. There is further a provision for surrender of the property on demand at any time after the expiry of six years. It is also mentioned that the mortgagee was in possession under a prior document of 1042. The defendant contends for irredeemability under the Tenancy Act XV of 1113 as amended by Act VI of 1115, alternatively under Act II of 1090. The trial court found in favour of the defendant under both the Acts. The court below did not consider the applicability of the Act of 1090 but found definitely that there was no irredeemability under the Act of 1113.
(3.) According to S.2(d) of Act XV of 1113, kanom has been defined with reference to the following incidents: (1) An initial lump sum consideration in money or in kind or both given or deemed to be given by tenant to the landlord which is mentioned as such in the demise and bears a specified interest. (2) The payment of michavarom, if any, by the tenant to landlord; (3) The right of the tenant to occupy the property demised for 12 years or for any other longer period which is specified; (4) The liability to pay a renewal fee on renewal of the demise. Explanation.-- A transaction called panayam in the document evidencing it may create a kanom within the meaning of the section. Act VI of 1115 added as the Explanation II the following: (i) A transaction called panayam in the document evidencing it and possessing the incident mentioned in sub clause.(1) and (2) of this clause, shall, until the contrary is proved be presumed to be a kanom within the meaning of this section, if it is a renewal of a previous document or if in respect of it, a counter part has been executed by the panayam tenant or there is a provision for renewal or for the payment of puravaka dues; (ii) A provision in any document of the kind referred to in Cl. (i) providing for surrender of the holding on demand to the landlord shall not, by itself, give rise to any presumption contrary to that provided for in Cl. (i) of this Explanation. There is a proviso to the Explanation but we are not concerned with it.;

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