KOCHUPENNU KAYI Vs. OUSEPH
HIGH COURT OF KERALA
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(1.) The only question in this second appeal presented by the second defendant is whether the demise sought to be redeemed is redeemable or is irredeemable. The property is situate in the Travancore area to which Travancore Act V of 1071 and its Amending Act, XII of 1108, apply. The demisor is a Kshatriya. The point in controversy between the parties is whether the Act would apply to a demise granted by a Kshatriya or, in other words, by a non Malayala-Brahmana Jenmi. The defendant appears to have been a lessee of the property from very early times. In 1064 the lease was converted into a demise for money consideration. Stipulations regarding appropriation of interest on the said amount of premium or kanom amount and for payment of michavaram to the demisor besides customary dues are made in the document. The deed recites that the demisee is to be in possession for ten years and that a specified amount has been received as Adukkuvathu. Nothing is mentioned as to what is to happen at the expiry of the term. Ext. V is this demise. There was a renewal in the year 1083 under Ext. IV. Provisions regarding michavaram and customary dues similar to those contained in Ext. V are seen in the renewed document as well. A circumstance which may not be material to decide the question at issue appears in these documents and it is this. The improvements made by the tenant on the property are evaluated each time and the tenants share therein determined and interest thereon at the rate allowed for the kanom amount also deducted to arrive at the michavarom payable. A period of 10 years is fixed in the new document also and it is stated that renewal fee has been received. The next renewal was in 1097 under Ext. III containing provisions similar to those of the earlier deeds. The first point of controversy is whether the demise of Jenmom land because it is only in respect of such demises that irredeemability is conferred by S.7 of the Act. The definitions of jenmi and jenmom land in Act V of 1071 are as under:-
Jenmom Land means the land (other than Pandaravagay, Sreepandaravagay, Kandukrishi or Sirkar Devaswom land, recognised as such in the Sirkar accounts) which is either entirely exempt from Government tax or, if assessed to public revenue, is subject to Rajabhogam only, and the occupancy right in which is created for a money consideration (Kanom) and is also subject to the payment of michavaram or customary dues and the periodical renewal of the right on payment of renewal fees.
Explanation: Rajabhogam includes Rajabhogam paid to a Chief within whose freehold estate the land is situate.
Jenmi means a person in whom the proprietory right over Jenmom lands is vested and includes, in the case of Devaswoms owning Jenmom lands, the managing Trustee or Trustees of the Institution for the time being.
Though the definitions do not relate to the community of the demisor or jenmi it is submitted that decisions of courts have held that in order to attract the definitions the demisor must be a Malayala Brahmin or a Devaswom belonging to a Malayala Brahmin. The Proclamation of 1042 which preceded Act V of 1071 had also been thus interpreted. In the Act of 1071, S.5 provided for Malayala Brahmin Jenmies and other Jenmies as follows:-
Subject to the provisions of the this Regulation, every Kudiyan shall have a right of permanent occupancy in his holding and shall be exempt from liability to eviction.
In the absence of an express contract, nothing in this Section shall be taken to confer the right of permanent occupancy on the Kudiyan of a non Malayalee-Brahmin Jenmi, unless he or his predecessors in interest or both have uninterruptedly held the holding for a period of not less than twenty-five years.
The provisions of para 2 do not apply to assignees of Malayalee Brahmin Jenmis.
As regards the first the Act came into force in 1072 and as regards the rest it came into force in 1074 as is shown in S.1(2). The irredeemability in respect of lands demised by non Malayalee-Brahmin Jenmies was limited to tenants who had held the holding uninterruptedly for a period of not less than 25 years. The second part of S.44 is as follows:-
The provisions of this Regulation shall not apply to any right declared, established or already acquired by Jenmies or Kudiyans at the date this Regulation comes into force.
Whether the 25 years should be next before the coming into force of the Act or next before the date of suit by the Jenmi to redeem is a matter of controversy between the parties. K.S. Pandalai in his book Jenmi & Kudiyan Regulation V of 1071 (Travancore) (1912 Edition), page 36 referring to S.5 says:-
The non Brahmin Jenmis were thus deprived of the right of ouster which they had enjoyed but to prevent any hardship that may arise on account of a sudden change in the law it was provided, (1) that para 2 of this section should come into force only on 1st Chingom 1074, though the other provisions of the Regulation came into force on 1st Makaram 1072 and (ii) that the tenant of the non Brahmin Jenmi or his predecessors in interest or both must have been in uninterrupted possession of the holding for more than 25 years before suit if the suit be brought after Chingom 1074.
This passage is relied upon to support the contention that the 25 years should be next before the date of the filing of the suit. 29 TLJ 1145 FB takes the other view and holds that 25 years should be next before the date on which the Act came into force. The matter has been dealt with at great length by the learned Judges in the Full Bench and we are in agreement with that conclusion. The part of S.5 rendering continuous possession for 25 years necessary in order that the demisee under a non Malayalee Brahmin Jenmi could claim irredeemability was deleted by the Amending Act, XII of 1108. The second part of S.44 was, however, retained intact. What exactly is the consequence of the deletion of the said provision from S.5 is the next point of controversy. On behalf of the tenant it is contended that the consequence of the deletion of that part of S.5 is to render the irredeemability conferred by the Act available to all tenants irrespective of the question of the community to which the demisor belongs. This view has been accepted by this Court in A.S. No. 591/1124(T). (See 1954 KLT Short Notes, page 29). The contention of Mr. Abraham on behalf of the Jenmi relying upon 30 TLJ 596 is that the demises granted by non Malayalee Brahmin Jenmies rendered irredeemable by Act V of 1071 were only those held uniterruptedly for 25 years before the Act and even that irredeemability will fasten only if no suit be brought for redemption before 1.1.1074. The amending Act did not re-enact the second part of S.5 as it had served its purpose and that its deletion has not it is contended the effect of enlarging the ambit of irredeemability. We are unable to agree with this contention. The Act as amended applies to and renders irredeemable all kanom demises irrespective of the community of the grantor of the demise on account of the deletion by the Amending Act XII of 1108 from S.5 of the limitation in the matter of demises granted by non Malayalee Brahmin Jenmies before Act V of 1071; demises granted after Act V came into force being governed by S.43. The retention of the second part of S.44 does not affect this conclusion. That provision, as has been held in 23 TLR 162, applies to cases where rights have been declared by adjudications of courts in proceedings interparties. We are unable to follow 30 TLJ 596 as the learned Judges do not advert to the alteration of S.5 by the Amending Act and appear to proceed on the erroneously assumed continued existence of the second part of that section even after amendment when it was deleted.
(2.) The demise in question is, as it is also styled, a kanom. The land demised is jenmom land within the meaning of the definition. There is a money consideration for the demise. Customary dues are payable. Though the demise does not show that it is renewable, that is to say, it is subject to renewal within the meaning of the definition, it having been subjected to renewal on payment of renewal fees it is permissible to argue back and attribute the features of renewability to the demise when it was first made.
(3.) In the result, the second appeal is allowed, the decrees of the courts below set aside and the plaintiffs suit for redemption is dismissed. In the circumstances we direct both parties to bear their respective costs here and in both the courts below.;
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