JANAKI AMMA Vs. NARAYANAN NANAN
HIGH COURT OF KERALA
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(1.) This Second Appeal arises out of a suit for redemption. The properties involved in the suit belonged to a non Brahmin jenmi family known by the name of Puthiyakkal Kovilagam and were demised under a kanam deed Ext. D dated 24.5.1075. Ext. D was replaced by the subsequent document Ext. E executed on 27.4.1080. The contesting defendants are in possession of the properties on the strength of Ext. E. The 1st plaintiff on whom the rights of the Kovilagam over these properties have ultimately become vested, executed the mortgage deed Ext. F dated 13.10.1115 in favour of the 2nd defendant authorising him to redeem Ext. E and recover possession of the properties together with the arrears of michavaram. Accordingly the present suit for redemption was filed. The main defence set up by the contesting defendants is that under Exts. D and E an irredeemable kanom coming within the scope of the Travancore Jenmi and Kudiyan Act was created and that therefore the suit for redemption is not maintainable. This contention was upheld by the Trial Court which dismissed the suit. On appeal by the 2nd plaintiff, the lower appellate court came to the conclusion that the right of permanent occupancy conferred on the kudiyan by S. 5 of the Jenmi and Kudiyan Act cannot be availed of by the kanamdars under Exts. D and E and that the question whether the right of permanent occupancy was intended to be conferred on these tenants has to be gathered from the terms of the document. On a consideration of the terms embodied in Exts. D and E, the lower appellate Court came to the decision that no right of permanent occupancy was intended to be conferred on the tenants and that under Exts. D and E the jenmi retained the right of redemption and thus reversed the Trial Courts decree dismissing the suit. The 3rd defendant has come up in second appeal, challenging the correctness of the construction put upon Exts. D and E by the lower appellate court.
(2.) From the scheme of the Travancore Jenmi and Kudiyan Act of the year 1071 (Act V of 1071) it is clear that the statutory right of permanent occupancy was conferred on the kudiyans who were already in possession of jenmom lands under a kanom demise as defined in the Act. By S. 42 of the Act a class of kanam demises falling under this category have been expressly excluded from the scope of the Act. That section runs as follows:-
Notwithstanding anything contained in the foregoing, the provisions of this Regulation shall not apply to any kanapattom executed since the 25th day of Karkatagam 1042, which expressly provided for redemption.
This section was enacted to give effect to the idea contained in Cl. 8 of the Royal Proclamation dated 25.12.1042 where it was stated that in the case of a demise of jenmom land subsequent to that date the right of redemption should be expressly provided for in the document if it is the intention of the jenmi to have such a right reserved with him. The rights thus expressly reserved in the kanam documents executed after the 25th day of Karkatagam 1042 have accordingly been protected and preserved by S. 42 of the Jenmi and Kudiyan Act. S. 43 of the Act is intended to regulate the rights of the landlord and the tenant in respect of fresh demises made subsequent to the date of the Act. The section is in the following terms:-
In contracts relating to jenmom lands entered into for the first time after this Regulation comes into force, the question whether the tenancy is terminable or otherwise, shall be determined according to the intention of the parties as gathered from the terms of the contract.
It is thus obvious that the parties to such contracts cannot ignore the terms of the contract and rely upon the other provisions of the Act for the purpose of determining the question as to whether the tenant holding the property under the contract of demise has acquired a permanent occupancy right. The decision of that question must depend solely on the terms of the contract as embodied in the document. The kanam documents Exts. D and E relied on by the contesting defendants came into existence a few years subsequent to the date on which Act V of 1071 came into force. Even though the property was outstanding in favour of a third party under an earlier document, the kanamdar under Ext. D could not derive the benefit of such earlier demise because his position is not that of an assignee of the rights of the original tenant. On the other hand the tenant under Ext. D is seen to have got possession of the properties by redeeming the earlier kanom as per the direction contained in Ext. D. Thus so far as he is concerned the demise under Ext. D was an original demise which came into existence only in the year 1075 and hence his rights have to be determined by the stipulations in the document as required by S. 43 of the Jenmi and Kudiyan Act. The terms embodied in Ext. D do not show that the parties intended to create an irredeemable kanam. Even before the expiry of the 12 year period fixed in Ext. D, the next document Ext. E was executed in the year 1080 wherein the tenant is seen to have taken care to provide for a period of 12 years after the expiry of a similar period granted under Ext. D. This shows the consciousness on the part of the tenant that he could claim to be in possession of the property as a matter of right only during the periods expressly granted and that he had no right to get periodical renewals in perpetuity i.e., at the end of every succeeding 12 years. After the expiry of the total period of 24 years from the date of Ext. D, the tenant had a further option to get one more renewal by virtue of this stipulation contained in Ext. E. Even this period was exhausted long prior to the date of the suit. The scope and effect of stipulations regarding renewals of this type has been recently considered by this Court in Yohannan v. Vasudevan Chakiar ( 1954 KLT 671 ) and there it was ruled that the right available as per the options to take a renewal at the end of the stipulated period will exhaust itself with a further period of 12 years and that the tenant cannot claim any right to get periodical renewals in perpetuity. From the terms embodied in Exts. D and E it is apparent that the intention of the parties was that the right of redemption should continue to remain with the jenmi. The jenmi has chosen to exercise that right in the present suit. The lower court was therefore right in its view that under Exts. D and E no right of permanent occupancy was intended to be conferred on the tenant and that the present suit for redemption brought after the expiry of the full period granted in favour of the tenant under these two documents is sustainable. A similar demise granted by the same jenmi came up for consideration in Kuttan v. Ithack ( 1950 KLT 327 ) and there it was held that the demise had created an irredeemable kanam in favour of the tenant. The learned advocate for the appellant places great reliance on this decision in support of his contention that Ext. E also should be construed in a similar manner. This contention would have prevailed if the facts of the two cases had been identical or at least similar in every respect. But as a matter of fact the facts are different on a very crucial point. The kanom demise which was construed in Kuttan v. Ithack (1950 KLT 327) was one which came into existence in the year 1054. (Copy of this document had been produced at the hearing of the present suit before the lower appellate court). Since that kanom demise was in existence at the time of the passing of the Jenmi and Kudiyan Act of the year 1071, the statutory right of permanent occupancy conferred by that Act was available to the tenant in that case. No such right was available to the tenant under Exts. D and E in the present case since the tenancy under these documents came into existence subsequent to the Act. The right conferred on him under these documents has to be gathered from the stipulations contained therein, as required by S. 43 of the Act. The decision in Kuttan v. Ithack (1950 KLT 327) is therefore of no help to the present appellant.
(3.) In the result this second appeal fails and is dismissed with costs. Objection memorandum is also dismissed.;
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