(1.) THIS appeal is by the legal representatives of the 2nd defendant in a suit for redemption of a moiety of a Kanom.
(2.) EXT. B6 is a Kanom-Kuzhikanom deed and EXT. Al its counter-part. They are of date December 1, 1941. The transaction thereunder is a composite one, a Kanom in respect of taks 1 to 3 of item 1 (which constitute the suit properties) and a kanom-Kuzhikanom in respect of the 4th tak of item 1 and item 2 therein (which are not involved in this suit ). The Kanomdars are defendants 1 and 2. In partition under EXT. A3 the rights under EXT. B6 have been divided equally between them; but the properties as such are not divided. The 2nd defendant, now represented by the appellants, had thus an undivided moiety in the suit properties. The original plaintiff was an assignee of the jenmi who granted ext. B6. On her death, her interests devolved on plaintiffs 2 to 6 who assigned the same to the 7th plaintiff Company. The suit is for redemption of the Kanom on the suit properties. Subsequent to the institution of the suit defendants 3 to 9 being the legal representatives of the 1st defendant have surrendered their moiety in the suit Kanom to plaintiffs 2 to 6 (vide EXT. All) and thereafter the suit is prosecuted in regard to the moiety of the Kanom that belonged to the 2nd defendant. The 2nd defendant contended, and that contention is continued by the appellants, that the transaction evidenced by EXTs. B6 and Al is really one of tenancy entitling the defendants to fixity of tenure. The Munsiff accepted the defence and dismissed the suit; but, on appeal by the plaintiffs, the Additional District Judge has reversed him. Hence this second appeal.
The primary contention of the appellants is that the transaction under Ext. B6 is a Kanom amounting to a tenancy entitling them to immunity from eviction. It is conceded that the rights and liabilities have now to be judged under the Kerala Land Reforms Act, 1963. S. 132 (1) (a) of the Act provides so. It then follows that to earn immunity from eviction it is not enough if the transaction is styled a Kanom in the concerned instruments: it must satisfy the incidents of a Kanom as defined in Clause (22) of S. 2 of the act (I of 1964 ). That Clause reads thus: " (22) 'kanam' means the transfer for consideration, in money or in kind or in both, by a landlord of an interest in specific immovable property to another person for the latter's enjoyment, whether described in the document evidencing the transaction as kanam or kana-pattam, the incidents of which transfer include (a) (b) ; and (c) payment of michavaram or customary dues, or renewal on the expiry of any specified period,. . . It (The rest of the definition is irrelevant as regards the suit properties which are situate in Malabar area of the State ). To be a Kanom within the above definition, the transaction should involve payment of michavaram or customary dues or renewal on the expiry of a specified period. Admittedly there is no provision for renewal or for payment of customary "dues in the suit transaction. The question then is if there a provision for payment of michavaram.
The material recitals in Ext. A 1, the counter deed, executed by the defendants 1 and 2 identical are the contents in Ext. B-6 run thus: [we will pay the kanom (amount) of Rs. 14co charged on taks 1 to 3 of of item No. 1 (the suit properties ). . . to the 7 persons the aforesaid woman Narayani and others or to their representatives. . . and redeem (them) and hold taks 1 to 3 of item No. 1 as kanom and tak 4 and item No. 2 (these are not involved in this suit) as kanom-kuzhikanom, paying the land revenue for the properties and enjoy them for interest on the kanom, and after the term of 12 years when the kanom of Rs. 2000 charged on taks 1 to 3 of item no. 1 is offered we shall receive and surrender the properties with basic documents by a registered release at our cost. It is resolved that as taks 1 to 3 of the paddy flat being item No. 1 of the schedule are good paddy flats having no defect whatsoever that needs rectification by spade work no improvement of any kind shall be made in taks 1 to 3 of paddy flat item No. 1 of the schedule, that if any delay is made in redeeming (the properties) you are not responsible therefor, that the grant by you is only for 12 years from this date, and that you are not, at any time and in any manner, answerable for the costs, losses and delay that may happen to us in getting the properties redeemed from the prior possessors,. . ] It is pertinent to note here that no rent is stipulated for the property and that in consideration of an advance of Rs. 2000/- (inclusive of Rs. 1400/- to be paid to the prior mortgagees) the suit properties are to be enjoyed by defendants 1 and 2 for interest on their advance after payment of the land tax to the State.
(3.) COUNSEL contends that the stipulation for payment of land revenue to the State amounts in law to a stipulation for payment of rent or michavaram to the land-owner and therefore the transaction would be a kanom as defined in the Land Reforms Act (quoted above) and relies on the decision of velu Pillai J. in Parameswaran Embranthiri v. Narasimha Nambudiri (1962 KLT. 404) in support. That decision of the learned single judge had been cited before me when I was hearing S. A. No. 1474 of 1961, and then I referred it to a Division Bench for reconsideration in the following words: 'counsel for the appellants contended that the stipulation for payment of revenue amounts to a covenant for payment of michavaram, and relied on Parameswaran Embranthiri v. Narasimha Nambudiri (1962 klt. 404 ). Under S. 76 of the Transfer of Property Act, every possessory mortgagee is, unless there is a provision to the contrary in the deed of mortgage, obliged to pay the revenue charged on the property. Merely because that statutory liability has been expressly recited in a deed, it cannot change the character of the deed. In other words, if the mention of the statutory duty has been omitted the deed would have been a mortgage, even with mention of that duty it cannot be a transaction of a different character. But that is what seems to me to have been held in 1962 KLT. 404 That decision appears to rely largely on the dictum of a Division Bench of the Madras High Court in Sankunni variar v. Neelakandhan Nambudiripad (1943-11 MLJ. 127 ). The facts of that case, in my opinion, are far different. There, the deed provided for payment of 400 odd parahs of paddy to the transferor by the transferee after payment of revenue, and the question was whether a subsequent enhancement of the revenue was to be borne by the transferor or the transferee. Their Lordships held that though the stipulation had been that after payment of revenue the transferee was to pay a fixed quantity of paddy to the transferor the terms of the deed implied that the liability to pay revenue and therefore to pay the enhancement in revenue also was on the transferor. As there was an express provision for payment of 411 parahs of paddy annually to the transferor the document was construed by their Lordships to be a kanom, and in the light of that construction, the other incidents between the parties were adjudged. The incidents of the transaction in that case and in the case that came up for decision in 1962 KLT. 404 are far different in that in the latter case no payment of any michavaram has been stipulated in the deed concerned. In the circumstances, I am of the view that the decision in 1962 KLT. 404 requires reconsideration and for that purpose I refer this case to a Division Bench. " But when the case was placed before the Division Bench constituted by Velu Pillai and Anna Chandy JJ. their Lordships, without considering the view expressed by me in the reference order remanded the suit to the Court below for fresh disposal by the following judgment dated January 21, 1966: "the two courts below have held that Ext. B-4 is redeemable The contention of the appellant, which has been negatived by the lower appellate court is that it is a kanom under the Malabar Tenancy Act. Now that that Act has been superseded by Act I of 1964, this contention has to be considered and disposed of under the provisions of the latter Act. So we set aside the finding regarding Ext. B-4 and the decree for mesne profits and costs against defendants 4 to 6 and direct the trial court to dispose of issues 12 and 15 which relate to this matter at the time of passing the final decree. The costs incurred so far will be costs in the cause and will be provided for in the final decree. The rest of the decree is affirmed. This appeal is disposed of as above. " When S. A. Nos. 110 and 838 of 1962 in which the identical question arose came up before me on June 20,1966, I adjourned them to be heard and determined by a bench of two Judges. When those cases were heard by Velu Pillai and Krishnamoorthy Iyer JJ. their Lordships followed the dictum in Parameswaran Embranthiri's case, without considering the view expressed by me that a reiteration in the mortgage deed of the normal legal liability of a mortgagee to pay the land revenue would not change the mortgage into a lease with the assumption that revenue paid to the State is payment of rent to the land owner. In these circumstance, I am now constrained to canvass the question myself to the best of my judgment.
A tax, called land revenue, is imposed by the State on all productive lands. From ancient times the State has been exercising a right to levy a share of the produce of all lands in the territory as part of its revenue. Vishnu Smrithi, Chapter III, verse 10 says: Table:#1 (Every year the king shall collect from his subjects as revenue one-sixth of the paddy; similarly in respect of all foodgrain manmathanath Dutt ). The same is told in Manusmrithi (Chapter VII, verse 130)and in Gautama Smrithi (Chapter X ). The Mahomedan kings also asserted the power to take a share of the produce as revenue, but they assessed it as a fixed lump sum for an area and farmed out the right to collect it from the landholders. The British Government also maintained the latter system with certain changes that were calculated to secure uniformity and fixity in the demand which ultimately culminated in land survey and settlement. Recently, the Supreme court held void an Act imposing a uniform rate of tax on all lands, irrespective of their productivity, actual or potential, observing: ". . . . the Act obliges every person who holds land to pay the tax at the flat rate prescribed whether or not he makes any income out of the property, or whether or not the property is capable of yielding any income. The Act, in terms, claims to be 'a general revenue settlement of the state' (S. 3 ). Ordinarily, a tax on land or land revenue is assessed on the actual or the potential productivity of the land sought to be taxed. In other words, the tax has reference to the income actually made, or which could have been made, with due diligence, and, therefore, is levied with due regard to the incidence of the taxation. " Kunnathat Thathunni Moopil Nair v. State of kerala AIR. 1961 SC. 552 at 588) Thus the land revenue is understood, in all ages, to represent the State's share of the produce of the land. Its incidence is therefore on the land, or more correctly on the person who has the land. To facilitate collection of revenue the State issues pattahs showing the tax on every piece of land to the respective landholders and keeps a register of the pattahdars with facilities to effect changes in both as land changes hands. By the Revenue Recovery Act, the pattahdar-the registered landholder-is made liable to the State for the revenue on the land, irrespective of the fact whether he is the owner thereof at the relevant time. It is no answer to the state's claim that the land has been assigned offer given possession to a mortgagee or lessee with specific direction to pay the revenue out of its profits. The State would collect forcibly if it comes to that the revenue from the pattahdar, leaving the rights and liabilities between the citizens in regard to the same to be agitated in appropriate proceedings, for reimbursement or contribution, in the regular Courts of law. It is pertinent to remember here that the Revenue Recovery Act deals only with the process of recovery of revenue and not with incidence of revenue. The latter is dealt with in S. 76 (c)and 108 (g) of the Transfer of Property Act, S. 28 of the Malabar Tenancy Act, and the like. As the liability to pay land revenue would continue on the pattahdar in spite of a conveyance of the land, until mutation is effected in the pattah and the land-records, the invariable practice in conveyancing is to specify in sale deeds, gift deeds, etc. that the assignee shall hold and enjoy the land and pay the revenue thereof. It cannot be said that after a conveyance of the land, the vendor or donor continues liable for its tax, except for purposes of the Revenue Recovery Act with right to reimbursement from the landholder. With these premises, I advert to the dicta in the precedent relied on by counsel for the appellants.;