Varkey v. Thuppan Namboothiri — 1951 DIGILAW 30 (KER)

Judgment :- 1. The 1st defendant is the appellant. The plaint properties belonged to the plaintiff's Illom. They had been given on Kanom to defendants 1 to 3 on 10.12.1093. Under the Jenmi and Kudiyan Act as amended by Act XII of 1108, the Jenmikaram due from the properties in the Kanom was fixed at 40 paras and 21/2 Edangalies of paddy and one rupee 2 Chuckrams and 13 Cash a year. The plaintiff stated that the two survey numbers included in the Kanom deed were lying within the same boundaries and the total extent of these properties was 100 cents. Of these, defendants 1 to 3 were in possession of 49 cents in S. No. 207/3, and defendants 4 to 6 in possession of the remaining 33 cents in the same survey numbers. 18 cents in S. No. 151/2 were with the 7th defendant. It was the plaintiff's allegation, that when the Jenmikaram was settled as regards these three parcels of land, some mistake crept in, so that the Jenmikaram on the 49 cents was fixed at 4 Paras and 1/4 Edangaly of paddy and 3 chs.1 cash, that on the 33 cents at 3 Paras and 21/4 Edangalies of paddy and 2 chs. 7 cash, and that on the remaining 18 cents at 33 paras of paddy and 25 chs. 5 cash a year. There were material discrepancies and mistakes in thus fixing the Jenmikaram, and the decision has to be varied by fixing the Jenmikaram on the basis of the extent of the properties. The plaintiff would say that on the above basis the Jenmikaram due on the 49 cents would be 19 Paras 71/16 Edangalies of paddy and 15 chs. 157/100 cash, on the 33 cents it would be 13 Paras 211/16 Edangalies of paddy and 10 chs. 2 69/100 cash, and on the 18 cents the same would be 7 Paras 2 6/16 Edangalies of paddy and 5 chs. 8 74/100 cash. The Jenmikaram was left in arrears from 1114 to the half of 1117. The plaintiff therefore prayed for rectification of the Jenmikaram decision on the basis of the calculation made by him as mentioned above, and for the realisation of the sum total of Jenmikaram at 40 Paras 21/2 Edangalies of paddy and one rupee 2 chs. 13 cash a year charged on all the plaint properties. 2. The plaintiff therefore prayed for rectification of the Jenmikaram decision on the basis of the calculation made by him as mentioned above, and for the realisation of the sum total of Jenmikaram at 40 Paras 21/2 Edangalies of paddy and one rupee 2 chs. 13 cash a year charged on all the plaint properties. 2. The 1st defendant contended that he was interested in the 49 cents mentioned in the plaint. It forms a portion of S. No. 207/3. He admitted the Kanom document of 1093. For the 49 cents in his possession, the Jenmikaram Officer Vycome, determined the Jenmikaram due on the same on the basis of a statement given by the plaintiff. After the decision, notices of the same had been given to the plaintiff, who was thereafter receiving the Jenmikaram due on the 49 cents at the rate fixed by the Jenmikaram Settlement Officer. Thereafter, in 1112, the plaintiff filed small cause suit 53 of 1115 in the District Court, Kottayam, for the Jenmikaram due from both the survey numbers. The defendant had contended there that the said 49 cents were liable for Jenmikaram only at the rate of 4 Paras 1/4 Edangali of Paddy and 3 chs.1 cash a year. That was upheld by the District Court and confirmed by the High Court. He therefore contended that himself and the 49 cents in his possession were liable to be charged with the Jenmikaram at the rate fixed by the Jenmikaram Settlement Officer. 3. The Courts below held that the plaintiff was not entitled to get the decision of the Jenmikaram Settlement Officer revised or modified. His prayer for the purpose therefore was dismissed, and the plaintiff had submitted to that. That portion of the decree was not appealed against by the plaintiff. The contentions of the 1st defendant that the 49 cents in his possession could be made liable only for the amount of Jenmikaram fixed by the Settlement Officer as due from that property, and not for arrears due from other portions of the same survey number as well as from S.No.151/2 included in the Kanom deed of 1093, were not accepted by the court below. It is this later portion of the decree against the 1st defendant that is appealed against. 4. It is this later portion of the decree against the 1st defendant that is appealed against. 4. It is true that the Kanom deed of 1093 covers 18 cents in S. No. 151/2 and 82 cents in S. No. 207/3. The courts below therefore held that each parcel of land in the same Kanom deed was liable for the entire Jenmikaram due from all the properties included in that document. A holding, under the Jenmi and Kudiyan Act, was defined to mean a parcel of land or parcels of land held under one Kanapattom instrument and one set of conditions. It was on the basis of this definition of the holding that the courts below seem to have overruled the 1st defendant's contentions that his property was to be made liable only for the Jenmikaram due thereon. In S.9 of the Act there is a direction that the Jenmikaram of a holding shall be claimable by the Jenmi and shall, subject to the priority of the rights of the State, be a first charge on the holding. So, all the properties covered by the holding were contended to be liable for arrears of Jenmikaram due on the different parcels of land in the holding. This interpretation did not appear to us to be correct. S.9 had to be read and understood with reference to other provisions in the Act. S.5 of the Act laid down, that, from and after the commencement of the amended Act XII of 1108, the Jenmi shall not have any right, claim or interest in any land in a holding except the right to receive the Jenmikaram thereon. The right, claim or interest were mentioned with reference to any land in a holding so that the Jenmikaram which the Jenmi was entitled to claim was only in respect of that land over which the Jenmi lost all other rights, claims or interest. So, if a holding consisted of more parcels of land than one, the Jenmi's right would be only to receive the Jenmikaram fixed for each parcel of land. That would not entitle him to claim a charge on one parcel of land for the Jenmikaram due from another parcel of land in the same holding. The Jenmikaram of a land is, subject to the rights of Government, made a first charge on that land. That would not entitle him to claim a charge on one parcel of land for the Jenmikaram due from another parcel of land in the same holding. The Jenmikaram of a land is, subject to the rights of Government, made a first charge on that land. It cannot therefore be a first charge on any other land. The explanation 2 to C1.17 of S.3 lays down that when only Jenmom land or holding is divided for any reason, the Jenmikaram and Jenmikaram chargeable proportionately on each part shall respectively be the Jenmikaram and the Jenmikaram due on that part. The apportionment of the Jenmikaram is also further provided for in S.6. It is stated, that if in any holding, there are more parcels of land that one, each having settlement Pattom assessed separately, the Jenmikaram of the entire holding shall be ascertained in accordance with the provisions of the Act and distributed in respect of each parcel of land in the proportion of the settlement Pattamicham bearing on such parcel of land. This section also lays down to what extent a particular land or piece of land could be subjected to the payment of Jenmikaram; for, Cl. 2 to S.6 would lay down that Jenmikaram so distributed in respect of each parcel of land shall be the Jenmikaram due thereon. So the Jenmikaram fixed for one land will be a first charge on that land, and not on any other land, though this latter parcel of land is also included in the same Kanom deed. S.17(1) of the Act would make the position further clear. "Subject to the provisions of this Act every Jenmi shall be entitled to receive and every Kudiyan shall be bound to pay in respect of all land in the latter's holding the jenmikaram due thereon, and notwithstanding any contract or usage to the contrary the Jenmi shall not be entitled to receive and the Kudiyan shall not be bound to pay anything else in respect of the land". It was mentioned there that the Jenmi's right to claim and the Kudiyan's liability to pay the Jenmikaram were not with reference to the holding but with reference to the land in the tenant's holding. So S.9 has to be read with Cl. It was mentioned there that the Jenmi's right to claim and the Kudiyan's liability to pay the Jenmikaram were not with reference to the holding but with reference to the land in the tenant's holding. So S.9 has to be read with Cl. (1) of S.17, and it has to be held that the charge mentioned in S.9 is with reference to the land in the holding and not with reference to all the lands in the holding. Thus the 1st defendant's 49 cents could not be held liable for the arrears of Jenmikaram due from the remaining properties comprised in the Kanom deed. 5. The 1st defendant could not also be made liable for any arrears of Jenmikaram except to the extent charged on the 49 cents he got in partition with his brothers. S.11 states that when a Jenmom land or holding is divided or transferred by sale, gift or otherwise by the Kudiyan without the consent of the Jenmi, the Kudiyan shall continue liable for the Jenmikaram accruing due after such division or transfer unless and until notice by registered Anchal or Post of the division or transfer is given to the Jenmi, and until Pokkuvaravu is effected in the land revenue records in accordance with the division or transfer. The plaintiff has no case that the division of the holding was effected without his consent. On the other hand, he had himself filed the Jenmikaram statement before the Settlement Officer apportioning the Jenmikaram due on these 49 cents. His apportionment had been accepted by the Settlement Officer and orders passed thereon. Ext. III contains copy of the statement thus filed by the plaintiff and the decision of the Jenmikaram Settlement Officer. So, the plaintiff's consent for the division, at least at the time he filed the statement before the Settlement Officer, has to be presumed. Otherwise, there was no reason why he should have apportioned the Jenmikaram on the 49 cents separately and filed the statement. Thus, the division was effected with the consent of the Jenmi, and from the date of the division, or at least from the date on which the Jenmi accepted that division and filed the Jenmikaram statement, the 1st defendant and his 49 cents would in any event be absolved of all liabilities to pay the Jenmikaram due from other lands in the Kanom deed. After the Jenmikaram decision, notice of the same was given to the plaintiff and a pidipadu i.e., a register was also prepared by the Jenmikaram Officer settling proportionate Jenmikaram due. The rules framed under the Jenmi and Kudiyan Act directed the Jenmikaram Settlement Officer to register a case for each survey number of the property or for a convenient group of survey numbers. The Jenmikaram due on these survey numbers has to be settled, and when the survey numbers have been sub-divided, the Settlement Officer, after giving intimation to the parties, has to settle the Jenmikaram separately regarding each portion of that survey number. The note to R.11 would make this position clear. Thus, though several numbers were included in the same Kanom deed separate cases had to be registered with reference to each survey number or each sub-division of the same. This was done in this case. The plaintiff had accepted the same. As seen from Ext. I, he had received on 23.3.1112 the Jenmikaram due on these 49 cents at the rate fixed by the Jenmikaram Settlement Officer. Thereafter he filed a small cause suit, where also, though he claimed the Jenmikaram charged on all the properties in the Kanom deed, the court gave him a decree only for the 49 cents in question for the arrears of Jenmikaram as determined by the Settlement Officer. Ext. IV is the judgment in that case, and the revision filed by the plaintiff against this decision was dismissed by the High Court on 27.12.1119. Ext. VI is copy of the order of the High Court. It was after this that the plaintiff came forward for the rectification of the Jenmikaram Settlement Officer's decision on the ground that there were some mistakes therein. The Munsiff's Court and the District Court disallowed this prayer and the plaintiff submitted to the same. He could not therefore go back upon the Jenmikaram Settlement Officer's decision. He could not also ask for a decree against the 1st defendant and his 49 cents for the arrears due from the other lands comprised in the Kanom deed of 1095. The decrees of the courts below therefore require modification. 6. The total amount allowed by the trial court till the date of suit was 1141 fanams 0 ch 6 cash on account of the value of paddy and money due from the whole of S. Nos. 151/2 and 207/3. The decrees of the courts below therefore require modification. 6. The total amount allowed by the trial court till the date of suit was 1141 fanams 0 ch 6 cash on account of the value of paddy and money due from the whole of S. Nos. 151/2 and 207/3. The 49 cents in the possession of the 1st defendant could be made liable only for 4 Paras and 1/4 Edangaly of paddy and 3 chs.1 cash every year along with the interest allowed by the courts below. Out of the 1141 fanams 0 chs. 6 cash allowed by the lower court, 35 fanams 0 chs. 8 cash was on account of the money portion due as Jenmikaram. The 1st defendant could be made liable only for 45/493 of this sum on the date of the suit, i.e. at the ratio which 3 chs 1 cash bears to 30 chs. 13 cash, the latter amount being the money portion charged on all the properties in the Kanom deed of 1093. The balance of 1105 fanams 3 chs. 14 cash would be on account of the value of paddy portion of Jenmikaram together with interest till date of suit. The total amount of paddy due from all the properties would be 40 Paras and 21/2 Edangalies of paddy, of which the 49 cents were liable to contribute only 4 Paras and 1/4 Edangali, i.e.1/10th of the whole amount. So the 1st defendant and his 49 cents are liable to contribute one-tenth of 1105 fanams 3 chs. 14 cash on the date of the suit. The decree will be modified making the 1st defendant and his 49 cents in S. No. 207/3 liable only to the amount mentioned above on the date of the suit. Future interest on the amounts thus arrived at on the date of the suit will carry interest at the rate mentioned by the trial court. 7. No other point was urged before us in appeal. The decrees of the courts below are therefore modified to the above extent. Since the 1st defendant has succeeded in all the courts he will get his costs as calculated below from the plaintiff. He was interested only in about one-tenth of the plaint claim and so what he will get from the plaintiff will be one-tenth of the costs incurred by him in the trial and first appellate courts. Since the 1st defendant has succeeded in all the courts he will get his costs as calculated below from the plaintiff. He was interested only in about one-tenth of the plaint claim and so what he will get from the plaintiff will be one-tenth of the costs incurred by him in the trial and first appellate courts. He will however get his full costs of this court. The decree in other respects is allowed to stand as no one has cared to question the same. Appeal allowed.