Cheriyathu v. Parameswaran Namboodiripad — 1952 DIGILAW 128 (KER)

Judgment :- 1. All these cases relate to the Jenmikaram settled under the Jenmi and Kudiyan Act V of 1071 as amended by" Act XII of 1108. Though the parties are different there is one important common question arising in these suits. In fixing the Michavaram due to the Jenmi in the Kanom documents involved in the case and also decree of court, the Michavaram is directed to be paid according to the Jenmi's Para. The Jenmi's Para is described with reference to the Agrasala Para and so the question that arises in all these cases relates to the capacity of the Agrasala Para. The Jenmi contended that the cubic contents of the Agrasala Para, and of the Standard Para - the capacity of which is 800 cubic inches - are the same; while the tenants contended that the capacity of the Agrasala Para is only 640 cubic inches. We have therefore to decide whether the capacity of the Agrasala Para and of the Standard Para is the same or different, and if different, what is the capacity of the Agrasala Para. In none of the Statutes of the Travancore area we find a definition of the Agrasala Para. According to the Weights and Measures Act VI of 1085, the primary standard for measures of capacity was to be called an "Edangali" and it was to be a measure of metal certified to be capable of holding 80 cubic inches of water. Ten such Edangalies make one standard Para; so that the capacity of the standard Para is 800 cubic inches. At the time when the Revenue Settlement Proclamation was passed by His Highness the Maharaja of Travancore, under date the 14th Kumbhom 1061, corresponding to the 24th February 1886 it was directed in section 15 thus: "As in the case of land measure, so in that of the grain measure alo designated Para- there is at present no uniform standard, the Para varying in different localities. As it is desirable to have a fixed uniform measure throughout the State, we have sanctioned an Edangali of 80 cubic inches being adopted as the standard measure for the future, in supersession of the numerous varying measures now in use throughout the State". Though this finds a place in the Revenue Settlement Proclamation, it was not confined in its operation to the proceedings conducted under that Proclamation. Though this finds a place in the Revenue Settlement Proclamation, it was not confined in its operation to the proceedings conducted under that Proclamation. It had been adopted as a standard measure there-after. At that time there were the "Chalamudra Para' (Nmeap{Z,d) "Agrasala Para" (A{Kime,d) and the "Azhuvan Para" (Agph3]d) . This Azhuvan Para was much lower in capacity than the other two paras which were in use at that time. It was necessary therefore to prescribe a standard measure and the necessity was a1 tax due to Government had to be ascertained with reference to the Pattom thus fixed. The Pattom then fixed was adopted as the basis for the calculation of certain dues under the Jenmi and Kudiyan Amendment Act of 1108. Thus the grain measure described in section 15 of the Proclamation was intended to be for the general use of the State. It was this measure that was adopted in the Weights and Measures Act. While the Revenue Settlement Proclamation was in force the Jenmi and Kudiyan Act V of 1071, giving permanency of occupation of the holding to the tenant, was passed. Thereafter the right of the tenant, called the Kudiyan, in his holding was sanctioned to be heritable and transferable. No Kudiyan was to be evicted from his holding or any part of his holding except in execution of a decree of court and no court was allowed to pass a decree for such eviction except under the conditions laid down in section 7. The relationship between the Jenmi and the Kudiyan was to be evidenced by a Kanapattom deed to be executed by the Jenmi to the Kudiyan and an Ethir Kanapattom by the Kudiyan to the Jenmi. The particulars of the Kanapattom contract were to be as laid down in section 15 of the Act; and in sub-section 2 of that section, it is stated that if the Michavaram or other dues are made payable in kind, it shall be specified according to the measure or Para prescribed by the Government or which may be agreed upon between the parties and that if any local Para or measure is used by the parties, the difference between it and the Government standard Para must be set forth in the Kanapattom. By sub-clause 3, the registering officers were directed to refuse to accept for registration any Kanappattom instrument unless it contained the particulars set forth in the preceding clauses. These directions had evidently kept in view the standard measure prescribed in the Revenue Settlement Proclamation of 1061. In the Kanapattom deeds executed subsequently the Standard Para (kAimA ap{Z]d) came to be interpreted by the parties differently. Some referred to the Jenmi's Para and gave the capacity in terms of the Chalamudra Para, while others did so in terms of the Agrasala Para. The Director of Registration therefore sent a communication to the Government to specify by a notification the Sirkar Mudra Para referred to in the second clause of section 15 of the Jenmi and Kudiyan Act. The decision then taken by Government on 14-10-1072 was that the "Sirkar Mudra Para" or the Standard Para mentioned in the Jenmi and Kudiyan Act was the same as the Agrasala Para. This decision was notified in the Travancore Government Gazette dated the 20th Edavam 1072 at page 792. Thus, after that date, if the Jenmi and Kudiyan described the Jenmi's Para with reference to the Agrasala Para or if the Jenmi and the Kudiyan conducted themselves in the payment of the Michavaram on the above basis, it was all along understood that Agrasala Para and Standard Para had the same capacity There was no room for any doubt, at least after 1072, with regard to the capacity of Agrasala Para. It was understood and acted upon as if such capacity was 800 cubic inches. At any rate, that was how the parties who paid the Michavaram, and the Jenmi who received the same, conducted themselves. 2. The first case up before the High Court relating to this matter was S.A.159 of 1100. Copy of that judgment is Ext. G in S. A. 33 of 1124 and Ext. H in S.A.154 of 1123. There, the Kudiyan contended that the capacity of an Agrasala Edangali was only 64 cubic inches. This argument advanced was based on certain remarks made by the late Mr. Ramachandra Rao in the course of his enquiry into the Devaswom affairs. Though that report was not available to Their Lordships then, we find the same as Appendix II in the valuable book "Devaswoms in Travancore" published by the Devaswom Board. At page 376 of that book appears Mr. Ramachandra Rao in the course of his enquiry into the Devaswom affairs. Though that report was not available to Their Lordships then, we find the same as Appendix II in the valuable book "Devaswoms in Travancore" published by the Devaswom Board. At page 376 of that book appears Mr. Ramchandra Rao's remarks relating to the Agrasala Para. He stated that the Para formerly in use in almost all pagodas from ancient times was the "Chandra Para" which might be taken to be equal to the Agrasala Para, that about the year 1065, the Agrasala measure of 640 cubic inches was displaced by the settlement para of 800 cubic inches in several institutions, and that the capacity of the Agrasala Para was 640 cubic inches. Further down he had stated that he had compared the Agrasala Para, which he obtained from the Trivandrum Second Tahsildar with the Settlement Para in a few pagodas, that he found 100 Paras of rice according to the settlement measure to be equal to 104 Paras and 8 3/4 Edangalies according to the Agrasala measure and that in the case of some pagodas the difference appeared to be as high as 9 Paras and 3 3/4 Edangalies of Agrasala measure. This is his observation relating to this matter. If the capacity of Agrasala Para is 640 cubic inches and that of the Standard Para 800 cubic inches, then 100 Paras of rice according to the Standard Para should have measured 125 Paras according to the Agrasala Para. The difference could not therefore have been 4 or 9 Paras as noticed by him in his report. The Agrasala Para which he got therefore was approximate, to the standard measure used in several of the pagodas. There was no critical study of the capacity of the two kinds of Paras in his report, and so no help is derived by that report, which is now available for us for reference. 3. In the judgment in S.A.159 of 1100, Their Lordships further mentioned that the opinion of Mr Ramachandra Rao was the result of the observation confined to facts relating to certain Devaswoms. That appears to be the correct position. 3. In the judgment in S.A.159 of 1100, Their Lordships further mentioned that the opinion of Mr Ramachandra Rao was the result of the observation confined to facts relating to certain Devaswoms. That appears to be the correct position. Their Lordships then laid down after a careful consideration of the question involved and arrived at the conclusion that the standard measure was identical with the Agrasala measure and that such measure was an Edangali with a capacity of 80 cubic inches of water. This is in accordance with the provision in the Revenue Settlement Proclamation, Jenmi and Kudiyan Act, and the Government notification of 1072. We had not been referred to any other Government notification or order where the capacity of Agrasala Para was mentioned to be 640 cubic inches, until we come to a letter of 29-8-1110 corresponding to 11-4-1935 from the Chief Secretary to Government to the Land Revenue and Income Tax Commissioner, laying down, that for all purposes of measurement, the Agrasala Para may be treated as having the capacity of 640 cubic inches, that the Agrasala Para should be taken as equal to 640 cubic inches with reference to Jenmi karam settlement case and that in respect of cases already disposed of in the settlement of Jenmi karam the Agrasala Para should be taken as equivalent to 640 cubic inches only when the question is raised for decision in revision or appeal cases. This was the view expressed, adopting the opinion of the Additional Head Sirkar Vakil to whom the question was apparently referred. This letter is seen published at pages 162 and 153 of the fourth supplement to the Travancore Land Revenue Manual Vol. II. It would appear, that the matter was again referred to the Additional Head Sirkar Vakil and he sent his views in the master on 29-12-1935 sticking to the earlier views expressed by him and referred to already. In this note of the additional Head Sirkar Vakil, his attempt was to criticise some of the decisions of the High Court, which according to him, might not have been correct in their interpretation of the measure Agrasala Para. Though he had referred to the Government Notification of 1072 (vide page 439 of the Travancore Acts and Proclamation, Vol. In this note of the additional Head Sirkar Vakil, his attempt was to criticise some of the decisions of the High Court, which according to him, might not have been correct in their interpretation of the measure Agrasala Para. Though he had referred to the Government Notification of 1072 (vide page 439 of the Travancore Acts and Proclamation, Vol. II), he attempted to brush it aside with the observation that the notification does not say what the capacity of the Para is nor does it suggest that the Agrasala Para should be treated as equivalent to the Para measure intended by the Settlement Proclamation; This was nothing but a twist of the words and the ideas contained in the Notification of 1072, In 1072 so far as the State Government was concerned, there was only one standard measure and that standard measure was the Edangali with a capacity of 80 cubic inches. We do not wish further to comment on the views expressed by the learned Sirkar Vakil or to his remarks which we think are entirely unjustified regarding the decisions of the High Court. We therefore ignore that communication and the Government letter based thereon to the Land Revenue and Income-Tax Commissioner. This letter and the Sirkar Vakil's views are seen printed at pages 287 to 294 of the supplement mentioned above, 4. In another case Kunjaikan v. Govinda Panickar (32 T. L. J. 355) decided on the 17th February 1942, it had been held by a Division Bench that the Kulasekharamangalam Para is equal in capacity to Agrasala Para and that according to the Government notification of 1072, the Agrasala measure is equivalent in capacity to the standard Para as contemplated in section 15 of the Jenmi and Kudiyan Act of 1071. Two other decisions of the High Court were brought to our notice. The first was the decision of a Single Judge in Civil Proceeding No. 1916 of 1120 where it was held that the capacity of an Agrasala Para is 640 cubic centimeters. Evidently the learned judge meant by cubic centimetres cubic inches. That order was passed on the concession made by the opposite side and not with reference to the relevant statutory provisions which we have referred to above. Evidently the learned judge meant by cubic centimetres cubic inches. That order was passed on the concession made by the opposite side and not with reference to the relevant statutory provisions which we have referred to above. The other decision is by a Division Bench in A.S.253, 467 and 419 of 1118 where the capacity of Agrasala Para is held to be 640 cubic inches. This case was decided mainly on the two communications of Government published at pages 152 and 287 of the fourth supplement already referred to. These Government communications cannot disturb the vested rights of parties who acted on an earlier notification at least for 40 years. We ignore these two notifications and overrule the two decisions which held that the capacity of the Agrasala Para is 640 cubic inches. The decision in S.A.159 of 1100 and 32 T.L.J. 355 are accepted for they are based on the Government notification of 1072 explaining the settlement measure referred to in section 15 of the Jenmi and Kudiyan Act passed in the previous year. We therefore lay down that the capacity of the Agrasala Para when it is used with reference to the Jenmi and Kudiyan under Act V of 1071 as amended by Act XII of 1108 is 800 cubic inches of water. 5. With the opinion thus expressed we shall now consider the several oases on their merits. S. A. Nos. 83 & 34, of 1124, and G. R P. 53 of 1124 These cases will be taken up first. S.A. 33 and 34 arise out of suits filed by the Jenmies to rectify the decision of the Jenmikaram Settlement Officer fixing the capacity of Agrasala Para as 640 cubic inches. The trial court found that such capacity is 800 cubic inches The District Judge found that the said capacity is only 640 cubic inches and therefore modified the trial court decree. Now that we have found the true capacity of the settlement Para to be 800 cubic inches we set aside the decrees passed in appeals by the District Judge in S. A 33 and 34 of 1124, and restore those of the trial court. Now that we have found the true capacity of the settlement Para to be 800 cubic inches we set aside the decrees passed in appeals by the District Judge in S. A 33 and 34 of 1124, and restore those of the trial court. Based on the decision in O. S. 137 of 1115 of the Parur Munsiff's Court (S.A. 33 of 1124), the Jenmi had filed the Small Cause Suit No. 7 of 1120 in the District Court, Parur for arrears of Jenmikaram due for the years 1115 and 1116. This Small Cause suit was derided along with the appeal from the decision in O.S. 137 of 1115 (A.S.126 of 1121 of the Parur District Court)- Since the judge had held in the appeal before him against the Munsiff's Court decree as regards the capacity of the Agrasala Para, he while decreeing the suit made a corresponding reduction in the amount claimed by the Jenmi That decision is modified. The whole amount claimed by the plaintiff in the plaint based on the decision in O. S. 137 of 1115 is decreed. The decrees of the lower appellate court in S.A. 33 and 34 of 1124 are reversed and those of the trial court restored. C.R.P. 53 of 1124 is allowed as indicated above. 6. S.A.154 of 1123: - This appeal arose on a suit filed by the Jenmi for the enhancement of the Jenmikaram based mainly on the capacity of the Agrasala Para. The first Court found such capacity to be 800 cubic inches and this was confirmed in appeal by the learned District Judge. So on this matter we uphold the concurrent decrees of the lower courts. On behalf of the Ist defendant-appellant it had been argued that the original kanom document Ext. A of 1073 covered the properties here as well as the other properties, that as regards all other properties, the Kudiyan had attorned to the Jenmi, that the Jenmikaram due from him had been settled and accepted by the Jenmi and that the balance if any alone could be charged on the plaint properties, It is seen that the Jenmi had filed a statement on 23-2-1120 showing the correct calculation of the Jenmikaram. The correctness of the calculation was not questioned here or in the courts below by the appellant. The correctness of the calculation was not questioned here or in the courts below by the appellant. According to that statement the Jenmikaram due on account of the plaint properties would be 50 paras and 5 9/16 Edangalies of paddy and Rs. 7 Chs. 3 Cash 11. But the plaintiff had claimed only a lower amount in this suit namely 34 Paras and 31/4 Edangalies of paddy and Rs. 6 Chs. 21 Cash 14. Though the Jenmi is getting a higher amount than that legitimately due from the tenants of the remaining properties, the appellant could not claim an abatement of what is legitimately due from him to the Jenmi. If there is any mistake in the calculation of the amount, it is open to the parties to get it corrected or rectified. That does not mean that on account of any mistake committed by the Jenmi in his dealings with the other people, the tenant of the plaint properties could claim an abatement on account of such mistake. Since the plaintiff has claimed only an amount smaller than what was legitimately due to him there is no substance in this contention or in this appeal We have already decided that the capacity of the Agrasala Para is 800 cubic inches and so this appeal is dismissed. 7. S.A.16 of 1124:- In this case it was the Jenmi who claimed the Jenmikaram from the tenant. He had also asked for the rectification of the Jenmikaram Officer's decision as the same proceeded on the assumption that the capacity of Agrasala Para was 640 cubic inches. According to the plaintiff the Jenmi's Patta Para was 13 3/4 by 10 of the Agrasala Para. The Jenmikaram Officer had also calculated the fractional fee on the basis that the renewal of the Kanappattom was to be once in 36 years. It was stated by the plaintiff that this was wrong and that the fractional fees had to be calculated as if the renewal of the kanom was to take place once in 12 years; All the reliefs claimed by the plaintiffs were granted by the trial court. The District Judge had confirmed the decree of the first court. 8. It was stated by the plaintiff that this was wrong and that the fractional fees had to be calculated as if the renewal of the kanom was to take place once in 12 years; All the reliefs claimed by the plaintiffs were granted by the trial court. The District Judge had confirmed the decree of the first court. 8. The appellant who is the defendant in the trial court had stated that the suit itself was not maintainable as all the trustees of the Devasworn to which the plaint properties belonged, were not parties to the suit. The trial court found against him and when it came up before the lower appellate court this matter was not seriously pressed That finds a place in the judgment of the lower court. But the appellant's learned Advocate here argued that this observation was not correct. He was however not able to substantiate the same. Even apart from that, it is seen that there were five trustees to the Devaswom. The family of one of the trustees had become extinct and the remaining four trustees had instituted this suit. There was also an Udampady of 1107 between the trustees in which these facts were mentioned and that document, probably as an additional safeguard, had been produced by the respondent in this Court In any view there is no substance in the appellant's argument that the suit, is not maintainable as all the trustees have not joined in the action. 9. As regards the capacity of the Agrasala Para, the courts below found the suns to be 800 cubic inches. Though in this case the relationship between the parties is evidenced by a compromise decree Ext. I in O.S. 40 of 1057 of the District Court, Parur, the Jenmi and the Kudiyan were conducting themselves ever since on the assumption that the Agrasala Para had the same capacity as the standard Para. There is no substance in this contention of the appellant. 10. Another objection taken was that the Patta Para of the Devaswom was only 13/10 of the Agrasala Para and not 13 3/4 by 10 as mentioned in the plaint. It is true that in Ext. I compromise decree while stating the pleadings the capacity of the Patta Para was mentioned to be 13/10 of the Agrasala Para. But the subsequent conduct of the parties as evident from Ext. It is true that in Ext. I compromise decree while stating the pleadings the capacity of the Patta Para was mentioned to be 13/10 of the Agrasala Para. But the subsequent conduct of the parties as evident from Ext. E the counter-foil of a receipt issued from the Devaswom to the defendant, it was seen that the conversion of the Patta Para was made at the rate of 13 3/4 by 10 of the Agrasala Para. Ext. I decree related to the properties other than the plaint items and the tenants of the other properties had as seen from Exts. H and L accepted the capacity of the Jenmi's Patta Para as mentioned in the plaint as also his right to claim the renewal fees once in 12 years. The 1st defendant examined as D. W.1 had admitted that on payment of the Michavaram he had obtained receipts from the Devaswom. He had been asked whether he could produce the same and be had undertaken to produce them. But he had not produced any of those records. On the other hand Ext. E the counterfoil of the receipt issued to the defendant would show that the conversion was as mentioned by the plaintiff. There is no substance in this contention of the defendant. 11. Another contention of the defendant was that since Ext. I had not provided for the renewal of the Kanapattom once in 12 years, the fractional fee had to be calculated as if the same was to be once in 35 years. Sec. 18 of the Jenmi and Kudiyan Act had provided for the renewal of Kanapattom once in 12 years and that was the practice at any rate in regard to the other properties covered by Ext. I decree than the plaint items. The defendant bad not shown that he was to have the benefit of the calculation based on the renewal once in 36 years. This objection also is overruled. 12. The last argument related to the Kalasavari decreed by the court below. It is seen that there was no provision for Kalasavari in Ext. I decree. There is also no evidence to show that this defendant or his predecessors-in-interests had paid the Kalasavari at any time before. Even Ext. E receipt does not show that Kalasavari had been taken into account. It is seen that there was no provision for Kalasavari in Ext. I decree. There is also no evidence to show that this defendant or his predecessors-in-interests had paid the Kalasavari at any time before. Even Ext. E receipt does not show that Kalasavari had been taken into account. This claim for Kalasavari has therefore to be disallowed in the settlement of Jenmikaram. Both sides had not stated how much this came to. It is seen from Ext. II the copy of the Settlement Officer's decision that the Kalasavari was to be 1.72 per cent of 15 per cent of the renewal fees. This as regards plaint item 1 came to 61/2 Edangalies of paddy and 4 Chs. 14 Cash. As regards plaint item 2 this was 2 Edangalies of paddy and 4 Chs. 7 Cash. The total of these two comes to 8 1/2 Edangalies of paddy and 9 Chs. 5 Cash. This amount has to be deducted from the Jenmikaram claimed in the plaint. The plaint claim will therefore be calculated leaving out the Kalasavari as mentioned above and the decrees of the courts below will stand modified to this extent. 13. Since the main question in all the proceedings before us related to the capacity of the Agrasala Para and since the same was brought about by the conflicting directions of the Government as well as the conflicting decisions of the High Court, the proper directions will be to direct the parties to bear their costs of this court. The orders of the courts below regarding the costs except that in S. A. 33 and 34 of 1124 and C. R. P. 53 of 1124 will stand. The plaintiffs in those cases will get their costs in the District Court from the defendant. 14. There was an argument advanced at the time when some of these appeals came before a Full Bench on a previous occasion regarding the capacity of the Jenmi's Patta Para itself and as to the meaning of the expression. Now that the capacity of the Patta Para is mentioned with reference to the Agrasala Para, it is unnecessary to go into that question when we have held that the capacity of the Agrasala Para is 800 cubic inches.