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Kerala High Court · body

1953 DIGILAW 90 (KER)

State v. Narayana Pillai

1953-07-24

SUBRAMONIA.IYER, VITHAYATHIL

body1953
Judgment :- 1. The first defendant is the appellant. The plaint properties which are nine in number belong to the Thazhava Devaswom and were demised on kanappattom by the Devaswom in the year 1065 in renewal of a kanom of 1032. Defendants 2 to 4 purchased the kanapattom right from the original kanamdar. Subsequently they executed a mortgage in respect of the properties in favour of defendants 5 and 6. Defendants 5 and 6 executed a sub-mortgage in favour of the plaintiff on 1.2.1100. The plaintiff is thus in possession of the plaint properties. The Jenmikaram Settlement Officer of Karunagappally assessed plaint items 1 to 7 to jenmikaram in Jenmikaram Case No. 511 of 1109 on his file and settled jenmikaram at 8 paras and 7 Edangalies of paddy. Plaint items 8 and 9 were not assessed to jenmikaram. According to the plaintiff those items also are liable to be assessed to jenmikaram and the jenmikaram assessable on them is one para and 5 edangalies of paddy. As per the decision in jenmikaram Case No. 511 of 1109 the plaintiff paid jenmikaram to the Devaswom till the year 1112. In Meenom 1112 the State assumed management of the Devaswom. When the plaintiff offered jenmikaram for the years 1113 and 1114 the Devaswom authorities refused to accept the same. Plaintiff thereupon filed two suits against the Devaswom in the Karunagappally Munsiff's Court as Summary Case No.1 of 1115 and O.S. No. 101 of 1119 and deposited in Court the jenmikaram payable in respect of the plaint properties for the years 1113 to 1118. Those suits were decreed and the Devaswom was directed to receive the jenmikaram deposited by the plaintiff. But when the plaintiff offered the jenmikaram for the years 1119 and 1120 the Devaswom authorities again refused to accept the same. They demanded from the plaintiff the dues fixed in the kanapattom document. Subsequently, the plaintiff came to know that Devaswom authorities had caused the decision in Jenmikaram Case No. 511 of 1109 to be cancelled in Jenmikaram Case No. 965 of 1115. The plaintiff was not given notice of the latter case. It is alleged that the decision in Jenmikaram Case No. 965 of 1115 is wrong and is liable to be set aside. The plaintiff was not given notice of the latter case. It is alleged that the decision in Jenmikaram Case No. 965 of 1115 is wrong and is liable to be set aside. It is also alleged that since the Devaswom had acquiesced in the decision in Jenmikaram case No. 511 of 1109 before the assumption of the management of the Devaswom by the State the decision in that case is binding on the State also. On these grounds the plaintiff prayed for (1) declaration that the plaint properties are liable only for the jenmikaram assessable on them, plaint items 1 to 7 being liable for the jenmikaram settled by the decision in Jenmikaram case No. 511 of 1109 and items 8 and 9 being liable for one para and 5 Edangalies of paddy per year; (2) cancellation of the decision in Jenmikaram Case No. 965 of 1115; (3) declaration that the Devaswom is entitled to realise only the balance jenmikaram after giving credit for the amount deposited by the plaintiff in the two suits in the Karunagappally Munsiff's Court, and (4) an injunction restraining the State from taking steps for the realisation of any dues other than Jenmikaram in respect of the plaint properties. 2. The first defendant contested the suit. It was contended that the plaint properties are the thanathu properties of the Thazhava Devaswom, that the deed of 1065 though styled as kanapattom is only a redeemable lease, that the plaintiff is liable to pay all the dues mentioned in the document of 1065, that the decision in Jenmikaram Case No. 965 of 1115 setting aside the decision in Jenmikaram Case No. 511 of 1109 is valid and binding on the plaintiff, that the plaint properties cannot be assessed to jenmikaram, that the decisions in Summary Case No.1 of 1115 and O.S. No. 101 of 1119 of the Karunagappally Munsiff's Court are not binding on the State or the Devaswom, that the plaintiff has no cause of action, that the suit is barred by limitation, that proper Court fee was not paid and that the plaintiff was not entitled to any of the reliefs claimed in the plaint. The plaintiff filed a replication traversing the contentions in the written statement and reaffirming the allegations in the plaint. 3. The main question that was considered by the court below was whether the document of 1065, Ext. The plaintiff filed a replication traversing the contentions in the written statement and reaffirming the allegations in the plaint. 3. The main question that was considered by the court below was whether the document of 1065, Ext. A was a kanappattom coming within the purview of the Travancore Jenmi and Kudiyan Act. The learned District Judge decided this question in favour of the plaintiff. It was held that Ext. A is a Kanapatom to which the Jenmi and Kudiyan Act would apply and that the plaint properties are therefore liable to be assessed to jenmikaram under the amended Act of 1108. With regard to the decisions in Summary Case No.1 of 1115 and O.S. No. 101 of 1109 of the Karunagappally Munsiff's Court it was held that those decisions are not binding on the Devaswom since those suits were instituted after assumption of the management of the Devaswom by the State without the State being made a party to the suits. With regard to the contention of the State relating to court fee, it was held that proper court fee was paid by the plaintiff. The decision in Jenmikaram Case No. 965 of 1115 was set aside. The suit was held to be not barred by limitation. The plaintiff's prayer for declaration that the Devaswom can recover only the balance of Jenmikaram after giving credit for the amounts deposited by the plaintiff in the two suits in the Karunagappally Munsiff's Court was disallowed. A permanent injunction was issued restraining the State from taking steps for the realisation of any dues in respect of the plaint properties other than the jenmikaram leviable under the amended Jenmi and Kudiyan Act. The first defendant was ordered to pay one half of the costs of the plaintiff. 4. Since the Thazhava Devaswom is now under the management of the Travancore Devaswom Board the Board got itself impleaded in the appeal in the place of the State. 5. The only point that was argued in the appeal on behalf of the appellant was that the kanapattom deed of 1065, Ext. A, is not a kanapattom coming within the purview of the Travancore Jenmi and Kudiyan Act and that, therefore, the plaint properties are not assessable to jenmikaram under that Act. According to learned counsel for the appellant Ext. A is not an irredeemable kanom but a redeemable mortgage. A, is not a kanapattom coming within the purview of the Travancore Jenmi and Kudiyan Act and that, therefore, the plaint properties are not assessable to jenmikaram under that Act. According to learned counsel for the appellant Ext. A is not an irredeemable kanom but a redeemable mortgage. He also argued that the plaint properties are not jenmom lands as defined in the Jenmi and Kudiyan Act and that the Thazhava Devaswom cannot be regarded as the jenmi of these properties since the Devaswom is only an assignee of the rights of the original jenmi, Vizhavasseri Potti. 6. The first question, therefore, for consideration is whether Ext. A is a redeemable kanom coming within the purview of the Travancore Jenmi and Kudiyan Act or only a redeemable mortgage. Ext. A was executed by the Thazhava Devaswom on 27.5.1065. It was a renewal of a prior demise dated 20.12.1032. The document is described as kanapattom adharam. The kanom amount is stated to be 15021/2 kalipanams. There is provision for the payment of customary dues. There is also a term of 12 years. There is no provision for surrender of the property after the expiry of the term of 12 years. But there is also no provision for renewal at the expiry of the term or for payment of adukkuvathu. The document of 1032 is not produced in the case and we are not in a position to know what the terms of that document were. Ext. A does not show that any renewal fee was paid on the date of the execution of that document. There is, however, evidence in the case that renewal fee was paid to the Devaswom in the year 1094. The Devaswom accounts, Ext. Q prove that. The court below has found that adukkuvathu was paid to the Devaswom in respect of the plaint properties in the year 1094. This finding was not attacked by the appellant. The question for decision is whether under the circumstances Ext. A can be regarded as an irredeemable kanom to which the Royal Proclamation of 1042 and the Jenmi and Kudiyan Act would apply. 7. It is admitted by both sides that the distinguishing feature of a kanom tenure is the payment of adukkuvathu or renewal fee. It has been so held in various decisions of the erstwhile Travancore High Court. A can be regarded as an irredeemable kanom to which the Royal Proclamation of 1042 and the Jenmi and Kudiyan Act would apply. 7. It is admitted by both sides that the distinguishing feature of a kanom tenure is the payment of adukkuvathu or renewal fee. It has been so held in various decisions of the erstwhile Travancore High Court. (Vide Parameswaran v. Neelakantan Namburi, 39 TLR 279 (FB) and Luke v. Itty Ipe, (30 TLJ 161 (FB)). The same view was taken by this Court in Mariyam v. Sree Purushamangalam Devaswom (1952 ILR Travancore-Cochin 79). In 39 TLR 279 it was held that in the case of mortgages or leases granted between the date of the Royal Proclamation of 1042 and the date on which the Jenmi and Kudiyan Act came into force the lands comprised in such leases or mortgages would be redeemable unless there was stipulation in the document for payment of renewal fees or unless there was proof of payment of such fees. In 30 TLJ 161 also the Full Bench held that if there was no provision in the document for payment of renewal fees or evidence of payment of such fees the tenure would not be an irredeemable kanom coming within the purview of the Royal Proclamation of 1042 merely because there was no specific right of revocation reserved in the document. These two decisions were followed by this Court in 1952 ILR Travancore-Cochin 79 and it was held in that case that if a demise after 1042 has to be regarded as irredeemable kanom either there must be a provision in the document for payment of renewal fees or there must be evidence that renewal fees have been paid by the tenant. But learned counsel for the appellant argued that in the case of documents executed before the Jenmi and Kudiyan Act of 1071 came into force, if there is no provision in the document for payment of renewal fees such fees should have been paid before the date of the Royal Proclamation of 1042 in order to constitute the demise an irredeemable kannom. According to learned counsel the Proclamation and the Jenmi and Kudiyan Act would apply only to cases in which there was either a provision in the document for payment of renewal fees or there was evidence of payment of such fees before the date of the Proclamation. According to learned counsel the Proclamation and the Jenmi and Kudiyan Act would apply only to cases in which there was either a provision in the document for payment of renewal fees or there was evidence of payment of such fees before the date of the Proclamation. As stated already, the prior document of 1032 is not produced in the case and, therefore, there is no means of knowing whether it contained a provision for payment of renewal fees. There is also no evidence in the case that any renewal fee was paid before the date of the Proclamation. It is, therefore, argued that in the absence of a provision in Ext. A for payment of renewal fees the document cannot be deemed to have created a tenure to which the Royal Proclamation of 1042 and the Jenmi and Kudiyan Act would apply. 8. We do not think that this argument is supported by any of the rulings referred to above. In none of the decisions of the Travancore High Court relating to this question was it held that in the case of documents which do not contain a provision for payment of renewal fees such fees should have been paid before the date of the Proclamation of 1042 in order to constitute the demise an irredeemable kanom. What was held in those cases was that the payment of renewal fees is a distinguishing feature of kanom demise and that in order to constitute such a demise there should either be a provision in the document for payment of such fees or evidence of such payment. In no case was it held that the payment should be before the date of the Proclamation of 1042. In Thrivikraman v. Paily (14 TLJ 76) the document was of the year 1075 which was one in renewal of a deed of 1019. There was no provision in the document for payment of renewal fees. But it was contended by the tenant that renewal fee was paid in the year 1084. The court went into the question as to whether the payment was true or not and on a discussion of the evidence came to the conclusion that the payment was not true. On that ground the learned judges held that the demise was not an irredeemable kanom. The court went into the question as to whether the payment was true or not and on a discussion of the evidence came to the conclusion that the payment was not true. On that ground the learned judges held that the demise was not an irredeemable kanom. It has to be assumed that if the learned judges found that renewal fee was paid as contended by the tenant they would held that the demise was an irredeemable kanom. The following was the conclusion reached by the learned judges: "This Court has in a series of decisions laid down that the distinctive characteristic of a kanapattom is the stipulation for the payment of renewal fees. Such stipulation has to be made in express terms by reason of the mandatory nature of the sections of the Jenmi and Kudiyan Regulation touching the subject, but in the case of documents executed before the date of that Regulation it is open to the parties to prove actual payment of renewal fees even in the absence of an express stipulation therefor. As in the present case Ext. A contains no provision regarding payment of renewal fees and as no payment of such fees has been proved by the defendants, it may be safely inferred that the parties did not contemplate the creation of a kanapattam tenure". The same view was taken by the Travancore High Court in Trivikraman Namboori v. Uthup (14 TLJ 103). There also the kanam deed was of the year 1059 and there was no provision in the document for renewal or for payment of renewal fees. The tenant contended that renewal fee was paid in 1075. The court went into that question and found against the tenant. In 1952 ILR Travancore-Cochin 79 also the document was of the year 1059. There was no provision in the document for renewal or for payment of renewal fees. It was contended by the tenant that renewal fee was paid. The judgment does not show the date of the alleged payment. But it must have been after 1059. The court went into the question as to whether the alleged payment was true or not and found against the tenant. It is clear that if in these cases the court had found that renewal fees were paid the demises would have been held to be irredeemable. But it must have been after 1059. The court went into the question as to whether the alleged payment was true or not and found against the tenant. It is clear that if in these cases the court had found that renewal fees were paid the demises would have been held to be irredeemable. The real question for decision is whether the parties to the transaction intended to create an irredeemable kanom even though the intention is not clear from the terms of the document. If the tenant pays and the Jenmi receives renewal fees that will be evidence of the intention of the parties to create an irredeemable demise. In this particular case, over and above the receipt of renewal fees by the Devaswom in the year 1094 the Devaswom did not object to jenmikaram being settled for plaint items 1 to 7 under the Jenmi and Kudiyan Act and received jenmikaram until the management of the Devaswom was assumed by the State. It is clear from this that the Devaswom treated the demise evidenced by Ext. A as an irredeemable kanom coming within the purview of the Jenmi and Kudiyan Act. 9. Learned counsel for the respondent contended for the position that clause (8) of the Proclamation of 1042 would apply to the case since there is no provision in Ext. A for surrender of the property. That clause requires that in the case of leases granted by jenmies on receipt of consideration after the date of the Proclamation the right of revocation should be expressly reserved in the deed. We do not think that this provision will apply to the present case. It has been held by the Travancore High Court that clause 8 of the Proclamation would apply only to fresh leases granted after the date of the Proclamation and not to renewals of the old leases (vide 14 TLJ 76 and 14 TLJ 103). Moreover, it has been held in the Full Bench cases referred to above, namely, 39 TLR 279 and 30 TLJ 161 that clause 8 of the Royal Proclamation of 1042 has reference only to jenmam lands held on payment of renewal fees and customary dues by the tenant. Moreover, it has been held in the Full Bench cases referred to above, namely, 39 TLR 279 and 30 TLJ 161 that clause 8 of the Royal Proclamation of 1042 has reference only to jenmam lands held on payment of renewal fees and customary dues by the tenant. The following is the opinion expressed by the Full Bench in the latter case on this question: "If there is no provision for payment of renewal fees or evidence of payment of renewal fees, the tenure will not be irredeemable under clause 8, Royal Proclamation of 1042 merely because there is no specific right of revocation reserved in the document." 10. The next argument advanced on behalf of the appellant was that the properties in question are not jenmam lands within the meaning of S. 3 of the Travancore Jenmi and Kudiyan Act. In Ext. A items 1 to 7 are described as thanathu properties of the Devaswom while items 8 and 9 are described as Devaswom otti (aMU. KrrM). Prima facie it would appear that items 1 to 7 only are jenmam lands and that items 8 and 9 are non jenmam lands. The plaintiff, however, alleged in the plaint that all the plaint properties are pandaravaka kudi jenmam lands and that they are jenmam lands coming within the purview of the Jenmi and Kudiyan Act. In the written statement filed by the State it was contended that the plaint properties are the thanathu properties of the Thazhava Devaswom. The State did not seek to make a distinction between items 1 to 7 and items 8 and 9. Issue 1 raised in the case was to the following effect: "Are the plaint properties the Thazhava Devaswom Thanathu properties as contended by the Sirkar?" We fail to see why the properties should not be regarded as jenmam lands if they are the thanathu properties of the Thazhava Devaswom. Even in the appeal memorandum the ground taken by the State is that the plaint properties are the thanathu properties of the Devaswom. In the light of this admission by the State there was no necessity for the plaintiff to prove that items 8 and 9 are also jenmam lands. The Chitta Ext. E shows that the plaint properties are entered in the Sirkar accounts as Pandaravaka Kudi jenmam. In the light of this admission by the State there was no necessity for the plaintiff to prove that items 8 and 9 are also jenmam lands. The Chitta Ext. E shows that the plaint properties are entered in the Sirkar accounts as Pandaravaka Kudi jenmam. It has been held in various cases that Kudijenmam lands of this category are jenmam lands coming within the purview of the Jenmi and Kudiyan Act even if the properties are described as Pandaravaka Kudijenmam in Sirkar records (Vide Easwaran v. Vasudevan (16 TLJ 17), Sreedharan Moosad v. Narayana Iyen (12 TLT 555= 28 TLJ 510), Brahmananda Thirtha v. Krishna Pillai (1945 TLR 221) and Narayanan v. Ramaru (57 TLR 599). We therefore accept the finding of the Court below that the plaint properties are jenmam lands coming within the purview of the Jenmi and Kudiyan Act. 11. The third argument advanced on behalf of the appellant was that the Tazhava Devaswom is not a jenmi in respect of the plaint properties since the Devaswom is only an assignee of the rights of the original jenmi Vizhavasseri Potti. Ext. A shows that the properties have been gifted to the Devaswom by the Potti (yivyy-hLjU RpVfM•OgfLRW). It was not a transfer for consideration and no tax was imposed on the properties by reason of the transfer. The transferee being a Devaswom cannot be regarded as a non jenmi. In the circumstances we find no reason to hold that the jenmam character of the land was changed by reason of the gift in favour of the Devaswom. The only question for consideration is whether the properties come within the definition of jenmam lands in S. 3, sub-s. (1) of the Jenmi and Kudiyan Act. Jenmam land is defined thus in that sub-section: "Jenmam land' means land (other than Pandaravaka, Sreepandaravaka, 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 the 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". "Explanation : Rajabhogam includes Rajabhogam paid to a Chief within whose freehold estate the land is situate". The word 'Jenmi' is defined thus in Sub-s. 2: "'Jenmi' means a person in whom the proprietary right over jenmam lands is vested and includes, in the case of Devaswom owning jenmam lands, the managing trustee or trustees of the institution for the time being". We are of opinion that the properties in question come within the category of jenmom lands as defined in the Act. It follows from this that the properties are liable to be assessed to jenmikaram under the Jenmi and Kudiyan (Amendment) Act of 1108. The court below was, therefore, justified in setting aside the decision of the Jenmikaram Settlement Officer in Jenmikaram Case No. 965 of 1115. No other point was argued in this appeal. 12. In the result we confirm the judgment and decree of the court below and dismiss the appeal with costs. Dismissed.