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1954 DIGILAW 161 (KER)

Sreekumaran Kesavan Namboori v. Gopalan Madhavan.

1954-09-23

KUMARA PILLAI, SANKARAN

body1954
Judgment :- 1. The question for decision in this appeal is whether the plaint property is held on redeemable or irredeemable tenure. According to the plaintiff appellant, plaint schedule items, belongs to his illom and is being held by the 1st defendant under a kanom deed of 1099 which has been produced as Ext. A in the case. The plaintiff's case is that item 1 is not jenmom land and that the tenure created by Ext. A is not therefore an irredeemable kanom governed by the Jenmi and Kudiyan Act, but only redeemable mortgage. Alleging that the Kanom amount has been wiped out by the arrears of michavaram, plaintiff brought the suit for recovery of possession of the property with mesne profits. There was also an alternative prayer for recovery of arrears of michavaram and other dues if it was found that the property was being held on irredeemable tenure. Plaint items 2 to 8 are buildings in item 1. Plaintiff offered to pay Rs. 50 as the value of these buildings and prayed that, if a decree for eviction was given to him and the defendants were not willing to accept Rs. 50 as compensation for the buildings, they must be compelled to remove the same. The 1st defendant contended inter alia that Ext. A was an irredeemable kanapattom, and that the plaintiff was therefore entitled to get only the jenmi-karom in respect of it. The lower court upheld this contention and refused to give a decree to the plaintiff for recovery of possession of the property. Since the Jenmikarom Settlement Officer had already held in Jenmikarom Settlement Proceedings that the property was not governed by the Jenmi and Kudiyan Act, to meet the ends of justice the lower court gave a decree to the plaintiff for recovery of arrears of michavaram for 6 years before the date of suit and also directed him to apply again to the Jenmikarom Settlement Officer to fix the jenmikarom of the property. While the 1st defendant has acquiesced in this decree the plaintiff has filed the appeal complaining against the finding that the tenure is irredeemable and the consequent dismissal of his claim for recovery of possession. 2. The major portion of plaint item 1 is being held by the 1st defendant under Ext. While the 1st defendant has acquiesced in this decree the plaintiff has filed the appeal complaining against the finding that the tenure is irredeemable and the consequent dismissal of his claim for recovery of possession. 2. The major portion of plaint item 1 is being held by the 1st defendant under Ext. A. A tiny plot in the south-eastern portion of that item has been obtained by the defendants under a puduval registry from the State. Plaintiff's case in respect of this plot is that it was also comprised in Ext. A demise and that the benefit of the registry would therefore enure to him. No separate arguments were advanced in this court as regards this plot, and the case was proceeded with hereon the footing that the right to this plot would depend upon the right of the rest of item 1. 3. Ext. V is an extract from the Settlement Register of Alleppey Pakuthy relating to plaint item 1. The tenure of plaint item 1 is shown therein as Pandaravaka Kudi-Jenmom. It is therefore contended by the appellant's counsel that the plaint property is not "Jenmom land" as that term is defined in the Jenmi and Kudiyan Act and that Ext. A is not therefore a Kanapattom governed by the Jenmi and Kudiyan Act. That Ext. A has all the other incidents of a Kanapattom under the Jenmi and Kudiyan Act was not disputed in this court. The only contention in this court was that the plaint property was not "Jenmom land" within the definition of that term in the Jenmi and Kudiyan Act but is a grant to the plaintiff's illom by the Sovereign and that as such it is not governed by the Jenmi and Kudiyan Act. A remand was also asked for to decide the question whether the plaint property is a grant to the plaintiff's illom by the Sovereign or not. 4. From the Land Revenue Manual and the Settlement Report it is clear that there are two kinds of Kudi-Jenmom lands. By the Huzur Sadhanom No. 5 dated 20th Chingom 1066 M.E. it was directed that the jenmom lands permanently alienated by the jenmies should be treated as Kudi Jenmom and registered in the names of the alienees and tax fixed thereon at 1/4 of the assessment. By the Huzur Sadhanom No. 5 dated 20th Chingom 1066 M.E. it was directed that the jenmom lands permanently alienated by the jenmies should be treated as Kudi Jenmom and registered in the names of the alienees and tax fixed thereon at 1/4 of the assessment. Even before the creation of this class of Kudi Jenmom lands there was another class of Kudi Jenmom lands, viz., lands granted as Inams by the Sovereign to Devaswoms and Brahmin jenmies. Both these classes of Kudi Jenmom are referred to in the report to the Jenmi Kudiyan Committee. An extract from the said report given at page 39 of Vol. I of the Regulations and Proclamations of Travancore, 1927 Edition, reads as follows: "Thus it would appear that Jenmom lands when alienated on sale, gift, etc., are converted into Pandaravaka-Otti or Kudi Jenmom. The Devaswam and Brahmaswom Jenmom lands were formerly converted into Pandaravaka-Otti, and Matampivaka lands still continue to be so converted. The effect of Huzur Sadhanom, No. 5 of 1066, was to create a new tenure, styled Kudi-Jenmom into which the absolutely alienated Devaswom and Brahmaswom Jenmom lands have since then been converted. The Kudi-Jenmom created in 1066 is different from another tenure of the same name, which has been recognised from time immemorial, as will be seen from the reference made to it in a Granthavari of Sri Padmanabhaswami Temple, dated 914 M.E. (vide Travancore Land Revenue Manual, Vol. V, Page 1). The old Kudi-Jenmom is treated as Inam and the new one as'Converted Jenmom' in the Settlement Report. Kudi-Jenmom (Inam) has been dealt with under S.25 of the Settlement Royal Proclamation, gardens being assessed with 1/8 Rajabhogam and wet lands with 1/8 Rajabhogam plus the old michavaram." The appellant's contention is that the plaint property is what has been referred to as old Kudi-Jenmom (inam) in the above extract and that it is not jenmom land as defined by the Jenmi and Kudiyan Act. Ext. A is only a renewal of a prior demise in respect of the plaint property. Exts.VII, VIII and IX, executed in 1054, 1075 and 1082 respectively, are the prior documents in respect of the plaint property. In all of them the property has been described as the tax free Brahmaswom land of the plaintiff's illom. In the settlement classification register also the plaint property is shown as Brahmaswom Thanathu of the plaintiff's illom. Exts.VII, VIII and IX, executed in 1054, 1075 and 1082 respectively, are the prior documents in respect of the plaint property. In all of them the property has been described as the tax free Brahmaswom land of the plaintiff's illom. In the settlement classification register also the plaint property is shown as Brahmaswom Thanathu of the plaintiff's illom. From the remarks column of the Chitta it is seen that the decision in the settlement proceedings was to treat the property as Kudi-Jenmom Inam. From these circumstances it is clear that the plaint property must have originally been a grant to the plaintiff's illom from the Sovereign and that subsequent to the grant it was being held as Brahmaswom Thanathu land belonging to the plaintiff's illom. It is therefore unnecessary to remand the case. We accept the plaintiffs' case that the plaint property was originally a grant to the plaintiff's illom and that it falls within the class of old Kudi-Jenmom or Kudi-Jenmom (Inam) land referred to in the report of the Jenmi Kudiyan Committee. 5. That does not mean the plaint property is not jenmom land as defined in the Jenmi and Kudiyan Act. According to the Jenmi and Kudiyan Act, 'jenmom Land' means land (other than Sri Pandaravaka, 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 a money consideration (Kanom) and is also subject to the payment of Michavaram or customary dues and the payment of renewal fees". The documents referred to above show that up to the time of the last settlement the plaint property was recognised in the Sirkar accounts as Brahmaswom Thanathu land and not as belonging to any of the classes of land excluded by S.3 of the Jenmi and Kudiyan Act from the definition of Jenmom land. The plaint property was Kudi-Jenmom Inam land, and in the settlement it has been mixed up with the second class of Kudi-Jenmom land created in 1066. Probably on account of the confusion between the two classes the tenure came to be mentioned in the Chitta as Pandaravaka Kudi Jenmom. The plaint property was Kudi-Jenmom Inam land, and in the settlement it has been mixed up with the second class of Kudi-Jenmom land created in 1066. Probably on account of the confusion between the two classes the tenure came to be mentioned in the Chitta as Pandaravaka Kudi Jenmom. That the decision in the settlement itself was to treat the land as Kudi Jenmom (Inam) is expressly stated in the remarks column of the Chitta (Ext. IV). 6. It has been held in a number of decisions that Kudi-Jenmom Inam lands are Jenmom lands governed by the Jenmi and Kudiyan Act and that a wrong description of them in some of the Sirkar accounts as Pandaravaka Kudi Jenmom would not affect their true character. The latest decision is reported at page 367 of 1954 K.L.T. (State v. Narayana Pillai). It has been held in that decision that Kudi-Jenmom lands of this category are jenmom lands coming within the purview of the Jenmi and Kudiyan Act even if the properties are described as Pandaravaka Kudi-Jenmom in Sirkar records. In Narayanaru v. Ramaru 57 T.L.R. 529, the erstwhile Travancore High Court has observed that the rulings of that court have consistently held that Kudi-Jenmom and Jenmom are interchangeable expressions. In that case it was further held that all the incidents involved in the definition of the term Jenmom land in S.3 of the Jenmi and Kudiyan Act are attributable to Kudi-Jenmom land also. The question has been considered at length by the Travancore High Court in 1945 T.L.R.211 also. (Brahmanandatheertha v. Krishna Pillai). in that case it was held: "Kudi jenmom, otherwise known as converted jenmom is a new class created at the settlement pursuant to orders of Government contained in the Huzur Sadhanom dated 20.1.1066 and consists of Devaswom and Brahmaswom Thanatu lands alienated to strangers without any right being reserved to or exercised by the jenmies, and is assessed with one-fourth of the normal pattom. This is different from another class of tenure of the same name which has been recognised from time immemorial known as Kudi jenmom Inam falling under the category of jenmom lands as defined in the Jenmi and Kudiyan Act. Jenmikarom has to be settled in respect of the latter class of Kudi-jenmom." 7. This is different from another class of tenure of the same name which has been recognised from time immemorial known as Kudi jenmom Inam falling under the category of jenmom lands as defined in the Jenmi and Kudiyan Act. Jenmikarom has to be settled in respect of the latter class of Kudi-jenmom." 7. The decisions in 19 T.L.R. 47, Narayanan v. Thrivikaramaru and 9 D.L.R.T.C. 348, Brahmmanandaboothi Swamiyar v. Kora Thomas relied upon by the appellant's counsel have no application to this case. The plaint property in 9 D.L.R. 348 was Kudi-Jenmom land of the second class, i.e. jenmom land which had been permanently alienated by the jenmi and which had to be treated as Kudi-Jenmom land under the Huzur Sadhanom of 1066. The demise in that case was after the land had lost its character of jenmom land by the settlement made in accordance with the Huzur Sadhanom. In the present case the plaint property was Kudi-Jenmom Inam land which had been recognised from time immemorial as jenmom land and not land constituted as Kudi-Jenmom by the Huzur Sadhanom of 1066, and the original demise was also long before the settlement in which the property was classified as Pandaravaka Kudi-Jenmom. It cannot be ascertained from the reported judgment in Narayanan v. Thrivikramaru 19 T.L.R. 47, whether the property in that case was Kudi-Jenmom Inam land before the Huzur Sadhanom of 1066 or whether it was land constituted as Kudi-Jenmom by the said Sadhanom. As pointed out in 1945 T.L.R. 221 the property in Narayanan v. Thrivikramaru appears to have been pandaravagai land and the decision was rendered on that ground. The learned judges who decided that case have also not noticed the distinction between the two classes of Kudi-Jenmom land. 8. Agreeing with the decisions in 1945 T.L.R. 221 and 1954 K.L.T. 367 we hold that the plaint property which had been treated up to the last Settlement and also demised under Exts. VII to IX as the Brahmaswom or Brahmaswom Thanathu land of the plaintiff's family really falls under the category of "Jenmom land" and is governed by the Jenmi and Kudiyan Act even though it is described in the Settlement Register and the Chitta as Pandaravaka Kudi-Jenmom. Such description would not make the land lose its true character. 9. The appeal therefore fails and is dismissed with costs.