Vareed v. Panunni Karthavu — 1955 DIGILAW 1 (KER)

Judgment :- 1. This Second Appeal arises out of a suit for eviction which was instituted under the following circumstances. The property involved in the suit is the jenmom property of the Pathiyari Devaswom managed by the Kodasseri Sthanam. Along with other items, this property had been demised by the Sthanam in favour of Thekkedath Maruthombilli Mana in the year 1065 under a document styled as a Panayam and making provision for payment of michavaram and other customary dues. Later on, this demise was renewed under Ext. VI dated 9.3.1092 and still later under Ext. V dated 3.11.1106. Pyloth, the predecessor-in-interest of defendants 1 to 7, took all these properties on lease from Maruthombilli Mana by executing the lease deed Ext. B dated 14.7.1102. Under Ext. C dated 18.2.1120 the Mana conveyed all the rights which it had over the plaint item in favour of the plaintiff. The proportionate pattom recoverable from this item was also specified in Ext. C and the plaintiff was authorised to realise the pattom that had been left in arrears. On the strength of Ext. C the plaintiff instituted the present suit for recovery of the property with arrears as well as future pattom. 2. The suit was resisted by the 2nd defendant who claimed to have obtained this property to his share under the partition deed executed by the heirs of the original lessee Pyloth. In respect of the arrears of pattom claimed in the plaint the 2nd defendant had set up a plea of discharge and the claim for eviction was opposed on the ground that the demise evidenced by Exts. VI and V in favour of Maruthombillil Mana was not a usufructuary mortgage as contended by the plaintiff, but was an irredeemable kanam and that therefore the 2nd defendant holding the property as a lessee under such a kanamdar is entitled to retain possession of the property by virtue of the fixity of tenure granted by the Cochin Verumpattomdars Act. The lower courts repelled these contentions and decreed the suit as prayed for. The 2nd defendant has therefore come up in second appeal. 3. The concurrent finding against the plea of discharge set up by the 2nd defendant cannot be agitated in this second appeal. As a matter of fact the only point that is pressed in this appeal is about the nature of the demise evidenced by Exts. The 2nd defendant has therefore come up in second appeal. 3. The concurrent finding against the plea of discharge set up by the 2nd defendant cannot be agitated in this second appeal. As a matter of fact the only point that is pressed in this appeal is about the nature of the demise evidenced by Exts. VI and V, the renewal deeds in favour of Maruthombilli Mana from whom the plaintiff has derived his title to the suit property. The permanent occupancy right conferred by the Cochin Verumpattomdars Act is not available to a lessee under a usufructuary mortgage, while that right is available to a lessee under a landlord who is holding the property under an irredeemable kanam demise. Consistent with this position, the plaintiff has sought to maintain that Ext. V which is the latest renewal in favour of Maruthombilli Mana, is only a usufructuary mortgage. The document is not styled as a usufructuary mortgage, but only as a Panayam. The prior renewal deed Ext. VI is also styled as a Panayam. The earliest demise of the year 1065 in favour of Maruthombilli Mana has not been produced in this case. But Ext.VI has referred to that demise also as a Panayam. The nomenclature of the document by itself is not decisive on the question as to whether the demise was a kanam or was only a usufructuary mortgage, even though such nomenclature may afford some help in deciding the question. 4. The lower courts have answered the question in favour of the plaintiff mainly on the strength of the provision contained in S. 27 of the Cochin Tenancy Act, Act II of 1090, which was in force at the time when the renewal deeds Exts. VI and V were executed. It is urged on behalf of the appellant that the lower courts have erred in ignoring the other relevant provisions of the Tenancy Act and in giving undue importance to the provision contained in S. 27. I think there is considerable force in this contention. The Cochin Tenancy Act was first enacted as Act II of 1090. This Act was repealed and a new Act was enacted in the year 1113 as Act XV of 1113. This latter Act was also subsequently amended by Act VI of 1115. In Act II of 1090 "kanam" was not defined as a tenure. That expression was defined in Cl. This Act was repealed and a new Act was enacted in the year 1113 as Act XV of 1113. This latter Act was also subsequently amended by Act VI of 1115. In Act II of 1090 "kanam" was not defined as a tenure. That expression was defined in Cl. 0) of S. 2 as follows: " "Kanam" means the consideration in money or in kind or partly in money and partly in kind paid to the landlord by a kanam tenant for his holding". But the nature of the tenure was indicated by the definition given in Cl.(c) of the same section to the expression "kanom tenant". That definition is as follows: "'Kanom tenant" means and includes a tenant who holds lands on payment of a consideration in money or in kind or partly in money and partly in kind to the landlord for his holding, and on a demise made or renewed by a landlord on a tenure that is subject to renewal after a fixed period on payment of a renewal fee, and also includes the assignees and representatives in interest of such tenants". When Act XV of 1113 was enacted the expression "kanom" was itself defined as a tenure satisfying four specified incidents. The definition is contained in Cl.(d) of S.2 of that Act and it runs as follows: " "Kanam" means a demise with the following incidents: (1) an initial lump sum consideration in money or in kind or both given or deemed to be given by the tenant to the landlord which is mentioned as such in the demise and bears a specified interest; (2) the payment of michavaram, if any, by the tenant to the land-lord; (3) the right of the tenant to occupy the property demised for 12 years or for any other longer period which is specified; (4) the liability to pay a renewal fee on renewal of the demise". An Explanation was also added to this clause to the effect that "A transaction called 'panayam' in the document evidencing it may create a kanam within the meaning of this section". By Act VI of 1115 a second Explanation was added to Cl.(d) of S.2 of Act XV of 1113. The new Explanation thus added is in the following terms: "(i) A transaction called 'panayam' in the document evidencing it and possessing the incidents mentioned in sub-cls. By Act VI of 1115 a second Explanation was added to Cl.(d) of S.2 of Act XV of 1113. The new Explanation thus added is in the following terms: "(i) A transaction called 'panayam' in the document evidencing it and possessing the incidents mentioned in sub-cls. (1) and (2) of this clause shall, until the contrary is proved, be presumed to be a kanam within the meaning of this section, if it is a renewal of a previous document or if in respect of it a counter-part has been executed by the panayam tenant or there is a provision for renewal or for the payment of puravaka dues: Provided that nothing in this Explanation shall apply to a document expressly described as karipanayam, kaivasapanayam, kozhuverukkapanayam or nadappupanayam. (ii) A provision in any document of the kind referred to in Cl. (i) providing for surrender of the holding on demand to the land-lord shall not, by itself, give rise to any presumption contrary to that provided for in Cl. (1) of this Explanation". The importance of this Explanation lies in the fact that in the case of a transaction called panayam evidenced by a renewed document and satisfying the first two incidents specified in Cl.(d) of S.2 of Act XV of 1113 a presumption will arise that it is a kanam satisfying the incidents 3 and 4 also until the contrary is proved. The question as to whether a particular transaction is a kanam as contemplated by the Tenancy Act has to be determined mainly in the light of these definitions and Explanations. 5. The renewal deeds Exts. VI and V in the present case came into existence at a time when Act I of 1090 was in force and hence the transaction evidenced by these documents has to be examined in the light of the provisions contained in that Act in preference to the corresponding provisions contained in Act XV of 1113. S. 27 of that Act specifies the particulars to be set forth in a kanam demise. Such particulars are enumerated in Cls. S. 27 of that Act specifies the particulars to be set forth in a kanam demise. Such particulars are enumerated in Cls. (a) to (e) of sub-s.1 of that section as follows: "(a) the name, description and extent of the holding, (b) the pattom on the holding, (c) deduction therefrom on account of interest on the kanam, (d) the amount of michavaram agreed upon, (e) the renewal fees and customary dues intended to be levied from the kanam tenant and the occasion on which they are to be levied". Sub-s. 2 of the same section states as follows:- "If the michavaram or other dues are made payable in kind, it shall be specified according to the standard measure prescribed by the Diwan from time to time, or which may be agreed upon by the parties". The consequence to follow from the failure to comply with these directions has also been indicated in sub-s. 3 where it is stated that: "Registering Officers shall refuse to accept for registration any kanam deed or its counter-part unless it shall contain the particulars above set forth ". It is therefore obvious that the acceptance or refusal by the Registering Officer of a particular document for registration, cannot decide the question whether the demise evidenced by it is a kanam demise or not. The section itself opens with the following expression: "in every demise granted or renewed to kanam tenant". If a document happens to be a renewal not complying with every one of the requirements of S. 27, the Registering Officer may refuse to register it. Even then the demise which was sought to be renewed will continue to exist and when a dispute arises as to the nature of that demise it has necessarily to be decided by a court of law. It may also happen that a demise or a renewal not satisfying all the conditions specified in S. 27 may be wrongly registered by the Registering Officer. In fact it happened so in the case of Exts. VI and V in the present case. The mere fact of the registration of such documents will not be decisive of the nature of the demise. If the demise is not a kanam demise the registration of the document will not make it a kanam demise. In fact it happened so in the case of Exts. VI and V in the present case. The mere fact of the registration of such documents will not be decisive of the nature of the demise. If the demise is not a kanam demise the registration of the document will not make it a kanam demise. So also a demise which is really a kanam demise will to cease to be a kanam demise by the refusal of the Registering Officer to have the renewal deed registered for the reason that it does not contain all the particulars contained in S.27. There is nothing in that section to indicate that the non-compliance with the requirements of the section will in any way affect the nature of the demise. This will be obvious from a scrutiny of some of the particulars required by the section. Cl. (a) requires that the name, description and extent of the holding should be set forth separately in the document. Some of these particulars, say, for example, the name or even the extent of the holding, may be left out from a document. But such omission by itself cannot make the demise any the less a kanam demise if really the demise satisfies the essentials of a kanam demise a defined in the Act. The same will be the position if the document while specifying the michavaram and other dues payable by the tenant, fails to give the particulars of such dues in standard measure as required by sub-s. 2 of S. 27. The non-mention of the standard measure cannot certainly affect the nature of the demise. It appears that the Legislature in its wisdom thought that by enacting S. 27 requiring all the details specified therein to be given in a demise granted or renewed to a kanam tenant, all further disputes as to the nature of the tenure could be obviated. But as amply demonstrated by the existence of Exts. VI and V which happened to be registered subsequent to the passing of this Act, the dispute as to the nature of the demise evidenced by these documents has again come up for decision, and, as already explained, the compliance or non-compliance with the requirements of S. 27 could not conclude the matter one way or the other. VI and V which happened to be registered subsequent to the passing of this Act, the dispute as to the nature of the demise evidenced by these documents has again come up for decision, and, as already explained, the compliance or non-compliance with the requirements of S. 27 could not conclude the matter one way or the other. S. 27 itself would come into play only when the document taken for registration purports to be a demise granted or renewed to a kanam tenant or to be a counter-part executed by such tenant, as indicated by the opening portion of S. 27. The question as to whether the party concerned is a kanam tenant or not still continued to be a debatable point. To answer that question by examining whether the document has satisfied the requirements of S. 27, will be nothing short of begging the question. 6. The question whether the party concerned is a kanam tenant or not has necessarily to be decided in accordance with the definition of that expression as given in Cl. (c) of S. 2 of Act II of 1090 and such decision rests with the court and the same cannot be delegated to the Registering Officer. The definition of the expression given in the Act for the expression 'kanam tenant' does not insist that the document evidencing the demise in favour of the tenant should contain all the particulars mentioned in S. 27 as a condition precedent to his becoming a kanam tenant. In spite of the mandatory nature in which S. 27 has been framed by the legislature, that section could not have any greater force than a mere direction that documents evidencing kanam demises should contain the particulars specified in the section and also as a mandate to the Registering Officers to refuse to register documents not satisfying those requirements. Similar directions are contained in the other sections also of the Act. S.28 states that every kanam tenant shall pay his land-lord the michavaram, renewal fees and customary dues at such time and place as may be agreed upon between them in writing. S. 29 states that every kanam tenant paying michavaram or customary dues shall be entitled to a receipt specifying the particulars as enumerated in that section. S.28 states that every kanam tenant shall pay his land-lord the michavaram, renewal fees and customary dues at such time and place as may be agreed upon between them in writing. S. 29 states that every kanam tenant paying michavaram or customary dues shall be entitled to a receipt specifying the particulars as enumerated in that section. None of these sections can have any great relevancy or bearing in resolving the conflict as to whether a particular demise is a kanam demise or not. That question has necessarily to be decided after ascertaining whether the demise satisfies all the incidents of a kanam demise as indicated by the definition of the expression'kanam tenant' given in Cl. (c) of S. 2 of Act II of 1090, which was subsequently been amplified by the definition given in Cl.(d) of S. 2 of Act XV of 1113. Every one of the details specified in S. 27 cannot be accepted as partaking the character of an incident of a kanam demise. The lower courts have erred in ignoring this aspect of the matter and in being guided solely by S. 27 of Act II of 1090 in coming to the conclusion that the renewal deed Ext.V does not evidence a kanam demise, but evidences only a redeemable mortgage. In making such an approach to the question the lower courts appear to have been guided by certain observations contained in the decision in Neelakandan Namboodiri v. Govindan Nair (39 Cochin Law Reports 497). The question that arose for decision in that case was whether a usufructuary mortgage document of the year 1100 containing no provision as to any liability to pay renewal fee at the time of the renewal could be considered as an irredeemable kanam. In dealing with that question it was observed that a document executed after the Tenancy Act (Act II of 1090) came into force which did not contain the particulars mentioned in S. 27 of the Act could not be looked upon as creating a kanam demise. If by this observation it was only meant that such a document not incorporating in it all the necessary incidents of a kanam demise cannot by itself be accepted as evidence in support of the contention that it has created a kanam demise, the observation is not open to any objection. If by this observation it was only meant that such a document not incorporating in it all the necessary incidents of a kanam demise cannot by itself be accepted as evidence in support of the contention that it has created a kanam demise, the observation is not open to any objection. But if the broad proposition that where the document does not contain all the particulars mentioned in S. 27 of the Tenancy Act the demise cannot be accepted as a kanam demise even if the existence of the essential elements of such a demise is proved by clear and convincing evidence independent of the document in question, was intended to be laid down by the aforesaid observation, then I must respectfully record my disapproval of such a proposition. A broad proposition of the kind enunciated in Neelakandan Namboodiri v. Govindan Nair (39 Cochin Law Reports 497) was sought to be laid down in the leading judgment in Puthenpetta Chaldean Syrian Church v. Mukunda Marar, (112 (39) Cochin 364) where also the same question had come up for the consideration of a Full Bench. Even though all the three judges agreed on the conclusion that the document in question was only a usufructuary mortgage and not an irredeemable kanam, two of the judges who took part in that decision were not prepared to subscribe to the view that the particulars contained in the document should alone determine the nature of the tenure. In fact their endeavour was to find out whether there was evidence to show that all the incidents of a kanam demise as defined in the Tenancy Act existed in respect of the particular demise, and it was ultimately found that the 4th incident relating to the payment of renewal fee was not proved to have existed. The decision mainly rested on the absence of such evidence. The approach made in that case clearly indicates that extraneous evidence independent of the particulars contained in the document could be adduced and considered in deciding the nature of the demise. There is nothing in the Tenancy Act to justify the exclusion of all such independent evidence and to determine the nature of the tenure solely and exclusively on a consideration of the particulars given by the document in question. 7. There is nothing in the Tenancy Act to justify the exclusion of all such independent evidence and to determine the nature of the tenure solely and exclusively on a consideration of the particulars given by the document in question. 7. I have already explained that S. 27 of Act II of 1090 and S. 20 of Act XV of 1113 are not intended to define the incidents of a kanam demise, but are intended merely as directions to the Registering Officers not to register documents purporting to be kanam deeds or their renewals unless the particulars mentioned in those sections are specified in the documents. These particulars include the name and extent and other description of the property, the government revenue and taxes payable in respect of the same and also the relation which the quantum of michavaram and other dues provided to be paid bears to the standard measure prescribed by government. These particulars cannot in any sense be regarded as incidents determining the nature of the tenure. What would really constitute a kanam tenure has been indicated by the definition given in Cl. (c) of S.2 of Act II of 1090 and by Cl.(d) of S.2 of Act XV of 1113. Ss.27 and 20 respectively of these Acts cannot be deemed to override or supplement these definitions. The clauses containing these definitions as also the sections containing the directions to the Registering Officers have to be given their due significance in the scheme of the two Acts. No doubt the incidents of a kanam tenure as indicated by the definition are also seen to be included in the particulars enumerated by Ss. 27 and 20 of the respective Acts. If all the particulars required by these sections are contained in the document in question the document by itself will afford decisive evidence in support of the contention that the demise in question is a kanam demise. But that does not mean that where a document does not contain all the particulars required by these sections, extraneous evidence should not be considered for the purpose of deciding on the question of the real nature of the tenure. In fact it is in such cases that the necessity will arise for examining whether there is independent evidence in proof of the existence of the several incidents going to make up a kanam tenure as defined in the Act. 8. In fact it is in such cases that the necessity will arise for examining whether there is independent evidence in proof of the existence of the several incidents going to make up a kanam tenure as defined in the Act. 8. The document to be construed in the present case is the renewal deed Ext. V. Since it does not contain all the particulars enumerated in S. 27 of the Act II of 1090, it has to be seen whether the demise satisfies the incidents indicated by the definition given in Cl. (c) of S. 2. This definition was subsequently clarified and elaborated by the definition give in Cl. (d) of S. 2 of Act XV of 1113. As per these definitions a demise satisfying the four incidents mentioned in Cl. (d) of S. 2 of the latter Act has to be accepted as a kanam demise and the Explanation to that clause states that a transaction called a Panayam could also be accepted as a Kanam if it satisfies all these incidents. As the definition stood it was for the tenant to prove the existence of all these incidents in a case where the nature of the demise is in dispute. The amending Act, Act VI of 1115, was enacted to give some relief to the tenant in this direction. This is clearly indicated by Explanation II added to Cl. (d) of S. 2 as per the amending Act. The new Explanation states that a transaction called panayam in the document evidencing it and possessing the incidents mentioned in sub-cls. (1) and (2) of this clause shall, until the contrary is proved, be presumed to a be a kanam within the meaning of this section, if it is a renewal of a previous document or if in respect of it a counter-part has been executed by the panayam tenant or there is a provision for renewal or for the payment of puravaka dues. The Proviso to the Explanation states that nothing in this Explanation shall apply to a document expressly described as karipanayam, kaivasapanayam, kozhuverakkapanayam or nadappupanayam. In the case of documents coming under these 4 different categories, no presumption as contemplated by Explanation II will be available to the tenant and he will have to prove the existence of all the 4 incidents mentioned in S. 2, Cl. In the case of documents coming under these 4 different categories, no presumption as contemplated by Explanation II will be available to the tenant and he will have to prove the existence of all the 4 incidents mentioned in S. 2, Cl. (d) for making out that the demise in question is a kanam demise. Ext. V in the present case does not come under any of the 4 categories mentioned in the Proviso. Ext. V is expressly described as the renewal of a panayam and necessarily, therefore, it is attracted by Explanation II added by Act VI of 1115. The first two incidents mentioned in Cl. (d) of S. 2 of Act XV of 1113, viz., the payment of an initial consideration as kanam amount by the tenant to the landlord and the provisions for payment of michavaram and other customary dues, are also satisfied by Ext. V. The presumption that the demise evidenced by Ext. V is a kanam demise therefore arises and it was for the plaintiff in the suit to rebut that presumption by adducing evidence that the demise was only a redeemable mortgage. No such evidence has been adduced by the plaintiff in this case who takes his stand mainly on S. 27 of Act II of 1090. For the reasons already stated the provisions contained in that section cannot be accepted as constituting a rebuttal of the presumption arising under Explanation II added by Act VI of 1115. Reference may be made in this connection to an argument advanced on behalf of the plaintiff respondent that Explanation II added by Act VI of 1115 can be invoked only in respect of documents which had come into existence prior to the passing of Act II of 1090, and which continue to exist as the basis of the claim put forward by the tenant. I see no force or substance in this argument. Explanation II is couched in very wide and general terms so as to apply to all documents which may come up for construction and as such there is no justification for restricting its scope to documents which came into existence prior to the passing of Act II of 1090 and to exclude all subsequent documents from the scope of the Explanation. The specific reference in the Explanation to renewed documents is a sure indication that the Explanation is meant to cover all such documents irrespective of the time when they came into existence. S. 2 of Act VI of 1115 also indicates that the Legislature wanted this Act to have retrospective effect. S. 2 states that the Act shall come into force at once and shall also apply to all pending suits, including appeals. The documents which are the basis of such pending suits and appeals may be those which may have come into existence prior to the passing of Act II of 1090 or even subsequent to that date. Thus there can be no doubt that the benefit conferred by Explanation II added by Act VI of 1115 can be availed of by the parties to Ext. V and by their successors-in-interest. On a construction of Ext. V in the light of this Explanation the appellant's contention that the demise evidenced by it is an irredeemable kanam has to be accepted. 9. Even without invoking the aid of Act VI of 1115, the appellant in this case is entitled to succeed on the basis of the evidence already on record. The first renewal deed Ext. VI shows that the demise originated as a panayam demise in the year 1065. In Ext. VI the properties are described as those included in the panayacharthu of the year 1065. The expression "panayacharthu" is suggestive of the fact that a tenure was created under the document of 1065 and that it was not a mere mortgage. Just as in Ext. VI, in Ext. V also the parties appear to have deliberately used the expression'panayam' and to have avoided using any of the names indicating a possessory mortgage. From the year 1065 the panayam tenant had been in possession of the property for several years in excess of the 12 year period required for a normal renewal and the first renewal under Ext. VI was made only in the year 1092. The next renewal was only in the year 1106. These facts taken along with the fact of the payment of an initial consideration and the provision for payment of the michavaram and other customary dues as provided in Exts. VI and V, clearly indicate that the demise was subject to periodical renewals. VI was made only in the year 1092. The next renewal was only in the year 1106. These facts taken along with the fact of the payment of an initial consideration and the provision for payment of the michavaram and other customary dues as provided in Exts. VI and V, clearly indicate that the demise was subject to periodical renewals. The only other incident to be satisfied for bringing the demise within the ambit of the definitions contained in S. 2 Cl. (c) of Act II of 1090 and in S. 2 Cl. (d) of Act XV of 1113, is the payment of renewal fees. On this question there cannot be any better evidence than the admission of the parties themselves. Such and admission is contained in the sale deed Ext. C executed by the panayam tenant under Ext. V i.e., the Marunthombilli Illom, in favour of the plaintiff. The members of the Illom who are the executants of Ext. C have traced their title from the demisee under Ext. V and have referred to it as a permanent or irredeemable panayam and have clearly stated that they have been regularly paying the renewal fees. Ext. V when read along with these admissions by the panayam tenants themselves, leaves no room for doubt that the tenure evidenced by it is an irredeemable kanam as defined and recognised in the Tenancy Acts. The lower courts were clearly wrong in construing Ext.V as a usufructuary mortgage. 10. The appellant 2nd defendant is in possession of the suit property as a lessee under a kanamdar and as such he is entitled to the benefit of the permanent occupancy right conferred by the Cochin Verumpattamdars Act. It follows, therefore, that the plaintiff's suit for eviction must fail. He is entitled only to enforce his right to recover the pattom due in respect of the plaint property. The lower courts have decreed such arrears of pattom and have permitted the plaintiff to realise such arrears out of the amount deposited by the 2nd defendant. That portion of the decree allowing recovery of the rent due to the plaintiff can alone be upheld. 11. In the result this second appeal is allowed to the extent indicated above and the plaintiff's suit in so far as the prayer for recovery of the property is concerned, is dismissed. That portion of the decree allowing recovery of the rent due to the plaintiff can alone be upheld. 11. In the result this second appeal is allowed to the extent indicated above and the plaintiff's suit in so far as the prayer for recovery of the property is concerned, is dismissed. That portion of the lower court's decree allowing the plaintiff to recover the pattom due to him in respect of the suit property, is alone confirmed. The appellant-2nd defendant will got one-half of his costs throughout from the plaintiff who will suffer his own costs. Allowed.