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1957 DIGILAW 12 (KER)

Nani Amma Gouri Amma v. Narayani Amma Savithri Amma

1957-01-11

T.K.JOSEPH

body1957
Judgment :- 1. The suit out of which this second appeal arises was one for redemption of a mortgage Ext. A dated 13.9.1076 executed by the plaintiff's tarwad in favour of an ancestor of defendants 1 to 11. According to the plaintiffs the properties covered by the mortgage belonged to a Malayali Brahmin Illom which had demised the same on kanam to the plaintiffs' tarwad. Defendants 2 and 10 contended that item No. 5 was not covered by Ext. A and that in respect of the other items they were not liable to be redeemed as they were in possession from ancient times. There was also a claim for value of improvements. The trial court decreed the suit directing redemption on payment of value of improvements. This decree was confirmed in appeal and the 10th defendant has come up in second appeal. 2. It was argued on behalf of the appellants that they were not liable to be redeemed as they were in possession at least from the year 1046 i.e., for a period of 25 years preceding the passing of the Jenmi and Kudiyan Act of Travancore (1071). Reliance was placed on S.5 of the Act. The plaintiffs' tarwad had only a kanam right and could not therefore be deemed to come within the definition of the term'jenmi' in the said section. In Kunjan Ittanan v. Narayanan Kunjan Menon (37 TLR 252) a Full Bench of the Travancore High Court held that an Irakaraima holder of land could not be treated as a jenmi and that his mortgagees could not claim the benefit of S.5 of the Act. Following this decision I hold that the defendants are not entitled to resist redemption. 3. The second point relates to compensation for improvements. Under Act X of 1956 the defendants as mortgagees are entitled to have the improvements valued again in the manner provided by the Act. The suit must therefore be remanded for this purpose. 4. In the result, I confirm the decree for redemption. This will be treated as a preliminary decree. The suit is remanded to the trial court for deciding the question of value of improvements afresh and passing a final decree relating to the same. The second appeal is allowed to the above extent and is dismissed in other respects. The appellant will pay one-half of the costs of the plaintiffs-respondents in this court. Remanded.