TILAYYIL MAINMO Vs. KOTTIATH RAMUMI

JUDGEMENT

(1.) The properties in suit belonged to the Muzhappilangad Devaswam in jenmi rights, and under the Devaswam, the Thayyil tarwad had leasehold rights. One Thayyil Mayan came to hold the properties under a Kaivasam Panayam deed executed by the Thayyil taward. On February 5, 1929, Mayan and his brothers, Abubacker and Kader executed a kanom (Ex. A-3) of the suit properties in favour of Bathala Baithan. By a marupat (Ex. A-4) executed on the same day, Mayan took back the properties on lease from Baithan. Subsequently, by Ex. A-5 and later Ex. A-7, Mayan leased items 3 to 5 of the suit properties to Koran. In early 1939, Mayan died leaving defendants 7 to 13 as his heirs. By a deed (Ex. A-8) dated April 28, 1939, Abubacker obtained a surrender of the leasehold rights from Koran. On May 15, 1939, Abubacker executed a kanom (Ex. A-10) in respect of all the suit properties in favour of Kottiath Raman. Raman died shortly thereafter leaving defendants 1 to 5 as his heirs. By a registered deed (Ex. B-2) dated February 27, 1941, defendants 1 to 5 obtained from Baithan a surrender of his kanom rights under the deed dated February 5, 1929. The third defendant died during the pendency of the suit leaving defendants 18 to 23 as her legal representatives. By a deed dated April 9, 1947, defendants 7 to 13, the heirs of Mayan, assigned their rights in the suit properties to the plaintiffs. On October 4, 1947 the plaintiffs instituted a suit for recovery of possession of the suit properties on payment of the konam amount payable under the kanom dated February 5, 1929. The defendants claimed protection from eviction. The trial Court decreed the suit. The first appellate Court confirmed the decree. On second appeal, the High Court dismissed the claim for possession and mesne profits and instead, granted a decree for the michavaram due under Exs. A-3 and A-7. The plaintiffs now appeal to this Court by special leave.

(2.) The Courts below concurrently held that Mayan exclusively held the rights in the suit properties acquired under the Kaivasam Panayam deed dated August 11, 1919 and Abubacker and Kader had no right therein, the plaintiffs duly acquired the rights of Mayan under the assignment dated April 9, 1947, and Abubacker could not lawfully grant kanom rights under Ex. A-10 to defendants 1 to 5. The first two Courts held that the Kanartham in respect of the kanom dated February 5, 1929 exceeded 40 per cent of the value of the jenmi's rights in the holding and accordingly the defendants could not claim any fixity of tenure and protection from eviction under Cl. (iii) of the second proviso to S. 23 read with S. 21 of the Malabar Tenancy Act. 1929 (Madras Act XIV of 1929). The District Court also held that the surrender deed (Ex. A-8), dated April 28, 1939 could not operate as assignment of the leasehold rights of Koran in respect of items 3, 4 and 5 of the suit properties and consequently the kanom (Ex. A-10), dated May 15, 1939 could not operate as a sub-lease of those properties by Abubacker to Raman and the defendants could claim no protection from eviction under S. 43 of the Malabar Tenancy Act.

(3.) During the pendency of the appeal to the High Court, the Kerala Stay of Eviction Proceedings Act, 1957 (Act 1 of 1957) came into force, and the appeal was stayed under the Act. On February 21, 1961, the Kerala Agrarian Relations Act, 1960 (Act 4 of 1961) came into force, and the appeal came up for disposal in accordance with S. 95 of the Act. The appeal was finally disposed of on July 20, 1961. Both parties admitted before the High Court that the deed (Ex. A-3), dated February 5, 1929 was a kanom within the meaning of the Kerala Agrarian Relations Act, 1960. The High Court held that the deed of surrender (Ex. A-8), dated April 28, 1939 operated as an assignment of Koran's rights to Abubacker in respect of items 3, 4 and 5 of the suit properties and the Kanom (Ex. A-10), dated May 15, 1939 operated as a sub-lease by Abubacker in respect of those properties. The High Court also held that the deed of surrender (Ex. B-2), dated February 27, 1941, operated as an assignment of the kanom rights of Baithan in favour of defendants 1 to 5. The High Court held that consequently defendants 1 to 5 became the tenants of the suit properties, and were entitled to fixity of tenure and protection from eviction under the Kerala Agrarian Relations Act.