KALU AMMA Vs. JAYANTHARU NAMBOOTHIRI

JUDGEMENT

(1.) The Second Appeal arises out of a suit instituted by the plaintiff on behalf of Kudavur Devaswom, for the recovery of the dues payable under a lease granted by it. The first court dismissed the suit, but on appeal, the Subordinate Judge gave a decree for the realisation of dues, for a period of three years preceding the date of the suit. The first defendant has therefore come up in Second Appeal.

(2.) The suit properties are two in number, and admittedly, they belonged originally to the Devaswom. According to the plaintiff, the predecessors-in-interest of the defendants have been, and the defendants are now, enjoying them on lease from the Devaswom. The first defendant who contested the suit, denied the lease and set up a Karaima from the Devaswom, pleaded that the Devaswom had lost its title on account of the dealings with the properties by the defendants and their predecessors, as absolute owners, and repudiated the plaintiffs case, that any dues were paid under the lease at any time.

(3.) The two questions which arise for determination are, whether the properties were demised on lease and if so, whether that lease is subsisting. Though the original lease deed has not been produced, it is seen from Ext. A an assignment deed of the year 1044 by one Subramonia Iyer in favour of Peruman Padmanabhan, that the lease was of the year 1024, in favour of Subramonia Iyer on a varam of 35 paras 7 1/2 edangalees of paddy. The lease deed of the year 1024 was handed over to the assignee. By Ext. B of the year 1053, a member of the tarwad of Peruman Padmanabhan, mortgaged the suit properties, confirming, that the properties were held on lease with premium (artha edupattom) from the Devaswom, and stipulating for the payment of 35 odd paras of paddy as aforesaid, and of one fanam as chummadu. The original lease deed of 1024 was also handed over to the mortgagee. A member of the tarwad of Peruman Padmanabhan gave a melotti for the properties in the year 1089 under Ext. II, stipulating for the redemption of Ext. B. This was assigned to Krishna Kurup by Ext. III in the year 1091. In the year 1094, the first defendant took a sale deed, Ext. IV from the tarwad of Peruman Padmanabhan, for its rights in the suit properties, and on the same day, she redeemed the property under Ext. V. It was thus, that the first defendant came into possession and the stipulations in Exts. A and B may be relied on against her. In the year 1116, the first defendant herself mortgaged item 2 of the suit properties by Ext. D, stipulating for the payment of 9 paras of paddy per annum to the matom; from the description of the property as Kudavur Devaswom vaka Karaima, and there being no indication to the contrary, it is reasonable to think, that the matom referred to was really the plaintiffs family which owned the Devaswom. The first defendants son as Dw. 1 has stated as a witness in the case, that he could not tell, which matom it is. On this evidence, the Subordinate Judge was right, in my opinion, in his conclusion, that the suit properties were held on lease from the Devaswom.