MADHAVAN CHAKIYARU Vs. OOMEN ACHAMBILA

JUDGEMENT

(1.) This Second Appeal by the second plaintiff arises out of a suit for the redemption of a mortgage of the year 1042, with respect to the suit properties which are two in number. Defendants 1 to 3 admitting the mortgage contended, that it evidences an irredeemable tenure. The District Munsiff, Kottayam, repelled the defence and decreed the suit, but on appeal the Subordinate Judge, Kottayam, dismissed the suit on the finding that the mortgage was irredeemable.

(2.) There was no case for the defendant, that the transaction amounted to a 'kanapattom' within the meaning of the Travancore Jenmi and Kudiyan Act. The properties are admittedly non jenmom lands. The normal presumption is, that a mortgage for non jenmom lands is redeemable ; the right to redeem can be taken away only by apt words in the instrument of mortgage. This has been laid down in Matha Panickan v. Ouseph Ouseph, ( ILR 1951 TC 282 ). The onus of establishing irredeemability is on the person who makes that plea -- Vasudevan Moothathu Krishnan Moothathu v. Ganapathi lyen Venkatarama lyen, (26 TLJ 1081). It is open to the parties to contract, that a mortgage for non jenmom lands shall create an irredeemable tenure; but it is settled, that "there should be strict and unambiguous proof that the parties intended to create such a tenure and such intention should be gatherable from the terms of the document relied on" -- Roko Mathai v. Krishnan Kochu Pillai, (51 TLR 69 and 25 TLJ 211). The provision in the mortgage for renewal or for payment of 'adukkuvathu' or renewal fees does not, of itself, import irredeemability for non jenmom lands, for such provision may exhaust itself by one renewal. This has been so ruled in Thommen Ouseph v. Narayanan Narayanan Moothathu (27 TLJ 1176). Unless the intention is clearly manifest in the document, that there shall be a perpetual renewal or renewal periodically for ever, no permanent occupancy right can be predicated. It was not contended for the defendants, that there is any such provision in the mortgage document. Neither the plaintiffs nor the contesting defendants produced the counter part or the original of the mortgage deed; but the terms of the document are clear on the pleadings. The learned Subordinate Judge seemed to think, that because the period of five renewals had gone by, and the plaintiffs or their predecessor had sued earlier for the realisation of the renewal fees and other dues and there is a reference in Ext. A, the decree in that suit, to the next year of renewal, a permanent or irredeemable tenure had been created. In the first place, such subsequent conduct cannot always be relied on to interpret the terms and provisions of a written document and secondly, though the plaintiffs had agreed to more than one renewal in the past, it does not follow, that they must necessarily agree to such renewals in future as well. It is their right to refuse such renewal, if the transaction is not irredeemable. The reasoning of the learned Subordinate Judge cannot be supported. I hold, that the transaction sued on, evidences only a redeemable mortgage.

(3.) The claim with regard to item 2 of the suit property stands on a different footing. The suit properties are service inam lands, item 2 being held for services to be rendered to the Thirunakara Devaswom. In the year 1087 patta Ext. II was granted to the predecessor in interest of defendants 1 to 3, in which there is a statement in the column for remarks hncp¯n]m«wsI«n and the tenure is described as kÀ¡mÀ Xncp\¡c tZhkzw]m«w. The plaintiffs' case is, that this registry was taken on the basis of possession under the mortgage, and the registry is an accretion to the mortgage. The learned Subordinate Judge has accepted this case. On the other hand, the defendants have pleaded, that item 2 was resumed by Government, on account of the failure of the plaintiffs to perform the services and was registered after resumption in favour of their predecessor-in-interest. In the replication, the plaintiffs did not deny these allegations. The second plaintiff examined as PW 1 has admitted, that item 2 had been resumed by Government and was registered in favour of the mortgagees after 1030, as ]­mc¸m«w. The learned Subordinate Judge did not advert to this case of the defendants and there is no evidence whatever for the plaintiffs to prove, that the registry was obtained by the defendants upon the basis of possession as mortgagee. The right of the Government to resume the property and to make a grant by registry, was not disputed by the plaintiffs in their replication. They had no case in the pleadings, that such resumption was made behind their back. On these considerations it must be held, that item 2 cannot be redeemed. The decree in the former suit cannot operate as res judicata, as that suit was based on a different cause of action.