PARAMESWARAN EMBRANTHIRI Vs. NARASIMHA NAMBUDIRI

JUDGEMENT

(1.) The short question arising for decision in this second appeal is, whether the otti evidenced by Ext. B5 dated March 25, 1943, sought to be redeemed, is really a kanam under which the defendants are entitled to fixity of tenure, or not. The first court has held that it is not a kanam, there being no provision in it for the payment of michavaram so as to satisfy the definition in the Malabar Tenancy Act, 1929, and rejected the defendants claim for fixity of tenure; on appeal the Subordinate Judge has held, that the stipulation in Ext. B5 for the payment of revenue to Government is tantamount to a provision for the payment of michavaram, but concurred with the Trial Court in rejecting the claim for fixity of tenure by applying S.21 of the Malabar Tenancy Act as the kanartham exceeded 40 per cent of the jenmis interests. The aforesaid Act having been repealed by the Kerala Agrarian Relations Act, 1960 (Act IV of 1961), the ground relied on by the Subordinate Judge can no longer avail the plaintiffs. Nevertheless,

(2.) It was also contended, that the payment of revenue by the first defendant is not the same as the payment of michavaram under the definition of that term in Act IV of 1961, because it is not residual rent. The judgment of the learned single Judge just cited, seems to go against this contention, for, after adverting to the definition of the term michavaram in Act IV of 1961, the learned Judge observed:

(3.) However, it was argued, that Ext. B5 is not a transfer of the properties for enjoyment, but evidences a debtor and creditor relationship between the parties. This aspect has not been considered by either of the two courts. Though the plaintiffs have succeeded in both courts in the final result, and the plaintiffs might well have raised this point at least at the time of the argument before the lower appellate court, I do not think, that the plaintiffs can be deprived of the opportunity for raising this question, on which also depends the decision as to the character of the transaction. This question has therefore to be considered by the two courts. The other contentions between the parties which have become final by the judgment of the appellate court were not attempted to be reopened here. Subject to those findings and subject to the decision in this second appeal, that there is a provision in Ext. B5 for the payment of michavaram, the case will go back to the first court for decision on the above question and for passing a decree on that basis. The decree now under appeal is reopened for the above purpose only and is confirmed in other respects. I do not order costs in this court. The second appeal is disposed of as above.