REV FR VICTOR FERNANDEZ Vs. ALBERT FERNANDEZ

JUDGEMENT

(1.) THIS is an appeal by the 2nd defendant from a decree passed by a learned single Judge in second appeal in a suit for redemption of a melotti and kuzhikanam evidenced by Ex. P-l.

(2.) SINCE the 2nd defendant among other things contended in the appeal that he is a deemed tenant coming within the ambit of Section 4-A of Act 1 of 1964 as amended by Act 35 of 1969 and as his constitutional validity was challenged by the plaintiff, the case was referred to a Bench of three Judges. When the case was argued before that Bench, the plaintiff contended that the tenure of the land involved in the case is pandara-pattom in the Travancore area of the State and so section 4-A in its application to that land cannot have the protection of Article 31a of the Constitution in view of the decision of a Bench of three judges in govindaru Nambooripad v. State, 1962 Ker LT 913 = (ATR 1963 Ker 86) (FB ). As considerable doubt was entertained on the question whether pandarapattom land in the Travancore area of the State is 'estate' within the meaning of Article 31-A (2) (a) that question was referred to a Bench of five Judges. That Bench answered the question by saying that pandarapattom land in the Travancore area of the state is 'estate' within the definition of the term in Article 31-A (2) (a ). Th" appeal was thereafter posted for argument before us.

(3.) THE plaint property belonged to one Kunchena Narayanan. He gave the property on otti and kuzhikanam in 1060 under Ex. D-l to Thomas Fernandez, the husband of 1st defendant and father of defendants 2 to 10. There was a partition of the assets of Kunchena Narayanan in 1069 among his seshakars and his children. The seshakars who got the plaint property under the partition executed a melotti and kuzhikanam in 1079 (Ex. P-l) in favour of Perumal Potha directing her to redeem ex. D-l. She redeemed Ex. D-l and reduced the property to her possession. In 1097 the heirs of the executrix under Ex. P-l, transferred the rights under the document to Thomas Fernandez. The 11th defendant who got the plaint property under a partition among the seshakars of Kunchena Narayanan, sold it to the plaintiff under Ex. P-3. The plaintiff instituted the suit to redeem Ex. P-l.