ISSAHAC Vs. UZHITHIRARU

JUDGEMENT

(1.) The plaintiff is the appellant. The plaintiff is holding the plaint property under Ext. A kanapattom deed dated 23-5-1061 executed by the Vanjipuzha Chief in favour of one Narayanan Narayanan. In the Settlement of the year 1114, Ext. A was treated as a redeemable mortgage and patta for the property was issued under S.5, S.2(iii) of the Edavagai Act (Act III of 1109). On the allegations that Ext. A is an irredeemable kanom coming under the purview of the Jenmi and Kudiyan Act and that the Settlement should therefore have been under S.52(i) of the Edavagai Act, the plaintiff brought the suit to set aside the Settlement decision and patta issued pursuant thereto and for other consequential reliefs. The Vanjipuzha Chief who is the 1st defendant in the case, contended that the plaint property is not jenmom land as contemplated in the Jenmi and Kudiyan Act, that Ext. A is not a kanapattom document as defined in the Act, that Ext. A evidences only a redeemable mortgage and that consequently the decision of the Settlement authorities is proper and not liable to be set aside. The Trial Court repelled the contentions of the 1st defendant and decreed the suit. The lower appellate court reversed that decision and dismissed the suit.

(2.) It is contended for the appellant that Ext. A is a kanapattom coming within the purview of the Jenmi and Kudiyan Act and that the property is therefore irredeemable, Ext. A kanapattom deed describes the property as 'the thanathu land of the Vanjipuzha Madom. It is also admitted that the property is situated within the Edavagai of the Vanjipuzha Chief. It is now well settled that the thanatu lands within the Edavagai belonging to Vanjipuzha Chief do not come under the category of jenmom land as defined in the Jenmi and Kudiyan Act and that therefore the Jenmi and Kudiyan Act has no application to the demise of such lands. This question has come up for consideration in the decisions reported in 1945 TLR 728 and 1947 TLR 407. After a detailed discussion of the law bearing on the question the learned Judges have come to the conclusion that "the thanathu lands within the Edavagai belonging to the Chief do not come under the category of Jenmom lands and the Jenmi and Kudiyan Act therefore does not apply to such lands. Since the Jenmi and Kudiyan Act is not applicable, the tenure in respect of such lands must be determined by the terms of the document under which they are held." This Court in two unreported decisions A. S. 450 of 1124 and S. A. 544 of 1124 has taken the same view. The learned Advocate for the appellant contends that the above decisions do not lay down the correct law and requires reconsideration. I am of opinion that the view taken in the above decisions is correct. If Ext. A does not come within the purview of the Jenmi and Kudiyan Act, then the tenure in respect of the property must be determined purely by the terms of that document. It is rightly conceded by the learned Advocate for the appellant that if the provisions of the Jenmi and Kudiyan Act do not apply to Ext. A, then Ext. A can only be a redeemable mortgage and that the course adopted by the Settlement authorities in settling the land under S.5, S.2(iii) of Act III of 1109 cannot be said to be incorrect.