DAMODARAN Vs. SANKARANARAYANAN NAMBOOTHIRIPAD

JUDGEMENT

(1.) THE question before the courts below was whether the transaction embodied in Ext. P-1, dated 5th Kumbhom 1097 M. E. (16th February 1922 a. D.), under which the appellant judgment-debtor holds, is a kanam within the meaning of S. 2 (18) of Kerala Act 4 of 1961 so as to make him a tenant within the meaning of S. 2 (50), and, by reason of S. 6, render him immune from eviction in execution of the decree for redemption obtained against him by the respondent-decree-holder. In view of the enactment of Kerala Act 7 of 1963, the question now is whether the transaction is a kanam as defined by S. 3 (8) of that act, so as to make the appellant a tenant as defined by S. 3 (26) and require these proceedings for his eviction to be stayed by reason of S. 5.

(2.) IT is said on behalf of the appellant that Act 4 of 1961 is still in force in respect of land of the kind to which the suit property belongs (thanthu thettom) not having been struck down by the Full bench decision in Govindaru Namboodiripad v. State of Kerala (1962 KLT. 913) so far as such lands are concerned, and that it may, therefore, be necessary to consider whether the appellant is entitled to fixity under S. 6 of that Act in which case the execution application against him will have to be dismissed. But, in my view, the question of the applicability of Act 4 of 1961 can arise only if Act 7 of 1963 does not apply, in other words, only if the transaction in question is not a kanam within the meaning of the latter Act, but is a kanam within the meaning of the former Act, something which is not possible having regard to the definitions in the two Acts. Any transaction which is a kanam within the meaning of Act 7 of 1963 must necessarily be a kanam within the meaning of Act 4 of 1961, although the converse is not true in view of the addition of the words, "or by any other name" in the first paragraph of the definition in the former Act. If a transaction is a kanam within the meaning of Act 7 of 1963, any proceeding for the eviction of the kanamdar - and a proceeding like the present for delivery in execution of a decree for redemption would be such a proceeding - must necessarily be stayed under S. 5 of that Act. And this notwithstanding that, under the provisions of Act 4 of 1961, the proceeding would have to be dismissed in view of the fixity granted to the kanamdar tenant.

(3.) IF we turn now to Ext. P-1 we find that it is a transfer for consideration by a landlord of an interest in specific immovable property to another, and that the incidents of the transfer include " (a) a right in the transferee to hold the property for the consideration paid by him; (b) the liability of the transferor to pay to the transferee interest on such consideration; and (c) the payment of michavaram and customary dues (Onakazhcha is customary dues- See the definition in S. 3 (2 ).)" The only other requirement to make the transaction a kanam is that the transfer is for the transferee's enjoyment - that the transaction is described in the document as a Nadappupanayam and not as a kanam or kanapattam is of no significance since, in terms of the definition, the transaction may be described as "kanam or kanapattam or by any other name", and it is not possible to read the words, "or by any other name" ejusdem generis with "kanam or kanapattam". The three incidents in clause (c) of the definition are in the alternative - any one will do. Two are here present, namely, michavaram & customary dues, and the absence of the third, namely, renewal, an essential incident according to the second part of the definition in S. 3 (8), does not matter since, as I have already said, a transaction, even of a non-Malabar area, which qualifies under the first part of the definition need not qualify under the second in order to be a kanam for the purposes of the Act.