VELU PILLAI Vs. VASUDEVA KURUP

JUDGEMENT

(1.) THE only question arising for decision in this second appeal by the plaintiff is whether the defendants are holding the plaint property under a redeemable or irredeemable demise. THE property belonged to the Mararikkulam Devaswom of the 16th defendant's Illom and it was demised to one Narayanan Kunjan, an ancestor of defendants 1 to 15 and 19 to 21 under Ext. D dated 25. 9. 1059. THE plaintiff who took a lease deed from the 16th defendant's Illom with a direction to redeem the prior lease, instituted the suit. It was contended inter alia that the property was held under an irredeemable lease. THE trial court passed a decree allowing redemption but on appeal to the District Court an additional issue regarding the question of redeemability was framed and a finding thereon was called for. THE finding after remand was that the property was redeemable. After receipt of the finding which was objected to by the appellant, the appeal was allowed, holding that ext. D evidenced an irredeemable demise. THE suit was remanded to the trial court for passing an appropriate decree in the light of this decision. THE plaintiff has preferred this second appeal from the decree of the District court.

(2.) THE question for decision is whether Ext. D is a lease falling within Cl. (8) of the Royal Proclamation of 1042. This clause came up for construction in Iype Luka v. Ittyavira Itty Iype (30 T. L. J. 161 F. B. ). THE decision of the Full Bench was that the tenure would not be irredeemable merely because of the absence of a specific right of revocation reserved in the document if there was no provision for payment of renewal fees or evidence of payment of renewal fees. It was also held that in respect of lands demised under a document before the date of Proclamation or renewed after the date thereof, it was not enough to show that the lands were jenmom and were alienated for consideration, to conclude that the tenure was irredeemable and that in respect of such lands it was necessary to enquire whether there was a provision to pay renewal fees or evidence of such payments, before concluding that the tenure of such lands was irredeemable. THE correctness of this decision was affirmed by this Court in the decision reported in Mariam v. Sree purushamangalam Devaswom I. L. R. 1952 Travancore-Cochin 79. THE terms of Ext. D have to be examined in the light of these decisions. It is seen that on the date of Ext. D the tenant made a payment partly in paddy and partly in cash. This was described as ""aao"ooofo" in Ext. D. It was not claimed that this was a provision for payment of renewal fees. Thus what is found is that the land is jenmom in tenure and that it was leased by a proclamation jenmi or receipt of consideration but that there was no provision for payment of renewal fees. THEre is no evidence that such renewal fees was paid at any time after the execution of Ext. D. It necessarily follows that ext. D will not come within Clause. (8) of the Royal Proclamation of 1042. It has therefore to be held that the property is redeemable. THE decision of the lower appellate court is wrong and must be set aside.