KOCHUPENNU KAYI Vs. OUSEPH

JUDGEMENT

(1.) The only question in this second appeal presented by the second defendant is whether the demise sought to be redeemed is redeemable or is irredeemable. The property is situate in the Travancore area to which Travancore Act V of 1071 and its Amending Act, XII of 1108, apply. The demisor is a Kshatriya. The point in controversy between the parties is whether the Act would apply to a demise granted by a Kshatriya or, in other words, by a non Malayala-Brahmana Jenmi. The defendant appears to have been a lessee of the property from very early times. In 1064 the lease was converted into a demise for money consideration. Stipulations regarding appropriation of interest on the said amount of premium or kanom amount and for payment of michavaram to the demisor besides customary dues are made in the document. The deed recites that the demisee is to be in possession for ten years and that a specified amount has been received as Adukkuvathu. Nothing is mentioned as to what is to happen at the expiry of the term. Ext. V is this demise. There was a renewal in the year 1083 under Ext. IV. Provisions regarding michavaram and customary dues similar to those contained in Ext. V are seen in the renewed document as well. A circumstance which may not be material to decide the question at issue appears in these documents and it is this. The improvements made by the tenant on the property are evaluated each time and the tenants share therein determined and interest thereon at the rate allowed for the kanom amount also deducted to arrive at the michavarom payable. A period of 10 years is fixed in the new document also and it is stated that renewal fee has been received. The next renewal was in 1097 under Ext. III containing provisions similar to those of the earlier deeds. The first point of controversy is whether the demise of Jenmom land because it is only in respect of such demises that irredeemability is conferred by S.7 of the Act. The definitions of jenmi and jenmom land in Act V of 1071 are as under:-

(2.) The demise in question is, as it is also styled, a kanom. The land demised is jenmom land within the meaning of the definition. There is a money consideration for the demise. Customary dues are payable. Though the demise does not show that it is renewable, that is to say, it is subject to renewal within the meaning of the definition, it having been subjected to renewal on payment of renewal fees it is permissible to argue back and attribute the features of renewability to the demise when it was first made.

(3.) In the result, the second appeal is allowed, the decrees of the courts below set aside and the plaintiffs suit for redemption is dismissed. In the circumstances we direct both parties to bear their respective costs here and in both the courts below.