JANAKI AMMA Vs. NARAYANAN NANAN

JUDGEMENT

(1.) This Second Appeal arises out of a suit for redemption. The properties involved in the suit belonged to a non Brahmin jenmi family known by the name of Puthiyakkal Kovilagam and were demised under a kanam deed Ext. D dated 24.5.1075. Ext. D was replaced by the subsequent document Ext. E executed on 27.4.1080. The contesting defendants are in possession of the properties on the strength of Ext. E. The 1st plaintiff on whom the rights of the Kovilagam over these properties have ultimately become vested, executed the mortgage deed Ext. F dated 13.10.1115 in favour of the 2nd defendant authorising him to redeem Ext. E and recover possession of the properties together with the arrears of michavaram. Accordingly the present suit for redemption was filed. The main defence set up by the contesting defendants is that under Exts. D and E an irredeemable kanom coming within the scope of the Travancore Jenmi and Kudiyan Act was created and that therefore the suit for redemption is not maintainable. This contention was upheld by the Trial Court which dismissed the suit. On appeal by the 2nd plaintiff, the lower appellate court came to the conclusion that the right of permanent occupancy conferred on the kudiyan by S. 5 of the Jenmi and Kudiyan Act cannot be availed of by the kanamdars under Exts. D and E and that the question whether the right of permanent occupancy was intended to be conferred on these tenants has to be gathered from the terms of the document. On a consideration of the terms embodied in Exts. D and E, the lower appellate Court came to the decision that no right of permanent occupancy was intended to be conferred on the tenants and that under Exts. D and E the jenmi retained the right of redemption and thus reversed the Trial Courts decree dismissing the suit. The 3rd defendant has come up in second appeal, challenging the correctness of the construction put upon Exts. D and E by the lower appellate court.

(2.) From the scheme of the Travancore Jenmi and Kudiyan Act of the year 1071 (Act V of 1071) it is clear that the statutory right of permanent occupancy was conferred on the kudiyans who were already in possession of jenmom lands under a kanom demise as defined in the Act. By S. 42 of the Act a class of kanam demises falling under this category have been expressly excluded from the scope of the Act. That section runs as follows:-

(3.) In the result this second appeal fails and is dismissed with costs. Objection memorandum is also dismissed.