ACKAMMA GOURI Vs. NARAYANA SHENOI PADMANABHA SHENOI

JUDGEMENT

(1.) DEFENDANT 4 in O. S. 281 of 1120 on the file of the sherthallai District Munsiff's Court has brought this second appeal against the concurrent decisions of that court and of the District Judge of Alleppey repelling her contention that the plaint schedule property was held on an irredeemable tenure. The learned District Munsiff found that there was an express provision for surrender and that the contention was therefore untenable. DEFENDANT 4 appealed against that decision and the District Judge affirmed it. The learned judge went into the question more elaborately than the trial court. It is convenient to quote here what the lower appellate court has said on the question. "plaintiff has filed this suit in his capacity as the vendee of the rights of Puthikal Kovilakom to which plaint item 1 belonged. Item 2 is a building put upon item 1. The first ground urged in appeal by the learned Advocate for the appellant is that the property is not redeemable on the basis of the provisions of S. 5 Clause. 2 of the Jenmi and Kudiyan Act. The mortgage sought to be redeemed is Ext. A of 1098. The prior document of 1072 referred to in Ext. A along with the copy of the classification register for the property have been produced by the appellant in this court and as it is found that they are of assistance in deciding the controversy between the parties, I have admitted them in evidence and marked them accordingly on the side of the defendant in continuation of his documentary evidence in the lower court. They are therefore marked as Exts. II and III. From the details of the property furnished by the classification register as regards the elements necessary to constitute a property, Jenmom property and from the relevant portions of Ext. II, I have no hesitation in finding that the suit property is jenmom property. The Jenmi of the property is a non-Malayalee Brahmin Jenmi. In the circumstances the defendant is perfectly entitled to take his stand on the provisions of Clause. 2 of S. 5 of the Act to show that he has acquired rights of permanent occupancy in the holding. And in this case it has to be said that all the requirements laid down in S. S, Clause. 2 are available to establish a case in favour of Kudiyan. But the said case conferring rights of permanent occupancy on the tenant is shaken to its foundation by the application of the provisions of S. 42 of the Act. Ext. A contains in my opinion a provision for redemption as contemplated in the above mentioned section. The authority reported in 1950 KLT 327 is not applicable to the facts of this case as therein the provision in the document regarding the option given to the Kudiyan to surrender the property cannot be treated to be amounting to a provision for redemption as required in S. 42. In Ext. A in this case, the words expressly providing for redemption as laid in the section referred to. I therefore hold that in this case the effect of S. 5 Cl. (2) has been rendered nugatory by the provisions in S. 42. In that view, I find that the properties are redeemable".

(2.) IT is clear from the foregoing extract that the learned judge found S. 42 of the Jenmi Kudiyan Act (V of 1071, Travancore) to be the only impediment in the way of his accepting the contention that the tenure under which the suit property was held was irredeemable. Ext. II makes it abundantly clear that the original tenant's predecessor-in-interest came into possession of the property at least in 1032. Para. 2 of S. 5 of the Jenmi Kudiyan act conferred permanent occupancy right on the tenants of non-Malayalee Brahmin jenmis if they have uninterruptedly held the holding for a period of not less than twenty-five years. S. 42, however said that the provisions of the Act will not apply to any kanapattoms executed since 25. 12. 1042 which expressly provide for redemption. The decision of the lower appellate court turned on the construction it put on the provision as to surrender embodied in the suit document (Ext. A, dated 25. 9. 1098 ). That document was a renewal of a prior kanom of 1072 (Ext. II, dated 5. 5. 1072) and Ext. II shows that itself was the renewal of an earlier demise of 1032. There was therefore clear uninterrupted holding of the property for over twenty-five years. Both Ext. A and Ext. II styled themselves as kanom demises (the former being the counter-part of the kanom demise executed by the jenmi in 1098 and the latter the kanom demise of 1072) and either deed contains the necessary incidents to construe it as evidencing a kanom tenure in the normal acceptation of the term. IT is common ground that Puthiakal Kovilakom, the original jenmi, was a non-Malayalee brahmin Jenmi. The only question open to debate to attract the application of s. 5 would appear to be whether the land is Jenmom land as defined in S. 3 (1 ). The lower appellate court has after referring to Ext. II and Ext. III, copy of the classification register relating to the plaint property, found the same to be jenmom land. The decision of this court in 1950 KLT 327 lends support to that view. The plaintiff had filed a memorandum of cross-objection regarding certain amounts disallowed to him by the lower appellate court. Either in that memorandum or in the argument before us nothing was said to assail the lower court's finding that the land concerned is jenmom land within the meaning of the definition referred to. On the other hand, learned counsel for the respondent stated at the bar that that finding was not impugned.

(3.) IN this view of the matter it is unnecessary to consider whether dehors the Jenmi and Kudiyan Act the contention that the tenure is irredeemable can be sustained. The decisions in 5 TLJ 266, 7 TLJ 404 and 24 TLJ 249 appear to lend support for the view. If with respect to non jenmom lands parties can create permanent tenures without offending any law, we fail to see why the same rule cannot be extended to demises of Jenmom lands which do not fall within the purview of the Jenmi and Kudiyan Act. We are not unaware that speaking with reference to anomalous mortgages, the Privy Council has held (AIR 1922 Privy Council 17) that the provisions of S. 98 of the transfer of Property Act are subject to the provisions of S. 60 of the said Act and that the rule as to clog on redemption applies to anomalous mortgages in the same way as it applies to other recognized mortgages. We are here concerned with a transaction entered into within a jurisdiction where Transfer of property Act was not law (Travancore State) and the deed evidencing the transaction created the relationship of land-lord and tenant between the parties thereto. What Raman Menon, C. J. , said in 7 TLJ 404 (Cheriyan, J. concurring), at page 409 of the report, may usefully be quoted here: "in this State, we freely uphold, under one name or another, irredeemable Ottis. IN such circumstances, I am of opinion that, unless we hold the stipulation to be invalid either on the ground of fraud or misrepresentation or undue influence; or unless we find that it is an unconscionable bargain, we must give effect to it".