KUNHAMINA UMMA Vs. PARU AMMA

JUDGEMENT

(1.) THIS appeal is by the legal representatives of the 2nd defendant in a suit for redemption of a moiety of a Kanom.

(2.) EXT. B6 is a Kanom-Kuzhikanom deed and EXT. Al its counter-part. They are of date December 1, 1941. The transaction thereunder is a composite one, a Kanom in respect of taks 1 to 3 of item 1 (which constitute the suit properties) and a kanom-Kuzhikanom in respect of the 4th tak of item 1 and item 2 therein (which are not involved in this suit ). The Kanomdars are defendants 1 and 2. In partition under EXT. A3 the rights under EXT. B6 have been divided equally between them; but the properties as such are not divided. The 2nd defendant, now represented by the appellants, had thus an undivided moiety in the suit properties. The original plaintiff was an assignee of the jenmi who granted ext. B6. On her death, her interests devolved on plaintiffs 2 to 6 who assigned the same to the 7th plaintiff Company. The suit is for redemption of the Kanom on the suit properties. Subsequent to the institution of the suit defendants 3 to 9 being the legal representatives of the 1st defendant have surrendered their moiety in the suit Kanom to plaintiffs 2 to 6 (vide EXT. All) and thereafter the suit is prosecuted in regard to the moiety of the Kanom that belonged to the 2nd defendant. The 2nd defendant contended, and that contention is continued by the appellants, that the transaction evidenced by EXTs. B6 and Al is really one of tenancy entitling the defendants to fixity of tenure. The Munsiff accepted the defence and dismissed the suit; but, on appeal by the plaintiffs, the Additional District Judge has reversed him. Hence this second appeal.

(3.) COUNSEL contends that the stipulation for payment of land revenue to the State amounts in law to a stipulation for payment of rent or michavaram to the land-owner and therefore the transaction would be a kanom as defined in the Land Reforms Act (quoted above) and relies on the decision of velu Pillai J. in Parameswaran Embranthiri v. Narasimha Nambudiri (1962 KLT. 404) in support. That decision of the learned single judge had been cited before me when I was hearing S. A. No. 1474 of 1961, and then I referred it to a Division Bench for reconsideration in the following words: 'counsel for the appellants contended that the stipulation for payment of revenue amounts to a covenant for payment of michavaram, and relied on Parameswaran Embranthiri v. Narasimha Nambudiri (1962 klt. 404 ). Under S. 76 of the Transfer of Property Act, every possessory mortgagee is, unless there is a provision to the contrary in the deed of mortgage, obliged to pay the revenue charged on the property. Merely because that statutory liability has been expressly recited in a deed, it cannot change the character of the deed. In other words, if the mention of the statutory duty has been omitted the deed would have been a mortgage, even with mention of that duty it cannot be a transaction of a different character. But that is what seems to me to have been held in 1962 KLT. 404 That decision appears to rely largely on the dictum of a Division Bench of the Madras High Court in Sankunni variar v. Neelakandhan Nambudiripad (1943-11 MLJ. 127 ). The facts of that case, in my opinion, are far different. There, the deed provided for payment of 400 odd parahs of paddy to the transferor by the transferee after payment of revenue, and the question was whether a subsequent enhancement of the revenue was to be borne by the transferor or the transferee. Their Lordships held that though the stipulation had been that after payment of revenue the transferee was to pay a fixed quantity of paddy to the transferor the terms of the deed implied that the liability to pay revenue and therefore to pay the enhancement in revenue also was on the transferor. As there was an express provision for payment of 411 parahs of paddy annually to the transferor the document was construed by their Lordships to be a kanom, and in the light of that construction, the other incidents between the parties were adjudged. The incidents of the transaction in that case and in the case that came up for decision in 1962 KLT. 404 are far different in that in the latter case no payment of any michavaram has been stipulated in the deed concerned. In the circumstances, I am of the view that the decision in 1962 KLT. 404 requires reconsideration and for that purpose I refer this case to a Division Bench. " But when the case was placed before the Division Bench constituted by Velu Pillai and Anna Chandy JJ. their Lordships, without considering the view expressed by me in the reference order remanded the suit to the Court below for fresh disposal by the following judgment dated January 21, 1966: "the two courts below have held that Ext. B-4 is redeemable The contention of the appellant, which has been negatived by the lower appellate court is that it is a kanom under the Malabar Tenancy Act. Now that that Act has been superseded by Act I of 1964, this contention has to be considered and disposed of under the provisions of the latter Act. So we set aside the finding regarding Ext. B-4 and the decree for mesne profits and costs against defendants 4 to 6 and direct the trial court to dispose of issues 12 and 15 which relate to this matter at the time of passing the final decree. The costs incurred so far will be costs in the cause and will be provided for in the final decree. The rest of the decree is affirmed. This appeal is disposed of as above. " When S. A. Nos. 110 and 838 of 1962 in which the identical question arose came up before me on June 20,1966, I adjourned them to be heard and determined by a bench of two Judges. When those cases were heard by Velu Pillai and Krishnamoorthy Iyer JJ. their Lordships followed the dictum in Parameswaran Embranthiri's case, without considering the view expressed by me that a reiteration in the mortgage deed of the normal legal liability of a mortgagee to pay the land revenue would not change the mortgage into a lease with the assumption that revenue paid to the State is payment of rent to the land owner. In these circumstance, I am now constrained to canvass the question myself to the best of my judgment.