KUNHI KALANTHAN Vs. P MADHAVI AMMA

JUDGEMENT

(1.) This is an appeal against the Judgment and decree of the Subordinate Judge of Tellicherry in O. S. No. 86 of 1944 granting the plaintiffs, the 'melkanomdars', a decree for redeeming all the fourteen Items of 'kanom' properties involved in the suit and granting them possession, together with arrears of rent as claimed in the plaint, conditional on payment of the value of the defendants' improvements, as found, along with the 'kanom' amount. The facts are briefly these. The 30th defendant, Chirakkal Kovilakath Rama Varma Valiya Raja Avergal, is the 'Jenmi' in respect of items 1, 4, 5, 9, 10 and 13 to 14. Of the remaining items, Nos. 2, 3, 6, 8 and 11 belong in 'jerim' to the Kalarivathukkal Devaswom under the management of the 30th defendant as the sole 'ooralan' or trustee. Item 7 belongs in 'jenm' to the Nani-yur Devaswom, likewise under the sole management of the 30th defendant as the sole 'ooralan' or trustee. The consolidated 'kanom' for all these fourteen Items was granted by the 30th defendant in favour of one Abdul Khader, the late 'karnavan' of the 'tarwad' of defendants 1 to 9, and was renewed on 16th January 1929, under Ex. P-2, for ten years. The total 'kanom' amount was Rs. 9728-4-0. The items were separately described and the 'jenm' right of the two devaswoms and the Kovilagam were shown against the items; but the 'kanom' amount it-self was not split up between the various items. Ex. p-2 would normally expire on 16-1-1939. It was not renewed in favour of the then 'kanom-dars'. On 29-8-1943, the 30th defendant granted these fourteen items in 'melkanom' to the plaintiffs, item 7, belonging to the Nainyur devaswom being given only for five years, and the other 13 items being given for 12 years. The Government had, under Section 3(a), Madras Hindu Religious Endowments Act, exempted the Kalarivathukkal devaswom and its endowments from the operation of the provisions of Section 76 of the Act requiring the previous sanction of the Hindu Religious Endowments Board for all leases above five years, mortgages etc. Of course, a 'kanom' and 'melkanom' will come under the head of "mortgages" under the rulings, as admitted by both sides. The fact that item 7 was granted only for five years will not, therefore, make any difference, as the 'melkanom' was not a lease but a mortgage. The 'kanom' amount was also split up between the various items for the first time, under Ex. P-1. Rs. 6412 was settled as 'kanom' amount of items 1, 4, 5, 9, 10 and 12 to 14 belonging to the 'Kovilagam' itself. Rs. 2958-4-0 was fixed as 'kanom' on items 2, 3, 6, 8 and 11 belonging to the Kalarivathukkal Devaswom, exempted under Section 3(a), and Rs. 458 was fixed as 'kanom' on item 7 belonging to the Naniyur Devaswom not exempted under Section 3(a) from the operation of Section 76.

(2.) The plaintiffs' suit was contested on various grounds which will appear from the issues. The following issues were framed:

(3.) After discussing the entire evidence, the learned Subordinate Judge held that the 'mel-charth' or 'melkanom' to the plaintiffs was valid under Section 76, Hindu Religious Endowments Act, except as regards item 7, Regarding item 7, he rightly held that it was a mortgage and required the sanction of the Hindu Religious Endowments Board before a 'melkanom' of this item could be validly granted to the plaintiffs. On issue 2 he held that the plaintiffs were en titled to redeem all the fourteen items. The Malabar Tenancy Act, which was urged before him to be a bar to eviction, was held by him not to be a bar, as, under Section 17 of the Act, where the 'kanom' exceeded 40 per cent. of the 'jenm' value, the provision regarding the prohibition bE eviction would not apply, and, he found the 'kanom' in this case to be worth Rs. 9728-4-0 as against the 'jenm' value of Rs. 12,336, i.e., to amount to far more than the 40 per cent, required under Section 17. He also considered that though the plaintiff's had not got a proper 'melkanom' title to item 7, still they could redeem the entire mortgage when the thirteen other items were covered by valid title. In that view, he found issue 2 in the affirmative regarding all the four teen items. Issue 3 was not seriously pressed before him and was virtually given lip. So he found Issue 3 in the negative. On issues 4 and 5 he found that the defendants had not effected the numerous improvements they claimed, had not dug up and improved the land and made it fit for paddy cultivation, had not removed the silt at any great expense and had only done such ordinary acts of husbandry regarding these matters as would not entitle -them to any sum as compensation for improvements. But he granted them the cost of some improvements effected, namely, a drainage channel worth Rs. 28-8-0, and also the value of a shed and of some trees planted in the normal course of husbandry, without detriment to the paddy fields, and necessitated by the silting and the formation of the new ridges in consequence. He directed all the parties to bear their own costs. He granted six months' time for redemption and allowed mutual set-off of claims. Only defendants 2, 3 and 6 to 11 have appealed,