KUTTIPURATH KUNHUNNI PANIKKAR Vs. RAMAN ALIAS THAMARAPALLI THIRUMUMP

JUDGEMENT

(1.) The question in this case is whether the Oorakam, a Devaswom, is entitled to redeem the property in suit. Prior to 1864 there was a simple Kanom by the then Ooralan in favour of the predecessor-in-title of the defendants. That document has been lost and, therefore, its terms can only be gathered from Exhibit 1. We are clear from the recital in it that the first transaction was a simple Kanom. Then in 1864, Exhibit I was executed by the then Ooralan. The question as to whether it confers a permanent and irredeemable right or whether it is an ordinary Kanom is one of some difficulty. The Munsif held it was a permanent tenure. The Appellate Court has differed from him. In our opinion the Munsif was right.

(2.) In the operative portion, the language employed is: "You and your Anandravans may, as hitherto, hold the aforesaid properties for ever and ever." As was pointed out in Neelakandhan v. Ananthakrishna Ayyar 30 M. 61 : 16 M.L.J. 462 : 1 M.L.T. 426, these words would ordinarily import a permanent grant unless there are circumstances which indicate that the intention was different. In that case the learned Judges held that the clause which provided for the renewal of the Kanom every 12 years by a new document was a sufficient indication that the transaction was an ordinary Kanom. Mr. Krishnaswamy Aiyar contended that in the present case also those circumstances exist. We are unable to agree with him. Exhibit I provides that instead of having the renewal fee paid in 1876 the amount of it should be spread over 12 years and should be made payable along with the rent. There is also the provision that subsequent to 1876 the rant should be at the rate at which it was being paid before that date. Even though we may concede that the additional amount paid along with the rent during the first twelve years may be taken as the equivalent of the renewal fee, we are unable to hold that the payments after 1876 must also be regarded as renewal fees, because under the customary law of Malabar a renewal fee is not ordinarily fixed before hand. Further the registration charges and other perquisities which are generally paid along with the renewal fee, have not been mentioned in this document. Moreover a renewal fee is fixed by the mortgagor at the time of the re-grant with reference to the then state of affairs. In our opinion, what the parties intended was that the rent payable should be increased for all time to come as the temple was benefited by such an arrangement. We are, therefore, of opinion that the document should be treated as if it was a perpetual Kanom.

(3.) In this view the further question is whether it is binding upon the Devaswom. As was pointed out by the Judicial Committee in Palaniappa Chetty v. Sreemath Deivasikamony Tandara Sannadhi 39 Ind. Cas. 722 : 40 M. 709 : 21 C.W.N. 720 : 15 A.L.J. 486 : 1 P.L.W. 697 : 33 M.L.J. 1 : 19 Bom. L.R. 567 : 22 M.L.T. 1: (1917) M.W.N. 477 & 507 : 26 C.L.J. 153 : 6 L.W. 222 : 44 I.A. 147 (P.C.) it is not competent to a trustee to grant away permanently trust properly. Therefore, we must hold that the permanent Kanom is not binding upon the plaintiff.