Adam Kutty and others vs P. Puthia Veettil Paru Amma and others

Krishnaswami Nayudu, J.—Defendants appellants represent the kanamdars under a deed of kanom executed by the 13th defendant,

karnavan and manager of the Chirakkal Kovilagam and they are also trustees of the Devaswam properties under the management of the said

Kovilagam. 12 items of properties are the subject of kanom deed Ex.P.1 dated 9th February 1929, Only items 3 and 12 belong to the family. The

rest were the trust properties of the Devaswam. On 7th November 1943, under Ex.P.2, defendant 13 executed a mel kanom in favour of the

plaintiff, empowering her to redeem the kanom and recover possession. The suit is based on the mel kanom for redemption and recovery of

possession.

The defence that was raised was that the mel kanom was in violation of the provisions of the Hindu Religious Endowments Act, and it is invalid

and inoperative, and that the plaintiff was not entitled to any relief on the strength of an invalid mel kanom and that there were no valid grounds for

eviction under the provisions of the Malabar Tenancy Act.

As regards the application of the Malabar Tenancy Act to the suit transaction, it was contended on behalf of the plaintiff, that the defendants

were not entitled to any rights under the Malabar Tenancy Act by virtue of the suit transaction being exempted by the proviso to S.17 of the Act.

S.17, which entitled a kanomdar to claim renewal from his immediate landlord excepted kanoms of property situated in South Malabar where the

kanartham exceeded 60 per cent of the value of the Jenmi''s rights in the holding, and in North Malabar 40 per cent of its value. The suit properties

are situated in North Malabar and the question therefore that arose for consideration was whether the sum of Rs. 7,000 which is the kanartham

fixed under Ex.P.1 exceeded 40 per cent of the value of the jenmi''s rights in the holding. A Commissioner was appointed to fix the valuation as in

December 1930. After inspection of the properties, the Commissioner stated that in his estimate the lands would yield only 12 fold which opinion

of the Commissioner was accepted by the lower Court As regards the price there was however no clear and definite evidence on which the

Commissioner''s finding as regards the price was based and the only evidence that was placed before the Court as regards the price of paddy, was

that of P.W.3, and statements regarding the prevailing price found in the Malabar District Gazette during the relevant period. P.W.3 a paddy

merchant stated that the price was Rs. 10, 11, 12 or 13 per 100 seers which is supported by entries in his account books.

On behalf of the defence D.W.2 spoke to paddy selling at Rs. 15 or 16 in or about the relevant period. Ex.P.7 of May 1931 a statement

published in the Malabar District Gazette showed that in Chirakkal taluk average price of paddy was 8-8-2 seers per rupee. It was urged that it

was 7-8-2 per rupee for 1929-1930 as per Ex.P.7-a. But in Ex.P.7 the price given is 8-8-2 seers per rupee, which works out at about Rs. 12 per

100 seers. The learned Judge has considered the evidence of P.W.3 and the statements in the gazette and on the said basis arrived at the value of

the lands at Rs. 13,295-1-8, 40 per cent of the value being obviously less than Rs. 7,000. It was held that the suit will clearly fall within the proviso

to S.17 of the Malabar Tenancy Act and as such the defendants will not be entitled to any rights accruing to them so far as delivery of possession

under the Malabar Tenancy Act. I see no reason to interfere with that finding which is based on the available evidence in the case.

The other contention that was urged was that under S.76 of the Hindu Religious Endowments Act of 1927, the suit transaction namely, Ex. P.2

which is a mel kanom relating to devaswam properties, they being 10 out of the 12 items covered by the document, a mortgage of such properties

would be invalid and inoperative under the provisions of the said section. This contention was accepted by the learned Judge but he took the view

that the mel kanom should be regarded as valid at least in so far as the properties of the Kovilagam included therein are concerned, but only prima

facie invalid and inoperative as against the devaswam properties. There are two items of properties, items 7 and 12 which belong to the kovilagam.

The learned Judge granted a decree for redemption and possession relying on S.91 of the Transfer of Property Act. It may straightaway be

mentioned that S.91 of the Act has no bearing on the facts of the case, and it is really surprising how a decree could be passed on the facts in this

case relying on S.91 of the Transfer of Property Act.

It was urged on behalf of the respondents that S. 76 of the Act would only apply to a mortgage, and not to a kanom or a mel kanom but Mr.

Jagadeesa Aiyar has fairly conceded that both kanoms and mel kanom are in essence only a mortgage and that this correct position is laid down by

the decisions in Kanna Kurup v. Sankara Varma Raja 44 Mad. 844=14 L.W. 69 and K. K. Kunhoshi v. Mammad Koya (1948) 2 M.L.J. 298

and other decisions on the subject including the view of Mr. Sundara Aiyar in his book on Malabar Law page 299.

The position, therefore, is that the suit mel kanom, Ex.P-2 is invalid and inoperative under S.76 of the Hindu Religious Endowments Act. But

though the mortgage of the devaswam properties are invalid and inoperative the mortgage might be contended to be valid and rights accruing under

the mortgage in respect of Kovilagam properties might be enforced in a suit for redemption, but there is S.60 of the Transfer of Property Act,

which is a bar for partial redemption, except in a case where the mortgagee has acquired in whole or in part the share of a mortgagor the proviso

was introduced by the amendment of the Transfer of Property Act, by the amending Act XX of 1929. That this S.60 applies to the suit document,

there can be no doubt as Ex.P-1 is long after the amendment of the Transfer of Property Act. The suit for redemption, therefore, has to fail.

Mr. Jagadeesa Aiyar has raised an interesting argument that that notwithstanding the invalidity of the mortgage, it will be open to a mortgagor,

who has title to the properties, to recover possession in a suit for redemption, and if the mortgage on which the suit is based is held to be invalid

and inoperative it would not prevent the Court from passing a decree for possession of the properties, as a suit for redemption is in essence a suit

for recovery of possession. He relied upon a decision in Gopaladasu v. Rami 44 Mad. 946=13 L.W. 685. In that case the property that was

mortgaged was an enfranchised service in am land, and such a transaction is void under S. 5 of the Madras Act III of 1895. The suit was for

possession on the ground that the mortgage in respect of those properties have been entirely discharged, and with reference to a contention that

the. mortgages are void and the defendants having been in possession continuously have acquired an absolute title to the suit lands, and cannot be

dispossessed by the plaintiffs or anybody else. It was held that the defendants had not acquired any higher title than that of an usufructuary

mortgagee, and the plaintiffs were held entitled to recover possession and for an account. In a latter decision of this Court in Appanna v.

Venkataswami 47 Mad. 203=19 L.W. 37 in a suit instituted to recover certain lands on redemption of a usufructuary mortgage for Rs. 200

purported to be created by an unregistered deed in 1902, the defendants (some of whom were legal representatives of the original mortgagee who

had been put in possession under the deed, and the others were persons who got into possession within 12 years of the suit), set up an

independent title in themselves and pleaded also that the deed was inadmissible in evidence and that the suit was barred by limitation. It was held

that the deed, though unregistered, was admissible in evidence to show the character of the defendants'' possession; that the defendants could be

shown to have acquired only a limited interest as mortgagees by adverse possession that to prove the extent of the interest acquired by them by

adverse possession, the terms of the mortgage asserted by them may be proved and such proof cannot be regarded as an attempt to prove the

unregistered mortgage or to adduce secondary evidence of it, and the unregistered deed as well as other evidence was admissible for the purpose.

It was also held that a suit to redeem is substantially a suit for possession, and that, even if defendants had not acquired any interest by adverse

possession, the suit was maintainable as one for possession based on title. That was the view taken by Venkatasubba Rao J. following a decision

of the Calcutta High Court in Ananda Hait v. Kkudiram IIait 19 C.L.J. 582. On a difference of opinion between Venkatasubba Rao and Spencer

JJ. the question was referred to a third Judge, Ramesam J. who expressed his agreement with the view taken by Venkatasubba Rao J, and agreed

with the view that a suit to redeem a usufructuary mortgage is substantially a suit for possession. It will be therefore open to a mortgagor in a suit

for redemption of a usufructuary mortgage to rely upon his title and recover possession, if it is found that the mortgage relied upon is void as in the

present case. But such possession he could become entitled to only on the strength of his title. The question, therefore would arise whether the

plaintiff had acquired title to the property, on which he could rest his claim for possession or has acquired any title by virtue of the mel kanom

granted by the kovilagam. A melcharth is defined under S. 3 (20) of the Malabar Tenancy Act as a transfer by the landlord of part of his interest in

any land held by his tenant by which the transferee is entitled to evict such tenant. But in the present case the melcharth pertains to a kanom, and it

is also usually called a mel kanom, by which the person in whose favour it is executed acquires the rights of the jenmi under the kanom to redeem

and recover possession of the property, and enjoy for such period as is provided under the melcharth or mel kanom document. The melcharthdar

derives his right from and is entitled to enforce such rights as may accrue from the kanam. The limited right which the jenmi possesses, namely, of a

mortgagor entitled to redeem the mortgage and take possession is alone that is conveyed under a melcharth or a mel kanom the title of the

property continuing to vest and remaining with the jenmi. Notwithstanding the melkanom he continues to be the owner of the property and his title

is not transferred by virtue of a melcharth or a mel kanom. The plaintiff, therefore, being in the position of a person entitled to only limited rights

enforced he being not entitled to any other rights, it is not open to him to rely on the title which the jenmi possesses to recover possession of the

suit properties. The position might be different, if the suit had been instituted by the 13th defendant or on behalf of the Chirakkal Kovilagam, but

the suit is only by the plaintiff, who is only a mel kanomdar. This contention is, therefore, not open to the plaintiff and in such circumstances the suit

has necessarily to fail. The appeal is allowed, the suit is dismissed with costs here and in the Court below. Costs to be paid by the plaintiff-

respondent.