Dummini Mariamma vs Raman Pillai Sivarama Pillai and Another

Subramania Iyer, J.—Defendant 6 in O.S. 200/14 is the Appellant in the second appeal. The only question that arises is whether the decree finally passed by this Court on 21-2-1952 in Second Appeals 794 and 828 of 1950 decreeing redemption of the properties comprised in Ex. E of the year 1073 renewed by Ex. I of the year 1093 can be executed or should be stayed under the Travancore-Cochin Holdings (Stay of Execution Proceedings) Act, 8 of 1950.

The contention urged by the learned Advocate-General on behalf of the Appellant is that the transaction evidenced by Exs. E and I is a kanapattam within the meaning of the explanation to Section 2 of the said Act and therefore execution of the decree should be stayed under the Act Both the Courts below repelled the contention relying upon a decision of a Full Bench of this Court in - Sanku Krishnan v. Govinda Prabhu AIR 1952 TC 333 (FB) (A). The attempt of the learned Advocate-General was to distinguish the present case from the decision of the Full Bench the facts and also relying upon certain observations in the judgment in support of his case.

The fixation of a period of 12 years in both, the documents is the first point relied upon. The mention made by Joseph Vithayathil J. in paragraph 14 of his judgment that

the right of the tenant to be in possession of the property for a period of not less than 12 years is an essential feature of the transaction

is relied upon and on its strength it is contended that on account of the-existence of that feature in the present case, the transaction should be held to be a kanapattam. The above passage in the judgment of the learned Judge should be taken as having reference to some provision of law fixing a minimum period and not to the customary or a contractual period. Sundara Iyer in his ''Malabar and Aliyasanthana Law'' page 292, states:

The first decision of the highest Court of appeal in which the twelve years'' rule was recognised is - Moideen v. Kumaran Nam- budiri 1855 SD 137 (B). In Walker''s report the usual term of the kanam is stated to be from 3 to 6 years, in Farmer''s Report 3 to 5 years. Mr. Graeme states that in North Malabar it was renewed every three or four years. Rajah''s kanoms were treated as exceptions lasting for the life of the grantor but as these people attained the dignity somewhat at a late age, the privilege was a rather doubtful one. Mr. Walker also states that the lease expired with the life of the jenma karan as well as the kanomdar. Mr. Warden notices an exception when a period, is fixed. Both according to Walker and Warden, if the tenant wants to return the land, he may do so suffering a loss of 20 p.c. of his advance... Mr. Strange is considered by Mr. Moore as the author of the 12 years period. However it may be, the period of 12 years is accepted as the customary duration of the tenure in the Sudder Court Proceedings of 1856....In the absence of a contract to the contrary it enures for a period of 12 years.

Parties are, therefore, free to stipulate for any period as the duration of a kanom tenure. If no period is fixed in the contract, the custom gave it a duration of 12 years. This was the position under the customary law. When the relation of landlord and tenant regarding kanom holdings was regulated by statute, provision has been made reckoning a minimum of 12 years as the duration of a kanom tenure. See the Cochin Tenancy Act 15 of 1113 which defines kanom as follows:

Section 2(d) . ''kanom'' means a demise with the following incidents:

(1) x x x

(2) x x x

(3) the right of the tenant to occupy the property demised for 12 years or for any longer period which is specified.

It is not contended that there is any statute applicable to the case to determine whether the present is a kanom tenure or not on the basis of its duration. A kanom is a combination of a lease and a mortgage. A possessory mortgage will therefore run parallel to a kanom to a certain extent. Existence of features in a transaction which are appropriate to a possessory mortgage will not, therefore, support a plea that these features operate to make it a kanom tenure. Unless there is the presence in a transaction of a feature not ordinarily present in a possessory mortgage but is appropriate to the relationship of the parties as lessor and lessee, a possessory mortgage will not cease to be such and become a transaction creating a kanom tenure. No such distinguishing feature exists in the present case.

The learned Advocate-General relies upon the use of the word ''Mun Kanam'' in Ex. I when reference was made to the consideration of the advance under the earlier transaction. The word ''kanom'' in the context merely means ''consideration''. Renewal was for the consideration already given under the earlier transaction as also for fresh consideration advanced at the time of the execution of the renewal deed, in 1093. Reliance was also placed by the learned Advocate-General upon the fact that liberty is given in the document to his client to effect improvements upon the property by planting trees and constructing a house for his residence. The argument is that the grant of this liberty indicates the intention of the parties that the arrangement should be for a considerable time, if not perpetual. This argument does not appeal to us. The property in question is cherical land that is, land situated in forest area. If no express liberty is granted for the erection of a dwelling house, it might possibly lead to the contention at the time of eviction that the erection of a dwelling house is unsuitable to the property and does not, therefore, constitute an improvement to be paid for It may be to obvite the objection that express permission is granted in. that behalf in the document. Liability to pay renewal fee or the fact of payment of a fee at the time of renewal would be a feature that might distinguish a kanam tenure from a possessory mortgage. The Appellant attempted by adducing oral evidence to prove that at the time of renewal a fee was in fact paid. The evidence was disbelieved and the alleged payment was found against by both the Courts below.

The result is that the conclusion reached by the Courts below that Act 8 of 1950 does not apply to the case is correct and the Second Appeal should be dismissed with costs.