Kidangoor Devaswom vs Ouseph and Another

Kumara Pillai, J.—The third Defendant in O.S. 135 of 1118 of the District Munsiff''s Court of Ettumanoor is the Appellant in this second appeal. At the time of the Jenmi-karom settlement under the Travancore Jenmi Kudiyan (Amendment) Act of 1108, the Sirkar treated the suit property in this case as land held on ''kana-pattom'' from the third Defendant, the Kidangoor Devaswom, and assessed jenmi-karom for that property on that footing. O.S. 135 of 1118 was filed for setting aside the decision of the Jenmi-Karom Settlement Officer in regard to the suit property and for a declaration that it was not liable to be assessed to jenmi-karom at all. According to the plaint allegations the property was ''Pandarapattom'' land which originally belonged to the Ulavoor family and the Plaintiff had obtained a sale of the rights of the said family and redeemed the prior mortgages and was in possession and the Kidangoor Devaswom had no right at all to the property.

Defendants 1 and 3 contested the suit. They contended that the suit was barred by limitation, that the Ulavoor family had no right to the property, that it was land held on ''kana pattom'' tenure from the third Defendant, and that the decision of the Jenmi-karom Settlement Officer was correct and not liable to be set aside. On the short ground that the Kidangoor Devaswom had not granted any renewal or received any michavarom for the property within fifty years of 17-5-1108, i.e., the date of the Travancore Jenmi and Kudiyan (Amendment) Act of 1108, and that Section 44, Travancore Jenmi and Kudiyan Act therefore came into operation in this case and the Devaswom had lost its rights over the property even if it had any, the trial Court found that the decision of the Jenmi-karom Settlement Officer was liable to be set aside and that the declaration sought for by the Plaintiff had to be granted.

It therefore decreed the suit without considering the question of title of the Plaintiff and the third Defendant to the suit property. On appeal to the District Court of Kottayam the learned Second Judge of that Court confirmed the trial Court''s decree on the same grounds as those given by the learned Munsiff for decreeing the suit. The third Defendant has, therefore, filed this second appeal.

The Courts below have clearly misunderstood Section 44, Travancore Jenmi and Kudiyan Act. What is required by that section for absolving the Kudiyan from liability to pay jenmi-karom is not that he or his predecessor-in-interest should have been in possession, without paying michavarom and other dues or without taking any renewal, for more than fifty years preceding the date of the Travancore Jenmi and Kudiyan (Amendment) Act of 1108 but that he should have been in such possession for more than fifty years preceding the date of the original Act (Travancore Jenmi and Kudiyan Act) which was passed in 1071 and which was only amended by the Amendment Act of 1108.

The Jenmi and Kudiyan Act now in force was passed on the 21st Mithunam 1071, and Section 44 as passed by that Act was as follows:

Saving of rights of Kudiyans of more than fifty years'' standing-

Notwithstanding anything contained in the foregoing the provisions of this Regulation shall not apply to any Kudiyan who or whose predecessor-in-interest has held his holding for more than fifty years preceding the date of this Regulation, without paying michavarom and other dues or without taking any renewal within the said period of fifty years.

And of established rights.

The provisions of this Regulation shall not apply to any right declared, established or already acquired by Jenmis or Kudiyans at the date of this Regulation comes into force.

Explanation: If any time for redemption has been specially provided for, the fifty years shall be calculated from the date on which the stipulated time expires.

The Amendment Act was passed on 17-5-1108 and the only amendment made to this section by that Act was to omit the words "the provisions of this Regulation shall not apply to" and to substitute for them the words "no Jenmi-karam shall be recoverable by any Jenmi or by Our Government from." After the amendment, paragraph 1 of Section 44 reads:

Saving of rights of Kudiyans of more than fifty years'' standing-

Notwithstanding anything contained in the foregoing no Jenmi Karom shall be recoverable by any Jenmi or by Our Government from any Kudiyan who or whose predecessor-in-interest has held his holding for more than fifty years preceding the date of this Regulation, without paying Michavaram and other dues or without taking any renewal within the said period of fifty years.

No alteration was made in the other two paragraphs of this section. The words "this Regulation" in Section 44 refers not to the Amendment Act of 1108 but to the Travancore Jenmi and Kudiyan Act itself passed in 1071. The Courts below have clearly lost sight of this fact in applying Section 44 to the case. I hold that, u/s 44 of the Travancore Jenmi and Kudiyan Act, a kudiyan can be absolved from liability to pay jenmi-karam only if he or his predecessor-in-interest has held the holding for more than fifty years preceding the date of the Travancore Jenmi and Kudiyan Act of 1071 (and not for more than fifty years preceding the date of the Travancore Jenmi and Kudiyan (Amendment) Act of 1108) without paying michavaram and other dues or without taking any renewal within the said period of fifty years.

It follows that the decrees of the Courts 3 below are unsustainable on account of the wrong view they have taken of Section 44, Jenmi and Kudiyan Act. The Second Appeal is, therefore, allowed, the decrees of the Courts below are set aside, and the suit is remanded to the trial Court for a fresh disposal according to law and in the light of the observations made above after giving both parties Anr. opportunity to adduce evidence. The costs of this appeal will abide the result of the remand.