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Judges : SANKARAN,KUMARA PILLAI
Anthony - Appellant
Versus
Kochuvareed - Respondent
Case No : S. A. No. 68 of 1125
Decided On : 11/11/1953
Advocates Appeared :
T. P. Poulose; For Appellant P. Kochunni Asan; For Respondent
Redemption - Usufructuary Mortgage - Cochin Tenancy Act - XV of 1113 - S. 2(d), S. 2(f), S. 2(o) - Kanom defined as a demise by a landlord to a tenant - Tenant under the Act must be a lessee, mortgagee, etc., of land - 'Land' under the Act means only ground or solid surface of the earth, including sheets of water as parts of grants of land or appurtenances to such land, and does not include tanks and ponds leased or mortgaged by themselves independently of any ground or solid surface - Ext. IV mortgage is not a kanom under the Cochin Tenancy Act and can be redeemed.
Fact of the Case:
The case involves a suit for redemption of a usufructuary mortgage of a tank, with the defendants claiming it to be a kanom under the Cochin Tenancy Act, XV of 1113, and therefore irredeemable. The lower appellate Court upheld the defendant's contention and dismissed the suit, leading to the Second Appeal.
Finding of the Court:
The Court found that the expression 'land' under the Cochin Tenancy Act means only ground or solid surface of the earth, including sheets of water as parts of grants of land or appurtenances to such land, and does not include tanks and ponds leased or mortgaged by themselves independently of any ground or solid surface. Consequently, the mortgage in question was not a kanom under the Cochin Tenancy Act and could be redeemed.
Issues: The key issue was whether the term 'land' under the Cochin Tenancy Act includes tanks and ponds independently leased or mortgaged, or if it is limited to the ground or solid surface of the earth.
Ratio Decidendi: The Court interpreted the definitions of 'kanom', 'land', and 'tenant' under the Cochin Tenancy Act, emphasizing that a kanom must be a demise by a landlord to a tenant, and a tenant under the Act must be a lessee, mortgagee, etc., of land. The Court concluded that 'land' under the Act means only ground or solid surface of the earth, including sheets of water as parts of grants of land or appurtenances to such land, and does not include tanks and ponds leased or mortgaged by themselves independently of any ground or solid surface.
Final Decision: The Second Appeal was allowed, and the decree of the lower appellate court was set aside, restoring the decree of the trial court. The plaintiff-appellant was awarded costs from the contesting defendants in all the courts.
1. This Second Appeal arises out of a suit for redemption of a usufructuary mortgage.
2. The property mortgaged in a tank. According to the defendants, the mortgage in question is a kanom under the Cochin Tenancy Act, XV of 1113, and is therefore irredeemable. The plaintiff contended in the Courts below that, for constituting a kanom under the Cochin Tenancy Act, the holding should be a parcel of land as distinguished from water and that there could be no kanom in respect of a sheet of water like a tank. The trial Court accepted the plaintiff's case and decreed the suit. The lower appellate Court upheld the defendant's contention and dismissed the suit. Hence this Second Appeal.
3. Ext. IV is the mortgage sought to be redeemed. It was executed by the Kodassery Sthanam on 4.12.1081 in favour of the ancestors of defendants 1 to 6 and the defendants are now admittedly in possession of the plaint tank under it. The document is styled a kozhuverakkapanayadharam; and it was only the plaint tank and nothing more that was mortgaged by it. There is no provision in it for renewal, and it is expressly stated therein that the mortgagees are to hold the tank on mortgage for Rs. 11-3-2 realising the interest on the mortgage amount from the income from fishing and paying certain annual dues to the mortgagor. From Ext. IV it is also seen that there was a prior mortgage of 1014 in respect of the plaint tank and certain other properties and that, on 4.12.1081, the Sthanam gave Ext. IV mortgage to the ancestors of defendants 1 to 6 for the plaint tank and another mortgage to them for the properties other than the plaint tank comprised in the mortgage of 1014. According to the defendants, Ext. IV is not a redeemable mortgage but a kanom under the Cochin Tenancy Act, XV of 1113.
4. 'Kanom' has been defined in S. 2(d) of the said Act as:
"(d) 'Kanom' means a demise with the following incidents:
(1) an initial lump sum consideration in money or in kind or both given or deemed to be given by the tenant to the landlord which is mentioned as such in the demise and bears a specified interest;
(2) the payment of michavaram, if any, by the tenant to the landlord;
(3) the right of the tenant to occupy the property demised for 12 years or for any other longer period which is specified;
(4) the liability to pay a renewal fee on renewal of the demise.
Explanation:- A transaction called 'panayam' in the document evidencing it may create a kanom within the meaning of this section."
To this definition, Act VI of 1115 (Cochin) has added the following explanation also;
"Explanation II:
(i) A transaction called 'panayam' in the document evidencing it and possessing the incidents mentioned in sub-clauses (1) and (2) of this clause shall, until the contrary is proved, be presumed to be a kanom within the meaning of this section, if it is a renewal of a previous document or if in respect of it a counter-part has been executed by the panayam tenant or there is a provision for renewal or for the payment of puravaka dues;
kaivasapanayam, kozhuverukkapanayam or nadappupanayam.
(ii) A provision in any document of the kind referred to in clause (i) providing for surrender of the holding on demand to the landlord shall not, by itself, give rise to any presumption contrary to that provided for in clause (i) of this Explanation."
From this definition, it is clear that a kanom must be a demise by a landlord to a tenant. The term landlord is defined in S. 2(f) of Act XV of 1113 as "a person immediately under whom a tenant holds"; and the term 'tenant' has been defined in S.2(o) of the same Act as follows:
"(o) 'Tenant', with its grammatical variations and cognate expressions, includes a person who as kanom-tenant, lessee, sub-lessee, mortgagee or sub-mortgagee or in good faith believing himself to be kanom-tenant, lessee, sub-lessee, mortgagee or sub mortgagee of land is in possession thereof or who, with the bona fide intention of attorning and paying a reasonable rent to the pe
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