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Rev. Fr. Victor Fernandez Vs. Albert Fernandez - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKerala High Court
Decided On
Case NumberA.S. No. 461 of 1971
Judge
Reported inAIR1973Ker55
ActsKerala Land Reforms Act, 1963 - Sections 2(39A); Kerala Land Reforms (Amendment) Act, 1969
AppellantRev. Fr. Victor Fernandez
RespondentAlbert Fernandez
Appellant Advocate T.N. Subramania Iyer, Adv.
Respondent Advocate K. Bhaskaran, Adv.
DispositionAppeal allowed
Cases ReferredIn Sankaran Govindan v. Thymookil Swamiar
Excerpt:
.....labour and capital, was recognised. 124 of 1042 in which the kulikanom deed expressed a definite period (12 years), the sadr court observed, even if a minimum period were not mentioned, we should say, in regard to this very tenure that 12 years was a most reasonable and necessary period to protect the interests of the planter for the intention of both parties clearly is, in respect of lands taken up for planting that the planter should have a long enough tenure to enable him a reap the benefit of his labour outlay, and that, at the end of his period, the proprietor should receive his estate well improved and stocked with trees. we fail to see why the words (original in mallyalam omitted) were used in the operative part of the document unless it be that the transfer was for enjoyment of..........a venpattom lease reserving an annual rent and containing an express stipulation to surrender the property leased on demand. the contention in that case was that although the document in question there was a venpattom, it was really a 'kuzhikanam' and that the lessee had the right to remain in possession for a period of 12 years by virtue of the clause in it which permitted him to plant trees and to get compensation for the same at the time of the surrender of the leasehold interest. the court by a majority negatived the contention. in dealing with the contention the learned judges considered the nature and incidents of kuzhikanam. govinda pillai, j., who wrote the leading judgment for the majority proceeded on the assumption that kuzhikanam means a lease for a period of 12 years for.....
Judgment:

Mathew, J.

1. This is an appeal by the 2nd defendant from a decree passed by a learned Single Judge in second appeal in a suit for redemption of a melotti and kuzhi-kanam evidenced by Ex. P-l.

2. Since the 2nd defendant among other things contended in the appeal that he is a deemed tenant coming within the ambit of Section 4-A of Act 1 of 1964 as amended by Act 35 of 1969 and as his constitutional validity was challenged by the plaintiff, the case was referred to a Bench of three Judges. When the case was argued before that Bench, the plaintiff contended that the tenure of the land involved in the case is pandara-pattom in the Travancore area of the State and so Section 4-A in its application to that land cannot have the protection of Article 31-A of the Constitution in view of the decision of a Bench of three judges in Govindaru Nambooripad v. State, 1962 Ker LT 913 = (ATR 1963 Ker 86) (FB). As considerable doubt was entertained on the question whether pandarapattom land in the Travancore area of the State is 'estate' within the meaning of Article 31-A(2)(a) that question was referred to a Bench of five Judges. That Bench answered the question by saying thatpandarapattom land in the Travancore area of the State is 'estate' within the definition of the term in Article 31-A(2)(a). Th' appeal was thereafter posted for argument before us.

3. The plaint property belonged to one Kunchena Narayanan. He gave the property on otti and kuzhikanam in 1060 under Ex. D-l to Thomas Fernandez, the husband of 1st defendant and father of defendants 2 to 10. There was a partition of the assets of Kunchena Narayanan in 1069 among his seshakars and his children. The seshakars who got the plaint property under the partition executed a melotti and kuzhikanam in 1079 (Ex. P-l) in favour of Perumal Potha directing her to redeem Ex. D-l. She redeemed Ex. D-l and reduced the property to her possession. In 1097 the heirs of the executrix under Ex. P-l, transferred the rights under the document to Thomas Fernandez. The 11th defendant who got the plaint property under a partition among the seshakars of Kunchena Narayanan, sold it to the plaintiff under Ex. P-3. The plaintiff instituted the suit to redeem Ex. P-l.

4. The trial court dismissed the suit on the ground that the plaintiff did not prove his tide to the plaint property. The plaintiff filed an appeal from the decree which was allowed, and the suit decreed. The second appeal filed against that decree by the 2nd defendant was dismissed.

The contentions of the 2nd defendant in the second appeal that Thomas Fernandez who took Ex. P-2 was not the husband of the 1st defendant and the father of defendants 2 to 10 who took Ex. D-l, and that the 11th defendant did not get title to the property were overruled by the learned Single Judge and he agreed with the findings of the court below on these questions. Since the findings are concurrent and not vitiated by any error of law, we accept them and repel these contentions of the appellant

5. The appellant, however, contended that Ex. P-l under which he holds the property evidences an otti kuzhikanam coming within the meaning of Section 2 (39-A) of Act 1 of 1964 as amended by Act 35 of 1969; or in the alternative that he is a deemed tenant falling within ambit of Section 4-A (1) of Act 1 of 1964 as amended by Act 35 of 1969, and therefore, the suit for redemption of Ex. P-l must be dismissed.

It is necessary to read Section 2 (39-A) to understand the first contention of the appellant.

'In this Act unless the context otherwise requires,-- 'Ottikuzhikanam' means a transfer fof consideration by a person to another of any land other than nilam for the enjoyment of that land and for the purpose of making improvements thereon, but shall not include a mortgage within the meaning of the Transfer of Property Act, 1882;'

Ex. P-l, as already stated, is styled as a melotti and kuzhikanam. The operative part of the document reads: (Original in Malaya-lam omitted.)

In Mathai v. Narayanan Unnithan, 1961 Ker LT 13 = (AIR 1962 Ker 27) a learned Single Judge said that the literal meaning of 'kuzhikanam' is 'kanom' or money paid for digging 'kuzhi' or pit, and that 'ottikuzhika-nam' means a mortgage with a term of 12 year' containing an undertaking by the mortgagor to pay for the value of improvements effected by the mortgagee at the time of redemption. This view was reiterated by the learned Judge in Raghavan v. Krishnan Nair, 1968 Ker LT 11. We do not think that the literal meaning of 'kuzhikanam' is the meaning to be attached to the term in legal parlance. The term has acquired a special meaning, and that meaning has been recognised in judicial decision. In Sankaran Govindan v. Thymookil Swamiar, 7 Trav LR 44 a Bench of five Judges of the Travancore High Court had occasion to consider the meaning of 'kuzhikanam' when dealing with a venpattom lease reserving an annual rent and containing an express stipulation to surrender the property leased on demand. The contention in that case was that although the document in question there was a venpattom, it was really a 'kuzhikanam' and that the lessee had the right to remain in possession for a period of 12 years by virtue of the clause in it which permitted him to plant trees and to get compensation for the same at the time of the surrender of the leasehold interest. The court by a majority negatived the contention. In dealing with the contention the learned Judges considered the nature and incidents of kuzhikanam. Govinda Pillai, J., who wrote the leading judgment for the majority proceeded on the assumption that kuzhikanam means a lease for a period of 12 years for improving the property leased with an undertaking by the lessor to compensate the lessee for the value of improvements at the time of surrender. He distinguished the case before him on the ground that there was nothing in the document in question there to show that 'a kuzhikanam lease was meant' as there was a definite clause in it to terminate the lease on demand by the landlord. He further said that 'in the case of kuzhikanam' a sum is generally advanced by the lessee to the lessor a' a mortgage debt., and that such advances are not usual in venpattom leases.' He distinguished the Travancore Full Bench decision of the Sadr Court (A. Section No. 163 of 1043) by saying that the mortgage there was expressly called a Kuzhikanam Kunhiraman Nair, J. who dissented from the majority view, said:

'The word Kultkanom is rarely found used in North Travancore to which the parties to this suit belong. The term Kuli-kanom is a generic term used to denote all sorts of improving leases which, in different parts of Travancore, are known by differentappellations such for instance as Karikur pattern, Vettalivoo pattom, Kuyi Pathi pattern and Natavu Kur Anubhavom.

XX XX XX The term Kulikanom, derived from the Dravidom Kuli (pit) and Kanom (money) and meaning literally, compensation for digging and planting the land, is popularly understood to embrace leases of dry lands or Purayidoms wholly or partly uncultivated, granted on condition of the lessee's planting out the waste portion of the land let. Wherever there is an engagement on the part of a lessee to bring new land under culture, by planting trees for which compensation is payable at the time of the lessee's ejectment, the tenure may, for all practical purposes be regarded as Kulikanom. The compensation ultimately payable for digging and planting is regarded as an encumbrance or charge (kanom) on the land and, hence, probably the term Kulikanom came to be applied to all improving leases.'

He supports his conclusion as regards the nature of Kulikanam by referring to the earlier decisions of the Travancore Courts. He said:

'In a case (No. 135 of 1943) decided by a Full Bench of the Sadr Court of this State, the general right of a tenant under Kulikanom, to hold the land till he should enjoy the fruits of his outlay of labour and capital, was recognised. The lease in that case was substantially the same, in its terms, as the lease evidenced by Ex. A. In another case (A. Section No. 203 of 1040) in which the tenure was denominated Vettalivoo Pattom, very similar to Kulikanom, the Court held 12 years to be a reasonable time to be allowed to the tenant. In A. Section No. 124 of 1042 in which the Kulikanom deed expressed a definite period (12 years), the Sadr Court observed, 'Even if a minimum period were not mentioned, we should say, in regard to this very tenure that 12 years was a most reasonable and necessary period to protect the interests of the planter for the intention of both parties clearly is, in respect of lands taken up for planting that the planter should have a long enough tenure to enable him a reap the benefit of his labour outlay, and that, at the end of his period, the proprietor should receive his estate well improved and stocked with trees. For this, 12 years is the shortest period that can be needed.' The judgment of Kunhiraman Nair, J., would show that 'Kulikanam' means an improving lease for a period of 12 years with an undertaking to pay for the value of improvements at the time of redemption. And Ormsby, J. observed in the case: 'Documents have often, unless my memory misleads me, been interpreted by the Court as 'kulikanom' documents, where the word 'kulikanom' did not appear, it being sufficiently obvious that what the parties meant was that the usual incidents of a Kulikanom lease should attach to the conveyance.'

In T. K. Velu Pillar's Travancore State Manual, Vol. in at page 206, the incidents of Ottikuzhikanam are stated to be:

'In this instance, the Ottikkaran gets also the lease of a property, generally garden lands, for the payment of a certain sum of money called Artham and gets into the possession of the property for a period of not less than 12 years; at the time of redemption he is entitled to receive the amount back together with the ponnu or compensation for any improvements he may have made.' We do not think that Ex. P-l document is a mortgage within the meaning of the Transfer of property Act 1882. Apart from the lable given by the parties to the document, there is clear indication in the document to show that the property was given for enjoyment by the mortgagee. The words (Original fa Mallyalam omitted) in the operative portion of the document would put it beyond any doubt that the property was given for enjoyment. We fail to see why the words (Original in Mallyalam omitted) were used in the operative part of the document unless it be that the transfer was for enjoyment of the land by the mortgagee. If kuzhikanam has . come to mean in legal parlance a lease for improvement with a term of 12 years, we can find no reason why the parties used the expression (Original in Mallyalam omitted) in Juxtaposition with the word (Original in Mallyalam omitted) unless it be to emphasise the enjoyment aspect of the transaction. The document contains an express period of 12 years and provides for payment of value of improvements effected at the time of redemption. These terms are generally implied in a kuzhikanam. We can conceive of no reason Why the document should expressly provide for a period of 12 years and for payment of value of improvements effected at the time of redemption and yet state in its operative portion (Original in Mallyalam omitted) unless it be to highlight the lease aspect of the transaction. As already stated, Ex, D-l was also styled as an 'ottikuzhikanam' and the document contained an enumeration of the trees standing on the property. That would show that the property was fully planted with trees. It would appear from Ex. P-l that all the trees except one were standing on the property on the date of Ex. P-l. Therefore, it Was, that Ex. P-I stated that if necessary the mortgagee may plant more trees and that the Value of those trees would be paid at the time of redemption. It cannot therefore be said that the document was not for the purpose of making improvements also. The purpose of making improvements is implied in file operative portion of the document when It is said (Original in Mallyalam omitted).

In these circumstances, we are of the view that Ex. P-I evidences an ottikuzhikanam coming within the purview of Section 2 (39-A) of Act 1 of 1964 as amended by Act 35 of 1969. We also think that the transfer under Ex. P-l being for enjoyment of the property for the consideration men-tioned in it, the 2nd defendant would be a tenant' within the body of the definition in Section 2 (57) of Act 1 of 1964 as amended by Act 35 of 1969. Therefore, the appellant is entitled to fixity of tenure by virtue of Section 13 of that Act as amended.

6. In this view it is quite unnecessary for us to consider the question whether the appellant is a deemed tenant within the meaning of Section 4-A of Act 1 of 1964 as amended by Act 35 of 1969, or the constitutional validity of that section.

In the result, we allow the appeal, and set aside the decrees of the learned Single Judge and the District Court allowing redemption of Ex. P-l and recovery of the plaint property. We restore the decree passed by the Munsif, though for a different reason, and direct the parties to bear their costs throughout


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