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Puthiyatuth Parvathi Alias Kunhi Kava Amma Vs. Nelliyoth Makkam Amma (Died) and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtChennai High Court
Decided On
Case NumberCivil Revn. Petn. No. 1315 of 1946
Judge
Reported inAIR1951Mad187; (1951)IMLJ497
ActsTransfer of Property Act, 1882 - Sections 58, 72 and 98; Court-Fees Act, 1870 - Sections 7 and 17
AppellantPuthiyatuth Parvathi Alias Kunhi Kava Amma
RespondentNelliyoth Makkam Amma (Died) and ors.
Appellant AdvocateV.P. Gopalan Nambiar, Adv.
Respondent AdvocateGovt. Pleader
DispositionPetition allowed
Cases Referred and Narayanan v. Chathukutti I. L. R.
Excerpt:
.....our decision on certain well recognised incidents of the kanom tenure. the fact that the kanomdar had to pay porappad or michawaram every year does not exempt him from liability to pay it at the time of redemption if he failed to pay it at the stipulated time. 307). 10. it follows, therefore, that a suit for redemption of a malabar kanom, like any other suit for redemption of a possessory mortgage, can be valued under section 7(ix) of the court-fees act even though the plaintiff incorporates in his plaint a prayer for the taking of accounts and the payment of arrears of rent due from the kanomdar......a liability on the part of the kanomdar to pay rent to the jenmi or the owner of the land. the rent payable by the kanomdar may also be substantial, and the kanom amount itself might be small as compared with the annual rent payable. all the same as early as kunju velan v. manavikrama, 1 m. h. c. r. 113 (note) and shaik rautan v. kadangot shupan, 1 m. h. c. r. 112 this court held that a malabar jcanom was a mortgage and not a tenancy liable to forfeiture for non-payment of porapad by the kanomdar. in n. v. silapani v. u. m. ashtamurti, 3 mad. 382 a suit by a jenmi for recovery of possession of land held under a kanom demise was held to be a suit for redemption of a mortgage governed by the period of limitation applicable to such suits. innes j. speaking for a full bench of five.....
Judgment:

Viswanatha Sastri, J.

1. The plaintiff in the Court below, here petitioner, seeks a revision of the order of the District Munsif of Badagara re. quiring her to pay court-fee in a suit for recovery of possession of land held under a kanom demise together with arrears of rent, not only on the principal amount of the kanom but also on the arrears of rent claimed by her. The kanom amount was Rs. 60 while arrears of rent sought to be recovered and on which additional court-fee was directed to be paid was Rs. 1145-7-0. The plaintiff prayed that the amount due to her for arrears of rent should be set off against the amount of the kanom and the value of the improvements due to the defendants and that the latter should be directed to restore possession of the demised land and pay whatever might be found due to her on accounts being taken. There has been a difference of opinion in this Court as regards the proper method of valuing suits of this kind for purposes of court-fees and jurisdiction. The divergence of views is due to the anomalous character of a kanom which is neither wholly a mortgage nor wholly a lease. The incidents of a kanom tenure originally recognised by custom and judicial decisions have been incorporated in subsequent legislation to which regard must be had in reaching a conclusion.

2. Under Section 17, Court fees Act, if a suit 'embraces two or more distinct subjects' the plaint is chargeable with the aggregate amount of court-fees to which plaints in suits embracing each of such subjects separately would be chargeable under the Act. In a suit 'for recovery of mortgaged property,' that is to say, in a suit for redemption, court-fee is payable 'on the principal expressly secured by the instrument of mortgage,' under Section 7(ix) of the Act. The petitioner argues that the present suit is one for redemption chargeable under Section 7(ix), while the learuei Government Pleader maintains that court fee is payable both on the claim for redemption and on the claim for arrears of rent under Section 17 of the Act.

3. A mortgagee in possession ia required by Section 76, T. P. Act, to manage the property prudently, collect the rents, pay Government revenue, abstain from committing waste, effect necessary repairs to the property and keep clear and full accounts of receipts and disbursements. Some of these obligations may be qualified or their performance dispensed with by a contract between the parties. The last paragraph of Section 76 runs as follows :

'If the mortgagee fail to perform any of the duties imposed up on him by this section, he may, when accounts are taken in pursuance of a decree made under this chapter be debited with the loss, if any, occasioned by such failure.'

A decree for redemption is contemplated by Section 60 occurring in chap. IV, T. P. Act. Under Order 34, Rule 7, C. P. C., the preliminary decree in a suit for redemption of a mortgage directs an account to be taken of the amount due to the mortgagee, presumably having regard to the stipulations in the mortgage deed and the obligations imposed by Section 76, T. P. Act, on a mortgagee in possession. The right of the mortgagor to require an account from the mortgagee in possession is incidental to his right of redemption. A suit for redemption involves a taking of the account between the mortgagor and the mortgagee in order to ascertain the sum due from the one to the other on payment of which sum alone a mortgagor is entitled to recover possession of the property. If on taking the account, the mortgagee is found to have been over-paid, the Court is required by Order 34, Rule 9, C. P. C., to pass a decree directing him to pay the surplus to the mortgagor in addition to restoring possession of the property to him. A claim by the mortgagor for surplus profits, that is, profits realised by the mortgagee in excess of what was due to him, is incidental to the main relief of redemption, and the valuation of the main relief and payment of court-fee thereon as required by Section 7(ix), Court-fees Act, would cover also an incidental relief in regard to surplus profits. No separate court-fee need be paid in respect of a prayer for the taking of accounts or for payment of the surplus profits in a suit for redemption of a possessory mortgage. Devadas v. Sadasiva : AIR1947Mad411 .

4. Is there anything in the nature of a Malabar kanom which requires the application of a different principle to a suit for redemption and recovery of arrears of rent due from the kanomdar There is this difference between a usufructuary mortgage and a kanom, namely, that there is always a liability on the part of the kanomdar to pay rent to the jenmi or the owner of the land. The rent payable by the kanomdar may also be substantial, and the kanom amount itself might be small as compared with the annual rent payable. All the same as early as Kunju Velan v. Manavikrama, 1 M. H. C. R. 113 (note) and Shaik Rautan v. Kadangot Shupan, 1 M. H. C. R. 112 this Court held that a Malabar Jcanom was a mortgage and not a tenancy liable to forfeiture for non-payment of porapad by the kanomdar. In N. V. Silapani v. U. M. Ashtamurti, 3 Mad. 382 a suit by a jenmi for recovery of possession of land held under a kanom demise was held to be a suit for redemption of a mortgage governed by the period of limitation applicable to such suits. Innes J. speaking for a Full Bench of five Judges, said :

'Rent is payable in the case of every kanom, but all kanoms partake also to a certain extent of the incidents of a usufructuary mortgage. The mortgagee in all such holdings is assumed to be able to derive from the lands placed in his possession enough to pay the interest, at least of the money advanced. The discharge of the principal is not immediately contemplated. The holder of the kanom, therefore, pays himself the interest and also pays the Government tax, either directly or through the landlord. The over-plus or a certain fixed amount in grain or money is to be paid to the landlord. If, when viewed scientifically, it cannot be wholly regarded as a mortgage, it certainly cannot be wholly regarded as a lease as undoubtedly the land enures as security, if not, for the principal, at least for the interest of the loan advanced,'

5. A kanom partakes of the nature of a mortgage with possession and a lease. The kanomdar is a tenant liable to pay the rent stipulated in the kanom deed to his jenmi. But he does not forfeit his right to hold the land for 12 years by allowing the rent to fall into arrears. He is also a mortgagee, the kanom amount and interest thereon being secured by the land and its usufruct. A kanom demise carries with it, in the absence of a contract to the contrary, the right to erect a dwelling house and appurtenances on the land and to plant cocoanut, mango, jack and other trees on any land not already under grain cultivation. The kanomdar is entitled to be paid the value of improvements effected by him unfettered by the restrictions imposed by Section 72, T. P. Act, and has a right to remain in possession for the period of 12 years and even thereafter, until be is paid the kanom amount together with the value of improvements. The jenmi or owner is entitled to sue for and recover the rent payable by the kanomdar during the subsistence of the kanom. But if he does not so recover, he is entitled, on redemption of the land, to set off the arrears of rent due to him by the kanomdar against the claim of the latter for the kanom amount and compensation for improvements. The kanom amount is looked upon as a security for the rent due to the jenmi and is itself secured by the land demised on kanom. On the expiry of the term, an account has to be taken between the jenmi and the kanom-holder, credit being given to the latter for the value of the improvements in addition to the kanom amount and interest thereon and to the former for all the rent in arrear. These are incidents annexed by the custom of the country be a kanom tenure and repeatedly recognised by the decisions of this Court.

6. It has been held in this Court that a kanom is an anomalous mortgage within the meaning of Section 98, T. P. Act, with certain well-known incidents attached to it under the customary law of Malabar. The requirements of the Stamp Act as to the stamp duty payable on mortgages, and of the Transfer of Property Act as to the attestation and registration of mortgages, have been held to apply to kanoms in Malabar : Reference under the Stamp Act, Section 46, 22 Mad. 164 Raman Nair v. Vasudevan, 27 Mad. 26, Gopalan v. Kunhan Menon, 30 Mad. 300 : (17 M. L. J. 189) and Kanna Kurup v. Sankara, 44 Mad. 344 : U.I.It. (8) 1921 Mad. 243). Section 60, T. P. Act, giving a right of redemption in respect of mortgages has been applied to Malabar kanoms : Kunhoti v. Mohamed Koya : (1948)2MLJ293 and Viroopakshaii v. Tarwad Karnavan : AIR1937Mad214 . A suit for recovery of property held under a kanom has been held to be a suit for redemption on which court-fee is payable under Section 7 Clause (ix), Court-fees Act. Moopil Nayar v. Ammalu Amma : AIR1926Mad667 .

7. Nevertheless it is contended by the Government Pleader that if a suit is filed not only for recovery of possession of land held under a kanom demise but also for recovery of arrears of rent, the two reliefs are separate and distinct and must be valued separately for purposes of court-fees. There is, it is said, in addition to a claim for redemption by a mortgagor, a claim by a landlord against his tenant for arrears of rent and these claims are different in their nature and are based on different causes of action. The decisions relied upon in support of this contention are Konna Panikkar v. Karunakara, 16 Mad. 328Rama Varma v. Kadar, 16 Mad. 415, c. B. P. No 1467 of 1945 (decided by Bell J.) and C. R. P. No. 194 of 1946 (decided by Happell J.). These decisions were given in suits for redemption of Malabar kanoms. The two unreported decisions merely purport to follow the two reported cases and do not add to the reasons contained in them. In the two reported cases there is no adequate discussion of the point now under consideration. In the first of the two cases the whole of the judgment, now relevant, ran thus:

'We consider that there are two distinct causes of action in the suit, namely, the claim for redemption and that for the arrears of rent, and that, therefore, the value of the subject-matter of the suit is the aggregate value of these two heads of relief, that is, Rs. 5000 for the suit to redeem and Rs. 122 for the claim for arrears of rent.' In the second of the two cases, the judgment of the learned Judges was as follows: 'The claim to arrears of rent and the right to redeem are two distinct causes of action. It does not appear that the arrears were intended to be set ofi against the mortgage-debt and rendered items of account to be taken between the mortgagor and the mortgagee. The District Judge is right in holding that the court fee ought to be computed on the principle amount of the panayam debt and on the amount of arrears of rent disallowed by the Subordinate Judge and claimed on appeal.'

It may be that on the frame of the plaint in that case the arrears of rent were not intended to be set off against the kanom amount and rendered items of account between the mortgagor and the mortgagee. We cannot, with great respect, regard these decisions as laying down the correct rule applicable to cases where, in addition to redemption, recovery of arrears of rent due from the kanomdar is also sought.

8. The learned advocate for the petitioner has referred us to a large number of decisions in support of his contention. In Zamorin of Calicut v. Narayana, 5 Mad. 284 (F.b.) this Court held that a jenmi suing for redemption of a kanom is entitled to value hia suit for purposes of juriadiction and court-fees at the amount of the principal sum expressed to be payable by the kanom deed even though he might have to pay a sum far exceeding the kanom amount as the value of improvements, before he could get a decree for redemption. In respect of suits for redemption, Section 7(ix) of the Court-fees Act has fixed a somewhat arbitrary mode of valuation on the basis of the principal sum secured by the mortgage even though the sum ultimately found payable by the plaintiff to the mortgagee on taking accounts is very much lower or higher than the principal sum. The Court, however, is bound to apply the statutory rule irrespective of its hardship to litigants and its adverse effect on the revenue. In C. R. P. no. 387 of 1889 the plaintiff sought to redeem a Kanom of RS. 2000 with arrears of rent amounting to Rs. 900. It was held that the suit was cognizable by a District Munsif (whose jurisdiction then extended only to Rs. 2000) the ground of decision being that though michawaram was payable annually by the Kanomdar to the jenmi yet when it waa allowed to remain in arrear and accumulate until a suit was brought to redeem the kanom, it became a matter of account to be taken between the jenmi and the kanomdar. In Eacharan v. Appu. 19 Mad. 16, the plaintiff in a suit for redemption of a kanom claimed arrears of rent due under the demise and prayed for recovery of the land on payment of the kanom amount minus the arrears of rent. Sheppard and Best JJ. held that the court-fee to be paid was on the principal amount of the kanom under Section 7, Clause (ix) of the Court-fees Act. The learned Judges distinguished the decision in Konna Panikkar v. Karunakara, 16 Mad. 328, on the ground that there the suit was to redeem the land and to recpver arrears of rent. In our opinion, it ought not to make any difference in principle whether the rent in arrear exceeds the kanom amount and the value of the improvements or whether it falls short of the aggregate of these two sums. In either case the suit is essentially one for redemption with an incidental relief by way of accounting for the rents and improvements. Jallaldeen v. Vijayasami, 39 Mad. 447 : (A. I R.1916 Mad 631) decided that in a redemption suit the valuation for purposes of court-fee and jurisdiction was the principal sum secured by the mortgage even though the decree might direct the plaintiff to pay a much larger sum exceeding the Court's pecuniary jurisdiction, as a condition of redemption. In Gopala v. Raman : AIR1932Mad217 , Jackson J. held that where a suit was filed for redemption of a kanom with an added prayer for a certain sum by way of damages, the valuation for the purpose of jurisdiction was the principal amount secured by the kanom and not that amount plus the damages claimed. The learned Judgerested his decision on the language of Section 6 of the Malabar Compensation for Tenants Improvements Act. In Grovindan Nayar V. Ithaletty, 50 M. L. J. 493 : (A. I. R. 1926 Mad. 764) Jackson J., held that a mortgagor suing for redemption of a kanom with an added claim for damages for waste committed by the kanomdar need initially pay court fee only on the principal amount of the kanom, The learned Judge, however, added a rider that he 'is entitled to pay the court-fee after the amount recoverable by way of damages has been ascertained and set off against the amount payable by way of improvements.' Evidently the learned Judge was of the opinion that court fee on the claim for damages should be paid after the amount of damages had been ascertained on the analogy of Section 11 of the Court-fees Act. Section 11 of the Court-fees Act is, however, a special provision applicable only to those suits specified therein and cannot be extended analogically to suits on mortgages or for damages. In our opinion, Section 11 of the Court-fees Act, does not apply to a suit for redemption though the prayer for redemption is coupled with a claim for damages in respect of waste or default committed by the mortgagee while he was in possession.

9. We prefer to rest our decision on certain well recognised incidents of the kanom tenure. The michawaram or the net rent payable to the jenmi by the kanomdar, if allowed to remain in arrear, becomes a matter of account in a suit for redemption by the jenmi. To the extent to which the arrears of rent satisfy the kanom amount and the value of improvements payable to the kanomdar, the amount payable by the jenmi for redemption is reduced. If the arrears of rent exceed the kanom amount and the value of improvements, the kanomdar must not only submit to a redemption free of any payment by the jenmi but also pay over the surplus to him. Though a jenmi could have instituted a suit 'for recovery of the rent from the kanomdar as & when it fell due during the subsistence of the kanom, still, the rent in arrear becomes a matter of account to be taken between the jenmi and the kanomdar in a suit for redemption of the kanom. The fact that the kanomdar had to pay porappad or michawaram every year does not exempt him from liability to pay it at the time of redemption if he failed to pay it at the stipulated time. This is established by numerous decisions of this Court beginning from Kunji Velan v. Manavikrama Zamorin Raja, (1862) 1 M. H. C. R. 113 (note). The later oases are found collected in Narayanan v. Chathukutti, I. L. R. (1942) Mad. 550 : (A. I. R. 1942 Mad. 307). Section 6 (2) of the Malabar Compensation for Tenants' Improvements Act (I[1] of 1900) expressly recognises the right of the jenmi to set off arrears of rent due to him from the kanomdar against the kanom amount and the value of the improvements. The intention of the Legislature in enacting Sections 5 and 6 of Madras Act I [1] of 1900 appears to be that there should be a complete & final settlement between the jenmi and the kanomdar of all that is due from the former to the latter and from the latter to the former up to the date when possession is transferred to the jenmi. The lease cannot be separated from the mortgage in a kanom transaction. The position is the same as if a usufructuary mortgagee had agreed under the mortgage contract, to pay the mortgagor out of the income of the property fixed sum either monthly or annually during the term of the mortgage but had defaulted in payment. Surely, the sums which the mortgagee defaulted to pay should be debited to him on taking accounts in a suit for redemption, even though the mortgagee might have brought a suit for recovery of the instalments of money stipulated to be paid to him before he filed a suit for redemption. The question is not whether there was a separate cause of action for recovery of rent from the kanomdar apart from the cause of action for redemption but whether in a suit for redemption, an account could be taken of all arrears of rent due from the kanomdar and such arrears applied in reduction of the kanom amount and the value of improvements payable to him. The question admits of only one answer in view of Section 6 of Madras Act I [1] of 1900 and the decisions of this Court is Shaik Rautan v. Kadangot Shupan, 1 M. H. C. R. 112, Silapani v. Astamurti Nambudiri, 3 Mad. 382 , Achuta v. Kali, 7 Mad. 545, Kanna Pisha-radi v. Kombi Achen, 8 Mad. 381, Unnian v. Rama, 8 Mad., 415, Parasurama v. V&nkata-chalam;, 25 M. L. J. 561 : (21 I. C. 701) and Narayanan v. Chathukutti I. L. R. (1942) Mad. 550 : (A. I. R. 1942 Mad. 307).

10. It follows, therefore, that a suit for redemption of a Malabar kanom, like any other suit for redemption of a possessory mortgage, can be valued under Section 7(ix) of the Court-fees Act even though the plaintiff incorporates in his plaint a prayer for the taking of accounts and the payment of arrears of rent due from the kanomdar. The arrear of rent would have to be applied in reduction of the kanom amount and the value of improvements payable to the kanomdar and the plaintiff would be entitled to a decree only for such balance as might be found payable to him on taking the account. The order of the Court below demanding additional court fee on arrears of rent claimed by the plaintiff is set aside. There will be no order as to costs of this civil revision petition.


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