jenmam assignment deed

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S.A. No. 209 of 2003, Against The Judgment & Decree Dated 24-10-2002 in A.S. 60/1999 of Addl. District Court, North Paravur, Against The Judgment & Decree Dated 27-02-1999 in O.S. 620/1997 of Munsiff Court, Paravur

By Advs. Sri. C. Khalid

Sri. T.H Abdul Azeez

Sri. N. Gopinatha Panicker

Sri. R.O Muhamed Shemeem

Sri. T.P Sajid (Thalassery)

By Adv. Sri. P. Viswanathan

K. Harilal, J.

Order VI Rule 4

• Mariyumma v. Kunjumuhammed Kerala High Court Jan 31, 2017
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Mariyumma v. Kunjumuhammed

The Judgment of the Court was delivered by

K. Harilal, J.:— The appellant is the plaintiff in O.S No. 620 of 1997 on the files of the Munsiff's Court, North Paravur. The aforesaid Original Suit was one for permanent prohibitory injunction, restraining the defendants from trespassing into the plaint schedule property and interfering with her possession and enjoyment thereof. The plaintiff is the widow of late ‘Muttungal Pareekutty’ and step-mother of the defendants. ‘Pareekutty’ died on 10.02.1997 No offspring was begotten in the wedlock between the plaintiff and ‘Pareekutty’.

2. According to the plaintiff, the plaint schedule property having an extent of 1.50 Acres in Sy. No. 202/2 of Eloorkara village belongs to the plaintiff, by virtue of Ext. A1 Usufructuary Mortgage Assignment Deed of the year 1966. Originally, the plaint schedule property belongs to Pareekutty, on the strength of Usufructuary Mortgage Deed No. 1715/1121. In the year 1956, ‘Pareekutty’ assigned the mortgage right in favour of ‘Subramonia Pillai’, who assigned the same in favour of the plaintiff in the year 1966. The aforesaid Usufructuary Mortgage was never redeemed and the property has been in joint possession of ‘Pareekuty’ and the plaintiff. The adjacent properties were also held by ‘Pareekutty’ and they were jointly cultivating the plaint schedule property along with other properties. While so, the defendants have purchased the jenmam right over the property from the landlord, by virtue of Exts. A8 and A9. After the death of ‘Pareekutty’, the plaintiff alone is in possession and enjoyment of the plaint schedule property. But, the defendants are trying to snatch away the possession of the plaint schedule property under the guise of Exts. A8 and A9. Hence, the suit was filed, seeking prohibitory injunction against the defendants.

3. In the written statement, the defendants contended that the plaint schedule property is not an identifiable one. According to them, the plaintiff has no manner of right or possession over the plaint schedule property. Ext. A1 and the prior documents of 1950 and 1966 were sham and never acted upon. They were created at the instance of ‘Mannanthara Hydrose’ with some oblique motive. ‘Pareekutty’ had never transferred the property in favour of ‘Subramonia Pillai’ under 1966 document and ‘Subramonia Pillai’ never held the property. But, they admitted that from 1121 onwards, 3 acre 17 cents was held by Pareekutty under Usufructuary Mortgage and the plaint schedule property forms a part of 3 acre and 17 cents. In short, the defendants contended that they have purchased jenmam right of the plaint schedule property, by virtue of Exts. A8 and A9 and thereafter, they have been in possession and enjoyment of the plaint schedule property.

4. On the aforesaid rival pleadings, both parties adduced evidence consists of the oral testimonies of PW 1 to 6, DW1 and 2, CW1 and Exts. A1 to A13, B1 to B16. After considering the evidence, on record, the trial court decreed the suit on a finding that the plaintiff was in possession and enjoyment of the property on the date of suit. But, in A.S No. 60 of 1999 filed by the defendants, the lower appellate court reversed the said findings and dismissed the suit. Thus, the legality and correctness of the divergent findings, whereby the trial court decreed the Suit and the lower appellate court allowed the Appeal have come up for the consideration of this Court, on the basis of questions of law shown in the Memorandum of Appeal.

5. Heard the learned counsel for the appellant and the learned counsel for the respondents.

6. In view of the submissions made at the Bar, the question to be considered is, whether the lower appellate court is justified in discarding Ext. A1 Usufructuary Mortgage Deed, in view of Exts. A8 and A9 jenmam assignment deeds to arrive at a finding that the plaintiff has not been in possession and enjoyment of the plaint schedule property on the date of Suit.

7. Going by the judgment passed by the trial court, it could be seen that the trial court relied on Ext. A1 Usufructuary Mortgage Assignment Deed and Ext. A2 Encumbrance Certificate and the oral evidence of P.Ws 1 to 4 and Ext. C1 Commission Report to arrive at a finding that the plaintiff was in possession of the plaint schedule property on the date of suit; whereas in the judgment passed by the lower appellate court, that court accepted the contention raised by the defendants that Ext. A1 and its prior documents of 1950 and 1966 are sham documents and never acted upon. More over, the lower appellate court relied on Exts. A8 and A9 to arrive at a finding that it is more probable that the defendants are in possession of the plaint schedule property.

8. It stands undisputed that originally the plaint schedule property was in possession of Pareekutty on the strength of Usufructuary Mortgage Assignment Deed No. 1715 of 1121 and he was in possession and enjoyment of the said property and the plaint schedule property was being cultivated by him. According to the plaintiff, while so, in the year 1956, Pareekutty assigned the mortgage right in favour of Subramonia Pillai and he, in turn, assigned the same in favour of the plaintiff in the year 1966. The mortgage was never redeemed and the property has been in joint possession of Pareekutty and the plaintiff, who was residing along with Pareekutty as his wife. The genuineness of Ext. A1 Deed is supported by Ext. A2 Encumbrance Certificate, which shows that the plaint schedule property was assigned to the plaintiff by Subramonia Pillai by virtue of Ext. A1 in the year 1966. Further, the claim of the plaintiff that she was in possession and enjoyment of the property after the death of Pareekutty is fortified by Ext. A12.

9. It is true that the defendants have contended that Ext. A2 and its prior documents of 1956 and 1966 were sham documents. But, absolutely, no evidence had been adduced to substantiate the aforesaid contention. So also, they contended that it was fraudulently created at the instance of Hydrose. But, in the plaint, the allegation of fraud lacks necessary pleadings as contemplated under Order VI Rule 4 of the C.P.C In short, as regards the contention that Ext. A1 and its prior deeds were fraudulently created sham documents, there is no evidence other than the oral assertion of D.W.1 while he was in the witness box.

10. But, the lower appellate court discarded the legal presumption under Ext. A1 on the basis of an interpretation drawn from Exts. A8 & A9 documents. It is true that in Exts. A8 & A9 , it is stated that the plaint schedule property was in the possession of Pareekutty. Ext. A8 is the assignment deed executed by Lakshmi Pillai in favour of the 1st defendant on 19.9.1966 wherein it is observed that 30 cents of land covered by that document was part and parcel of the property of Pareekutty as per mortgage deed of 1715 of 1121. Similarly, Ext. A9 is another document whereby the son of Lakshmi Pillai assigned another property in favour of D.W.2 in the year 1972. In this document also the possession by Pareekutty is recited. From the aforesaid recitals regarding the possession of the property by Pareekutty the lower appellate court has drawn an inference that there was no necessity for such observation in Exts. A8 and A9, if the plaint schedule property was in possession and enjoyment of the plaintiff under Ext. A1.

11. It is pertinent to note that it is not disputed that the plaintiff was residing along with Pareekutty as his wife till his death. Exts. A8 and A9 are executed by jenmies, who have executed mortgage deed of 1121 in the name of Pareekutty only. Therefore, it is more probable that they were not aware of the subsequent transaction made by Pareekutty in favour of Subramoniam Pillai and further transfer made by Subramoniam Pillai in favour of the plaintiff. Admittedly, the executants of exts.A8 and A9 are not parties in Ext. A1 or its prior deed. So, the recitals in Ext. A8 or Ext. A9 cannot be taken as a basis to determine actual possession of the plaint schedule property on the date of suit. The said inference is a mere surmise only, without any basis. In the above analysis, this Court is of the view that the inference drawn by the lower appellate court from Exts. A8 and A9, as regards possession, against the plaintiff is far fetched and stretched and such an inference is not sufficient to dispel the legal presumptions in favour of the plaintiff under Exts. A1 and A2.

12. Being a simple suit for injunction, the cardinal question is, who was in possession and enjoyment of the property on the date of filing of the suit. As rightly observed by the trial court, the defendants made an attempt to make a jugglery with the aid of a catena of registered documents; but, they have failed to disprove the exclusive possession of the plaintiff under Ext. A1.

13. Going by the judgment passed by the trial court, it could be seen that the trial court has meticulously evaluated the oral evidence of P.Ws 1 to 6. I do not find any reason to disbelieve the appreciation of oral evidence by the trial Judge, who had opportunity to witness the demeanour of the witness while in the witness box. More clearly, the trial court has appreciated the oral evidence in its correct perspective and arrived at a finding that the plaintiff has been in possession and enjoyment of the property on the date of suit. Thus, the possession of the plaintiff has been proved by Exts. A1 to A3 and the oral testimony of P.Ws 1 to 5. The lower appellate court is not justified in discarding Exts. A1 and A2, in view of a recital in Exts. A8 and A9.

14. In the above analysis, the judgment passed by the lower appellate court, whereby the findings of the trial court stood reversed, is set aside and the judgment and the decree of the trial court will stand restored to file and the Original Suit will stand decreed.

15. This Second Appeal will stand allowed. All pending Interlocutory Applications will stand closed.

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What is Janmam land? 

Updated - June 11, 2015 05:34 am IST

Janmam means a form of hereditary proprietary right previously prevalent in the State of Kerala. Janmam lands were originally held by a few zamindari families.

These zamindars, members of a princely family, were called ‘janmies’ in Malayalam and their lands, Janmam Estate. These zamindari families were also collectively called the Nilambur Kovilagam. 

The Nilambur Kovilagam owned 80,088 acres of land in the Gudalur taluk. The janmies were mostly absentee landlords. The lands were mostly possessed and cultivated by the lessees and encroachers under the Malabar Tenancy Act. 

From the time the Gudalur Janmam Estates Abolition Act was enacted in 1969, it has been challenged by those affected in different courts. The Act was challenged both by small encroachers as well as big plantation lessees.

In 1974, the Government of India by its 34th constitutional Amendment included the Gudalur Janmam Estates Abolition Act in the 9th Schedule of the Constitution. The Government of Tamil Nadu notified the Act on the 27th November, 1974. 

Published - June 11, 2015 12:00 am IST

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