MANNADIAR Vs. RAMA IYER

JUDGEMENT

(1.) THESE second appeals raise only one common ques­tionand that relates to the effect of a peruartham transaction.The appellant,the successor -in -interest of the person who created the peruartham,claimed before the lower courts,when the lands covered by the transaction were acquired by the State,that he should be given a share in the compensation money.This claim was rejected by the lower courts on the ground that the peruartham document,Ex.B -1,did not retain any right in the jenmi so as to give him a share in the money.The only question is whether that decision is right.

(2.) PERUARTHAM or perum artham is said to be akin to otti.Sundara Aiyar in his Malabar and Aliyasanthana Law says at page 303 in paragraph 189 that peruartham approximates closely to otti.The learned author refers to the decision of the Madras High Court in P. Shekari Varma Valia Rajah v. Mangalam Amugar I.L.R.1 Mad.57, where Their Lordships have held that the money demandable at the time of recovery of possession is not the money advanced at the time of the creation of the demise,but the market value of the property at the time of exercising the power of redemption.In paragraph 193 Sundara Aiyar again says that peruartham involves a gross breach of the doctrine of clog on the equity of redemption.Herbert Wigram in his Malabar Law and Custom at page 300 defines peruartham as a kind of conditional sale in which the transferor reserves the right of repurchase and if he exercises that right,he must pay the full market value at the time of re -purchase.In Logan 's Malabar Manual 'perum artham 'or alukiya attipper is said to be a deed under which the jenmi has received the full value of the property mortgaged and is not entitled to any,the smallest share,of the pattern or even the smallest token of acknowledgment of proprietorship,but he with­holds the ceremony of giving water that he may retain the empty title of jenmi.It is also said to be a mortgage under which,when the mortgagor redeems,the mortgagee is entitled to be paid the market value of the property at the time of redemption,not the amount for which the land was mortgaged.The Manual says further that the peculiarity of this transaction is that the sum advanced,which is always the full marketable value of the land for the time being,is not mentioned in the documentand the landlord,in redeeming his property,does not repay the amount originally advanced,but the actual value of it in the market at the time of redemption.Lewis Moore also defines peruartham in his Malabar Law and Custom at page 421 in the same words as Wigram has done.

(3.) WHAT emerges from these is that the amount advanced at the time of the creation of the peruartham is the market value of the propertythat the jenmi has a right to recover possessionand that when he exercises that right,he has to pay the then market value of the property.By the customary law of Malabar peruartham was treated as akin to mortgage or otti.If the ingredients abovementioned are scrutinised,what appears is that it is,as Wigram and Moore point out,nothing but a sale of the property with a right to re -purchase.It follows that until the said right is exercised,the jenmi does not have any right in the property on which he can base his claim for a portion of the compensation money.His claim that he is the jenmi is nothing but an empty shell.