PANDARATHILE ALIAS VAKKAYIL RARU NAIR Vs. NADUVILE MADATHIL VISHNU BHARATHIGAL ALIAS PAKARAVUR SWAMIAR

JUDGEMENT

(1.) The main question in the case is whether the plaintiff is entitled to redeem under the terms of Exhibit I and its counter-part Exhibit A. Exhibit I was executed in discharge of an Anubhava kanom held by a third party subsequently assigned to the defendants. Having regard to the terms of Exhibit I we do not think that the old anubhavam right is kept alive. Nor are we satisfied that the documents referred to create a perpetual kanom like the documents relied on in Kottal Uppi V/s. Edavalath Thathan Nambudri 6 M.H.C.R. 258 and Second Appeals Nos. 561 of 1890 and 1641 of 1898. Whether such perpetual kanoms are invalid so far as regards the clause against redemption on the ground that it creates a clog upon the equity of redemption or are entirely valid as a species of mortgage in accordance with the usage in Malabar or as anomalous mortgages, [See N.V. Silapani V/s. V.M. Ashtamurti Nambudri 3 M. 382], under the Transfer of Property Act to be enforced in accordance with Section 98 of the Act, it is unnecessary to enquire. For, in this case we are of opinion. that Exhibit I creates a mere right to require a renewal and states the consequences of such a renewal to be that the lands will not be resumed and until such renewal is granted the defendants cannot resist the claim to redeem. See Gopanlun Nair V/s. Kunhan Menon 30 M. 300 : 2 M.L.T. 161 : 17 M.L.J. 189. The phrase "irredeemable kanom" in Exhibit A is a compendious expression which carries the matter no further. If the decision in Neela Kandhan V/s. Anantha Krishna Ayyar 30 M. 61 : 16 M.L.J. 462 : 1 M.L.T. 426 applied, the appellants would not be in a better position. It is unnecessary to express any opinion as regards that case to which one of us was a party. The contention of the appellants, therefore, fails. But before disposing of the second appeal we must ask the Subordinate Judge to return a finding on the evidence on record on the 9 issue which has not been disposed., of by him. The finding should be submitted in one month, and seven days will be allowed for filing objections.

(2.) In compliance with the above judgment the Subordinate Judge of South Malabar at Palghat submitted the following. FINDING 1. I am called upon to submit a finding on the 9 Issue. That issue is as follows: Have any improvements been effected on the plaint property ? If so, what is their value ? 2. The original suit was decided by me as District Munsif. I recorded, however, no finding then on the above issue. Under such circumstances, I do not think that there is any objection to my submitting a finding on the above issue as the Judge in appeal. Further, there is very little to be done in connection with this issue. I am asked to submit a finding on the evidence on record. The evidence on record is the Commissioner's account. The Commissioner has fixed the value of the Kuikur improvements at Rs. 57-14-9 and the plaintiff does not deny that the defendants Nos. 1 and 8 are entitled to the same. The above sum of Rs. 57-14-9 and the kanom have, however, to be set off against the plaintiff's claims for past and future rent and costs. The defendants Nos. 1 and 3 claim compensation for reclamation too. That claim, as the Commissioner's remarks show, is disputed by the plaintiff and there is no evidence on the record to establish it. The 1 and 3 defendants Vakil has asked me to represent that his clients should be allowed opportunity to prove their claim in respect of reclamation which, if true, will give them according to the Commissioner's account, Rs. 81-4-1, I cannot recollect if I excluded the 1st and 3 defendants evidence on this point. The probability is otherwise. It is seldom that I exclude evidence on any issue at all. The 3 defendant was examined as the defendants witness at the original hearing. He said nothing about the alleged reclamation. My finding based on the evidence on record on the issue referred to me is, that the defendants Nos. 1 and 3 have Kuikur improvements on the properties sued for and that the value of those improvements is Rs. 57-14 9.

(3.) This second appeal coming on for final hearing after the return of the above finding the Court delivered the following