MULLASERI ACHUTHA MENON Vs. VCSANKARAN NAIR

JUDGEMENT

(1.) THE plaintiff is Melcharth holder from the jenmi of certain land in the possession of the fourth defendant who purchased the rights of one Krishna Sastri. THE land was demised to Krishna Sastri the father of defendants Nos. I to 3, under Exhibit VII, in 1893, by a Stanom holder a predecessor in title of the fifth defendant, on " karamkuri" tenure. THE document provides the land should be held by the demisee and his anandravans "so long as they exist without selling or mortgaging duly paying the rent fixed and also paying the renewal fee at times of renewal and receiving that from the Stani." Before the time of renewal arrived, however, the land was demised on melcharth to the plaintiff. THE original demisee s heirs (defendants Nos. 1 to 3) in the meanwhile had alienated the holding to the fourth defendant. THE principal question we have to decide is whether the right given to the demisee under Exhibit VII was terminated by the alienation. THE Subordinate Judge has held on the authority of Parameshri v. Vittappa Shanbaga (1902) I.L.R. 26 M. 157 and Netrapal Singh v. Kalyan Das (1906) I.L.R. 28 A. 400 that the alienation did not put an end to the holding. Those decisions have really no bearing on the present case. THEy held, on the construction of the documents in question therein, that the clause forbidding alienation without a provision for re-entry in case of alienation did not give the landlord a right to eject. THE question we have to decide is whether non-transferability is one of the incidents to Karamkuri tenure. If it is, the absence of an express provision for re-entry in case of alienation would be immaterial. Perpetual occupancy right without right of alienation is well known in this country. Our attention has not been drawn to any case in which the question of a karamkuri holder s right to transfer has been decided. THE learned vakil for the appellant relies on the opinion of the Sadar Court in its proceedings of the 5th August 1856, THE proceedings have always been treated as authoritative and may be relied on in the absence of any precedents. THE observations made regarding karamkuri are as follows: "In this case the land is made over for premanent cultivation by the tenant in return for services rendered. Where the proprietary title is vested in a pagoda, the grant will be made for future services. In some cases land is mortgaged on this tenure, the kanom mortgagee paying the surplus rent produce to the landlord, after deducting the interest of the money he has advanced. THE tenant has in North Malabar only a life-interest in the property which at his death reverts to the landlord. In the south, the land is enjoyed by the tenant and his descendant, until there is a failure of heirs, when it reverts to the proprietors. Except where the land is granted for special services, an annual rent is payable under this tenure. THE tenant s right is confined to that of cultivating, but it is permanent and he cannot be ousted for arrears of rent, which must be recovered by action, unless there be a specific clause in the deed declaring the lease cancelled, it the rent be allowed to fall into arrears"--MOORK S Malabar Law and Custom, p. 308.

(2.) IT will be observed that a karamkuri holder in North Malabar has no heritable right at all, and with respect to South Malabar the right of reversion in the landlord prima facie supports the appellant s contention that the tenure is inalienable. Moreover the tenant s right is stated to be confined to that of cultivation though it is permanent. The word karamkuri or karimakuri itself means only permanent right of cultivation. The language of the instrument shows that the cultivator has no right of alienation. We must, therefore, hold that the alienation put an end to the right created by Exhibit VII. The plaintiff is therefore entitled to a decree for possession. Payment of rent by the fourth defendant to the fifth defendant is not valid as against the plaintiff. He is therefore entitled to a decree for rent also. The decree of the lower appellate court is reversed and that of the District Munsiff restored with costs payable by the fourth defendant both here and in the lower appellate court.