MOIDU HAJI Vs. KUNHI MOIDU

JUDGEMENT

(1.) WE think that the construction placed upon Exhibit C by the learned District Judge cannot be supported.

(2.) NO doubt the parties hoped and it is even not improbable that they may have expected, that the kanom right mortgaged by defendants 6 to 9 to defendants 1 to 3 would not be redeemed during the ten years for which the mortgage was to run; but there was certainly no express covenant for quiet enjoyment for that term nor do we think that such a covenant ought to be inferred. The dates of the kanoms which were mortgaged were stated in the document, and the parties must have known, as every one in Malabar does know, that a kanom is liable to be redeemed after 12 years, and that therefore in this case the kanom over items 3, 4 and 5 was liable to be redeemed at any time. The defendants 1 to 3, we think, took the mortgage knowing of the existence of this risk, though they may have hoped that the kanom would not be redeemed. We find that it was in fact redeemed within two years, of the mortgage, and defendants 1 to 3 then behaved exactly as they would have behaved it they had expected the redemption, They did nothing at all. They did not sue for their mortgage money, as they might have done when their security was diminished; they made no remonstrance with their mortgagors , they made no claim to be reimbursed for the unexpected loss of profits, and gave no notice that they would take accounts of the loss when the mortgage was paid off. They, in fact, did nothing whatever for 18 years until this suit was brought. We do not think that they would have acted in this way if they had thought that under Exhibit C they were entitled to hold all the land for the full term of ten years, We think that they took the mortgage knowing that part of the land was liable to be redeemed and that they can therefore make no claim for loss of profits because part of it was redeemed. We must, therefore, set aside the decree of the lower appellate Court and restore that of the Subordinate Judge with costs in this and in the lower appellate Court. The time for redemption is extended to this day four months.