BANATHOOR KRISHNAN NAMBUDRIPAD Vs. KUNKAN NAIR

JUDGEMENT

(1.) Plaintiff is the appellant. The suit was for possession of property held by the 1 defendant on -what is called karam kozhu tenure. It is conceded that karam kozhuis the same as karamkari. The cause of action alleged is forfeiture consequent upon an alienation made by the 1 defendant in favour of the 2nd defendant, the alienation being an otti mortgage. The lower Court held that the alienation would not create a forfeiture in case of land held on karamkari tenure. It also held that if there was forfeiture, the appellant has waived that forfeiture by the receipt of rent. It was also of opinion that alienation by way of an otti does not amount to an out-and-out alienation and cannot create forfeiture. All these three points have been touched upon in argument by the learned Vakil for the appellant. It has been held in Zamorin Raja Avergal of Calicut V/s. Unikat Karnavan Samu Nair A.I.R. 1922 Mad. 290, and Ayyakutti V/s. Krishna Patter A.I.R. 1922 Mad. 274, that the land held on a tenure like the present one is not liable to forfeiture by alienation. Mr. Ramakrishna Iyer argues that there is a difference between karamkari tenure in North and South Malabar; but the decision in Achutha Menon V/s. Sankaran Nair (1911) 36 Mad. 380 treats both alike as regards alienation creating forfeiture and this decision has been overruled by the subsequent decisions. Following these later decisions, I hold that there has been no forfeiture in this case.

(2.) As regards the question of waiver, the learned Judge of the Court below considered the evidence and came to the conclusion that the plaintiff collected the rent after he became aware of the fact that a forfeiture had been incurred. I accept this conclusion as a finding of fact based upon the evidence in the case and on that ground, I hold that if there has been forfeiture, that forfeiture has been waived by the plaintiff, by the receipt of rent. Looking at that principle of forfeiture in cases of alienation connected with tenures of this kind, I would say that it is only an out-and-out alienation that would create forfeiture. It is possible for the 1 defendant by resuming the otti on which he has created in favour of the 2nd defendant to get possession of the land for his own family and if so I do not think that there can be any forfeiture but it is not necessary to decide this point.

(3.) Under these circumstances, I dismiss the second appeal with costs.