MARATH VEETIL KALLIANI AMMA Vs. COCHIN SIRCAR

JUDGEMENT

(1.) The question at issue in this appeal is whether the demise evidenced by Ex. VII creates a perpetual or irredeemable tenure of the land. Both the lower Courts have found that it does not do so, but it is contended that although the lower appellate Court has applied the principles laid down in decisions of this Court, it has failed to have regard to any other circumstances in the case. The relevant portion of the document is as follows: The pattam being one hundred and twenty paras of paddy, out of the pattam of 120 paras of paddy, deducting 60 paras allotted for your anubhavam, and deducting 30 paras for assessment out of the remaining 60 paras, the balance payable yearly is 30 paras of paddy

(2.) The document is not described as an anubhavam deed, nor is there any mention of anubhavam tenure. In construing these documents the law has been laid down in Vythilingam Pillai V/s. Kuthiravattah Nair (1906) 29 Mad. 501, as follows: The point to be borne in mind with regard to Anubhavam is that it may be used with reference to tenure of land, and it will then prima facie import an irredeemable tenure, or it may be used with reference to a specific money or grain rent charged on the land, and in that case it will not imply any tenure in favour of the grantee

(3.) That case has been followed in Mana Vikrama V/s. Karnavan Gopalan Nair (1907) 30 Mad. 203, and Puthur Tarwad Karnavan V/s. Muthiyallur Kumaran Rarichan (1918) 43 I.C. 379, In this last case, it was held that where the remuneration mentioned in the deed is a definite quantity of grain out of the produce of the lands, a strong presumption arises that only a rent charge was granted. In this case therefore, where the anubhavam is recited as relating solely to the amount of 60 paras of the produce there is a strong presumption that only 60 paras is of the permanent nature. It is suggested that the last recital in the document " you should pay also one fanam per year as adimakazhicha" shows that it is permanent tenure of land. The rent fixed for the land is 30 paras of paddy and this one fanam per year as adimakazhicha must be something else, and I think that it could only refer to the nominal payment fixed in respect of the anubhavam of 60 paras, otherwise, there would really be no meaning in this last clause. The final question that remains is, whether this very strong presumption has been rebutted by the appellant. It is contended that the subsequent conduct of the parties forms very strong evidence as to the meaning of the document. I am unable to go so far as this. Although the circumstances attending the execution of a document may be looked at to construe the contents of the document in order to ascertain the intention of the parties, at the time, subsequent assertions by one of the parties with reference to that document cannot affect its meaning. Had there been agreement between the parties during a long series of acts which could only be explained by regarding the document as an irredeemable tenure, there might be some force in the contention, but here it appears that the landlord always maintained that the lease was to be renewed. The fact that the tenants set up a permanent right cannot affect the meaning of the document. I may add that the Subordinate Judge has dealt with this evidence and it is a question of fact whether such evidence is sufficient to rebut the original prersumption, and therefore, the finding should not be interfered with unnecessarily in Second Appeal. The lower appellate Court has adopted the right principles of law in construing the document, and I think its decision is correct.