PUTHUR TARWAD KARNAVAN AND MANAGER KUNHAN ALIAS THASSAN MENON Vs. MUTHIYALLUR KUMARAN RARICHAN ALIAS RAMAN ALIAS MUTHIYALAT MOOPIL NAIR

JUDGEMENT

(1.) The defendants are the appellants. The suit was brought for redemption of a kanom mortgage of 3rd March 1896. The defence was that the transaction which is allowed to his kanom mortgage by the plaintiff is an irredeemable anubha am tenure affecting the lands. The plaintiffs contention was that the Anubhavam (perpetual enjoyment right) created (or rather renewed) under the document. was only a rent charge of 125 Paras of paddy on the lands as remuneration for future services and that as the defendants neglected to perform the said services to the first plaintiff (the mortgagor and the grantor of the anubhavam right) during three years before suit, the defendants had forfeited the right even to the rent charge.

(2.) The District Munsif held (a) that the anubhavam right under the document Exhibit A of 1896 gave only a rent charge and did not affect the redeemability of the lands, and, (b) that it not being shown that the defendants have been called upon by the 1st plaintiff to perform any work obligatory under the service tenure of the defendants or that the defendants refused to perform any such work when so called upon, the defendants have not lost their right to the rent charge. He, therefore, decreed that on payment of the kanom amount and the value of the improvements the plaintiffs shall be entitled to get back the possession of the mortgaged lands subject to the following declaration in favour of the defendants, viz., that the 1st defendant as karnavan of the defendants tarwad had an annual rent charge on the plaint property fur the 125 Paras of paddy due to his tarwad. The plaintiffs in their plaint (the 2nd plaintiff being the melcharthdar) claimed to set off against the know and value of improvements Rs. 200 as michavaram for the three years before suit, on the contention that the 375 Paras of paddy (at 125 Paras a year) which the defendants were entitled to appropriate as remuneration for their services in respect of their anubhavam tenure could not be claimed by them. The District Munsif disallowed the plaintiffs above contention. On appeal, the learned District Judge agreed with the learned District Munsif that the anubhavam tenure gave only a rent charge on the lands and not the right to perpetual possession of the lands themselves in the defendants favour, fie, however, held that the defendants had "a duty to perform" the services stipulated in Exhibit A and that it was "admitted that they had not been performing those services for the last 24 years."

(3.) He hence directed the plaintiffs to pay for redemption a smaller sure than was retentioned in the District Munsif?s decree, the difference being the value of the 375 Paras of paddy which the defendants were entitled to appropriate as remuneration if they had performed the services during those 3 years.