ZAMORIN RAJA AVERGAL OF CALICUT BY J A THORNE ESQUIRE, I C S COLLECTOR OF ZAMORIN S ESTATE Vs. UNIKAT KARNAVAN SAMU NAIR

JUDGEMENT

(1.) We are now in possession of the findings of the Subordinate Judge on the two issues referred to him: and in the light of the recorded evidence, the Subordinate Judge s discussion of the same, and the arguments addressed to us both at this, and the previous hearing I have little difficulty in arriving at the conclusion that the plaintiff appellant has failed to establish his right to resume the grants on alienation by the grantees.

(2.) The Subordinate Judge s finding is so cautiously worded as to be not altogether easy of interpretation. It runs thus: " My answer to the 1st issue is that with regard to Karamkari and Adimayavana tenures there was a custom of inalienability (involving forfeiture on alienation) up to 1896 and that since then there have been inroads into the custom so as to shake its continuity and uniformity and that the process is going on. On the 2nd issue my finding is, in the affirmative as regards O.S. Nos. 353, 370 and 472 of 1914 and in the negative as regards O.S. No. 371 of 1914."

(3.) Each party claims that the finding on the first issue is in effect a decision in its favour but as it is on a question of mixed fact and law, and therefore not entirely binding on us it is unnecessary to devote time to its interpretation--more particularly as I entirely agree in the Subordinate Judge s appreciation of the actual evidence adduced and his conclusion as to the facts established. For the last 20 years or so, for which period alone evidence is available the balance is entirely against the plaintiff s contention. Out of the very large number of assignments by sale and mortgage by the grantees which are in evidence (vide para. 41 of the Subordinate Judge s finding) no instance is shown of resumption on alienation in case of the tenures with which we are concerned (Adimayavana and Karamkari) while on the other, hand there are many in which the alienations have been acknowledged by the Jenmi, and the tenure renewed in favour of the alienee. Exhibits 89 and 100 and Exhibits 38, 38-a and 38-E are particularly striking instances of this. The Learned Counsel for appellants invited our attention to Exhibit 93 as indicating a consciousness on the part of the grantee, that he could make no valid alienation without the grantor--jenmi s consent. But in my opinion nothing of the kind appears from a perusal of the document. The document purports to absolutely assign all the grantee s interest in the property and adds that the grantee has no objection to the assignee enjoying them on the original tenure and to his obtaining a direct demise from the jenmi on production before him of the assignment deed. The latter clause is clearly intended to facilitate the assignee s obtaining an independent title deed from the jenmi--an object naturally desired by the assignee in order to place his rights beyond the possibility of question. But I see nothing in the document to suggest that this was other than a formality which would be granted without demur on production of the transfer deed and it is one which, as shown by the Subordinate Judge, was frequently dispensed with.