Vasudevan Nambudripad vs M. Kannan Nayar and Others

Srinivasa Ayyangar, J.

After considering the case carefully and the arguments advanced to us, I have come to the conclusion that the appeal should be allowed. The

plaintiff is the appellant in this second appeal. His suit was for redemption of the suit land on the footing of an ordinary kanom. The defence that

was put up was that the defendants had a right of permanent occupancy in res-peet of the lands on the grounds that they had what is known in the

Customary Law of Malabar as adimayavana avakasam. In the Court of first instance the District Munsif dismissed the plaintiff''s action. On appeal

by the plaintiff the Subordinate Judge also dismissed hie appeal.

The principle really to start from in all these cases, as very justly contended for by the learned Vakil for the respondents, is undoubtedly that each

case has to be decided on the terms of the document in it, and that very little help tkere is generally to be obtained by comparing the document

under reference with the documents in other cases. The other principle, also undisputed, is that all the terms of the document should be considered

before a conclusion is arrived at. The learned District Munsii came to the conclusion that the defendants have the adimayavana right because about

the commencement of the document the lands are referred to as lands over which, or in respect of which the defendants have the adimayavana

right. Undoubtedly, whatever the extent of the adimayavana right may be, there can be no question whatever that the use of that expression

indicates some kind of permanency. The cases decided in this Court have recognised two kinds of adimayavana right, the right in respect of the

entire land itself subject of course to payment of certain rents to the jenmi, and also an adimayavana right limited in extent and confined to a certain

rent charge. But both kinds of right have been recognised to be perpetual and permanent. The only question, therefore, that arises in this case is

whether, having regard to all the terms of the document before us, we have to accede to the contention of the learned Vakil for the respondents

and hold, as both the lower Courts have done, that the adimayavana right claimed by the defendants relates to the entire land or is confined, as

contended for by the learned Counsel for the appellants, only to the rent charge of 40 paras of paddy.

To begin with, there is in the document a reference to its being a renewal of a previous kanom. No doubt the mere use of the word ""kanom"" in

such circumstances cannot be regarded as conclusive, but undoubtedly it is one of the circumstances to be taken into consideration in coming to a

conclusion which contention is to be upheld. There is further in the document a specification of the exact amount of the kanom. We asked the

learned Vakil for the respondents to explain why or how it was necessary to specify the exact amount of the kanom if according to the contention

oof the respondents, kanom or no kanom, the defendants were entitled to paramount occupancy rights in respect of the land. If we should accept

the contention of the learned Vakil for the respondents, it comes to this, that the parties were at pains to insert in this document various particulars

and matters which have no practical value pr bearing whatsoever. On the other hand, if the contention of the appellant should be upheld, the

specification of the amount of the kanom would be not only useful but necessary because it is on the payment of that amount that the plaintiff would

be entitled to redeem, The learned Vakil for the respondents was not able to afford us any explanation whatever regarding the reason for which the

parties deemed it necessary to insert the particular amount of the kanom in the document. No doubt the lands referred to in the document are

described as lands in which the defendants have an adimayavana right. If such a description of the lands was inconsistent altogether with the

adimayavana right claimed by the defendants, being less than a complete right in respect of the entire land, then, of course, there would be

considerable force in the contention on behalf of the respondents. But it is impossible to accede to that view. A description of a particular land as

land in respect of which a party has an adimayavana right is quite consistent with such adimayavana right being either extensive or limited. The

document proceeds to fix the value of the adimayavana right of the defendants. For what purpose that was thought necessary to be done we are

unable to understand unless it be that the right of the defendants was limited to it. We have already referred to this Court having recognised such

limited adimayavana rights in respect of land. If so, this definition and limitation of the adimayavana right referred to in the document could only be

regarded as defining the entire right possessed by the defendants in respect of the land. Great stress was sought to be laid by the learned Vakil for

the respondents on the distinction between the right in respect of the lands itself and auch a right in respect only of the rent charge. Though, having

regard to the language employed in some of the cases cited during the discussion of the case, such a contention was open to the learned Vakil for

the re-spondents it seems that such a consideration becomes practically useles when the nature and extent of the right comes to be exactly defined

and determined by the document itself. No doubt in cases where it is not bo defined or determined the reference to the right must be regarded as

extensive and comprising the entire land. Both the lower Courts have felt themselves bound to give effect to this reference at the beginning of the

document to the right in respect of the land itself, and, ignoring the rest of the document, the lower Courts have held for the defendants and found

that they have an occupancy right in respect of the entire land and that, therefore, the plaintiff has no right to redeem. They have relied upon two

cases of this Court for the purpose of supporting the conclusion arrived at by them. The first case referred to is Krishna Iyer v. Muringa Malayil

Kunnath Gopalan Nair 32 Ind. Cas. 982. It must fall to be observed to begin with that the learned Judges in that case ultimately based their

decision only on a consideration of the particular document before them. This is what they have stated: ""In this case it is true that the amount

reserved is also described as anubhavam, but we are nonetheless bound to give effect 4o the grant of the lands as anubhavam and must hold the

tenure to be perpetual."" For some reasons the learned Judges seem to have taken the view that the document constituted a real grant of the land

and as a matter of construction they came to the conclusion in spite of the contradiction between the various parts of the document that the

anubhavam right related to the entire land. Adopting the same process in this case it seems to me that there can be very little doubt having regard to

all the terms of the document that the adimayavana right referred to in the document relates only to the 40 paras of paddy. Again in the same case

the previous decision of this Court in Vythilingam Pillai v. Kuthira Vattah Nair (2) was sought to be distinguished on the express ground that that

case turned on the construction of a kanom in which the word ""anubhavam"" was used in connection with the amount reserved for the ''kanom''

demisee. In fact I must observe that this case is uncommonly like the latter case in Vythilingam Pillai v. Kuthira Vattah 39 M. 501: 16 M.L.J.358;1

M.L.T. 200. The other case referred to and relied upon on behalf of the respondents is the case of Chiralayath Ayinkootib Moopil Kunhan Raja v.

Thozhukat Utaya Sekhari Nambiar (3), The facts of the case are not set out ia the very scrappy report and the judgment itself is very short. But

there again it is perfectly clear that the learned Judges proceeded only on the basis of the construction of the document before them. They say that

prima facie, therefore, the land is granted in anubhavam."" It also appears from the judgment in that case that the document itself was stated to be a

renewed anubhavam grant. No doubt there is the observation by the learned Judges in that case that ""the fact that there was kanom advanced does

not make it anytheless an aniibhavam"". But as already observed these cases really proceed on the construction of the particular terms of the

document before the Court. There is also one other clause in the document Ex. I to which reference should be made. ""And further for the arrears

of michavaram the kanom shall be liable."" This clause which appears in the document granted by the plaintiff to the defendants themselves,

constitutes the michavaram payable by the defendants a charge on the kanom. Such a charge cannot possibly be understood or explained if

actually the so called kanom is something altogether unsubstantial and has no existence whatever. On the other hand, according to the contention of

the plaintiff-appellant it would have considerable significance because in that case any arrears payable by the defendants would be liable to be at

aDy rate deducted from the amount of the kanom payable by the plaintiff before redemption. It is also no doubt conceivable that such a charge

may fall to abe enforced in other ways also. On the whole it seems to me that on a proper construction of the two documents Exs. A and I in this

case the construction contended for on behalf of the plaintiff-appellant should be upheld and that the lower Courts were wrong in relying

exclusively on one portion of the document about the beginning and excluding from consideration the rest of the document. If in law it has been

recognised and it is conceded that an adimayavana right may either be extensive or limited, and we find in this document that it is expressly limited

to 49 paras, then it seems difficult to accent the contention that in spite of such limitation the defendants should be recognised as possessing the

extensive right. The nther warts of the document are altogether inconsistent with such a contention. The judgment and decree of both the lower

Courts were, therefore, wrong and the dismissal of the suit of the plaintiff should be set aside.

As the lower Appellate Court has disponed of the case and dismissed the appeal and the plaintiff''s suit, merely on the Construction above referred

to, the deeree of the lower Appellate Court will be set aside and the case remanded for disposal on the other issues and for a decree for

redemption being passed in favour of the plaintiff after ascertaining the amount having resrard to the contentions of the parties. The respondents will

pay the appellant the costs of this appeal throughout. It is conceded by Mr. Menon the learned Counsel for the appellant, who has argued the case

very frankly referring also to all the decisions against him, that in any case the defendants would be entitled to the rent charge of 40 paras with

regard to which he admits, at any rate before us the right of the defendants to the adimayavana right to that extent. It is subject to this right that the

redemption decree will be made.

Reilly, J.

It is not disputed that adimayavana avakasam may be of two kinds, either a permanent irredeemable tenure or nothing more than a permanent rent

charge. In this case we have to decide which kind of adimayavana avakasam was created or recognised by Ex. I. The defendants have relied

before us, as did the Subordinate Judge and the learned District Munsif, mainly on certain words in Ex. I to the effect that the janmam right in the

lands concerned ia with the plaintiff''s illam and that in those lands the defendants have adimayavana avakasam.. I agree with my learned brother

that those words are consistent with the defendants having either of the two kinds of adimayavana avakasam. But it must be noticed that there are

several features of Ex. I which are strongly in the plaintiff''s favour. Firstly, the document sets onttobea renewal of a kanom with a specified kanom

amount; secondly, it is a renewal in which the michavaram is considerably increased; thirdly, the adimayavana avaksam ia speeified and limited to

4o paras of paddy a year. Decisions nave been quoted before us to the effect that none of those three characteristics by itself would be sufficient to

show that the avakasam is no more than a permanent rent charge; but taken together, thev are strongly in favour of the plaintiff, and, speaking for

myself. I may say that I find it very difficult to reconcile the idea of a kanom with a permanent irredeemable tenure. And there is something more

than that in the case. At the end of Ex. I it is stated that for the arrears of michavaram, if any, the kanom shall be liable. Now, whether that means

that arrears of michavaram are to be set off against the amount of the kanom or that the kanom right may be brought to sale to recover the arrears

of michavaram, either interpretation appears to me wholly inconsistent with the existence of a permanent irredeemable tenure.

I agree, therefore, that this appeal must be allowed with costs throughout and with the order proposed by my learned brother.