Vythilingam Pillai and Others vs Kuthiravattah Nair and Others

This is a suit for redemption of certain land. The plaintiff is the Kuthiravattah Nair. The second and the third defendants are the present appellant

and third respondent. They are in possession and they alone contest the plaintiff''s right to redeem. They claim under exhibit IV which is an

assignment obtained by them in 1896 from certain persons who had obtained an assignment in 1871 under exhibit I from the Tarward (family) of

the first defendant. The first defendant''s family held the land under an instrument which is not produced, but of which exhibit A is the kaichit or

counterpart. It was executed by the first defendant and another member of his family in favour of the plaintiff in 1866. The defendants also relied on

exhibit II which purported to be a grant from the Zamoriu in 1862. The Zamorin claimed to have au undivided half share in the land, but this claim

was negatived in recent litigation between the plaintiff and the Zamorin and exhibit IL has been hell by both the Courts below in the present suit to

be a forgery. The second and third defendants'' title, then, depends on exhibit A, and the chief question in this suit is as to the extent of the grant

evidenced by it. The second and third defendants contend that it evidences a permanent irredeemable tenure, while the plaintiff contends that it is

nothing more than au ordinary Malabar kanom redeemable on the expiration of the usual kanom period of twelve years. It recites that the plaintiff

grants to the first defendant''s family ""a renewed writing,"" on a stamp paper of one rupee in respect of certain land and adds ""The rent due by us

(first defendant''s family) for holding the land on lease is 55 paras of paddy. The prior kanom and the value settled for the reclamation effected

hitherto in the said property and credited to our accounts is 700 fanams. The amount allowed for interest thereon (on the said 700 fanams) is 35

paras of paddy, and the amount allowed for anubhabam is 5 paras of paddy. The total amount of the two items is 40 paras of paddy. The balance

left after deducting these 40 paras of paddy from the aforesaid rent of the 55 paras of paddy is 15 paras of paddy"" and the tenant agrees to pay

rent calculated in the usual way on this 15 paras Now this instrument has all the elements of a kanom. The reference to ""the prior kanom"" of which

this is ""a renewed writing"" the addition of the value of reclamations by the tenant to the prior kanom amount so as to make up the new kanom

amount, and the manner in which the rent is calculated, all indicate that it is a kanom demise and the Courts below have construed it as an ordinary

kanom, neither more nor less.

The defendants, however, contend that the words ""the amount allowed for anubhavam is 5 paras of paddy"" have the effect of converting the

kanom into a perpetual tenure. We cannot for a moment accede to this argument. The word anubhavam or anubhogam is a Sanskrit word, and

literally means ""enjoyment."" In grants, however, it ordinarily implies hereditary, and, therefore, perpetual, enjoyment; and when used as descriptive

of a tenure of land it implies an hereditary tenure; but the word may also be used with reference to an allowance of money or grain which is to be

deducted from the rent due to the grantor. In such a case though the allowance may be perpetual or may operate as a rent charge on the land, it by

no means follows that the tenure is irredeemable. Whether the word implies an irredeemable tenure or only a perpetual rent charge o grain or

money must depend on the language of each document. This two fold use of the word is supported by authority, and it is sufficient, we think to

explain and reconcile the several cases that have been relied on by either side in the argument before us. In Greeme''s ''Glossary,'' which is a

standard authority with regard to the meaning of legal and revenue words and phrases in Malabar, this two-fold use of anubhavam is dearly stated.

It is denned as ""A deed of gift of land as a reward for services performed, answering, perhaps, to inam land. The holder cannot be dispossessed,

and the right is hereditary; but if the grantee or any of his descendants die without heirs, the land reverts to the janmi, and on the succession of heirs

the janmi is entitled to purushantaram. In some instances a trifling payment of one or two fanams is made by the grantee to the janmi in token of

acknowledgment of proprietorship.

""An hereditary grant of Anubhavam of the purapad, or residue of purapad after deducting mortgage interest, which remains in the hands of a

mortgagee, is sometimes made to the mortgagee himself, or to some other person not connected with the land to whom the mortgagee is required

to pay it.

In John Pillai v. The Collector and Agent to the Court of Wards, Kavalapara Estate S.A. No. 1877 of 1891 (unreported), Muthusami Ayyar

and Wilkinson, JJ., had to consider a document very similar in its essential terms to the present, and they then said : ""The main question to be

determined is whether the kanom created by exhibit VII is perpetual and irredeemable. The material words in the document to which our attention

is drawn are these ''the balance of micharam due to me, namely, 118 paras and 6 � edangalies of paddy I make over to you and your sons to be

enjoyed as anubhavam for ever and ever with a liability to pay me 2 fanams a year as anubhavam kacha.'' The document is termed ubhayapattola

karanam which means, as explained by Greeme, a kanom deed. This view of the deed is strengthened by the expression used in the instrument

''interest on the kanom amount advanced to me.'' The contention that the terms ''anubhavam'' ''you and your sons'' and ''for, ever and ever'' operate

to render the kanom irredeemable cannot be supported. The deed must be looked at as a whole. The primary intention of the parties was to create

a mortgage and we are not at liberty to ignore it and to treat the document as if it evidenced a sale, the consideration for which consisted of the

kanom amount and past services. Reading the document as a whole the intention appears to us to have been to combine in one instrument two

independent transactions, viz., a mortgage and a gift of a certain amount of purapad to the demisee and his sons. In this view the gift cannot in any

way operate in restraint of the right of redemption any more than if the kanom were granted to one party and the anubhavam right to another.

In Ittappan v. Lakshmi S.A. No. 867 of 1893 (unreported), Collins, C.J., and Shephard, J., stated that the instrument was not unlike that in the

case just quoted (John Piliai v. The Collector and Agent to the Court of Wards, Kavalapara Estate S.A. No. 867 of 1893 (unreported), and that it

must receive a like construction and did not operate to give the lessee a perpetual right to the land lent only to the 30 paras of paddy.

In Kovilkattilunniri v. Ittirarichan Nair S.A. No. 1169 of 1894 (unreported) Collins, C.J., and Parker, J., held that a document similar to the

present ""is clearly a renewal of a previous kanom document and the contention of the defendants that the land No. 1 is held by their Tarward on

anubhavam right is untenable. The real question is whether defendants have a perpetual anubhavam right in 30 paras of paddy from that land. The

contention that plaintiff cannot redeem the kanom is untenable,"" and after a reference to the District Judge, the learned Judges held that the

defendants had an ""irredeemable anubhavam right to 30 paras of paddy from the land."" It will be observed that in all these cases the Court hold

that an anubhavam grant of paddy did not create an Irredeemable tenure of the land in favour of the grantee. The vakil for the defendants however.

strongly relies on the observations of this Court in the case of Theyyan Nair v. The Zamorin of Calicut ILR 27 Mad. 202. But the decision in that

case, if rightly understood, is in no way inconsistent with the decisions already referred to. In that case the words of the document were "" The rent

of 29 items is 160 paras of paddy, being the rent due exclusive of allowance for Adimayamna as heretofore."" The Court there explained that

Adima meant a ""servant"" and yavana ""enjoyment,"" the whole expression implying an allowance given for service and it added that there was judicial

authority for holding that when it applied to a tenure of land it prima facie imported a permanent tenure, just as anubhavam implied a permanent

tenure. It further pointed out that in that case there were reasons why the grant must be held to have been made for services already rendered and

that the amount of the grant, not being specified, must be the produce of the land after deducting the rent settled as reserved for the landlord. The

Court therefore held that the instrument created an irredeemable tenure in favour of the grantee. That conclusion is, we think, obviously correct.

The grantor reserved a rent of 160 paras of paddy for himself and it had been paid without alteration from time immemorial. He granted the rest of

the produce as a permanent allowance for the services rendered. That is just the converse of the present case where the allowance in favour of the

grantee is fixed at so many paras of paddy, and the land is held on kanom tenure, implying the right to redeem the land after twelve years, or to

renew the kanom with a readjustment of the rent.

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 specified money on grain rent charged on the land and in that case it will not

imply any tenure in favour of the grantee. But. if the amount of the grant is not specified and if the terms of the document indicate that only a fixed

rent is reserved for the grantor and the rest of the produce is given as ""anubhavam"" or ""yavana,"" then it may well be that the Court will treat it as

creating an irredeemable tenure, so as to secure to the grantee the benefits intended for him by the grant.

In the present case we hold that no irredeemable tenure was created, but that defendants Nos. 2 and 3 are still entitled to receive 5 paras of

paddy annually from the land if the plaintiff redeems the kanom.

The defendants Nos. 2 and 3 further rely on Article 134 of the Limitation Act as a bar to the whole suit. We, however, agree with the Courts

below that that Article has no application to the present case. In order to have the benefit of that article the purchaser must show that he is the

purchaser of an absolute title, but exhibit I under which defendants Nos. 2 and 3 claim refers to the title of the first defendant''s family as a kanom

and anubhavam right, and hands over the title-deeds on which that right was claimed. Exhibit A. was therefore no more than an assignment of

those rights. To borrow the language of the Privy Council in Radanath Doss v. Gisborne 14 M.I.A. 1when dealing with the corresponding

provision of the land under the Act of 1859 ""we can find in this deed no evidence of a statement on the part of the vendor or of any belief on the

part of the purchasers that the property was a property which the vendor claimed to hold by what we should call in this country a fee simple title,

and we therefore think that ""the first requisite in the law of limitation is not made out, and that the appellants have not shown that they are

purchasers of this specific property as an absolute property in contradistinction to a mortgage property upon a contract by the vendor to convey

the property to them as an absolute property.

We therefore dismiss the second appeal with costs. The decree will be without prejudice to the right of the defendant Nos. 2 and 3 to their

charge on the land.