VYTHILINGAM PILLAI Vs. KUTHIRAVATTAH NAIR

JUDGEMENT

(1.) 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.

(2.) 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."

(3.) "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."