1. A preliminary objection has been taken that the appeal lies to the District Court and not to this Court. We are unable to admit this objection. The claim in the present case is, in the alternative, first for redemption of a mortgage, the principal amount secured whereby is Rs. 3,000, and in the event of that failing, secondly, to recover from the defendants various sums aggregating more than Rs. 2,000, on the footing of a' mortgage to be executed by the plaintiff to the defendants in accordance with certain provisions contained in the earlier mortgage. The decisions in Motigavri v. Pranajivan Das I.L.R. 6 B. 302 and Kashnath Narayana v. Govinda Bin Piraji I.L.R. 15 B. 82 hold that Section 17 of the Court Fees Act applies only to cases where cumulative reliefs are claimed. A contrary view appears to have been taken by the Punjab Chief Court, though the actual language employed by the Court is not before us. (See page 104, Jagannatha Aiyar's Court Fees Act). Section 17 of the Court Fees Act says merely that 'where a suit embraces two or more distinct subjects, the plaint or memorandum of: appeal shall be chargeable with the aggregate amount of the fees to which the plaints or memoranda of appeals in suits embracing separately each of such subjects would be liable under this Act.' We see nothing in the language to warrant 'the operation of the section being confined to cases in which the reliefs are cumulative.
2. No doubt the second paragraph of the section referring to paragraph 2 of Section 45, Civil Procedure Code, refers to cases, where prima facie the relief sought, is cumulative, but the general words of the first paragraph of the section cannot be limited to the class of cases dealt with by the second paragraph which was introduced ex majore eautela in order to prevent the first paragraph being construed as intended to restrict the power of the Courts in regard to joinder of causes of action.
3. The phrase 'two or more distinct subjects' in Section 17 may e not admit of precise definition applicable to all cases, and it may0 be,, that where reliefs are claimed in the alternative with reference to the same causes of action, Section 17 would not govern the case. That may also be so when the relief claimed is one and the same though the claim is sought to be made out on distinct or alternative grounds. It is, however, different in the present case. The claim for redemption is based upon the alleged right of the plaintiff as mortgagor, while the alternative relief is based on a contract for a further mortgage which is distinct from the earlier mortgage right, though both are evidenced by the same, instrument. The alternative claims are therefore distinct matters which could, have been made the grounds of separate suits and it would, therefore, seem to be reasonable to hold that they are 'distinct subjects' within the meaning of Section 17. It follows, therefore, that the value of the suit for purposes of Court fees is more than Rs. 5,000, and, consequently also for purposes of jurisdiction.
4. Passing to the merits, the questions for determination are, whether upon the true construction of Exhibit III and its counter part Exhibit A, of the 17th October 1872, the first respondent is entitled to hold in perpetuity, without reference to any further assurance to be executed by the mortgagor or his representatives, and whether the provisions in the concluding parts of the instruments are invalid, and not binding on the plaintiff by reason of there being a clog on the mortgagor's right of redemption.
5. The instruments are in the Malayalam language and the Subordinate Judge, who is a native of the district, and presumably well acquainted with that language, has arrived at the conclusion that the instruments create a right in favonr of the mortgagee entitling him to hold for ever independently of the execution of any assurance by the mortgagor or his representatives. Though we should hesitate to differ from the Subordinate Judge as to the meaning of the mere language of the documents we cannot say that the view adopted by him as to the, legal effect of that language is correct. As pointed out on behalf of the plaintiff, the transaction is described in the documents as a Ubhayapattom which is aquivalent to the more common expression 'a kanom mortgage.' If the grantor meant to create a present permanent right in the grantee, he would have found no difficulty in describing the transaction by a more suitable name. It is unlikely that in such a case the periodical payment provided for would be spoken of as a renewal fee, nor would-the time when such payment was to take place have been fixed at the conclusion of every 12 years, as in the case of an ordinary kanom, and still less it is likely that he would have stipulated for the grantee taking a fresh document at each renewal.
6. That Rs. 3,000 was a debt is undoubted. It was a debt prior to the execution of the instruments, and nothing in the instruments can be said to operate to extinguish the debt. The reasonable view therefore seems to us to be that both in essence and in form of instrument was nothing more than security for a debt with certain additional stipulations not usual in such securities. The respondent's vakil contends that the words 'you shall hold (the properties) for ever without surrendering them,' renders the transaction an immediate grant, of a permanent interest, but this contention virtually ignores the effect of the important clause which precedes the words and which provides for the payment of the renewal fee and the obtaining of a fresh deed. The instruments seem to us to constitute a mortgage transaction with covenant by the mortgagor to renew every 12 years on the terms provided for. In this view the second question also must be answered in the affirmative for the obvious reason that a covenant to renew perpetually is a clog on the mortgagor's right to redeem, and having been entered into simultaneously with the mortgage, is inoperative.
7. On behalf of the respondent Section 98of the Transfer of Property Act was relied on, but the transaction having taken place prior to the Transfer of Property Act, the question has to be determined with reference to the law' in force prior to that Act, and it is unnecessary to express an opinion as to the effect of Section 98 on covenants such, as those now in question in anomalous mortgagee executed after the passing of the Act.
8. According to the rules of equity, which formed the basis of the course of decision prior to the Act, but subsequent to 1858, any agreement entered into at the time of the mortgage having the effect of clogging the right of redemption was inoperative. It follows, therefore, that the plaintiff is entitled to redeem, No. renewal subsequent to Exhibit III having been granted by him. We, therefore, set aside the decree of the Subordinate Judge and give the plaintiff a decree for redemption on payment of the mortgage amount of Rs. 3,000 plus Rs. 2,250-14-8, for improvements, minus Rs. 115-6-0 (the interest claimed by the plaintiff being disallowed) payable by the mortgagee to the mortgagor on account of michavaram up to the date of the plaint, with the costs of the 1st defendant throughout. The 1st defendant shall account to the plaintiff for michavaram subsequent to the date of the plaint until delivery. The amount shall be paid into court by the plaintiff within six months from this date, and shall be applied in the first instance to the discharge of the mortgage money due by the 1st defendant to defendants Nos. 13 to 17, viz., Rs. 5,000 and their costs. The 1st defendant shall bear the costs of defendants Nos. 13 to 17.