Charles A. Turner, Kt., C.J. and Muttusami Ayyar, J.
1. The first question of fact that must be determined in order to arrive at a conclusion on the plea of limitation is--Whether the transaction by which possession passed to the fourth defendant was a sale for consideration of an absolute interest, or an assignment of the otti right? Presumably, a mortgagee conveys no higher right than his own; it lies on the fourth defendant to prove he bargained for, and obtained an absolute interest. The Judge does not give any reason for believing the assignment to have been absolute.
2. The issue must be remitted to the lower Appellate Court for retrial upon the evidence already recorded, and on such further evidence as may be adduced by the parties with reference thereto.
3. If the Judge finds that the fourth defendant was not a purchaser of a jenm-title, he must try on evidence as to custom, what are the incidents of a kaividu otti in respect of redemption.
4. The District Judge will submit his finding together with the evidence to this Court within three months from the date of receiving this order. Ten days will be allowed thereafter for filing objections.
5. In accordance with the above order the Acting District Judge (F. H Wilkinson) submitted the following
6. Findings: 'First.--The Court of First Instance found that first defendant, the representative of the original demisor, had sold his rights to fourth defendant, a stranger who has since 1856 been treated as the virtual holder of the lands (exhibits V to VII). Exhibit VII is the tir deed executed by first defendant and his mother to fourth defendant. Its genuineness does not appear to have been disputed by the plaintiffs. At this hearing the plaintiffs' pleader does not deny that fourth defendant was a bona fide purchaser for consideration, and the fourth defendant's pleader states that he does not claim an absolute interest, that he never pretended that he purchased a jenm-title, but merely asserts that he purchased an otti right--which right was one which the jenmi had no right to redeem. I find, therefore, on this issue that the transaction by which fourth defendant obtained possession was an assignment for valuable consideration of the first defendant's otti right.
7. Second.--What are the incidents of a kaividu otti in respect of redemption.
8. The plaintiff asserts that a kaividu otti is redeemable, the fourth defendant that it is irredeemable.
9. The latter called only two witnesses, whose evidence is absolutely worthless. His first witness, one Raman Nayar, whose demeanour under examination convinced me that he had come prepared to stick to one assertion, is ignorant of Malabar tenures. He asserts that the result of his experience of seventy three years is that a kaividu otti is the highest tenure in Malabar. In answer to the question--' Do you know of any right called kaividu otti--he answered glibly: 'I never heard of a kaividu otti being redeemed.' He says that there are no deeds intermediate between kaividu-otti deed and a deed of absolute sale. He admits that ottikamparam and nirmutal are redeemable and that jenm-panayam is sometimes redeemed. Fourth defendant's second witness wisely says that he knows nothing about kaividu otti.
10. The plaintiff called six witnesses and filed twelve documents in support of his contention that a kaividu otti is redeemable.
11. His sixth witness was the first defendant, who was a party to the petition of claim (exhibit A) and to the lists of property and documents (exhibits B and C). The plaint lands having been attached in execution of a decree obtained against first defendant's karnavan, the anandravan of the family put in an objection and a list of the family lands, &c.; The plaint lands are in that list entered as held on otti tenure. Exhibits AA and CC are kaividu-otti deeds, which are described in the list as otti. They are assigned by first defendant's tarwad to one Nambonur Koman Nayar, who thereupon brought suits (Original Suits 179 and 180 of 1854), and obtained decrees (exhibits Z and BB). The plea that the mortgage being a kaividu otti was not redeemable was not raised then.
12. Original Suit No. 199 of 1871 was a suit against fourth defendant's karnavan to redeem lands demised on kaividu otti. In the plaint the demise is treated as an otti demise renewed in 1027. The plaintiff obtained a decree for redemption (exhibits M and N). The plaintiffs' first witness, one Choyunni, a Tiyan, demised property on kaividu otti to Moidin Haji (exhibit R) in 1026 (1850). This right was renewed as a kanam in 1046 (1871) to the brothers of Moidin Haji. This witness asserts that, according to the usage of Malabar, kaividu otti is redeemable, and that the only difference between otti and kaividu otti is that in the former the landlord is entitled to take ten coooanuts and one jack fruit yearly. He has never known of any case of kaividu otti but that evidenced by exhibit E. This witness sold the jenm right of the property demised under R to the second witness, Cheria Krinhamu.
13. The plaintiffs' third witness is the adhigari of the Kacheriamsham, Calicut. His karnavan demised land on kaividu otti in 1040 (1865) to one Ramunni Menoki under the registered deed, exhibit U. Ramunni Menoki then sold his right to one Krishnan Nayar under exhibit V, to whom the jenmi granted a renewal on kanam in 1882 (exhibit T). This witness, who seems to have some experience, also asserts that the only difference between otti and kaividu otti is that in the former the jenmi is entitled to ten cocoanuts and one jack annually. He asserts that the only irredeemable act of the jenmi is jenm or attiper.
14. The plaintiffs' fourth witness produces a kaividu-otti deed (exhibit W), dated 1042 (1867), executed by Kannara Kurup and others, to one Unnikutti Nayar. In 1866 the same parties executed a jenm-panyam deed (Y) to Unnikutti Nayar; and the right under these two deeds was surrendered by Unnikutti Nayar's anandravan in 1878 under exhibit X.
15. The fifth witness confirms the first and third witnesses as to the difference between otti and kaividu otti. He declares that kaividu otti is an unusual and rare tenure but has known of several such mortgages which were redeemed. This is all the evidence tendered as to the custom. I have a strong impression that a kaividu-otti mortgage is redeemable in the same way as every other mortgage, whether kanam, otti, ottikamparam, or nirmutal, is redeemable, and that the only act by which the jenmi parts with all rights of further interference in the land is by jenm-panayarh and attiper. I say I have an impression that this is so, because my experience of Malabar is extremely limited, and I do not venture to express myself with confidence; but the above is the opinion ,of every Malayali with whom I have come in contact. The fourth defendant's pleader, Gopala Menon, one of the. ablest men at the bar here, did not seriously contend that a kaividu otti was not redeemable. He merely referred to Mr. Wigram's judgments in Appeal Suits, Nos. 628 of 1879 and 198 of 1880. I venture to suggest that the terms kaividu otti, ottikamparam, and nirmutal are at the present day words and nothing more, that they are relics of a time long past, when perhaps there was some slight distinction between different forms of mortgage, when the jenmi only parted with his proprietary right and title little by little, first granting a kariam, then an otti, then resigning the right of entry and assertion of proprietary right (kaividu otti), then binding himself to pay off a further sum at the same time as the otti (ottikamparam), and then parting with everything but is right to water (nirmutal). This was the last step preparatory to jenm-panayam. But all these nice distinctions have long since been lost, and parties now merely look upon a mortgage either as a kanam or an otti, either of which is renewable and redeemable.
16. I find, therefore, on the evidence before me that a kaividu otti is redeemable.'
17. On the return of these, findings the judgment of the Court was reserved, on the 23rd August 1883, and on the 24th March 1884 judgment was delivered by
Muttusami Ayyar, J.
18. The lands in dispute originally belonged to a tarwad in South Malabar called the Beypore house. This tarwad has now become extinct and the appellants.are its heirs, by virtue of the attaladakam or reversionary right. The suit in which this second appeal arises was instituted to redeem a kaividu otti executed in 1809 by the karnavan of the Beypore family, to the karnavan of the first, second and third defendants. In 1839 the first defendant and the other members of this family acknowledged the otti, and admitted that the appellants' karnavan was the jenmi or proprietor at that time, and in 1852 they transferred their kaividu otti right to the fourth defendant, whose representative is the respondent in this second appeal.
19. He pleaded limitation in bar of the claim, and contended, inter alia, that kaividu otti was, according to the custom of Malabar, not redeemable. The question--Whether the right of redemption was an incident of kaividu otti--was discussed by the District Judge, Mr. Wigram, in Appeal Suit No.. 628 of 1879 in which he held that it was not redeemable. Although the District Munsif was of a different opinion in this case, he considered that he was concluded by the authority of the District Court, and held that (according to the decision in Appeal Suit, No. 628 of 1879) the otti was not redeemable, so long as it was retained by the original mortgagee, but that it became redeemable if transferred , to a third party. On the ground that the otti right, had been assigned the District Munsif decreed the claim, but on appeal Mr. Wigram, the then District Judge, reversed the decree and observed that the transaction kaividu otti implied at its inception a transfer of absolute interest, and that the right which revived on the assignment of such interest was one of pre-emption and not of redemption. He further remarked that whether the suit was governed by Article 10 or 134 or 143 of the second schedule of the Act of Limitations it was alike barred, the transfer having been made in 1852. But it was argued on second appeal that a kaividu otti was redeemable according to custom, that, even if it were not, the right which revived on an assignment by the original otti-holder, was the right of redemption inherent in otti, and that the District Court ought to have taken evidence before determining these questions of general importance as to the usage of the district.
20. We therefore referred for trial the following issues:
I. Whether the transaction by which possession passed to the respondent was a sale of an absolute interest, or an assignment of the otti right? and
II. What were the incidents of a kaividu otti in respect of redemption?
21. The District Judge, Mr. Wilkinson, has returned a finding to the effect that it was the kaividu otti right vesting in the first, second, and third defendants that was transferred to the respondent's predecessor, and that it is redeemable?
22. No objection is taken to the finding that what the respondent's family obtained by transfer was the kaividu otti right, such as it vested in its assignors; and the question for decision is--Whether at its inception a kaividu otti is not redeemable?
23. On this point there is a conflict of opinion among writers on the tenures of Malabar. It is not denied that the term kaividu imports that some incident inherent in an ordinary otti is abandoned by the jenmi or mortgagor, and the matter in contest is whether that incident is the right of redemption, or the right of entry for the purpose of taking a certain share of the produce, as suggested by the District Munsif, or the power to transfer the right of redemption to a third party when the otti-holder refuses to make a further advance.
24. In Thackeray's report, dated the 4th August 1807, the transaction is described as redeemable. In 1856 the late Sadr Court described the tenure as follows in their proceedings of the 5th August: 'The landlord in the case of kaividu otti relinquishes the power of transferring the property to a third party, and binds himself to borrow any further sum he may require only from the mortgagee. Should the latter decline to make a further advance, the landlord may pay off the mortgage and re-assign the property to another party.' Referring to this definition, Mr. Wigram observes that the same right is inherent in an ordinary kanam or otti, and that the word 'kaividu' (lot slip through the land) is superfluous. In Ali Husain v. Nilakandan Numbudri 1 M.H.C.R. 356 it was held that the otti-holder was entitled only to the option of making  a further advance before the lands under otti can be legally offered on a superior mortgage and as a security for an advance by a stranger, and the holder of a kanam may create a superior title. It may well be that this power of granting a second mortgage in the event of the otti-holder refusing to make a further advance is the interest relinquished by ' kaividu otti.'
25. In Major Walker's report, dated 1801, it is stated that 'by kaividu otti, the jenmkar consigns the paramba and its produce to the jenm kolunavan or purchaser; the jenmkar retaining however his jenm right which precludes the kolunavan or purchaser from disposing of the paranaba for more than he paid for it, or on any other terms than those on which he acquired it. But after executing the kaividu otti, the jenmkar is not at liberty to revoke it or to demand the paramba back by returning the money which he received from the jenm kolunavan.' Mr. Wigram has adopted this definition, and held that the transaction was a sale subject to the condition of re-purchase when the purchaser desires to part with bis interest, and that the right infringed by assignment to a stranger was therefore a right of pre-emption. It must, however, be observed that according to Major Walker, the 'kaividu' mortgagor is bound only to repay the sum originally advanced and nothing more, although the market value may be considerably in excess of it. This incident suggests the inference that if the transaction were at its inception a sale, the incident revived would be a power of re-purchase and not a right of pre-emption.
26. In Wilson's Glossary (1855), p. 249, the transaction is defined to be 'a kind of mortgage in Malabar, by which in consideration of a sum of money, the proprietor of an estate transfers it to the lender to hold without prejudice to his own proprietary right, but which precludes the mortgagee from disposing of the land to a third party for more than he paid, or on any other terms than those on which he acquired the occupation; if he wishes to dispose of it, he is bound to give the proprietor the option of redeeming it.' The late District Judge referred to Gundert's Dictionary (1872), wherein 'kaividu otti' is described to be 'a higher tenure than otti which leaves to the jenmi merely nominal rights.' The Judge also referred to the opinion of Krishna Menon, a native of Malabar, and at present the Subordinate Judge of Tinnevelly, that kaividu otti is not redeemable, though he confessed he was not confident of the soundness of that opinion when he found that the present Puisne Judge of the High Court of Travancore (the District Munsif who heard this case) thought otherwise.
27. The present District Judge of Calicut considers that the right of redemption is not lost.
28. In Groeme's Glossary, page 18, it is stated to be an irredeemable mortgage and in a note appended to it, it is stated that the transaction is differently interpreted, and that some consider that what is relinquished is the right of gathering the first fruits inherent in simple otti, while others hold that it is not redeemable and that the mortgagee cannot assign it. The report of Thackeray and the opinion of the late Sadr Court are in favour of the view that the tenure is redeemable, while according to Major Walker and Mr. Groeme they are not redeemable.
29. It is also desirable to look to the various stages of mortgage which are common to the whole province, and see whether they throw light on the nature of the transaction. The several stages of a mortgage, as showing the ancient usage of Malabar, are kanam and otti, ottikamparam, and nirmutal. The distinction between kanam and otti consists in this that in the latter the mortgagor is ordinarily taken to have received two-thirds of the value of his land, and the interest due on the debt is considered to be equal to the annual rent. Ottikamparam is a higher stage of the mortgage. The mortgagor is taken to have borrowed 10 per cent., or more of the amount of the otti. Under this tenure, the mortgagor must also repay the further advance with interest at 10 per cent., when he pays off the otti. The next stage of the mortgage is nirmutal. This transaction is entered into when a still further sum is lent after the execution of ottikamparam. By this transaction the mortgagor gives up all but the right of water. The next transactions are jenm-panayam and attiper, and there is no dispute that these are transfers of an absolute interest. In the proceedings of the late Sadr Court, dated the 5th August 1856, it was observed that all the forms of mortgage prior to jenm-panayam and attiper were redeemable. Looking to the fact that, when the absolute interest is intended to be transferred, but only the form of pouring water remains to be gone through, the intention is indicated by the use of the word jenm, it is not likely that the word otti would be retained as is the case in kaividu otti, if an absolute interest was intended to be created. The view taken by the Sadr Court in 1856 that what is relinquished by kaividu otti is the power to borrow elsewhere in case the mortgagee refuses to make a further advance, appears to be reasonable with reference to the several gradations, by which the right of the mortgagor was lessened and of the mortgagee enhanced, until the jenm-right was transferred from one to the other by a jenm-panayam deed.
30. Valuable as these opinions and references are, many of them have not the authority of judicial decisions, and in arriving at a judgment it will be safe to rely in their absence mainly on the evidence as to usage in the district to which the tenure is peculiar. The evidence produced in this case is fully set forth in the finding which the District Judge has returned. Although the appellants have examined but six witnesses, their evidence is confirmed by several instances in which kaividu otti has been redeemed during a period of more than 30 years. We are, therefore, of opinion that we must accept the finding that the transaction is a mortgage which is redeemable.
31. We reverse the decree of the Appellate Court and affirm that of the Munsif with costs in all Courts.