1. Appeal No. 102 of 1908 - The 3rd defendant has preferred this appeal against the decree of the District Court of North Malabar, decreeing redemption of a kanom demise of the year 1870, made in favor of one Kunhi Lakshmi Kettilamma, the mother of the 2nd and 3rd defendants, by Iswaran, the 12th defendant's predecessor in title. The 1st defendant is the brother of Kunhi Lakshmi. Exhibit A is the demise sued on and it is executed by Iswara Vadhyan as the jenmi of the properties. It does not appear that there was any counterpart or kaichit executed by the demisee, but admittedly the demise was accepted by Kunhi Lakshmi who would seem to have been in possession of it on Putravakasam tenure. The property therefore seems to belong to the children of Kuuhi Lakshmi, who are entitled to hold them as tavazhi property with the incidents of such property under the Marumakathayam Law. There seems to be a dispute between the 2nd and 3rd defendants with respect to the question whether the 2nd defendant has any right to the property. But this dispute is immaterial for the disposal of this case. The plaintiff alleges inter alia that the property is held under the demise by the 2nd and 3rd defendants and by defendants Nos. 4 and 10 under them. The 1st defendant did not put in an appearance. The 2nd and 3rd defendants, while admitting the demise, deny the plaintiff's light to redeem. They contend that the plaintiff had no jenm right over the property on the date of the demise, but only a kanom interest for an amount much smaller than the amount acknowledged by Exhibit A to have been received by Iswara Vadhyan from Kunhi Lakshmi, that the jenm right vested in the Kurungot Tarwad till 1878, when it was sold in court auction in execution of a decree against the tarwad and purchased on behalf of Kunhi Lakshmi by a benamidar (Exhibit II) who executed a conveyance later on in the same year to Kunhi Lakshmi (Exhibit III) and that Iswara Vadhyan's right to redeem was terminated in law on the date of the said auction sale, as Kunhi Lakshmi then became the owner of the equity of redemption and at the same time held a sub-mortgage from Iswara Vadhyan for a much larger amount than that due to him on his own mortgage. They further allege that in 1872, when the property was attached in execution of a decree against Iswara Vadhyan as his jenm, the Karnavan of Kurungot Tarwad put in a claim petition under Section 246 of Act VIII of 1859, asserting that the jenm right belonged to his tarwad and that Iswara Vadhyan had only an otti right, which was directed to be sold, and that no suit having been instituted by Iswara Vadhyan within one year after the order on the claim petition, Exhibit 7, dated 23rd March 1872, the plaintiff as the assignee of Iswara Vadhyan's right cannot claim to redeem the demise as jenmi.
2. The principal questions raised in the lower court were those covered by issues Nos. 2 and 4 to 8. Of these, the second issue refers to the plaintiff's title to redeem either on jenm or any other title that he may have. The 6th and 7th issues raised the question whether in consequence of the order, Exhibit I, on the claim petition of 1872 referred to above, the plaintiff is debarred from setting up his jenm title, assuming that he was the jenmi before. The lower court held that the order, Exhibit I, not having been questioned by a regular suit within one year after it was passed, the plaintiff cannot now claim to redeem as jenmi. But it held that the plaintiff has an irredeemable otti right and is entitled as such to maintain this suit for redemption. The learned vakil for the appellant contends that the view of the lower court that the plaintiff is entitled to an irredeemable mortgage cannot be sustained and the question of the nature of the plaintiff's right over the property, assuming that he cannot set up a jenm claim, was argued before us at some length. Mr. Rosario, for the 1st respondent, attacks the District Judge's finding with respect to the conclusiveness of the order, Exhibit I, and contends that the plaintiff is not estopped from relying on his jenm right. He also urges that the demisee under Exhibit A, Kunhi Lakshmi, and her heirs must be held, by having accepted the demise and held possession under it, to be estopped from disputing the plaintiff's jenm title.
3. We propose first to deal with the former of these contentions.
[After discussing the evidence on the point their Lordships proceeded as follows : ED.]
* * *
4. We must hold on the evidence and the probabilities of the case that notice of the claim was not issued to the judgment-debtor Iswara Vadhyan.
5. Mr. Ramachandra Aiyar contends, on behalf of the appellant, that the judgment-debtor must be taken to have been necessarily a party to, and to be bound by, an order made under Section 246 of Act VIII of 1859, and relies on the words of the section which says that 'the court shall...proceed to investigate the same with the like powers as if the claimant had been originally made a defendant in the suit and also with such powers as regards the summoning of the original defendant as are contained in Section 220.' It is urged that the claim must be regarded, on this language, as if it were a proceeding in the original suit, and that, as the judgment-debtor was a party to the original suit, he must be regarded as having been a party to the claim proceedings also. But this contention does not seem to be quite consistent with the latter part of the sentence, which expressly confers power on the court to summon the original defendant, a provision that would be hardly necessary if the judgment-debtor was to be necessarily treated as a party. The corresponding section in the later Acts X of 1877 and XIV of 1882, made a variation in the language used in Section 246 of Act VIII of 1859 and provided that 'the court shall proceed to investigate the claim or objection with like power as regards the examination of the claimant or objector and in all other respects as if he were a party to the suit,' and not 'as if the claimant was a party to the original suit.' The Bombay High Court in Shivapa v. Dod Nagaya I.L.R. (1881) B. 114, was of opinion that the later Acts merely expressed in clearer language the meaning of Section 246 of the Code of 1859 (see page 118). According to that decisions 'the material fact for inquiry is whether the claimant held possession, and the fact of possession may be investigated in a proceeding between the decree-holder and the claimant only. The power given by the section to summon the original defendant also shews this.' The Judicial Committee of the Privy Council in Sardhari Lal v. Ambika Pershad observe : 'It is not suggested that there can be any person against whom an order can be passed under Section 280 except the decree-holder himself.' In Netietom Perangaryprom alias Panisherry Damodhran Nambudry v. Tayanbany Parameshwaram Nambudry (1902) 4 M.H.C.R. 472, Scotland C.J., and Bitleston and Collett JJ. were of opinion that the judgment-debtor must be regarded as a party when a claim is upheld. But Innes, J was inclined to take the contrary view. This decision was doubted in Chengarakal alias Arakel Kunhi Kuttyali v. Vayaka Parambat Imbichi Ammal (1878) 6 M.H.C.R. 416 by Morgan, C.J. and Holloway J. and in Moidin Kutti v. Kunhikutti Ali I.L.R. (1902) M. 721 by the Chief Justice and Benson J. In Imbichi Koya v. Kakkunet Uppaki I.L.R. (1878) M. 391 and Mannu Lal v. Harsukh Das I.L.R. (1881) A. 233 it was held that the judgment-debtor is not necessarily a party to the proceedings under Section 246 of the Code of 1859. In the latter case it was considered that it would be necessary to show that the judgment-debtor was summoned, and that the fact that he was a party in name would not be enough to bind him by the order made on the claim petition. Under the later Codes of 1877 and 1882 it has been held almost unanimously in a series of cases that it must be shewn that notice of claim was served on the judgment-debtor before he can be held to be bound by the order of the court see Moidan Kutti v. Kunkutti Ali I.L.R. (1902) M. 721, Krishnaswami Naidu v. Somasundram Chettiar I.L.R. (1907) M. 335, Vadapalli Narasimham v. Dronam Raju Seetharam Murthi (1907) L.R. 31 M. 163 and Sadaya Pillai v. Amritha Chari (1910) 1 M.W.N. 741 where attention is drawn to the difference between the language of Section 246 of the Code of 1859 and the corresponding section of the later Codes. We are inclined to hold that the judgment-debtor cannot be regarded as necessarily a party to an investigation under Section 146 of Act VIII of 1859. We are confirmed in this opinion by the conclusion we have arrived at with respect to the meaning and scope of Section 246 of the Code of 1859.
6. The respondent contends that under Section 246 the Sudder Amin's Court was entitled to inquire only into the question whether Iswara Vadhyan or Kurungot Tarwad was the party in possession of the property; that the question whether Iswara Vadhyan was only an ottidar or whether lie had a valid jenm right was beyond the scope of the section, and that therefore he was not bound to establish his jenm right within one year after the date of the order, Exhibit J. The question raised by the claimant was whether a jenm deed obtained by Iswara Vadhyan in 1863 from the Karnavan of the tar wad was obtained under circumstances which would make it binding on the tar wad or not, the genuineness of the deed which was filed as Exhibit A in the claim proceedings, but is not produced in this suit, not being contested. For the purpose of deciding this question it is necessary to examine a little closely the provisions of Section 246. The claim which a person could prefer under it was one referring to or objecting to the sale of the attached property as not liable to be sold in execution of the decree. The investigation to be made by the court was whether property was actually or constructively in the possession of the judgment-debtor or of some other person (constructive possession being taken to include possession on one's behalf by a trustee); and the order to be passed was one releasing the property from attachment or allowing the claim referring or objecting to the sale of property. A comparison of the section with Sections 278 to 282 of the later Codes of 1877 and 1882 throw much useful light on the construction of Section 246 of the Act of 1859. Section 278 enacts that 'if any claim be preferred or objection made to the attachment of any property....' This allows a claim being made to the property attached and not merely a claim referring to the sale of attached property, and the ground of the claim or objection is that such property is not liable to such attachment, i.e., 'the particular attachment objected to' and not that the property in question is 'not liable to be sold in execution of the decree' as in Section 246. This distinction is made clearer by S279 which says that 'the claimant or objector must adduce evidence to show that at the date of the attachment he had some interest in or was possessed of the property attached.' The investigation by the court thus includes the question whether the claimant, whether he has possession or not, had some interest in the property at the date of the attachment. The distinction is pursued by the enactment of Section 282 which lays down that 'if the court is satisfied that the property is subject to a mortgage or lien in favor of some person not in possession and thinks fit to continue the attachment, it may do so subject to such mortgage.' There is nothing in Section 246 of the Code of 1059 corresponding to this provision Section 283 enacts that 'the party against whom an order is passed under Section 280, 281 or 282 may institute a suit to establish the right which, he claims to the property in dispute...' not, as in Section 245 'the right claimed under the section objecting to the sale of the attached property' Under Section 281, no doubt, the claim is to be disallowed if the judgment-debtor has a possessory interest in the property, but this must be taken in conjunction with Sections 279 and 282, which show that the clam of a mortgagee or lien-holder not in possession must be maintained. If the judgment-debtor is not in legal or constructive possession, the property is to be released from attachment according to Section 246. The corresponding Section 280 adds the words 'wholly or to such extent as it thinks fit' carrying out the opinion expressed in Deonath Biswas v. Issury Gira (1870) 14 W.R. 52 that under Section 246 also part of the property attached could be released. No express provision is made in Section 280 or Section 281 with regard to investigation of any right of the judgment-debtor in the property not accompanied by possession, either directly or through a tenant or other person paying rent. It may be that the principle laid down in Chidambara Pattar v. Ramasami Pattar I.L.R. (1903) M. 67 will allow of such investigation being made, and the right of the judgment-debtor without possession, physical or through a tenant, being allowed to be sold; such a view would be in consonance with the provision in Section 282 that a claim of mortgage or lien without possession on the part of the claimant may be recognised by the court.
7. The above comparison leads clearly to the conclusion that the court under Section 246 could only make an order releasing the property from attachment or disallow the claim, which must be one objecting to the sale of the property in execution. We are not aware of any case holding that under Section 246 the rights of a claimant to some interest in property in the possession of the judgment-debtor could be investigated, or that the court could raise an attachment where the judgment-debtor had a possessory interest in the property. Mr. Rosario cited several cases in which the contrary view was maintained Khelat Chunder v. Bhugbiathy (1870) 14 W.R. 52, Thebrajat Deraf Mahtab Chand v. Hardes Narain (1871) 16 W.R. 119 Cheriarkel v. Vayaka Patumbath Imbichisunwa (1871) 6 M.H.C.R. 416 Shivappa v. Doddle Nagaya I.L.R. (1881) B. 114 Dayac hand Nemchand v. Hemchand Dharamchand I.L.R. (1880) B. 575 Mr. Ramachandra Aiyar argued that the Kurungot Tarwad must be treated as having been in possession of the equity of redemption, and that we must take it that the Sudder Amin found that it was in possession of it. But such a claim, if of an equity of redemption, is not, as already observed, within the purview of Section 246, as it would not be an objection to the sale of the property. Moreover, Exhibit I does not show that the claimant asserted that the tarwad was in posession of the equity of redemption. Iswara Vadhyan had purchased the jenm right. The land was in the actual possession of the Putravakasam holders, but their rights h ad been sold in court auction. There is no positive evidence except Exh. A that they had attorned to Iswara, but we must take it, as between the Tarwad and Iswara Vadhyan, that the Tarwad had no possession, especially as there was no purapad or rent payable to the jenmi. The sale of the jenm right was sufficient in the circumstances to vest in Iswara Vadhyau such legal possession of the equity of redemption as it was capable of. It is unnecesary to refer to cases cited at the Bar relating to the investigation of claims under the sections in the later Codes which support the interpretation we place on Section 246. For the above mentioned reasons we hold that the order, Exhibit I, was not one which Iswara Vadhyan was bound to impeach by a suit within one year or twelve years after it was passed. We also agree with the contention of the learned vakil for the first respondent that defendants Nos. 2 and 3 are estopped from contesting in this suit the plaintiff's jenm right to the property. Iswara Vadhyan purchased the jenm right from the Karnavan of the Kurungot Tar wad on the 27th September 1863 (Exhibit A in the claim case). The otti rights of the Tavazhi of the 2nd and 3rd defendants had been sold in auction previously to the jenm sale and purchased by Iswara. Kunhi Lakshmi then in 1870 accepts from him the kanom demise, Exhibit A, in which the property is declared by him to be his jenm. It is impossible to believe that at the time of the demise when no one had impeached the validity of his jenm deed, Iswara Vadhyan, would have agreed to execute Exhibit A, if Kunhi Lakshmi who was fully conversant with the facts, had not agreed to act knowledge him as the jenmi and agreed to hold the land under him on that footing. Kunhi Lakshmi, by her conduct, induced Iswara to execute Exhibit A, as she would otherwise have been bound to surrender the lands to him, as the auction purchaser of her Tavazhi rights. We cannot agree with the contention that any express admission of jenm right by the demisee otherwise than by the acceptance of the demise was necessary in the circumstances of the case to estop her from denying the plaintiff's jenm right.
8. In the view we take on the questions discussed it is unnecessary to consider the contention that the otti right that Iswara Vadhyan first purchased in auction was not irredeemable. The defendants did not in this suit allege that the jenm sale to Iswara was not binding on the Kurungot Tarwad but relied solely on Exhibit I.
9. In the result this appeal must be dismissed with costs. Time for payment of the mortgage money and the value of improvements is extended till the re-opening of the District Court after the summer recess.
10. Appeal No 76 of 1908 is by the 9th defendant for two plots of laud. [Their Hardships after discussing the evidence relating to them reversed the decree of the lower court and modified the decree accordingly. - ED.