1. At the hearing of the second appeal, which was on the 8th February of this year, we were not aware and were not informed of the decision of the Chief Justice and Mr. Justice KlNDERSLEY in Kunhamu v. Keshavan Nambudri I.L.R. 3 Mad. 246.
2. That is a decision by the Chief Justice and Mr. Justice KINDERSLEY that there is no authority to support a kanamdar's claim to be allowed to make further advances before the jenmi is entitled to demise the land to another tenant on kanam or otti.
3. Had we been aware of this decision, we should probably not have thought it necessary to remit the issue, as the point was directly in question in that suit and disposed of.
4. Mr. Sankaran Nayar indeed took the distinction that in the case referred to, the demise taken by plaintiff to whom the jenmi had let the land without calling on the kanam-holder to exercise the option of making further advances, was an otti demise, but the only difference between an otti and a kanam-holder is that the former makes higher advances to nearly the full value of the property, and as the question is whether the jenmi can terminate the holding of the existing kanamdar in favour of another person without offering the option of making further advances, the decision of the question' does not seem to involve the consideration of whether the advances required are higher or lower.
5. In Pramatan Tupen Nambudripad v. Madatil Raman 1 M.H.C.R. 296 to which Mr. Sankaran Nayar also refers as in his favour, because the jenmi had given the option to the kanam-holder of making further advances, the point was not before the Court; the question then was whether a kanam-holder's holding could be terminated in favour 'of a melkanamdar before the expiration of twelve years from the date of the commencement of the holding of the kanam. The question of the right of the kanam-holder after the expiration of the twelve years to be allowed the option of making further advances was not mooted, and there is nothing in the language of the judgments of the Judges which favours the view that a kanam-holder has such right.
6. The reason for the distinction arising in favour of an otti-holder that he shall have this option is very apparent. He has advanced almost to the full value of the property, and is in a position little short of that of a vendee. Having staked so much upon the property, it is quite intelligible that persons so situated should secure their holding from future disturbance by an understanding entered into at the time of the contract that they should have the option of making further advances at the expiry of their term, and that a customary rule should ultimately take the place of such an understanding so generally entered into. No doubt Paidal Kidavu v. Parkal Imbichuni Kidavu 1 M.H.C.R. 13 is distinctly in favour of the appellant's contention, especially if, as Mr. Sankaran hayar says, though it does not appear from the report, the point was argued. But the main point in that case and to which it may be the attention of the Judges -was more particularly directed, was the effect of the denial by a kanam-holder of his jenmi's title for the first time in the answer t6 a suit.
7. There is also the suggestion in S.A. 474 of 1868 which is noticed by the District Judge which is in favour of the contention of the appellants. But as a mere suggestion, it is not of course entitled to much weight. We concur in the finding of the Judge and with all the greater confidence, since it is in accordance with the decision just referred to in Kunhamu v. Keshavan Nambudri M.H.C.R. 296 in which the several authorities were considered.
8. We dismiss this appeal with costs.