1. We are now in possession of the findings of the Subordinate Judge on the two issues referred to him: and in the light of the recorded evidence, the Subordinate Judge's discussion of the same, and the arguments addressed to us both at this, and the previous hearing I have little difficulty in arriving at the conclusion that the plaintiff appellant has failed to establish his right to resume the grants on alienation by the grantees.
2. The Subordinate Judge's finding is so cautiously worded as to be not altogether easy of interpretation. It runs thus: ' My answer to the 1st issue is that with regard to Karamkari and Adimayavana tenures there was a custom of inalienability (involving forfeiture on alienation) up to 1896 and that since then there have been inroads into the custom so as to shake its continuity and uniformity and that the process is going on. On the 2nd issue my finding is, in the affirmative as regards O.S. Nos. 353, 370 and 472 of 1914 and in the negative as regards O.S. No. 371 of 1914.'
3. Each party claims that the finding on the first issue is in effect a decision in its favour but as it is on a question of mixed fact and law, and therefore not entirely binding on us it is unnecessary to devote time to its interpretation--more particularly as I entirely agree in the Subordinate Judge's appreciation of the actual evidence adduced and his conclusion as to the facts established. For the last 20 years or so, for which period alone evidence is available the balance is entirely against the plaintiff's contention. Out of the very large number of assignments by sale and mortgage by the grantees which are in evidence (vide para. 41 of the Subordinate Judge's finding) no instance is shown of resumption on alienation in case of the tenures with which we are concerned (Adimayavana and Karamkari) while on the other, hand there are many in which the alienations have been acknowledged by the Jenmi, and the tenure renewed in favour of the alienee. Exhibits 89 and 100 and Exhibits 38, 38-a and 38-E are particularly striking instances of this. The Learned Counsel for appellants invited our attention to Exhibit 93 as indicating a consciousness on the part of the grantee, that he could make no valid alienation without the grantor--jenmi's consent. But in my opinion nothing of the kind appears from a perusal of the document. The document purports to absolutely assign all the grantee's interest in the property and adds that the grantee has no objection to the assignee enjoying them on the original tenure and to his obtaining a direct demise from the jenmi on production before him of the assignment deed. The latter clause is clearly intended to facilitate the assignee's obtaining an independent title deed from the jenmi--an object naturally desired by the assignee in order to place his rights beyond the possibility of question. But I see nothing in the document to suggest that this was other than a formality which would be granted without demur on production of the transfer deed and it is one which, as shown by the Subordinate Judge, was frequently dispensed with.
4. The oral evidence has been rightly appreciated by the Subordinate Judge and on a survey of the evidence as to custom, oral and documentary, the conclusion is irresistible that, for the period to which it relates no legally enforcible custom of forfeiture on alienation has been proved.
5. The Subordinate Judge has however held that up to 1896 there was a custom of inalienability involving forfeiture on alienation, though the custom has since fallen in desuetude. If this were so, the decision of the question before us would no doubt be difficult but when the ground of the Subordinate Judge's finding as to the custom in earlier times are examined they seem to me to be unsound. It is based on no evidence, but rather on the authority of the expressions of opinion in the Sudder Court Proceedings of 1856 and in Sir Charles Turner's minute of 1885. In regard to both we have to consider not only what the opinions exactly amount to, but also what degree of authority they should be deemed to carry.
6. Appellant is no doubt able to point to previous decisions of this Court in which the proceedings of the Sudder Court have been referred to as authoritative, to one of which 1917 M.W.N. 419 I was myself a party, and in which we were content to follow it. Undoubtedly any statements contained in the proceedings command great respect but whereas in the present case, we are practically asked to treat them as conclusive of the existence of a legal incident of a tenure, and that too in face of evidence as to the actual existing custom--then I think, speaking with all respect, we must be careful not to give it undue weight. It must be remembered that it is not a judicial pronouncement arrived at on a consideration of legally recorded evidence and of arguments on both sides but merely embodies the general effect of decrees previously passed by the Civil Judges and of opinions of experienced persons respecting the mutual rights of landlords and tenants. The proceedings were issued for the guidance of Subordinate Courts in the decision of future cases but constituted, of course, no sort of legal enactment and I see no reason to doubt that the Sudder Court itself would have allowed the correctness of any point therein laid down to be questioned and argued out, if it had arisen in any case that subsequently came before it.
7. The same remarks apply with even greater force to the observations of Sir Charles Turner. They are contained in a minute prepared by that eminent Chief Justice apparently for the consideration of Government in connection with a draft bill relating to Malabar Land Tenures which was under consideration. I do not think any higher weight can be claimed for them than if they were contained in a legal treatise as an exposition of the learned author's views on the subject under consideration.
8. Apart from their authority what do these dicta amount to? In the case of the Sudder Court proceedings all that appellant can point to is a marginal note in which Adima jenmam (but not Karamkari) is defined as 'permanent but inalienable right.' There is no suggestion of inalienability in the text regarding either tenure though in the case of Anubhavam tenure which is dealt with in an intervening paragraph, there is a statement that the tenant cannot alienate his title I think it would be most dangerous in such circumstances to attach much weight to the marginal note.
9. Sir Charles Turner in his minute says that adima grants 'are not alienable except with the consent of the landlord.' Whether he meant to imply that the landlord possessed a right of resumption on alienation is not clear; it does not necessarily follow and it is curious that the very sentence from which these words are quoted concludes thus 'and on failure of heirs revert to him' (i.e., the landlord). He does not say 'on failure of heirs or on alienation.'
10. As regards 'Karamkari' tenures he says nothing about inalienability.
11. Now that the authority and purport of these pronouncements have been directly challenged, the only conclusion I can come to is that as the basis of a finding of the existence of a custom unsupported by other good evidence, they are altogether inadequate.
12. The other authorities to which our attention has been drawn Graeme's Glossary, Moore's Malabar Law and the District Manual all seem to be against appellant's contention and my conclusion is that while the evidence of custom in the last 20 years is strongly against the existence of the right of forfeiture, there is no reliable evidence of its existence at any earlier period.
13. This disposes of the appeals and it is unnecessary to consider whether, if the right of forfeiture exists, it was waived by the appellant, in any of the cases with which we have to deal. I may merely record that I see no reason why the Sub-Judge's finding on this point should not be accepted. As a result I would dismiss these second appeals with costs.
14. The learned Subordinate Judge has now submitted findings on the 2 issues remitted to him. Both sides have filed objections to them. It is however sufficient to consider the finding on the ' 1st issue as to custom for the disposal of these second appeals.
15. The Subordinate Judge found on that issue that a custom entitling the landlord to resume the holding on alienation thereof by the grantee existed prior to 1896 but had since then fallen into desuetude. The existence or non-existence of an alleged custom is a mixed question of fact and law and it has now been settled by the Full Bench in Kumirappa Reddi v. Manavala Goundan I.L.R. (1917) Mad 374 : 1917 34 M.L.J. 104 that a finding about it is revisable by the High Court in second appeal. We must therefore see how far the accepted evidence in the case and the authorities relied on by the Subordinate judge support his finding or are against it.
16. The Subordinate Judge has very properly made an elaborate enquiry into the existence of this alleged custom including the examination of several Court witnesses. The effect of that evidence both oral and documentary has been in my opinion very correctly stated by him, when he says that it does not establish the existence of the alleged custom but on the other hand it disproves it. The documents relating to Pravarthi anubhavom grants which are grants for the performance of future services were rightly discarded by him as the resumption of such grants arises under the general law itself and not from any special custom. The numerous documents filed by the defendants including, as the Subordinate Judge says, many assignments, mortgages and court sales of holdings under Karamkari and Adimayavana and similar tenures, without having worked any forfeiture in fact, are in my opinion strong evidence on their side. I agree with the Subordinate Judge that on the other hand the documents filed on the plaintiff's side seem to lead to no inference of a conclusive character and they are entitled to little weight as against the evidence of the defendants. I am not discussing the documentary and oral evidence in detail as the Subordinate Judge has done so and I agree with his observations regarding it.
17. The complaint that the plaintiff was handicapped by not being given sufficient time to adduce his evidence seems to me to be entirely baseless. If he really wanted further time he should have applied to this Court for it; but he did not do so. As it is, I observe that he has adduced in evidence documents belonging to several big jenmis in South Malabar such as those of Guruvayoor Devaswom, Kavalappara Estate, Kuthiravattam Estate, Thiruvilwamala Devaswom, Theriprayar Devaswom and Thiruvanchikulam Devaswom besides those belonging to his own Zamorin's Estate.
18. I accept the Subordinate Judge's finding so far as it is in favour of the non-existence of the alleged custom on the evidence in the case. But in agreement with my learned brother I am of opinion that he is wrong in his finding that such a custom existed prior to 1896. Though the evidence now given does not go back further than 1896 there is no indication in it of any break or change in the custom at that date. It will therefore be a perfectly legitimate inference to hold that it indicates that the same state of affairs existed even prior to 1896. But the Subordinate Judge thinks that the statement about the incidents of the tenures in question in the sudder proceedings of 1856 and the opinion of Sir Charles Turner, CJ. in his well-known minute on the draft bill relating to Malabar land tenures justify the inference that the alleged custom existed in 1856 and later.
19. The sudder proceedings were brought to our notice at the former hearing and were given their due weight by us before we called for findings. There is nothing express in them in favour of the plaintiff's contention. As regards Karamkari tenures, it is not stated in them that they are even inalienable much less that they are resumable on alienation. I have already pointed out in my remand order that it is entirely illogical to infer a right of forfeiture of a holding on alienation and even inalienability of it from the mere existence of a right of escheat in the landlord on failure of the grantee's heirs. An estate terminable on the happening of an event does not thereby become inalienable. As I pointed out to the Learned Counsel for the plaintiff at the time of this hearing a life estate is such an estate; but nobody ever contended that it was therefore inalienable. We have in the mulgeni tenure in South Kanara an exact case of a permanent tenure where the right of escheat exists coupled with unrestricted alienability. As regards the adimayavana tenure, the text of the proceedings expressly says the land is not resumable except where it is given for performance of future services. That of course is not the case in the present suits. To rely upon a marginal note to say that such land is inalienable in such a case and to infer further from it that it is also resumable on alienation as the Subordinate Judge has done seems to me to be unsupportable. The Subordinate Judge also seems to have failed to keep in view the distinction between inalienability and resumability. The one does not follow from the other; the right of resumption and re-entry on alienation must be expressly given. See Parameshri v. Vittappa Shanbaga I.L.R. (1902) Mad. 157 and Netrapal Singh v. Kalyan Das I.L.R. (1909) All. 400 it cannot be inferred from inalienability alone.
20. The Sudder Proceedings do not thus in my opinion give any support to the Subordinate Judge's view. Even if it were otherwise I would have no difficulty in agreeing with my learned brother that we should not give them undue weight and treat them as conclusive. My learned brother has also dealt with the opinion of the learned Chief Justice in his minute and I fully agree with his view and have nothing further to add regarding it. The other authorities as observed by him are not in plaintiff's favour and I have already considered in my remand order the reported cases cited as bearing on the question before us.
21. In this state of the authorities, considering the evidence now adduced the only proper conclusion to come to in my opinion is to hold that plaintiff has failed to prove the existence at any time of a custom entitling the landlord to resume, on alienation, lands granted by him on Karamkari or adimayavana tenure where they are not proved to have been granted for performance of future services. In conclusion I would observe that it is to be regretted that the Subordinate Judge did not pay more attention to the observations in the remand order.
22. On the above view no decision on the question of waiver is necessary. I agree to the order proposed by my learned brother.