Seshagiri Ayyar, J.
1. The first question in this case is whether there is a denial of title, and if so, does the denial cover all the items in the suit or only some. The second question is, supposing there is a denial, whether, having regard to the nature of the tenure, forfeiture is incurred. On the first question the Subordinate Judge has made some obvious mistakes which have confused the issue. He is clearly wrong in saying that the denials in Exhibits II, III and IV are only repetitions of the denial in Exhibit D. Exhibit D relates to item No. 1. Exhibits II, III and IV relate to items 2 and 3, and the nature of the denials in these two sets of documents is altogether different. Exhibit D will be considered later on. As regards the other documents we may first deal with Exhibit II, as observations with regard to one of them would apply to the others as well. Exhibit II is a sub-lease executed to the defendants. In that, the sub-lessee uses the expression with reference to the property demised, 'belonging to you the jenmi.' In another place the language used is, 'without the jenmi's permission.' Mr. Menon argued that as the defendant accepted these documents without raising objection to the language employed, he must be deemed to have tacitly assumed the role of a jenmi, and to have denied the title of the plaintiff. This seems to be a very far-fetched suggestion. It is well understood in this Presidency, that the denial must be brought home to the knowledge of the landlord and it must be unequivocal and dear. In Kemalooti v. Muhamed I.L.R. (1918) Mad. 629, and in Rama Aiyangar v. Anga Gurusami Chetti (1918) 8 L.W. 109, this principle was distinctly stated. See also Venkatachariar v. Narasimha Iyengar (1918) M.W.N. 846. Here, the defendant did no act which can be said to amount to a denial of the title of his landlord. It has not been pointed out to us that the landlord was made aware of any denial of title by the defendant. Under these circumstances the receipt and retention of a document by the defendant in which he is spoken of as the jenmi could not operate as a denial of the plaintiff's title, Therefore, so far as items 2 and 3 are concerned, the decision of the lower Appellate Court should be confirmed, though not for the reasons given by it.
2. The case as regards item 1 is different. The alleged denial is contained in Exhibit D. That was a claim petition presented in the year 1876 by the defendants' predecessor-in-title. The occasion for this claim was an attempted sale of the property in execution of a decree against the plaintiffs' predecessor-in-title. In the claim it was stated that the property should not be sold as the 'jenm right of the devaswam on this paramba is barred by limitation.' This is in effect denying the title of the jenmi to the property. In Foa on Landlord and Tenant, it is stated that the setting up of a prescriptive title would amount to a denial of the landlord's title. The decision in Neall v. Beadle (1912) 107 L.T. 646 is referred to. Although that judgment is not quite explicit on the point, it stands to reason that where a tenant impeaches the title of the landlord on the ground that there is no subsisting title as the property vested in him by virtue of adverse possession, such an attitude should be regarded as amounting to a denial of title.
3. Now comes the important question, whether having regard to the nature of the estate in the possession of the defendants such a denial would entail forfeiture. It is now well established in this Presidency, following the Privy Council ruling in Abhiram Goswami v. Shyama Charan Nandi I.L.R. (1909) Cal 1003, that a perpetual lease can be forfeited by the tenant denying the title of the landlord. In the present case the defendants' claim that they have been in possession of the property for a very long time and that they have made improvements upon the property. The plaintiffs' allegation is that the properties in suit belong to the devaswam, of which the plaintiffs are Uralers, and that they were leased to the tarwad of the defendants on kudima jenmam. As to when it was so leased, and whether it was within the memory of man, does not appear. The findings of the Court below, which may be accepted, are that the property belonged originally to the plaintiffs' devaswam and that the first defendant's predecessors must have come into possession at some time under the devaswam. The contention of the respondents is that a kudima or adima right is not, resumable under any circumstances. There are no considered decisions upon the point. In Thunkunni Achan v. Manchu Nair (1915) 2 L.W. 102, it was held that an assertion of jenmam right by the kudima will not work a forfeiture so as to enable the landlord to eject him. The decision cited by the learned judges is not applicable to the present case. On the other hand in Mahomed Hussain Sahib v. Nagaratnam Pillai S.A. No. 1413 of 1918 (unreported) Benson and Krishnaswami Ayyar, JJ., confirmed a judgment of Mr. Phillips as District Judge in which he held that an adima right can be forfeited by denial of title. The judgment of the High Court simply says: 'We think it is a perpetual lease. The Second Appeal is dismissed with costs.' In Kunhambu Vashunavar v. Kunhi Moya S.A. No. 987 of 1904 (unreported) Benson and Wallis, JJ., upheld the decision of Mr. Venkatramana Pai, District Judge, who refused to disturb the kudima tenant from his holding, although there had been a denial of title. In the judgment of the High Court there was no discussion of the question.
4. A consideration of the nature of the tenure suggests that this case cannot be disposed of without further inquiry. In Graem's Glossary an adima grant is described thus:
The adima grant of a paramba or garden was also often conferred by a superior lord, or tala Udaya Tamburan, upon his own Adiyan or vassal; but here it was in the nature of an Inam or gift, no consideration having been received for it by the proprietor. An annual trifling tribute of superiority is, however, reserved to the proprietor to prevent the garden being entirely alienated. The garden reverts to the proprietor on failure of heirs on the part of the adiyan, and if the adiyan takes part with the enemies of his patron, the latter may resume the property. Under any other circumstances the adiyan cannot be dispossessed, and he has the right of burial within the garden.
In this (describing a kudima grant) the laud is made over in perpetuity to the grantee, either unconditionally as a mark of favour, of on condition of certain services being performed. The terms adima and kudima mean a slave, or one subject to the landlord, the grant being generally made to such persons. A nominal fee of about two fanams a year is payable to the landlord to show that he still retains the proprietary title. Land bestowed as a mark of favour can never be resumed: but where it is granted as remuneration for certain services to be performed, the non-performance of such services, involving the necessity of having them discharged by others, will give the landlord power to recover the land. The non-payment of the annual fee will form no ground for ousting the grantee, but it will be recoverable by action. The hereditary property of Native Princes cannot be conferred on this tenure, the ruling Prince having only the right of enjoyment during life without power to alienate. (Proceedings of the Court of the Sadder Adalat No. 18, dated 5th August 1856.)
5. Logan in his Malabar Law accepts the above description as correct. In the report; submitted by the Malabar Land Tenures Commission the above quotation is accepted as correctly defining the kudima and adima tenures, The question in this case is whether the grant was made for past services or for future services. If the former, apparently the tenure cannot be resumed. If the latter, there can be no question that for failure to perform the services the lands can be resumed. It may be taken that the denial of title is tantamount to a denial to render services. Therefore, before finally deciding the case, it is necessary to call for a finding whether the devaswam granted the lands in question to the defendants' tarwad for past services or for future services.
6. A further question must also be considered by the lower Court. Exhibit D is dated 1876. Since its date, it was suggested, the devaswam has received the prescribed rent and has therefore waived its right to enforce the forfeiture. There is no finding whether the devaswam was aware of its right to eject the defendants' tarwad on account of forfeiture for denial of title. The difficult question whether the landlord is entitled to enforce the forfeiture after a considerable period of time, even though he was aware of it and acquiesced in the tenant holding on as if there had been no forfeiture, need not be discussed at this stage. The lower Appellate Court must be asked to turn findings on these questions on fresh evidence, if any, tendered within three months from this date. Seven days are allowed for objections.
7. In obedience to the order contained in the above judgment, the Temporary Subordinate Judge of Tellicherry submitted findings on the following three issues:
(1) Whether the devaswam granted the lands in question to the defendants' tarwad for past services or for future services.
(2) Whether the devaswam has received the prescribed rent and has thereby waived its right to enforce the forfeiture.
(3) Whether the devaswam was aware of its right to eject the defendants' tarwad on account of forfeiture for denial of title.
8. His finding on issue (1) was as follows:
That the grant in question is not one made for future services and that there is no evidence to show that it is one made for past services.
9. His findings on issues (2) and (3) were as follows:
I, therefore, find issue (2) in the negative and on issue (3), I find that the devaswam became aware of its right to eject on account of forfeiture of the denial of title only in 1912.
10. This Second Appeal coming on for final hearing after the return of the findings of the lower Appellate Court the Court delivered the following.