1. The question in this case is whether the Oorakam, a Devaswom, is entitled to redeem the property in suit. Prior to 1864 there was a simple Kanom by the then Ooralan in favour of the predecessor-in-title of the defendants. That document has been lost and, therefore, its terms can only be gathered from Exhibit 1. We are clear from the recital in it that the first transaction was a simple Kanom. Then in 1864, Exhibit I was executed by the then Ooralan. The question as to whether it confers a permanent and irredeemable right or whether it is an ordinary Kanom is one of some difficulty. The Munsif held it was a permanent tenure. The Appellate Court has differed from him. In our opinion the Munsif was right.
2. In the operative portion, the language employed is: 'You and your Anandravans may, as hitherto, hold the aforesaid properties for ever and ever.' As was pointed out in Neelakandhan v. Ananthakrishna Ayyar 30 M.p 61 : 16 M.L.J. 462 : 1 M.L.T. 426, these words would ordinarily import a permanent grant unless there are circumstances which indicate that the intention was different. In that case the learned Judges held that the clause which provided for the renewal of the Kanom every 12 years by a new document was a sufficient indication that the transaction was an ordinary Kanom. Mr. Krishnaswamy Aiyar contended that in the present case also those circumstances exist. We are unable to agree with him. Exhibit I provides that instead of having the renewal fee paid in 1876 the amount of it should be spread over 12 years and should be made payable along with the rent. There is also the provision that subsequent to 1876 the rant should be at the rate at which it was being paid before that date. Even though we may concede that the additional amount paid along with the rent during the first twelve years may be taken as the equivalent of the renewal fee, we are unable to hold that the payments after 1876 must also be regarded as renewal fees, because under the customary law of Malabar a renewal fee is not ordinarily fixed before hand. Further the registration charges and other perquisities which are generally paid along with the renewal fee, have not been mentioned in this document. Moreover a renewal fee is fixed by the mortgagor at the time of the re-grant with reference to the then state of affairs. In our opinion, what the parties intended was that the rent payable should be increased for all time to come as the temple was benefited by such an arrangement. We are, therefore, of opinion that the document should be treated as if it was a perpetual Kanom.
3. In this view the further question is whether it is binding upon the Devaswom. As was pointed out by the Judicial Committee in Palaniappa Chetty v. Sreemath Deivasikamony Tandara Sannadhi 39 Ind. Cas. 722 : 21 C.W.N. 720 : 15 A.L.J. 486 : 19 Bom. L.R. 567 : 44 I.A. 147 it is not competent to a trustee to grant away permanently trust properly. Therefore, we must hold that the permanent Kanom is not binding upon the plaintiff.
4. It was then argued by Mr. Madhavan Nair that even though the Kanom may not be binding, his dents have prescribed for a perpetual and irredeemable Kanom, and, therefore, they ere entitled to hold on as long as they like. He is undoubtedly supported by Baluswami Aiyer v. Venkitaswamy Naicken 40 Ind. Cas. 531 : 40 M.k 745 : 32 M.L.J. 24 in this contention. To the decision in Muthusamier v. Sree Sree Methanithi Swamiyar Avergal 19 Ind. Cas. 694 : (1919) M.W.N. 681 : 25 M.L.J. 393, relied on by the learned Vakil for the respondent, one of the Judges who decided Baluswami Aiyer v. Venkitaswamy Naicken 40 Ind. Cas. 531 : 32 M.L.J. 24 was a party, and the learned Judges in the latter case say that Muthusamier v. Sree Sree Methanithi Swamiyar Avergal 19 Ind. Cas. 694 : 38 M.p 356 : 13 M.L.T. 498 : (1919) M.W.N. 681 : 25 M.L.J. 393 is not good law. We are also of opinion that the estate held by a trustee should not be regarded as analogous to that of a widow. In Raja of Palghat v. Kannapra Nair Veetil 42 Ind. Cas. 22 : 33 M.L.J. 26 : 6 L.W. 195 : (1917) M.W.N. 552, to which one of us was a party, it was pointed out that the trustees constitute a chain of representation of the trust. That is not quite consistent with holding that each trustee holds an estate similar to that of a Hindu widow. Our attention was drawn to two decisions of this Court, namely, Ramunni v. Kerala Varma Valia Raja 15 M.P 166 : 5 Ind. Dec. 465 and Chirakkall Kovilagath v. Saidammadath Ayakomba 7 Ind. Cas. 253 : 8 M.L.T. 309 : (1910) M.W.N. 460 where under very similar circumstances it was held that possession will not be adverse, The learned Judges in the first of these oases point nut that subsequent possession under an invalid permanent lease must be referred back to the possession taken under the valid lease. That was also the view taken in Chirakkal Konilagath v. Sailammadath Ayakomba 7 Ind Cas. 253 : 8 M.L.T. 309 : (1910) M.W.N. 460. As regards Baluswami Aiyer v. Venkitaswamy Naicker 40 Ind. Cas. 531 : 40 M.P 745 : 32 M.L.J. 24 it is enough to point out that possession in that case began for the first time under the permanent lease itself. Mr. Madhavan Nair argued that as his clients and the subsequent trustees treated the subsequent enjoyment as traceable to a permanent right, they must be deemed to have prescribed for that right. How many intermediate Oora-lams there were and upon what understanding the Kanomdar and the Ooralams dealt with each other, are not clear. We have, therefore, resolved upon asking the lower Appellate Court to return a finding upon the question of adverse possession with reference to the observations contained in Ramunni v. Kerala Varma, Valia Raja (b) and Chirakkal Kovilagath v. Saidammadath Ayakomba 7 Ind. Cas. 253 : 8 M.L.T. 309 : (1910) M.W.N. 460. No further evidence. Six weeks for finding and 7 days for objection.
5. In compliance with the order contained in the above judgment the Temporary Subordinate Judge of Palghat at Calicut submitted the following
FINDING.--The case has been remanded to this Court for determination of the following issue raised in second appeal.
Whether the defendants acquired a permanent and irredeemable Kanom interest in the suit properties by adverse possession?
2. So far as the facts bearing on the issue go, the evidence is extremely meagre. All that appears is that the defendants' Tarwad entered into possession under a Kanom arrangement prior to 1864. Then a fresh document (Exhibit I) was executed by the plaintiff's then predecessor-in title confirming the original demise. Between the date of Exhibit I and the plaintiff's becoming trustee in Chingom 1088 (August September 1913), there were about 8 or 9 intervening trustees according to the defendants' first witness. The deposition of the plaintiff's first witness, Krishnan Embrandiri, is to the following effect: 'From 20 years' (sic) 'plaintiff had 3 or 4 predecessors.' This would give an average of one trustee every five years, which indicates an unusually rapid acceleration of life estates in the headship of the Thrikaikat Mutt to which is appurtenant the Oorakam Devaswom, the owner of the lands, Although there is no direct evidence on the point, I take it that subsequent to 1864 the trustee who granted Exhibit 1 and his successors dealt with the defendant on the basis of Exhibit I.
3. Exhibit II shows that within a month or two after the plaintiff's accession to the office his Kariastan has received arrears of rent according to the tenor of Exhibit I. Exhibit II refers to this document as 'the Saswathom deed.' This corroborates the view that Exhibit I evidences a permanent tenure, that being the interpretation which the parties themselves put upon it. Beyond this the evidence does not go, and it does not disclose any specific terms or covenants indicating any special understanding between the succeeding trustees and the Kanomdar, These being the facts, what is the legal position?
4. Mr. K. P. Raman Menon, who represents the plaintiff in this Court. based his arguments on the two decisions referred to in the order of remand and quoted also the rulings in Seshamma Chettati v. Chickaya Hegade 25 M.K 507 : 12 M.L.J. 119 Rairu Nayar v. Moidin 13 M.P 39 : 4 Ind. Dec. 737 and Ariyaputhira v. Muthukumarasawmy 15 Ind. Cas. 343 : 37 M.K 423 : 12 M.L.T. 425 : 3 M.L.J. 339 : (1912) M.W.N. 854. The respondent defendant's Vakil, Mr. K. Raman Nair, rested his arguments on the claim of prescriptive right set up in the High Court and he laid stress on the conduct of the parties shown by payment and acceptance of rent on the terms of Exhibit 1. The respective arguments advanced at the Bar do not, however, meet all the aspects of the case.
5. As regards the defendants' position, if it can be held that Exhibit I was executed merely because the deed under which the original demise was granted had crumbled to pieces by reason of age or use, and that the later document is a replica of the older document, it is unquestionable that the Kanomdar can successfully set up the acquisition by prescriptive right of a permanent tenure so as to counter the plaintiff's claim by means of the bar of limitation. In such a case, possession having been taken under the first document which itself would be invalid according to the present day view of the powers of a Matadhipathi, the enjoyment of the lands by the Tarward would have been under a hostile claim to hold as permanent Kanomdar and would, after 12 years, ripen into a legal title on such a basis. It will be sufficient to refer to the latest authorities laying down the law in the above sense, Rameshwar Malia v. Jiu Thakur 29 Ind. Cas. 337 : 19 C.W.N. 1082,Narsaya Udpa v. Venkataamana Bhatta 16 Ind. Cas. 53 : (1912) M.W.N. 870 : 12 M.L.T. 218 : 23 M.L.J. 260 S.A. No. 1465 of 1917; (1918) M. W. N. Week's cases, CLXVII). The earlier cases will be found collected in Mr, Justice Mookerjee's judgment in Iswar Shyam Chand Jiu v. Ram Kanai Ghose 10 Ind. Cas. 683 : 38 C.P 526 : (1911) 2 M.W.N. 281 : 21 M.L.J. l145 : 15 C.W.N. 417 : 9 M.L.T. 448 : 8 A.L.J. 528 : 13 Bom. L.R. 421 : 14 C.L.J. 238 : 38 I.A. 76 But such a defence is not open to the Kanomdar in view of the finding of their Lordships that the original Kanom was one of the usual simple kind The defendant, therefore, has to fall back on the change of position effected by Exhibit I. His contention is that whatever might have been the relations between him and the Devaswom represented by the Uralans prior to 1864, a permanent tenure has been created in that year by means of Exhibit I and both sides having accepted and acted upon it for more than half a century, his rights must be referred to the altered state of things and that for this reason his title by prescription must be recognised. The question at this stage becomes difficult as it lends itself to two different lines of reasoning.
6. For the Kanomdar it may be said that a question of prescriptive right is mainly to be judged by the animus possidendi--See Thuppan Nambudripad v. Ittichiri Amma 14 Ind. Cas. 168 : 37 M.K 373 : 11 M.L.T. 355 : (1912) M.W.N. 445, Muthaya Shetti v. Kanthappa Shetti 45 Ind. Cas. 975 : 34 M.L.J. 431 : 7 L.W. 482 : 23 M.L.T. 291 : (1918) M.W.N. 334.--and that the course of conduct of the parties since 1864 can only be explained on the footing that the defendant held as a permanent demises under Exhibit I and that this was known to and acquiesced in by the several Uralans. That possession in one right may be converted by mutual agreement into possession of another and a higher right has been laid down in Muthuharuppan v. Muthu Sumban 25 Ind. Cas. 772 : 38 M.K 1158 : 27 M.L.J. 497 : 16 M.L.T. 344 : (1914) M.W.N. 768 : 1 L.W. 754 On the other hand, there is the consideration in favour of the plaintiff that a hostile right should not be inferred where possession can be referred to a lawful title. The origin of the defendant's possession being traceable to the earlier simple Kanom demise, and the later permanent tenure being liable to be successfully attacked by the plaintiff as invalid, it can be argued that the character of the Kanomdar's possession must be referred to its inception under the simple Kanom right. I have looked into the authorities bearing on the subject and it appears to be clear that the solution of the question raised for determination is furnished by the principles relating to novation of contracts and the estoppels arising therefrom.
7. If Exhibit I were valid or even voidable, the defendant would undoubtedly be entitled to say that his possession for such a long period invests him with the right put forward by him. But Exhibit I has been found to be invalid in the sense that the plaintiff can treat it as a void transaction. If the defendant's possession arose for the first time under Exhibit I, even then it will be competent to him to advance the plea of acquisition of a permanent right by prescription But his possession began prior to Exhibit I and has continued uninterrupted all along. Exhibit I must, under the circumstances, be deemed to be merely an infructuous attempt to substitute for the original simple Kanom a saswatam tenure. The attempt at novation having failed, the law will relegate the parties to their original characters. As to the general rule reference may be made to Anantanarayana Iyer v. Savittri Ammal 13 Ind. Cas. 458 : (1912) M.W.N. 59 : 36 M.K 151 : 22 M.L.J. 231 : 11 M.L.T. 63, Ramjiban Shah v. Dhiku Singh 16 Ind. Cas. 246 : 16 C.L.J. 264 Mathura Mohan Saha v. Ram kumar Saha 35 Ind. Cas. 305 : 43 C.P 790 : 23 C.L.J. 26 : 20 C.W.N. 370.
8. Coming to the particular instances of the contractual relations between a mortgagor and a mortgagee and a landlord and his tenant, instances of the application of the rule will be found in Ariyaputhira v. Muthukumarasawmy 15 Ind Cas. 343 : 12 M.L.T. 425 3 M.L.J. 339 : (1912) M.W.N. 854, Ramunni v. Kerala Varma Valia Raja 15 M.K 166 : 5 Ind. Dec. (N.S.) 465 Chirakkall Kovilagath v. Saidammadath Ayakomba 7 Ind. Cas. 253 : 8 M.L.T. 309 : (1910) M.W.N. 460 The present case is not wholly a mortgage or wholly a lease but is a combination of both. See Silapani v. Ashtamurti Nambudri 3 M.P 382 : 1 Ind. Dec. (N.S.) 821 Gopalan Nair v. Kunhan Menon 30 M.P 300 : 2 M.L.T. 161 : 17 M.L.J. 189 Meenakshisundara Mudaliar v. Rathnasami Pillai 49 Ind. Cas. 291 : 41 M.L 959 : 8 L.W. 438 : 35 M.L.J. 489 : 24 M.L.T. 315 : (1918) M.W.N. 811.
9. Viewed as a mortgage, the following observations of Sadasiva Ayyar, J., will be found in point. Says his Lordship: 'The next contention of the appellant's Vakil based on the Limitation Act is not sustainable as, if the original mortgagee continued to hold possession as mortgagee owing to the alleged sale of 1893 being invalid and ineffective to convey to him the ownership in the equity of redemption in the A Schedule properties, he cannot by merely asserting possession as owner under the invalid sale convert his possession as mortgagee into possession as owner even granting that the mortgage' (? mortgagor) 'knew and acquiesced in his assertion' ''[Ariyaputhira v. Muthukumarasawmy 15 Ind. Cas. 343 : 37 M.P 423 : 12 M.L.T. 425 : 3 M.L.J. 339 : (1912) M.W.N. 854 In its aspect of a lease the claim founded on Exhibit I must fail in view of what has been held in the case in Ramunni v. Kerala Varma Valia Raja 15 M.P 166 : 5 Ind. Dec. (N.S.) 465 which is followed in Chirakkall Koailagath v. Saidamtnadath Ayakomba 7 Ind Cas. 253 : 8 M.L.T. 309 : (1910) M.W.N. 460
10. Exhibit I was in renewal of a prior Kanom under which the defendant was already holding. The prior demise must be taken to continue unless it can be shown that it was put an end to according to law. The only ground on which such a view can be taken must be rested on Exhibit I. The transaction, therefore, comes under the class of implied surrenders by operation of law. But the law both in England and in India is well-settled that such a surrender would be valid only in case the later transaction is legally operative. But if the new arrangement fails, the implied surrender would become void and old relations between the parties will revive and continue. The Indian oases have been referred to already. The English Law will be found stated in Halsbury's Laws of England, Volume XVIII, Section 1061. The matter, therefore, being concluded by the rules of estoppel, the principle of mutuality will shut the defendant's mouth as effectually from claiming a new right under the void transaction as it would prevent the plaintiff from approbating it for one purpose while reprobating it for another.
11. Judged from any point of view, I think it is not possible for the Kanomdar to set up a hostile now right 'referable to the invalid instrument of 1864.
12. The question of the legal effect of the payment and acceptance of rent on which some emphasis was laid on behalf of the Kanomdar does not merit much notice. The rent paid appears to have been on the basis of the earlier demise. Further, the mere payment of rent under the invalid transaction repudiated by the plaintiff is of no consequence, as will be seen from Baluswami Aiyer v. Venkitaswamy Naicken 40 Ind. Cas. 531 : 40 M.P 745 : 32 M.L.J. 24. Exhibit II shows that after plaintiff became trustee there was a payment of some arrears of rent. But he alleges that he came to know of the demise in question only subsequent to his accession to office and considering the few weeks' interval between the plaintiff's becoming the trustee and the payment evidenced by Exhibit II, I have no doubt that he could have had no knowledge of it so as to bring in the question of acquiescence or ratification. The plaintiff appears to have acted in repudiation of Exhibit I as soon as he came to know of it.
13. It has to be noticed that while the plaintiff denounces Exhibit I the suit itself is so framed as to claim redemption in foot of the permanent Kanom. Apparently, the plaintiff's position is that the terms of both the Kanoms were the same as regards the incidents of the Kanom amount and Purapad and that it would only be a theoretical distinction to hold that be should sue to redeem in terms the earlier Kanom. However this may be, I am rot called upon to deal with the question.
14. My finding on the issue is in the negative.
1. This second appeal coming on for final hearing after the return of the finding of the lower Appellate Court upon the issue referred by this Court for trial, the Court delivered the following
2. We accept the finding of the Subordinate Judge, who has written a clear and well-considered judgment. The result is that the defendants' possession taken under the simple Kanom continued even after the execution of Exhibit I and consequently no prescriptive right in respect of the terms of Exhibit I was acquired by the defendants. Mr. Madhavan Nair contends that there must be a further finding whether on the date of Exhibit I the previous Kanom was subsisting: We are satisfied from the recitals in Exhibit I, that it was subsisting in 1864. In this view, the suit for redeeming that Kanom is not barred: The decree of the lower Appellate Court will be confirmed on this ground. But seeing that the decree in this Court is based on the ground that the plaintiff is entitled to renew the old Kanom (which was not the case put forward by the plaintiff in either of the Courts below), we direct each party to bear his own costs throughout. Time for redemption will be six months from this date.