1. The first contention is that accounts for 1077 and 1078 were settled between the plaintiff and the 1st to 3rd defendants and the plaintiff was paid what was due to him.
2. The fact that the plaintiff did not seek in the plaint to re-open an account settled for those years alleging error or fraud, but alleged that he had received nothing at all for those years is the basis of this contention. He is not, it is claimed, entitled to question the correctness of the amount which the Courts find he received for those years. But the 1st defendant, himself both in his written statement and in his evidence, alleged that he had not rendered any accounts to the plaintiff and was not liable to do so ; and it is impossible for us, in the face of those statements, to hold that there was an account rendered and settled. The District Munsif finds the plaintiff precluded from questioning the result, because he had accepted payment after hearing the accounts read; that is hardly a finding that accounts were rendered and settled: and the District Judge, without recording an express finding on this question, holds that there is no reason why the plaintiff should not show that the accounts are incorrect. There are then no findings of the Courts below binding on us and we must hold on the 1st defendant's evidence that there has not been a settlement of accounts. For the appellant it is then contended that the District Judge should have found that the renewal fees collected in 1077 and 1078 were spent on paying debts incurred for temple construction some years before that. We must accept the finding on this point in paragraph 10 of the District Judge's judgment. It is also contended that the plaintiff should, have been given only 1/26th instead of 1/24th of the fund available for distribution, but that does not seem to have been made a subject of dispute in the lower appellate Court and we do not see reason to allow it to be raised now. The appeal in each case fails and is dismissed with costs.
3 .The memorandum of objections raises two questions : first, that the income from a certain piece of land should be taken to be the amount realisable as rent if the land were let out on Verumpattan tenure and not the amount brought into the accounts as income , derived from a kanom demise. The demise stands, the evidence shows, in the name of Vollodi, the agent of the 1st to 3rd defendants, and is for the benefit of the 2nd defendant's Worn. It has twice been held by the High Court that a kanom on the same land for a similar amount is a fraud upon the Sabha, and not binding on the members thereof. The District Judge has held the present demise valid because it was accepted by the haikars in a compromise, Exhibit II, but that acceptance does not bind the other members of the Sabha ; and is not sufficient evidence to show that the demise is binding. We think that the income, in which the plaintiff is entitled to share, must be calculated as if the land were let on Verumpattam tenure and must ask the District Judge to find the amount due on that footing. The second point raised in the memorandum of objections is as to the amount of expenditure ; it is contended that the District Judge should have relied on the decision, Exhibit W, in a suit of 1883, and not on accounts of later years. We see no reason to accept this contention.
4. The District Judge's finding should be returned on the evidence on record in six weeks. Seven days will be allowed for filing objections.
5. The only additional point raised in this case is that there was no claim for 1078 by this plaintiff. This contention is clearly unfounded. The second appeal is dismissed with costs.
6. On the memorandum of objections, the judgment follows that in the connected cases.
7. In compliance with the above judgment, the District Judge of South Malabar submitted the following
1. I have been directed by the High Court to return a finding on the following issue, viz:
What is the amount due to the plaintiff in each case on the footing that the income in which the plaintiff in each case is entitled to share must be calculated as if the land were let on Verumpattam tenure ?.
2. It appears from the Pattomchit Exhibit E that the total annual rent of the properties was 1080 paras of paddy from which must be deducted 120 paras of paddy and Rs. 4-6-0 paid by the kanom tenant, as this has been already taken into account in giving plaintiffs a decree for their share. To the balance 960 paras 10 per cent, has to be added for Paravasi.' The revenue on the lands is Rs. 63 (See the Commissioner's account), or 126 paras as it was conceded by the parties at the hearing of the appeal by my predecessor that the value of a para of paddy was 8 annas. The money purappad, Rs. 4-6-0, may be calculated at 9 paras. This leaves a net balance of 921 paras.
The plaintiffs in all the three suits are haikars, and it is not disputed that one-tenth of the paddy income is set apart for the haikars, the balance being divided equally amongst the haikars and karmis. Deducting one-tenth of 921 paras or 92 paras, the balance is 829 paras.
In the years 1077, and 1078 there were 9 haikars and 15 karmis. The share of each member was, therefore, approximately 34 1/2 paras. The plaintiffs in O. S. Nos. 14 and 15 arp, therefore, each entitled in addition to the amount allowed to them to 34 1/5 and one-ninth of 92 paras, i.e., 10 paras or 44 1/3 paras.
3. For the year 1079 in which, there were 11 kaikars and 17 kaarmis, the income 829 paras has to be divided among 28 persons. The share to which each is entitled is 37 1/2 paras i.e., 29 1/2 paras and one-eleventh of 92 paras i.e, 8 paras or in all 37 1/2 paras.
The plaintiff in 0. S. No. 16 only became a member in 1079. He is, therefore, only entitled to his share for that year, i.e., 27 1/2 paras.
4. I would, therefore, return a finding to the effect that in addition to the amount decreed, plaintiffs in O.S. Nos. 14 and 15 are each entitled to 44 1/2 paras for the years 1077 and 1078 and 37 1/2 paras for 1079, while plaintiff in O.S. No. 16 is similarly entitled to 70 1/2 paras for the year 1079.
The memorandum of objections filed by the respondents in S.A. Nos. 1202, 1203 and 1204 of 1907, coming on for hearing after the return of the above finding, the Court delivered the following
8. The appeals have been already dismissed, and on the memoranda of objections we accept the findings but as the plaintiff claimed only at the rate of 758 paras, we allow the plaintiff his share on that basis and modify the decree of the lower appellate Court. It is agreed that the plaintiff's share in S.A. No. 1202 will in these circumstances be Rs. 37 and in S.A. No. 1203 the same amount and in 1204, Rs. 15-8 in excess of the amount awarded to him by the lower appellate Court. These sums will be added accordingly.
9. There will be no order as to costs.