Sadasiva Aiyar J.
1. The defendants are the appellants. The suit was brought for redemption of a kanom mortgage of 3rd March 1896. The defence was that the transaction which is allowed to his kanom mortgage by the plaintiff is an irredeemable anubha am tenure affecting the lands. The plaintiffs' contention was that the Anubhavam (perpetual enjoyment right) created (or rather renewed) under the document. was only a rent charge of 125 Paras of paddy on the lands as remuneration for future services and that as the defendants neglected to perform the said services to the first plaintiff (the mortgagor and the grantor of the anubhavam right) during three years before suit, the defendants had forfeited the right even to the rent charge.
2. The District Munsif held (a) that the anubhavam right under the document Exhibit A of 1896 gave only a rent charge and did not affect the redeemability of the lands, and, (b) that it not being shown that the defendants have been called upon by the 1st plaintiff to perform any work obligatory under the service tenure of the defendants or that the defendants refused to perform any such work when so called upon, the defendants have not lost their right to the rent charge. He, therefore, decreed that on payment of the kanom amount and the value of the improvements the plaintiffs shall be entitled to get back the possession of the mortgaged lands subject to the following declaration in favour of the defendants, viz., that the 1st defendant as karnavan of the defendants' tarwad had an annual rent charge on the plaint property fur the 125 Paras of paddy due to his tarwad. The plaintiffs in their plaint (the 2nd plaintiff being the melcharthdar) claimed to set off against the know and value of improvements Rs. 200 as michavaram for the three years before suit, on the contention that the 375 Paras of paddy (at 125 Paras a year) which the defendants were entitled to appropriate as remuneration for their services in respect of their anubhavam tenure could not be claimed by them. The District Munsif disallowed the plaintiffs' above contention. On appeal, the learned District Judge agreed with the learned District Munsif that the 'anubhavam' tenure gave only a rent charge on the lands and not the right to perpetual possession of the lands themselves in the defendants' favour, fie, however, held that the defendants had 'a duty to perform' the services stipulated in Exhibit A and that it was 'admitted that they had not been performing those services for the last 24 years.'
3. He hence directed the plaintiffs to pay for redemption a smaller sure than was retentioned in the District Munsif's decree, the difference being the value of the 375 Paras of paddy which the defendants were entitled to appropriate as remuneration if they had performed the services during those 3 years.
4. As regards the first question, the nature of an anubhavam tenure has been considered in several cases in this Court. In Mana Vikrama v. Karnavan Gopalan Nair 30 M.SD 203, the following passage from Vythilingam Pillai v. Kuthiravattah Nair 29 M.S 501 is quoted with approval: 'The point to be borne in mind with regard to anubhavam is that it may be used with reference to tenure of land, and it will then prima facie import an irredeemable tenure, or it may be used with reference to a specified money or grain rent charged on the land, and in that case it will not imply any tenure in favour of the grantee.' The question whether the perpetual grant was of the land itself or of a rent charge in the land must, of course, depend upon the construction of each particular deed of grant. Where the remuneration is mentioned in the deed as a definite quantity of grain out of the produce of the land, the strong presumption arises that only a rent charge was grantee See Mana Vikrama v. Karnavan Gopalan Nair 30 M.S 203 If, on the other hand, the grantor reserves to himself a definite quantity of the produce as rent and the whole of the produce of the lands, subject only to the payment of that small definite rent, is to be enjoyed by the grantee, the presumption is that the land itself is held, under the service tenure. See Theyyan Nair v. Zamorin of Calicut 27 M.S 202. Having given my best consideration to the terms of the document Exhibit A in this case, I am of opinion that the lower Courts are right in their view that the remuneration for the service was as annual rent charge of 125 Paras of paddy and not the lands themselves. Mr. Madhavan Nair for the appellants strenuously contended that the 'anubhavam' tenure legally attached to the lands themselves, according to the true construction of a long, involved sentence found in the first portion of the document Exhibit A. But the document has to be read as a whole and the second portion clearly says that its was only the fixed quantity of 125 Paras out of the produce which was the subject of the anuhavam tenure. No doubt a grant should be construed in favour of the grantee and against the grantor in cases of doubt. See Bhojohari Das Adhikari v. Bhagabati Dasi 17 Ind. Cas. 494. But taking the document as a whole and having regard to the terms of the prior document, Exhibit B, which was merely renewed by Exhibit A, I do not feel any such doubt as regards the construction of Exhibit A. Mr. Madhavan Nair also relied upon the decision of a Bench of this Court in Krishna Iyer v. Muringa Malayil 32 Ind. Cas. 982, in support of his construction of the words of Exhibit A, but the construction of the terms of a particular document in a certain case is ordinarily of very little value as regards the construction of another document in a later case, unless the words of the two documents and the nature of the two transactions are identical or almost identical. In the case of Krishna Iyer v. Muringa Malayil 32 Ind. Cas. 982. the document was not a kanom document as in this case, but an ordinary anubhavam lease grant and the rent reserved by the grantor perpetually was the round quantity of 150 Paras. The learned Judges (Bakewell and Napier, JJ.) who decided that case distinguished the case of Vythilingam Pillai v. Kuthiravattah Nair 29 M.S 501 on the ground that in that case the document was a kanom document which is prima facie redeemable. In the present case also the document is a kanom document and hence (if other decisions and considerations of other documents are at all relevant) this case is more analogous to the case of Vythilingam Pillai v. Kuthiravattah Nair 29 M.S 501 than to Krishna Iyer v. Muringa Malayil 32 Ind. Cas. 982. I, therefore, reject this first contention.
5. As regards the second contention, I must say that the judgment of the District Judge on this point is rather unsatisfactory. The plaintiffs themselves stated in their plaint (paragraph 9) that neglect of the defendants in the management of duties arose only from 1909 and hence the plaintiff's claimed to set off only the michuvaram for the three years before suit. I cannot see where the learned District Judge gets an .admission by the defendants that the defendants had not been doing any services for the past 24 years. Again, the nature of those services is described in the document Exhibit A as (1) the reading of the pattolai and the doing of other works in the swarupam by the males of the defendant tarwad, and (2) the doing of some menial services by the females of the defendants' tarwad till the end of the deeksha of the succeeding Moppil Nair in the 1st plaintiff's tarwad, on the death of the preceding Moppil Nair. It seems to have been conceded that no occasion arose for any services to be performed by the females after 1909. The plaintiffs seemed to have relied upon the alleged neglect of the duties to be performed by the males of the defendants' tarwad, viz., the reading of pattolai and the doing of other works. Neither Court has given a distinct finding as to what those duties to be done by the males of the defendants' tarwad are, when they had to be performed and whether occasions arose for their performance in the three years before suit. The District Munsif says 'that defendants state that they had no service at all to perform from 1066 (1890-91) forwards. But that, however, is beside the point.' The District Judge says that the services appear to be mainly secretarial to the 1st plaintiff and 'that the services were to be done to the 1st plaintiff,' We are unable to decide the second Appeal finally till we get findings from the lower Appellate Court on the following issues:
(1) What are the services to1 be performed by the males of the defendants' tarwad to the 1st plaintiff and on what occasions have they to be performed? Did any such occasions arise during the three years before suit ?
(2) Were the males of the defendants' family called upon to do any such service and did they neglect to do so ?
6. Time will be six weeks for the submission of the finding and ten days for the filing of the memorandum of objections.
7. I agree and have nothing to add.
8. This second appeal coming on, for final hearing after the return of the finding of the lower Appellate Court upon the issues referred by this Court for trial, the Court delivered the following.
9. We accept the lower Appellate Court's finding.
10. We accordingly modify paragraph No. 4 of the lower Appellate Court's decree by substituting for the words 'stipulated in the kychit' the words 'as now found by the District Judge.'
11. As there has been no failure to render service, the reference to arrears of rent in the lower Appellate Court's decree is unnecessary. The words 'and that the amount due to the plaintiffs on account of the rent claimed is Rs. 200 and future rent from 1088 at the rate of 125 Paras of paddy a year' must be expunged from it.
12. The time for redemption is extended to six months from this date.
13. Each party will bear his own costs in this Court.