S. Mohan, J.
1. The plaintiff is the appellant in this second appeal which arises out of a suit for redemption filed by him as O.S. No. 688 of 1970 on the file of the District Munsif of Kuzhithurai. The averments in the plaint are as under:
2. The suit property originally belonged to Kosseri Manakkal Madam. It partitioned the same in 1953 and it was allotted to Nara-yana Namboodiri and Sankaran Namboodiri. A sale deed was executed in favour of the plaintiff on 22nd December, 1968 under Exhibit A-3. Thus the plaintiff became the owner of the property. The ancestors of the plaintiffs vendor Sankaran Namboodiri demised the suit it property in favour of Nagabharanam Raman and others of Marukathala Veedu of Arashkulam Desam on 10-5-1091 (M.E.), for 1,155 fanams under Exhibit A-1. The document is described as kanam, but the tenure of the plaint schedule property is Sripandaravaka. Even though Exhibit A-1 is described as kanam, it has to be construed as a mortgage deed and the demisees are only the mortgagees under the Madam. They paid: mortgage right devolved upon the defendants and they are in possession of the suit property only as mortgagees. As per the mortgage deed the annual pattom for the suit property was fixed as 2 1/2 fanams with cadjans and 3 1/2 fanams in cash. The michavaram due to the Madam per year is 6 fanams. Exhibit A-1 further provides that the mortgagee should pay the sirkar tax for the suit property and should get the document renewed at the end of 12 years from 10-5-1091 (M.E.). So the mortgagees are entitled to be in possession till 10-5-1103 (M.E.). From that date the mortgagor has a right to redeem. Since the defendants are in possession and enjoyment only under the deed of mortgage, they are bound by the terms of the deed. The michavaram due to the Madam has not been paid and the arrears of michavaram from 1135 (M.E.) is claimed in the suit with interest at 12 per cent. The suit has been filed on 2nd January, 1969, within the period of limitation.
3. Defendants 1 to 3 filed a written statement contending as follows:--The plaintiff has no title to the suit property. Exhibit A-3 cannot convey a valid title since the vendors themselves had no title to convey and they were not competent to execute the sale deed in respect of the suit property. As a matter of fact, there are several other adult members in the Malayala Brahmin III on who did not join in the execution of Exhibit A-3. Besides, the said III on has no proprietorship over the property. It has got right only to realise the michavaram and other dues stipulated in the document and cannot claim recovery of possession. The suit property was demised to the ancestors of defendants 1 to 3 on kanam in ancient days. Those kanams were being renewed as per the law in force. The last renewal was under Exhibit A-1. At the time when the kanam deed Exhibit A-1 was executed it was the Janmikudiyan Regulation of 1071 (M.E.) which governed the rights of parties. Further, it was the customary law then prevailing in Travancore, as interpreted by the Travancore High Court, that governed the rights of parties. Subsequently the Jenmikudiyan Amendment Act was promulgated, which provided for fixation of a uniform annual payment called jenmikaram. The rights and obligations as between the grantor of the kanam and the grantee of the kanam were governed by that statute and the customary law prevailing in Travancore area at that time. The plaint kanam is an irredeemable transaction. It is neither a mortgage nor was it intended to be a mortgage. Under the kanam deed, Exhibit A-1, the ancestors of defendants 1 to 3 were liable to pay the periodical payments every year and also adukuvathu once in 12 years. Since the latest renewal was of the year 1091, the next renewal was due in 1103. For the renewal fee due in 1103 and for the proportionate amount of renewal fees due in 1110 (M.E.) the illom filed O.S. No. 209 of 1110 on the file of the District Munsif's Court, Kuzhithurai, and the illom realised the amounts from the ancestors of defendants 1 to 3. The present first defendant was the minor third defendant in that suit. In O.S. No. 809 of 1110 the plaintiff was Vasudevan Namboodiri, the manager and kamavan of the illom at that time. There was no prayer for redemption, in spite of the fact that the suit was filed after 19 years. This would not have been so had it not been for the fact that the mortgage is an irredeemable mortgage. Even assuming that Exhibit A-1 is a kanam which is a redeemable mortgage, the present suit is barred by reason of the suit O.S. No. 209 of 1110 and Order 2, Rule 2, Civil Procedure Code. On this ground as well, the suit is not maintainable. By reason of the Janmikudiyan Amendment Act, the right of the illom is to recover jenmikaram. That right has been put an end to by the Jenmikaram Abolition Act. On 22nd December, 1968, namely, the date of Exhibit A-3, the illom or the plaintiff did not acquire any right. The family of defendants 1 to 3 has been dealing with the property as full owners to the knowledge of Kosseri Madam for more than 12 years. Such possession is adverse. Where, therefore, Kosseri Madam lost its right even if any, by adverse possession and prescription of the family of defendants 1 to 3, the plaintiff could have no cause of action to file the suit. The suit is barred both by reason of limitation and estoppel. The plaintiff would not be entitled to michavaram. Hence it is liable to be dismissed.
4. The learned District Munsif, Kuzhithurai, on a consideration of the oral and documentary evidence, came to the conclusion that Exhibit A-1 was a redeemable mortgage and, therefore, he passed the preliminary decree for redemption and recovery of possession on deposit of Rs. 162.10.
5. Aggrieved by the preliminary decree, A.S. No. 879 of 1977 was preferred to the learned Subordinate Judge of Kuzhithurai. Holding that the transaction under Exhibit A-1 was an irredeemable kanam in favour of the predecessor-in-interest of the defendants, he reversed the judgment and decree of the trial Court and dismissed the suit. Hence, the second appeal.
6. Learned Counsel for the appellant urges that the interpretation placed by the lower appellate Court on Exhibit A-1 as an irredeemable kanam is incorrect. As to whether a particular document is a kanam or lease has to be determined with reference to the terms of the document. The finding that the Janmi Kudiyan Act of 1109 (M.E.) would not apply to the suit property is also not correct. Kanam document has been construed as a redeemable mortgage in Godananda Brahmananda Bhoothi Swamiar v. Kora Thommi (1954) K.L.T. 679. Similarly, that it is redeemable was dealt with in Panangat Unneeran's son Ayyappan and Anr. v. Pozhankevil Thekkemadathil Vengedeswara Naikkan and Anr. : AIR1963Ker309 at 310. The fact that the transferee was obliged to pay michavaram is again a pointer to hold that in lieu of enjoyment this amount comes to be paid. Where the document, as in the instant case, shows the intention was to create a mortgage providing for successive renewals, the ruling reported in Narayanaru v. Kanniammal and Ors. : AIR1973Mad471 , will come into play. Kanam in respect of Sreepandaravaka lands is not unknown. The fact that in the earlier suit O.S. No. 209 of 1110, redemption was not asked for is not a ground to non-suit the plaintiff.
7. In opposition to this, learned Counsel for the respondents would state, in the absence of an element of debt, which is essential for a-mortgage, kanam can be construed as a lease, as laid down in Thiruthiyil Unniri Kutti v. Narayana Chettiar and Ors. : AIR1929Mad777 . As to the meaning of kanam as a lease, the ruling in K.K. Narayanan Nambudripad v. M.N. Krishna Pattar and Ors. (1914) M.W.N. 160 : 26 M.L.J. 348, may be referred. The fact that such kanam is lease is evident from Vasudevan Nambudripad v. Valia Chathu Achan and Ors. ILR(1901) Mad. 47 : 10 M.L.J. 321. Such a provision having irredeemable clauses would not amount to a clog is also apparent from Kuttikutte v. Kunhikavamma (1918) M.W.N. 235 : 7 L.W. 119. Whether a provision for irredemption would amount to a clog or not was never decided in Lachuma Goundan v. Pandiyappan : AIR1951Mad679 . In Mathavan Kesavan v. Padmanabhan Narayanan Bhattathiri and Ors. (1915) 5 T.L.J. 265, it has been categorically laid down that such a provision was possible in view of the customary law that was prevalent. Kanam in respect of pandaravaka lands has been recognised by a few decisions of this Court as seen from S.A. Nos. 1261 of 1956, following S.A. No. 1123 of 1956.
8. Having regard to the above arguments, the only question that arises for my consideration is whether Exhibit A-1 contains a clause for renewal at the end of every 12 years. It is stated therein:
9. It is essential, in every mortgage there must be an element of debt. The fact that Exhibit A-1 is described as a kanam would necessarily require to be decided as to what is the character of the document. Kanam leases were recognised in this part of the country. The first of the rulings is the one reported in Vasudevan Nambudripad v. Valia Chathu Achan and Ors. ILR(1901) Mad. 47 : 10 M.L.J. 321 . it was stated by a Full Bench of this Court:
It may be doubted whether a kanam demise can be regarded as a purely agricultural lease. It always, we believe, in the absence of contract to the contrary, carries with it the right to erect a dwelling-house and appurtenances on the land, and to plant cocoanut and other trees on any land not already devoted to grain cultivation. We do not, however, wish to suggest that the Transfer of Property Act, of its own force, applies directly to the present case, but the rules in the Act to which we have referred are, we think, founded on reason and equity and may properly be adopted as a statement of the law which we ought to apply to the case before us. It must be remembered that the rights of a kanam-tenant in Malabar have always been much higher than the rights of an ordinary lessee. He is, inter alia, absolutely entitled to make improvements and to receive compensation for them when turned out of the holding and he is not at liberty to contract himself out of the right.
10. In K.K. Narayanan Nambudripad v. M.K. Kristna Pattar and Ors. 1914 M.W.N. 160 : 26 M.L.J. 348, the question arose as to the rights of the tenant in relation to the plants sown or planted under the Malabar Compensation for Improvements Act. There again it was a kanom lease. In the same volume at page 618 Chundam Veettil Pambayottal Kader Kutti v. C.P.M. Muhamed (alias) Imbichi 1914 M.W.N. 618 : 24 I.C. 127, it was held that kanom is an anomalous mortgage within the meaning of Section 98 of the Transfer of Property Act. In Kuttikatte v. Kunhikavamma 1918 M.W.N, 235 : 7 L.W. 119, it was held at page 237:
As regards the second point we have the ruling in Neelakandhan v. Anantaktishnu IyerILR 1907 Mad. 61 : 16 M.L.J. 462, that the provision for perpetual renewal is invalid but in that case the document under consideration was executed before the passing of the Transfer of Property Act, and it was held unnecessary to express any opinion as to the effect of Section 98 on such covenants. In Gopalan Nair v. Kunhan Menon ILR(1907) 1 Mad. 300 : 17 M.L.J. 189, the learned Chief Justice (then Wallis, J.), expressed an opinion that a covenant for perpetual renewal in a kanom deed governed by the provisions of the Transfer of Property Act, would not be invalid, as kanom is an anomalous mortgage within the meaning of Section 98 of the Transfer of Property Act. A perpetual kanom was recognised by this Court so long ago as 1871 vide Nattal Unni v. Edyalath Thathan Nambudri (1869-1870) 5 M.H.C.R. 258, and was held to be valid in Raman Nair v. Kunhikalandar Mosaliar 1915 M.W.N. 793 : 2 L.W. 941.
No doubt a mortgage usually implies a possibility of redemption, but in the present kanom I think that possibility is contemplated in case of forfeiture of the demise, if the demise were forfeited for any reason, such as refusal to pay renewal fee for every 12 years. I do not think the jenmi could enforce the forfeiture without paying up the mortgage amount, and in this contingency we discern a possibility of redemption and it also may account for the enumeration of the trees in existence at the time the deed was executed.
I see no reason therefore for differing from the opinion frequently expressed in. this Court that a kanom is an anomalous mortgage within the meaning of Section 98 of the Transfer of Property Act. This being so, the conditions, even though they constitute a clog on redemption, can be enforced. I would therefore dismiss this appeal with costs of the 1st respondent.
In Thiruthiyil Unniri Kutti v. Narayana Chettiar and Ors. : AIR1929Mad777 , it was categorically laid down that a kanom does not involve an element of debt. It was stated:
A bargain for kanom is not a contract for lending or borrowing money but one for land. It is a contract for a well-known tenure of land prevalent in the west coast and subject to well recognised incidents. The fact that one of the incidents of the tenure is that the kanom tenant advances money to the jenmi and there are stipulations for the return of the sum or suck portion of it as is left after settling of arrears of rent at the termination of the tenure is not sufficient to make the contract one of borrowing or lending and the rule against granting of specific performance of contracts to lend or borrow money has no application to contracts to grant kanom.
11. One of the most important judgments in this regard is what is reported in Mathavan Kesavan v. Padmanabhan Narayanan, Bhattathiri and Ors. (1915) 4 T. L.J. 205 . It was stated as follows:
Both the Courts below hold that the demise Exhibit A contains all the incidents necessary to construe the deed to evidence an irredeemable kanom. On a perusal of Exhibit A, we are satisfied that the concurrent finding on this point of the Court below is correct. The lower appellate Court has in spite of its finding allowed redemption to the plaintiffs, holding that irredeemable kanoms cannot be created in respect of Pandaravagai lands. No authority has been cited in support of this restriction. The Jemni and Kudiyan Regulation relates, no doubt, to Jenmom lands, but it does not prohibit parties from creating irredeemable kanoms regarding other kinds of lands if the contracting parties so desired. The effect of the ruling in Narayanan v. Thrivikramaru 19 T.L.R. 47, is that it is within the rights of the contracting parties to create irredeemable kanoms in respect of lands other than Jen-mom lands to wit in the particular case, Pandaravagai Kudi Jenmom lands, The lower appellate Court has brushed aside without proper reasons the cogent arguments advanced on behalf of the defence that the intention of the contracting parties to Exhibit A was to create an irredeemable kanom. We are satisfied on a peruusal of the document Exhibit A and from the course of conduct of the parties proved in the case that the parties to the demise specifically intended to create an irredeemable kanom and not merely a simple mortgage.
Therefore, if really the parties intended that the document should provide for an irredeemable mortage, certainly it will be open to them to do so even with regard to these lands, as seen from the above ruling.
12. One important factor which requires to be noted is whether the conduct of the parties would bring out the intention of the deed being a redeemable kanom. Earlier, the land owner filed a suit for recovery of possession in O.S. No. 209 of 1110 (M.E.) on the file of the District Munsif's Court, Kuzhithurai. The decree is marked as Exhibit B-7. The failure to pray for recovery of possession would undoubtedly go to show that the intention of the parties was to create an irredeemable mortgage. Otherwise the plaintiff therein would not have been content with praying for a money decree alone. In Godananda Brahmananda Boothi Swariar v. Kora Thommi 1954 K.L.T. 679, it has been laid down as follows in paragraph 5:
Thus the only question for decision in these two appeals is whether the tenure created under the document sued on is a kanom demise coming within the scope of the Travancore Jemni and Kudiyan Act. The most essential condition to be satisfied to bring the demise under this Act is that the property demised must be jenmom land as defined in Clause (1) of Section 3 of the Act. That definition is as follows:
'Jenmom land' means land (other than Pandaravagai, Sreepandaravagai, Kandukrishi or Sirkar Devaswom Land, recognised as such in the Sirkar accounts) which is either entirely exempt from Government tax or, if assessed to public revenue, is subject to Rajabhogam only, and the occupancy right in which is created for a money consideration (kanom) and is also subject to the payment of michavaram or customary dues and the periodical renewal of the right on the payment of renewal fee.
It is significant to note that all varieties of Pandaravagai lands are excluded from the definition of Jenmom lands. Sreepandaravagai lands, Kandukrishi lands and Sirkar Devaswom lands recognised as such in the Sirkar accounts are also excluded from the definition of Jenmom lands. In the documents sued in each of the two suits under consideration, the property is described as Pandaravagai Kudi Jenmom property. The question therefore is whether Pandaravagai Kudi Jenmom land is also jenmom land as defined in the Jenmi and Kudiyan Act. The lower Courts have answered this question in the affiramative and the decision in Brahmananda Theertkar v. Krishna Pillai 1945 T.L.R. 221, has been relied on in support of such a conclusion. No doubt the document that had to be construed in that case had described the property as Pandaravagai Kudi Jenmom property and it was ruled by the High Court that the property demised was jenmom land and as such the demise was a kanom demise coming under the Jenmi and Kudiyan Act. A careful reading of that decision shows that the conclusion arrived at in that case was justified by the evidence that had been adduced to show that at the time of the original demise the property was really jenmom land and that the plaint document was only a renewal of the earlier kanom demise. In view of such evidence the Court held that the mere description of the property as Pandaravagai Kudi Jenmom in the renewal deed could not affect the nature of the original demise which was a kanom demise coming under the Jenmi and Kudiyan Act. In that case it has not been ruled as a general proposition that Pandaravagai Kudi Jenmom lands are the same as Jenmom lands as defined in the Jenmi and Kudiyan Act. On the other hand, the distinction between the two categories of Kudi Jenmom lands, viz., Pandaravagai Kudi Jenmom and Kudi Jenmom Inam lands has been clearly explained in that case and it has been pointed out that Kudi Jenmom Inam lands have been recognised from time immemorial as a category of jenmom land coming within the definition given in the Jenmi and Kudiyan Act. The consequences of an absolute alienation of Jenmom properties is that they cease to be jenmom lands thereafter, but are transferred to the head of Pandaravagai lands in the Sirkar accounts and are charged to one-fourth assessment. Thereafter they are designated as Pandaravagai Kudi Jenmom lands and are recognised in the Sirkar accounts as one variety of Pandaravagai lands. Lands which have thus lost their characteristic feature of jenmom land as being wholly exempt from Sirkar tax or only subject to the payment of Rajabhogam, cannot thereafter be deemed to be jenmom properties. To constitute a demise as a kanom demise coming under the Jenmi and Kudiyan Act, it is necessary that the property must retain the character of Jenmom land even at the time of the demise. This condition is not satisfied by the plaint document in these two cases because even prior to the date of the documents the properties had become Pandaravagai Kudi Jenmom lands falling outside the definition of 'jenmom land' and the demise was not of any jenmom land but only of Pandaravagai Kudi Jenmom land. It follows, therefore, that the demise under these documents cannot amount to a kanom demise coming under the Travancore Jenmi and Kudiyan Act and as such there is no force in the contention that the plaintiff is entitled only to recover the jenmikaram in respect of these properties. No question of assessment of jenmikaram can arise in respect of a demise which is outside the scope of the Jenmi and Kudiyan Act. In respect of such demises the rights and liabilities of the parties have to be regulated by the terms of the contract embodied in the deed of demise. It is clear from a perusal of the plaint document in each of these cases that the parties have not created an irredeemable tenure by agreement. The provision for renewal will not by itself be sufficient to create such an irredeemable tenure. That provision will be satisfied and exhausted with the grant of one renewal and thereafter the owner of the property will be entitled to enforce his right of redemption.
13. Again, in Panangat Unneeran's Son Ayyappan and Anr. v. Pozhankevil Thekkemadathil Vengadeswara Naikkan and Anr. : AIR1963Ker309 , the tests to determine the nature of transaction between a kanam and a mortgage have been laid down as under:
'Kanam' has been variously defined. Sundara Iyer in his Malabar and Aliyasanthana Law, at page 290, observes as follows:
'Kanam' is described in the Sudder Court proceedings as mortgage with possession, the mortgagee recovering interest on the money he has advanced from the produce of the land and paying the net profits (michavaram) to the landlord. It thus partakes of the character of both a lease and a mortgage. Sometimes the one character predominates, sometimes the other. In a kanam lease, the lease is the substantial thing, the security being a minor matter. In the case of a kanam mortgage, the amount advanced is substantial, the michavaram being but trifling. This was the view propounded in Silapani v. Ashtamurthi ILR(1881) Mad. 382 . The question that arose was one of limitation. As the parties had treated the transaction as one of mortgage, their Lordships applied Article 148. But since then all the kanams have been treated as mortgages'. The learned author quotes some rulings in support of the proposition that kanam is more in the nature of a mortgage than a lease. Then he continues:
Tenures resembling kanam are to be met with elsewhere also but the special feature in Malabar is that kanam tenure is the ordinary mode of enjoying land with the territorial magnates so that it is regarded in much the same light as leases from year to year elsewhere'.
Section 2(18) of Act, IV of 1961, defines what a kanam is:
'Kanam' means the transfer for consideration of money or in kind or in both, by a landlord of an interest in specific immovable property to another for the latter's enjoyment, whether described in the document evidencing the transaction as kanam or kanapattam, the incidents of which transfer include:
(a) a right in the transferee to hold the said property liable for the consideration paid by him or due to him;
(b) the liability of the transferor to pay to the transferee interest on such consideration unless otherwise agreed to by the parties, and..., So, it is clear that kanam is a transfer of an interest in the property for its enjoyment. Although the distinction between a transfer for enjoyment and a transfer by way of security is real and material, to say that the distinction between a kanam and a mortgage lies in this will not carry us very far in construing a particular document. We have still to decide the further question whether the security or the lease element predominates and, that will depend ultimately upon the intention of the parties gatherable from the other terms in the document. The Supreme Court has laid down this principle in Ramdhan Puri v. Bankey Bihari Saran : 1SCR1085 :
'The only guiding rule that can be extracted from cases on the subject is that the intention of the parties must be looked into and that when once you get a debt with a security of land for its redemption the arrangement is a mortgage by whatever name it is called.
The same view was expressed by Joseph, J., in the decision reported in Karthiyani Amma v. Raghavan Piliai 1962 K. L.T. 380. The learned Judge observed:
The only principle that can be deduced from these decisions is that the Court should see whether the relationship created is that of the lessor and lessee or debtor and creditor. So we have to scrutinised the terms of the document in order to ascertain the intention of the parties whether they wanted to create a debtor and creditor relationship or not; and in ascertaining that intention certain tests have been laid down. That, if I may say so with respect, is the approach made by Raman Nayar, J., in Hussain Thangal v. Ali 1961 K. L.T. 1033. He formulated certain tests for finding out the intention of the parties whether the transfer is by way of enjoyment or as security. Some of the tests formulated by the learned Judge are: the label given by the parties, the ratio which the consideration bears to the value of the property, the presence in the document of anything savouring of subjection on the part of the transferee to the transferor, the transferor's need for money, and whether the periodical payments are stated' to be by way of residual rent or by way of profits.
From the above, it is clear that it is the intention of the parties which requires to be ascertained. As a matter of fact, in Narayanan) v. Kanniammal and Ors. : AIR1973Mad471 ., Ismail, J. as he then was, stated that in order to find out whether a kanam is redeemable or irredeemable one of the important tests would be to see whether it provides for successive renewals. It is stated in paragraph 4 at page 450:
What has to be decided is as to what was the intention of the parties when they entered into the transaction, namely, whether they intended that the kanam should be an irredeemable or redeemable one. For finding out this intention, what is relevant is what the parties agreed upon at the time when they entered into the transaction and not whether one or the other party to one transaction exercised his rights arising out of the transaction or not.
14. A careful perusal of the document clearly, shows that the intention was to create an irredeemable mortgage and that it is not a mortgage. The provision of such a clause would not amount to a clog is also clear from Kuttikatte v. Kunhikayamma 1918 M.W.N. 235 : 7 L.W. 119. The stipulation as to renewal on payment of renewal fee would mean a presumption being drawn in favour of irredeemability in respect of Sreepandaravagai lands. The instant case falls squarely within the ratio of the ruling reported in Mathavan Kesavan v. Padnmnabhan Narayanan Bhattathiri and Ors. (1915) 5 T. L.J. 265. This would be enough to dispose of the second appeal holding that the appellant has no case.
15. However, it was argued before me that consequent to the passing of the Jenmikaram Abolition Act, this right, even assuming that it existed, had been put an end to. The effect of granting patta under the said Act would mean that the right of the respondents-defendants in relation to the holding had become secured. It is well-settled in law that patta is granted in recognition of pre-existing rights and does not amount to conferment of any new right whatever. From this point of view also the plaintiff will have to fail. Of course, if by other proceedings he desires to challenge the grant of patta, it is well open to him to do so.
16. Subject to the above observations the second appeal fails and is hereby dismissed. However, there will be no order as to costs.