1. This suit was brought by a melchartdar, holding under a melchart granted by the 7th defendant, who is the stani of a stanom in Malabar, to redeem a kanom, Exhibit A of 1882. The defence to the suit raised by the defendants Nos. 1 to 6 at the trial was that the properties in suit were not held under the kanom, Exhibit A, but under a saswatham grant, Exhibit I, of 1852. The District Munsif held that this saswatham document was a forgery and he gave the plaintiff a decree for the redemption of the kanom. On appeal, the District Judge held that the saswath am deed, Exhibit I, was genuine, and that the kanom, Exhibit. A, was void, as it was not for the benefit of the Tavazhi on behalf of whom Chiruthayi, the mother of defendants Nos. 1 to 6, executed it.
2. In second appeal the question was raised whether the saswatham demise, assuming it to be a genuine document, was binding on the stanom after the lifetime of the d nor. This question has been raised in thy pleadings but has been lost sight of in the; course of the trial. A finding was, therefore, called for from the District Judge on the issue, 'was the saswatham demise, Exhibit I, binding on the stanom after the death of its grantor?' The District Judge has now found this issue in the affirmative. But for his finding he has been obliged to rely entirely on the recital in the saswatham deed to the effect that the grantee had saved 18 items of property from lapsing to the tenants of the stanom which held the jenm right. Ordinarily, the recitals in a document upon which the grant depends would not be sufficient evidence that the grant was made for the benefit of the religious institution represented by the donor. In Hari Kishen Bhagat v. Kashi Parshad Singh 27 Ind. Cas. 674 : 42 C. 876 : 17 M.L.T. 115 the Pivy Council observe that alienations to be valid against reversioners, required to be supported by proof aliunde that they were made for valid and legal necessity. The same Rule applies in the case of shebaits and other persons who have no authority to alienate property except for the benefit or preservation of the estate which they represent. Unavoidable necessity must be established in order to justify absolute alienations or grants of perpetual leases of endowed property vide Palaniappa Chetty v. Sreemath Deivasikamony Pandara Sannadhi 39 Ind. Cas. 722 : 40 M. 709 : 21 C.W.N. 729 : 15 A.L.J. 485 . The District Judge after referring to the recitals in Exhibit I, has applied the test of time for assuming that the grant was lawfully made. He says that the recitals in the kanom deed, Exhibit A, indicate that the saswatham right was regarded as valid, because the then stani took a surrender of it from Chiruthayi.
3. I am of opinion that the District Judge was not justified in assuming the correctness of the recitals in Exhibit I from the mere fact that that document is more than 70 years old without considering other circumstances. He quotes in his finding the decision of the Privy Council in Magniram Sitaram v. Kasturbkai Manibhai 66 Ind. Cas. 162 : 49 I.A. 54 . That was a case where a permanent lease had been left unchallenge for a period of nearly a hundred years and it was held that the Court might assume that the grant was made for necessity so as to be valid beyond the life of the grantor. Their Lordships refer in their judgment with approval to Chockalingam Pallai v. Mayandi Chettiar 19 M. 485 the appeal from which is reported as Mayandi Chettiyar v. Chockalingam Pillay 27 M. 251 : 8 C.W.N. 54 . That was a case in which certain lessees had remained in possession under a grant made by the manager of a temple for 79 years. They claimed to have had 200 years of possession but it was found that the lease was granted in 1813 which was 79 years before the suit of 1892. Now, we must see how far the facts of the present case support an inference that the saswatham grant remained undisputed for a long period after the death of the donor. We know that the donor did in 1862. This appears from the statement of the witness examined after the remand. He was succeeded by a bad manager who relinquished his office in 1875 under Exhibit C. From 1875 to 1882 the stanomdar was the. same person who granted the kanom demise, Exhibit A. He died about 1904 and was succeeded by the 7th defendant.
4. Exhibit I itself refers to the existence of a prior kanom demise. The grantee, Kunkan Nair, in 1876 by Exhibit II, sold this property Kandiyil Parambar to Chiruthayi, thus converting it into putravkasam property. Exhibit II speaks of this item as right. Then, in 1882, perty. Exhibit II speaks of this item as being held under kanom and saswatham right. Then, in 1882, under Exhibit A, Chiruthayi purports to surrender the saswatham right given previously and to take a renewal of the kanom right for 24 year, the surrender being made a consideration for the fresh grant.
5. As observed by the District Munsif the recital in Exhibit II that the property was held on kanom and saswatham lights indicated that the members of the defendants' family regarded the kanom as requiring to be renewed from time to time upon reasonable terms.
6. The defendants who claim to derive rights from Kunkan Nair, in whose favour Exhibit I was executed, cannot now question Chinithayi's power to deal with the property which Kunkan Nair had conveyed to her to be held putravakasam property under Exhibit II in 1876. The District Munsif has treated Chiruthayi's act in taking a renewal of the kanom grant under Exhibit A as a settlement of a doubtful title to hold under the permanent grant. If the conduct of the parties is any indication of the binding and permanent character of the saswatham demise, we find that it remained unchallenged only for 20 years from 1862, when the donor died, to 1882, when the right w3s surrendered. The defendants made no attempt to put forward the right of the Tavazhi to hold the property under a permanent grant until the present suit for redemption was brought; in other words, although the saswatham grant was allowed to remain unchallenged only for 20 years after the death of the donor, it has been treated as no longer in existence for the last 36 years preceding this, suit. I am, therefore unable to accept the Distract Judge's conclusion as maintainable on the facts found by him.
7. We allow the appeal and, setting aside the lower Appellate Court's decree, we restore the decree of the District Munsif. Each side will bear their own costs here and in the lower Appellate Court as the point of which the appeal succeeds was not taken earlier. Time for redemption, six months from this date.
Venkatasubba Rao, J.
8. I entirely agree.
9. As my learned brother has set out the fact, I shall not recapitulate them. The District Judge, in coming to the conclusion that the saswatham demise was binding on the successors of the stain who granted it, purported to rely upon the decision of the Judicial Committee of the Privy Council in Magniram Sitaram v. Kasturbhai Manibhai 66 Ind. Cas. 162 : 49 I.A. 54 But it seems to me that the Lamed District Judge has wrongly applied the Rule of evidence laid dwn by their Lordships to the facts of the present case. If the saswalham demise had, remained unchallenged from 1852 to 19:8, it would, no doubt, have been proper to presume that the grant was made in exercise of a power possessed, by the donee and that the demise was lawfully, and not unlawfully, made.
10. Let us look at the facts proved in the case. The saswatham demise was made in 1852. The donor died in 1862. The successor could then have challenged the alienation, but it conceeded that he was a bad manager and did positive harm to the stanom, and it could not, therefore, be expected from such a man that he would do anything to protect the interests of the stanom. The learned District Judge very property observes that no inference could be drawn from the omission of this stani to impugn the grant. The latter relinquished the stanom in 1875 after the institution of a suit for his removal. His successor obtained from the mother of defendants Nos. 1 to 6 the kanom deed sued on.
12. Their Lordships of the Judicial Committee, in the case quoted above, observed that a long lapse of time between the alienation and the challenge of its validity is a circumstance which enables the Court to assume that the original grant was made in exercise of a valid, power. The lapse of time in the present case is not as, the District Judge remarks, seventy years 'which almost coincides with the allotted span of human life, three score years ard ten' but just thirty years, the interval of time between the saswatham grant of 1852 and the kanom demise of 1882.
13. The learned Judges by whom the finding was called for, held in effect that if the saswatham grant was binding on the successors of the donor, the defendants' mother was incompetent to surrender it and accept a kanom demise in lieu of it; if, on the contrary, the saswatham was not binding, then the action of the defendants' mother in executing the kanom was in the interests of, and binds the Tavazhi. They further held that the validity of the saswatham after the lifetime of the grantor would depend upon whether it was for the benefit of the stanom or not.
14. Having regard to the judgment delivered on the previous occasion, we are concerned merely with the question of the validity of the saswatham demise, and I may state that no other question has been argued before us. No evidence was forthcoming to show that the grant was made for the benefit of the stanom. The defendants rely solely upon the recitals in the deed. I may refer to a passage in the judgment in Magniram Sitaram v. Kasturbhai Manibhai 66 Ind. Cas. 162 : 49 I.A. 54 : 26 C.W.N. 473 : 'At the lapse of 100 years, when every party to the original transaction has passed away, and it becomes completely impossible to ascertain what were the circumstances which caused the original grant to be made, it is only following the policy which the Courts always adopt, of securing as far as possible quiet possession to people who are in apparent lawful holding of an estate to assume that the grant was lawfully and not unlawfully made.'
15. When the kanom demise of 1882 was executed, the donee, that is, the father of the defendants Nos. 1 to 6, was alive. He had knowledge of the circumstances in which the original grant was made. Why then, if the saswatham was valid and unimpeachable, did he permit it to be surrendered? Then, again, the first defendant was forty-eight years old at the time of the trial of the suit and it is stated that several other members of his family had also long ago become majors. The kanom was not impeached from 1882 to 1918. If they believed that their mother had needlessly sacrificed their interests, there was nothing to prevent them from having questioned her act earlier. The legitimate inference to be drawn from these facts is that they acquiesced in the kanom, because they were aware that the saswatham demise was of doubtful validity and that the act of their mother in executing the kanom was in the interests of the Tavazhi.
16. The position of affairs is, therefore, this. On the one hand, there is the saswatham demise which was made in 1852 and which, in any event, was good during the lifetime of the grantor and was attacked after his death, within seven years of a prudent manager succeeding to the office. On the other hand, we have the kanom demise made in 1882 when an apparently valuable right was surrendered by the senior-most member of the family, that is, the mother of defendants Nos. 1 to 6, without demur on the part of their father who was the original donee and was aware of the circumstances in which the saswatham grant was made. We have the further fact that the kanom demise was not impugned by defendants Nos. 1 to 6 till a very recent date. In these circumstances, no presumption can arise in favour of the truth of the recitals in the saswatham grant. There has not been the lapse of time sufficient to raise a presumption that the saswatham grant was made under circumstances which justified the grant. There is no evidence to show that the original grant of 1852 was for the benefit of the stanom and that it is binding on the successors of the stani who made the grant. It follows that if the saswatham demise is not valid the mother of defendants Nos. 1 to 6 was acting in the interests of the Tavazhi in giving up the invalid saswatham right for a valuable kanom demise.
17. In the result, I agree with the order proposed by my learned brother.