1. This is an appeal by the plaintiff who sued for possession and for recovery of arrears of rent for a period of more than 30 years. The Courts be low have dismissed the claim for possession and awarded a decree for rent only for a period of six years. Hence this appeal. The right to possession turns upon the effect of two documents Exs. A and I. The documents themselves bear no particular description as to the interests created by them. They are apparently mere memoranda though they have been registered. In dealing with some of the cases brought to my notice on behalf of the appellant, it is important to remember that where the document purports to be a 'kanom' there is prima facie the implication of a right of redemption and one would naturally insist upon strong indications in other portions of the documents to take away that right. In the present case Ex. 1 is no doubt referred to by the learned Subordinate Judge as a kanom document and is so printed in the paper here but the matter has been verified and counsel on both sides agree that the document bears no particular description and that the description of it as kanom is not accurate. Looking also at the body of the documents there is nothing to indicate that it was in the nature of a kanom. There is no debt mentioned, nothing to be secured and no particular term mentioned, either. The result therefore is that it is a mere memorandum and the effect thereof has got to be determined with reference to the substance of its : provisions and the conduct of the parties and other relevant circumstances, so far as the same may be admissible to throw light on the nature of the transaction.
2. The Courts below have held that the property has been held by the defendants and their predecessors in title on anubhavam tenure and therefore the plaintiff has no right to resume or recover possession. On behalf of the appellant, Mr. Unnikanda Menon has endeavoured to argue that the present case falls within the group of decisions which negative the existence of anubhavam tenure where the anubhavam amount is fixed. He argues that because the document mentions 26 paras of paddy as the pattam and goes on to provide that from that amount the grantee should pay the assessment, then take his anubhavam and pay 2 paras and 2 edangalis of paddy to the grantor, it is possible to work out from these figures how much was assumed to be anubhavam I do not think that this is the correct way of applying the principle gatherable from the cases. It is obvious that the substance of the transaction is that after paying the Government assessment and delivering 2 paras and 2 edangalis of paddy to the grantor, the grantee retains the whole income from the lands for himself. If this is the substance of the transaction, it really falls under the other group mentioned in Vaithilingam Pillai v. Kuthira Vattath Nair (1906) 29 Mad 501.
3. The contrast there, indicated is between cases in which the document shows a specified amount of money or quantity of paddy to be the anubhavam and those in which the terms of the document only indicate a fixed rent reserved for the grantor and the rest of the produce is given as anubhavam. The question is not whether arithmetically certain figures can be worked out or not, but whether the substance of the transaction is that the grantee is entitled only to a definite quantity or the grantor is entitled only to a definite quantity the grantee taking all the rest. I do not think that the cases in Manavikrama v. Karnavan Gopalan Nair (1907) 30 Mad 203, Krishna Iyer v. Gopalan Nair 1917 Mad 622, Puthu Karnavan Tarwad v. Muthiyalur Kumaran Rarichan 1918 Mad 335, Vasudevan Nambudripad v. Kannan Nayar 1928 Mad 1094 and Kalyani Amma v. Cochin Sarcar 1926 Mad 143 lay down anything to the contrary. Mr. Unnikanda Menon argued that the present case does not resemble Theyyan Nair v. Zamorin of Calicut (1904) 27 Mad 202. That may be so; but Theyyan Nair v. Zamorin of Calicut (1904) 27 Mad 202 does not lay down that it is only a document in that particular form that can be held to create an anubhavam tenure. Some stress was laid on the fact that Ex. A purports to be a 'renewal' of a previous document. But, as the Courts below point out, the previous document is not forthcoming and if we are only to assume that the previous document was in terms of Ex. A, the appellant's case will be carried no farther. I therefore see no reason to differ from the view taken by the Courts below 8n the nature of the tenure created by these documents.
4. A point was raised on behalf of the appellant that the claim for rent must be held to be governed by Article 181, Limitation Act, and reliance was placed on the judgment of the Full Bench in Zamorin of Calicut v. Achutha Menon 1914 Mad 377. That has no bearing upon the present case. The suit there was by the allowance holder and such a suit was rightly held to fall under Article 131. Here the suit is by the landlord for arrears of rent and would ordinarily have been governed by Article 110 but for a long course of decisions in this country which have applied Article 116 to such cases. The lower Court was therefore right in limiting the award of arrears of rent to a period of six years. It was lastly suggested that the present defendants are alienees and that even if the original tenure was an anubhavam tenure it came to an end on alienation. This point was not raised in either of the Courts below; and in view of the conflict of decisions on this point and the possibility that the question may have to be decided as one of ' custom' and not one of law, I do not think it is one that I can fairly allow to be raised at this late stage. The second appeal therefore is dismissed with costs of the 7th respondent.