1. Appellants in this case admittedly hold the suit property under Exhibit I executed by plaintiff's predecessor, on what is known as kudima jenm or kudimanir tenure; the incidents of which are set out at pages 307, 417 and 418 of Moore's Malabar Law and Custom and also in Grraime's Glossary. Plaintiff is the jenmi of the said land; he has been given a decree for eviction of appellants on the ground of disclaimer of his paramount title.
2. The chief point for decision is whether plaintiff has made out a disclaimer of his title. He relies on passages in certain documents (Exhibits C and D) taken by appellants from tenants of their own in respect of the suit lands in a plaint, Exhibit C, filed by appellants in a suit for recovery of rent. These passages refer to the land as the jenmam of appellants: and it is argued that this constitutes a denial of the jenmam title of plaintiff. For appellants it is argued that nothing of the kind is intended but that the phrase 'jenmam' is loosely used, where kudima jenmam is meant.
3. Mr. Ramachandra Aiyar for respondent has argued that the intention of appellants is a question of fact; and that the finding of the District Judge cannot be questioned in second appeal. It appears to us that the learned District Judge has proceeded on a wrong construction of the passages in question and that if they be properly construed, there is no evidence to support a finding of disclaimer of title. He has also, as it seems to us, failed to realise what is implead in disclaimer of a landlord's title: To constitute a disclaimer there must be a direct repudiation of the relation of landlord and tenant or a distinct claim to hold possession of the estate upon a ground wholly inconsistent with the existence of that relation, which by necessary implication is a repudiation of it.' Vide Baron Parke in Doe d. Gray v. Stanion (1836) 1 M. & W. 395 : 2 Gale 154 : 46 R.R. 464 quoted in Srimati Mallika Dassi v. Makham Lal Chowdhry 9 C.W.N. 928.
4. Bearing this definition in mind, we think it is impossible to construe the phrase jenmam in the documents in question as a direct repudiation' or 'distinct claim.' The wording of the other exhibits in the case shows that the phrase was commonly used in a loose sense and it is not denied that right up to the date of suit the nominal quit rent, which alone was reserved to plaintiff under Exhibit I, was scrupulously paid.
5. We think there was no disclaimer of plaintiff's title: whether, if there had been one, it would have worked forfeiture of the tenure is a question into which we need not enter.
6. We reverse the decree of the District Judge and restore that of the District Munsif. Appellants will get their costs in this and the lower Appellate Court.