1. This is a suit for redemption. There is no question as to the plaintiff's right to redeem. The second appeal relates to two points. The first point raises the question whether the plaintiff, the jenmi, or the 1st defendant, the kanomdar, should bear the burden of the increase in the Government revenue imposed on the land subsequent to the date of the kanom. The District Judge has held that the jenmi should bear it. He says: 'It is clear that the parties did not contemplate any enhancement of the Government revenue when they entered into the contract. Under the terms of Exhibit A, the mortgagee was allowed to appropriate the income as interest on the Kanom amount less the revenue, and to pay a fixed amount of 100 paras of paddy annually as rent. There was, subsequent to the date of Exhibit A, an increase in the assessment payable to Government. It is not shown that the mortgagee consented to receive a smaller amount for his interest in the event of subsequent increase in revenue. I think that, by the contract between the parties, the 1st defendant was not liable to pay the enhanced assessment, the burden of which must be borne by the mortgagor.'
2. Apparently, the view taken by the Judge is that, according to the term of the contract between the parties, the mortgagee was bound to pay only the revenue which was imposed on the land at the time the contract was entered into and that he was not bound to pay anything more. Now, Exhibit A provides that a micharam of 100 paras of paddy is payable after deducting the interest on the kanom amount and the Government tax out of the rent.' It proceeds to say: 'It is hereby agreed to hold the properties in this manner and to pay the one hundred paras of paddy and the 9 annas 2 pies due to the Maua per year from 1067 forward, within the 30th Makaram of each year.'
3. The first question that arises for decision is, what does the expression 'after deducting the interest on the kanom amount and Government tax out of the rent' mean? Does it mean after deducting the Government tax then payable? The micharam is, of course, payable during the currency of the kanom, and, therefore, the reference to Government tax would also mean the tax payable during the currency of the kanom. Prima facie, that would be the meaning of the expression. But, it is contended by the learned Vakil for the respondent that, according to the usage in Malabar, when the terms of a kanom are settled, the, micharam is fixed with reference to a certain amount which is taken to be the rent, or, as he put it, the kanom pattam and with reference also to a certain amount required as the revenue payable to Government and to the interest which is settled to be payable to the kanomdar, the difference between the total kanom-pattam and the Government revenue and the interest on the kanom money being fixed as the micharam. It was hardly possible for him to maintain his position to its full extent because, as admitted by him, at every renewal of kanom, a certain amount of renewal fee is paid in addition, sowjanyam, or a free gift of a certain sum of money. If the micharam is, in reality, the difference between total 'pattam' and Government revenue and the interest on the kanom amount, from what source could the kanomdar pay either the renewal fee or the sowjanyim? The fact is that it is well recognised that the jenrni does not get the whole of the net balance after deducting the interest on the kanom money and the Government revenue. In fact, as stated by Mr. Ramachandra Aiyer himself, what is taken into account is not the actual income, but only a portion of it which is called kanom-pattam and which is different from the verum-pattam or the actual net rental. If, then, there is a considerable allowance made to the kanomdar as profit to himself, a portion of which he might be obliged to pay as renewal fee and sowjanyam fee on renewal, that fact would go against the contention that the kanomdar is regarded as not responsible for anything but the actual revenue imposed on the land at the time of the execution of the kanom. In this case, we find that the michnram provided is only 100 paras of paddy which may be estimated at about Rs. 40. The increase in Government revenue is more than Rs. 100. It could hardly have been. intended by the parties that the jenmi was to receive nothing from his lands in the possession of the kanom tenant, but actually pay something out of his own pocket to Government from year to year. The document does not state that the kanomdar should be entitled to interest on the kanorn amount at a certain rate, nor does it state the value of the annual rental, There is nothing in the ordinary usage between jenmi and kanomdar, in Malabar or in the terms of this particular document which would enable us to put an interpretation different from that which the words used would ordinarily bear. Every document, no doubt, must be construed in the light of the surrounding circumstances, and Mr. Ramachandra Aiyer was entitled to rely on the usage with regard to the relation between kanomdar and jenmi as part of the surrounding circumstances. But these circumstances seem really to tell against him and not in his favour. In Panigatan Kanaran v, Raman Nair 17 M.L.J. 517 and Koppunni Mootan Nair v. Narayanan Nambudripad L.P.A. No. 41 of 1906 this Court construed the documents in question in those cases with reference to the circumstances of those particular cases. This was the course pursued also in Tuppan Narnbudri v. Chinna-Pari Kutti 18 M.L.J. 31 though the judgment was also passed in part on the provisions of Section 76 of the Transfer of Property Act. We are prepared to hold, on the construction of Exhibit A, that the intention of the parties was, in accordance with what we also regard as the prima facie meaning of the words used that the Kanom tenant should pay the actual Government revenue during the period of his holding. It is, therefore, unnecessary to consider the question, which has been argued at length on both, sides, whether apart from the construction of the document, Section 76 of the Transfer of Property Act is applicable to the determination of the liability of a kanom tenant in Malabar. We must, therefore, hold that the 1st defendant is not entitled to credit for the sum of Rs. 1,049-7-1 which was paid by him as Government revenue over and above the amount imposed on the land at the time of the kanom.
4. The next question relates to the amount to which the kanomdar is entitled as compensation for reclamations made by him. The evidence on the point was apparently not as definite and satisfactory as it might have been on either side. The judgments of the Courts below are based both on the oral evidence adduced in the case and on three documents, Exhibits 20, 23 and 24. Exhibit 24 alone is material for the purpose of this appeal, as there is no dispute about the compensation for the reclamation of the lands alleged to be newly included in Exhibit 23. Exhibit 21, no doubt, shows that some lands, which are not to be found either in the pymash account or in Exhibit 23, were subsequently brought under cultivation, but the learned Vakils for the respondents have not been able to draw our attention to any evidence which connects the lands mentioned therein with the lands for which reclamation is claimed by the defendants and denied by the plaintiff. No doubt, the document shows that there were cultivated lands which came into existence after the date of Exhibit 23, and, as the land was throughout in the possession of the defendants, it might legitimately lead to the inference that some reclamation must have been made by them between the dates of Exhibit 23 and Exhibit 24. But it is not enough to prove so much. It was incumbent on the kanomdar to prove that he re-claimed the particular lands. For this he has apparently to rely on the oral evidence adduced. The evidence of the 3rd defence witness, accepted as trustworthy by both Courts, does, no doubt, support the defendant's case to a considerable extent. But he does not speak to the reclamation of plots. The learned Vakils for the respondent have not been able to draw our attention to any evidence which shows specifically that those plots were re claimed. We must, therefore, modify the decree of the lower Appellate Court by disallowing the compensation awarded for improvement on these plots. The Vakils on both sides agree that the amount allowed for these plots may be taken to be Rs. 935. It is stated that in settling the accounts, credit has not been given to the plaintiff for Government revenue paid by him between the date of the institution of the suit and the date when he obtained possession. In a decree for redemption, the account must be carried forward up to the date when possession is given. The amount to be awarded to the defendants must be further modified by giving the plaintiff credit for the amount of Government revenue paid by him.
5. A fresh decree for redemption will be drawn up in accordance with the above findings. The time for redemption will be three months from this date. Proportionate costs will be allowed to both parties in this and the lower Appellate Court.