1. The plaintiff's case is that the properties in suit belong to his mana in jenmi, that they were demised by two kanom-deeds in the year 1840 to two ladies, who were members of the defendants' tarwad, and that the defendants have denied his jenmi title. He sues to recover possession and michavaram on payment of the kanom amount. The defendants pleaded that the properties did not belong to the plaintiff's mana and alleged that they were their tarwad properties. They also denied, the demises sued on.
2. The District Munsif held that the demises were not proved and dismissed the suit. On appeal, the Subordinate Judge came to the conclusion that the demises sued upon were true and that the plaint lands were held under them.' He reversed the decree of the District Munsif and remanded the suit.
3. An appeal was preferred to the High Court against this order of remand. The learned Judges who heard it pointed out that as the District Munsif did not dispose of the suit on a preliminary point, the order of remand was wrong. They set aside that order and directed the Sub-Judge to re-hear the appeal after calling for findings on the Other issues raised in the case.
4. Findings were submitted and on their receipt, the Subordinate Judge held that the properties belonged in jenmi to the plaintiff; mana and decreed possesion. He also passed a decree for the payment of the poruppu and for the value of improvements. This second appeal is against that decree.
5. Mr. Anantakrishna Aiyar stated frankly at the outset that he was not prepared to contest the finding that the properties originally belonged to the plaintiff's mana. He contended that there is no legal evidence to support the demises sued on.
6. Before dealing with the points argued by the learned Vakil, it is necessary to dispose of a preliminary objection raised by Mr. Nilakanta Aiyar on behalf of the respondents, that it is not conipetent to the appellant to object to the finding that the demises were legally proved. His contention is that as the Subordinate Judge in his order of remand found distinctly in favour of the demises, and as that finding was not reversed by the High Court in the appeal against his order, the question should not be re-opened. This argument proceeds on a misconception of the provisions of Section 105; Clause (2) prevents a party from agitating in the appeal against the decree a question which he could have objected to in the appeal against the order. The test is, not whether a decision has been given upon the points raised in the civil miscellaneous appeal, but whether the party availed himself of the appropriate remedy of appealing against the order. In the present case there was an appeal against the order of remand and that order was reversed. It is difficult to see how the appellant could have compelled the Court to express an opinion on a subsidiary point, when the order itself was vacated. The right view is to hold that the decision on the question of the demises was not given in the order which has been set aside, but in the final judgment which superseded it. The preliminary objection must be overruled.
7. The main point for consideration is, whether there is legal evidence on which the Sub-Judge could have based his decision in favour of the demises sued on. Mr. Ananta-krishna Aiyar contended that Exhibit A has not been properly proved and that there is no other evidence, oral or documentary, which would justify the finding of the lower Appellate Court. Before dealing with Exhibit A, it is, desirable to consider whether there is other evidence on which the conclusion of the Sub-Judge can be upheld. Exhibit E is an account of the property given as security by one Sankaran Nair, who admittedly was a member of the defendants' tarwad. In the bond he executed property sowing 80 paras of paddy and situated in Netumballam ' is described as the jenmi of the Kuruvayur Mana. Sankaran Nair is described as the kanomdar. It is not alleged that the plaintiff's mana had any other property in Nettumballam. The amount of the Jeanom is also given. The note appended to the document shows that the Tcanom document was produced before the head gumastah of the Taluq Office. Then we have Exhibits C and D which are extracts from the Stamp Register Book, showing that two stamp papers for writing Itanom-deeds relating to lands sowing 40 paras of paddy each were purchased in Metna.m 1015 (corresponding to 1840). They were sold to Kuruvayur Manakkal Nambudripad, the predecessor-in-title to the plaintiff. The District Munsif who decided the point against the plaintiff did not impugn the genuineness of these documents. The description in these documents of the ladies to whom the demises were executed as belonging to Thottanchath led him to hold that the defendants' tarwad was not the demisee. The Subordinate Judge, on a careful examination of the evidence, has come to the conclusion that the tarwad was known by the names of Kuruvakkat and Thottanchath indiscriminately. In this view, he is justified in holding that the reference in Exhibits C, D and E was to the defendants' tarwad. There is also Exhibit C, the evidence of one of the plaintiff's witnesses taken on commission, to support the plaintiff's case. We cannot say that the Subordinate Judge was not entitled to draw the inference that the property belonged in jenm to the plaintiff's mana and that the defendants' tarwad held them as Kanomdars. Where the property is conceded to have belonged originally to certain persons and others have been recorded as holding under them, very little evidence regarding the actual letting relied upon will suffice. The decision of the Bombay High Court in Bala v. Shiva 27 B.P 271 : 5 Bom. L.R. 85 applies to such classes of cases. The burden of proof is shifted to the defendants to establish their title. Mr. Anantakrishna Aiyar relies upon Krishna Pillai v. Rangasami Pillai 18 M.P 462 : 5 M.L.J. 187; Vasudevan Nambudri v. Krishna Pisharoti 13 M.L.J. 274 and Koru Nair v. Kesavan Nambudri 17 M.L.J. 122 to show that where a particular mortagage is sued upon, Courts should not give relief on a mortgage not pleaded in the case. These decisions do not affect the present case. Where the title of the plaintiff is admitted and the defendants are shown to have come into possession as mortgagees under the plaintiff, Courts will not demand such strict proof of the mortgage sued on as where title is denied and possession is not shown to have been under the owners. The facts appearing in evidence in this case are enough in the circumstances already mentioned to prove the demises sued on.
8. There is another ground upon which the decision of the Subordinate Judge can be supported. The kanom-deeds relied upon have not been produced, If the plaintiff's claim is true, the deeds must be in the possession of the defendants. They deny the kanom. The plaintiff produces Exhibit A which, he alleges, is a maruput or copy of one of the kanom documents. It is not signed; nor has there been any proof of its execution. It purports to be more than 30 years old. The Subordinate Judge held it to be genuine. He says that it is customary in Malabar for jennies to keep marnputs or copies of kanom dosuments.' Mr. Wigram in his book on Malabar Law refers to this practice. In Parameswaran Nambudripad v. Ammunni Nair 9 M.L.J. 300 marupattam is said to be a copy of the document executed to another to be retained by the party executing it'. Exhibit A corresponds to this description. It comes from proper custody. It is argued that the presumption as to ancient documents contained in Section 90 of the Evidence Act does not apply to copies. In Appathura Pattar v. Gopala Panikkar 25 M.P 674 it was stated that the presumption suggested in Section 90 and in Section 114, illustration (g), does not apply to copies of documents. But in Ponnambalath Parapravan Karoth v. Sankaran Nair 12 Ind. Cas. 453 : 21 M.L.J. 981 the learned Judges were not prepared to follow the earlier ruling. It seems to us that it would be unduly narrowing the scope of Section 90 to hold that copies of the documents are not within the rule. In the language of illustration (g) to Section 114, a presumption arises against the defendants by the non-production of the original. See Rajah Kishen Dutt Ram Pandey v. Narendra Bahadur Singh 3 I.A. 85 and ram Prasad v. Raghunandan Prasad 7 A.P 738 : A.W.N. (1885) 160. Under the Evidence Act, where ths original is not produced, a copy made from the original can be exhibited to prove the transaction. Section 90, which follows the sections relating to proof by secondary evidence, refers to presumption regarding 'any document.' There is nothing in its language to restrict its operation to original documents only. The rule of law is thus stated in Wigmore on Evidence, Volume III, Section 2143 (sub-section 2): 'Where the alleged ancient original is lost and an ancient purporting copy is offered, made by a private hand, and the purporting maker being unknown or deceased, it seems to have been long accepted that this suffices, and that the copy may be received under the ancient document rule.' The authority of Lord Eldon and of Chief Baron Gilbert is quoted in support of this proposition. In Ishri Prasad Singh v. Lalli Jas Kunwar 22 A.P 294 : A.W.N. (1900) 82 the principle of Section 90 was applied to certified copies. We think that the object of the section will be frustrated, if the presumption is not extended to copies. Of course, Courts must scrutinise such copies very carefully and should not apply the presumption until the conditions required by the Section are strictly conformed to. We do not think that when all the tests are satisfied, the fact that the document affected is a copy and not the original should raake any difference. We are, therefore, of opinion that the Subordinate Judge was right in acting on Exhibit A. In this view, his finding on the question of title and on the demises sued on must be upheld.
9. There are a few subsidiary points to be noticed. Exhibit A relates to 40 paras sowing land. It fixes the parappad payable to the landlord at 5 paras. It was argued that as there is no evidence in regard to the parappad on the other half of the suit properties, plaintiff is not entitled to any parappad in respect of it. In the view that we have taken, that Exhibit A is a copy of one of the two documents of the same date, there is no reason for not holding that the same terms were embodied in the other kanom as well. We see no reason for differing from the Subordinate Judge in this respect. We also agree with him that the defendants are entitled to get only the money value of the gold coins as on the date of payment. Exhibit El refers to the commutation value in rupees, and that indicates that parties never contemplated the return of the coins or the payment of their value at the time of the redemption. The Sub-Judge is also right in holding that the defendants are only entitled to get a sum of money which would secure to them in perpetuity 20 paras of paddy. The contention that the amount must be Such as would enable the defendants to purchase a jenm right is extravagant. The Sab-Judge has rightly held that the defendants were bound to pay the enhanced Government revenue. After somo conflict of views, it was decided in Panambatta Kalathil Kunchu Menon v. Kalathinpadihil Narayanan Ezhutessan 25 Ind. Cas. 641 : 16 M.L.T. 317 that the mortgagee in possession was chargeable with such payments. We think that this decision is right. The Subordinate Judge has decreed interest at the rate of 12 per cent, upon the arrears of rent due to the plaintiff. The claim is a stale one and we do not think he was justified in decreeing more than 6 per cent. See Parasurama Pattar v. Venkatachalam Patter 21 Ind. Cas. 701 : (1914) M.W.N. 198 : 25 M.L.J. 561. But we think that no interest is payable in this case. The Judicial Committee of the Privy Council pointed out in Ganesh Bakhsh v. Harihar Bakhsh 26 A.p 299 : 31 I.A. 116 : 8 C.W.N. 521 : 14 M.L.J. 190 : 6 Bom. L.R. 505, that where the conditions of Act XXXII of 1839 ara not to be found, interest by way of damages is not awardable under the Contract Act. It is on this principle, it was held in Kamalammal v. Peeru Meera Levvai Rowthen 20 M.p 481 : 7 M.L.J. 263 that where there has been an oral lease, no interest is payable on the arrears claimed. Our attention was drawn to an unreported judgment of this Court in Appeal No. 187 of 1899, which seems to suggest that if the contract is in writing, interest may be decreed. We are unable to follow this decision. Their Lordships of the Judicial Committee lay stress upon the clause in the Act which says that the claim must he made by virtue of some written instrument at, a certain time.' Sir Francis Maclean and Banerjee, J., construe this clause to mean that the date of payment must be definite. See Surja Narain Mulkhopadhya v. Pratap Narain Mukhopadhya 26 C.p 955. Exhibit A contains no stipulation for payment of the rent at any fixed time. It only provides that the various payments should be given per year.' There is no evidence in this case that such payments were made or claimed at any particular period of the year The object of the Act is to penalise the person who withholds payment when the same is due. That is the reason why provision is made for interest running after demand. In the present case, there is no period fixed for payment. There has been no demand : and there is no stipulation for interest in the copy produced. Under these circumstances, we must disallow the interest decreed by the Subordinate Judge. Subject to this modification, the second appeal is dismissed. Parties will give and receive proportionate costs throughout. Six months' time from this date for payment.