1. The 5th defendant, who is a Malabar jenmi, gave a kanom of certain property to defendants Nos. 1 and 2, and they on the 6th March 1917, mortgaged the rights of the 1st defendant to defendants Nos. 3 and 4 under Ex. A. The plaintiff, who is the appellant, is the assignee of the rights of defendants Nos. 3 and 4. The 5th defendant filed a suit for redemption of the kanom O. S. No. 52 of 1919 against defendants Nos. 1 and 2 without making defendants Nos. 3 and 4 parties and he got a decree for redemption and paid the money into the hands of defendants Nos. 1 and 2 before the present suit was instituted. The appellant sued on his mortgage in 1921 and the District Munsif gave him a personal decree against his mortgagors defendants Nos. 1 and 2 and also against their possessory interest in the property for what it might be worth.
2. It is argued in -second appeal that the plaintiff should have been given something more than what he has got. He wants a decree against the 5th defendant for what is due under his mortgage and a decree for sale of the interest of defendants Nos. 1 and 2 as kanomdars unaffected by the redemption decree to which the appellant was not a party. It is true that the appellant is not bound by the decree for redemption in O. S. No. 52 of 1919 to which he was not a party, but as he did not give notice to the 5th defendant that he had taken a mortgage of the 1st defendant's kanom right, there was no obligation under Order XXXIV, Rule 1, C. P. C., on the part of the 5th defendant to make him a party to that suit.
3. The question now is, what is the plaintiff entitled to by way of relief in the present suit? He has been given a decree against the defendants Nos. 1 and 2. He cannot be given a decree for sale of the suit property, because he never possessed any rights over that, seeing that his mortgagor could not give him a right that he had not got himself. What he got under his mortgage was a pledge of the kanomdars Interest. That interest consisted of a right to enjoy the property for 12 years subject to redemption at the end of the time and to be compensated for tenant's improvements In Moore's Malabar Law, page 245 it is slated that the kanomdar cannot create a higher title than he possesses, and if he grants a sub-mortgage, the sub-mortgagee can have no higher right than to enjoy the remainder of the mortgagee's term. The author presumably was there referring to a usufructuary submortgage and not to a hypothecation as is the case here. It must be remembered that a kanom is an anomalous mortgage being a combination of a usufructuary mortgage and a lease for 12 years. The kanomdar has no right to sell the jenm property. His only right is to remain in possession until he is re-paid the kanom amount plus the value of improvements. A mortgagee of that interest takes his mortgage subject to the liability of the kanomdar to be redeemed at the end of 12 years. As regards the right to have an account of the costs of improvements, the tenant's right is an analogous to the right to a chose in action and the landlord is not affected by a transfer of it unless he has notice of it see Vasudeva Shenoi v. Damodaran 23 M. 86 : 8 Ind. Dec. 454. There is no privity between the jenmi (or owner of the property) and the mortgagee of the kanomdar s interest who is not in possession of the estate. If the kanomdar failed to pay rent to the jenmi, the jenmi could not recover it from the mortgagee because there is neither privity of estate nor privity of contract between them vide Theethalan v. Eralpod Rajah 40 Ind Cas. 841 : 32 M. L. J. 442 : 21 M.L.T. 401 : 40 M. 1111. Now that the term of the kanom has come to an end and it has been redeemed, the plaintiff who took a pledge of the konamdar's interest has no subsisting interest. If the interest of the konamdar be put up to auction; it is worth nothing, as noticed by the District Munsif, because no one will give anything for the rights of a kanom---interest which has been terminated by payment of the kanom amount and the compensation for improvements at the close of the term.
4. My attention has been drawn to a decision of Madhavan Nair, J., in Second Appeals Nos. 668 and 646 of 1921 in which the learned Judge declined to be guided by the decisions in Poosarla Chinnaswamy v. Venkata Ramaki ishnayya 37 Ind. Cas. 778 : 4 L. W. 502 : (1917) M.W.N. and Issakanakath Maliyakkal Muhammad Haji v. Themmil Kizhakki Nalakath Moidin Kuiti 63 Ind. Cas. 192 : 30 M.L.T. 21, as he was of opinion that they were not quite consistent with the decision of the Privy Council in Sukhi v. Ghulam Safdar Khan (6). The case which my learned brother had to deal with was one of ordinary submortgage, not of a Malabar kanom. The decision in Sukhi v. Ghulam Safdar Khan : (1922)24BOMLR590 will not help the appellant in the present case. In that case the plaintiff had a charge on the property which had come into the hands of respondents by virtue of their mortgage, and as she was entitled to maintenance and possessed a charge over the properties which were secured for payment of her maintenance it was ordered that; the respondents should pay the amount due to her which had been wrongly taken away by her nephews, Jag Earn and Net Earn in consequence of the failure of the respondents to implead her in their foreclosure suit against Jag Earn and Net Earn. The appellant there had a mortgage both over the rights of the mortgagee and over the equity of redemption. The appellant here has only a mortgage over the rights of a mortgagee lessee under a redeemed mortgage and an expired lease. It cannot be said in the present suit that the 5th defendant is liable to pay the plaintiffs mortgage amount, because he failed in the redemption suit to make him a party, seeing that he never had any notice of the sub-mortgage and he had every right to deal directly with his kanomdars; I am unable to accept the contention that the plaintiff was a necessary party in the suit for redemption of the kanom when he held no charge or encumbrance over the land itself. In this view, the lower Court's decision is right and the second appeal must be dismissed with costs.