JUDGMENT
Krishnan, J. — These five Second Appeals arise from five suits filed by the Zamorin Raja of Calicut through the Estate Collector Mr. Thorne I. C. S. to recover possession of a large number of items of properties belonging in jenm to the estate, with arrears of rent and future rent, from the persons in possession of them, on payment of the value of improvements and in one case, viz., 1081 of 1917, the amount of a veppu or usufructuary mortgage as well. In two of these cases, Second Appeals Nos. 1079 and 1080 of 1917, the properties had been granted on what is known as “Adimayavana” tenure by a former Zamorin and in the three others they were similarly granted on “Karamkari” tenure. These tenures are admittedly permanent tenures but the plaintiff claimed to avoid them on two grounds, viz., that they were in their inception invalid as having been granted by a person who, as a stani, had no power to grant them and secondly that the grantees having alienated the properties they had forfeited under the custom of South Malabar the permanent tenures which they held.
The Lower Courts have held that even if the original grants were beyond the powers of the stani who made them, they had become validated by adverse possession of the grantees for many years and this finding has not been questioned before us. The findings of the Lower Courts on the 2nd ground taken are in the landlord's favour but his suits have been dismissed by the Subordinate Judge on the ground that the tenants who now hold the properties are all bona fide purchasers for value from ostensible owners and that they are entitled to protection on the principle of Sect. 41 of the Transfer of Property Act though the section does not in terms apply. It is not possible to support this view and the learned counsel for the respondents did not seriously attempt to do so. The deeds of grant in the various cases all expressly state the holding to be either Adimayavana or Karamkari and what was purchased by the defendants was also one or the other of these rights. There is therefore no question of ostensible ownership here at all. If the defendants are right in their contention that no forfeiture was caused by the alienations in their favour, a point which I shall deal with presently, the landlord's suits must fail on the ground and no question of estoppel will arise. Even on the footing that a forfeiture does result on alination, I am of opinion, that no estoppel arises against the landlord on the facts stated by the Sub-Judge. He considers that because no express mention of forfeiture is made in the deeds of grant and the law on the point was uncertain till recently and because the Zamorin did not seek to enforce forfeitures prior to these suits though there were several alienations previously, an esstoppel arises against him in favour of the defendants who purchased the properties for full value. Neither ground stated is a proper basis for raising an estoppel. The ignorance of the dafendants as to the legal incidents of the tenures in question, assuming that inalienability and forfeitability are such incidents, for which ignorance the landlord was in no way responsible, cannot raise any estoppel against him nor can the fact that he did not exercise his right of enforcing forfeiture prior to the suits bar him from doing so now or raise any estoppel against him; see observation in Parameshri v. Vittappa Shanbaga. If the tenures the defendants purchased are forfeitable ones, they must take the consequence and cannot complain even if they paid full value. In any case therefore the finding of the Subordinate Judge on the question of estoppel is erroneous and must be set aside.
This however does not dispose of the second appeals as the learned counsel for the respondents has claimed to support the decrees of the Lower Appellate Court on several points which have been decided against his clients but which he contends were so decided wrongly. He is entitled to do so and we must therefore consider the points raised by him.
The first question he raises is that the finding that the tenures in question here are forfeitable on alienation is incorrect and is not supported by the custom of South Malabar. The Subordinate Judge considered that he was bound by the authority of Achuta Menon v. Sankara Nair to hold that Karamkari tenure was so forfeitable, though he says the law seems uncertain except for the decision and refers to several circumstances which are rather against its correctness. He further held that Theyyan Nair v. Zamorin of Calicut was an implied authority for holding that the same rule applied to Adimayavana tenure. The learned vakil for the appellant has supplemented these authorities by referring us to the case in Venkatagiri Pattar v. Zamorin of Calicut which was one of an Adimayavana tenure. In the view the Sub-Judge took, he did not consider a large volume of evidence which the defendants had given to show that alienability was an ordinary incident of these tenures.
It is necessary to examine these authorities to see if we can accept them as settling the question at issue. The earliest case cited Theyyan Nair v. Zamorim of Calicut was one of an Adimayavana tenure but no question of forfeiture on alienation arose in it. The main question there was whether it was a permanent tenure and it was held that it was. An argument was raised in it that the tenure was a service tenure and as such resumable. This was overruled on the ground that it was not shown to have been granted for future services. This case seems to have no bearing on the present case as no question of resumption on failure to perform service has been raised here. It is only useful to show that this Court cited and considered the Sudder Court proceedings of the 5th August 1856.
The next case cited Achuta Menon v. Sankara Nair, seems to be more in point.’ The learned Judges there, after citing the observations in the Sudder Court proceedings of 1856, say: “It will be observed that a Karamkari holder in North Malabar has no heritable right at all and with respect to South Malabar the right of reversion in the landlord prima facie supports the appellant's contention that the tenure is inalienable.” They then point out that the word Karamkari means a permanent right of cultivation and finally relying on the language of the instrument in that case which in terms prohibited alienation hold that the tenure was inalienable and therefore the alienation put an end to the tenure itself. There is no clear and express decision in their judgment that the condition of inalienability is attached to the Karamkari tenure by the custom taken by itself. That is the argument in the present cases as there is nothing in any of the deeds of grant before us in any way prohibiting alienation. On this point the present cases are in a way distinguishable from that case. But it must be conceded that to hold as they did, that a clause of re-entry was unnecessary, distinguishing the case before them from the cases cited in Parameshri v. Vittappa Shanbaga and Netrapal Singh v. Kalyan Das, their decision must be taken to involve the view that the custom made the continuance of possession in the Karamkari holder a condition precedent for the continuance of the tenure itself. With all respect to the learned Judges, I am unable to follow the reasoning adopted by them. Assuming that the Sudder proceedings should be treated as authoritative in the absence of anything to the contrary, they do not seem to justify a conclusion as to inalienability. It will be noted that there is nothing stated in them as to inalienability or forfeiture on alienation. The inference of prima facie inalienability from the right of reversion in the landlord does not seem to me, with all respect to the learned Judges, to be a necessary or valid inference at all. In fact, according to the ruling in S, A. No. 57 of 1917, the same incident of revertibility exists in the case of the Mulgeni lease of South Kanara to which this tenure is stated to be similar in Graeme's Glossary, a work of equal or if not of higher authority than the Sudder proceedings on the point, but it has never been suggested that it is by custom an inalienable right. The terms of this tenure are described in the Glossary under the title Jenmamkozhu which seems to be only another name for it. A permanent right of cultivation of course does not imply inalienability. There is thus no valid basis for an inference of inalienability by custom in the case of these tenures. Moreover the method of inferring the existence of new incidents for a tenure as the supposed logical result of its known incidents seems to me to be quite an unsafe method to adopt. To find out if any particular right is a customary incident of a tenure such as the one we have before us, the only safe method is to take evidence of the custom, in the absence of authoritative rulings or statements about it. I am unable to accept Achuta Menon v. Sankara Nair, as settling the question; no authoritative statements on the point have been brought to my notice with regard to the Karamkari tenure in South Malabar.
As regards the Adimayavana tenure the only case cited which is in point is Venkatagiri Pattar v. Zamorin of Calicut. The decision treats Adimayavana as similar in all respects to Anubhavam and following the ruling in Ukkandath v. Puliyankot Kunhi Kuttan, which was one of Anubhavam applies the rule of inalienability to the Adimayavana tenure also. Now as pointed out by the learned counsel for the respondents the Sudder Court proceedings as well as Graeme's Glossary seem to treat them as also the Karmakari or Jenmamkozhu tenure, as having different incidents and probably different origin though they are all of them similar as regards permanency of tenure. It seems to me therefore very doubtful “whether it is right to apply what is stated about inalienability regarding the Anubhavam tenure in the Sudder proceedings to Adimayavana. In fact the description given of the latter in Graeme's Glossary would seem to suggest that inalienability was not one of its conditions; for it says with regard to lands that “the tenant could not be dispossessed and the land descended to his heirs and only reverted to the jenmi on failure of heirs.” With regard to parambas or gardens it is more explicit for it says: “the garden reverts to the proprietor on failure of heirs on the part of the adiyan and if the adiyan takes a part with the enemies of his patron, the latter may resume the property. Under any other circumstances the adiyan cannot be dispossessed and he has a right of burial within the garden.” There is no discussion of the terms of the Adimayavana tenure in Venkata giri Pattar v. Zamorin of Calicut and I am, with all respect inclined to think that the question as to what are its proper terms should also be settled by taking evidence of custom.
In Chapter XIII of Moor's Malabar Law and Custom, it is stated that all the above mentioned tenures i.e, Karamkari, Admayavana and Anubhavam, appear to be inalienable (page 309) but the learned author also remarks that there is a singular absence of judicial authority in respect of those grants and that at all events the grantor's representatives would be required to prove clearly that the grant was inalienable and resumable.
In these circumstances before deciding the point, I would call for a finding on evidence as to the custom about it. There is already a considerable body of evidence on the defendant's behalf on record to prove alienability. The burden is, however, on the landlord to prove the custom of inalienability and forfeitability as alleged by him as prima faice all property” should be taken to be alienable. As the plaintiff apparently relying on the rulings above considered, adduced no evidence on the point, I think., it is proper to allow him a fresh opportunity to do so and of course the the defendants must also be allowed to adduce any further evidence they may want to in their favour. The Court may also call Court witnesses if it thinks fit to do so.
Before leaving this part of the case, a special argument raised by the respondents in Second Appeal No. 1081 of 1917 must be mentioned. They contended that as the tarwad of the original grantees were themselves in possession of most of the properties included in the grant and only a few had been alienated to defendants 21 to 23, no forfeiture of the whole holding should be taken to have been worked, even if a custom prohibiting alienation generally is established. Their learned counsel relied on the case in Dassorathy Huri Chunder Mahapattra v. Ramakrishna Jana, Birendra Kishore Manikya v. Bhubaneswar and Rai Kamaleswari Prasad Singh Bahadur v. Maharajah Harbullah Narain Singh Bahadur, in support of this argument. These cases are not in point as they were under the Bengal Tenancy Act, where under Sect. 25 the question is what will amount to an abandonment of the holding. It was held that an alienation of a part will not be an abandonment of the whole and a forfeiture incurred by a part-owner will not bind his co-sharers. The question raised here is entirely different. Prima facie alienation of any portion of a holding would offend against the rule of inalienability if there is one; and unless it can be shown that under the very custom which imposes the rule of inalienability, the rule does not apply to partial alienations; it must be held that a partial alienation will be sufficient to work a forfeiture. The point about partial alienation has not been taken in the Lower Courts and we cannot allow it to be raised now and give leave to the defendants to adduce fresh evidence about it. This point must therefore be overruled.
The next point taken for the respondents is that, even assuming that alienation would work a forfeiture of the tenure in question, the plaintiff cannot rely on the plaint alienations for the purpose as he has waived such forfeiture and recognized the validity of the transfers to the defendants and treated them as his tenants by accepting rent from them through his agents and allowed them to pay revenue to Government out of the rents fixed as provided in the deeds of grant. This is a question which has to be considered on the evidence in each case and with regard to each forfeiture relied on, separately. The munsif upheld the plea in all cases on the facts. But the Subordinate Judge has disallowed them on the common ground that there is no direct evidence to show that the plaintiff had knowledge that the forfeiture had been incurred when the rent were received from and the revenue was allowed to be paid by the alienees. No doubt actual knowledge as distinguished from means of knowledge, is necessary to infer waiver or implied contract as we have to deal in such cases with intention of the person whose act is said to constitute the waiver or the implied contract. See Foa on Landlord and Tenant, 5th Edition, P. 634 and the case of Mathew v. Smallwood there cited, as also Jugmohandas v. Pallonje. The Subordinate Judge, however, is in error in thinking that the lessor should have been given actual notice of the forfeiture. Knowledge may be inferred from circumstances; and it is not necessary to have direct evidence of it always. The Subordinate Judge has not dealt with the evidence on this point nor has he considered the effect of the non-production of the plaintiffs' accounts though he was summoned to produce them. His finding therefore cannot be accepted as satisfactory and a revised finding on the evidence on record with reference to each case must be called for.
It may be observed that the payments pleaded were to the landlord's agent and not to the landlord direct. It will therefore be a question for the Subordinate Judge to consider whether those agents had actual knowledge and if so whether under Sect. 229 of the Contract Act, they could not be held to have communicated the information they got to their principal and further whether themselves had not authority to waive the forfeiture and continue the permanent lease in favour of the transferees so as to bind the principal. These questions were argued before us but cannot be disposed of by us at present as the facts have not been found yet.
The next point argued is one of limitation. The Subordinate Judge's view that time begins to run under Art. 143 of the Limitation Act only when the landlord comes to know of the forfeiture cannot be supported. The article makes the forfeiture itself the starting point; there is nothing in it about the lessor's knowledge. Nevertheless the finding of the Subordinate Judge that the suits are not barred seems to be correct because the forfeiture relied on in the various cases were all within 12 years from the dates of the suits. The fact that there were previous alienations which the landlord could have but did not take advantage of is not material as the Munsif seems to have considered, for it was open to him to waive such forfeitures; see Parameshri v. Vittappu Shambaga already cited. He must be taken to have waived such forfeiture as he has not relied on them. The question whether any particular transferee has obtained by adverse possession for over 12 years an independent and separate Karamkari or Adimayavana right in the properties in his possession, which is not effected by forfeiture caused by others has not been raised and argued and it cannot therefore be considered.
Finally it was argued as a special point in Second Appeal 1081 of 1917 that the terms of the demise sued on had not been proved. The terms were set out in the plaint and the contesting defendants in their written statements admitted the demise sued on. That being so, it was not necessary to prove those terms and we need not therefore consider whether Ex. A was properly admitted in evidence or not and the special point taken fails.
In the result, I would call for findings on the following 2 issues, allowing fresh evidence on the first isssue but on the evidence on record on the 2nd issue.
1. Are Karamkari and Adimayavana tenures inalienable by custom in South Malabar and is the Jenmi entitled to forfeit them on alienation?
2. Has the forfeiture relied on by the plaintiff in any of the five suits been waived?
Findings in 3 months, objections 10 days.
Ayling, J.—I was content in Venkatagiri Pattar v. Zamorin of Calicut, to follow earlier authority as to the incidents attached to Adimayavana tenure: but in the light of the more elaborate argument now addressed to us, and in view of my learned brother's expression of opinion, I agree to call for findings oft the issues proposed by him while reserving any expression of opinion.
In compliance with the order contained in the above judgment the Subordinate Judge of Palghat, submitted the following
FINDINGS.
In these appeals findings are called for on the following issues:—
(1) Are the Karamkari and Adimayavana tenures inalienable by customs in South Malabar and is the jenmi entitled to forfeit them on alienation?
(2) Has the forfeiture relied on by the plaintiff in any of the five suits been waived?
My answer to the 1st issue is that with regard to Karamkari and Adimayavana tenures there was a custom of inalienability (involving forfeiture on alienation) up to 1896 and that since then there have been inroads into the custom so as to shake its continuity and uniformity and that the process is going on. On the 2nd issue my finding is in the affirmative as regards O. S. Nos. 353, 370, 437 and 472 of 1914 and in the negative as regards O. S. No. 371 of 1914.
[These Second Appeals caming on for final hearing on the 28th day of November 1919 and the 9th day of December 1919 before their Lordships Ayling and Krishnan, JJ.].
Mr. C. V. Ananthakrishna Aiyar for the Appellant.
Mr. C. Madhavan Nair for the Respondents.
JUDGMENT
Ayling, J. — We are now in possession of the findings of the Subordinate Judge on the two issues referred to him: and in the light of the recorded evidence, the Subordinate Judge's discussion of the same, and the arguments addressed to us both at this and the previous hearing, I have little difficulty in arriving at the conclusion that the plaintiff, appellant, has failed to establish his right to resume the grants on alienation by the grantees.
The Subordinate Judge's finding is So cautiously worded as to be not altogether easy of interpretation. It runs thus:—” My answer to the 1st issue is that with regard to Karamkari and Adimayavana tenures there was a custom of inalienability (involving forfeiture on alienation) up to 1896 and that since then there have been inroads into the custom so as to shake its continuity and uniformity and that the process is going on. On the 2nd issue my finding is in the affirmative as regards. O. S. Nos. 353, 370 and 472 of 1914 and in the negative as regards O.S No. 371 of 1914.”
Each party claims that the finding on the first issue is in effect a decision in its favour: but as it is on a question of mixed fact and law, and therefore not entirely binding on us, it is unnecessary to devote time to its interpretation—more particularly as I entirely agree in the Subordinate Judge's appreciation of the actual evidence adduced and his conclusion as to the fact established. For the last 20 years or so, for which period alone evidence is available, the balance is entirely against the plaintiff's contention. Out of the very large number of assignments by sale and mortgage by the grantees which are in evidence (vide para. 41 of the Subordinate Judge's finding) no instance is shown of resumption on alienation in case of the tenures with which we are Concerned (Adimayavana and Karamkari): while on the other hand there are many in which the alienations have been acknowledged by the jenmi, and the tenure renewed in favour of the alienee. Exs. 89 and 100 and Exs. 38, 38-a and 38-e are particularly striking instances of this. The learned Counsel for appellants invited our attention to Ex. 93 as indicating a consciousness on the part of the grantee, that he could make no valid alienation without the grantor—jenmi's consent. But in my opinion nothing of the kind appears from a perusal of the document. The document purports to absolutely assign all the grantee's interest in the property and adds that the grantee has no objection to the assignee enjoying them on the original tenure and to his obtaining a direct demise from the jenmi on production before him of the assignment deed. The latter clause is clearly intended to facilitate the assignee's obtaining an independent title deed from the jenmi—an object naturally desired by the assignee in order to place his rights beyond the possibility of question. But I see nothing in the document to suggest that this was other than a formality which would be granted without demur on production of the transfer deed: and it is one which, as shown by the Subordinate Judge, was frequently dispensed with.
The oral evidence has been rightly appreciated by the Subordinate Judge and on a survey of the evidence as to custom, oral and documentary, the conclusion is irresistible that, for the period to which it relates no legally enforcible custom of forfeiture on alienation has been proved.
The Subordinate Judge has however held that up to 1896 there was a custom of inalienability involving forfeiture on alienation, though the custom has since fallen in desuetude. If this were so, the decision of the question before us would no doubt be difficult: but when the ground of the Subordinate Judge's finding as to the custom in earlier times are examined, they seem to me to be unsound. It is based on no evidence, but rather on the authority of the expressions of opinion in the Sudder Court Proceedings of 1856 and in Sir Charles Turner's minute of 1885. In regard to both we have to consider not only what the opinions exactly amount to, but also what degree of authority they should be deemed to carry.
Appellant is no doubt able to point to previous decisions of this Court in which the proceedings of the Sudder Court have been referred to as authoritative, to one of which [Venkatagiri Pattar v. Zamorin Rajah of Calicut], I was myself a party, and in which we were content to follow it. Undoubtedly any statements contained in the proceedings command great respect: but whereas in the present case, we are practically asked to treat them as conclusive of the existence of a legal incident of a tenure, and that too in face of evidence as to the actual existing custom—then I think, speaking with all respect, we must be careful not to give it undue weight. It must be remembered that it is not a judicial pronouncement arrived at on a consideration of legally recorded evidence and of arguments on both sides but merely embodies the general effect of decrees previously passed by the Civil Judges and of opinions of experienced persons respecting the mutual rights of landlords and tenants. The proceedings were issued for the guidance of Subordinate Courts in the decision of future cases: but constituted, of course, no sort of legal enactment: and I see no reason to doubt that the Sudder Court itself would have allowed the correctness of any point therein laid down to be questioned and argued out, if it had arisen in any case that subsequently came before it.
The same remarks apply with even greater force to the observations of Sir Charles Turner. They are contained in a minute prepared by that eminent Chief Justice apparently for the consideration of Government in connection with a draft bill relating to Malabar Land Tenures which was under consideration. I do not think any higher weight can be claimed for them than if they were contained in a legal treatise as an exposition of the learned author's views on the subject under consideration.
Apart from their authority what do these dicta amount to? In the case of the Sudder Court proceedings all that appellant can point to, is a marriage not in which Adima Jenmam (but not Karamkari) is defined as “permanent but inalienable right.” There is no suggestion of inalienability in the text regarding either tenure: though in the case of Anubhavam tenure which is dealt with in an intervening paragraph, there is a statement that the tenant cannot alienate his title. I think it would be most dangerous in such circumstances to attach much weight to the marginal note.
Sir Charles Turner in his minute says that adima grants “are not alienable except with the consent of the landlord.” Whether he meant to imply that the landlord possessed a right of resumption on alienation is not clear; it does not necessarily follow and it is curious that the very sentence from which these words are quoted concludes thus “and on failure of heirs revert to him” (i. e., the landlord). He does not say “on failure of heirs or on alienation.”
As regards “Karamkari” tenures he says nothing about inalienability.
Now that the authority and purport of these pronouncements have been directly challenged, the only conclusion I can come to is that as the basis of a finding of the existence of a custom unsupported by other good evidence, they are altogether inadequate.
The other authorities to which our attention has been drawn, Graeme's Glossary, Moore's Malabar Law and the District Manual all seem to be against appellant's contention: and my conclusion is that while the evidence of custom in the last 20 years is strongly against the existence of the right of forfeiture, there is no reliable evidence of its existence at any earlier period.
This disposes of the appeals: and it is unnecessary to consider whether, if the right of forfeiture exists, it was waived by the appellant, in any of the cases with which we have to deal. I may merely record that I see no reason why the Subordinate Judge's finding on this point should not be accepted. As a result I would dismiss these second appeals with costs.
Krishnan, J.—The learned Subordinate Judge has now Submitted findings on the two issues remitted to him. Both sides have filed objections to them. It is however sufficient to consider the finding on the 1st issue as to custom for the disposal of these second appeals.
The Subordinate Judge found on that issue that a custom entitling the landlord to resume the holding on a alienation thereof by the grantee existed prior to 1896 but had since then fallen into desuetude. The existence or non-existence of an alleged custom is a mixed question of fact and law and it has now been settled by the Full Bench in Kumarappa Reddi…(Plaintiff) v. Manavala Goundan…(Defendant) .*, that a finding about it is revisable by the High Court in second appeal. We must therefore see how far the accepted evidence in the case and the authorities relied on by the Subordinate Judge support his finding or are against it.
The Subordinate Judge has very properly made an elaborate enquiry into the existence of this alleged custom including the examination of several Court witnesses. The effect of that evidence both oral and documentary has been in my opinion very correctly stated by him, when he says that it does not establish the existence of the alleged custom but on the other hand it disproves it. The documents relating to Pravarthi Anubhavam grants which are grants for the performance of future services were rightly discarded by him as the resumption of such grants arises under the general law itself and not from any special custom. The numerous documents filed by the defendants including, as the Subordinate Judge says, many assignments, mortgages and Court sales of holdings under Karamkari and Adimayavana and similar tenures, without having worked any forfeiture in fact, are in my opinion strong evidence on their side. I agree with the Subordinate Judge that on the other hand the documents filed on the plaintiff's side seem to lead to no inference of a conclusive character and they are entitled to little weight as against the evidence of the defendants, I am not discussing the documentary and oral evidence in detail as the Subordinate Judge has done so and I agree with his observations regarding it.
The complaint that the plaintiff was handicapped by not being given sufficient time to adduce his evidence seems to me to be entirely baseless. If he really wanted further time he should have applied to this Court for it; but he did not do so. As it is, I observe that he has adduced in evidence documents, belonging to several big jenmis in South Malabar such as those of Guruvayoor Devaswom, Kavalappra Estate, Kuthiravattarn Estate, Thiruvillamala Devaswom, Thriprayar Devaswom and Thjruvanchikulam Devaswom besides those belonging to his own Zamorin's Estate.
I accept the Subordinate Judge's finding so far as it is in favour of the non-existence of the alleged custom on the evidence in the case. But in agreement with my learned brother, I am of opinion, that he is wrong in his finding that such a custom existed prior to 1896. Though the evidence now given does not go back further than 1896 there is no indication in it of any break or change in the custom at that date. It will therefore be a perfectly legitimate inference to hold that it indicates that the same state of affairs existed even prior to 1896: But the Subordinate Judge thinks that the statement about the incidents of the tenures in question in the Sudder Proceedings of 1856 and the opinion of Charles Turner, C.J in his well-known minute on the draft bill relating to Malabar Land Tenures justify the inference that the alleged custom existed in 1856 and later.
The Sudder Proceedings were brought to our notice at the former hearing and were given their due weight by us before we called for findings. There is nothing express in them in favour of the plaintiff's contention, As regards Karamkari tenures, it is not stated in them that they are even inalienable, much less that they are resumable on alienation. I have already pointed out in my remand order that it is entirely illogical to infer a right of forfeiture of a holding on alienation and even inalienability of it from the mere existence of a right of escheat in the landlord on failure of the grantee's heirs. An estate terminable on the happening of an event does not thereby become inalienable. As I pointed out to the learned counsel for the plaintiff at the time of this hearing a life estate is such an estate; but nobody ever contended that it was therefore inalienable. We have in the mulgeni tenure in South Kanara exact case of a permanent tenure where the right of escheat exists coupled with unrestricted alienability. As regards the Adimayavana tenure, the text of the proceedings expressly says the land is not resumble except where it is given for performance of future services. That of course is not the case in the present suits. To rely upon a marginal note to say that such land is inalienable in such a case and to infer further from it that it is also resumble on alienation as the Subordinate Judge has done seems to me to be unsupportable. The Subordinate Judge also seems to have failed to keep in view the distinction between inalienability and resumability. The one does not follow from the other; the right of resumption and re-entry on alienation must be expressly given See Parameshri v. Vittappa Shanbaga, and Netrapal Singh v. Kalyan Das it cannot be inferred from inalienability alone.
The Sudder Proceedings do not thus in my opinion give any support to the Subordinate Judge's view. Even if it were otherwise I would have no difficulty in agreeing with my learned brother that we should not give them undue weight and treat them as conclusive. My learned brother has also dealt with the opinion of the learned Chief Justice in his minute and I fully agree with his view and have nothing further to add regarding it. The other authorities as observed by him are not in plaintiff's favour and I have already considered in my remand order the reported cases cited as bearing on the question before us.
In this state of the authorities, considering the evidence now adduced, the only proper conclusion to come to, in my opinion, is to hold that plaintiff has failed to prove the existence at any time of a custom entitling the landlord to resume, on alienation, lands granted by him on Karamkari or Adimayavana tenure where they are not proved to have been granted for performance of future services. In conclusion I would observe that it is to be, regretted that the Subordinate Judge did not pay more attention to the observations in the remand order.
On the above view no decision on the question of waiver is necessary. I agree to the order proposed by my learned brother.
S. S.Appeals dismissed.