Mahomed vs Alikoya and Others

The question for decision in this appeal is whether the Subordinate Judge is right in holding that the plaintiff (now appellant) is not entitled to redeem the property sued for before the expiration of 12 years from date of his document (Exhibit A).

The Court of First Instance held that the property could be recovered by plaintiff before the usual period of 12 years, because Exhibit A itself provides that the property should be surrendered on demand at any time within 12 years. Were this a correct translation of the stipulation in Exhibit A, the decision of this Court in Shekhara Paniker v. Raru Nayar ILR 2 Mad. 193 would be authority in support of the above finding, for it was there held that, although the right to hold for 12 years is inherent in every kanom according to the custom of the country, it is competent to the jenmi to exclude its operation by express agreement. Consequently it must be held that the agreement in Exhibit A for surrender of the property within 12 years is not unenforceable. But the stipulation is not for surrender on demand, but in case of necessity the correct translation is "if at any time the property shall be necessary for you." Such being the case the Subordinate Judge seems to be right in holding that the case comes within the decision of this Court in Raman v. Mayan (Second Appeal No. 747 of 1885 not reported), and that in the absence any special exigency the suit is premature and must be dismissed.

The second appeal fails therefore and is dismissed with costs.