Order:- It is stated the 6th respondent who is the 13th defendant died two years ago and the appellants had not taken any steps to bring his legal representatives on record. The appeal as against him has abated and the appeal will stand dismissed so far as the 13th defendant is concerned. The Court delivered the following Judgment:-Defendants appellants represent the kanomdars under a deed of kanom executed by the 13th defendant, karnavan and manager of the Chirakkal Kovilagam and they are also trustees of the devaswom properties under the management of the said Kovilagam. Twelve items of properties are the subject-matter of the kanom deed Exhibit P-1 dated 9th February, 1929. Only items 3 and 12 belong to the family. The rest were the trust properties of the devaswom. On 7th November, 1943, under Exhibit P-2, defendant 13 executed a melkanom in favour of the plaintiff, empowering her to redeem the kanom and recover possession. The suit is based on the melkanom for redemption and recovery of possession. The defence that was raised was that the melkanom was in violation of the provisions of the Hindu Religious Endowments Act, and it is invalid and inoperative, and that the plaintiff was not entitled to any relief on the strength of an invalid melkanom and that there were no valid grounds for eviction under the provisions of the Malabar Tenancy Act. As regards the application of the Malabar Tenancy Act to the suit transaction, it was contended on behalf of the plaintiff, that the defendants were not entitled to any rights under the Malabar Tenancy Act by virtue of the suit transaction being exempted by the proviso to section 17 of the Act. Section 17, which entitled a kanomdar to claim renewal from his immediate landlord excepted kanoms of property situated in South Malabar where the kanartham exceeded 60 per cent. of the value of the Jenmi’s rights in the holding, and in North Malabar 40 per cent. of its value. The suit properties are situated in North Malabar and the question therefore, that arose for consideration was whether the sum of Rs.7,000, which is the kanartham fixed under Exhibit P-1 exceeded 40 per cent. of the value of the Jenmi’s rights in the holding. A commission was appointed to fix the valuation as in December, 1930. of its value. The suit properties are situated in North Malabar and the question therefore, that arose for consideration was whether the sum of Rs.7,000, which is the kanartham fixed under Exhibit P-1 exceeded 40 per cent. of the value of the Jenmi’s rights in the holding. A commission was appointed to fix the valuation as in December, 1930. After inspection of the properties, the commissioner stated that in his estimate the lands would yield only twelvefold which opinion of the commissioner was accepted by the lower Court. As regards the price there was however no clear and definite evidence on which the commissioner’s finding as regards the price was based and the only evidence that was placed before the Court as regards the price of paddy, was that of P.W.3, and statements regarding the prevailing price found in the Malabar District Gazette during the relevant period. P.W.3, a paddy merchant, stated that the price was Rs.10, 11, 12 or 13 per 100 seers, which is supported by entries in his accounts books. On behalf of the defence D.W.2 spoke to paddy selling at Rs.15 or 16 in or about the relevant period. Exhibit P-7 of May, 1931, a statement published in the Malabar District Gazette showed that in Chirakkal Taluk average price of paddy was 8-8-2 seers per rupee. It was urged that it was 7-8-2 per rupee for 1929-1930 as per Exhibit P-7-A. But in Exhibit P-7 the price given is 8-8-2 seers per rupee, which works out at about 12 Rs. per 100 seers. The learned Judge has considered the evidence of P.W.3 and the statements in the Gazette and on the said basis arrived at the value of the lands at Rs.13,295-1-8, 40 per cent. of the value being obviously less than Rs.7,000. It was held that the suit will clearly fall within the proviso of section 17 of the Malabar Tenancy Act and as such the defendants will not be entitled to any rights accruing to them so far as delivery of possession under the Malabar Tenancy Act was concerned. I see no reason to interfere with that finding which is based on the available evidence in the case. I see no reason to interfere with that finding which is based on the available evidence in the case. The other contention that was urged was that under section 76 of the Hindu Religious Endowment Act of 1927, the suit transaction namely, Exhibit P-2 which is a melkanom relating to devaswom properties, they being 10 out of the 12 items covered by the document, a mortgage of such properties would be invalid and inoperative under the provisions of the said section. This contention was accepted by the learned Judge but he took the view that the melkanom should be regarded as valid at least in so far as the properties of the Kovilagam included therein are concerned, but only prima facie invalid and inoperative as against the devaswom properties. There are 2 items of properties, items 7 and 12 which belong to the kovilagam. The learned Judge granted a decree for redemption and possession relying on section 91 of the Transfer of Property Act. It may strightway be mentioned that section 91 of the Act has no bearing on the facts of the case, and it is really surprising how a decree could be passed on the facts in this case relying on section 91 of the Transfer of Property Act. It was urged on behalf of the respondents that section 76 of the Act would only apply to a mortgage, and not to a kanam or a melkanom but Mr. Jagadeesa Iyer has fairly conceded that both kanom and melkanom are in essence only a mortgage and that this correct position is laid down by the decisions in Kanna Kurup v. Sankara Varma Raja1and Kunhoshi v. Mammad Koya2and other decisions on the subject including the view of Mr. Sundara Iyer in his book on Malabar Law, page 299. The position, therefore, is that the suit melkanom Exhibit P-2 is invalid and inoperative under section 76 of the Hindu Religious Endowments Act. But though the mortgage of the devaswom properties are invalid and inoperative the mortgage might be contended to be valid and rights accruing under the mortgage in respect of Kovilagam properties might be enforced in a suit for redemption, but there is section 60 of the Transfer of Property Act, which is a bar for partial redemption, except in a case where the mortgagee has acquired in whole or in part the share of a mortgagor. The proviso was introduced by the amendment of the Transfer of Property Act, by the amending Act XX of 1929. That this section 60 applies to the suit document, there can be no doubt as Exhibit P-1 is long after the amendment of the Transfer of Property Act. The suit for redemption therefore, has to fail. Mr. Jagadeesa Iyer has raised an interesting argument that notwithstanding the invalidity of the mortgage, it will be open to a mortgagor, who has title to the properties, to recover possession in a suit for redemption, and if the mortgage on which ,the suit is based is held to be invalid and inoperative it. would not prevent the Court from passing a decree for possession of the properties, as a suit for redemption is in essence a suit for recovery of possession. He relied upon a decision in Gopala Dasu v. Rami3. In that case the property that was mortgaged was an enfranchised service inam land, and such a transaction is void under section 5 of the Madras Act III of 1895. The suit was for possession on the ground that the mortgage in respect of those properties have been entirely discharged, and with reference, to a contention that the mortgages are void and the defendants having been in possession continuously have acquired an absolute title to the suit lands, and cannot be dispossessed by the plaintiffs or anybody else, it was held that the defendants had not acquired any higher title than that of a usufructuary mortgagee, and the plaintiffs were held entitled to recover possession and for an account. In a later decision of this Court in Appanna v. Venkatawami4, in a suit instituted to recover certain lands on redemption of a usufructuary mortgage for Rs.200 purported to be created by an unregistered deed in 1902, the defendants (some of whom were legal representatives of the original mortgagee who had been put in possession under the deed, and the others were persons who got into possession within 12 years of the suit), set up an independent title in themselves and pleaded also that the deed was inadmissible in evidence and that the suit was barred by limitation. It was held that the deed, though unregistered, was admissible in evidence to show the character of the defendants’ possession; that the defendants could be shown to have acquired only a limited interest as mortgagees by adverse possession that to prove the extent of the interest acquired by them by adverse possession, the terms of the mortgage asserted by them may be proved and such proof cannot be regarded as an attempt to prove the unregistered mortgage or to adduce secondary evidence of it, and the unregistered deed as well as other evidence was admissible for the purpose. It was also held that a suit to redeem is substantially a suit for possession, and that, even if defendants had not acquired any interest by adverse possession, the suit was maintainable as one for possession based on title. That was the view taken by Venkatasubba Rao, J., following a decision of the Calcutta High Court in Armada Halt v. Khudiram Hait1. On the difference of opinion between Venkatasubba Rao and Spencer, JJ., the question was referred to a third Judge Ramesam, J., who expressed his agreement with the view taken by Venkatasubba Rao, J., and agreed with the view that a suit to redeem a usufuctuary mortgage is substantially a suit for possession. It will be therefore open to a mortgagor in a suit for redemption of a usufructuary mortgage to rely upon his title and recover possession, if it is found that the mortgage relied upon is void as in the present case. But such possession he could become entitled to, only on the strength of his title. The question, therefore would arise whether the plaintiff had acquired title to the property, on which he could rest his claim for possession or has acquired any title by virtue of the melkanom granted by the Kovilagam. A melcharth is defined under section 3(20) of the Malabar Tenancy Act as a transfer by the landlord of part of his interest in any land held by his tenant by which the transferee is entitled to evict such tenant. A melcharth is defined under section 3(20) of the Malabar Tenancy Act as a transfer by the landlord of part of his interest in any land held by his tenant by which the transferee is entitled to evict such tenant. But in the present case the melcharth pertains to a kanom and it is also usually called a melkanom, by which the person in whose favour it is executed acquires the rights of the jenmi under the kanom to redeem and recover possession of the property, and enjoy for such period as is provided under the melcharth or melkanom document. The melcharthdar derives his right from and is entitled to enforce such rights as may accrue from the’ kanom. The limited right which the jenmi possesses, namely, of a mortgagor entitled to redeem the mortgage and take possession is alone that is conveyed under a melcharth or a melkanom the title of the property continuing to vest and remaining with the jenmi. Notwithstanding the melkanom he continues to be the owner of the property and his title is not transferred by virtue of a melcharth or a melkanom. The plaintiff therefore being in the position of a person entitled to only limited rights enforced he being not entitled to any other rights, it is not open to him to rely on the title which the jenmi possesses to recover possession of the suit properties. The position might be different, if the suit had been instituted by the 13th defendant or on behalf of the Chirakkal Kovilagam, but the suit is only by the plaintiff, who is only a melkanomdar. This contention is, therefore not open to the plaintiff and in such circumstances, the suit has necessarily to fail. The appeal is allowed the suit is dismissed with costs here and in the Court below. Costs to be paid by the plaintiff-respondent. K.C. ----- Appeal allowed.