Judgment :- 1. These two second appeals arise out of a suit for redemption and were referred to a Division Bench as they involved questions of some importance. S.A. No. 112 of 1952 is by the 5th defendant and S.A. No. 199 of 1952 is by the plaintiff. There are two schedules of property A and B attached to the plaint. A schedule is a plot of wet-land 2 parahs in extent while B schedule is another plot 1 acre 27 cents in extent. A schedule belonged to the plaintiff's Swaroopam in jenm and was demised under usufructuary mortgage in the year 1078 to one Porinchu, the grand-father of the 1st defendant. Plaint B schedule is Pandaravaka land for which the plaintiff Swaroopam had obtained Patta. It is plaintiff's case that B schedule property lies adjacent to A schedule and is in possession of the defendant as an accession to the mortgage holding and as such is liable to be redeemed along with item 1. The suit was laid therefore for redemption of both A and B schedules. The main contentions of the defendants were that A schedule item was not redeemable as the document of 1078 was in the nature of a Kanom and as regards B schedule, the defendants were in possession thereof independently of A schedule and hence that item also was irredeemable. The trial court accepted the defendant's contentions and dismissed the suit. In appeal by the plaintiff the court below allowed redemption of A schedule and dismissed the suit in regard to the B schedule. The parties have questioned by their separate appeals the decree of the court below to the extent it is against either of them respectively. 2. Taking up the defendant's appeal, S.A. No. 112 of 1952, Ext. III of 1078 is the mortgage with reference to A schedule property executed by the plaintiff Swaroopam in favour of Porinchu. On the same date Porinchu executed an Ethir deed Ext. B in favour of the Swaroopam. Whether Ext. III amounts to a kanom and therefore evidences an irredeemable tenure depends on the nature of the provisions. The following are its incidents. It is styled a panayam. It has an initial lump sum consideration in money which bears a specific interest. There is provision for payment of michavarom. B in favour of the Swaroopam. Whether Ext. III amounts to a kanom and therefore evidences an irredeemable tenure depends on the nature of the provisions. The following are its incidents. It is styled a panayam. It has an initial lump sum consideration in money which bears a specific interest. There is provision for payment of michavarom. There is further a provision for surrender of the property on demand at any time after the expiry of six years. It is also mentioned that the mortgagee was in possession under a prior document of 1042. The defendant contends for irredeemability under the Tenancy Act XV of 1113 as amended by Act VI of 1115, alternatively under Act II of 1090. The trial court found in favour of the defendant under both the Acts. The court below did not consider the applicability of the Act of 1090 but found definitely that there was no irredeemability under the Act of 1113. 3. According to S.2(d) of Act XV of 1113, kanom has been defined with reference to the following incidents: "(1) An initial lump sum consideration in money or in kind or both given or deemed to be given by tenant to the land-lord which is mentioned as such in the demise and bears a specified interest. (2) The payment of michavarom, if any, by the tenant to land-lord; (3) The right of the tenant to occupy the property demised for 12 years or for any other longer period which is specified; (4) the liability to pay a renewal fee on renewal of the demise. Explanation:- A transaction called 'panayam' in the document evidencing it may create a kanom within the meaning of the section". Act VI of 1115 added as the Explanation II the following: "(i) A transaction called 'panayam' in the document evidencing it and possessing the incident mentioned in sub-cls. (1) and (2) of this clause, shall, until the contrary is proved be presumed to be a kanom within the meaning of this section, if it is a renewal of a previous document or if in respect of it, a counter-part has been executed by the panayam tenant or there is a provision for renewal or for the payment of 'puravaka' dues; (ii) A provision in any document of the kind referred to in Cl. (i) providing for surrender of the holding on demand to the land-lord shall not, by itself, give rise to any presumption contrary to that provided for in Cl. (i) of this Explanation." There is a provisio to the Explanation but we are not concerned with it. 4. Now there is no doubt that the first two incidents provided for in the section are borne out by Ext. III. The difficulty comes in with regard to the third incident. Learned Counsel for the plaintiff says that the provision for the definite term of six years in Ext. III makes it impossible to hold that the third incident of the definition is satisfied and that therefore the transaction in the case cannot be deemed to be a kanom. Learned Counsel for the defendant says on the other hand, that the provision in Ext. III for surrender of the holding on demand at the end of six years is innocuous in as much as the provision for the surrender on demand shall not by reason of sub-cl. (ii) of the Explanation II by itself give rise to any presumption contrary to that provided for in Cl. (i) of the Explanation and this Cl. (i) is certainly satisfied in this case. 5. It seems to us that the interpretation contended for by the plaintiff and upheld by the court below is the correct one, for Cl. (i) gives rise only to a presumption and the definite provision in the document for surrender of the property on demand after the expiry of six years, rebuts any such presumption. A kanom requires ordinarily a minimum period of 12 years and to the extent that that period is provided against by the parties under their contract there cannot be any kanom. Learned Counsel for the defendant says that it will be anomolous to hold that a provision for surrender on demand at any time without a term may conform to the third incident while the mention of particular period brings about an opposite result. But there is no real anomaly inasmuch as in the absence of a term it is possible to attach the customary period of 12 years while if there is a definite term there is no such scope. But there is no real anomaly inasmuch as in the absence of a term it is possible to attach the customary period of 12 years while if there is a definite term there is no such scope. The case reported in Thrivikram Namboodiripad v. Kunhila 1122 Cochin Law Reports lends support to the above view to the extent it held that no presumption can be made against the express terms of the document in this matter. Learned Counsel for the defendant referred to P.K. Kanara v. P.K. Govindan etc., I.L.R. 5 Madras 310 and other cases to show that kanom period may be fixed as less than 12 years. But these decisions cannot apply in the face of the definite provision in S.2(d) of the Act XV of 1113 noted above which requires at least a period of 12 years to make a kanom. Learned Counsel for the defendants as a last resort suggested that the period of 12 years may be available under Ext. III after the initial period of six years is over, but he did not stop to say how. 6. The alternative contention based on the Tenancy Act II of 1090 was allowed to be argued before us even though apparently it was not pressed before the lower appellate court and may now be taken up. Now kanom has not been defined in that Act but a "kanom tenant" has been defined and it is contended that the defendant would come within that definition. S.2(c) of the Act II of 1090 defines "kanom tenant" as follows: "'Kanom tenant' means and includes a tenant who holds land on payment of a consideration in money or in kind or partly in money and partly in kind to the land-lord for his holding and on a demise made or renewed by a land-lord on a tenure that is subject to renewal after a fixed period on payment of a renewal fee, and also includes the assignee and representatives-in-interest of such tenants". The main incidents of a kanom would therefore appear to be (i) a payment of a consideration for the holding and (ii) a demise made or renewal which is subject to renewal after a fixed period on payment of a renewal fee. The first incident is no doubt present. But Ext. The main incidents of a kanom would therefore appear to be (i) a payment of a consideration for the holding and (ii) a demise made or renewal which is subject to renewal after a fixed period on payment of a renewal fee. The first incident is no doubt present. But Ext. III does not satisfy the second test since the tenure under it is admittedly not expressly made subject to a renewal after a fixed period on payment of renewal fee and impliedly also any renewal if possible can be only for the period of six years in conformity with Ext. III term, but a kanom requires at least a period of 12 years even under the Act of 1090. Learned Counsel for the plaintiff suggests that the scrutiny should be made of the transaction of 1042 of which Ext. III is the renewal, for test of the conditions under the Act II of 1090 and if so it is impossible to say one way or other since the document concerned is not before the court. Whichever way it is viewed, it seems to us that Ext. III cannot fulfil the test of kanom even as required by Act II of 1090. It follows that the conclusion of the court below on the question under consideration has to be accepted in preference to that of the trial court. The appeal, S.A. No. 112 of 1952, therefore, fails and is dismissed with costs. 7. Taking up the plaintiff's appeal S.A.No.199 of 1952, the question for consideration is whether B schedule item was acquired by the defendant as an accession to the A schedule item of mortgage property. It is only in cases where a mortgagee by availing himself of his position as such gains an advantage in the property that he is to hold the advantage so gained for the benefit of the mortgagor. Now Ext. IX sketch that S. No. 542 lies as a narrow strip of land east to west in between S. Nos. 543 that is the A schedule property and 534 which is the B schedule property. It would appear that this S. No. 542 was mortgaged to Porinchu by Kodassery Sthanom in 1060 under Ext. II and was subsequently sold to him. It was the defence case all along that Porinchu came into possession of the B schedule item after he obtained this mortgage Ext. It would appear that this S. No. 542 was mortgaged to Porinchu by Kodassery Sthanom in 1060 under Ext. II and was subsequently sold to him. It was the defence case all along that Porinchu came into possession of the B schedule item after he obtained this mortgage Ext. II, but the plaintiff's case was that even before 1060 the defendant's ancestor and secured B schedule item with the aid of A schedule item which was outstanding with him from 1042. It may be that the courts below were not correct in saying that B schedule item could not be approached from A schedule except through the intervening strip S.No. 542 but even so the plaintiff had definitely to prove that even before Ext. II of 1080 B schedule had been in the possession of his tenant. Learned Counsel for the plaintiff had to concede that there was no positive evidence as to this in the case. It may also be mentioned that the plaintiff had, in a previous case 0.S. No. 281 of 1120 set up an oral lease of the year 1083 to account for the possession of the defendants. That suit was laid for recovery of B schedule item alone on the basis of the oral lease but the oral lease was found against and the suit on title was held to be not entertainable on the ground of limitation. Plaintiff relies upon the observation in the judgment in that case that his relief in respect of B schedule property lay by separate suit for recovery of B schedule as an accession to A schedule property if at all, but it is noteworthy that the High Court definitely left the question of accession open. The concurrent finding of the courts below is that the B schedule item was acquired independently of A schedule item and for the benefit of the acquirer alone. We agree and hold that the plaintiff has not made out his claim for recovery of B schedule item. 8. In the result this appeal, S.A. No. 199 of 1952 by the plaintiff also fails and is dismissed with costs.