Judgment :- 1. Defendant 4 in O.S. 281 of 1120 on the file of the Sherthallai District Munsiff's Court has brought this second appeal against the concurrent decisions of that court and of the District Judge of Alleppey repelling her contention that the plaint schedule property was held on an irredeemable tenure. The learned District Munsiff found that there was an express provision for surrender and that the contention was therefore untenable. Defendant 4 appealed against that decision and the District Judge affirmed it. The learned judge went into the question more elaborately than the trial court. It is convenient to quote here what the lower appellate court has said on the question. "Plaintiff has filed this suit in his capacity as the vendee of the rights of Puthikal Kovilakom to which plaint item 1 belonged. Item 2 is a building put upon item 1. The first ground urged in appeal by the learned Advocate for the appellant is that the property is not redeemable on the basis of the provisions of S.5 Clause.2 of the Jenmi and Kudiyan Act. The mortgage sought to be redeemed is Ext. A of 1098. The prior document of 1072 referred to in Ext. A along with the copy of the classification register for the property have been produced by the appellant in this court and as it is found that they are of assistance in deciding the controversy between the parties, I have admitted them in evidence and marked them accordingly on the side of the defendant in continuation of his documentary evidence in the lower court. They are therefore marked as Exts. II and III. From the details of the property furnished by the classification register as regards the elements necessary to constitute a property, Jenmom property and from the relevant portions of Ext. II, I have no hesitation in finding that the suit property is jenmom property. The Jenmi of the property is a non-Malayalee Brahmin Jenmi. In the circumstances the defendant is perfectly entitled to take his stand on the provisions of Clause.2 of S.5 of the Act to show that he has acquired rights of permanent occupancy in the holding. And in this case it has to be said that all the requirements laid down in S.S, Clause.2 are available to establish a case in favour of Kudiyan. And in this case it has to be said that all the requirements laid down in S.S, Clause.2 are available to establish a case in favour of Kudiyan. But the said case conferring rights of permanent occupancy on the tenant is shaken to its foundation by the application of the provisions of S.42 of the Act. Ext. A contains in my opinion a provision for redemption as contemplated in the above mentioned section. The authority reported in 1950 KLT 327 is not applicable to the facts of this case as therein the provision in the document regarding the option given to the Kudiyan to surrender the property cannot be treated to be amounting to a provision for redemption as required in S.42. In Ext. A in this case, the words expressly providing for redemption as laid in the section referred to. I therefore hold that in this case the effect of S.5 Cl. (2) has been rendered nugatory by the provisions in S.42. In that view, I find that the properties are redeemable". 2. It is clear from the foregoing extract that the learned judge found S.42 of the Jenmi Kudiyan Act (V of 1071, Travancore) to be the only impediment in the way of his accepting the contention that the tenure under which the suit property was held was irredeemable. Ext. II makes it abundantly clear that the original tenant's predecessor-in-interest came into possession of the property at least in 1032. Para.2 of S.5 of the Jenmi Kudiyan Act conferred permanent occupancy right on the tenants of non-Malayalee Brahmin Jenmis if they have uninterruptedly held the holding for a period of not less than twenty-five years. S.42, however said that the provisions of the Act will not apply to any kanapattoms executed since 25.12.1042 which expressly provide for redemption. The decision of the lower appellate court turned on the construction it put on the provision as to surrender embodied in the suit document (Ext. A, dated 25.9.1098). That document was a renewal of a prior kanom of 1072 (Ext. II, dated 5.5.1072) and Ext. II shows that itself was the renewal of an earlier demise of 1032. There was therefore clear uninterrupted holding of the property for over twenty-five years. Both Ext. A and Ext. A, dated 25.9.1098). That document was a renewal of a prior kanom of 1072 (Ext. II, dated 5.5.1072) and Ext. II shows that itself was the renewal of an earlier demise of 1032. There was therefore clear uninterrupted holding of the property for over twenty-five years. Both Ext. A and Ext. II styled themselves as kanom demises (the former being the counter-part of the kanom demise executed by the jenmi in 1098 and the latter the kanom demise of 1072) and either deed contains the necessary incidents to construe it as evidencing a kanom tenure in the normal acceptation of the term. It is common ground that Puthiakal Kovilakom, the original jenmi, was a non-Malayalee Brahmin Jenmi. The only question open to debate to attract the application of S.5 would appear to be whether the land is Jenmom land as defined in S.3(1). The lower appellate court has after referring to Ext. II and Ext. III, copy of the classification register relating to the plaint property, found the same to be jenmom land. The decision of this court in 1950 KLT 327 lends support to that view. The plaintiff had filed a memorandum of cross-objection regarding certain amounts disallowed to him by the lower appellate court. Either in that memorandum or in the argument before us nothing was said to assail the lower court's finding that the land concerned is jenmom land within the meaning of the definition referred to. On the other hand, learned counsel for the respondent stated at the bar that that finding was not impugned. 3. That being the position, the question, for consideration is whether the two lower courts were right in holding that the demise of 1098 gave the jenmi an absolute right of redemption. The lower courts have quoted in their judgments the provision for redemption in the suit demise, Ext. A and the extract from the lower appellate court's judgment quoted earlier contains that provision. It is clear from that that the Jenmi-Kovilakam bargained for no absolute right of redemption. The provision as to redemption is conditional on the Jenmi-Kovilakom requiring the land for its own cultivation and what is stated is that if it be not so needed, the tenant shall take a renewal as per the custom and practice of the Kovilakam. It is clear from that that the Jenmi-Kovilakam bargained for no absolute right of redemption. The provision as to redemption is conditional on the Jenmi-Kovilakom requiring the land for its own cultivation and what is stated is that if it be not so needed, the tenant shall take a renewal as per the custom and practice of the Kovilakam. We are not unfamiliar with statutory enactments creating permanent occupancy rights providing for eviction for the Jenmi's own cultivation or other bona fide requirement. With respect to such provisions courts have uniformly held that to entitle the Jenmi to get surrender of the holding, it must prima facie be shown that the Jenmi bona fide requires the property for his own use. In this case there is no such averment in the plaint nor any reference made to the condition as to surrender incorporated in the demise. The provisions in the earlier demise (Ext. II) as to surrender are similar. Ext. B, the sale deed, under which the plaintiff claims the property shows that the Kovilakom had become extinct, that under the Kshatriya Act the last male owner's estate had devolved on his wife and children and that those heirs had through a Mukthiyar agent sold the property to the plaintiff. In the absence of even an averment in the plaint that the plaintiff requires the property bona fide for his own cultivation, we do not have to consider here whether the provision as to resumption of the grant contained in the demise can be availed of by a transferee of the Jenmi's reversion. We are therefore definitely of the view that the plaintiff has not shown any right to claim redemption and that the concurrent decisions of the two courts allowing redemption cannot be sustained. 4. It was argued that Ext. A (as also Ext. II) contained an express provision for surrender as contemplated by S.42, that it was immaterial that there was a condition superadded to the said provision and that the demise was in consequence hit by the section. We wonder why when under the terms of S.5 the tenant became entitled to the right of permanent occupancy he should be deprived of it by reason of S.42, except on the terms stipulated for surrender in the demise. We wonder why when under the terms of S.5 the tenant became entitled to the right of permanent occupancy he should be deprived of it by reason of S.42, except on the terms stipulated for surrender in the demise. We are not construing a term of the contract between the parties with a view to see whether that term would amount to a clog on redemption but whether the statutory right created by S.5 would be lost by reason of the reservation contained in S.42. Our view is that neither law nor logic can be found to hold, that the Jenmi is not bound by the condition imposed to demand surrender and that so long as that condition is not satisfied, the right of permanent occupancy created by S.5 cannot be disturbed. This is the reason behind the view taken in 1950 KLT 327, though the condition contained in the demise in that case was different. 5. In this view of the matter it is unnecessary to consider whether dehors the Jenmi and Kudiyan Act the contention that the tenure is irredeemable can be sustained. The decisions in 5 TLJ 266, 7 TLJ 404 and 24 TLJ 249 appear to lend support for the view. If with respect to non jenmom lands parties can create permanent tenures without offending any law, we fail to see why the same rule cannot be extended to demises of Jenmom lands which do not fall within the purview of the Jenmi and Kudiyan Act. We are not unaware that speaking with reference to anomalous mortgages, the Privy Council has held (AIR 1922 Privy Council 17) that the provisions of S.98 of the Transfer of Property Act are subject to the provisions of S.60 of the said Act and that the rule as to clog on redemption applies to anomalous mortgages in the same way as it applies to other recognized mortgages. We are here concerned with a transaction entered into within a jurisdiction where Transfer of Property Act was not law (Travancore State) and the deed evidencing the transaction created the relationship of land-lord and tenant between the parties thereto. What Raman Menon, C.J., said in 7 TLJ 404 (Cheriyan, J. concurring), at page 409 of the report, may usefully be quoted here: "In this State, we freely uphold, under one name or another, irredeemable Ottis. What Raman Menon, C.J., said in 7 TLJ 404 (Cheriyan, J. concurring), at page 409 of the report, may usefully be quoted here: "In this State, we freely uphold, under one name or another, irredeemable Ottis. In such circumstances, I am of opinion that, unless we hold the stipulation to be invalid either on the ground of fraud or misrepresentation or undue influence; or unless we find that it is an unconscionable bargain, we must give effect to it". 6. In 5 TLJ 266 Muthunayagom Pillai and Ananda Rao, JJ., had struck the same note and both these cases were followed in 24 TLJ 249 by Chakko and Sivasankara Pillai, JJ. If a kanom creating an absolute right of permanent occupancy did not offend the common law of the land we fail to see how a permanent right subject to certain conditions can be held to fall within the mischief of the rule as to clog on redemption. Indeed Para.2 of S.5 of the Jenmi and Kudiyan Act opens with the words "In the absence of an express contract, "and it goes on to state" nothing in this section shall be taken to confer the right of permanent occupancy on the Kudiyan of a non-Malayalee-Brahmin Jenmi, unless he or his predecessors in interest or both have uninterruptedly held the holding for a period of not less than twenty-five years". In these circumstances the argument that the term of the demise that the Jenmi can demand surrender of the holding only for his own cultivation offends the rule regarding clog on redemption looks puerile. 7. When the plaintiff cannot redeem the property, questions as to the quantum of the value of improvements and allied matters do not arise for decision. When the property is found to be irredeemable, the question naturally arises whether the Jenmi is entitled to anything other than the Jenmikaram due thereon -1950 KLT 327. We do not however have to decide that question here as the appellant did not dispute the liability for the michavaram and other dues claimed in the plaint. All that she contended with respect thereto was that she can personally be made liable only for the arrears that became due after she obtained the kanom right over the property on 19.7.1118 (Ext. IV). The decree for arrears as sued for was not challenged either here or before the lower appellate court. All that she contended with respect thereto was that she can personally be made liable only for the arrears that became due after she obtained the kanom right over the property on 19.7.1118 (Ext. IV). The decree for arrears as sued for was not challenged either here or before the lower appellate court. As redemption is not being allowed it is only arrears that accrued due up to the date of the suit (15.3.1120) that can now be decreed and there will be a decree therefor. The appellant can personally be made liable only for arrears after 19.7.1118 and until 14.3.1120. It is seen that the annual michavaram and other dues came to 331/4 Fs. and Onakazhcha to 6 Fs. The michavaram and other dues were payable on 15th Meenam and the Onakazhcha in Chingom. The appellant's personal liability will therefore be limited to michavaram and other dues for 1119 and Onakazcha for 1119 and 1120. The whole arrears will carry interest at 12% per annum from the due dates till realisation. 8. What remains for us to consider is the question of costs. Though it was contended that the property was irredeemable the relevant documents to support that contention were produced only before the lower appellate court. Though in the written statement the value of improvements including the value of the appellant's building was stated to be only Rs. 500/- both before the lower appellate court and in this court the value claimed for improvements was Rs. 900/-. In the circumstances we direct the parties to bear their costs throughout. 9. The appeal is allowed to the extent indicated above, that is, the decree for redemption granted by the lower courts is set aside and the plaintiff will have a decree only for arrears of michavaram, Onakazhcha etc., claimed in the plaint and that accrued due till the date of the institution of the suit (15.3.1120). The appellant's personal liability for these dues will only be for that accrued due after the date of Ext. IV (19.7.1118). As stated earlier parties will bear their costs throughout.