Sadasiva Aiyar, J

[1] The Kanom mortgagee while he is also a lessee (See S.A. 786 of 1912) has as lessee even higher rights than an ordinary lessee (Vasudevan Nambudripad v. Valia Chathu Achan (1896) I.L.R. 24 M. 47 (F.B).

[2] Following second appeal 786 of 1912 I would hold that paddy plants raised by a Kanom mortgagee judgment-debtor are improvements and if the respondents (mortgagee-judgment-debtors) had only the rights given them by the Malabar Improvements Act, they would be entitled to claim 3/4 of the value of the plants if they were " sold by public auction to be cut and carried away."

[3] But the principle embodied in Section 108 Clause (i) of the Transfer of Property Act which principle so far as my knowledge goes is also the common law of this country, allows to a lessee whose lease of uncertain duration determines by any means except the fault of the lessee, a right to carry away all the crops planted or sown by him. In the present case the decree sought to be executed does not fix a certain date for the termination of the Kanom lease but merely allows the mortgagor-decree-holder to deposit the decree amount on any date between 23rd March and 23rd September 1909, and thus to put an end to the lease on that uncertain day between 23rd March and 23rd September. The lease thus became by the decree a lease of uncertain duration and the mortgagee-lessee was therefore entitled to reap the harvest raised by him and to appropriate the entire crops raised by him.

[4] The cases quoted by the appellant s learned vakil as regards the rights of mortgagors and mortgagees who have not been given, by the statute or customary law of the country, the positions also of lessors and lessees are not relevant to the decision of this appeal.

[5] The appeal is therefore dismissed with costs. Appeal against Appellate Order No. 123 follows.

Spencer, J.

[6] I feel a certain degree of hesitation in following the judgment in S.A. No. 786 of 1912 to which my learned brother was a party, because I doubt whether the words in Section 10 of the Malabar Compensation for Improvements Act (I of 1900) " plants spontaneously grown during the period of the tenancy or sown or planted " include annual crops such as paddy.

[7] But I think in respect of growing crops the respondent is entitled to the benefit of the principles enacted in Section 108 (i) of the Transfer of Property Act seeing that a Kanomdar has certain rights usually belonging to lessees as well as those belonging to mortgagees.

[8] It is true that Section 117 of the Transfer of Property Act excludes agricultural leases from the operation of 108 except so far as the Local Government has by notification extended its provision to any particular area, but in Vasudevan Natnbudripad v. Valia Chathu Achan (1898) I.L.R. 24 M. 47 at 56, it was observed that a Kanom demise was not a purely agricultural lease and that rules in this Act which are founded on reason and equity might with propriety be applied to cases of this sort.

[9] The provisions of Section 108(i) are in accordance with the common law right by which a tenant for an uncertain period has under the name of emblements right to the benefit of growing crops of such species as ordinarily repay the labour by which they are produced within the year in which that labour is bestowed. Although a Kanom demise is usually for a fixed period of 12 years, the period is often, as in this case, exceeded and if the Kanomdar is left in any uncertainty as to the date when his rights may be redeemed, I consider that he holds under a lease of uncertain duration. In this case six months time was given from the date of the appellate decree to pay the money for redemption which would extend the time till September 23rd 1909 but the crops were actually harvested on September 15, 1909 ; and the appellant was put in possession a few days later. Ramalinga v. Samiappa (1889) I.L.R. 13 M. 15, which was cited by appellant s pleader was a case of a mortgagee in possession who claimed, the value of crops from an execution purchaser. The mortgagee in that case did not stand in the same position as the Kanomdar in the present case who had certain rights of a tenant as well as those of a mortgagee.

[10] I agree that these appeals should be dismissed with costs.