The main legal point established in the judgment is the application of S.36 of the Transfer of Property Act and the Malabar Tenancy Act, 1929 to determine the entitlement of the plaintiff and defendant 1 to the pepper crop in 1125 M.E.

1. This appeal arises out of a suit for money. Plaintiff is the appellant.

2. Defendant 1 was the karnavan of a Moplah tarwad. In 1939 there were only two other members in the said tarwad, namely, the plaintiff and his mother, and they brought a suit, O. S. No. 103 of 1939, in the court of the Subordinate Judge of South Canara against defendant 1 for partition and recovery of possession of their share in the tarwad properties. Plaintiff's mother died subsequent to the institution of that suit; and after her death a compromise was effected between the plaintiff and defendant 1 and a preliminary decree was also passed in O.S. No.103 of 1939 on 20-1-1942 in pursuance of the compromise. By the preliminary decree 2/3 of the tarwad properties was awarded to the plaintiff and 1/3 to defendant 1, and it was also provided therein that until the final decree defendant 1 would be in possession and enjoyment of items 1 to 235 in the plaint schedule in O.S. No. 103 of 1939 and the plaintiff was to be in possession and enjoyment of certain other properties. On 3-12-1948 a final decree was passed in the suit in accordance with the above preliminary decree, and in the division effected by the final decree plaintiff was given, among other items, five of the items specified in the preliminary decree to be in the possession and enjoyment of defendant 1 until the passing of the final decree. Those five items are garden lands planted with pepper-vines and are in the possession of tenants to whom leases have been granted by the tarwad and who had planted the pepper-vines in them. In Malabar, rent for pepper-vines planted by tenants is usually paid to the landlord at the customary rate of 2 per 10 units of the crop and is known as pathinurandu. The payment of this rent is not generally made at the time of the harvest of each crop, and the custom is for the tenant to take the entire crop in the garden for the first four years and for the landlord to take the entire crop in the fifth year. Under this custom the landlord gets nothing during the first four years and takes the entire crop once in a cycle of five years, while the tenant gets nothing during the year the landlord takes the crop, ana the term pathinurandu is therefore generally used to denote the landlord's right to take the entire crop once in a cycle of five years.

3. Plaint items 1 to 5 in the suit which has given rise to this appeal are the five items of garden land, planted with pepper vines, which the plaintiff got under the final decree in O. S. No. 103 of 1939 and which were in the possession of defendant 1 till that final decree and the delivery thereunder. Defendants 3 to 7 are the tenants in occupation of those items, and defendant 2 is defendant 1's daughter.

4. According to the plaint allegations in this suit, the landlord was entitled in the Malabar year 1125 to take the entire pepper crop in plaint items 1 to 5 on account of pathinurandu right and since the final decree in O.S. No. 103 of 1939 was passed before that year and the plaintiff had also obtained symbolic delivery of possession of plaint items 1 to 5 in pursuance of that decree before 1125 M.E., he was entitled to take the entire pepper crop in plaint items 1 to 5 in the year 1125 M.E. After he got symbolic delivery of possession of the properties he had also issued notices to defendants 3 to 7 informing them of the allotment of the properties to his share and his right to get the pathinurandu. But defendants 1 and 3 to 7 and the husband of defendant 2 colluded together and prevented plaintiff's agents from gathering the crop in plaint items 1 to 5 in 1125, and defendant 1 unlawfully gathered and misappropriated the said crop. Claiming that he was entitled to the whole of the said crop and defendants had, therefore, to make good to him the value thereof, plaintiff brought the present suit for recovery of a sum of Rs. 51200/- from them as the value of the crop which he was prevented by the defendants from tak