The judgment-debtor cannot be regarded as necessarily a party to an investigation under Section 246 of Act VIII of 1859. Defendants are estopped from contesting the plaintiff's jenm right to the property based on the conduct of the demisee.

1. Appeal No. 102 of 1908 - The 3rd defendant has preferred this appeal against the decree of the District Court of North Malabar, decreeing redemption of a kanom demise of the year 1870, made in favor of one Kunhi Lakshmi Kettilamma, the mother of the 2nd and 3rd defendants, by Iswaran, the 12th defendants predecessor in title. The 1st defendant is the brother of Kunhi Lakshmi. Exhibit A is the demise sued on and it is executed by Iswara Vadhyan as the jenmi of the properties. It does not appear that there was any counterpart or kaichit executed by the demisee, but admittedly the demise was accepted by Kunhi Lakshmi who would seem to have been in possession of it on Putravakasam tenure. The property therefore seems to belong to the children of Kuuhi Lakshmi, who are entitled to hold them as tavazhi property with the incidents of such property under the Marumakathayam Law. There seems to be a dispute between the 2nd and 3rd defendants with respect to the question whether the 2nd defendant has any right to the property. But this dispute is immaterial for the disposal of this case. The plaintiff alleges inter alia that the property is held under the demise by the 2nd and 3rd defendants and by defendants Nos. 4 and 10 under them. The 1st defendant did not put in an appearance. The 2nd and 3rd defendants, while admitting the demise, deny the plaintiffs light to redeem. They contend that the plaintiff had no jenm right over the property on the date of the demise, but only a kanom interest for an amount much smaller than the amount acknowledged by Exhibit A to have been received by Iswara Vadhyan from Kunhi Lakshmi, that the jenm right vested in the Kurungot Tarwad till 1878, when it was sold in court auction in execution of a decree against the tarwad and purchased on behalf of Kunhi Lakshmi by a benamidar (Exhibit II) who executed a conveyance later on in the same year to Kunhi Lakshmi (Exhibit III) and that Iswara Vadhyans right to redeem was terminated in law on the date of the said auction sale, as Kunhi Lakshmi then became the owner of the equity of redemption and at the same time held a sub-mortgage from Iswara Vadhyan for a much larger amount than that due to him on his own mortgage. They further allege that in 1872, when the property was attached in execution of a decree against Iswara Vadhyan as his jenm, the Karnavan of Kurungot Tarwad put in a claim petition under Section 246 of Act VIII of 1859, asserting that the jenm right belonged to his tarwad and that Iswara Vadhyan had only an otti right, which was directed to be sold, and that no suit having been instituted by Iswara Vadhyan within one year after the order on the claim petition, Exhibit 7, dated 23rd March 1872, the plaintiff as the assignee of Iswara Vadhyans right cannot claim to redeem the demise as jenmi.

2. The principal questions raised in the lower court were those covered by issues Nos. 2 and 4 to 8. Of these, the second issue refers to the plaintiffs title to redeem either on jenm or any other title that he may have. The 6th and 7th issues raised the question whether in consequence of the order, Exhibit I, on the claim petition of 1872 referred to above, the plaintiff is debarred from setting up his jenm title, assuming that he was the jenmi before. The lower court held that the order, Exhibit I, not having been questioned by a regular suit within one year after it was passed, the plaintiff cannot now claim to redeem as jenmi. But it held that the plaintiff has an irredeemable otti right and is entitled as such to maintain this suit for redemption. The learned vakil for the appellant contends that the view of the lower court that the plaintiff is entitled to an irredeemable mortgage cannot be sustained and the question of the nature of the plaintiffs right over the property, assuming that he cannot set up a jenm claim, was argued before us at some length. Mr. Rosario, for the 1st respondent, attacks the District Judges finding with respect to the