JUDGMENT
1. The first question for decision in this second appeal is whether the lower Appellate Court is right in holding that the defendants Nos. 3 and 4 have an otti right, and not merely a kanom rights over the property in suit.
2. The proprietor of the land is the 1st defendant, by whose Illom (house), it together with other property was demised to 2nd defendant’s family in 1871, under Exhibit II. Defendants Nos. 3 and 4 have obtained the plaint land from 2nd defendant’s family under Exhibit I (dated 10th May 1885). Plaintiff claims possession of the land under a Koayakanom deed executed to him by 1st defendant in September 1887 (Exhibit A). Defendants Nos, 1 and 2 support the plaintiff’s claim.
3. The document I, under which defendants Nos. 3 and 4 hold the plaint property, is designated a “mattotti deed.” It says “I have demised to you on mattotti right for Rs. 500. Thullevanvalli wet land measuring 6 pothies which is the jenm of Warikot Illom (i.e., 1st defendant’s family) which was demised to me on otti right along with other properties” ; and possession is given to defendants Nos. 3 and 4 with the stipulation ” When the jenmi gives me the otti amount, you should accept the otti amount herein, which I shall give you and surrender the said land to” me.” Exhibit II is the document, under which 2nd defendant’s family obtained this and other properties from 1st defendant. By it, the plaint land measuring 6 pothies and five other lands measuring 12 pothies, in all six lands measuring 18 pothies, were given to 2nd defendant’s family on mattotti kanom for a sum of ;. Rs. 2,200 for a period of 9 years. The words ” otti kanom” occur in the document when describing the right, on which the properties are demised. The document proceeds as follows:–
Holding the said lands and paying the revenue, you will enjoy the interest of the kanom amount. You should surrender the said properties receiving the kanom amount of the said Rs. 2,200 on payment of the same, after the expiry of the period fixed.
4. Though the phrases mattotti (at the beginning) a.nd otti kanom [487] (in the middle ) occur in Exhibit II, its counterpart B makes no mention whatever of otti but throughout alludes merely to kanom,
5. However, Exhibit II is the document executed by the appellant, and in it the kanom is described as an otti kanom. It must therefore be held that it was not merely a kanom, but an otti, that 2nd defendant obtained from 1st defendant’s family.
6. The difference between otti and kanom is that an otti mortgagee is entitled as of right to the option of making further advances by way of mortgage on the property, before the land can be given on mortgage or as security for an advance to another ; whereas a kanomdar does. not possess a similar privilege; and this right of an ottidar is not affected by tne expiry of the period of the otti (AH Husain and ” Nillahanden Nambudiri (1863) 1 M.H.C.R. 357). Consequently in the present case, 2nd defendant as ottidar could have insisted upon himself making any further advances required by 1st defendant) and disputed plaintiff’s right to possession as subsequent kanomdar.
7. It is contended, however, on behalf of the appellant, that the present is not a case of a further advance, that the agreement between plaintiff and 1st defendant under which plaintiff claims the. right to possession of the plaint land provides for no further advance by plaintiff to 1st defendant, but merely for the redemption by plaintiff of the portion of the property in the possession of defendants Nos.3 and 4. We do not see how this circumstance in any way betters the plaintiff’s position. It is because an ottidar has a right of pre-emption that he has been held to be entitled to the option of making further advances, and if he has the right of pre-emption, the right must also be conceded to him of continuing to hold as mortgagee in preference to another would-be mortgagee. In the present case, it is not the whole of the property demised on otti that is sought to be redeemed by plaintiff, but only the portion of it that has been granted to defendants Nos. 3 and 4 under the mattotti document I, the stipulation in which is that these defendants shall surrender the proprety only when the otti to 2nd defendant is redeemed by 1st defendant, for it says, ” when the jemni gives me (the 2nd defendant) the otti amount, you (defendants Nos. 3 and 4) shall accept the otti amount herein, which I shall give you and surrender the said land to me.” Such being the [488] case, 2nd defendant’s consent to plaintiffs redeeming only the portion held by defendants Nos. 3 and 4 under Exhibit I is of no use to the plaintiff.
8. We therefore dismiss this second appeal with costs.
