SUBRAMANIA IYER S/O SUNDARAN PATTAR Vs. K R ANANTANARAYANA IYER
HIGH COURT OF KERALA
SUBRAMANIA IYER SUNDARAN PATTAR
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(1.) The main question for consideration is a short one and that is whether the provisions of Ext. B1 disclose a mortgage transaction or a tenancy arrangement. In such a case where the question to be decided is whether the transaction is a lease or a mortgage the only guiding rule that can be extracted from the cases on the subject is that the intention of the parties must be looked into and that once a debt with security of land for its redemption is found, then the arrangement is a mortgage, by whatever name it is called. It has been so laid down by the Supreme Court in Ramdhan Puri v. Bankey Bihari Saran ( AIR 1958 SC 941 ).
(2.) The provisions of Ex. B1 indubitably indicate that the intention of the parties to the document was to create a debtor and creditor relationship, with the land transferred as security for the repayment of the debt. An amount of Rs. 2, 500/- is advanced to pay off the several debts enumerated in the document and the document is styled karipanayadharam. The transferee is directed to be in possession of the property with the improvements and kuzhikoors thereon on karipanayam and is also directed to appropriate the interest on the mortgage amount and to pay the Government revenue and the michavaram payable to the jenmi. He is further directed to pay the annual purappad of one para of paddy. Another recital in the document is that after the 30th of Kumbham in any year, if the transferee wants or the transferors pay the amount, the transferee should release the panayam and surrender possession of the property and the expenses for that would be met by the transferors. There is yet another provision in the document under which the transferee is given the right to proceed against the transferors and their other properties as well, if it is found necessary after bringing the mortgage property to sale. These provisions clearly show that the intention of the parties was to create a mortgage and not a lease and on the principle laid down by the decision of the Supreme Court already referred to, the document evidences a mortgage transaction.
(3.) But the contention raised by the learned advocate of the appellants is that the position under Kerala Act IV of 1961 is, at any rate, different and under that Act the arrangement under Ex. B1 is only a lease. The learned advocate enunciates his proposition thus:
All transactions, whether by way of possessory mortgage or otherwise, in which the person let into the use and occupation of a piece of land is obliged to pay any rent, purappad or michavaram, would constitute relations of tenancy entitled to fixity of tenure under Act IV of 1961.;
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