NARAYANAN ASARI RAGHAVAN ASARI Vs. VELAYUDHAN NAIR KRISHNAN NAIR
LAWS(KER)-1967-12-1
HIGH COURT OF KERALA
Decided on December 14,1967

NARAYANAN ASARI RAGHAVAN ASARI Appellant
VERSUS
VELAYUDHAN NAIR KRISHNAN NAIR Respondents

JUDGEMENT

- (1.) This appeal is by the 1st defendant in a suit for redemption of an Otti and Kuzhikanam evidenced by Ext. P2 dated Kanni 2, 1108 (1933), which is for a term of 6 years. The suit has been decreed concurrently by the Courts below.
(2.) The 1st defendant, the present mortgagee -- the original mortgagee was his father -- contends that the transaction is in substance one of tenancy and therefore irredeemable and also that under S.4A of the Kerala Land Reforms Act I of 1964 as amended by the Kerala Stay of Eviction Proceedings Act, IX of 1967, he has to be deemed a tenant. Ext. P2, Otti and Kuzhikanom, says that for the consideration received by the mortgagor the mortgagee may enjoy the property under Otti and Kuzhikanom rights and that his plantations would be paid for, but he should not make any building or well. There is no particular provision for redemption or for sale or for realisation of mortgage money. There is a stipulation that the mortgagee should pay 10 1/2 fs. to the mortgagor towards tax. When it is remembered that a transaction of Otti, as understood in Travancore area where the instant transaction took place, involves as a matter of its legal incidents a right to sue for the mortgage money, a right to bring to sale the mortgage property, a tight to possess and enjoy the property and a right to redeem, the non mention of such incidents in the deed cannot be of any consequence.
(3.) Counsel contends that a Kuzhikanom by itself is a tenure and therefore an Otti and Kuzhikanom is a combination of mortgage and tenancy. Kuzhikanom in the State of Travancore meant only a right to compensation for plantations made on the land. It did not involve a covenant to pay rent and therefore cannot be said to constitute in itself a tenancy. Otti and Kuzhikanom is only a possessory mortgage with recognition of a right to compensation for mortgagee's plantations on the land. Even under the Land Reforms Act, 1963 (Act I of 1964) a provision entitling a mortgagee to compensation for improvements does not constitute the mortgagee a tenant entitled to fixity of tenure. A tenant may be entitled to compensation for improvements; but a person entitled to compensation for his improvements on the land need not be a tenant as defined in the Land Reforms Act. It is therefore impossible to hold that an Otti and Kuzhikanom spells a tenancy within the meaning of the Land Reforms Act.;


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