MUHAMMEDKUTTY Vs. GOPALA PANICKER
HIGH COURT OF KERALA
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(1.) No error of law. The document Ext. A1 dated 2-9-1930 calls itself a kaivasapanayadharam; our of the consideration of Rs. 100/- as much as Rs. 66/- and odd went to discharge a prior simple mortgage in favour of the mortgagee; the value of the land, about 47 cents of more or less waste land with a few scattered trees thereon, could not have been much more than the sum of Rs. 100/- advanced; the entire profits after payment of the michavaram and customary dues to the mortgagor's landlord was to be appropriated towards interest; and the mortgagee was given the right to recover the sum of advanced by him by the sale of the land after the expiry of the term of one year. The courts below were therefore quite right in holding that the transaction was a mortgage, and. in no sense, a lease. Nor can the mortgage be a deemed tenancy under S.4A of Act 1 of 1964 as amended by Act 9 of 1967 since, in my view, the conditions in clauses (a) to (d) of the section have to be cumulatively satisfied for that section to come into play the conditions are not in the alternative and, obviously, the appellant who got the mortgage right by assignment only in December 1937 does not satisfy clause (c).
(2.) I dismiss this appeal with costs.;
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