MAMMADISSA Vs. ASYAKUTTY UMMA
LAWS(KER)-1967-2-21
HIGH COURT OF KERALA
Decided on February 24,1967

MAMMADISSA Appellant
VERSUS
ASYAKUTTY UMMA Respondents

JUDGEMENT

- (1.) DEFENDANTS 2 and 14 to 16 are the appellants and the appeal arises out of O. S. 524 of 1960 on the file of the Munsiff's Court, manjeri. The plaintiffs instituted the suit for redemption of a registered 'kaivasapanayam' (mortgage with possession), dated 7th April 1913 and Ext. A-2 purakadam, dated 8th November 1914 and for recovery of possession of the plaint schedule properties. The properties belonged in Jenm to the Chembazhi Illom of the 13th defendant. The Illom demised the plaint and other properties under ext. B-1, dated 13th June 1882 in favour of Motha. Subsequently the Illom executed the kanam Ext. B-2, dated 5th April 1896 in respect of the plaint schedule properties to Ayisumma the predecessor-ininterest of defendants I to 8. The Illom then executed the kaivasapanayam (mortgage with possession) on 7th may 1913 to Ayisumma in respect of the plaint items for a sum of Rs. 500. Ex. Al is the counterpart, dated 7th May 1913 executed by Ayisumma to the Illom. The Illom took a further advance of Rs. 500 and Ext. A-2 purakadam, dated 8th november 1914 was executed by the Illom in favour of Ayisumma. The rights of ayisumma under the mortgage with possession and Ext. A-2 have now devolved on defendants 1 to 8 and 14 to 16 and the interest of the Illom in the plaint properties has been purchased by the plaintiffs under Ext. A-3, dated 29th march 1960. The main contention raised by defendants 1 to 8 is that the transaction in respect of which Ext. Al has been executed is not a mortgage but is a lease and the plaintiffs are not entitled to get a decree for recovery of possession. This plea was overruled by the courts below and a decree was granted to the plaintiffs " for recovery of possession of the plaint schedule properties on payment of the price of redemption. The second appeal is directed against the decree and judgment of the lower appellate court allowing redemption and recovery of possession.
(2.) THE main contention raised on behalf of the appellants was that the transaction of 7th May 1913 sought to be redeemed is a lease and the plaintiffs are not entitled to a decree for recovery of possession. It is agreed between the parties that the right of the plaintiffs to recover possession of the plaint schedule properties has to be decided under the provisions of Act T of 1964. I shall therefore consider the nature of the transaction in dispute between the parties in the light of Act I of 1964. Ext. B-1 is the kanam executed by the Illom in favour of Motha in the year 1882, in respect of the plaint and other properties. It is not necessary to narrate the terms of Ext. B-1. Ext. B-2 is the kanam document of the year 1896 executed by the Illom in favour of Ayisumma in respect of the plaint properties. The amount advanced under Ext. B-2 was Rs. 300 and Ext. B-2 provided for payment of 80 parahs of paddy every year towards purapad to the illom after the appropriation of interest on the kanam amount and payment of revenue. Nothing turns on the terms of Ext. B-2 as it was specifically surrendered to the Illom, when the document of 7th May 1913 was executed. The document dated 7th May 1913 executed by the Illom in favour of Ayisumma has not been produced by the appellants. The said document was for Rs. 500 in respect of the same property comprised in Ext. B-2 The sum of Rs. 300 due to the transferee under Ext. B-2 was adjusted in the sum of Rs. 500 which form the consideration for the document of 7th May 1913. In accordance with the practice in Malabar there is a counterpart executed by Ayisumma in favour of the Illom on the same date and that is Ext. Al. The nomenclature of Ext. Al is panayakychit. A transaction in the Malabar area cannot be a kanam under Act I of 1964 unless the document describes it as a kanam or kanapattom. There was no attempt by the learned counsel for the appellant to establish that the transaction in question is a kanam or kanapattom defined in S. 2 subsection (22)of Act I of 1964. It has not been proved by producing the document of 7th May 1913 that it is called kanam or kanapattom. S. 12 of Act I of 1964 will not in such cases, as was held in Krishnan Nair v. Sivaraman Nambudiri 1967 KLT. 78 enable the transferee to prove it to be a kanam or kanapattom. So it has to be held that the transaction sought to be redeemed is not a kanam or kanapattom defined in S. 2 (22) of Act I of 1964. The next question to be decided will be whether the executant of Ext. Al is a tenant defined in S. 2 (57) of Act I of 1964. This will depend upon the nature of the transaction evidenced by the document of 7th May 1913. Both sides took it for granted that the terms of the document of 7th May 1913 are those contained in Ext. Al and argued the appeal on that basis. There were no steps taken to produce the document of 7th May 1913 in the courts below or in this Court. It is provided in Ext. Al that out of 300 parahs of paddy ascertained as the annual income (pattom) of the property, 80 parahs should be appropriated towards interest on the sum of Rs. 500 and 72 parahs should be paid towards tax and the balance of 148 parahs of paddy should be delivered at the Illom towards purapad. Ext. A-2 provides that on the sum of Rs. 500 received thereunder, the transferee is entitled to appropriate from out of the purapad due under Ext. Al, a sum of 80 parahs of paddy towards interest on the amount advanced under Ext. A-2 and she should pay annually 68 parahs of paddy towards purapad thereafter. According to the decision of the Supreme Court in ramdhan Puri versus Sankey Bihari AIR. 1958 SC. 941 where the question to be decided is whether a transaction is a mortgage or a lease: "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 you get a debt with security of land for its redemption, then the arrangement is a mortgage by whatever name it is called". The terms of Ext. A-1 are very clear and specific to bring out the intention of the parties thereto. In Ext. A-1 it is stated that in consideration of Rs. 500 received the kanam right over the property included therein (obviously the reference is to Ext. B-2 is given up and the executant is taking possession of the same in kaivasapanayam (mortgage with possession ). The expression used in the document is The sum of Rs. 300 due to the transferee under Ext. B-2 is also adjusted and discharged by the execution of Ext. Al. I have therefore no hesitation to hold that the parties intended by the execution of the document of 7th May 1913 to create a debtor and creditor relationship and the property comprised in Ext. Al is given as security for the debt. On a mere construction of Ext. Al it has to be held that the transaction between the parties does not evidence a lease.
(3.) THE learned advocate for the appellants submitted that his clients should be given an opportunity under S. 12 sub-section (1) of Act I of 1964 to prove the real nature of the transaction by adducing parol evidence. THE said provision is in these terms: 12. Right to prove real nature of transaction:- (1)Notwithstanding anything in the lad an Evidence Act, 1872 (Central Act I of 1872), or in any other law for the time being in force, any person interested in any land may prove hat a transaction purporting to be a mortgage, of i, karipanayam, panayam or nerpanayam of that land is in substance a transaction by way of kanam, kanatnkuzhikanam. kuzhikanam, verumpattom or other lease, under which the transferre is entitled to fixity of tenure in accordance with the provisions of s. 13 and to the other rights of a tenant under this Act. " It was not contended before me that the transaction between the parties is in substance a kanakuzhikanam or a kuzhikanam. The attempt was only to establish that it is a lease. The learned counsel for the appellants has filed CMP. 3055 of 1966 to accept an additional written statement, wherein grounds are mentioned to support the case that the transaction between the parties is a lease. The main reason given in CMP. 3055 of 1966 for filing the additional written statement in this Court is that Act I of 1964 came into force only on 1st April 1964 after the trial of the suit was closed on 30th March 1964. There was no motion in the lower appellate court on behalf of the appellants for acceptance of any additional written statement, though the learned judge considered the nature of the transaction between the parties in the light of the provisions of Act I of 1964. It is noteworthy that before the lower appellate court there was no prayer for opportunity to adduce parol evidence to prove the real nature of the transaction. Since the additional written statement contains only grounds for alleging that the transaction is a lease I have accepted the same. I am extracting below Para. 2 and 3 in the additional written statement which enumerate the grounds for saying that the transaction is a lease and not a mortgage: " (2) The properties were in the possession of Ayisa umma the paternal grandmother of defendants 2 and 14 to 16 under, the registered kanam document 1398/1896. This kanam right has not been legally surrendered. (3) The illom of the demisor is an affluent Namboodiri family with large family. The tenants were subservient to them. They had to wait at the illom and deliver paddy after cleaning and measure according to the para arbitrarily kept in the illom. The tenants had no right to demand the amount advanced under Ext. Al and A-2. There is no right of sale. The tenants had to bear the expenses of surrender whenever the jenmi was prepared to take surrender at their will and pleasure. Under Ext. A-2 they had to measure the paddy according to 'pattamaryada' surrender after the day of 'ucharal' denoting that the properties were entrusted for the purpose of cultivation. ";


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