KANIYANKANDIYIL KUNHIRAMAN NAMBIAR Vs. PAIRU KURUP OF MANNUKANDIYIL TARWAD
LAWS(KER)-1968-8-43
HIGH COURT OF KERALA
Decided on August 06,1968

KANIYANKANDIYIL KUNHIRAMAN NAMBIAR Appellant
VERSUS
PAIRU KURUP OF MANNUKANDIYIL TARWAD Respondents

JUDGEMENT

- (1.) THE second appeal filed by the 4th defendant arises out of a suit instituted by the plaintiff for redemption of Ext. A1 dated 2-2-1936 executed by the karanavan and the three senior anandiravans of the Valia Pathirikot tarwad in favour of the first defendant and for recovery of possession of the plaint properties. Ext. A2 is the marupat of the same date executed by the first defendant in favour of the executants of Ext. A-1. The plaintiff is the Court auction-purchaser of the rights of valia Pathirikot tarwad under Ext. A-3, sale certificate in O. S. 513 of 1929 on the file of the Munsiff's Court, Payyoli. The suit was instituted in 1953 when the malabar Tenancy Act was in force. In view of the repeal of the said enactment it is not necessary to state the contentions of the parties based on the same. The suit was decreed by the trial court after overruling the contention of the defendants that Ext. A-1 is a kanom under Act 4 of 1961. Trial Court took the view that Ext. Al evidences a mortgage. The appeal filed by defendants 3 and 4 was disposed of by the lower appellate Court after coming into force of Kerala Land Reforms Act, 1963 (Act 1 of 1964 ). The appellate Judge also took the view that the transaction evidenced by Ext. A1 is not a kanom under Act I of 1964 but only a mortgage. The decree of the trial court allowing recovery of possession was therefore confirmed.
(2.) THE main question to be considered in the second appeal is whether the transaction evidenced by Ext. A-1 is a kanom defined in the Kerala Land Reforms act, 1963 (Act 1 of 1964) or whether it is a mortgage entitling the plaintiff to recover possession of the plaint properties. The answer to this question depends upon the interpretation of Ext. A1. The guiding rule in such cases is furnished by their Lordships of the Supreme Court in Ramdhan Puri v. Bankey Bihari, AIR 1958 sc 941 in the following words: "the point to be first decided is whether the transaction is a lease as contended by the contesting respondents. 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' (See Ghosh on Mortgages, Vth Edition, volume I, page 102 ). "
(3.) AS Lord Greene, M. R. , said in Booker v. Palmer, (1942) 2 All ER 674 at p. 677: "there is one golden rule which is of very general application, namely, that the law does not impute intention to enter into legal relationships where the circumstances and the conduct of the parties negative any intention of the kind. ";


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