KUTTIKATT ALIAS PADIPURAKKAL PUTHANMADATHIL KOCHAMMA; PADIPURAKKAL PUTHANMADATHIL APPAKUTTAN ALIAS NARAYANAN; THADIKARRU PARUNCLUISSON ANTONI Vs. KURUVITTIL PAPIAMMA S DAUGHTERS KUNHIKAVAMMA; KPAPIAMMA S DAUGHTER KUNHIAMMA; IKKARAMMA

JUDGEMENT

(1.) The decision in this case depends upon the true construction of a kanom deed, dated 13th July 1897. The deed commences by reciting two previous documents, a hanom, and a patom chit under which a balance of Rs. 600 Was due from the defendants tarwad and then demises the land in perpetuity and contains a covenant for renewal after every twelve, years.

(2.) In Malabar it is customary to create a usufructuary mortgage of lands by a demise for twelve years and the mortgage is not redeemable until the expiration of that period. This practice resembles that of English conveyances in creating forms to secure jointured or for raining portions or sub-terms as mortgages of lease-hold interests. Having regard to the facts that the purpose of the document was to discharge previous incumbrances and that the rent reserved is nominal, and to the recital of the number of trees and tanks upon the property which would furnish evidence in estimating any improvements claimed to have been made by the lessee, I am of opinion that the intention of the parties was to create a mortgage and the deed should be read as if it contained a proviso for redemption.

(3.) Since the demise is made with the object of creating an interest in the land to be held by the kanomdar as security for the re-payment of the amount due by the lessor, it is in this respect immaterial whether the grant is made in perpetuity or for a specified term of years; the right of redemption is not affected thereby. The local Usage, however, restricts the right o? redemption for a certain period and when the period does not exceed twelve years, the custom has always been enforced by this Court, and the restriction may be accepted as reasonable and, therefore, not invalid as a clog or fetter on the right of redemption. [See Morgan v. Jeffreys (1910) 1 Ch. 620 : 79 L.J. Ch. 360 : 74 J.P. 154 : 28 T.L.R 324].