Decided on January 04,1967



- (1.) SECOND appeal by defendants 8 to 12, ~~~ ~~ and 18, who are the legal representatives of the mortgagee under Exts. B 107 and B 108, the nature of the transaction whereunder is the question here. The suit is for partition of five items of landed properties, of which items 1 and 2 only are involved in the aforesaid mortgages, and therefore in this appeal also.
(2.) THE facts are thus: Mariyumma, the original proprietress of plaint items 1 and 2 had executed a possessory mortgage. Kaivasapanayadharam, Ext. B 107 its counterpart Kaichit is Ext. B 207 on June 25, 1934 , for a sum of Rs. 200/-with a personal covenant to repay and a right to sell the property to collect the amount. After appropriation of interest on the mortgage amount a purappad of Rs. 70/-, 300 coconut leaves worth Rs. 3 3/4 and 6 fowls worth Rs. 2/-were stipulated to be paid to the mortgagor THE deed was for a term of three years, with a provision for continuance of its terms if the mortgagee continued in possession after the term. On February 16,1942, Mariyumma executed a renewed possessory mortgage, Kaivasapanayadharam, Ext. B 108 its counterpart is Ext. A-5 taking an additional advance of Rs. 100/ -. This deed also contains a personal covenant to repay and a right of sale for the amount. THE purappad stipulated in this deed is Rs. 60/-, 300 coconut leaves worth Rs. 3 3/4, and half a thulam of sugar worth Rs. 2/ -. To the plaintiff's claim to redeem his share of the properties from defendants 8 to 18, the latter contended the transactions evidenced by Exts. B 107 and B 108 to be leases in substance, entitling them to fixity of tenure. THE Munsiff held the transactions to be leases within the meaning of the Malabar Tenancy Act and therefore disallowed redemption. On appeal, the Subordinate Judge, relying on the right of sale conceded in the deeds, held them to be mortgages and therefore allowed redemption. The Munsiff found (a) that the property involved in the aforesaid deeds is a "very valuable property", being 2 acres 12 cents in extent, with 185 coconut palms, so that for the purpose of borrowing rs. 200/-under Ext. B 107 or Rs. 300/-under Ext. B108 there was no necessity to mortgage the entire property; (b) that there is no specific recital in the deeds "as to the title of the mortgagor but only a bare recital that this property belongs to her"; (c) that no title deeds were handed over; (d)that "when the proportion between the amount advanced and the purappad is taken into account certainly this does not appear to be a mortgage document"; (e) that "the provision to pay rent in sundries also indicates that this should be a lease"; (f) that "the purpose for which this property was taken was for constructing a house there for residence" since "immediately after the mortgage a house was constructed" and the mortgagee began residing there; and (g) that "if it is a mortgage there is absolutely no necessity for the mortgagee to execute a panayakaichit to the mortgagor'; and on the above grounds concluded "that the lease evidenced by Exts. B 207 and A-5 are for the use of this property as a kudiyiruppu and that the transaction referred to is not a mortgage. " The Subordinate Judge reasoned to the contrary thus: "a reading of these documents will show that the transaction evidenced by Exts. B 107 and B. 108 is a mortgage and not a lease. When a properly is scoured for payment of a debt and it is seen that the debt is a genuine one and if there is a provision for sale, it is difficult to construe such a document as a lease or a Kanam. These perhaps are the only distinguishing features that make a document a mortgage. " The question here is of the correctness of the aforesaid conflicting views. It is conceded at the bar that the claim to fixity of tenure set up by the appellants has now to be decided under the Kerala Land reforms Act, I of 1964, in view of the provisions of S. 132 thereof.
(3.) AS has been observed in Krishnan Nair v. Sivaraman nambudiri (1967 KLT. 78 F. B.), among the different kinds of leases it is a kanam that most closely resembles a possessory mortgage; but, for a transaction in Malabar to be a kanam, it is essential that the relative instrument should be styled as Kanam or Kanapattom. Both Exts. B 107 and 108 are styled as kaivasapanayam. The transactions in question cannot therefore be kanams within the definition of the Land Reforms Act. But, it is open to the appellants to show that though the deed is drafted as a possessory mortgage or Kaivasapanayam, it is in substance a lease, under S. 12 (1) of the Act I of 1964. That Section reads: "notwithstanding anything in the Indian Evidence act, 1872 (Central Act 1 of 1872), or in any other law for the time being in force, any person interested in any land may prove that a transaction purporting to be a mortgage, atti, karipanagam, panayam or nerpanayam of that land is in substance a transaction by way of kanam, kanamkuzhikanam, kuzhikanam, verumpattam or other lease, under which the transferee 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 permits proof of a transaction purporting to be a mortgage being in substance a lease. Unlike S. 5 and 6, S. 12 does not entitle a party to urge that what was a mortgage on the date of its execution should now be construed as a lease. What it permits is only proof that a transaction purporting to be a mortgage is in substance a lease. In other words, it permits only a lifting of the veil and exposure of the true transaction. If a transaction of tenancy between a landlord and tenant is drafted as an apparent mortgage, it enables the party interested to explode the shell and expose its substance. Here, it is pertinent to keep in mind that the very purpose of written instruments is to exclude controversy and speculation on the terms of transactions between parties. What the parties intended by a transaction which they have embodied in a written instrument must be, ascertained from the terms of the instrument, unless there is a definite plea that the instrument is designed to camouflage it, in which case the circumstances of the transaction and the conduct of the parties will have to be analysed to determine the delusion of the deed. S. 12 allows a free investigation in this regard untrammelled by technicalities of proof-in-Court. But, if it is seen that at the time of execution of the deed the intention of the parties was to effect a mortgage, it cannot be now urged that it should be deemed to be a lease because the amount advanced under the deed is low in comparison with the value of the security, or because the annual payments to the mortgagor are more than what the mortgagee is allowed to appropriate for interest on the loan, or for any of the reasons propounded by the Munsiff as mentioned in Para. 3 above, all of which are strongly urged by counsel for appellants here. I know no principle that requires a debtor to borrow as much as his creditor is willing to lend on the security of his property, irrespective of his need at the time. As "borrowing dulls the edge of husbandry", I would expect a prudent debtor to borrow only the minimum that would meet his need of the time, anticipating to redeem his property as soon as he is able to repay the debt, and not to encumber the property to the hilt and make its redemption difficult. It is the way of a Shylock to get somehow in possession as extensive a property as possible, even as security for a paltry loan, alluring the borrower by a nice offer to pay regularly all the residue of its profits after taking a part for his interest on the loan, with the ultimate object of advancing more and more, from time to time, on the security of the same property and thereby winning the property to himself. The gullible borrower, confident of regaining the property on repayment of the present loan and unaware of any risk in delivering a larger property than may be strictly necessary to secure the loan as he is assured payment of all the excess of its yield by the lender, may easily agree to execute a mortgage on such larger property. I do not therefore think that the proportion of the loan to the value of the security can be a criterion for nullification of the express terms of a mortgage deed, unless the loan is in itself a negligible sum. The definition of a usufructuary mortgage in S. 58 (d) of the Transfer of Property Act is: "where the mortgagor delivers possession or expressly or by implication binds himself to deliver possession of the mortgaged property to the mortgagee, and authorises him to retain such possession until payment of the mortgage-money, and to receive the rents and profits accruing from the property or any part of such rents and profits, and to appropriate the same in lieu of interest, or in payment of the mortgage-money, or partly in lieu of interest or partly in payment of the mortgage-money, the transaction is called an usufructuary mortgage. ". It contemplates delivery of possession of a property in mortgage on condition that only a part of its profits shall be appropriated by the mortgagee in lieu of interest on the mortgage-money. There is nothing in the definition to show that such part should be its major part. When the mortgagee put in possession of property is authorised to take only a part of its profits in lieu of his interest, he is obliged to pay from time to time the residue of its profits to the mortgagor and therefore an express provision to that effect, or an agreed quantification of such residue, with the obvious purpose of avoiding a cumbersome accounting from time time, cannot be said to affect the nature of the transaction being a mortgage. I would therefore hold that if the terms of the instrument are clear that the transaction involved was one of loan with security of property, the fact that the loan bears a low proportion to the value of the property, or that the interest on the loan bears a low proportion to its income cannot contradict its purport. The non-enactment in the Act I of 1964 of a provision like the second proviso to S. 21 of the malabar Tenancy Act, 1929-56, which reckoned the proportion of the amount advanced to the value of the property as a test for a right to fixity of tenure also lends support to the above inference. The question would only be whether at its execution the parties meant the transaction to be a mortgage or to be a masked lease.;

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