THOMAS Vs. POULOSE

JUDGEMENT

(1.) A.S. No. 11 of 1957 is by the 1st defendant, and A.S. No. 63 of 1957 by the assignee of defendants 3 and 5 against the decree in O.S. No. 184 of 1124 on the file of the District Court, Kottayam.

(2.) THE suit was for recovery of property on the basis of a 'Melvaipa Pattachit', evidenced by Ext. I dated 18-4-1100, executed by the 1st defendant in favour of Kesava Pillai, a member of the plaintiffs' tarwad. In a partition in the tarwad of Kesava Pillai, the suit property, 5 acres 10 cents in extent, was allotted to Ramakrishna Pillai, who assigned the same to the plaintiffs and thereby conferred on him a title to redeem the Melvaipa-pattom. Ext. I covers an extent of 26 acres 95 cents of paddy flats out of which the suit property is only a portion. THE contention of the 1st defendant was that the plaintiffs are entitled only to the reversion in 4 acres 10 cents of the suit property; and also that he is entitled to fixity of tenure under the Act IV of 1961 which contention, though not specifically raised in the Memorandum of Appeal, has been allowed by me to be raised in view of the Act passed long subsequent to the institution of this appeal, with direction that all suits concerning agrarian relations shall be decided in accordance therewith.

(3.) THE learned advocate for the plaintiffs contends that the transaction embodied in Ext. I is a usufructuary mortgage since an advance of Rs. 1,750/- was given at the time of the demise and a further sum of Rs. 650/- was to be paid before the property was delivered to the demisee and all the amount has been secured on the land. THE fact that an advance has been made under the transaction does not, in my view, offend the transaction being one of tenancy. If the advance amounted to a loan between land lord and his tenant, one would expect some provision in the document for its recovery. Significantly enough there is no provision in the document for enforcing repayment of the advance made under it. Under clause (50) of Sec. 2 of the Act IV of 1961 a kanomdar would be a tenant; and a 'kanom' is defined in clause (18) of Sec. 2 as a transfer for consideration of an interest in specific immovable property, the incidents whereof include "a right in the transferee of hold the said property liable for the consideration paid by him," It is clearly indicative of the fact that the advance (paid at a demise of land) being secured on the land demised would not derogate from the demise being one of tenancy in respect of the land concerned. THE suit document is styled a 'Melvaippa Pattachit'. THE word connotes "a lease with a loan". THE entrustment of the property is expressly said to be 'on lease' only. THE rent is specified in the document. In view of these features; Ext. I can only be a demise on lease, though an advance has also been made which is repayable at surrender of the property.