MUHAMMAD ALIAS KUNHAVA Vs. KUNHON ALIAS KRISHNAN

JUDGEMENT

(1.) This Second Appeal arises from a suit for redemption of a mortgage. The suit property was demised on Veppu by the ancestor of the plaintiffs to one Syedalikutty under Ext. A-1 dated 25-8-1879. The rights of Syedalikutty have devolved on defendants 1 and 2. The first defendant contended that the transaction was not a possessory mortgage but a tenure in the nature of a lease and that the plaintiffs were not entitled to recover possession. The Trial Court upheld the plaintiffs case and decreed the suit but on appeal by the first defendant the Subordinate Judge of Kozhikode reversed the decree and dismissed the suit holding that the transaction was a kanom-kuzhikanom as defined by the Malabar Tenancy Act. The plaintiffs have therefore preferred this second appeal.

(2.) The term veppu appears twice in the body of the document. It is stated that what is conveyed is veppu avakasom and that the party was to hold the land on veppu. This term was well known in Malabar as designating a possessory mortgage. In Govindan Nairs Malabar Tenancy Act veppu is described as one of the names under which otti is known in several parts of Malabar. In Moores Malabar Law and Custom 'veppu' is described as exactly equivalent as otti. It is not disputed that an otti is a, usufructuary mortgage. The learned Subordinate Judge observed:

(3.) The learned Judge however held that the first defendant was entitled to renewal and he could not be evicted except in accordance with the provisions of the Malabar Tenancy Act. He based this conclusion on the following passage in Moores Malabar law and Custom: