MATHAI THOMAS Vs. YOHANNAN KUNJAMMA

JUDGEMENT

(1.) In these appeals against second appeals, only one question is involved, viz., whether Ext. A (the documents are marked Ext. A in all the cases) evidences a lease or a mortgage. The lower appellate court and the second appellate Judge have held that the documents evidence transactions of kuzhikanam. (The second appellate judgment is reported in Mathai Thomas v. Yohannan Kunjamma: 1971 KLJ 427 ). The appeals are directed against the said decision.

(2.) The learned Judge has considered a few decisions and has based his conclusion mainly on the Full Bench decision of this Court in Krishnan Nair v. Perumbalath Kizhakkiniyakath Manakkal Karnavan ( 1967 KLT 78 ) and the Division Bench ruling of this Court in Jagathamma v. Raghavan Pillai ( 1970 KLT 469 ), where the Division Bench has followed the decision of the Full Bench. Some reliance appears to have been placed before the learned Judge by the counsel of the appellants on the decision of the Supreme Court in Kunhamina Umma v. Paru Amma ( 1971 KLT 163 ); and the learned Judge has observed that the decision of the Supreme Court does not lay down anything different from the decisions of this Court already referred to. The Full Bench has held

(3.) The relevant portion of one of the documents (the documents are practically in the same terms) has been extracted by the learned Judge in Para.10 of his judgment. The provisions are that the property transferred is to be enjoyed as otti; that, in addition to the trees already existing, trees like coconut, arecanut and jack and pepper vines have to be planted; that the boundary walls have to be repaired; that necessary buildings might be put up; that a well might be dug; and that the timber trees which have to be cut and removed for planting the aforesaid fruit bearing trees might be cut and removed too, but on cutting, the timber should be given to the transferor. The further recital is that the transferee should pay the land revenue and enjoy the land for 11 years. (In the other document the term is 10 years.) The second appellate Judge has observed