MATHAI THOMAS Vs. YOHANAN KUNJAMMA

JUDGEMENT

(1.) THE first two second appeals are filed against the decrees and judgments in A.S.No.41 of 1967 and A.S.No.35 of 1967 respectively.The first appeals themselves were carried by the plaintiff and the defendant against the same decree in a suit for redemption of Ext.A transaction of 1113.Twice the matter came up to this Court.Ultimately in S.A.No.1102 of 1961 the High Court set aside the decrees of the courts below and remanded the case for fresh disposal with a direction to go into the question as to whether the defendant was a tenant entitled to protection under the Kerala Land Reforms Act.The Trial Court granted a decree for possession holding that the defendant was not a tenant,but directed payment of a huge sum by way of value of improvements.The defendant challenged the decree for possession in A.S.No.35 of 1967 while the plaintiff challenged the quantum of the value of improvements awarded in A.S.No.41 of 1967.However,the lower appellate court held the defendant to be a tenant entitled to fixity of terrace and dismissed the suit.In consequence,the question of the value of improvements was not gone into.

(2.) BEFORE me,the main point pressed by counsel on both sides turned on the construction of Ext.A,counsel for the plaintiff contending that the transaction was an Otti mortgage while counsel for the defendant would have it that his client was either an Ottikuzhikanamdar or a kuzhikanomdar and was entitled to immunity from eviction.Thus,the short but important point is as to the nature of Ext.A.

(3.) THE name given to the transaction by the parties is not conclusive but has a bearing and Ext.A is called a 'aoolcaocooroo 'in both cases.To that extent,it supports the plaintiff.The other provisions have also to be read before the total effect can be ascertained.Right in the beginning I may refer to a recent ruling in a p case which went up from this Court to the Supreme Court where their Lordships had to consider the essential tests to tell off a mortgage from a kanom,which is a species of tenancy."The first and foremost element to be found for a lease is whether there is the intrinsic intention in the deed for enjoyment of the property by the transferee in lieu of rent or perquisites "observed the Supreme Court in the decision reported in 1971 KLT 163.Mr.Justice Ray,speaking for the Court,emphasised the principal features of a mortgage,in contra -distinction to a kanom,thus: "The dominant features of a mortgage transaction on the other hand would be the ascertainment of the ratio of the value of land to the amount advanced.If the ratio of the amount advanced bears a substantial proportion to the value of the property transferred it would be a strong piece of intention and circumstance to indicate loan and a mortgage.A provision entitling the transferee to ask for a return of money by sale of the property would be a very important feature to indicate that the transaction is a loan and a mortgage and not a lease.The absence of such a provision,however,would not totally repel the transaction to be a mortgage.The execution of counterpart is some times a common feature in the case of possessory mortgage though the existence of a counterpart by itself will not be conclusive of the question."