AYYAPPAN Vs. VENKITESWARA NAICKEN

JUDGEMENT

(1.) DEFENDANTS 2 and 4 are the appellants. This Second Appeal has been referred to the Division Bench as the learned Single Judge before whom it came up for hearing felt some doubts about the correctness of some of the rulings of this court relating to the point under consideration. The short point which arises in this Second Appeal is whether the transaction evidenced by Ext. A-1, a kaichit executed by the grantee to the grantor and Ext. B-1 a Kaivasapanayam executed by the grantor to the grantee, is a mortgage, or a kanam as defined in Act IV of 1961 (Kerala). The learned Munsiff held that it was a kanam and therefore decreed the suit only in respect of arrears of rent claimed. The learned Subordinate Judge, on appeal, held that the documents evidenced a transaction in the nature of a mortgage and granted a decree for redemption with consequential reliefs. This Second Appeal is, therefore, filed challenging the decision of the learned Subordinate Judge.

(2.) THE material provisions in the two documents are that a sum of Rs. 100/- has been advanced by the first defendant to the plaintiffs & in consideration thereof the property has been delivered to the first defendant on kaivasapanayam. It is provided, that after appropriating Rs. 6/- towards interest on the advance the 1st defendant is to pay Rs. 3-10-0 for a period of one year from the 20th Mithunam 1120, Rs. 8-7-0 for the year commencing with the 20th Mithunam 1121, and Rs. 13-4-0 per annum after the 20th Mithunam 1122. THE 1st defendant also undertakes to give on Navarathri day in Kanni every year one bunch of bananas worth Rs. 2/-. It is also provided in the document that if the 1st defendant were to effect improvements on the property he will be given one half the value of the same. THE further provision is that if on demand after a period of three years the amount is not paid the 1st defendant can realise the same by sale of the property.

(3.) WITH respect to the first question, counsel argued that there is no distinction between a transfer of possession by way of security and transfer of possession by way of enjoyment. In other words his contention was that the transfer of possession both under a mortgage and a lease is for the purpose of enjoyment, and the distinction that the transfer in one case is as security and in the other, by way of enjoyment is a distinction without a difference. I am not prepared to accept this submission. A mortgagee in possession is not the beneficial owner of the usufruct of the property. The usufruct belongs to the mortgagor. The mortgagee receives it for the purpose of applying it towards the discharge of the mortgage amount and interest. But under a lease the usufruct belongs to the lessee and he enjoys it beneficially. He is not accountable for it. The word 'enjoy' means a beneficial occupation of the property with no liability to account. But the question still remains whether kanam is a lease in order that we may say that it is a transfer of a right to enjoy the property.