KESAVAN Vs. GOPALAKRISHNA PRABHU

JUDGEMENT

(1.) The second appeal raises a short question, whether the transaction evidenced by Exts. P1 and D1, the latter being an otti and the former its counter part or ethir, is a lease or a mortgage. The second appeal arises in execution and the primary court held that the transaction was a lease and not a mortgage and in that view refused recovery of possession. On appeal the learned Subordinate Judge of Alleppey held that the appellant was not entitled to fixity of tenure and therefore allowed the appeal. In second appeal the question for decision is whether the reversing judgment of the learned Subordinate Judge is sustainable.

(2.) The reasoning of the learned Subordinate Judge is a little strange. He concludes in Para.4 of his judgment that the relationship as disclosed by Exts. P1 and D1 cannot be construed as that of a debtor and creditor. He also observes in Para.5 that the appellant may come under the definition of the word tenant in Kerala Act IV of 1961, because he has agreed to pay consideration for his being allowed by the respondent to possess and to enjoy the land of the latter. Notwithstanding that the learned Judge says that the term tenant has been defined in the Act very broadly and rather loosely and the enumeration in S.2 (50) (i) is not exhaustive, but illustrative. He then says that the transaction is not a kanom falling under S.2 (18) of Act IV of 1961 and therefore the appellant is not entitled to fixity of tenure. This is the reasoning of the learned Subordinate Judge, which is being attacked by Mr. S. Bhoothalingam Iyer, the learned advocate of the appellant.

(3.) The object of interpretation of any document is to get at the intention of the parties to the document; and this intention has to be normally gathered from the language used by them and from the circumstances surrounding the transaction. The name given by the parties to the transaction also forms part of the language or circumstances and therefore the name should not be altogether ignored in the enquiry for getting at the intention of the parties. But courts should not be obsessed unduly by the name given to the transaction. As pointed out by the Supreme Court in Ramdhan Puri v. Bankey Bihari Saran ( AIR 1958 SC 941 ), where the question is whether a transaction is a lease or mortgage, the intention of the parties must be looked into and once a debt with security of land for its redemption is found, then the arrangement is a mortgage by whatever name it is called. Raman Nayar, J. in Hussain Thangal v. Ali ( 1961 KLT 1033 ) observes: