KARTHYAYANI AMMA Vs. RAGHAVAN PILLAI

JUDGEMENT

(1.) This Second Appeal arises from an order in execution of a decree for redemption of a mortgage.

(2.) When the decree holder applied for delivery of possession the third defendant objected on the ground that the transaction on which the decree was obtained was a kanam-kuzhikanam as defined in S.2(19) of the Kerala Agrarian Relations Act, 4 of 1961. The objection was overruled by the execution court, and the order was confirmed in appeal. Defendants 3, 5 and 6 have preferred this Second Appeal from the concurrent orders.

(3.) The only question for decision is whether the transaction evidenced by the deed, Ext. D-1, is a usufructuary mortgage (otti) or a kanam-kuzhikanam. Several decisions of this court were cited before me in which different documents came up for construction. The only principle that can be deduced from these decisions is that the courts should see whether the relationship created is that of lessor and lessee or debtor and creditor. I had occasion to point out in another case that the rule that each case must be decided on its facts applies with greater force when the decision turns on the construction of the deed sought to be enforced in the case. All that the court has to do is to examine the deed to find out the intention of the parties. I also extracted the following dictum laid down by the Supreme Court in Ramdhan Puri v. Bankey Bihari Saran (AIR 1958 S.C. 941):