RAJAMMA Vs. BHAIMIKUTTY

JUDGEMENT

(1.) THESE two appeals arise out of two suits for redemption of a mortgage dated 14 111100 (marked in the case as Ext. PI3 ). The appellants are the assignees of the equity of redemption with respect to different portions of the mortgage holding, while the defendants are the representatives-in-interest of the mortgagee. A decree for redemption granted by the trial court was modified by the appellate court to the limited extent that the defendants-mortgagees are entitled to fixity of tenure under Act 1 of 1964 as amended by Act 35 of 1969.

(2.) IT is agreed to by both sides that if Ext. P13 is a possessory mortgage simpliciter the trial court's decree has to be restored. The question, therefore, is whether Ext. P13 is a possessory mortgage as alleged by the plaintiffs or whether it partakes the nature of a lease as contended for by the mortgagees-defendants. The salient features of the document in dispute may be briefly stated. The document is nomenclatured as possessory mortgage. The mortgage is in respect of 4 acres and 45 cents of land; and the consideration is Rs. 6,000/ -. Rs. 4,000/- is reserved with the mortgagee to pay off a prior mortgage, and another Rs. 1,000/-is earmarked for payment of arrears of interest due under the earlier mortgage. The balance of rs. 1,000/-is recited to be borrowed for the purposes of the illom of the executants. There it a term of 12 years for which the property is to be enjoyed as mortgagee The mortgagor is to retain possession of the jack trees and mango trees which stood on the property. On the basis of the income from the yielding coconut trees the pattom is specified as 164 3/4 fanams while the value of other non-yielding trees is estimated at 2851/2 British rupees. The transferee is to appropriate the pattom stipulated and also the other income towards the interest due on the mortgage amount and also to pay the sircar tax on behalf of the transferor. The transferee is allowed to plant trees for which at the time of redemption value will be paid at the market rate. As far as existing trees are concerned the compensation payable will be only one - fourth of the pattom to be estimated then as exceeds the pattom stipulated under the deed. There is no provision for payment of any residuary rent, but the transferee has to give 500 cadjans, 31/2 rupees towards 'onakazcha' and 100 bananas for onam. There is an indemnity against encumbrance other than specifically recited. Similarly the transferee has to indemnify the transferor for losses consequent upon the non-discharge of the prior encumbrance and for which amount is reserved with the transferee. IT is also specifically stated that the mortgage amount of Rs. 6,000/-will be a charge on the property transferred.