ANTHONY Vs. KOCHUVAREED

JUDGEMENT

(1.) This Second Appeal arises out of a suit for redemption of a usufructuary mortgage.

(2.) The property mortgaged in a tank. According to the defendants, the mortgage in question is a kanom under the Cochin Tenancy Act, XV of 1113, and is therefore irredeemable. The plaintiff contended in the Courts below that, for constituting a kanom under the Cochin Tenancy Act, the holding should be a parcel of land as distinguished from water and that there could be no kanom in respect of a sheet of water like a tank. The Trial Court accepted the plaintiff's case and decreed the suit. The lower appellate Court upheld the defendant's contention and dismissed the suit. Hence this Second Appeal.

(3.) Ext. 4 is the mortgage sought to be redeemed. It was executed by the Kodassery Sthanam on 4.12.1081 in favour of the ancestors of defendants 1 to 6 and the defendants are now admittedly in possession of the plaint tank under it. The document is styled a kozhuverakkapanayadharam; and it was only the plaint tank and nothing more that was mortgaged by it. There is no provision in it for renewal, and it is expressly stated therein that the mortgagees are to hold the tank on mortgage for Rs. 11-3-2 realising the interest on the mortgage amount from the income from fishing and paying certain annual dues to the mortgagor. From Ext. 4 it is also seen that there was a prior mortgage of 1014 in respect of the plaint tank and certain other properties and that, on 4.12.1081, the Sthanam gave Ext. 4 mortgage to the ancestors of defendants 1 to 6 for the plaint tank and another mortgage to them for the properties other than the plaint tank comprised in the mortgage of 1014. According to the defendants, Ext. 4 is not a redeemable mortgage but a kanom under the Cochin Tenancy Act, XV of 1113.