HATHIKA Vs. PUTHIYAPURAYIL PADMANABHAN

JUDGEMENT

(1.) The appeal arises from a suit for redemption of mortgage. Plaintiffs are the appellants. The trial Court as well as the lower appellate Court held that the transaction to be a lease and the request for redemption was denied. Hence the second appeal.

(2.) Plaintiffs are admittedly the owners of the building described in the plaint schedule which according to them was mortgaged to defendant as per mortgage deed dated 23-10-1978. An amount of Rs. 1000/- was borrowed from defendant on the security of the building, possession of which was handed over to the defendant on condition to pay an amount of Rs. 85/- per month by way of surplus profits. The document stipulated for payment of interest at 12% on the amount defaulted. The period prescribed in the document is six months on the expiry of which defendant had to retransfer the building to plaintiffs. In case of default to pay the amount within the stipulated period defendant was given the right to realise the amount by way of sale of the right, title and interest of the plaintiffs over the building. Alleging that profits were paid up to 23-7-1982 request was made to retransfer possession. Defendant did not accede to this request. That resulted in the filing of O.P. 18/83 under Sec. 83 of the Transfer of Property Act. That petition was dismissed. Hence the suit for redemption of the mortgage.

(3.) Defendant while admitting the transaction contended that the document evidences a lease of the building and not a mortgage. According to him the building was required for his occupation and plaintiffs wanted a document to evidence the transaction. The amount of Rs. 1000/- represents the advance paid. He therefore claimed to be a building tenant coming within the purview of the Kerala Buildings (Lease and Rent Control) Act (2 of 1965).