VELAYUDHAN VIVEKANANDAN Vs. AYYAPPAN SADASIVAN

JUDGEMENT

(1.) THE question is whether Ext. P5 described as an'ottikuzhikanam' is a redeemable mortgage or a lease. THE trial court held that it was a mortgage and granted a decree for redemption of plaint item No. 1. In appeal filed by the 2nd defendant, the lower appellate court held that the plaintiff had not established his tile to the property and so the decision of the trial court was reversed and the suit was dismissed. THE appellate court did not find on the question whether Ext. P5 was a mortgage or a lease. In the second appeal which was heard by a learned single judge of this Court, title was found in favour of the plaintiff but the suit was dismissed on the ground that the transaction evidenced by Ext. P5 was a lease. Leave for appeal was granted by the judge and when the appeal by the plaintiff came up before a division Bench, the correctness of the view taken by the learned single judge that the payment of land revenue may well be treated as "other consideration" within the meaning of that term in S. 2 (57) of the Kerala land Reforms Act, 1963, for short, the Act, was doubted in view of the decision of the Supreme Court in Kunhamina Umma v. Paru Amma 1971 KLT 163 and it was further felt that the decision in Rev. Fr. Victor Fernandez v. Albert Fernandez 1971 KLT 216 required reconsideration. THE case was therefore directed to be placed before a Full Bench of five judges.

(2.) IT is necessary to read the whole of the document Ext. P5. I shall extract the document in an appendix to this judgment.

(3.) IF the transaction is a mortgage within the meaning of the Transfer of Property Act, it will not be an 'ottikuzhikanam' as defined in the section. There can of course be a combination of a mortgage and a lease in that the elements of both may be present in a transaction. In most cases transactions styled as 'ottikuzhikanam' would at least be an anomalous mortgage as defined in S. 58 (g) of the Transfer of Property Act from the usual terms embodied in such documents. IF there is a lease element also present and the transfer is for the dual purposes of security and enjoyment, the further question whether the transferee would be a tenant under S. 2 (57) of the Act can arise and when that question arises it will have to be resolved on the basis of the principles which, I think, are fairly well settled by the decisions in hussain Thangal v. Ali 1961 KLT 1033 and in Krishnan Nair v. Sivaraman nambudiri 1967 KLT 78. I am unable to agree, with respect, that the expression 'ottikuzhikanam', whether it was used as the appellation given to the document, or when employed in the operative portion of the document as in Hanbpw ipgnimwhpsamsi Fgpxnxv. can be conclusive in determining the nature of the transaction. I would therefore overrule the decision in Rev. Fr. Victor fernandez v. Albert Fernandez 1971 KLT 216.