KRISHNAN NAIR Vs. SIVRAMAN NANBUDIRI

JUDGEMENT

(1.) In Hussain Thangal v. Ali 1961 KLT 1033 , I had occasion to enumerate the tests generally adopted by the courts to tell a kanam from its twin brother a possessory mortgage, the essential difference between the two, of the one being a transfer for securing a debt and the other a transfer for enjoyment, being rarely an apparent feature and being largely a matter for inference. I then said that a provision in the deed effecting the transfer enabling the transferee to insist on repayment of the consideration advanced by him otherwise than as a condition for resumption of the property transferred (whether the provision be in the shape of a promise to repay by the transferor, or in the shape of a right of recovery by sale given to the transferee) was a sure means of telling a possessory mortgage from a kanam. Or words to that effect. For, it seemed to me that this emphasis on recovery at the transferee's will would put it beyond doubt that the advance was by way of loan and not by way of price or deposit refundable (whether by actual payment or adjustment) on re-transfer. And if that be so, the inference would follow that the transfer was for the purpose of securing the repayment of the loan rather than for the transferee's enjoyment of the property. For, if enjoyment were to be determined for the sake of recovering the money paid, the latter must have been the real object of the transfer. The same view was taken by Madhavan Nair, J. in Ammukutty Amma v. Ahammad 1961 KLT 758 , by Velu Pillai, J. in Thankappan v. Ammalu Neithiramma 1961 KLT 762 ; and it was affirmed (though perhaps in terms less categorical) by Velu Pillai and Mathew JJ. in Ayyappan v. Venkiteswara Naicken 1962 KLT 733 and again by Velu Pillai and Raghavan JJ. in Subramania Iyer v. Ananthanarayana Iyer 1962 KLT 888 . The correctness of this view has however been doubted and that is why this case, where the question has been raised whether the transfer under which the appellant defendant holds is a lease entitling him to fixity under S.13 of Act I of 1964, or whether it is only a mortgage entitling the plaintiff respondent to the decree for redemption and possession which though denied by the first court has been granted to him by the lower appellate court, is before us.

(2.) It is on the strength of the decisions in Sankaran Nambudiripad v. Moideen 1964 KLT 842 , Kalliani v. Kunhalikutty Haji S.A. No. 41 of 1959 and Kochakkan v. Abdunni S. A, No. 804 of 1961 that the view stated above, seemingly so well supported by authority, has been questioned. But, it seems to me that, whether the view be right or wrong, these decisions provide little basis for questioning it. In the first of these decisions it was observed:

(3.) In the remaining two decisions, namely Kalliani v. Kunhalikutty Haji S. A. No. 41 of 1959 and Kochakkan v. Abdunni S. A. No. 804 of 1961 it was no doubt held (as in the first, Sankaran Nambudiripad v. Moideen 1964 KLT 842) that the transaction in question was a lease notwithstanding that the deed embodying the transaction conferred a right of sale on the transferee for the recovery of the money advanced by him. But that was by express resort to S.22 of the Malabar Tenancy Act (S. 12 of Act 1 of 1964), and such resort though not expressly proclaimed seems to me the true basis of the decision in Sankaran Nambudiripad v. Moideen 1964 KLT 842. In each of these cases the result was not reached by a construction of the deed for ascertaining its purport; it was reached by getting rid of the purport, in other words, of the deed itself, by resort to the provision in S.22 of the Malabar Tenancy Act (now embodied in S.12 of Act 1 of 1964) enabling a defendant to prove by evidence aliunde (the provisions of the Evidence Act notwithstanding) that a transaction was different from what the deed embodying it makes it out to be, by showing that, although from the purport of the deed it is a mortgage, it was in truth and substance a lease. But, it was in the context of construing the deed for ascertaining its purport that the test of the right to sale was propounded, and it was never suggested that it should prevail once you had rent the mask of the deed with the aid of provisions like S.12 of Act 1 of 1964 and exposed the true features of the transaction for a lease.