VARGHESE Vs. THOMAS

JUDGEMENT

(1.) The decree in question, a decree for the redemption of what was called an Otti in the deed effecting the transaction, was made in 1956; and no question as to whether the defendant was entitled to fixity under Act I of 1964 could possibly have arisen. But if, as the defendant contends, the transaction, notwithstanding that it was called an Otti, satisfies the definition of a kanom in S.2(22) of Act I of 1964, there can be no doubt that the defendant would be a tenant, and that, notwithstanding the decree for redemption against him, the defendant would be entitled to fixity and be immune from eviction by reason of S.13. It was therefore necessary to determine whether the transaction was a kanom or other tenancy within the meaning of Act I of 1964 and the first court was clearly wrong in holding that the question was concluded against the defendant by the decree for redemption. The lower appellate court was therefore right in remitting the case to the first court for a determination of the question.

(2.) It is, of course, for the defendant to show that the transaction is a tenancy. This he can do on a bare construction of the deed itself. But if that fails him he would still be entitled to prove, by evidence aliunde that, though the transaction purports to be a mortgage or otti, it is in substance a kanom or other lease - see S.12. S.12 only enacts a rule of evidence and confers no substantive right. The substantive right is conferred to S.13 and that right is available notwithstanding any decree to the contrary. S.12 which only provides a mode of establishing the substantive right cannot be affected by the decree for redemption which is the very thing to be nullified by establishing the right to fixity under S.13. The decision in Kurien v. Chacko ( 1965 KLT 453 ) on which the first court relied is readily distinguishable and was rightly distinguished by the lower appellate court. There it was held that the judgment had conclusively found that the transaction was in name and in substance only a redeemable mortgage and not a tenancy (within the meaning of enactments in pari materia with Act I of 1964) so that the principles of res judicata precluded any further attempt to prove that it was a tenancy. Here there was no such finding and the question whether the transaction was a kanom within the meaning of Act I of 1964, or any other enactment carrying the same definition of a kanom, was never in issue.

(3.) I might however, with great respect, point out that the fact that S.12 of Act I of 1964 confers a new procedural right in the Travancore - Cochin area (therefore available, under S.22 of the Malabar Tenancy Act and S.9 of Act 4 of 1961, only in the Malabar area) of proving the real nature of a transaction effected in writing, by evidence other than the document effecting it, was not noticed in Kurien v. Chacko (1965 KLT 453).