DAMODARAN Vs. PARAMESWARA PANICKER

JUDGEMENT

(1.) THE second appeal filed by the second defendant arises out of orders passed in execution of a decree for redemption of Ext. A dated 16101087 and Ext. C dated 23 81095. THE sole question to be decided in the second Appeal is whether the transaction evidenced by Ext s. A and C is a lease or mortgage. THE courts below found that the second defendant is not a tenant and the relationship between the parties evidenced by Exts. A and C is that of mortgagor and mortgagee. THE question has now to be decided in the light of the provisions of the Kerala Land Reforms act, 1963 (Act I of 1964 ). As was decided by the Supreme court in Ramdhan Puri v. Sankey Bihari Saran AIR. 1958 S. C. 941 the decision will depend upon the intention of the parties gatherable from the documents to be interpreted and if the intention was to create a debtor and creditor relationship the transaction is a mortgage, otherwise it is one of tenancy. THE extent of the property comprised in Exts , A and C is 96 cents and the consideration for Ext. A is Rs. 282/ -. A further amount of Rs. 50/-was borrowed under Ext. C on the security of the same properties. In view of this, it is not possible to say that the intention of the parties was to create a tenancy. THE need for securing a loan on the part Of the person who executed Exts. A and C is obvious from the documents. THE learned Advocate relied on the provision contained in ext. C for payment of " Onakazhcha " to support his contention that the transaction is a lease. A provision to pay " Onakazhcha " does not make a transaction less a usufructuary mortgage if otherwise it is so. THE absence of an express provision in the document for the realisation of the amount paid by the sale of the property is not conclusive to establish that the transaction is not a mortgage. In the light of the above reasoning, it is not possible to hold that the interpretation of Exts. A and C by the two courts below is so patently wrong as to justify interference in second appeal. In the result, in confirmation of the judgments and decrees of the courts below the second appeal is dismissed with costs. Dismissed.