GOVINDA PILLAI RAMAN PILLI Vs. NARAYANAN NAMBOORI

JUDGEMENT

(1.) IN execution of the decree, which is for redemption of a'nadappupanayam' (Ext. D-1), the 2nd defendant contended that the transaction was really one of tenancy and not a mortgage and that therefore, in spite of the decree, he is entitled to immunity from eviction. The Courts below concurred to repel that contention. Hence this second appeal.

(2.) IT is conceded that the question has now to be decided under the provisions of the Act I of 1964. The document is styled a'nadappupanayam'. The contention is that it is either a kanam or a lease within the meaning of Act I of 1964. Sub-section (22) of S. 2 of the Act defines a kanam thus: "'kanam' means the transfer for consideration, in money or in kind or in both, by a land lord of an interest in specific immovable property to another person for the latter's enjoyment, whether described in the document evidencing the transaction ' as kanam or kanapattam, the incidents of which transfer include (a) a right in the transferee to hold the said property liable for the consideration paid by him or due to him; (b) the liability of the transferor to pay to the transferee interest on such consideration unless otherwise agreed to by the parties; and (c) payment of michavaram or customary dues, or renewal on the expiry of any specified period, and, in areas in the State other than malabar, includes such transfer of interest in specific immovable property which is described in the document evidencing the transaction as Otti, karipanayam, panayam, nerpanayam or by any other name and which has the incidents specified in sub-clauses (a and (b) above and also the following incidents: (i) renewal on the expiry of any specified period; and (ii) payment of customary dues: Provided that kanapattam or any other demise " governed by the Travancore Jenmi and Kudiyan Act of 1071 or the Kanam Tenancy act 1955, shall not be deemed to be a kanam. Explanation: For the purposes of this clause, where there has been no stipulation in the document evidencing the transaction for renewal on the expiry of any specified period, but there has been a renewal or payment of renewal fees, it shall be deemed that there had been a provision for such renewal in the document. " The general definition in the first part of the sub-section deals with the documents styled 'kanam' or 'kanapattam'. IT is pertinent to note here that in the Act VII of 1963, repealed by the present act, the corresponding expression was "whether described in the document evidencing the transaction as kanam or kanapattam or by any other name". The expression'or by any other name, has been omitted in the definition under the present Act I of 1964. IT is then evident that the legislative intent in the present definition is only to cover transactions which are described in the relative document as a kanam or a kanapattam, and not others. That view appears to get added strength from the latter part of the definition, which covers transactions styled as Otti, karipanayam, panayam, nerpanayam or by any other name. The suit transaction, evidenced by Ext. D-1, does not come under either part of the definition under the first part as it is styled a'nadappupanayam' and under the latter part as there is no provision for or proof of renewal.

(3.) IN the result, the contention that the transaction is either a kanam or a lease does not appear to be correct. The second appeal fails and is dismissed; but I make no order as to costs here. Leave granted. Dismissed.