ALIKOYA Vs. LAKSMI AMMA

JUDGEMENT

(1.) One Krishna Kurup, who was the husband of the 1st defendant and the father of the respondents defendants 2 to 4, and to whom the suit property belonged, executed in the year 1939, Ext. B-1, purporting to be a kanom, in favour of one Amina Umma and on the same day gave her also Ext. B-2, a verumpattakaichit, purporting to take the property back on lease. The appellant as the transferee of the rights of Amina Umma, sued Krishna Kurup in O. S.716 of 1949 for arrears of rent, accrued during the years 1120 to 1123, alleging Ext. B-1 to be a kanom. Krishna Kurup contended that Ext. B-1 is a mortgage and claimed the benefit of S.9-A of the Madras Agriculturists Relief Act, Act 4 of 1938. The Court held by Ext. B-4 judgment dated the 26th November, 1949, that S.9-A is not applicable, not being a usufructuary mortgage but only a demise. O. S.78 of 1959 out of which S. A. 160 of 1962 arises, was instituted by the appellant against the respondents, as the legal representatives of Krishna Kurup, for arrears of rent for the years 1132 and 1133. The respondent contended, that Ext. B-1 is a mortgage amenable to the provisions of the Kerala Agriculturists Debt Relief Act, 1958, Act 31 of 1958. They also filed I. A. 2108 of 1959 under S.9 of this Act, for a declaration that Ext. B-1 evidences a transaction of debt. The courts below have disposed of O. S.78 of 1959 and I. A. 2108 of 1959 by common judgments. S. A. 214 of 1962 is directed against the judgment in appeal, in so far as it related to I.A.2108 of 1959. The two courts have held, that Ext. B-1 is a mortgage and not a kanom, and dismissed the suit for rent and allowed the application.

(2.) In these second appeals, learned counsel for the appellant pressed before us four contentions, first that Ext. B-1 is a kanom as it purports to be and not a mortgage as it is contended to be by the respondents, second that Act 31 of 1958 is not applicable to Ext. B-1 by virtue of S.25 (c) of that Act, third that the decision in Ext. B-4 that it is a kanom is conclusive and cannot be reopened under S.9 of the Act and fourth that in I. A. 2108 of 1959 there being merely a prayer for a declaration that Ext. B-1 is a transaction of debt without a prayer for consequential reliefs, envisaged by S.9, the application is not maintainable. On account of the third contention, these appeals have been referred for decision by a division bench.

(3.) We proceed to examine these contentions seriatim. On the first contention it has to be noted, that on the same date there had been a kanom Ext. B-1and a lease back Ext. B-2, which form parts of the same transaction. Notwithstanding the use of the terms "kanom" and "kanartham" and others in Ext. B-1which prima facie point to the kanom nature of the transaction, the fact that there has been a lease back to the grantor as part of the same transaction is, we think, conclusive that there was no demise under it, much less a demise for enjoyment. This is sufficient to take Ext. B-1outside the purview of the definition of kanom, whether under the Malabar Tenancy Act or of the Kerala Land Reforms Act, Act I of 1964. We hold accordingly.