PARAYAYAI KUTTI Vs. KRISHNAN NAIR

JUDGEMENT

(1.) THIS second appeal arises out of a suit for redemption of an otti , and recovery of possession of the mortgage property. The suit was decreed by the trial court and the appeal against the trial court's decree was dismissed by the lower appellate court. So defendants 1 and 2 have brought this second appeal.

(2.) DEFENDANT 1 is the ottidar. His contention in the trial court was that the transaction was not a mortgage but a kanom and that he had permanency of tenure under the Malabar Tenancy Act. The courts below overruled this contention on a consideration of the terms of the otti document. After this second appeal was filed the Malabar Tenancy Act has been amended and under S. 22 of the Amended Act it is open to the tenant to adduce evidence and prove notwithstanding the provisions of the Evidence Act, that the transaction though purporting to be a mortgage is in fact only a kanom and that he is entitled to fixity of tenure. The first point urged by the appellant's counsel is that the suit might be remanded to the trial court so as to give him an opportunity to avail himself of this section and prove by other evidence that the transaction is a kanom and that he is entitled to have fixity of tenure. As the change in law was effected subsequent to the filing of this second appeal I consider that this prayer has to be granted in the interests of justice.