KARTHIYANI AMMA AMMUKUTTY AMMA Vs. ARIAN KARUNAKARAN NAIR

JUDGEMENT

(1.) This second appeal is by the defendants 1 and 3 against an appellate order of the court below, in execution of the decree, that the defendants are not entitled to the benefit of the Holdings (Stay of Execution Proceedings) Act VIII of 1950, though the execution court had held otherwise.

(2.) The question depends on the proper construction of the deed, filed in the trial side as Ext. B and incorporated among the execution records, under which the defendants came into possession. The Munsiff was of the opinion that it embodied a kanapattom transaction while the Judge held that it was more or less a usufructuary mortgage. Having gone through the records and heard arguments of learned counsel, I am inclined to agree with the Munsiff and hold the transaction to be in the nature of a kanom and that the respondent - decree holder is not entitled to get delivery in execution accordingly.

(3.) Ext. B is styled as a Pattupanayam. It mentions that the property is handed over under the panayam for enjoyment for a period of ten years to be returned on payment by the mortgagor-lessor of the advance of Rs. 25 and also the value of improvements effected on the property. During all this interval the mortgagee-lessee was to appropriate the usufruct towards the interest on his investment and also the tax due on the property and further pay fanam to the jenmi and a similar fanam for Yakshi Pooja. It was recited that a sum of 3 fanams had been levied from the tenant mortgagee towards adukkuvathu for the document. The property consisted of 31 cents (not 15 cents as the Judge observed), in which there was one yielding cocoanut tree and another non bearing one which the transferee was called on to look after. It may be added that the improvements effected on the property was valued at 2637 and odd fanams in the decree for eviction passed in the case, and consisted of plantations and also a shed for purpose of residence.