PANANGAT KUNHIPARAN Vs. POZHANGAVIL THEKKEMADATHIL VENKITESWARA NAICKEN

JUDGEMENT

(1.) This Second Appeal was referred to a full bench, as it was claimed that there was conflict of opinion between two division bench rulings, Ayyappan v. Venkiteswara Naicken, 1962 Ker LT 733 and Subramania Iyer v. Ananthanarayana Iyer, 1962 Ker LT 888=(AIR 1963 Ker 261) on the one hand, and a Division Bench ruling Valiyaparambath Kalliani v. Achambath Kunhalikutty Haji, S. A. No. 41 of 1959 (Ker) and other decisions by single Judges, like Sankaran Nambudiripad v. Moideen, 1965 Ker LJ 16 and Kuttuparambil Kochak-kan v. Ponnampadikkal Abdunni, S. A. No. 804 of 1961 (Ker) on the other. The former Division Bench rulings held that a provision in a document to bring to sale the property transferred to realise the money advanced by the transferee was a strong indication that the parties intended a mortgage and not a kanam (or any other lease). The latter set of rulings held that such right of sale was by no means a conclusive indication that the transaction was a mortgage. We have held in Krishnan Nair v. Sivaraman Nam-budiri, S. A. No. 173 of 1962 = (reported in AIR 1967 Ker 270 FB), that there is really no conflict between the aforesaid two sets of decisions and that the alleged conflict stems from the mistaken impression that the former set of rulings laid down that the test was a conclusive test. We have considered therein in fair detail the principles to be applied in a case where the question is whether a transaction embodies a lease or is a mortgage pure and simple.

(2.) Two items of properties, a garden land (paramba) having an extent of 1 acre 6 cents and a wet land of 35 cents, are being held by the appellant 1st defendant under the respondent plaintiff under Ext. A-1 (kaivasam panaya kychit) of the 28th October 1945 In answer to the plaintiffs' suit for redemption and possession, the appellant claimed before the trial court firstly that the transaction was a kanam; secondly, in the alternative, that at the least the property constituted a kudiyiruppu. He claimed the first both on the language of Ext. A-1 and under Section 22 of the Malabar Tenancy Act (corresponding to section 12 of Act 1 of 1964), and, on that basis, claimed fixity of tenure. Both the lower courts have held that the transaction was a mortgage. However, the trial court held that the appellant was entitled to fixity of tenure over plot A in item 1 of Ext. A-1 (a little over one acre) as a kudiyiruppu, because he was a holder of a kudiyiruppu, which meant a tenant of a kudiyiruppu -- this was before the lull bench decision in Raghavan Naicken v. Ayvappankutty, 1964 Ker LT 65 (FB) pointing out that you must first be a tenant before you can claim fixity under Section 21 of the Malabar Tenancy Act as the tenant of a kudiyiruppu. Accordingly it allowed redemption of the mortgage subject to the first defendant retaining possession of plot A as his kudiviruppu

(3.) However, pending second appeal, Act 1 of 1964 came into force; and the appellant, who is still in possession of the entire property, has filed C M. P. No. 8610 of 1965 under Section 132(31 (a) of the Act to reopen even the decree for possession made by the first court (and confirmed by the lower appellate court which, as we have seen decreed a larger extent) in respect of plot A and to decide the entire case under the Act, his contention being that Ext- A-1 embodies a lease and that the courts below were wrong in holding that it was purely a mortgage. This prayer is opposed by the respondents. Under Section 132(3)(a) of Act 1 of 1964, even if a decree is passed and that has become final-still, if eviction in pursuance of the decree has not taken place, the judgment-debtor may by application claim to have the decree reopened and the matter disposed of under the Act. The Act does not specify the court to which the application is to be made, but, it is argued that, since the decree for possession of the rest of property after excluding plot A was not appealed against and is therefore not before us, the application can be made only to the trial court. We are unable to agree.