SAIDALIKUTTY Vs. AMINA BEEVI UMMA

JUDGEMENT

(1.) SECOND appeal by defendants 8 to 12, ~~~ ~~ and 18, who are the legal representatives of the mortgagee under Exts. B 107 and B 108, the nature of the transaction whereunder is the question here. The suit is for partition of five items of landed properties, of which items 1 and 2 only are involved in the aforesaid mortgages, and therefore in this appeal also.

(2.) THE facts are thus: Mariyumma, the original proprietress of plaint items 1 and 2 had executed a possessory mortgage. Kaivasapanayadharam, Ext. B 107 its counterpart Kaichit is Ext. B 207 on June 25, 1934 , for a sum of Rs. 200/-with a personal covenant to repay and a right to sell the property to collect the amount. After appropriation of interest on the mortgage amount a purappad of Rs. 70/-, 300 coconut leaves worth Rs. 3 3/4 and 6 fowls worth Rs. 2/-were stipulated to be paid to the mortgagor THE deed was for a term of three years, with a provision for continuance of its terms if the mortgagee continued in possession after the term. On February 16,1942, Mariyumma executed a renewed possessory mortgage, Kaivasapanayadharam, Ext. B 108 its counterpart is Ext. A-5 taking an additional advance of Rs. 100/ -. This deed also contains a personal covenant to repay and a right of sale for the amount. THE purappad stipulated in this deed is Rs. 60/-, 300 coconut leaves worth Rs. 3 3/4, and half a thulam of sugar worth Rs. 2/ -. To the plaintiff's claim to redeem his share of the properties from defendants 8 to 18, the latter contended the transactions evidenced by Exts. B 107 and B 108 to be leases in substance, entitling them to fixity of tenure. THE Munsiff held the transactions to be leases within the meaning of the Malabar Tenancy Act and therefore disallowed redemption. On appeal, the Subordinate Judge, relying on the right of sale conceded in the deeds, held them to be mortgages and therefore allowed redemption.

(3.) AS has been observed in Krishnan Nair v. Sivaraman nambudiri (1967 KLT. 78 F. B.), among the different kinds of leases it is a kanam that most closely resembles a possessory mortgage; but, for a transaction in Malabar to be a kanam, it is essential that the relative instrument should be styled as Kanam or Kanapattom. Both Exts. B 107 and 108 are styled as kaivasapanayam. The transactions in question cannot therefore be kanams within the definition of the Land Reforms Act.