SANKARANKUTTY NAIR Vs. EXECUTIVE OFFICER, ANJUMURTHY DEVASWOM

JUDGEMENT

(1.) IN these second appeals the question to be decided is the same; and that is whether Ex. B -l of June 1923 was a mortgage or a tease. The Subordinate Judge held that the transaction was a kanom, while the District Judge after extracting long passages from as many as ten judgments of this Court which account for about two -thirds of his fairly long judgment and after summarizing the provisions of the documents hold that the transaction was a mortgage observing that

(2.) THE suit properties belonged to a devaswom; and the same were outstanding on mortgages with one of the ooralan's of the devaswom. The devaswom filed suits for redemption and obtained decrees; and thereafter to deposit the redemption price the devaswom borrowed amounts from a Ravuthan and put him in possession of the properties under an agreement. (The said agreement however has not been produced.) Ultimately, Ex. B -l was executed stating that the document incorporated the agreement already existing between the parties. Ravuthan's rights under Ex. B -l were subsequently brought to sale by the devaswom in a suit for arrears of michavaram and the said rights were purchased under Ex. B -2 by the appellant before me, so that the holding by the appellant is under the terms and conditions contained in Ex. B -l.

(3.) AS already stated at the commencement of this judgment, the intention of the parties to the transaction should be gathered from the recitals in the document and the circumstances so as to see whether they intended the transfer of the properties as security for the money advanced or whether the transfer was intended for the enjoyment of the transferee. In these cases there are some provisions, which might at the first flush indicate that the money was taken as a loan and the transaction was intended to secure the loan. The amount, as I have already pointed out, is fairly high; but that should not be given undue importance. In the Full Bench decision referred to already it is observed that raising money to the hilt need not necessarily be a borrowing to the hilt -for example, there can be a lease for a premium which amounts very nearly to the value of the property - so that & high ratio home by the consideration advanced to the value of the property is not so strong a circumstance in favor of a mortgage as a low ratio is in favor of a lease. Mr. M.K. Narayana Menon points out in this connection that there is no indication at all that there was pressure from the mortgagee, the ooralan, which necessitated the filing of the suits for redemption. The counsel suggests that the idea of the devaswom might have been to recover possession of the properties front the ooralan and lease them out to another at a higher rent so as to augment the income of the devaswom Obviously this suggestion has force, because the suits were by the devaswom for redemption and not by the mortgagee for the mortgage money. Again, some of the provisions pointed out by Mr. Kuttkikrishna Menon might indicate that the transaction was intended to secure the money advanced and to that extent the transaction was intended to be a mortgage. Here also I would point out the observation of the Full Bench at the close of paragraph 6 of the judgment that the question would not be whether the transaction was predominantly a lease or predominantly a mortgage, but whether it was a lease at all. Therefore, if there is an element of lease in the transaction, though there are other indications that the transaction might have been intended to be a mortgage, the transaction should be construed only as a lease.