MAMMADISSA Vs. ASYAKUTTY UMMA

JUDGEMENT

(1.) DEFENDANTS 2 and 14 to 16 are the appellants and the appeal arises out of O. S. 524 of 1960 on the file of the Munsiff's Court, manjeri. The plaintiffs instituted the suit for redemption of a registered 'kaivasapanayam' (mortgage with possession), dated 7th April 1913 and Ext. A-2 purakadam, dated 8th November 1914 and for recovery of possession of the plaint schedule properties. The properties belonged in Jenm to the Chembazhi Illom of the 13th defendant. The Illom demised the plaint and other properties under ext. B-1, dated 13th June 1882 in favour of Motha. Subsequently the Illom executed the kanam Ext. B-2, dated 5th April 1896 in respect of the plaint schedule properties to Ayisumma the predecessor-ininterest of defendants I to 8. The Illom then executed the kaivasapanayam (mortgage with possession) on 7th may 1913 to Ayisumma in respect of the plaint items for a sum of Rs. 500. Ex. Al is the counterpart, dated 7th May 1913 executed by Ayisumma to the Illom. The Illom took a further advance of Rs. 500 and Ext. A-2 purakadam, dated 8th november 1914 was executed by the Illom in favour of Ayisumma. The rights of ayisumma under the mortgage with possession and Ext. A-2 have now devolved on defendants 1 to 8 and 14 to 16 and the interest of the Illom in the plaint properties has been purchased by the plaintiffs under Ext. A-3, dated 29th march 1960. The main contention raised by defendants 1 to 8 is that the transaction in respect of which Ext. Al has been executed is not a mortgage but is a lease and the plaintiffs are not entitled to get a decree for recovery of possession. This plea was overruled by the courts below and a decree was granted to the plaintiffs " for recovery of possession of the plaint schedule properties on payment of the price of redemption. The second appeal is directed against the decree and judgment of the lower appellate court allowing redemption and recovery of possession.

(2.) THE main contention raised on behalf of the appellants was that the transaction of 7th May 1913 sought to be redeemed is a lease and the plaintiffs are not entitled to a decree for recovery of possession. It is agreed between the parties that the right of the plaintiffs to recover possession of the plaint schedule properties has to be decided under the provisions of Act T of 1964. I shall therefore consider the nature of the transaction in dispute between the parties in the light of Act I of 1964.

(3.) THE learned advocate for the appellants submitted that his clients should be given an opportunity under S. 12 sub-section (1) of Act I of 1964 to prove the real nature of the transaction by adducing parol evidence. THE said provision is in these terms: 12. Right to prove real nature of transaction:- (1)Notwithstanding anything in the lad an Evidence Act, 1872 (Central Act I of 1872), or in any other law for the time being in force, any person interested in any land may prove hat a transaction purporting to be a mortgage, of i, karipanayam, panayam or nerpanayam of that land is in substance a transaction by way of kanam, kanatnkuzhikanam. kuzhikanam, verumpattom or other lease, under which the transferre is entitled to fixity of tenure in accordance with the provisions of s. 13 and to the other rights of a tenant under this Act. "