KUNJAN GOPALAN Vs. MAMMU SEETHI

JUDGEMENT

(1.) This revision is by the defendant against an order of the Court below refusing stay of the suit under Act I of 1957.

(2.) The suit is framed as for redemption of a Nadappupanayam deed dated 23-8-1118 executed by the plaintiffs in favour of the defendant. The property given possession of to the defendant under the document is 1 acre 54 cents of nilom but the consideration advanced by him under it is rather proportionately small, viz., Rs. 294/- only. Provision is contained in the document that the defendant will out of the usufruct, pay the tax to Government, appropriate the interest due to himself and account for 40 paras of paddy to the plaintiffs annually as michavaram. There is further a provision requiring the defendant to pay certain perquisites on account of Onakalcha. Finally the document reserved a term of 12 years in favour of the defendant at the end of which the plaintiff was to recover the property after settling accounts with the defendant. But there was no reciprocal provision whereby the defendant could recover his money by sale of the property.

(3.) The court below thought the document evidenced more a loan than a lease arrangement and so refused to stay the suit under the provisions of Act I of 1957. In my opinion the conclusion should be the other way round. For apart from the provision for enjoyment for long term and payment of michavaram and Onakalcha reminiscent of kanom demise, there was the clinching circumstance of lack of provision as to charge on the property for the moneys advanced by the defendant and right to sell following. There is no doubt a provision commonly found in mortgages alone as to payment of tax by the defendant from out of the usufruct but that by itself cannot turn the scale. See Ponnumuthu Nadar v. Govinda Nadar, ILR 1956 T-C 751.