CHACKO KOCHUVARGHESE DIED Vs. NARAYANI AMMA GOURI AMMA

JUDGEMENT

(1.) A tenant -so I have eventually found him to be, in this appeal -seeks to resist the execution of a decree for redemption of a mortgage, and in so doing, has raised the ancient and never finally resolved question of how to tell a mortgage from a lease. The clarification by Judges of the juridical ideas behind the two does not yet serve to give us simple litmus tests by which a given transaction may be said to be this or that. The legislature, by insensible degrees and sometimes by revolutionary leaps, has endeavoured to give protection to tenants and in that process has brought in categories, otherwise understood to be mortgages for classification as tenancies. The same legislature, in its compassion towards debtors, has attempted to save mortgagors in their unfortunate lot as debtors and allowed them to redeem their property on concessional terms from creditors figuring as mortgagees. This cross-ruff has produced provisions of law of which section 2 (22) of The Kerala Land Reforms Act, 1963 (Act 1 of 1964) and Section 5 of The Kerala Agriculturists Debt Relief Act, 1958 (Act 31 of 1958) are excellent examples. Quite often, as in the case of Ext. P-l in this appeal, the transaction partakes of the character of a lease and of a mortgage and Courts, confronted with these mongrel deeds, have attempted to separate the ingredients and sometimes hair-split, with the result that the observations made by Ghosh several decades ago hold good even today. The learned author states:

(2.) RAMAN Nayar J. , who wrote the leading judgment in both the Full Bench decisions cited before me, reported in Kunhiparan v. Venki teswara Naickan, 1967 ker LT 616 = (AIR 1968 Ker 38) (FB) and Krishnan Nair v. Sivaraman Nambudiri, 1967 Ker LT 78 = (AIR. 7067 Ker 270) (FB) as also the judgment in the oft-cited ruling in Hussain Thangal v. Ali, 1961 Ker LT 1033 -had to consider in C. M. A. 135 of 1063 a transaction of Otti, with fairly comparable terms as Ext. P-l in our case. It must however be remembered that his Lordship pronounced judgment in that case as early as 6th November, 1963, while the Kull Bench decisions were rendered a few years later. After setting out the terms of the transaction, Raman nayar, J. , observed:

(3.) MANY decisions, reported and unreported, have adopted approaches to the question of mortgage or lease which sometimes conflict with one another and often turn upon the particular facts of each case. To distil principles of general application, one has to study the two recent Full Bench rulings reported, in 1967 ker LT 78 = (AIR 1967 Ker 270) (FB) and 1967 Ker LT 646 = (AIR 1968 Ker 38) (FB ). The propositions laid down there are binding, and even if sometimes too abstruse, abstract and recondite, are the most comprehensive and fruitful judicial effort in this field of law, if I may say so with great deference. A few later rulings seeking to annotate the observations of the Full Bench were brought to my notice by respondent's counsel but I prefer to go by the Full Bench decisions themselves.