VARKEY Vs. VARGHESE

JUDGEMENT

(1.) This is an appeal from the judgment of the learned Additional District Judge, Parur, confirming the judgment of the Trial Court which decreed the respondent's suit for redemption. The courts below held that Ext P2 document evidenced a redeemable mortgage and rejected the appellant's contention, which be raised in the course of the final decree proceedings, that be was a kanamdar entitled to fixity of tenure under S.13 of the Kerala Land Reforms Act, 1963 (the 'Act').

(2.) Considering the nomenclature of Ext. P2, the total consideration received by the transferor, the extent of the property, the provision for bringing the property to sale, and other circumstances, the courts concluded that Ext P2 was nothing but a mortgage.

(3.) Shri Sankaranarayana Pillai appearing for the appellant submits that the judgment under appeal is vitiated by a substantial error of law. According to him the courts below erred in thinking that it was necessary to prove, in order to satisfy the definition of a 'kanam', that there was a transfer of interest for the purpose of enjoyment of the land Such purpose, counsel says, is presumed, and no proof of it is required, once the other ingredients of the statutory definition of 'kanam' under S.2(22) are found to be present in the transaction. This contention is apparently based on certain observations of this Court in Krishnan Nair v. Sivaraman Nambudiri 1967 KLT 78 (FB). In that case this Court observed: