ABDUL KADAR Vs. KRISHNAN EMBRANDIRI

JUDGEMENT

(1.) The plaintiff, whose suit for redemption of a transaction, which according to him, is an usufructuary mortgage, has been dismissed by both the subordinate courts, is the appellant in this second appeal.

(2.) According to the plaintiff, the suit properties were usufructuarily mortgaged by one Kuttiammad and others on behalf of their tarwad on 25-5-1907 under Ext. A1 in favour of one Ibrayin for a sum of Rs. 400/-. The term of the mortgage is a period of 60 years and the tarwad, which had only a mulgani right, had usufructuarily mortgaged that right. It is the case of the plaintiff that ultimately, Ibrayins rights have devolved on the first defendant. In turn, the plaintiff also stated that the rights owned as mortgagors by the tarwad of Kuttiammad, have also devolved on the plaintiff and he has also been empowered, by the transaction in his favour, to redeem the usufructuary mortgage evidenced by Ext. A1. He also claimed relief under Madras Act IV/1938 as amended by Act XXIII/1948.

(3.) The first defendant, who was the main contesting defendant, disputed the right of the plaintiff to redeem the suit transaction on several grounds. He contended that the assignors of the plaintiff had no right to transfer the equity of redemption regarding the suit properties. He also took several other pleas regarding his claim for value of improvements. But the most important contention raised by him was on the basis that the suit transaction is not an usufructuary mortgage, but a kanom-kuzhikanom within the meaning of that expression under S.3 (15) of the Malabar Tenancy Act and in consequence, he claimed fixity of tenure by virtue of the provisions of S.21 of the Malabar Tenancy Act.