KRISHANKUTTY Vs. PADMANABHA MENON

JUDGEMENT

(1.) THE short point that arises for consideration in this second Appeal by the defendant is as to whether a document dated 30-8-1937, ext. Al in this case, which is admittedly styled as an usufructuary mortgage, or a Kanom as defined under S. 3 (14) of the Malabar Tenancy Act.

(2.) BOTH the subordinate courts have held that the document ext. Al creates only a debtor-creditor relationship and that it is only an usufructuary mortgage as is described in the document and not a Kanom, coming under S. 3 (14) of the Malabar Tenancy Act.

(3.) BOTH the courts have held that this document is only what it actually represents it to be namely, usufructuary mortgage pure and simple and not a Kanom under S. 3 (14) of the Act. This question assumes importance in view of the fact that under S. 22 of the Malabar Tenancy Act, it is open to any party interested to adduce evidence and prove that a transaction entered into on or after 1st January 1916 and purporting to be a mortgage of that land, is not in fact a mortgage, but that it is a transaction by way of kanom etc. , under which the transferee is entitled to fixity of tenure in accordance with the provisions of S. 21. S. 21 in turn, grants fixity of tenure in respect of a Kanomdar (which is the tenure that need be noted in connection with this appeal) and the section further provides that a Kanomdar shall not be evicted therefrom except as provided in this Act. In turn, if really the appellant is a Kanomdar, Kerala Act 1 of 1957 gives him a stay pending final legislation in respect of those matters.