LONAN ALEXANDER Vs. KRISHNAKURUP

JUDGEMENT

(1.) In my view the demise under Ext. D-l (dated 14-2-1072 M.E.) in redemption of which (and of Ext. P-1 dated 19-1-1080 M.E., a deed of further charge) possession is sought in this case is a kanom, or kanapattom to use the terminology of Kerala Act I of 1957, and not a mere possessory mortgage and the suit should therefore have been stayed under S.4 of the Act. In the first place Ext. D-l calls itself a nerpattom, which as explained in Para.73 & 74 of Mr. Justice Kunhiraman Nairs memorandum on Land Tenures, means a kanom (see also Padmanabhan v. Madhava Naicken 18 T.L.J.766) while Ext. P-1, the deed of further charge, calls itself a kanom puravaippa. This is a valuable indication of what the parties to the transaction had in mind, and the terms of the deed being quite consistent with a kanom this is not a case where the name used by the parties is belied by recitals spelling a different transaction. In fact, as I have already indicated, the terms only serve to confirm that the transaction is a kanom. There is a pattom fixed for the land demised - it is 53 paras and 2 1/2 edangalies a year. A sum of 1781 1/4 fanams is received by the transferor as kanom. Out of the pattom, a periodical payment of 14 fanams onakazcha on Thiruvonam day and of seven fanams as urukettu on Pooram day in the month of Meenom is to be made every year to the transferor, and the land revenue also is to be paid on his behalf. The balance is to be retained by the transferee as interest on the kanom amount. The transferee is to be in possession and enjoyment of the property for a period of 12 years and after the expiry of that period he is to surrender the property to the transferor on receipt of the kanom amount. In addition to the kanom amount, 79 paras and 8 3/4 edangalies of paddy is received by the transferor and, although it does not appear from the document that there was any prior demise, the document calls this a renewal fee to be digested by the term of the kanom. If this is not really a renewal fee it is certainly something in the nature of a premium. There is no provision by which the transferee can recover the kanom amount. Taking all these incidents together, namely, the payment of kanom by the transferee, his right to hold the property for a term of 12 years and surrender even thereafter being conditional on repayment of the kanom amount, his liability to make periodical payments in the nature of michavarom and of tribute indicative of the subjection of a tenant to his landlord, the liability of the transferor to pay interest on the kanom amount, the payment by the transferee of a premium, and the absence of any provision for the recovery of the kanom amount by the transferee, I have little doubt that the transaction is what it purports to be, namely, a kanapattom and not a mere possessory mortgage. That, as the deed states, the kanom amount was taken for the purpose of satisfying a decree is no indication that the jural relationship created was that of borrower and lender rather than of landlord and tenant. It could equally be either and in either case such a recital would have found place in order to manifest the genuineness and the binding nature of the transaction.

(2.) I allow the petition with costs and stay the suit under S.4 of Act I of 1957.