JAGATHAMMA Vs. RAGHAVAN PILLAI

JUDGEMENT

(1.) The second appeal has been referred to a Division Bench by one of us since there was already a decision by Joseph J. in Karthyayani Amma v. Raghavan Pillai ( 1962 KLT 380 ) regarding the nature of the" document to be considered (Ex. D1).

(2.) Under Ex. D1 some properties were outstanding with some persons; and a suit for redemption was filed and a decree obtained. In execution of the decree some of the properties were sought to be recovered, when objection was taken by the judgment debtors in possession of those properties that Ex. D1 was a kanam kuzhikanam coming under the provisions of Act IV of 1961. This was rejected by the executing court and the appellate court; and ultimately, the matter came in second appeal before Joseph J. The learned Judge held that Ex. D1 was a mortgage and not a kanam kuzhikanam as claimed by the appellants before him. The other items of properties are sought to be recovered in execution now; and the same document comes up for consideration before us. Since the appellants before us were not parties to the earlier proceedings, the decision by Joseph J. is not, as such, binding on them. It is also not disputed that in spite of the decree for redemption the appellants can claim fixity of tenure if the document evidences a tenancy.

(3.) Now we shall consider the provisions of the document. The document was of 30th Edavam 1099 and it is called otti adharam. An amount of Rs. 1600/- was taken to discharge several debts mentioned in the document and the properties haying an extent of 6 acres and 94 cents were given possession to the transferees. A small michavaram (3 1/2 fanams) is fixed and a term of 12 years is also fixed. The transferees are allowed to plant more coconut and jack trees and pepper vines, to construct kayyalas and sub kayyalas, to dig a well and to construct, if necessary, a new building in addition to the one already existing and live therein. The further provision in the document is that, after the expiry of the term of 12 years, the transferees, if the parties agree thereto, can have a renewal as well. One more provision has to be noted, because that seems to have weighed with Joseph J. in construing the document as a mortgage; and that is the indemnity clause that if there was any other encumbrance on the properties the transferees would be indemnified. We may incidentally mention that there is no right given to the transferees to bring the properties to sale to realise the amount advanced by them. These are the main provisions we have to consider.