TAVANUR MANAKKAL RAMAN NAMBUDIRI Vs. CHENNI VEETTIL KARTHIYA

JUDGEMENT

(1.) These two appeals which are against orders of remand raise a common question for determination, and that is the construction of a certain document, Ex. A. 1, a panayam kychit, as it is called, dated 25th May 1923. The suit out of which these appeals arise was one for redemption on the footing that the document constituted a usufructuary mortgage. It was resisted by the defendants on the ground that the transaction was in the nature of a kanam. The suit was decreed by the trial Court but dismissed on appeal with the result that an application for renewal of the kanam which had been rejected by the trial Court was ordered by the lower appellate Court.

(2.) There has been much argument advanced on both sides on this question of the construction of the document, but I think that if certain broad considerations of perspective are borne in mind the construction is not by any means one of difficulty.

(3.) That there was a prior kanam on the expiry of which the suit document came into existence is not disputed. That an amount of Rs. 250 was fixed by the parties as purapad payable on the date of the execution of the document in question and was in fact so paid is also common ground. Laying down for his guidance two basic principles (1) that it is more the substance of a transaction than its name that has to be looked into for the purpose of ascertaining the true nature of the transaction, and (2) that where the parties to a transaction with full knowledge of its legal implications have chosen to give a particular name to the transaction which is known to law, and the document evidencing the terms of the bargain makes It clear that the intention of the parties was to enter into such a transaction as is named by them, the Court is bound to give effect to the plain terms and tenor of the document, unless it is shown that the terms of the bargain are repugnant to the character of the transaction as intended by the parties, the learned District Munsiff came to the conclusion that the document in question in the present case was in the nature of a possessory mortgage. The learned Subordinate Judge on appeal reversed him essentially under the influence of the impression, which is not warranted by the document itself, that although the parties intended a kanam they wanted to make it appear that it was a mortgage and that way "to anticipate a passing of any tenancy legislation giving protection to kanomdars." I should ordinarily be loth to interfere on a question of construction with the view of the lower appellate Court in any case, but where the Courts below have differed, the question which I generally propound to myself, is whether the lower appellate Court had sufficient reason in law which compelled it to differ from the trial Court on the construction which the latter had placed upon the document. Applying this point of view to the present case, I have, after a careful and anxious consideration of the arguments of counsel on both sides, arrived at the distinct conclusion that the trial Court in the present case approached the matter from the right perspective and decided the case aright, whereas the lower appellate Court without sufficient warrant interferred with the conclusion arrived at by the trial Court. It follows in my opinion that the order of the lower appellate Court in the present case must be set aside and the decree and order of the trial Court should be restored.