K GANAPATHIA PILLAI Vs. MAHESWARAN PILLAI

JUDGEMENT

(1.) THE plaintiff is the appellant in this second appeal which arises out of a suit for redemption filed by him as O.S. No. 688 of 1970 on the file of the District Munsif of Kuzhithurai. THE averments in the plaint are as under:

(2.) THE suit property originally belonged to Kosseri Manakkal Madam. It partitioned the same in 1953 and it was allotted to Nara-yana Namboodiri and Sankaran Namboodiri. A sale deed was executed in favour of the plaintiff on 22nd December, 1968 under Exhibit A-3. Thus the plaintiff became the owner of the property. THE ancestors of the plaintiff's vendor Sankaran Namboodiri demised the suit property in favour of Nagabharanam Raman and others of Marukathala Veedu of Arashkulam Desam on 10-5-1091 (M. E.), for 1,155 fanams under Exhibit A-1. THE document is described as kanam, but the tenure of the plaint schedule property is Sri-pandaravaka. Even though Exhibit A-1 is described as kanam, it has to be construed as a mortgage deed and the demisees are only the mortgagees under the Madam. THEy paid mortgage right devolved upon the defendants and they are in possession of the suit property only as mortgagees. As per the mortgage deed the annual pattom for the suit property was fixed as 2" fanams with cadjans and 3" fanams in cash.. THE michavaram due to the Madam per year is 6 fanams. Exhibit A-l further provides that the mortgagee should pay the sirkar tax for the suit property and should get the document renewed at the end of 12 years from 10-5-1091 (M.E.). So the mortgagees are entitled to be in possession till 10-5-1103 (M.E.). From that date the mortgagor has a right to redeem. Since the defendants are in possession and enjoyment only under the deed of mortgage, they are bound by the terms of the deed. THE michavaram due to the Madam has not been paid and the arrears of michavaram from 1135 (M. E.) is claimed in the suit with interest at 12 per cent. THE suit has been filed on 2nd January, 1969, within the period of limitation.

(3.) IN opposition to this, learned counsel for the respondents would state, in the absence of an element of debt, which is essential for a mortgage, kanam can be construed as a lease, as laid down in Thiruthiyil Unniri Kutti v. Narayana Chettiar and others. As to the meaning of kanam as a lease, the ruling in K.K. Narayanan Nambudripad v. M.N. Krishna Pattar and others1, may be referred. The fact that such kanam is lease is evident from Vasudevan Nambudripad v. Valia Chathu Achan and others2. Such a provision having irredeemable clauses would not amount to a clog is also apparent from Kutti-kalte v. Kunhikavamma3. Whether a provision for irredemption would amount to a clog or not was never decided in Lachuma Goundan v. Pandiyappan4. IN Mathavan Kesavan v. Padmanabhan Narayanan Bhattathiri and others5, it has been categorically laid down that such a provision was possible in view of the customary law that was prevalent. Kanam in respect of pandaravaka lands has been recognised by a few decisions of this Court as seen from S.A. Nos. 1261 of 1956, following S.A. No. 1123 of 1956.