P. SITARAMAMMA Vs. P. ANKAIAH AND OTHERS

JUDGEMENT

(1.) The third plaintiff in each of two suits for redemption of two usufructuary mortgage bonds is the appellant in these two appeals. Exhibit A-1 is the usufructuary mortgage bond involved in Second Appeal No. 1935 of 1953 and Exhibit A-2 is the usufruactuary mortgage bond involved in Second Appeal No. 1936 of 1953. The Courts below found that Exhibits A-1 and A-2 are not usufruactuary mortgage bonds but usufructuary leases and that the plaintiffs cannot recover possession of the lands covered by them before the expiry of the period mentioned in each of them. They, therefore, dismissed both the suits for redemption. The bonds in both the suits are in identical terms and it would be sufficient if I consider the language in Exhibit A-1, in order to determine the question as to whether the suits are maintainable.

(2.) The material portion of Exhibit A-1 is as follows :

(3.) Now, the point for consideration is whether this document is a lease or a mortgage. The first thing to be noticed about it is that the parties name it a premium lease. This phrase occurs twice in the document at the end as well as in the beginning. Secondly, it is clear that the parties are aware of the distinction between a mortgage and a lease, because a previous possessory mortgage over the same property is mentioned. There are also counter-parts executed by the lessees which are marked as Exhibits A-3 and A-4. Exhibit A-3 is the counter-part of Exhibit A-1 and Exhibit A-4 is the counter-part of Exhibit A-2. Further, there are no words indicating that the land should constitute security for the debt. On the other hand, the very fact that the document is called a lease seems to exclude any intention to create any security. It is true that future interest is mentioned. But the whole of such interest is assessed at a consolidated sum and treated as part of the money advanced by the lessees to the lessors.