KUPPU REDDI NOOKAYYA (DEAD) Vs. MANDALUKA BHEEMANNA

JUDGEMENT

(1.) The respondent plaintiff a?n inamdar, holds from second defendant, a zimindar, under the sannad, Exhibit A, and has assigned an interest in his holding, to first defendant the " appellant under Exhibit V. In 1912 the Revenue Officer engaged in the preparation of a Record of Rights for second defendant's estate under Chapter XI, the Madras Estateslnd Act (I of 1908),, entered first defendant as occupancy raiyatin respect of the holding instead of plaintiff. The question is whether he did so correctly. The answer to this question depends on (1) whether Exhibit V is a mortgage with possession or a lease, (2) whether in the latter alternative first defendant is a raiyat, as the term is defined in Section 3, Clause (15), Estates Land Act, and (3) whether the in am is pre-settlement and, therefore, an estate and plaintiff a landholder under Section 3, Clauses (2) and (5).

(2.) Exhibit V dated. 20th, January 1913 is described as a thirumanam document and provides that in accordance with a prior agreement, Exhibit U, the property, which had been placed in first defendant's possession in 1910-11, should remain in it until the end of the year 1917-18 in consideration of a cash payment, of Rs. 160 at the date of Exhibit H and other subsequent payments on plaintiff's behalf,, in all, Rs. 1,280, that first defendant should pay all dues other than extra taxes, which might be levied hereafter, and should at the end of the term surrender without any separate relinquishment. These, the essential provisions of Exhibit V, are prima facie in accordance with the definition of a lease in Section 105 of the Transfer of Property Act, the payment referred to being the price paid or premium. Plaintiff, however, argues that those payments must not be so regarded because they were advances, for which either the property, the possession of which was transferred or the right to that possession was the security and that is alleged with reference to the description of the document and the suggestion that advances prior to its execution were in question.

(3.) This argument is unsustainable. For, although etymological ! y a thirumdnam document may mean one executed in discharge the term thirumanam, as my learned brother with his extensive knowledge of the Telugu District agrees, has acquired a wider meaning, as importing merely a settlement, and, it may be observed, although No. details are in evidence, that, as Exhibit H shows, the previous enjoyment of the property was under a document similarly described. There is no evidence of any advances prior to those enumerated in Exhibit V, and it was never alleged in the lower Courts that there were any. Those in" Exhibit V, and the cash payment of Rs. 160 were made after and when the agreement, Exhibit H, was executed and the former after possession had been given; and they cannot be regarded as prior debts, which the transfer was intended to secure, There is no power of sale and no provision for accounting. Transfers such as this, for a premium without a periodical rent, are no doubt unusual in this Presidency. But under the description of zarpeshgi transactions, they appear to be well-known in North India and are probably what the portions of the Transfer of Property Act definition relating to price paid and to premium, were meant to apply to. That the distinction between transaction of that kind which are leases and those which are mortgages will be difficult, is illustrated by the statement in Macpherson's Law of Mortgages, 5 Edition, p 8, adopted in the judgment in Basant Lal V/s. Tapeshri Rai 3 A 1 : 1 Ind. Dec. (N.S.) 956 that the mortgage character is established, only when there is a power of redemption reserved to the lessor either expressly or impliedly, so that it distinctly appears that the parties themselves intended the transaction to be of the nature of a mortgage. Plaintiff relies on the fact that, although no such power was reserved in the documents in Bengal Indigo Company V/s. Roghobur Das 24 C. 272 : 1 C.W.N. 83 : 23 I.A. 158 : 2 Sar. P.C.J. 94 : 12 Ind. Dec. (N.S.) 848 (P.C.) the transfers there were regarded by the Privy Council as being " not mere contracts for the cultivation of the land let; but intended also to constitute and as having constituted a real and valid security to the tenant for the principal sums which he had advanced and the interest thereon. The tenants possession under those transfers was, in part at least, not that of cultivators only, but that of creditors operating re-payment of the debt due to them by means of their security." But the documents there construed contained what Exhibit V here does not, stipulations for interest on the principal sums paid by the transferees, consistently with those sums being loans there was the judgment, of the High Court shows, "provision about the satisfaction of the money-debt," and in fact, whatever the exact intention, with which these references: to security were made the conclusion against the transferees was not based on the mortgage character of their transfers, but on one section of the Bengal Tenancy Act independently of it. In a later case, Nidha Sah V/s. Murli Dhar 25 A. 115 : -30 I.A. 54 : 5 Bom. L.R. 111 : 7 C.W.N. 289 : 8 Sar. P.C.J. 435 (P.C.) in which, although the document was described as a mortgpge and was given for prior advances its provisions resembled those of Exhibit V more closely, the Privy Council held that there was no mortgage, but ?simply a grant, of land for a fixed term free of rent in consideration of a sum made up of past and present advances." In accordance with this decision and with Section 105 of the Transfer of property Act the application of which there is here nothing td conclude, the finding must be that Exhibit V is a lease.