CHITKALA PEDA YERRANNA Vs. CHITKALA SOMANNA

JUDGEMENT

(1.) This Letters Patent Appeal arises out of a suit filed to eject the defendants, who are in possession under what is called a Khandagutta cowle of a land described as carpenter's service inam. This land was in 1915 the property of a minor named Satyanarayana and in that year his mother as his guardian executed the document in question, Ex. I, to the 1st defendant, of whom the 2nd and 3 defendants are brothers. This document has been abstracted in para. 8 of the District Munsifs judgment. A sum of Rs. 693 was received for the purpose of paying certain debts and in consideration of it the 1 defendant was put in possession for 33 years. In 1930 the Government resumed and fully assessed this inam and regranted it on patta, to Satyanarayana. At about the same time Satyananayana was sued, and this property was attached under the decree, sold in Court auction and purchased by the plaintiff in the present suit. He has endeavoured to show that the instrument under which the defendants are in possession is invalid and now appeals against a judgment which upholds it.

(2.) The question which first arises is whether Ex. I is a mortgage or a lease. It is, as we have said, called a Khandagutta cowle, which appears to mean a lease for a fixed premium. At any rate, whatever be the meaning of the word Khandagutta , cowle ordinarily denotes a lease and not a mortgage. On the other hand, in the body of the document it is recited that the land has been mortgaged to the first defendant for a period of 33 years and reference is made to "discharging the aforesaid debt". But again, the sum of Rs. 693 is to carry no interest and is to be extinguished by a cist or rent of Rs. 21 per annum, which for the 33 years would amount to this figure. The transaction in most respects resembles that considered by a Full Bench of this Court in A Reference under the Stamp Act 21 M. 358. It was held that that document was a usufructuary mortgage and not a lease. In one important respect, however, there is a difference, namely, that the rents and profits in the other document were to go in satisfaction not only of the principal amount but of the interest thereon. That was a fairly plain indication that the money advanced was regarded as a debt, not as a premium. The learned Judge who dealt with this point on Second Appeal in this case was of opinion that the considerations which weighed with the Privy Council in holding that the document in Nidha Shah V/s. Murli Dhar 25 A. 115 : 30 I.A. 54 : 8 Sar. 435 (P.C.) : 5 Bom. L.R. 111 : 7 C.W.N. 289 was not a mortgage should prevail here too, and we agree with him, in holding that the document in that case was not a mortgage in any proper sense of the word. Their Lordships say; It is not a security for the payment of any money or for the performance of any enagagement. No accounts were to be rendered or required, There was no provision for redemption expressed or implied. It was simply a grant of land for a fixed term free of rent in consideration of a sum made up of past and present advances.

(3.) We consider that Ex. I is what it is entitled, a lease for a fixed premium.