# ssa MANGALA KUNHIMINA UMMA & ORS v. PUTHIVAVEOTIIL PARU AMMA & ORS

- **Citation:** [1971] 3 S.C.R. 582
- **Court:** Supreme Court of India
- **Decided:** 1971-01-28
- **Case number:** Civil Appeal No. 980 of 1967
- **Bench:** G. K. Mitter, A. N. Ray
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ssa-mangala-kunhimina-umma-ors-v-puthivaveotiil-paru-amma-ors-5202
- **Pages:** 8

## Headnote

Kera/a L<11d Reforms Act 1964, s. 2(22)-'Kanam'-Definition of~
Document purporting to be ka11am whether lease or mortgage-TestsDescription in- docu1nent not sufficient guide.
The document Ex. B-6 in so far as it related to the suit lands purported
to be a kanam executed in favour of the predecessor-in-interest of the
present appellants by the predecessors-in-interest of the present respon-
<lents.
The document had a counter-part Ex. A-J,. The suit was filed for
the redemption of the kanam on payment of the mortgage debt.
The
appellants contended in defence that Ex. B-6 was not a mortgage deed but
a lease and, therefore, there was no right to redeem. One of the incidents
of the kanam as defined in s. 2(22) of the Kerala Land Reforms Act, 1964
was the "payment of michavaram or customary dues on renewal on the
expiry of any specified period".
Against the decision of the Kerala High
Court in favour of the plaintiffs-respondents, the present appeal was filed
by special leave.
The only question for consideration was whether the
appellants were protected against eviction by reason of their contention
that Ex. B-6 created a tenancy. The decision of this question depended
upon the further consideration whether the provision in Ex. B-6 for payment of .laild revenue for properties by the appellants amounted in law to
a stipulation as rent or michavaran to the landowner.
HELD : (I ) The mere description of the deed as kanam will not be
decisive of the essence of the transaction. The description of the deed by
itself, isolated from the terms and provisions may be misleading ;,r a misnomer.
The circumstances and the conduct of the parties are· always a
very useful guide in ascertaining the true character of the transaction.
[587 B-C; El
( 2) The first and foremost element to be four,J for a lease is whether
there is lhe intrinsic intention in the "'ritten document for enjoyment of
the property by the transferee in lieu of rent or perquisites. Secondly the
term of renewal of the enjoyment would indicate the features of a lease.
Thirdly it has to be. found out whether there is any provision for payment
of customa.ry dl\es. [587 H; 588 Al
The · dom.inant feature of the mortgage transaction on the other hand
will be ascertainment of the ratio of the value of land to the amount.
advanced, It the ratio of the amount advanced bears a substantial proportion to the value of the property transferred it would be a strong piece
of intention and circumstance to indicate loan -and a mortgage. The provision entitling the transferee t0 ask for a return of money by sale of tlte
property would be a very important feature to indicate that the transa.c~ion
is a loan and a mortgage and not a lease. The absence of such a prov1s1on,
however would not totally repel the transaction to be a mortgage.
The
execution of counter~part is sometimes a common feature in the case of
possessory mortgage though the existence of a counter•part by itself will
·not be conclusive of the question. [588 B-Dl
A
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B
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MANGALA KUNHIMINA UMMA V. PUTHIVAVEOTTIL PARU
583
AMMA (Ray, J.)
(3) The High Court correctly held that a mere direction to pay the
revenue of the property by the grantee particularly when no payment is
stipulated to be made to the grantor or when the payment is not directed
to be made out of anything which is due or payable to the grantor, cannot
be considered as a payment or rent or michavaran to the grantor. [588 G]
( 4) In the present case the features which favoured the constructio11,
of the transaction to be a molrtgage and not a lease were; fir>l there was
no provision for renewal; secondly there was no provision for payment of
customary dues; thirdly the property was to be enjoyed by the defendants
by way of interest on their advance after payment of land tax to the State;
fourthly the payment of land tax was not a deduction from rent or per·
quisites; fifthly there was a provision for surrendering the property with a
registered release at the co

## Text

ssa
MANGALA KUNHIMINA UMMA & ORS.
v.
PUTHIVAVEOTIIL PARU AMMA & ORS.
January 28, 1971
[G. K. MITTER AND A. N. RAY, JJ,J
Kera/a L<11d Reforms Act 1964, s. 2(22)-'Kanam'-Definition of~
Document purporting to be ka11am whether lease or mortgage-TestsDescription in- docu1nent not sufficient guide.
The document Ex. B-6 in so far as it related to the suit lands purported
to be a kanam executed in favour of the predecessor-in-interest of the
present appellants by the predecessors-in-interest of the present respon-
<lents.
The document had a counter-part Ex. A-J,. The suit was filed for
the redemption of the kanam on payment of the mortgage debt.
The
appellants contended in defence that Ex. B-6 was not a mortgage deed but
a lease and, therefore, there was no right to redeem. One of the incidents
of the kanam as defined in s. 2(22) of the Kerala Land Reforms Act, 1964
was the "payment of michavaram or customary dues on renewal on the
expiry of any specified period".
Against the decision of the Kerala High
Court in favour of the plaintiffs-respondents, the present appeal was filed
by special leave.
The only question for consideration was whether the
appellants were protected against eviction by reason of their contention
that Ex. B-6 created a tenancy. The decision of this question depended
upon the further consideration whether the provision in Ex. B-6 for payment of .laild revenue for properties by the appellants amounted in law to
a stipulation as rent or michavaran to the landowner.
HELD : (I ) The mere description of the deed as kanam will not be
decisive of the essence of the transaction. The description of the deed by
itself, isolated from the terms and provisions may be misleading ;,r a misnomer.
The circumstances and the conduct of the parties are· always a
very useful guide in ascertaining the true character of the transaction.
[587 B-C; El
( 2) The first and foremost element to be four,J for a lease is whether
there is lhe intrinsic intention in the "'ritten document for enjoyment of
the property by the transferee in lieu of rent or perquisites. Secondly the
term of renewal of the enjoyment would indicate the features of a lease.
Thirdly it has to be. found out whether there is any provision for payment
of customa.ry dl\es. [587 H; 588 Al
The · dom.inant feature of the mortgage transaction on the other hand
will be ascertainment of the ratio of the value of land to the amount.
advanced, It the ratio of the amount advanced bears a substantial proportion to the value of the property transferred it would be a strong piece
of intention and circumstance to indicate loan -and a mortgage. The provision entitling the transferee t0 ask for a return of money by sale of tlte
property would be a very important feature to indicate that the transa.c~ion
is a loan and a mortgage and not a lease. The absence of such a prov1s1on,
however would not totally repel the transaction to be a mortgage.
The
execution of counter~part is sometimes a common feature in the case of
possessory mortgage though the existence of a counter•part by itself will
·not be conclusive of the question. [588 B-Dl
A
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G
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c
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MANGALA KUNHIMINA UMMA V. PUTHIVAVEOTTIL PARU
583
AMMA (Ray, J.)
(3) The High Court correctly held that a mere direction to pay the
revenue of the property by the grantee particularly when no payment is
stipulated to be made to the grantor or when the payment is not directed
to be made out of anything which is due or payable to the grantor, cannot
be considered as a payment or rent or michavaran to the grantor. [588 G]
( 4) In the present case the features which favoured the constructio11,
of the transaction to be a molrtgage and not a lease were; fir>l there was
no provision for renewal; secondly there was no provision for payment of
customary dues; thirdly the property was to be enjoyed by the defendants
by way of interest on their advance after payment of land tax to the State;
fourthly the payment of land tax was not a deduction from rent or per·
quisites; fifthly there was a provision for surrendering the property with a
registered release at the cost of the transferee on the_r.eceipt of the consi·
deration of kanam and the balance amount; sixthly when the consideration
was paid back the counter-pattam deeds and prior deeds would be returned;
and finally there was liability to pay interest on the advance and possession
and enjoyment of the property was in lieu of interest. The proportion of
the amount advanced under Ex. B-6 to the value of the property was also
substantial [589 E-0; A-Cl
Parameswaran Embranthiri v. Narasimha Nambudri, [1962] K.L.T. 404,
Sankunni Variar & Ors.
v.
Neelakandlum Nambudripad & Ors., I.L.R.
(1944] Mad. 254. Cherumanalil Lakshmi & Ors. \', Mulivil Kunninamkandy
Narayani & Ors., (1%7] S..C. R. 314, Kunhiparan v. V. Naicken & Ors.,
(1967] K.L. T.
646
and
Kunhirama
Nambiar
v.
Pairu
KutrU<>,
[1969] K.L.T. 62, referred to.
Hussain Thangal v. Ali, [1961] K.L. T. 1033, approved.
Pote/ Bhuder Mayji etc. v. lat Mamdaji Ka/aji (deceased) throogh L.
Rs. Jat Singh Khan Mamdaji etc. [1969] 3 S.C. R. 690, applied.
E
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 980 of
1967.
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Appeal by special leave from the decree dated the March 29,
1967 of the Kerala High Court in Second Appeal Suit No. 374
of 1965.
T. Narayanan Nambyar and A. V. V. Nair, for the appellants.
K. T. Harindranath and A. S. Nambyar, for respondents Nos.
1 to 4 and 6(1) and 6(2).
The Judgment of th,e Court was delivered by
Ray, J.-This is an appeal by special leave against the judgment dated 29 March, 1967 of the High Court of Kerala confirming the decree of the lower appellate Court declaring that the sum
of Rs. 1000/ - is due to defendants No. 10 to 17 as legal representatives of defendant No. 2 on the mortgagi- mentioned in the
plaint and that the plaintiffs having deposited .the said sum of
Rs. 1000/- on the file of the Court of the Munsif, Cannanore,
the defendants No. 10 to 17 do surrender Quiet and peaceable
~ession of the property described in the plaint ti<' the plaintiff
No. 7 with all documl?nts relating to the property in their possession and further that the defendants No. 10 to 17 do pay to the
584
SUPREME COURT REPORTS
[1971]3 S.C.R
plaintiff No. 7 half of the mesne profits from 22 December, 1953
till the date of surrender of possession.
The relevant documents are Ex. B-6 and Ex. A-1. Ex. B-6
A
is a kanam-kuzhikanam. Ex. A-1 is its counter-part. They are
both dated 1 December, 1941.
The transaction thereunder is a
composite one, a kanam in respect of taks 1 to 3 of-i(em 1 which
constitute properties in suit and a kanam kuzhikanam in respect · B
of tak 4 of item 1 and item 2 which are not the subject matter of
this suit. The kanamdars are defendants No. 1 and 2. In partition under Ex. 3 the rights under Ex. B-6 have been divided equally between the defendants No. 1 and 2 but the properties as such
are not divided. The appellants being the legal representatives of
defendant No. 2 had thus an undivided moiety in the properties in
suit. The original plaintiff was an assignee of the jenmi (the land
owner) who granted Ex. B-6. On the death of the original plaintiff, her initerest devolved on plaintiffs No. 2 to 6 who assigned the
same to plaintiff No. 7. The suit is for redemption of the kanam
on the properties in suit. Subsequent to the institution of l!he suit,
defendants No. 3 to 9 being the legal representatives of defendant
No. 1 and being respondents No. 7 to 13 in this appeal surrendered
their moiety in the suit kanam, to plaintiffs No. 2 to 6 and thereafter the suit proceeded in regard to the moiety of the kanam that
belonged to defendant No. 2 and his legal representatives, namely,
·the appellants.
The only question in this appeal is whether the appellants are
protected against eviction by reason of their contenl!on that Ex.
P-6 created a tenancy or whether the respondents were entitled to
possession of the properties, by reason of their rival co11:C:ntion
that Ex. B-6 was a mortgage transaction and the respondents were
entitled to redeem the mortgage on the expiry of the rtipulated
period.
The Malabar Tenancy Act, 1929 was in force at the time of
the institution of the suit but it is common ground that rights and
liabilities of the parties are to be juc!ged under the Kerala Land
'Reforms Act, 1964 by reason of the provisions contained in section
132(1)(a) thereof.
The relevant provisions of section 2(22) of the
'Kerala Act of 1964 which defines kanam are as follows :-
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"(22) 'kanam' means the transfer for consideration, in
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money or in kind or in both, by a landlord of an
interest in specific immovable property to another
person or the latter's enjoyment, whether described in the document evidencing the transaction
as kanam or kanapattam, the incidents of which
transfer IncludeH
(a) •.••••••• •·•·• ••••••••••••
(b)-•..•..••..••.•••••.•••••••••••
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MANOALA KUNHIMINA UMMA V. PUTHIVAVEOTTIL PARU
585
AMMA (Ray, J.)
(c) payment of michavaram or customary dues,
or renewal on the expiry of any specified
"od
"
pen ........ .
It is indisputable that a kanam within the above definition
involv~s payment of michavaram or customary dues or renewal
on t'.1;: expiry of any specified period.
In Ex.B-o there is
no
provision for renewal or for payment of customary dues.
The
pre-eminent question is whether there is a provision for payment
of michavaram.
Broadly stated, Ex.B-6 executed by defendants
No. I and 2 stipulated that they would pay the kanam of Rs. 1400
charged on taks 1 to 3 of item No. 1 in the Schedule to Ex.B-<i to
the 7 persons Narayani and others and their representatives and
redeem the same and hold the said taks 1 liO 3 of item No. 1 as
kanam and tak 4 and item No. 2 as kanam-kuzhikanam, paying
the land revenue for the properties and enjoy them for interest on
the kanam, and after the term of 12 years when the kanam of
Rs. 2000/- charged on taks 1 to 3 of item No. 1 was offered the
defendants shaJI receive and surrender the properties with basic
documents by a registered release at their costs.
No rent is stipulated for the property in consideration of advance of Rs. 2000/-
whereof Rs. 1400/- was to be paid to the prior mortgagees on taks
1 to 3 of item No. 1.
The suit properties in Ex.B-6 were to be
enjoyed by defendants No. 1 and 2 for interest on their advance
after payment of the land tax to the State.
It therefore falls for consideration as to whether the prevision
in Ex.B-6 for payment of land revenue for the properties by the
appellants amounts in law to a stipulation as rent or michavaram
to the land owner.
Counsel on behalf lo)f the appellants relied
on the decision of the Kerafa High Court in Parameswaran Embranthiri v. Narasimba Nambudiri(1) and the earlier Bench division
of the Madras High Court in Sankunni Varriar & Ors. v. Neelakandhan Nambudripad Ors.( 2 ) in support of the proposition that
payment of land revenue would amount to payment of rent up.
In the Madras Bench dicision in Sankunni's case (supra) the
kanam deed was for 36 years and the deed provided that the
jenmi shouldieceive infer alia an annual rental of 411 paras, 4
idangalis and one nazhi of paddy and gingelly oil to the value of
six rupees.
The kandamdaras were required by the deed in
Sankunni's (supra) ca.<e to pay out of the gross rent to the Government what became due by way of land revenue. The actual words in
the kanam deed were that the pattam (gross rent) of the property
demised was 2507 paras of paddy and the kanamdars were to
~old .the properties in their possession. and e~joyment and pay to
iemm a pattam (rent) of 411 paras, 4 1dangahs, 1 nazhi of paddy,
of the money value of Rs. 138/- inclusive of paras vasi (allowance
(1) [1962] K.L.T. 404
(2) l.L.R. [1944] Mad. 254
586
SUPREME COURT REPORTS
[1971] 3 S.C.R.
for ·difference of measurement) duly dried, winnowed, cleaned,
A
conveyed to the jenmi's residence and measured out by their
1 40
nazhis para, after deduction of \he interes~ due on the mortgage
amount and the assessment on t~e properties due to the Government from the said rent together With sundry payment of one para,
two idanglis of gingelly oil of the value of Rs. 6, within the 30th
of Makaram (10th February) of each year commencing with the
B
year 1069 M.E. (1893-94) and duly take receipt therefor.
In Sankunni's case the land revenue was increased as a result
of resettlement.
The question was whether the burden of the
increased revenue fall upon the jenmi. It was contended in Sankunni's (') case that inasmuch as there was reference· in the deed
to gross yield of the land and the jenmi was to receive his rent after
C
deduction of the interest due on the mortgage and the Government revenue, the in1ention was to fix the l\anamiars' liability on
tbe basis of the revenue payable to the Government on the date
of the kanam. If the revenue payable was to be increased it was
said in that case that the jenmi was to be responsible for the payment of the additional amount.
I)
The entire ratio in Sankunni's( 1) case was first that the liability of the jenmi was for the revenue and secondly, the kanamdar
was to deduct from the rent the interest on the mortgage amount
and the assessment on the properties due to the Government.
The decision of the learned Single Judge of the Kerala High Court
in Parameswaran's(2) case was that recital in the deed that the
.E
defendant was to be in possession of the properties and was to
pay the revenue out of the income and appropriare the balance
towards interest on the amount of the advance amounted to a
stipulation for payment of revenue as michavaran or rent. In Sa11kunni's(1) case the direction to pay revenue out of tho~ rent of the
property which was due to the landlord was justifiably held to
F
be a payment on behalf of the landlord because it was a part of
the michavaram.
That reasoning could not apply to Parameswaran's(2) @Se because in that case there was neither any fixation
of rent nor any Stipulation for payment of rent or michavaram
to the landlord.
This Couvt in Cherumanalil Lakshmi & Ors. v. Mulivil KrtnG
njnamkandy Naravani & Ors. (3 ) considered as to when a transaction would be kanam-kuzhikanam and when a
usufractuary
Illllrtga.Q;e. In each case it manifestly depends entirely on the terms
of thi- trnnsaction.
In Lakshmi's case there was a demise of
land with fruit bearing trees for 24 years. The transfer was for
the enjoyment o( land with trees.
The kanam amount was
u
(!) l.L.R. [1944] Mad. 254
(2) [1962] K.L.T. 404
t
(3) [1967] I S.C.R. 314
MANGALA KUNHIMINA UMMA V. PUTHIVAVEOTTIL PARU
~87
AMMA (Ray, /,)
A
Rs. 5000/- in one case and Rs. 600/· in the other. The transferees were entitled to appropriate the income of the land in lieu
of interest on the kanam amount and to hold the land even after
the expiry of 24 years until the payment of the kanam amount and
the value of the trees planted by them. It was therefore found
that all the ingredients of kanam-kuzhikanam were satisfied. The
B
test to be applied is whether the purpose of the transaction is enjoyment of the propertyby the transferee or whether it is intended
to secure the repayment of debt by transfer of interest in the proper.y.
The mere description of the deed as kanam-kuzhikanam will
not be decisive of the essence of the transaction. The description
c
of deed by itself isofated from the terms and provisions may be
misleading oi: a misnomer.
Counsel for the respondents relied on the Bench decision of
the Kerala High Court in Kunhiparan v. V. Naicken & Ors(1).
in support of the propositlion that payment of perquisite would indicate that the relationship was that of land-lord and tenant.and·
D
the name of the document would not be sufficient to displace the
real terms. In Kunhiparan's case the transaction was described
as a kudiyiruppu to have the flavour of a mortgage but the court
found the transaction by the terms, provisions and intention of
the parties to be a lease and not a mortgage.
The circumstances and the conduct of the parties are always
E
a very useful guide in ascertaining the true character and content
of the transaction. Counsel for the respondents relied on the Full
Bench decision of the Kerala High Court in Kunhirama Nambiar ·
v.Pairu Kurup(') wbere the document was a kanayadharam and
in spite of its nomeiiclature it was held to be a mortgage and not
a kanam. The elements which are usually considered relevant to
F
find out the intention of the parties, are first, the proportion of
the am?unt advanced to. the value of the securitr; secondly, the
rate of mterest payabl_5: c;in the sum advanced; thirdly, the absence·
of a provision for makin_g improvements and the proportion of the
rent or 'purapad'·to the income reserved for appropriation towards
interest; and fourthly, the surrounding circumstances at the time
of the transaction, namely, that the tarward was at the time of
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the exec~tio? of the doc_lllllent in !1ire need of money to discharge
debts to mdicate that the transaction was intended to be a mortgage and not a lease. It will always be a significant feature in a
document as to whether the jenmoll! right of the tarwad in the
properties has been secured for the kanartham by way of mortgage.
H
The first and foremost element to be found for a lease is whether there is the intrinsic intention in the written document for en-
(1) [1967]K.L.T. 646.
(2) [1969}K.L.T. 62.
8-918 Sup. C.I./71
588
SUPREME COURT REPORTS
[1971] 3 S.C.R.
joyment of the properfy by the transferee in lieu of rent or perquisites. Secondly,. t~ term of renewal of the enjoyment would
indicate the feature of a lease. Thirdly, it has to be found out
whether there is any provision for payment of customary dues.
The learned Single Judge in the decision of the Kerala High Court
in Hussain Thangal v. Ali(') rightly said that the use of words
like 'pattam' meaning profits would be a strong indication of the
transaction to be a lease and not a mortgage.
The dominant features of a mortgage transaction on the other
har:d would be the ascertainment of the ratio of the value of land
to the amount advanced. If the ratio of the amount advanced
bears a substantial proportion to the value of the property transferred it would be a strong piece of intention and circumstance to
indicate loan and a mortgage. A provision entitling the transferee
to ask for a return of money by sale of the property would be a
very important feature to indicate that trans_action is a loan and a
mortgage and not a lease. The absence of such a prqvision, however, would not totally repel the transactiop fo be a mortgage. The
execution of counter part is sometime as common feature in the
case of possessory ri10rtgage though the exis!ence of a counterpart by itself will not be conclusive of the question.
The deed understood in the light of the surrounding circumstances will provide the answer in the 'acts and circumstances of
each case. In the present case, emphasis was placed by counsel
for the appellants on the payment of Government revenue by the
transferee. This Court in Patel !Jhunder Mavji etc. v. lat Mamdaji
Kalaji (deceased) through L. Rs. lat Saheb Khan Mamdaji(2) etc.
said that payment of re"enue . and other dues to the State would
not clothe the occupants with the right of the tenants. Ordinarily,
mortgagees under section 76(c) of the Transfer of Property Act
in the absence of a contract to the contrary pay out of the income
of the property the Government revenue and all other charges of
a public nature d_uring their possession of such land. The High
Court in the present case correctly said that stipulation in the deed
of payment of Government rev~nue by the transferee was -"that
by virtue of the grant the liability to pay revenue is transferred to
the grantee and the grantee who had accepted the grant und the
liability, when he pays the revenue, pays it on his own behalf'.
The High Court also correctly held that a mere direction to pay
the revenue of the pronerty by the grantee, particularly when no
ment is not directed to be made out of anything which is due or
payable to the grantor, cannot be construed as a payment or rent
or michavara)Il to the grantor.
The proportion between the amount advanced and the value
of the property is one of the important tests to be taken into con-
(!) [1961] K.L.T. 1033.
(2) [1969J 3 S.C.R. 690,
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MANGALA KUNHIMINA UMMA V. PUTHIVAVEOTTIL PARU
589
AMMA (Ray, J.)
sideration in deciding the nature of the transaction. Where the
amount advanced bears a substantial proportion to the value of the
property it is an important element indication that the intention
was the creation of a mortgage and not a tenancy. In the present
Caie, the amount for which the properties included in Ex.B-6 were
sold to the first plaintiff under Ex.A.2 was Rs. 5000/- out of which
Rs. 2500/- was to go in. discharge of the amount under Ex.B-6.
The advance, therefore, bore a substantial proportion to the value
of the property.
This feature when considered along with the fact
that the document did not provide P.ayment of any annual purapped
to the jenmi and that the annual amount was directed to be paid
as reven11e of the property which came to Rs. 10-4-0, a paltry recurring annual liabilify, would be an additional reason to support
the intention of the parties that the transaction was a mortgage and
not a tenancy.
It is significant that after the c;xecuti~n of Ex.B-6 defendants
No. 1 and 2 entered into a partition agreement evidenced by Ex.
A-3.
The partition deed included transactions called
kanam
other than the disputed one forming the subject matter of the suit.
In almost all the properties held u.nder kanam· there was division
by metes and bounds, but with regard to Ex.B-6 and the amount
of Rs. 2000/- there was no division by metes and bounds. This
would also point to the conclusion that the defendants No. I and
2 never treated Ex.B-6 as creating a tenancy.
In the present case the features which favour the construction.
of the transaction to ~ a mortgage and not a lease are : first, that
there is no provision for renewal; secondly, there is no provision
for payment of customary dues; thirdly, the property was to be
enjoyed by the defendants by way of interest .on their advance after
payment of land tax to the State, fourthly, the payment of land
tax i~ .not a deduction .from rent or _Qerquisites; fifthly, there is a
prov1s1on for surrendenng the property with a registered release at
the cost of the transferees oa the receipt of the consideration of
~an~ and the balance amount; sixthly, when the consideration
1s paid back the counter-pattam !feeds and prior deeds would be
returned; and finally, there is liability to pay interest on the advance
an~ possession and enjoyment of profits of the property is in lieu
of mterest.
For these reasons we are of opinion that the High Court was
correct in its conclusion as to the nature of the transaction being
a mortgage and not a lease.
The appeal fails and is dismissed with
costs.
G.C.
Appeal dismissed