1971 (1) TMI 127 - SC - Indian Laws

Court affirms Ex. B-6 as mortgage, not tenancy. Appeal dismissed with costs.

Mangala Kunhimina Umma and Ors. Versus Puthiyaveettil Paru Amma and Ors.

The court affirmed the High Court's judgment, concluding that the transaction under Ex. B-6 was a mortgage and not a tenancy. The appeal was dismissed ... - Issues Involved:1. Whether the appellants are protected against eviction by reason of their contention that Ex. P-6 created a tenancy.2. Whether the respondents were entitled to possession of the properties by reason of their contention that Ex. B-6 was a mortgage transaction and the respondents were entitled to redeem the mortgage on the expiry of the stipulated period.Detailed Analysis:Issue 1: Whether the appellants are protected against eviction by reason of their contention that Ex. P-6 created a tenancy.The appellants argued that Ex. P-6 created a tenancy, which would protect them against eviction. They relied on the Malabar Tenancy Act, 1929, and the Kerala Land Reforms Act, 1964, particularly Section 132(1)(a) and Section 2(22) which defines 'kanam.' The appellants contended that the payment of land revenue stipulated in Ex. B-6 amounted to a payment of rent or michavaram, thus creating a tenancy.The court examined various precedents, including the Kerala High Court's decision in Parameswaran Embranthiri v. Narasimba Nambudiri [1962] K.L.T. 404 and the Madras High Court's decision in Sankunni Varriar and Ors. v. Neelakandhan Nambudripad Ors. I.L.R. [1944] Mad. 254. These cases discussed whether the payment of land revenue could be considered as rent. The court noted that in Sankunni's case, the payment of land revenue was part of the michavaram, but this reasoning did not apply to Parameswaran's case, where there was no fixation of rent or stipulation for payment of michavaram.The court also referenced its own decision in Cherumanalil Lakshmi and Ors. v. Mulivil Kunnjnamkandy Naravani and Ors. [1967]1SCR314, which emphasized that the terms of the transaction determine whether it is a kanam-kuzhikanam or a usufructuary mortgage. The court concluded that the mere description of the deed as kanam-kuzhikanam is not decisive; the terms and provisions of the deed must be considered.Issue 2: Whether the respondents were entitled to possession of the properties by reason of their contention that Ex. B-6 was a mortgage transaction and the respondents were entitled to redeem the mortgage on the expiry of the stipulated period.The respondents contended that Ex. B-6 was a mortgage transaction, entitling them to redeem the mortgage upon the expiry of the stipulated period. The court analyzed the terms of Ex. B-6, noting that it did not provide for renewal or payment of customary dues, and the payment of land revenue was not stipulated as rent or michavaram.The court examined the proportion between the amount advanced and the value of the property, which is a significant factor in determining whether a transaction is a mortgage or a lease. In the present case, the amount advanced bore a substantial proportion to the value of the property, indicating a mortgage rather than a tenancy. The court also noted the absence of any provision for annual purapad to the jenmi and the paltry recurring annual liability for land revenue.The court considered the conduct of the parties and the surrounding circumstances, including the partition agreement (Ex. A-3), which treated other kanam transactions differently from Ex. B-6. This indicated that the parties did not consider Ex. B-6 as creating a tenancy.The court identified several features supporting the conclusion that the transaction was a mortgage:1. No provision for renewal.2. No provision for payment of customary dues.3. Enjoyment of the property was in lieu of interest on the advance after payment of land tax to the State.4. Payment of land tax was not a deduction from rent or perquisites.5. Provision for surrendering the property with a registered release upon receipt of the consideration of kanam and the balance amount.6. Return of counter-pattam deeds and prior deeds upon repayment.7. Liability to pay interest on the advance, with possession and enjoyment of profits in lieu of interest.Based on these factors, the court concluded that the transaction was a mortgage, not a lease, and the respondents were entitled to redeem the mortgage and take possession of the properties.Conclusion:The court affirmed the High Court's judgment, concluding that the transaction under Ex. B-6 was a mortgage and not a tenancy. The appeal was dismissed with costs.