TMI Blog1976 (9) TMI 175X X X X Extracts X X X X X X X X Extracts X X X X ..... compensation which was awarded was a sum of ₹ 2859.88 including the solatium. There were five claimants clamour- ing for the compensation. While the first claimant (herein- after to be described as the appellant) claimed the entire compensation after making allowance for a small sum of ₹ 437.50 in favour of the claimants 2to 4 (hereinafter to be described as the respondents) the latter, on the other hand, claimed the entire amount minus a sum of ₹ 350/- which, according to them, was the entitlement of the appel- lant. The acquired property originally belonged in janman (freehold right) to one Vakeri Thannanone Raman Nair. After his death the same was inherited by his heirs and legal representatives. They assigned their Jan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... am right will only get a pittance. It may be noted that the appellant, had already got his 14th share of the otti right by partition some time in 1936 and there was a partition suit in 1949 when the appellant and the respondents divided this property by metes and bounds in the course of execution of a partition decree in O.S. 32 of 1949. We are required to construe the deed executed in the year 1894. The deed was not drafted by a lawyer conversant with the legal implications of a mortgage or a lease but by a bond-writer as perhaps was the usual practice in the fall of the last century and continuing even upto the present times. The deed was written in Malayalam and we have an agreed translation of the document before us. The learned J ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... absolute) right, with all the improvements therein has been demised and given to your possession for a period of 72 years, you may enjoy the paramba (dry land) with all the improvements on otti right and after adjusting the interest on otti consideration pay the purappad ₹ 3155 fixed to be paid annually and also pay the revenue in our jema and obtain receipt therefor. On the expiry of the said period, when the otti amount is paid and the otti is redeemed, we shall pay the value of improvements then found and fixed. We hereby assure you that to our knowledge and belief there is no other charge or liability on this property . Apart from the document neither party adduced any evidence before the court. From the contents of the docu- ment ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ount of ₹ 3-15-5 for paying the land revenue. On the other hand, the document stated that this amount of fixed rent was to be paid annual- ly in addition to the Government revenue which the transfer- ee was required to pay. This feature of payment of rent, in this case, flits the balance in favour of construing the document as a lease, coupled with the fact that the essence of a mortgage being the transfer of immovable property as security for the debt is conspicuous by its absence in the detailed enumeration of the terms. Further, as stated earli- er, there is no right to sell the property in case the debt is not repaid. There is also nothing to show that the enjoyment of the usufruct was intended to wipe out the debt in the long per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Japnam right was made in favour of the appellant. The transferors thus walked out of the field leaving the future contest amongst the transferees out of whom the appellant came to be the Janmi. It is apparent that after the partition the appel- lant would not stand to gain with regard to the 3/4th share of the property, which is in dispute, by accepting the document ,rs a lease since the respondents are the transfer- ees in possession of this particular property. The appel- lant, therefore had cast his lot in a gamble by purchasing the Janmam right from the transferors in 1967. There is sufficient force in the contention of the respondents that the transferors themselves treated this document as a lease for else it cannot be explained ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of the parties executing the document viewed from the essential aspect of the reality of the transaction. Human transactions cannot be tied to textual defini- tions. They have to respond to variable requirements under different situations and often to the dictates of the party at an advantage in the bargain. Mortgages are not always simple, English, or usufructuary or such other types as defined in the Transfer of Property Act. They are anomalous too and sometimes more anomalous than what is defined in the said Act. Even so, there is one most essential feature in a mortgage which is absent in a lease, that is, that the property transferred is a security for the repayment of debt in a mortgage whereas in a lease it is a transfer of a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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