TMI Blog1971 (1) TMI 127X X X X Extracts X X X X X X X X Extracts X X X X ..... till the date of surrender of possession. 2. The relevant documents are Ex. B-6 and Ex. A-1. Ex. B-6 is a kanam-kuzhikanam. Ex. A-1 is its counterpart. They are both dated 1 December, 1941. The transaction thereunder is a composite one, a kanam in respect of taks 1 to 3 of item 1 which constitute properties in suit and a kanam kuzhikanam in respect 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 interest 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 the suit, defendants No. 3 to 9 being the legal representatives of defendant No. 1 and being respondents No. 7 to 13 in this appea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ll 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. 6. 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 fit the appellants relied on the decision of the Kerala High Court in Parameswaran Embranthiri v. Narasimba Nambudiri [1962] K.L.T. 404 and the earlier Bench division of the Madras High Court in Sankunni Varriar and Ors. v. Neelakandhan Nambudripad Ors. I.L.R. [1944] Mad. 254 in support of the proposition that payment of land revenue would amount to payment of rent up. 7. In the Madras Bench decision in Sankunni's case (supra) the kanam deed was for 36 years and the deed provided that the jenmi should receive inter alia an annual r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of the advance amounted to a stipulation for payment of revenue as michavaran or rent. In Sankunni's I.L.R. [1944] Mad. 254 case the direction to pay revenue out of the rent of the property which was due to the landlord was justifiably held to be a payment on behalf of the landlord because it was a part of the michavaram. That reasoning could not apply to Parameswaran's [1962] K.L.T. 404 case because in that case there was neither any fixation of rent nor any stipulation for payment of rent or michavaram to the landlord. 10. This Court in Cherumanalil Lakshmi and Ors. v. Mulivil Kunnjnamkandy Naravani and Ors. [1967]1SCR314 considered as to when a transaction would be kanam-kuzhikanam and when a usufractuary mortgage. In each case it manifestly depends entirely on the terms of the transaction. In Lakshmi's case there was a demise of land with fruit bearing trees for 24 years. The transfer was for the enjoyment of land with trees. The kanam amount was 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he kanartham by way of mortgage. 14. The first and foremost element to be found for a lease is whether there is the intrinsic intention in the written 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 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 [1961] K.L.T. 1033 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. 15. The dominant features of a mortgage transaction on the other hard 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 transaction i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erty. This feature when considered along with the fact that the document did not provide payment of any annual purapped to the jenmi and that the annual amount was directed to be paid as revenue of the property which came to Rs. 10-4-0, a paltry recurring annual liability, would be an additional reason to support the intention of the parties that the transaction was a mortgage and not a tenancy. 18. It is significant that after the execution 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 under 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. 1 and 2 never treated Ex. B-6 as creating a tenancy. 19. In the present case the features which favour the construction of the transaction to be 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; ..... X X X X Extracts X X X X X X X X Extracts X X X X
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