1. The only question arising for decision in this second appeal is whether ext a - 1, Kaichit, Dated november 21, 1916 evidences a mortgage as contended for the respondents, Who were plaintiffs 2 and 3 in the suit or a kanam as contended for the appellant, Who was the 6th defendant. The two courts have answered this against the appellant.
2. Ext. A - 1 was executed by andi and kottan who were the predecessors - in - interest of the appellant and may be referred to as the transferees, In favour of a member of the respondents' family which held the suit properties on verumpattom under a devaswom to which they appertained on jenmom. Ext. A - 1 purports to be the counter - part of a karipanayam deed, Executed on the same day in favour of the transferees. It recited a prior lease from the respondents' family to the transferees, With a premium of rs. 200/ - and an annual rent of 641 paras of paddy and rs. 10, And further stated that, In order to pay renewal fees to the devaswom, The respondents' family borrowed on the same day a sum of rs. 400/ - from the transferees; it provided that the transferees shall he in possession of the properties on karipanayam for ten years, For the 'karipanayam' amount of rs. 600/ - of which, The sum of rs. 400/ - borrowed was to carry no interest; the balance alone to carry interest as before. It also stipulated, That on the expiry of the term, The transferees shall surrender the properties on receipt of rs. 600; but that, Even before the expiry of the term, If the transferees so desired, They might surrender the properties on receipt of the karipanayam amount. The learned district judge held, That this last stipulation amounted to a covenant, Entitling the transferees to compel the transferor to redeem the mortgage, And this was considered by him sufficient to hold, That ext. A - 1 evidenced a mortgage and not a kanam.
3. The learned counsel for the appellant contended, On the authority of emmuni panicker v. Krishna panicker & others, 1958 klt. 756, And nani amma v. Chummaran alias narayanan nambudiri,1961 klt. 398, That ext. A - 1 satisfies all the conditions of a'kanam' as defined in s. 2 (18) of the kerala agrarian relations act, 1960, Referred to hereafter as the 'act' and that therefore the decree under appeal cannot be maintained. The above - definition, So far as it relates to properties in malabar area, May be extracted below:
"kanom' means the transfer for consideration in money or in kind or in both, By a landlord of an interest in specific immovable property to another for the letter's enjoyment, Whether described in the document evidencing the transaction as kanam or kanapattom, The incidents of which transfer include
(a) a right in the transferee to hold the said properly liable for the consideration paid by him or due to him;
(b) the liability of the transferor to pay to the transferee interest on such consideration unless otherwise agreed to by the parties; and
(c) payment of michavaram or customary dues or renewal on the xpiry of any specific period "
and corresponds more or less to the definition in s. 3 (14) of the malabar tenancy act, 1929, As amended, Which reads:
"'kanom' means the transfer for consideration in money or in kind or in both by a landlord of an interest in specific immovable property to another (called the 'kanamdar') for life letter's enjoyment, The incidents of which transfer include
(a) a right in the transferee to hold the said property liable for the consideration paid by him or due to him which consideration is called 'kanartham';
(b) the liability of the transferor to pay to the transferee interest on the kanartham, And
(c) the payment of 'michavaram' by the transferee
emmuni panicker's case was decided on the definition of 'kanam' in the malabar tenancy act, 1939, While in nani amma's case, The definition in the act as extracted above was applied. These cases no doubt lend support to the appellant's contention, But in my opinion, They do not emphasise the distinction between a mortgage and a kanam, That while a mortgage is a transfer of interest in specific immovable property
"for the purpose of securing the payment of money advanced or to be advanced by way of loan, An existing or future debt, Or the performance of an engagement which may give rise to a pecuniary liability"
the transfer of such an interest by way of kanam is for enjoyment; in other words, The relationship in the former case is one of debtor and creditor and in the latter, Is one of landlord and tenant. This distinction is implicit in the definition of a 'mortgage' in s. 58 of the transfer of property act and in the first part of the definition of 'kanam' in s. 2 (18) of the act or in s. 3 (14) of the malabar tenancy act, 1929. The distinction was emphasised in devaki v. Bhaskara menon,1961 klt. 746 by t. K. Joseph, J., And in krishnankutty v. Padmanabha menon, 1960 klt. 294 by vaidialingam, J., But seems to have been ignored, In emmunni panicker's case where the learned judge even held that a provision for the sale of the property transferred to realise the amount advanced was immaterial. In nani amma's case also, The above distinction does not appear to have been considered. However, In s. A. 146 of 1961 decided quite recently by raman nayar, J., The distinction was again emphasised. This case, As also devaki v. Bhaskara menon were followed by a learned single judge in s. A. 59 of 1956 - k & 118 of 1957 (1961 klt. 758). In my opinion, To accept the contention of the learned counsel, That once a transfer fulfils the conditions in clauses (a) (b) & (c) in s. 2 (18) of the act or in s. 3 (14) of the malabar tenancy act, 1929, It amounts to a kanam, Would be to ignore the difference between a possessory mortgage, Which might also fulfil the same conditions, And a kanam, And to obliterate the distinction between the two kinds of transactions, For which there is no warrant even is the provisions of the act. I am therefore in respectful agreement with the decisions above cited, Which have recognised and applied this distinction, Including s. As. 59 of 1956 (k) and 118 of 118 of 1957, [1961 klt. 758] in which the learned judge has attached due importance to a provision for the sale of property to enforce repayment of the money advanced, As a distinctive feature in a mortgage. The judgment of a full bench of this court, In janardhanan v. Kuppandy,1959 klt. 118, Was based on the finding of fact, That the karipanayam which was construed in that case, Was but the renewal of a prior kanam and does not affect the decision of the question arising in the present case.
4. The loan aspect of the transaction under ext. A - 1 is emphasised by the specific recital in it, Of the need of the transferor to borrow for paying renewal fees to the jenmi. The need for borrowing is, As pointed out in s. A. 146 of 1961, One of the relevant matters to be considered. I also agree with the learned district judge in thinking, That the effect of the stipulation in ext. A - 1, For the repayment of the karipanayam amount even before the expiry of the term, If the transferees so desired, Is really to confer a right on them to demand repayment, Otherwise than at the time of redemption on the expiry of the term, As stipulated. As observed in s. A. 146 of 1961
"this right of the transferee to demand repayment otherwise than on redemption by the transferor clearly be speaks a loan and is in my view, Altogether inconsistent with the transaction being a kanam"
.
it is true, That no right of sale was expressly recited in ext. A - 1; but if a right to enforce repayment can be read into it, That itself might, As held in s. A. 146 of 1981,
"imply a right to recover by sale of the land, Even if no express mention is made of such a right. Moreover there is no right of sale in a usufructuary mortgage pure and simple."
5. The learned counsel strongly relied on the execution of ext. A - 1 counter - part in addition to the mortgage document, Which it was stated, Is not usual in the case of mortgages. A similar argument seems to have been considered, But was repelled in s. A. 146 of 1961 with the observation, That the execution of such counter - parts is a common feature in the case of possessory mortgages, Especially where periodical payments are stipulated. It cannot also be ignored, That the stipulation in ext. A - 1 is, That the possession was to be on karipanayam, And it was not disputed, That karipanayam generally means possessory mortgage. It is no doubt true that two other indicia which were relied on by the learned district judge, Viz., That part of the amount is not to carry interest and that the michavaram is not payable to the jenmi, However relevant under the definition in the malabar tenancy act, 1929, Are not of much importance in the context of the definition of kanam in the act; but this circumstance affords no justification for overlooking what are matters of substance, In judging the character of the transaction.
6. The learned counsel then contended, That under s. 9 of the act, An opportunity may be allowed to the appellant to prove, That ext. A - 1 is a transaction by way of kanam though it purports to be a karipanayam. The appellant had the same right under s. 22 (1) of the malabar tenancy act, 1929. Reading the above provisions in the two acts i am not satisfied, That so far as a karipanayam is concerned, S. 9 of the act has conferred a new right or an additional right on the appellant, The only difference relied on, Between the two provisions being, That the term 'mortgage' in s. 22 (1) of the malabar tenancy act, 1929 has now been expanded to 'mortgage, Otti, Karipanayam, Panayam, Or nerpanayam. " these are but different forms of mortgages or different names in which mortgages are known. I am of the view, That the same right now claimed for the appellant under s. 9 of the act, To prove that karipanayam as evidenced by ext. A - 1 is really a kanam, Was available to him under the provisions of s. 22 (1) of the malabar tenancy act, 1929 and if he had further evidence to offer at the trial of the suit, But did not choose to do so, He cannot now ask for a retrial.
7. For the foregoing reasons, I come to the conclusion that the appellant must fail in this second appeal, Which is dismissed with costs.
dismissed.