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Neelakanda Pillai Vs. Sankaran Padmanabhan and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKerala High Court
Decided On
Case NumberSecond Appeal No. 641 of 1961
Judge
Reported inAIR1967Ker70
ActsTransfer of Property Act, 1882 - Sections 58 and 105
AppellantNeelakanda Pillai
RespondentSankaran Padmanabhan and anr.
Appellant Advocate V.S. Moothathu,; M.C. Sen,; T.K.M. Unnithan and;
Respondent Advocate M.M. Abdulkhader, Adv. for 2nd Respondent
DispositionAppeal allowed
Cases ReferredRamdhan Puri v. Bankey Bihari Saran
Excerpt:
- .....i of 1964. this will depend upon the question whether the transaction evidenced by ext. d-2 is a lease or mortgage.4. as indicated in the decision in ramdhan puri v. bankey bihari saran, air 1958 sc 941 where the question to be decided by the court is whether the transaction is a lease or mortgage the only guiding rule that can be extracted from the cases on the subject is that the intention of the parties must be looked into and that once you get a debt with security of land for its redemption, then the arrangement is a mortgage by whatever name it is called. the question in dispute has therefore to be resolved by an interpretation of ext- d-2 and the intention of the parties gatherable from the document. ext. d-2 styles itself as a 'nadappu panaysm'. it is executed in 1124. the.....
Judgment:

Krishnamoorthy Iyer, J.

1. The appellant is the plaintiff. He filed a suit for redemption of Ext. D-2 executed by him in favour of respondents 1 and 2. The entire rights under Ext. D-2 have now become vested in the second respondent who apart from claiming value of improvements claimed the benefit under Act I of 1957 in the Courts below.

2. The lower Courts found that the transaction under Ext. D-2 is a 'holding' within the meaning of Act I of 1957 and directed the suit to be stayed though the lower appellate Court directed the trial Court to refix the value of improvements due to the respondents.

3. The only point raised in the second appeal is whether the respondents are entitled to claim protection under the Land Reforms Act, 1963, Act I of 1964. This will depend upon the question whether the transaction evidenced by Ext. D-2 is a lease or mortgage.

4. As indicated in the decision in Ramdhan Puri v. Bankey Bihari Saran, AIR 1958 SC 941 where the question to be decided by the Court is whether the transaction is a lease or mortgage the only guiding rule that can be extracted from the cases on the subject is that the intention of the parties must be looked Into and that once you get a debt with security of land for its redemption, then the arrangement is a mortgage by whatever name it is called. The question in dispute has therefore to be resolved by an interpretation of Ext- D-2 and the intention of the parties gatherable from the document. Ext. D-2 styles itself as a 'nadappu panaysm'. It is executed in 1124. The extent of the property comprised therein is 50 Gents and the consideration is Rs. 200. There is a provision that after appropriating the interest on the mortgage money and payment of Sirkar tax the appellant should be paid Rs. 7 per annum. The term under the document is 8 years. Respondents 1 and 2 are directed to make improvements and that if the making of improvements is not commenced immediately the appellant is entitled to redeem the property irrespective of the term in the document.

5. The two grounds mentioned by the learned Advocate for the respondents to show that the transaction evidenced by Ext. D-2 is a lease are the absence of a provision in the document for the realisation of the sum of Rs. 200 paid under Ext. D-2 and the provision for recovery of possession before the term if the respondents did not commence making improvements immediately after the execution of the document. These two circumstances, we feel, cannot override the intention otherwise gatherable from the document. The nomenclature of the document 'nadappu panayam' though not a conclusive lest is indicative of the intention of the properties to create a creditor--debtor relationship. The document contains a covenant that the property is not subject to any encumbrance. This provision was quite unnecessary if the intention of the parties was not to execute a mortgage but only a lease. The document read as a whole convinces us that the parties intended Ext- D-2 to be a mortgage and not a lease.

We are unable to accept the decisions ofthe Courts below. We therefore, hold that theappellant is entitled to recover possession of theplaint items. We set, aside the judgment anddecrees of the Courts below and remand thesuit to the trial Court for fixing the improvements under the provisions of Act 29 of 1958The trial Court will pass a decree for redemption and recovery of possession after ascertaining the value of improvements. The Second Appeal is thus allowed. The parties will bear theircosts in this Court.


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