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Mathai Thomas and anr. Vs. Yohannan Kunjamma and ors. - Court Judgment

LegalCrystal Citation
CourtKerala High Court
Decided On
Case NumberA.S.A. Nos. 22 to 24 of 1971
Reported inAIR1972Ker130
ActsKerala Land Reforms Act, 1964 - Sections 2(28), 2(39A), 2(57) and 13
AppellantMathai Thomas and anr.
RespondentYohannan Kunjamma and ors.
Advocates: Panicker and Potti, Advs.
DispositionAppeals dismissed
Cases ReferredKunhamina Umma v. Paru Amma.
.....should enjoy the land. thus construing the documents, there is no doubt that they are leases as..........v. yohannan kunjamma. 1971 ker lj 427). the appeals are directed against the said decision. 2. the learned judge has considered a few decisions and has based his conclusion mainly on the full bench decision of this court in krishnan nair v. perumbalath kizhakkinivakath manak-kal karnavan. 1967 ker lt 78 = (air 1970 ker 270 (fb)) and the division bench ruling of this court in a. jaga-thamma v. raghavan pillai. 1970 ker lt 469. where the division bench has followed the decision of the full bench. some reliance appears to have been placed before the learned judge by the counsel of the appellants on the decision of the supreme court in kunhamina umma v. paru amma. 1971 ker lt 163 = (air 1971 sc 1575) and the learned judge has observed that the decision of the supreme court does not lay down.....

Raghavan, C. J.

1. In these ap-peals against second appeals, only one Question is involved, viz., whether Ex, A (the documents are marked Ex. A in all the cases) evidences a lease or a mortgage. The lower appellate court and the second appellate Judge have held that the documents evidence transactions of kuzhikanam. (The second appellate judgment is in Mathai Thomas v. Yohannan Kunjamma. 1971 Ker LJ 427). The appeals are directed against the said decision.

2. The learned Judge has considered a few decisions and has based his conclusion mainly on the Full Bench decision of this Court in Krishnan Nair V. Perumbalath Kizhakkinivakath Manak-kal Karnavan. 1967 Ker LT 78 = (AIR 1970 Ker 270 (FB)) and the Division Bench ruling of this Court in A. Jaga-thamma v. Raghavan Pillai. 1970 Ker LT 469. where the Division Bench has followed the decision of the Full Bench. Some reliance appears to have been placed before the learned Judge by the counsel of the appellants on the decision of the Supreme Court in Kunhamina Umma v. Paru Amma. 1971 Ker LT 163 = (AIR 1971 SC 1575) and the learned Judge has observed that the decision of the Supreme Court does not lay down anything different from the decisions of this Court already referred to. The Full Bench has held.

'Therefore, the proper question to be asked in such cases is whether the transaction is, to any extent, a lease. If it is then by reason of the fixity given by Section 13 of the Act the transferor cannot recover possession even if the transaction be at the same time a mortgage which he is entitled to redeem. The question would not be whether the trans-action is predominantly a lease or predominantly a mortgage but whether it is a lease at all.'

(Underlining is ours.)

The subsequent Division Bench has followed this decision and has added,

'Provisions for planting coconut and jack trees and pepper vines, digging a well, constructing a new house, etc., clear-ly indicate that the intention of the parties to the document was the enjoyment of the properties by the transferees. If so, the transaction is a tenancy and Section 13 of the Act confers fixity of tenure on the transferees'.

The second appellate Judge, as stated already, has followed these decisions and has also extracted both the above passages.

3. The relevant portion of one of the documents (the documents are practically in the same terms) has been extracted by the learned Judge in paragraph 10 of his judgment The provisions are that the property transferred is to be enjoyed as otti; that, in addition to the trees already existing, trees like coconut, arecanut and lack and pepper vines have to be planted; that the boundary walls have to be repaired; that necessary buildings might be put up; that a well might be dug; and that the timber trees which have to be cut and removed for planting the aforesaid fruit-bearing trees might be cut and removed too, but on cutting, the timber should be given to the transferor. The further recital is that the transferee should pay the land revenue and enjoy the land for 11 years. (In the other document the term is 10 years.) The second appellate Judge has observed

'Ex. A is equally emphatic that the parties intended that the transferee should enjoy the land.'

The learned Judge has also held that the documents might be composite documents containing provisions of lease and orovi-sions of mortgage. And it is in such cases that the observation of the Full Bench comes into play, viz., that the question could not be whether the transaction is predominantly a lease or predominantly a mortgage, but whether it is a lease at all. If it is a lease also even if the transferor has a right to redeem his mortgage, since the tenancy is not redeemable, the transferee is entitled to fixity of tenure by virtue of that portion of the composite document which is a lease. Thus construing the documents, there is no doubt that they are leases as well; and the transferee has fixity of tenure.

4. Now a word about the finding of the learned Judge that the transactions are kuzhikanams. Kuzhikanam is defined in Section 2 (28) of Act I of 1964 as amended by Act 35 of 1969 in the following terms:

' 'Kuzikanam' means and includes a transfer by a landlord to another person of garden lands or of other lands or cf both, with the fruit-bearing trees, if any, standing thereon at the time of the transfer, for the enjoyment of those trees and for the purpose of planting such fruit-bearing trees thereon, but shallnot include a usufructuary mortgage as defined in the Transfer of Property Act, 1882'.

It is clear that the provisions we have pointed out above from Ex. A bring the transactions within this category. Therefore, the conclusion of the second appellate Judge that the transactions are at least kuzhikanams has also to be accepted. Of course, the learned Judge has indicated that the transactions may also be ottikuzhikanams: at any rate, he has not pronounced finally on this, nor should we express any final opinion on the question.

5. The argument of the counsel of the appellants starts from the premise that the transactions were called otti (mortgage in the Travancore area), so that the provision in the documents for enjoyment should be construed only in the light of this circumstance: in other words, the argument is that the provision for enjoyment in Ex. A is only the enjoyment by a mortgagee as contemplated by the Transfer of Property Act. This line of argument, we observe, gives too much of importance to the name of the documents, which, decisions have laid down, should not be done: the name of the documents is only one of the several considerations which should go into the decision of the question whether the transactions are leases or mortgages and not the main consideration. Therefore, this line of argument has also to be rejected.

6. In the result, the appeals are dismissed; and the appellants will pay half costs in each of these appeals to the contesting respondents.

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