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Subramania Iyer S/O Sundaran Pattar and ors. Vs. K.R. Anantanarayana Iyer and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKerala High Court
Decided On
Case NumberS.A. No. 672 of 1958
Judge
Reported inAIR1963Ker261
ActsTransfer of Property Act, 1882 - Sections 58, 60, 62, 76 and 105
AppellantSubramania Iyer S/O Sundaran Pattar and ors.;k.R. Anantanarayana Iyer and anr.
RespondentK.R. Anantanarayana Iyer and anr.;subramania Iyer S/O Sundaran Pattar and ors.
Appellant Advocate A.S. Krishna Iyer, Adv.
Respondent Advocate P.K. Subramonia Iyer,; C.S. Ananthakrishna Iyer and; P.
DispositionAppeal dismissed
Cases Referred(vide Kunhukutty Amma v. Komaranunni Nair
Excerpt:
.....document indicated that intention of parties was to create debtor and creditor relationship with land transferred as security for payment of debt - transferee had given right to proceed against property in case of non-payment of debt - land transferred as security for redemption of debt - held, document disclosed mortgage transaction and not tenancy arrangement. - - there is yet another provision in the document under which the transferee is given the right to proceed against the transferors and their other properties as well, if it is found necessary after bringing the mortgage property to sale. these provisions clearly show that the intention of the parties was to create a mortgage and not a loase and on the principle laid down by the decision of the supreme court already..........of the parties to the document was to create a debtor and creditor relationship, with the land transferred as security for the repayment of the debt. an amount of rs. 2,500/-is advanced to pay off the several debts enumerated in the document and the document is styled karipanayadharam. the transferee is directed to be in possession of the property with the improvements and kuzhikoors thereon on karipanayam and is also directed to appropriate the interest on the mortgage amount and to pay the government revenue and the michavaram payable to the jenmi. he is further directed to pay the annual purappad of one para of paddy. another recital in the document is that after the both of kumbham in any year, if the transferee wants, or the transferors pay the amount, the transferee should.....
Judgment:

T.C. Raghavan, J.

1. The main question for consideration is a short one and that is whether the provisions of Ex. B-1 disclose a mortgage transaction or a tenancy arrangement. In such a case where the question to be decided is whether the transaction is a lease or a 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 a debt with security of land for its redemption is found, then the arrangement is a mortgage, by whatever name it is called. It has been so laid down by the Supreme Court in Ramdhan Puri v. Bankey Bihari Saran, AIR 1958 SC 941.

2. The provisions of Ex. B-1 indubitably indicate that the intention of the parties to the document was to create a debtor and creditor relationship, with the land transferred as security for the repayment of the debt. An amount of Rs. 2,500/-is advanced to pay off the several debts enumerated in the document and the document is styled karipanayadharam. The transferee is directed to be in possession of the property with the improvements and kuzhikoors thereon on karipanayam and is also directed to appropriate the interest on the mortgage amount and to pay the Government revenue and the michavaram payable to the jenmi. He is further directed to pay the annual purappad of one para of paddy. Another recital in the document is that after the both of Kumbham in any year, if the transferee wants, or the transferors pay the amount, the transferee should release the panayam and surrender possession of the property and the expenses for that would be met by the transferors. There is yet another provision in the document under which the transferee is given the right to proceed against the transferors and their other properties as well, if it is found necessary after bringing the mortgage property to sale. These provisions clearly show that the intention of the parties was to create a mortgage and not a loase and on the principle laid down by the decision of the Supreme Court already referred to, the document evidences a mortgage transaction.

3. But the contention raised by the learned advocate of the appellants is that the position under Kerala Act IV of 1961 is, at any rate, different and under that Act the arrangement under Ex. B-1 is only a lease. The learned advocate enunciates his proposition thus:'

All transactions, whether by way of possessory mortgage or otherwise, in which the person let into the 'use and occupation' of a piece of land is obliged to pay any rent, purappad or michavaram, would constitute relations of tenancy entitled to fixity of tenure under Act IV of 1961.

4. Clause 50 (1) of Section 2 defines 'tenant' to mean any person who has paid or agreed to pay rent or other consideration, for his being allowed by another, to possess and to enjoy the land of the latter. This definition of 'tenant', according to us, gives sufficient indication as to the nature and purpose of the transfer of possession; and that is for the enjoyment of the transferee and not as security for the due payment of the amount advanced by him. So that, even under the definition of 'tenant' under Act IV of 1961 the Court has to find out the intention of the parties as to whether the transfer of possession is for the purpose of the enjoyment of the transferee or for securing the loan advanced by him. Thus the Act does not intend or warrant a departure from I the rule of construction laid down by the Supreme Court in Ramdhan Puri's case, AIR 1958 SC 941. In this connection, a decision of this Court by one of us sitting alone in Thangappan v. Ammalu Neithiaramma, 1961 Ker LT 762 may also be usefully referred to. There the question was whether a particular document was a kanam or a mortgage; and in considering that question the Court held 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 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 observation was made in interpreting Section 2(18) of Act IV of 1961 and we are of opinion that this applies with equal force in the present case as well.

5. In this connection, it will be illuminating to note the definitions of 'sale', 'mortgage' and 'lease', in the Transfer of Property Act, 'Sale' is defined under Section 54 as the transfer of ownership in exchange for a price; 'mortgage' under Section 58 as the transfer of an interest in specific immovable property for the purpose of securing the payment of money advanced as loan; and 'lease' of immovable property under Section 105 as the transfer of a right to enjoy such property in consideration of a price paid. These definitions -- we are concerned only with the latter two in this case--indicate that a mortgage is the transfer of an interest in immovable property for securing a loan, whereas a lease thereof is only the transfer of a right to enjoy it. This distinction will also facilitate the interpretation of documents regarding their nature as to whether they are mortgage transactions or lease arrangements.

6. Another contention advanced, on this point, by the learned advocate of the appellants is that under Sections 59 and 63 of Act 4 of 1961 land held or possessed under a mortgage is also to be taken into consideration for fixing the ceiling area of any person or family. He develops his argument that under Section 63 (I) lands held under mortgage with possession and under lease are equated to the same status and 'both are to be taken into consideration for fixing the ceiling area; and therefore regarding both the types of land the person in possession has fixity. It is not sure whether these sections will apply to a case like the present one, whether the mortgage concerned is very muck prior to 18-12-1957. Even if these sections apply, the argument cannot be accepted. May be, for the purpose of fixing the ceiling area, land held under possessory mortgage is also taken into consideration; but it does not mean that the mortgagor in such a case cannot redeem the mortgage or that the mortgagee is entitled to fixity of tenure. We feel that in these sections themselves the distinction between mortgage and lease is kept up and not wiped out; and even the payment of purappad under the ' mortgage cannot convert the mortgage into a lease, for purappad is not necessarily rent, bat is only the balance that remains after the appropriation of the interest on the mortgage money (vide Kunhukutty Amma v. Komaranunni Nair, 1961 Ker LT 451. Therefore, this contention also cannot prevail.

As a subsidiary point some objection is raised regarding the damages directed to be paid by the appellants and also the value of repairs and other improvements effected by them on the mortgage property. The trial Court held that the appellants were bound to pay Rs. 250/- as damages for the removal of some structures on the land. The trial Court also refused to grant any amount to the appellants towards value of repairs and improvements effected by them. The lower appellate Court confirmed the former; but on the latter it held that the appellants were entitled to Rs. 109-13-0 towards the value of repairs effected toy them. The learned advocate of the appellants contends that the lower courts should not have allowed damages, at any rate, for the removal of a 'kompura'; for, according to him, there was no claim for the same in the pleadings. He also contends that the lower appellate Court should have granted the appellants a higher sum towards value of repairs and improvements effected by them on the property. Both the pleas we are not inclined to accept. Ex. B1 itself shows that there was a 'kompura' at the time of the mortgage, which is not now existing on the property. There is no evidence to show that it fell down due to natural causes, in which case, the appellants should have informed the mortgagor about it. Therefore, they are liable to pay damages for the 'bompura'. Regarding the increased value for repair effected by them to the building and also regarding their claim for other improvements there is no evidence justifying any enhancement. Therefore, this plea must also fail.

7. The result is the second appeal fails and the same is dismissed with costs.


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