1. These two appeals arise out of a suit for redemption. S A. No 1212/68 is by defendants 4 to 6 and 8 to 10 while S. A. No. 62/69 is by the 1st plaintiff.
2. The suit property which originally belonged to the Illom of the 1st defendant was outstanding on otti in (favour of one Krishnan. While, so. the father of the 1st defendant executed Ext, P-3 'Mellottiyadharam' (superior mortgage) in favour of one Raman Pillai the predecessor-in-interest of defendants 3 to 14 authorising the mortgagee to redeem the prior mortgage. It is common case that the mortgagee Raman Pillai redeemed the prior mortgage and reduced the property to his possession. Ex. P-3 was followed by two 'purakkadam' deeds, Exts. P-4 and P-5, whereby the Illom borrowed further amounts from Raman Pillai charging the suit property. Under Ext. P-8 udampady in the Illom the 1st defendant obtained the equity of redemption of the suit property. The 1st plaintiff purchased that right from the 1st defendant as per Ext, P-6 and instituted (the present suit for redemption of Exts. P-3, P-4 and P-5 mortgages. The contesting defendants claimed fixity of tenure under the relevant provisions of Act 1 of 1964, and contended further that Ext. P-6 being violative of Section 84 of Act 1 of 1964 cannot confer any title on the plaintiff with respect to the equity of redemption. During the course of the (trial the 1st defendant filed a petition as I. A. 958/66 to get herself transposed aa additional 2nd plaintiff. The trial court dismissed that petition on 6-10-1966.
3. The trial court, while holding that the suit transactions are only redeemable mortgages, non-suited the plaintiff on the short ground that Ext. P-6 to which he traces his title is invalid In so far as it contravenes the provision! of Section 84 of Act 1 of 1964. Against that decision the plaintiff and the 1st defendant went in appeal as A. S. 21/ 1967 and A. S. 75/1967 respectively. The lower appellate court allowed the prayer of the 1st defendant for transposition as additional 2nd plaintiff and gave a preliminary decree for redemption in favour of the additional 2nd plaintiff.
4. S. A. No. 62/1969 preferred by the 1st plaintiff was not pressed before us.
5. The first ground urged by the appellants in S. A. 1212/1968 is that the transactions covered by Exts. P-3. P-4 and P-5 are kanoms as defined in Section 2 (22) of Act 1 of 1964. The definition of kanam consists of two parts; andit is admitted by the appellants that Exts. P-3 to P-5 do not come under Sub-clause (a) of Clause (22) and that they rely only on Sub-clause (b). Section 2 (22) (b) so far as it is relevant, for the purposes of this appeal may be read as follows:--
'(22). 'Kanam' means-
X X X X X X the transfer for consideration In money or kind or in both by a person of an interest in specific immovable property to another person for the latter's enjoyment, whether described in the document evidencing the transaction as otti. karipanayam, panayam. pattapanayam, nerpanayam or by any other name, and which has the incidents specified in Sub-clause (a) (i) and (a) (ii) and also one or more of the following incidents:
(A) renewal on the expiry of any Specified period;
(B) payment of michavaram;
(C) payment of customary dues: Provided that kanam or any other demise governed by the Kanam Tenancy Act, 1955, shall not be deemed to be a kanam for the purposes of this clause. x x x x x'
It is not disputed that to attract the provision there must be the transfer of aninterest in an immovable property to another person for the latter's enjoyment;to be more precise the purpose of thetransfer must be the enjoyment of theproperty by the transferee. If, on theother hand, the object of the transfer isto constitute the concerned property asecurity for the consideration receivedby the transferor the resulting transaction is only a possessory mortgage, andthe subsequent possession or enjoymentof the property by the transferee is onlyan incident of the transaction and notits purpose. The question to be considered is whether Exts. P-3, P-4 and P-5satisfy this crucial test.
6. Ext. P-3 dated 21-7-1118 is nomenclatured as 'Melottiyadharam' (superior mortgage). The total consideration for the transfer was 3562 1/2 fanams of which 2850 fanams was reserved with the transferee for redemption of the prior mortgage and the balance of 712 1/2 fanams was received by the transferor for meeting certain litigation expenses. The transferee is to redeem the prior mortgage, pay the sircar tax and pay to the transferor an annual michavaram of 7 paras and 9 edangalis of paddy, Ext. P-4 dated 14-11-1119 is the next transaction. Under it the Illom received a fresh advance of 1400 fanams for the purpose of renovation of a dilapidated temple. The transferor undertook to pay this amount along with the consideration under Ext. P-3, and the transferee was,to pay the old michavaram. There is afurther provision to the effect that the transferee shall not demand repayment of the amounts on the ground that the income from the property is not sufficient to meet the interest charges due on the mortgage amounts. Ext. P-5 dated 20-8-1120 is the second 'purakkadam' whereby Raman Pillai paid another amount of 700 sircar rupees. Out of that consideration there was a cash payment to the tune of Rs. 326 and 14 chakrams for the renovation of a temple and the balance of Rs. 373.14 chakrams was alleged to be due to the transferee towards settlement of accounts. There is an express provision for surrender of the holding on payment of the amounts due under Exts. P-3, P-4 and the new puraksadam Ext. P-5. There is, however, a provision to the effect that the transferee shall not demand repayment of the loan. There is also an indemnity clause whereby the transferor and his other assets are made answerable for any loss caused to the mortgage money or for loss of profit from the property. Bereft of details these are the salient features of the three documents.
7. It is not possible to spell out from the express provisions of the three deeds any intention on the part of the parties to create a landlord-tenant relationship. The holding transferred is a paddy land measuring one acre and 36 cents, and within a short span of two years and two months it was subjected to three successive charges. The total consideration exceeds sircar rupees 1408, which is by no means a small amount considering the purchase value of money as obtained on the dates of the respective transfers. The property is undoubtedly offered as a security for the successive loans. From Ext. P-5 it could be seen that the transferee Raman Pillai advanced from his pocket an amount of Rupees 373.14 chms. for managing certain other properties of the transferor Illom. It is not probable that the Illom could have thought of charging its immovable property for such a comparatively small amount if it was in a position to discharge the debt by ready payment. The provision in the deeds prohibiting the transferee from demanding repayment of the advances is more indicative of the financial strain the transferor was under-going than as the expression of his intention to assume the role of a generous landlord. Similarly, the reservation of an annual michavaram is not repugnant to the concept of an otti transaction. Michavaram in such a context merely represents the balance of the profits of the property to which the owner is entitled, after meeting the interest charges due on the principal advanced. In view of the express terms used in these transactions as well as the attendant circumstanceswe are satisfied that the transfers in this case were not for the purpose of enjoyment of the property by the transferee, but only for the purpose of securing the advances received under the respective transactions. The contention of the appellants that Exts. P-3. P-4 and P-5 should be deemed to be kanoms within the meaning of Section 2 (22) of Act 1 of 1964 has thus been rightly repelled by the lower courts.
8. The second ground taken in the appeal is that the lower appellate Court was not justified in granting the transposition prayed for by the 1st defendant through I. A. No. 958/1966. The trial Court rejected the prayer mainly on the ground that subsequent to Ext. P-6 the 1st defendant retained no rights over the property and that she was even an unnecessary party to this litigation. As rightly pointed out by the lower appellate Court, it is difficult to understand the logic of that reasoning. If Ext. P-6 is invalid as found by the trial Court as far as the transferee plaintiff is concerned, one fails to understand how it could be operative as against the transferor, the 1st defendant. Further, the prayer for transposition was made at a very early stage of the suit, and the appellants could not point out the impropriety or illegality involved in granting the prayer. Lakshmi Narasimhachariar v. Mangammal, AIR 1939 Mad 467 and John Boisogomoff v. Manmatha Nath, AIR 1931 Call 76 cited by the learned counsel for the appellants in support of his contention are clearly distinguishable on facts. The Court below was. therefore, right in, transposing the 1st defendant as additional 2nd plaintiff and granting a decree in her favour. In view of our decision on this question, it is not necessary for us to consider whether Ext. P-6 is invalid on the ground that it contravenes Section 84 of Act 1 of 1964.
No other question was raised in this appeal.
In the result, the decision of the lower Court is hereby confirmed, and S. A. 62/1969 is dismissed without costs and S. A. 1212/1968 is dismissed with costs.