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Assya Umma Vs. Kolakkani Kunhoyi - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKerala High Court
Decided On
Case NumberSecond Appeal No. 636 of 1958
Judge
Reported inAIR1960Ker198
ActsTransfer of Property Act, 1882 - Sections 58
AppellantAssya Umma
RespondentKolakkani Kunhoyi
Appellant Advocate K.V. Surianarayana Iyer, Adv. General
Respondent Advocate N. Sundara Iyer, Adv.
DispositionAppeal dismissed
Cases ReferredVeeravunni v. Koyammu
Excerpt:
.....is only giving back or surrender of possession that has been intended by concerned document - both subordinate courts right in holding that concerned document is only mortgage by conditional sale and not sale with option to re-purchase. - - sundara iyer for the respondents, i am satisfied that the conclusions arrived at by both the subordinate courts are quite correct and the second appeal has to be dismissed. . the learned advocate general is perfectly correct when he contended that at any rate on the date of ext. in my opinion, that by itself does not in any way vitiate the conclusions by both the courts, because i am also otherwise satisfied that the document taken by itself leads only to one conclusion, namely, that it is a mortgage by conditional sale and cannot be considered..........o creditor and debtor prior to the date of ext. b-l. on the other hand, the learned advocate general contended that it is a transaction of out and out sale because the document is styled as kana theeradharam which signifies a conveyance in toto.5. the learned advocate general also contended that there is nothing on record to show that the price fixed for the property and also the price for which the property is to be, reconveyed, accord-ding to him, is in no way inadequate. the learned advocate general laid considerable stress on the wording in the document to show that from thatday onwards the title of the executant has fully passed on to the execute of the document. 6. on the other hand, mr. n. sundara lyer, learned counsel appearing for the contesting defendants, took me through.....
Judgment:

Vaidialingam, J.

1. In this appeal on behalf of the defendants, the learned Advocate General appearing for the appellant, contests the decision of both the subordinate courts that Ext. B1 in this case represents only a mortgage by conditional sale and not a sale with option to re-purchase,

2. The suit was for redemption of a transaction which styles itself as a kara theeradharam. Ext. B-1 dated 10-5-1936 for a sum of Rs. 400. The recitals in the document will be gone into a little more in detail in due course. The suit for redemption, on the ground, that this is only a mortgage by conditional sale was contested by the defendants on the ground that it was not a mortgage by conditional sale but it can only amount to a sale with an option to repurchase and as the period had already elapsed there was no further right in the plaintiff over the plaint properties.

3. Both the subordinate courts on a consideration of all tile decisions bearing on this matter and especially the decision of their Lordships of the Supreme Court reported in Chunchunjha v. Ebadat All, 1954-1 Mad LT 708: (AIR 1954 SC 345) and alter a consideration of the various clauses in the document have come to the conclusion that it is only a mortgage by a conditional sale and not a sale with an option to re-purchase that is evidenced by Ext. Bl. It is this conchision that has been concurrently arrived at by both the subordinate courts as against the appellant that is challenged by the learned Advocate General in this second appeal.

4. The learned Advocate General, after taking me through the principles laid down in 1954-1 Mad' LT 708: (AIR 1954 SC 345) and also the decision of Me. Justice Ramaswami reported in B. A. Khan v. Nawazkhan, 1956-1 Mad LJ 388 as also the decision of Mr. Justice Varadaraja Iyengar reported in Veeravunni v. Koyammu, 1957 Ker LT 550 ; (AIR 1957 Kerala 169) contended that in this ease there has been absolutely no relationship o creditor and debtor prior to the date of Ext. B-l. On the other hand, the learned Advocate General contended that it is a transaction of out and out sale because the document is styled as Kana Theeradharam which signifies a conveyance in toto.

5. The learned Advocate General also contended that there is nothing on record to show that the price fixed for the property and also the price for which the property is to be, reconveyed, accord-ding to him, is in no way inadequate. The learned Advocate General laid considerable stress on the wording in the document to show that from thatday onwards the title of the executant has fully passed on to the execute of the document.

6. On the other hand, Mr. N. Sundara lyer, learned counsel appearing for the contesting defendants, took me through the various clauses in Ext. B-1 and contended that the essential and dominant idea evidenced by this transaction is only the creation of a creditor-debtor relationship, or in other words that o a mortgagor-mortgagee relationship, and the various expressions used therein are quite ...consistent only with the creation of what is popularly known in the Malaibar area as a kaivasa panayam. Though the actual expression kaivasa panayam is not used in the document, learned counsel contended that what is transferred is not the title of the transferor as and from that date but it is only possession, pure and simple, that is transferred, and he also placed considerable reliance un the expression that what is to be got back is not a reconveyance of title that has already vested in the excutee but is only the return of the property which can only proceed on the basis that the title vests in the transferor and this, according to Mr. Sundara Iyer, is quite in accordance with the principles laid down by their Lordships in the decision in 1954-1 Mad LJ 708: (AIR 1954 SC 345).

7. After considering the principles laid down by the Supreme Court as also the decision of Mr. Justice Ramaswami reported in 1956-1 Mad LJ 388 and also the principles laid down by Mr. Justice Varadaraja lyehgar in 1957 Ker LT 550: (AIR 1957 Kerala 169) and after considering the various clauses in the light of the contentions placed before me by the learned Advocate General for the appellant and Mr. Sundara Iyer for the respondents, I am satisfied that the conclusions arrived at by both the subordinate courts are quite correct and the second appeal has to be dismissed.

8. The document indeed starts by saying that it is a Kana Theeradharam. The title of the executant is reiterated and ultimately it is stated that a consideration of Rs. 400 has been received by the executant. Then it is stated that from that day onwards the executee is to take possession of the property, (words in Malayalam script omitted) and from that day onwards he is to pay the michavaram due to the jenmi and also revenue and other payments. It is further stated that if the amount of Rs. 400 is paid within three years from that date, the schedule mentioned properties are to be return, ed (words in Malayalam script omitted). Then again the document says that till that time, namely, the expiry of the period of three years, the 'executee is to have no right to deal with the property in any manner or to encumber it in any way whatsoever. Then it is specifically provided that after the expiry of three years alone the executee will have full kanom rights in respect of the property and have direct dealings with the jenmi and he will have also the rights of alienation etc. from that day onwards.

9. No doubt one of the circumstances considered by the Supreme Court to find out the nature of the document under such circumstances is the existence or otherwise of a debtor-creditor relationship.. The learned Advocate General is perfectly correct when he contended that at any rate on the date of Ext. B1 there was no debtor-creditor relationship as such. But in my opinion, that is only one of the circumstances considered by the Supreme Court in arriving at a conclusion as to the nature of the document before their Lordships. But in this case, as pointed out by Mr. Sundara Iyer, there is the evidence of D. W. 1 that on the date of Ext B-1 he had the necessity to borrow Rs. 400 and that the property will also be worth Rs. 800 where-as the actual consideration for Ext. B-1 is only Rs. 400.

No doubt, the learned Advocate General is justified in his criticism that the adequacy of the value of the property has not been given due importance by both the subordinate courts. In my opinion, that by itself does not in any way vitiate the conclusions by both the courts, because I am also otherwise satisfied that the document taken by itself leads only to one conclusion, namely, that it is a mortgage by conditional sale and cannot be considered to be a sale with an option to repurchase. As I mentioned earlier, the document styles itself as a kana theeradharam but one would expect after the recital that it is a kanatheeradharam to have a further recital to the effect that the executant parts with all the rights in the property. But that is not what one finds in this document.

What is transferred is only the right to have possession of the property for a period of three years when the amount covered By this transaction will be given back. Then again, if it is really a reconveyance as understood in law that is contemplated at the end of three years on payment of the sum of Rs. 400, the suitable expressions to convey that idea arc absolutely wanting in this document. The document shows that on the payment of a sum of Rs. 400 the properties will be given back to the executant himself. Taken along with this there is the other clause that it is only after the expiry of the period of three years, that the executee will have full rights over the property and also he will have rights for effecting sales and also all other acts of ownership. Taken along with all these, the expression '(words in Malayalam script omitted)' clearly shows it is only a giving back or surrender of possession that has been intended by this document. Considering the document as a whole, in my opinion, the conclusions arrived at by both the subordinate courts are correct.

10. The second appeal fails and is dismissed with cost. No leave.


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