1. The document on which this suit was brought is styled a melkanom deed. It has been held by the lower Courts to be invalid for non compliance with the rules as to attestation contained in Section 59 of the Transfer of Property Act.
2. Mr. Ananthakrishna Iyer for appellant; conceded that a kanom is a mortgage and that the holder of the suit document bad the prospective rights of a kanomdar if he redeemed the prior kanom, and argued that he has only the present rights of a lessee.
3. He contended further that his client had no immediate rights as mortgagee, as the sum of Rs. 575 was paid only as a premium for being given an interest to redeem the kanom, and that Section 91 of the Transfer of Property Act contemplates such interests being vested in other persons besides the mortgagor and the mortgagee. I find it expressly stated in the document that it is a conveyance of melkanom rights, that is, the rights of a second kanomdar.
4. Further, the document provides that the kanom money is to be security for the remittance on the due dates of the assessment and the balance of rent (michavaram), and thus gives the melkanomdar an interest in the kanom money secured on the property.
5. From these recitals and from the general tenor of the suit document, I consider that it partakes of, the character of a mortgage and as such requires attestation. The second appeal is dismissed with costs.
6. The question argued before us for the appellant is that the view of the lower Court that Exhibit A is a deed of mortgage is erroneous as it is in reality; a lease deed. Mortgage, as defined in Section 58 of the Transfer of Property Act, is a. transfer of an interest in specific immoveable property for the purpose of securing payment of money advanced or to be advanced on an existing or future debt or the performance of an engagement resulting in pecuniary obligation.
7. The question whether Exhibit A is, a mortgage or not must depend on its terms and the rights created by it. It calls itself a melkanom deed, that is, a second kanom deed. Though this is not conclusive, it is an item of consideration. It demises the land: on melkanom rights to the plaintiff and the plaintiff pays as 'renewal fees' an amount calculated on the prior kanom amount of Rs. 2,300. Though there is no present advance of mortgage money under Exhibit A to the jenmi, the plaintiff gets the security of the properties for Rs. 2,300 the moment he pays it to the kanomdar. That security is given under the deed itself, and not by any law as argued for the appellant. It is also stipulated that the interest on the kanom amount is deducted from the rent payable on the land and the balance alone is to be paid ass michavaram, and the kanom amount in the plaintiff's hands is to be security for arrears of rent. It seems to me that Exhibit A must be held to be a deed of mortgage in these circumstances; and not being properly 'attested' as required by Section 59 of the Transfer of Property Act, the plaintiff's suit was rightly dismissed. The second appeal is, therefore, dismissed with costs.