Judgment

RAY, J.: - This is an appeal by special leave against the judgment dated 29 March, 1967 of the High Court of Kerala confirming the decree of the lower appellate Court declaring that the sum of Rs. 1000/- is due to defendants Nos. 10 to 17 as legal representatives of defendant No. 2 on the mortgage mentioned in the plaint and that the plaintiffs having deposited the said sum of Rs. 1000/- on the file of the Court of the Munsif, Cannanore, the defendants Nos. 10 to 17 do surrender quiet and peaceable possession of the property described in the plaint to the plaintiff No. 7 with all documents relating to the property in their possession and further that the defendants Nos.10 to 17 do pay to the plaintiff No. 7 half of the mesne profits from 22 December, 1953 till the date of surrender of possession.

2. The relevant documents are Ex. B-6 and Ex. A-1. Ex. B-6 is a kanam-kuzhikanam. Ex. A-1 is its counterpart. They are both dated 1 December, 1941. The transaction thereunder is a composite one, a kanam in respect of taks 1 to 3 of item 1 which constitute properties in suit and a kanam kuzhikanam in respect of tak 4 of item 1 and item 2 which are not the subject-matter of this suit. The kanamdars are defendants Nos. 1 and 2. In partition under Ex. 3 the rights under Ex. B-6 have been divided equally between the defendants Nos. 1 and 2 but the properties as such, are not divided. The appellants being the legal representatives of defendant No. 2 had thus an undivided moiety in the properties in suit. The original plaintiff was an assignee of the jenmi (the land owner) who granted Ex. B-6. On the death of the original plaintiff, her interest devolved on plaintiffs Nos. 2 to 6 who assigned the same to plaintiff No. 7. The suit is for redemption of the kanam on the properties in suit. Subsequent to the institution of the suit defendants Nos. 3 to 9 being the legal representatives of defendant No. 1 and being respondents Nos. 7 to 13 in this appeal surrendered their moiety in the suit kanam to plaintiffs Nos. 2 to 6 and thereafter the suit proceeded in regard to the moiety of the kanam that belonged to defendant No. 2 and his legal representatives, namely, the appellants.

3. The only question in this appeal is whether the appellants are protected against eviction by reason of their contention that Ex. B-6 created a tenancy or whether the respondents were entitled to possession of the properties, by reason of their rival contention that Ex. B-6 was a mortgage transaction and the respondents were entitled to redeem the mortgage on the expiry of the stipulated period.

4. The Malabar Tenancy Act, 1929 was in force at the time of the institution of the suit but it is common ground that rights and liabilities of the parties are to be judged under the Kerala Land Reforms Act, 1964 by reason of the provisions contained in Section 132 (1) (a) thereof. The relevant provisions of Section 2 (22) of the Kerala Act of 1964 which defines kanam are as follows:

"(22) kanam means the transfer for consideration, in money or in kind or in both, by a landlord of an interest in specific immovable property to another person for the latter s enjoyment, whether described in the document evidencing the transaction as kanam or kanapattam, the incidents of which transfer include

(a) .............................

(b) .............................

(c) payment of michavaram or customary dues, or renewal on the expiry of any specified period ....... ..".

5. It is indisputable that a kanam within the above definition involves payment of michavaram or customary dues or renewal on the expiry of any specified period. In Ex. B-6 there is no provision for renewal or for payment of customary dues. The pre-eminent question is whether there is a provision for payment of michavaram. Broadly stated, Ex. B-6 executed by defendants Nos. 1 and 2 stipulated that they would pay the kanam amount of Rs. 1400/- charged on taks 1 to 3 of item No. 1 in the Schedule to Exs. B-6 to 7 persons