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SUPREME COURT OF INDIA
Y.V. CHANDRACHUD, P.K. GOSWAMI AND A.C. GUPTA, JJ.
Fuzhakkal Kuttappu, Appellant
Versus
C. Bhargavi and others, Respondents.
Civil Appeal No. 1815 of 1975,
D/- 22-9-1976.
Advocates appeared
Mr. T. C. Raghavan, Sr. Advocate, (M/s. N. Sudhakaran, and K. Ramakumar, Advocates with him), for Appellant; Mr. T. S. Krishnamurthy Iyer, Sr. Advocate, (Mr. K. Rajendra Choudhury and Mrs. V. D. Khanna, Advocates with him), for Respondents.
Transfer of Property Act - Kerala Land Reforms Act 1963 – Possession for land - Trial Court – Claim of compensation - Entire controversy between parties will turn on construction of the above deed as to whether it is a mortgage or a lease – Although prior to assignment of right in of appellant the parties, naturally would have been sailing on the same boat as to their status under deed acquisition of right by appellant gave him an opportunity to part company with respondents and to claim almost compensation to the deprivation of the respondents on acquisition of larger estate into which the lesser estate had merged - Respondents, therefore, threw down their gauntlet taking position that the document evidenced a transaction of lease and they acquired tenant-rights in the land - If they succeed in this plea they will be entitled to almost entire amount of compensation under Kerala Land Reforms Act 1963 and appellant even with right will only get a pittance – Held, There is also no evidence whatsoever to indicate as to what price of the land was to determine proportion between amount advanced and value of property - Document taken as a whole lacks most essential ingredient of a mortgage, namely that transfer of property has to be made as a security for debt - High Court has also noted that since document was of a composite character disclosing features of both mortgage and lease it must be taken as a lease – Court do not think that High Court is correct in this view - Indeed High Court in a later Full Bench decision has not accepted this view – Court are of opinion that when there are some mixed elements in an instrument disclosing features of mortgage as well as of lease, the court will have to find out the predominant intention of the parties executing the document viewed from essential aspect of the reality of the transaction - Human transactions cannot be tied to textual definitions - They have to respond to variable requirements under different situations and often to dictates of the party at an advantage in the bargain. Mortgages are not always simple English or such other types as defined in Transfer of Property Act. They are anomalous too and sometimes more anomalous than what is defined in the said Act - Even so, there is one most essential feature in a mortgage which is absent in a lease that is that property transferred is a security for the repayment of debt in a mortgage whereas in a lease it is a transfer of a right to enjoy property – Court have seen that this essential feature of a mortgage is missing in the document in question – Court are therefore unable to come to conclusion that it is a mortgage and not a lease - appellant, therefore had cast his lot in a gamble by purchasing right from transferors - There is sufficient force in the contention of the respondents that transferors themselves treated this document as a lease for else it cannot be explained why they would have parted with their right of entire property inclusive of debt if they themselves had regarded this document as an instrument of mortgage - Appeal dismissed
Judgment
GOSWAMI, J.:- This appeal by special leave is directed against the judgment of the Kerala High Court out of a proceeding for apportionment of compensation under the Land Acquisition Act.
2. Certain property measuring 2 acres 21 cents in R. S. 299/1 of Chevayur village was acquired by the Government. The compensation which was awarded was a sum of Rs. 28591.88 including the solatium. There were five claimants clamouring for the compensation. While the first claimant (hereinafter to be described as the appellant) claimed the entire compensation after making allowance for a small sum of Rupees 457.50 in favour of the claimants 2 to 4 (hereinafter to be described as the respondents) the latter, on the other hand, claimed the entire amount minus a sum of Rs. 350/- which, according to them, was the entitlement of the appellant. The acquired property originally belonged in janmam (freehold right) to one Vakeri Thannanone Raman Nair. After his death the same was inherited by his heirs and legal representatives. They assigned their Janmam right on January 14, 1967, in favour of the appellant. Based on such a right the appellant is now claiming the aforementioned compensation.
3. The earlier history of the property shows that the otti right in the land had been transferred to the predecessors-in-interest of the appellant and to those of the respondents by the daughter of Vakeri Thannanone Ramam Nair and other heirs by a registered document of December 30, 1894, for a consideration of Rs. 650/-. The document is marked as Ex. A-2. The entire controversy between the parties will turn on the construction of the above deed (Ex. A-2) as to whether it is a mortgage or a lease. Although, prior to the assignment of the Janmam right in favour of the appellant the parties, naturally, would have been sailing on the same boat as to their status under the deed, the acquisition of Janman right by the appellant in 1967 gave him an opportunity to part company with the respondents and to claim almost the ente compensation to the deprivation of the respondents on the acquisition of the larger estate into which the lesser estate had merged. The respondents, therefore, threw down their gauntlet taking the position that the document Ex. A-2 evidenced a transaction of lease and they acquired tenant-rights in the land. If they succeed in this plea, they will be entitled to almost the entire amount of compensation under the Kerala Land Reforms Act 1963 (Act 1 of 1964) and the appellant even with the Janmam right will only get a pittance.
4. It may be noted that the appellant had already got his 1/4th share of the otti right by partition some time in 1936 and there was a partition suit in 1949 when the appellant and the respondents divided this property by metes and bounds in the course of execution of a partition decree in O. S. 32 of 1949.
5. We are required to construe the deed executed in the year 1894. The deed was not drafted by a lawyer conversant with the legal implications of a mortgage or a lease but by a bond-writer as perhaps was the usual practice in the fall of the last century and continuing even upto the present times. The deed was written in Malayalam and we have an agreed translation of the document before us. The learned Judge of the High Court being conversant with the language was naturally in a better position to appreciate the significance in the original document placed side by side with the translated exhibit.
6. In construing a document like the one before us it is always necessary to find the intention of the party executing it. The intention has to be gathered from the recitals and the terms in the entire document and from the surrounding circumstances. How the parties or even their representatives-in-interest treated the deed in question may also be relevant. It is also well settled that the nomenclature given to a document by the scribe or even by the parties is not always conclusive. The word "otti", as such, used in the documen
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