The central legal point established in the judgment is the interpretation of the nature of the mortgage transaction and the application of the legal provisions under the Kerala Land Reforms Act to determine the appellant's entitlement to tenancy rights.

K.A. Mohamed Shafi, J.

The 2nd plaintiff is O.S.No.131/1966 on the file of the Munsiff's Court, Nedumangad is the appellant. The suit was filed for redemption of a mortgage dated 19th Chingam 1091 M.E. and for recovery of possession of the properties. A preliminary decree for redemption was passed on 15.7.1967 directing the plaintiffs to deposit mortgage amount of Rs. 198/- and the value of improvements of Rs, 3984.95 in favour of the first defendant.

2. The 28th defendant claimed tenancy right in the property and the final decree application filed by the plaintiff was dismissed by the trial court on 19.7.1971 holding that the 28th defendant has got fixity of tenure in the mortgaged property. The plaintiffs preferred A.S. No. 103/1972 before the Principal Sub Court, Trivandrum and the appellate court by judgment dt. 23.2.76 set aside the final judgment and decree and remanded the case to the trial court directing to consider Ext. P2 in the light of the decision of this Court reported in Velayudhan Vivekanandan v. Ayyapan Sadasivan (1975 KLT 1).

3. During the pendency of A.S. No. 103/72 all the properties except plaint 'C' Schedule items 3 and 4 were surrendered by the original mortgagee to the first plaintiff. After remand the trial court again decreed the suit for redemption holding that the 28th defendant has no tenancy right in the property. The 28th defendant preferred A.S. No. 261/78 before the District Court, Trivandrum and the District Court allowed the appeal and set aside the final decree in so far as item Nos. 3 and 4 of plaint'C' schedule claimed by the 28th defendant. Hence the 2nd plaintiff has preferred this second appeal.

4. The lower appellate court found that the 28th defendant is entitled to Ottikuzhikanam right as defined under S.2(39A) of the Kerala Land Reforms Act. The entire plaint schedule properties were mortgaged by the first plaintiff as per Ext. P1 mortgage dt.10th Medam 1074 for 1000 fanams. That mortgage was redeemed and a fresh mortgage deed was executed as Ext. P2 dated 10th Chingam 1091 M.E. for 7000/-fanams in favour of the mortgagee under Ext. P1 and two others. Out of the mortgage amount of 7000/-fanams, 1000 fanams were to redeem the mortgage, 2500/- fanams were for payment of value of improvements to the mortgagee under Ext. P1 and the balance amount was adjusted towards another loan due from the mortgagor to the mortgagee. The 28th defendant is the transferee from a sub mortgagee under Ext. P1 mortgage in respect of two items of properties comprised therein. The mortgage in Ext. P1 had created a sub mortgage in respect of these two items and that sub mortgagee executed assignment deed in favour of the 28th defendant, as per Ext. BI dated 27.4.64. At the time of execution of Ext. P2 that sub mortgage was subsisting and those two items of properties comprised in the sub mortgage are plaint 'C' Schedule items 3 and 4 properties. The only dispute now subsisting is in respect of those two items of properties.

5. The substantial questions of law that arise for consideration in this S.A. are (1) whether the appellant is entitled to tenancy right as provided under S.2(39A) of the Kerala Land Reforms Act as amended in respect of the plaint schedule property as per Ext. P2 mortgage. (2) Whether the appellant who is an assignee of a portion of the mortgage property by the sub mortgagee created by the original mortgagee as per Ext. P2, is entitled to claim tenancy right in the plaint schedule property under the KLR Act as amended.

6. The appellant has contended that Ext. P2 evidences only a mortgage and not an Ottikuzhikanam lease as contemplated under S.2(39A) of the Kerala Land Reforms Act as contended by the 28th defendant. Senior counsel for the appellant submitted that in anomalous mortgages involving a composite transaction of this nature where elements of mortgage and lease are present dominant or essential purpose of the transaction has to be ascertained in order to determine the true n