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1978 Supreme(Ker) 84
Judges : T.KOCHU THOMMEN
VARKEY - Appellant
Versus
VARGHESE - Respondent
Case No : S.A. No. 89 of 1978
Decided On : 05/24/1978
Advocates Appeared :
P.N. Sankaranarayan Pillai; For Appellant P.K. Kesavan Nair; K. N. Narayana Pillai; K. Venugopalan; For Respondent
The judgment establishes the principle that in cases not described as 'kanam' or 'kanapattam', the transfer of interest in the land must be proved to be for enjoyment, as per the provisions of S.2(22) of the Kerala Land Reforms Act, 1963.
Headnote:
Mortgage - Redemption - Kerala Land Reforms Act, 1963 - S.13
Fact of the Case:
The respondent's suit for redemption was decreed by the trial court and confirmed by the Additional District Judge, Parur. The appellant contended that he was a kanamdar entitled to fixity of tenure under S.13 of the Kerala Land Reforms Act, 1963 ('the Act'). The courts concluded that the document in question evidenced a mortgage.
Finding of the Court:
The courts found that the document in question was styled as a mortgage, the consideration advanced was high in relation to the property value, no customary dues were payable, and there was a provision for recovery of money by sale of the property. Therefore, the courts concluded that the document was a redeemable mortgage and dismissed the appeal.
Issues: The main issue was whether the document in question evidenced a redeemable mortgage or a kanam under S.13 of the Act.
Ratio Decidendi: The court analyzed the provisions of S.2(22) of the Act and held that the appellant's contention regarding kanamdar status was not valid as the document in question was styled as a mortgage. The court emphasized the need to prove that the transfer of interest in the land was for enjoyment in cases not described as 'kanam' or 'kanapattam'.
Final Decision: The appeal was dismissed, and the cross-objection regarding mesne profits was also dismissed. The parties were ordered to bear their respective costs.
1. This is an appeal from the judgment of the learned Additional District Judge, Parur, confirming the judgment of the trial court which decreed the respondent's suit for redemption. The courts below held that Ext P2 document evidenced a redeemable mortgage and rejected the appellants's contention, which be raised in the course of the final decree proceedings, that be was a kanamdar entitled to fixity of tenure under S.13 of the Kerala Land Reforms Act, 1963 (the 'Act').
2. Considering the nomenclature of Ext. P2, the total consideration received by the transferor, the extent of the property, the provision for bringing the property to sale, and other circumstances, the courts concluded that Ext P2 was nothing but a mortgage.
3. Shri Sankaranarayana Pillai appearing for the appellant submits that the judgment under appeal is vitiated by a substantial error of law. According to him the courts below erred in thinking that it was necessary to prove, in order to satisfy the definition of a 'kanam', that there was a transfer of interest for the purpose of enjoyment of the land Such purpose, counsel says, is presumed, and no proof of it is required, once the other ingredients of the statutory definition of 'kanam' under S.2(22) are found to be present in the transaction. This contention is apparently based on certain observations of this Court in Krishnan Nair v. Sivaraman Nambudiri 1967 KLT. 78 (FB). In that case this Court observed:
"if a transaction clearly satisfies the definition of 'kanam' in all other respects and the only element remaining positively to be established is the essential element of the transfer being for the purpose of enjoyment, then, unless the contrary is shown, that element must also be regarded as satisfied and the transfer held to be a kanam. Thus, if the document evidencing the transaction calls it a kanam or kanapattam, and incident (c) of the incident's in the definition in S.2(22) obtains, it may safely be assumed, till the contrary is shown, that the transfer is for enjoyment and that the transaction is a kanam In the non-Malabar area, notwithstanding that the transaction is not labelled 'kanam' or 'kanapattam', it could be safely assumed that the transaction is a kanam if two of the three alternative incidents in clause (c),
namely, payment of customary dues, and renewal on the expiry of a specified period, are present" (italics supplied). (See Para.16).
4. Referring to the above observation, counsel contends that the courts below allowed themselves to be misguided by embarking on an examination of the element of enjoyment which was totally unwarranted once it was found that the other ingredients of the definition of 'kanam' were present.
5. Counsel relies upon the further observation of this Court in Para.18 of that judgment. Stating that the transaction evidenced by a document which has described it otherwise than as a 'kanam' or 'kanapattam' cannot satisfy the definition of 'kanam' in the Malabar area, this Court remarked:
"But that is not the end of the matter. For, if the transfer was for enjoyment of the land by the transferee, and the transferee has agreed to pay rent or other consideration for being allowed to possess and enjoy the land, he could come within the body of the definition of 'tenant' in S.2 (57) and would be entitled to fixity under S.13."
6. It is true that these observations in Krishnan Nair v. Sivaraman Nambudiri appear to lend some support to counsel's contention. But then it has to be remembered that that decision dealt with case governed by S.2 (22) of the Act as it stool then. That provision was replaced by the present S.2 (22) which is not identical.
7. I shall first refer to S.2 (22) which was considered in Krishnan Nair v. Sivaraman Nambudiri: "2. Definitions - In this Act, unless the context otherwise requires by a
(22) 'kanam' means the transfer for consideration, in money or in kind or in both, landlord of an interest in specific immovable property to another perso
