The main legal point established in the judgment is that a transaction with characteristics of both lease and mortgage should be construed as a lease as long as the elements of both lease and mortgage are present.

1. A Full Bench of this court in Kriyhnan Nair v. Sivaraman Namboodiri (1967 KLT. 78) has exhaustively dealt with the tests that may normally be adopted to find out whether the transaction which is contended to be a lease and not a mortgage is in fact one such. Dealing with this and particularly with a transaction which may be a composite transaction embodying both the characteristics of a lease and mortgage, the Full Bench said

"If it is at least in part a lease, no matter how small a part; the person holding under it would be a tenant entitled to fixity under S.13 so that redemption of the part which is a mortgage, no matter how predominant a part, would not entitle the Mortgagor to obtain possession which is what a plaintiff suing for redemption normally wants. Therefore, the proper question to be asked in such cases is whether the transaction is, to any extent, a lease. If it is then by reason of the fixity given by S.13 of the Act the transferor cannot recover possession even if the transaction be at the same time a mortgage which be is entitled to redeem. The question would not be whether the transaction is predominantly a lease or predominantly a mortgage but whether it is a lease at all".

These observations of Raman Nayar J. in the Full Bench decision have been quoted by this court on several occasions, one of the recent instances being that in Thomas v. Kunjamma (1972 KLT. 1).

2. Based on this decision it has often been contended that a transaction is partly a lease and partly a mortgage and therefore should be found to be a lease. While this may be true in a case Where there are several items of properties and the transaction may be one of mortgage in regard to some items and lease in regard to others, it is difficult to appreciate how under the same transaction in regard to the same property there can be both a mortgage and a lease-It is true that the document may have characteristics of a mortgage and may possibly satisfy some of the tests which may go to construe the document as a mortgage and it may equally well be that some of the characteristics indicate that it is a lease. These are matters which may arise in the course of the process of construction. These will have bearing on the final decision to be reached as to whether the document is a mortgage or lease. But the court will have to find finally that the document evidences either a mortgage or a lease and not that it is both. Therefore, to conceive of a transaction as one predominantly a lease or predominantly a mortgage is not, it appears to me an easy concept. The question would be whether it is a lease or a mortgage having regard to the terms of the document.

3. I understand the dictum of the Full Bench to mean that if there are characteristics some of which indicate that the transaction is a mortgage but there are some other characteristics which indicate that it is a lease the document should be considered as a lease or in other words, if the characteristics of lease are shown to be present in regard to a transaction irrespective of the question whether there are some characteristics of mortgage also the document should be construed as a lease. It is very easy to conceive of such a case. While in a lease there is a transfer of enjoyment from the lessor to the lessee and there is a similar transfer in a possessory mortgage too, the distinction between these two cases is, that in the case of the lease the transfer is for enjoyment while in the case of mortgage the transfer is for securing the mortgage money though enjoyment is also necessarily involved in the transfer. That is why we normally look into the circumstances under which the transaction comes into being. We look Into the purpose for which it was brought about to see whether the idea was that the property was to be transferred for the purpose of enjoyment or the idea was that the transfer was to be made to secure the money received under the mortgage. May be that in a particular case b