1. In Hussain Thangal v. Ali 1961 KLT. 1033, I had occasion to enumerate the tests generally adopted by the courts to tell a kanam from its twin brother a possessory mortgage, the essential difference between the two, of the one being a transfer for securing a debt and the other a transfer for enjoyment, being rarely an apparent feature and being largely a matter for inference. I then said that a provision in the deed effecting the transfer enabling the transferee to insist on repayment of the consideration advanced by him otherwise than as a condition for resumption of the property transferred (whether the provision be in the shape of a promise to repay by the transferor, or in the shape of a right of recovery by sale given to the transferee) was a sure means of telling a possessory mortgage from a kanam. Or words to that effect. For, it seemed to me that this emphasis on recovery at the transferee's will would put it beyond doubt that the advance was by way of loan and not by way of price or deposit refundable (whether by actual payment or adjustment) on re-transfer. And if that be so, the inference would follow that the transfer was for the purpose of securing the repayment of the loan rather than for the transferee's enjoyment of the property. For, if enjoyment were to be determined for the sake of recovering the money paid, the latter must have been the real object of the transfer. The same view was taken by Madhavan Nair, J. in Ammukutty Amma v. Ahammad 1961 KLT. 758, by Velu Pillai, J. in Thankappan v. Ammalu Neithiramma 1961 KLT. 762; and it was affirmed (though perhaps in terms less categorical) by Velu Pillai and Mathew JJ. in Ayyappan v. Venkiteswara Naicken 1962 KLT. 733 and again by Velu Pillai and Raghavan JJ. in Subramania Iyer v. Ananthanarayana Iyer 1962 KLT. 888. The correctness of this view has however been doubted and that is why this case, where the question has been raised whether the transfer under which the appellant defendant holds is a lease entitling him to fixity under S.13 of Act I of 1964, or whether it is only a mortgage entitling the plaintiff respondent to the decree for redemption and possession which though denied by the first court has been granted to him by the lower appellate court, is before us.

2. It is on the strength of the decisions in Sankaran Nambudiripad v. Moideen 1954 KLT. 842, Kalliani v. Kunhalikutty Haji S.A. No. 41 of 1959 and Kochakkan v. Abdunni S. A, No. 804 of 1961 that the view stated above, seemingly so well-supported by authority, has been questioned. But, it seems to me that, whether the view be right or wrong, these decisions provide little basis for questioning it. In the first of these decisions it was observed:

"S 2 (22) of Kerala Act 1 of 1964 defines an incident of a kanam to be 'a right in the transferee to hold the said property liable for the consideration paid by him or due to him', which necessarily connotes a right of sale of the property for realisation of the amount. It must then follow that a right of sale in enforcement of the amount advanced cannot be a decisive factor that being, by the very definition,

an incident of a kanam which is admittedly a transaction of tenancy only."

According to this observation then, a right of sale far from being inconsistent with the kanam is an essential feature of a kanam. But a like contention had already been convincingly repelled in Ayyappan v. Venkiteswara Naicken 1962 KLT. 733 which is referred to by the learned judge but this aspect of which was apparently not brought to his notice. In support of the observation it is said that "a right in the transferee to hold the said property liable for the consideration paid by him or due to him" means that there is a charge on the property and that from this it necessarily follows that there is a right of sale of the property to recover the amount advanced. This argument stems from a failure to distinguish between a charge in the ordinary sense of the word as meani