The intention of the parties must be looked into, and once a debt with security of land for its redemption is established, the arrangement is a mortgage by whatever name it is called.

1. This Second Appeal arises from an order in execution of a decree for redemption of a mortgage.

2. When the decree holder applied for delivery of possession the third defendant objected on the ground that the transaction on which the decree was obtained was a kanam-kuzhikanam as defined in S.2(19) of the Kerala Agrarian Relations Act, 4 of 1961. The objection was overruled by the execution court, and the order was confirmed in appeal. Defendants 3, 5 and 6 have preferred this Second Appeal from the concurrent orders.

3. The only question for decision is whether the transaction evidenced by the deed, Ext. D-1, is a usufructuary mortgage (otti) or a kanam-kuzhikanam. Several decisions of this court were cited before me in which different documents came up for construction. The only principle that can be deduced from these decisions is that the courts should see whether the relationship created is that of lessor and lessee or debtor and creditor. I had occasion to point out in another case that the rule that each case must be decided on its facts applies with greater force when the decision turns on the construction of the deed sought to be enforced in the case. All that the court has to do is to examine the deed to find out the intention of the parties. I also extracted the following dictum laid down by the Supreme Court in Ramdhan Puri v. Bankey Bihari Saran (A.I.R.1958 S.C. 941):

"The only guiding rule that can be extracted from the cases on the subject is that the intention of the parties must be looked into and that once you get a debt with security of land for its redemption, then the arrangement is a mortgage by whatever name it is called".

In the light of the above principle the conclusion reached by the courts below is correct. The deed is styled an otti and the consideration paid is called ottiartham. Though nomenclature by itself may not be conclusive, the terms otti and kuzhikanam were well known in Central Travancore where the property is situate. In the case of a kanom deed the consideration paid is always described as kanom or kanartham. The terms of the deed in the case are consistent with an otti or possessory mortgage. The executants of the deed had to pay several debts at that time and the consideration was a sum of Rs. 1600/- of which all except a sum of Rs. 200/- was reserved for discharge of debts. The primary object of executing the deed appears to have been to borrow money for the discharge of debts due from the executants. It is provided in the deed that the interest on the sum advanced was to be recouped from the income of the property. The use of the, word 'Ubhayam' which means interest, indicates that the transaction was one of debtor and creditor. The deed concluded with an indemnity clause, the executants declaring that the property was not subject to attachment by court or encumbrance made by the executants and that the executants would indemnify the person who advanced money against any possible loss on account of the declaration proving incorrect. This is a clear indication that the transaction was one between a debtor and creditor.

4. Counsel for the appellant brought to my notice the fact that there were yielding trees in the property at that time, that the defendants were allowed to make further improvements in the property and that these incidents bring a transaction within the definition of a kanam-kuzhikanam in Act 4 of 1.961 (Kerala). Kanam-kuzhikanam is defined in the Act as follows:-

"'Kanam-kuzhikanam' means and includes a transfer by a landlord to another (called the 'kanamkuzhikanamdar') of garden lands or of other lands or of both, with the fruit-bearing trees, if any, standing thereof, at the time of the transfer for the enjoyment of those trees and for the purpose of planting such fruit-bearing trees thereon, the incidents of which transfer include -

(a) a right in the transferee to hold the said lands liable for the consideration paid by him or due to him which consideration