The main legal point established in the judgment is the distinction between a mortgage and a kanam, emphasizing the purpose of the transfer and the importance of a provision for the sale of property to enforce repayment as a distinctive feature in a mortgage.

1. The only question arising for decision in this Second Appeal is whether Ext A-1, Kaichit, dated November 21, 1916 evidences a mortgage as contended for the respondents, who were plaintiffs 2 and 3 in the suit or a kanam as contended for the appellant, who was the 6th defendant. The two courts have answered this against the appellant.

2. Ext. A-1 was executed by Andi and Kottan who were the predecessors-in-interest of the appellant and may be referred to as the transferees, in favour of a member of the respondents' family which held the suit properties on verumpattom under a Devaswom to which they appertained on jenmom. Ext. A-1 purports to be the counter-part of a Karipanayam deed, executed on the same day in favour of the transferees. It recited a prior lease from the respondents' family to the transferees, with a premium of Rs. 200/- and an annual rent of 641 paras of paddy and Rs. 10, and further stated that, in order to pay renewal fees to the Devaswom, the respondents' family borrowed on the same day a sum of Rs. 400/- from the transferees; it provided that the transferees shall he in possession of the properties on karipanayam for ten years, for the 'karipanayam' amount of Rs. 600/- of which, the sum of Rs. 400/- borrowed was to carry no interest; the balance alone to carry interest as before. It also stipulated, that on the expiry of the term, the transferees shall surrender the properties on receipt of Rs. 600; but that, even before the expiry of the term, if the transferees so desired, they might surrender the properties on receipt of the karipanayam amount. The learned District Judge held, that this last stipulation amounted to a covenant, Entitling the transferees to compel the transferor to redeem the mortgage, and this was considered by him sufficient to hold, that Ext. A-1 evidenced a mortgage and not a kanam.

3. The learned counsel for the appellant contended, on the authority of Emmuni Panicker v. Krishna Panicker & others, 1958 KLT. 756, and Nani Amma v. Chummaran alias Narayanan Nambudiri,1961 KLT. 398, that Ext. A-1 satisfies all the conditions of a'kanam' as defined in S.2 (18) of the Kerala Agrarian Relations Act, 1960, referred to hereafter as the 'Act' and that therefore the decree under appeal cannot be maintained. The above-definition, so far as it relates to properties in Malabar area, may be extracted below:

"Kanom' means the transfer for consideration in money or in kind or in both, by a landlord of an interest in specific immovable property to another for the letter's enjoyment, whether described in the document evidencing the transaction as kanam or kanapattom, the incidents of which transfer include

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

(b) the liability of the transferor to pay to the transferee interest on such consideration unless otherwise agreed to by the parties; and

(c) payment of michavaram or customary dues or renewal on the xpiry of any specific period "

and corresponds more or less to the definition in S.3 (14) of the Malabar Tenancy Act, 1929, as amended, which reads:

"'Kanom' means the transfer for consideration in money or in kind or in both by a landlord of an interest in specific immovable property to another (called the 'kanamdar') for life letter's enjoyment, the incidents of which transfer include

(a) a right in the transferee to hold the said property liable for the consideration paid by him or due to him which consideration is called 'kanartham';

(b) the liability of the transferor to pay to the transferee interest on the kanartham, and

(c) the payment of 'michavaram' by the transferee

Emmuni Panicker's case was decided on the definition of 'kanam' in the Malabar Tenancy Act, 1939, while in Nani Amma's case, the definition in the Act as extracted above was applied. These cases no doubt lend support to the appellant's contention, but in my opinion, they do not emphasise the distinction between a mo