The main legal point established in the judgment is the interpretation of the provisions of the Kerala Agrarian Relations Act and the Transfer of Property Act to determine the nature of the transaction.

1. These two appeals arise from the same suit that was for redemption of a Melpanayam.

2. The material question for decision is the real nature of the suit transaction, whether it amounts to a kanam or a possessory mortgage. The learned Munsiff held that the transaction amounted to a lease, and not to mortgage. But the learned Subordinate Judge on appeal held the contrary. In S. A. No. 118 of 1957 the learned counsel for the defendants 1 and 2, who are the appellants therein, is canvassing the correctness of the latter finding.

3. There is a provision in the suit transaction (Ext. A2) for payment of purappad, representing the residual rent after appropriation of the interest on the mortgage amount from the income of the property, and as such the contention is advanced that the requirements of clause (18) of S.2 of the Kerala Agrarian Relations Act (IV of 1961) are satisfied, the property involved being situate in Malabar.

4. It is pertinent to note that Ext. A2 provides for a personal liability for the amount advanced under the document, and also for a sale of the demised property to enforce the same. These two provisions are totally inconsistent with a kanam. As observed by Raman Nayar, J, in S.A. No. 146 of 1961, most of the features of a kanam, as defined in the Agrarian Relations Act, are identical with those of a usufructuary mortgage as defined in S.58 (d) of the Transfer of Property Act, and therefore the line of distinction between the two is rather difficult to draw. As the learned judge has observed therein, a provision to enforce repayment of the amount advanced by sale of the property demised, being totally inconsistent with the nature of a kanam or the mere creation of a tenancy, is decisive of the fact, that the transaction is only a mortgage, and not a kanam. Adverting to the almost identical provision in the Malabar Tenancy Act, Joseph, J, in Devaki v. Bhaskara Menon 1961 KLT. 746 has also taken the view that if the terms of a document indicate a relation of debtor and creditor, rather than of landlord and lessee, the transaction must be taken as a mortgage and not as a kanam. I am in respectful agreement with the dicta laid down in the abovesaid two decisions, and therefore uphold the construction, by the learned Subordinate Judge, of the instant document, Ext A-2, as a mortgage only.

5. The plaintiff has preferred a cross-objection against the refusal of the court below to apply the provisions of S.9-A of the Madras Act IV of 1938 [as amended in 1950] to the instant transaction. The learned Subordinate Judge was of the view that the transaction in Ext. A-2 was not a usufructuary mortgage, pure and simple, as defined in the Transfer of Property Act to which alone the said section would apply. S.9-A of the Madras Act IV of 1938 does not refer to a "usufructuary mortgage". Throughout the entire length of the section which runs into several clauses, the expression "usufructuary mortgage" is not found at all; it refers only to a "mortgagee in possession of the property mortgaged." No doubt, the marginal note of the section giving the title thereof is worded as a "special provision in respect of usufructuary mortgages." It is trite knowledge that in the absence of any ambiguity in the enacting clause, no reliance can be placed on the marginal note to understand the scope or the meaning of a statutory provision. Marginal notes or headings of sections are not to govern, either as enlarging or as restricting, the import of the express enactment. Even if the marginal note is to be referred, it has been held in Pathukutty Umma v. Koyakutty Naha 1961 KLT. 594 that the expression'usufructuary mortgage' therein has been used in a special sense [I would say, 'in a loose sense'], "not in the sense of S.58 [d] of the Transfer of Property Act". The cross-objection is therefore allowed entitling the plaintiff to the benefits of S.9-A of the Madras Agriculturists' Relief Act, IV of 1938, is regard to the suit transaction