The court's decision is influenced by the interpretation of the Kerala Agrarian Relations Act, IV of 1961, specifically S.9 and S.34, to determine the nature of the transaction and the consequences of default in payment.

1. The appellant is the 2nd defendant.

2. The suit is for redemption of Ext. B1 Panayakacheet dated 17-1-1921, with arrears and future Purappad payable thereunder.

Question having been raised as to the nature of transaction embodied in Ext. B1, as to whether it is a redeemable mortgage or an irredeemable kanom, the courts below have concurred in finding it to be a possessory mortgage, and in that view allowed redemption and recovery of the property on payment of the Panayam amount. The correctness of that finding is canvassed in this Second Appeal.

This appeal was stayed under the Kerala Act I of 1957 which remained in force till 15-2-1961 when the Kerala Agrarian Relations Act, IV of 1961 (hereinafter called the Act) came into force with a direction in its S.95 that all appeals, suits, etc. stayed under the former Act may be disposed of in accord-dance with the provisions of the latter Act.

3. S.9 of the Act provides:

Right to prove real nature of transaction.

(1) Notwithstanding anything in the Indian Evidence Act, 1872 (Central Act I of 1872), or in any other law for the time being in force, any person interested in any land situate in Malabar may plead, adduce evidence and prove that a transaction purporting to be a mortgage, otti, karipanayam, panayam or nerpanayam of that land is not in fact such a transaction but a transaction by way of kanam, kanamkuzhikanam, kuzhikanam, verumpattam or other lease, under which the transferee is entitled to fixity of tenure in accordance with the provisions of S.6 and to the other rights of a tenant under this Act.

(2) "

4. Thus, even though a document is expressed to be a Panayakacheet or a deed a mortgage, it is open to the parties to prove that it is not really a mortgage as it purports to be in its expression, but a Kanom as defined in the Act entitling the transferee to fixity of tenure conceded to tenants under the Act. For this, it need only be shown that the transaction embodied in the document does satisfy all the incidents required for a Kanom by the definition of the Act.

5. The definition of Kanom in S.2 (18) of the Act which, so far as relates to the area in which the suit property is situate, is virtually the same as that in the Malabar Tenancy Act of 1929 as amended by the Act XXXIII of 1951, reads as follows:

"'kanam' 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 latter's enjoyment, whether described in the document evidencing the transaction as kanom or kanapattom, 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;

(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 expiry of any specified period, and, in areas in the State other than Malabar, includes such transfer of interest in specific immovable property which is described in the document creating the transaction as Otti, Karipanayam, Panayam, Nerpanayam or by any other name and which has the incidents specified in items (a) and (b) above and also the following incidents: -

(i) renewal on the expiry of any specified period; and

(ii)payment of customary due:

Provided that kanapattom or any other demise governed by the Travancore Jenmi and Kudiyan Act of 1071 or the Kanom Tenancy Act, 1955, shall not be deemed to be a kanom.

Explanation - For the purpose of this clause, in a case where there has been no stipulation in the document evidencing the transaction for renewal on the expiry of any specified period, but there has been a renewal or payment of renewal fees, it shall be deemed that there had been a provision for such renewal in the document."

6. The property involved in this case being situate in Malabar the transaction would be a kanom if it satisfies the four inciden