The main legal point established in the judgment is the distinction between a kanom and a possessory mortgage, and the application of tests to determine the nature of the transfer.

1. The question is whether the transfer effected by the deed Ext. B1 dated 26th April 1920 (there is a counter-part, Ext. Al, of the same date), under which defendants 5 to 9 claim to be in possession of the property in, suit is a kanom entitling these defendants to fixity of tenure under S.21 of the Malabar Tenancy Act, 1929, now, since the institution of this appeal, replaced by S.6 of the Kerala Agrarian Relations Act, 1960 (which confers fixity of tenants, a kanomdar being by definition a tenant) or whether it is only a possessory mortgage entitling the plaintiffs to the decree for redemption which they claimed. The courts below have, on the concurrent finding that the transaction is a mortgage, decreed the plaintiffs' suit, and the 8th defendant has come up with this second appeal.

2. Although the law governing the matter at the time of the suit was the Malabar Tenancy Act, both sides are agreed that the matter has now to be disposed of in accordance with the provisions of the Kerala Agrarian Relations Act which I shall hereafter call the Act. This, it seems to me, is something that cannot admit of dispute.

3. It might be as well to begin by setting out in full the relevant definitions in S.2 of the Act: Kanam:

(18) "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 kanam 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:

renewal on the expiry of any specified period; and

(ii) payment of customary dues;

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

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.

Landlord:

(23) "landlord" means a person under whom a tenant holds and to whom he is liable to pay rent and includes a landowner;

Michavaram:

(29) "michavaram" means whatever is agreed by a kanamdar to be paid periodically as residual rent, in money or in kind or in both to, or on behalf of, the landlord, but does not include customary dues.

Tenant:

(50) (i) "tenant' means any person who has paid or has agreed to pay rent or other consideration, for his being allowed, by another, to possess and to enjoy the land of the latter and includes

(a) an intermediary;

(b) a verumpattomdar of any description;

(c) a kanamdar;

(d) a kanam-kuzhikanamdar;

(e) a kuzhikanamdar;

(f) a punam or kumri cultivator;

(g) a licensee in Kuttanad taluk;

(h) a varomdar;

(i) an odacharthudar or any person claiming under an odacharthudar referred to in S.4; 0) a holder of a kudiyiruppu;

(k) a vechupakuthidar;

(1) the holder of a chalgeni lease; and

(m) a mulgenidar but shall not include a person holding land under a transaction known as Irakkipanayam.

Explanation 1.- Where in a document a person is described as a 'Sambalapattomdar," 'Sambalachittudar' or 'Coolipattomdar" in respect of any paddy land situate in Palghat D