The main legal point established in the judgment is the interpretation of the provisions of the Malabar Tenancy Act, 1929 and the Kerala Agrarian Relations Act, 1960 regarding kanam, michavaram, and residual rent, and the determination of the nature of the otti as evidencing a debtor and creditor relationship.

1. The short question arising for decision in this second appeal is, whether the otti evidenced by Ext. B5 dated March 25, 1943, sought to be redeemed, is really a kanam under which the defendants are entitled to fixity of tenure, or not. The first court has held that it is not a kanam, there being no provision in it for the payment of michavaram so as to satisfy the definition in the Malabar Tenancy Act, 1929, and rejected the defendants' claim for fixity of tenure; on appeal the Subordinate Judge has held, that the stipulation in Ext. B5 for the payment of revenue to Government is tantamount to a provision for the payment of michavaram, but concurred with the trial court in rejecting the claim for fixity of tenure by applying S.21 of the Malabar Tenancy Act as the kanartham exceeded 40 per cent of the jenmi's interests. The aforesaid Act having been repealed by the Kerala Agrarian Relations Act, 1960 (Act IV of 1961), the ground relied on by the Subordinate Judge can no longer avail the plaintiffs. Nevertheless, Ext. B5, has to satisfy the definition of kanam in the later enactment. It is, therefore necessary to consider whether the stipulation in Ext. B5 that the first defendant shall be in possession of the properties, and shall pay revenue out of the income thereof and appropriate the balance towards interest on the amount of the advance, is a provision for the payment of michavaram, which is also one of the essential features of a kanam as defined by Act IV of 1961. That Act has defined michavaram in S.2, sub-s. (29) as "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". Apart from the use of the term 'residual rent', the definition of michavaram is practically the same as in the Malabar Tenancy Act. It is sufficient to consider, whether the payment of revenue by the first defendant pursuant to the stipulation in Ext. B5, can be deemed to be a payment on behalf of the plaintiffs who are the assignees of the interests of those who granted the demise. Under S.76 (c) of the Transfer of Property Act, the duty to pay revenue for the mortgaged property is cast on the mortgagee, in the absence of a contract to the contrary. This is also the general rule as held by the Privy Council in Mirza Abid Hussain Khan v. Mt. Kaniz Fatima (A.I.R.1924 P.C.102). But this is a rule, which operates as between the mortgagor and the mortgagee. The contract in Ext. B5 is in accordance with this rule. Therefore it was contended that the mortgagee making payment of revenue does so on his behalf and not oh behalf of the mortgagor. I cannot accept this contention, for as between the Government to whom the revenue is payable and the pattadar, the primary liability is on the latter. This is the view which was accepted by a division bench of the Madras High Court in Sankunni Variar v. Tavazhi Karnavan and Manager Neelakandhan Nambudiripad ((1943)2 M.L.J. 127) where Leach, C.J. after adverting to the definition of the term 'michavaram' in S.3(q) of the Malabar Tenancy Act observed that,

"the jenmi under the revenue law is assessed and is made liable for payment of the land revenue. Therefore when a kanomdar undertakes to pay the land revenue, he undertakes to pay it on behalf of the jenmi and what is so paid is michavaram".

Counsel for the plaintiffs attempted to distinguish that case as the kanam deed has set out an estimate of the gross rent of the properties. But the learned Chief Justice himself observed, that this did not affect the provision for the payment of revenue contained in the document. S.76 of the Transfer of Property Act was also adverted to. My attention was drawn to the judgment of a learned single judge of this court in S.A. 81 of 1955 (M) in which the facts appear to be slightly different. There the mortgage was of the kanam interest and contained a stipulation for the payment of jenmi's dues by th