The otti and kuzhikanom transaction was held to be a mortgage, and the court clarified the legal nature of the transaction in relation to Act I of 1957.

1. The 1st defendant is the appellant. The suit is for redemption of an otti and kuzhikanom executed by the predecessor-in-interest of the plaintiff in favour of the predecessor-in-interest of the defendants,

evidenced by Ext. A dated 14-12-1080. The only contention that was urged before the trial court by the defendants was that Ext A was a renewal of another mortgage of 1061 and as such the defendants are entitled to the value of improvements effected on the property since 1061. The trial court decreed the suit assessing the value of improvements as S. Rs. 3,527, chakrams 9 and cash 3. The lower appellate court affirmed that decree with only a slight modification in the value of improvements enhancing the same to Rs. 3636, chakrams 5 and cash 9. In all other respects the decree of the court below was affirmed by the first appellate court. This Second Appeal is against the latter decree.

2. The main ground urged in this appeal before me by the learned counsel for the appellant is that the plaint transaction, being an otti and kuzhikanam, is either an irredeemable kanom or a lease coming

within the purview of Act I of 1957.

3. No such contention was raised either in the trial court or in the lower appellate court. Even in the memorandum of second appeal preferred in this court there is no contention that it is a lease. A ground is taken in the memorandum of Second Appeal that the courts below erred in overlooking "the most important point raised as to the irredeemable kanom demise of the property". Admittedly no such plea was ever raised in the courts below and therefore this accusation of non-consideration of the "most important point" by the courts below is absolutely unwarranted.

4. Even on the merits, the contention advanced by the learned counsel for the appellant cannot be accepted. An 'otti' as understood in this State is an anomalous possessory mortgage. It differs from a usufructuary mortgage as defined in the Transfer of Property Act, in that the mortgagor under it is personally liable for the mortgage amount and the mortgagee is to enjoy and appropriate all the profits of the property without any liability to account. The learned counsel for the appellant strenuously contended that since there is no provision for a redemption in the document it cannot be construed as a mortgage at all. The recital in the suit document is to the effect that the suit property was being conveyed to the executee as 'otti and kuzhikanam' and as consideration thereof an amount of fanams 1576 was received by the executant and that the mortgagee may enjoy the property, with right to make plantations thereon, subject to a liability to pay an annual michavaram of 13/4 fanams to the mortgagor. The very description of the transaction as an "otti and kuzhikanom" imports redeemability. In a mortgage transaction it is not necessary that an express provision should be made for redemption or surrender of the property on discharge of the mortgage amount. It is an essential characteristic of the very nature of the transaction itself.

5. The learned counsel for the appellant contended also that the expression 'kuzhikanom' would indicate that the transaction is a kanom demise. The expression 'kuzhikanom' is well-known in these parts. It has nothing to do with the distinction between a mortgage and a lease, The expression 'kuzhikanom' may be attached either to an 'otti' or to a 'lease'. It literally means the Kanom (money) for Kuzhi (digging), that is, compensation for digging and planting the land. To enable the plantations to attain a reasonable maturity a term of 12 years was popularly understood to be implied in the very expression Kuzhikanom. The appendage of the expression Kuzhikanom to a possessory mortgage or a lease therefore connoted that the tenant under that document would be entitled to hold the property for a period of 12 years and to make improvements by way of plantations thereon and to claim compensation for such improvements at r