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1959 Supreme(Ker) 151
Judges : VAIDIALINGAM
Ponnamma - Appellant
Versus
Devasia - Respondent
Case No : C. R. P. No. 879 of 1958
Decided On : 07/09/1959
Advocates Appeared :
P. Kochunny Achan; K. K. Mathew; George Vadakkel; For Petitioners Mathew Muricken; V. S. Moothathu; A. S. Nataraja Sarma; For Respondents
The intention of the parties must be looked into to determine the nature of the relationship, and the nomenclature of a document is not conclusive if the various other recitals evidence a contrary intention.
Headnote:
Stay of Proceedings - Mortgage - Kerala Act 1/1957 - S.2(1) - The court considered the document, Ex-P1, and concluded that the debtor and creditor relationship is predominant, dismissing the contention that it was a lease. The court referred to the Supreme Court's judgment in Ramdhan Puri v. Bankey Bihari (A.I.R.1958 S.C. 941) to emphasize that the intention of the parties must be looked into to determine the nature of the relationship. The court held that the document was an usufructuary mortgage and not a lease, dismissing the C.R.P. with costs.
Fact of the Case:
The defendant filed a C.R.P. to stay the proceedings in a suit for redemption under Kerala Act 1/1957, contending that the document, Ex-P1, was a lease and should be stayed.
Finding of the Court:
The court analyzed the document, Ex-P1, and concluded that the debtor and creditor relationship was predominant, dismissing the contention that it was a lease. The court referred to the Supreme Court's judgment in Ramdhan Puri v. Bankey Bihari (A.I.R.1958 S.C. 941) to emphasize that the intention of the parties must be looked into to determine the nature of the relationship.
Issues: The main issue was whether the document, Ex-P1, evidenced a mortgage or a lease, and whether the proceedings should be stayed under Kerala Act 1/1957.
Ratio Decidendi: The court emphasized that the intention of the parties must be looked into to determine the nature of the relationship, and concluded that the document was an usufructuary mortgage and not a lease.
Final Decision: The C.R.P. was dismissed with costs.
1. The point that arises for decision in this C.R.P., filed by the defendant is as to whether the proceedings in O.S. 149 of 1957, now pending before the learned District Munsiff, Changanacherry, have to be stayed under Kerala Act 1/1957.
2. The suit was for redemption of what according to the plaintiffs is of a mortgage evidenced by Ex-Pi dated 28-7-1079. According to the defendants, this document, Ex-P1 is really a lease and as such it will come under the definition of a holding under S.2 (1) of Kerala Act 1/1957. The learned District Munsiff has on a consideration of the various clauses in the document, come to the conclusion that the debtor and creditor relationship is more predominant in Ex-P1, than that of a lessor-lessee relationship. In this view, the trial court held that though the document is styled as a taAhmbv] ]m<
3. It is against this order that this revision has been filed by the defendant. Mr. K.K. Mathew, learned counsel for the petitioner, contended that the interpretation placed by the trial court on the document, Ex-Pi is not correct. According to the learned counsel, the document predominantly evidences a lessor-lessee relationship and it also shows that a lease-hold right was created in favour of the defendants and possession of the property was transferred on that basis. The learned counsel has taken me through the entire document and has also placed considerable stress on the name given to the document namely, that it is the learned counsel also has placed equally considerable stress on the expressions used therein namely: I will deal with this presently a little more in detail.
4. On the other hand, Mr. Mathew Muricken, learned counsel for the plaintiff, has supported the judgment of the trial court in full. In particular, he has also drawn my attention to the latest judgment of the Supreme Court reported in Ramdhan Puri v. Bankey Bihari (A.I.R.1958 S.C. 941) where according to the learned counsel, the principles to decide as to whether a document partakes of a creditor-debtor relationship or a landlord-tenant relationship have been laid down. Before I consider the contentions of the learned counsel on both sides, it is desirable to enumerate the salient features of the document. In my opinion, the trial court has taken considerable care to find out the several features contained in the document both for and against the contentions of the defendant and ultimately, the conclusions arrived at by that court are acceptable to me.
5. The document, as stated earlier, starts by saying that it is a The amount mentioned in the document is a sum of 17,101 Rasis received by the executant from the executees. The document also mentions the properties which are put, in my opinion, as security for loan in these words:
The possession of the properties is given to the executees. No doubt, on this point according to Mr. Mathew, even though a charge may be said to be created for the 17,101 Rasis, possession is not given by virtue of the charge but by virtue of a later recital namely that he is to enjoy the property as The next clause is that the Pattom derivable from the property is fixed in the sum of 1,893 Paras of paddy of which, 262 Paras and 7 Edangalis are allowed to be appropriated for the payment of the tax and Michavaram. Another 1,610 Paras and 21/2 Edangalis of paddy are allowed to be appropriated towards interest due on 17,101 Rasis which is covered by the document. Again, the document says that the balance Pattom of 33 Paras and 31/2 Edangalis of paddy is to be paid by the executees to the executant every year. There is another clause that the transaction is to be in force till Medom 1085 at which time, the executants will pay the sum of 17,101 Rasis and take back the properties from the executees along with the vouchers for payment of taxes and Michavaram etc.
6. These in main, are the relevant clauses, in my opinion, that have to be taken into consideration to find out what exactly is the type of
