The distinction between a lease with a premium and a usufructuary mortgage depends on the nature of the money paid and the transfer of possession for the purpose of securing the repayment of the loan.

1. This second appeal is by the defendants 1 and 3 against an appellate order of the court below, in execution of the decree, that the defendants are not entitled to the benefit of the Holdings (Stay of Execution Proceedings) Act VIII of 1950, though the execution court had held otherwise.

2. The question depends on the proper construction of the deed, filed in the trial side as Ext. B and incorporated among the execution records, under which the defendants came into possession. The Munsiff was of the opinion that it embodied a kanapattom transaction while the judge held that it was more or less a usufructuary mortgage. Having gone through the records and heard arguments of learned counsel, I am inclined to agree with the Munsiff and hold the transaction to be in the nature of a kanom and that the respondent-decree-holder is not entitled to get delivery in execution accordingly.

3. Ext. B is styled as a Pattupanayam. It mentions that the property is handed over under the panayam for enjoyment for a period of ten years to be returned on payment by the mortgagor-lessor of the advance of Rs. 25 and also the value of improvements effected on the property. During all this interval the mortgagee-lessee was to appropriate the usufruct towards the interest on his investment and also the tax due on the property and further pay 1/4 fanam to the jenmi and a similar 1/4 fanam for Yakshi Pooja. It was recited that a sum of 31/2 fanams had been levied from the tenant-mortgagee towards adukkuvathu for the document. The property consisted of 31 cents (not 15 cents as the judge observed), in which there was one yielding cocoanut tree and another non-bearing one which the transferee was called on to look after. It may be added that the improvements effected on the property was valued at 2637 and odd fanams in the decree for eviction passed in the case, and consisted of plantations and also a shed for purpose of residence.

4. There are a number of cases in the books which deal with the distinction between a lease with a premium and a usufructuary mortgage and make it turn on the aspect, whether the money paid is a loan advanced or price paid and whether possession of property is transferred for the purpose of securing the repayment of the loan.

"If the money paid is loan advanced and the transfer of possession is for the purpose of securing the payment of such loan, the transaction would be a usufructuary mortgage. But if the money is paid as a price and not as loan and there is no intention to provide any security for the repayment of a loan, the transaction would be a lease".

See the cases collected at pp. 1896 & 1897, Chitaley T.P. Act, 3rd edn. vol. 3. It is on this basis that the learned judge approached the matter and held that the transaction reflected more the relationship of lender and borrower, the interest on the loan being secured by the transfer of possession, the loon itself being repayable after a certain number of years. The Judge seems to have been impressed by the fact that the reference to the transferee's possession was made as under the panayam or mortgage and there was no reference to the pattom or rent of the property as such in any portion of the document. But it seems to me that the distinction here is not between a lease with premium and a usufructuary mortgage but what aspect predominates, lease or mortgage when the document participates in the characteristics of both. The expression Pattupanayam indicates not a pattom or panayam transaction exclusively but a combination as in the case of kanom. If the main object of the transaction is the transfer of possession for purpose of enjoyment and not merely a borrowing and provision for due payment of the loan concerned, then the lease aspect may be taken to predominate and the transaction will be held to fall within the beneficient provisions of the Act. That is to say, where otherwise the transaction is shown to be a lease, the fact that the lessor is a debtor of th