The main legal point established is the interpretation of the nature of the document as a mortgage or kuzhikanam document, and the entitlement of the defendants to fixity of tenure and kudikidappu right under the KLR Act.

The defendants are the appellants. The suit was instituted for redemption of a mortgage executed in the year 1962 and for recovery of possession of the mortgaged property.

2. The case of the plaintiff is stated thus :

The plaint schedule property originally belonged to the first plaintiff and her husband who is the father of plaintiffs 2 to 5. Ext. A1, the document which is styled as “ottiyum kuzhikanavum” was executed by the first plaintiff and her husband on 3-7-1962 in favour of the mother of the first defendant for a consideration of ` 450/- for a period of six years. The mortgagee (the mother) assigned her mortgage right in favour of the first defendant and thereafter the first defendant and her husband who is the second defendant are in possession of the property. The period of mortgage expired. Since the defendants did not heed to the request for redemption , the suit was filed.

3. The second defendant remained ex parte. The first defendant filed written statement contending that Ext. A1 is not a mortgage but is a kuzhikanam document and that it was obtained by the mother of the first defendant for enjoyment and for residence. The mother executed a settlement deed in favour of the first defendant as per document number 1420/1976 and since then the defendants have been in possession of the property. It is further contended that they have effected improvements to the tune of ` 20,000/-. They contended that they are entitled to fixity of tenure. In the alternative, a plea of kudikidappu was also raised.

4. The question of tenancy raised by the defendants was referred to the Land Tribunal. The Land Tribunal found that the first defendant is entitled to fixity of tenure. Hence, at that point of time, the claim of kudikidappu was not considered by the Land Tribunal.

5. On the basis of the finding entered by the Land Tribunal, the learned Munsiff dismissed the suit. That was challenged in appeal, A.S. 392/1985 . The District Court allowed the appeal. The judgment and decree of the trial court were set aside and the case was remanded to the trial Court for fresh disposal. Again the question of tenancy as well as kudikidappu right claimed by the defendants was referred to the Land Tribunal. The Land Tribunal found that the defendants are not entitled to fixity of tenure nor are they entitled to purchase kudikidappu as per the provisions of the KLR Act. Based on that finding, the trial Court granted a decree for redemption on condition of deposit of `450/- being the mortgage amount and also on deposit of `2831/- being the value of improvements. Challenging the same, the defendants filed appeal. The appellate Court concurred with the findings entered by the trial Court and dismissed the appeal.

6. The learned counsel for the appellants submits :

Ext.A1 has to be construed as a kuzhikanam document since it was specifically noted that the document is “ottiyum kuzhikkanavum”. A reading of the relevant portion of Ext.A1 would make it clear that the findings entered by the courts below that it only spells out a mortgage and not a kuzhikkanam is unsustainable. Since there are specific recitals conferring right to the grantee to effect improvements and also to construct a house therein, it must certainly be held that it is a ottikuzhikanam as defined under Sec. 2 (39-A) of the KLR Act and not a mortgage and as such the findings entered by the courts below are to be set aside. The definition of 'tenant' contained in Sec. 2 (57) (dd) of the KLR Act would make it further clear that an “ottikuzhikanamdar” is also a tenant because of the inclusive definition given to the word “tenant”.

7. The following substantial questions of law arise for consideration:

i) Is not Ext.A1 an ottikuzhikanam deed as defined under Section 2 (39A) and not a mortgage within the meaning of the Transfer of Property Act ?

ii) If the first defendant was an ottikuzhikanamdar, is he not entitled to claim fixity of tenure ?

iii) Even if it is held tha