IMPORTANT POINTS:" When the mortgage right is co-extensive and inseparable as in the case of fractional right akin to `co-ownership property`, there cannot be any partial redemption of mortgage.
" Ottikuzhikanam" means a transfer for consideration by a person to another of any land other than nilam for the enjoyment of that land and for the purpose of making improvements thereon, but shall not include a mortgage within the meaning of the Transfer of Property Act, 1882.

The plaintiff is the appellant. A suit for redemption of mortgage by the mortgagor/plaintiff ended in dismissal in both the Trial Court and the First Appellate Court. Aggrieved by the said concurrent finding and decree of dismissal of suit, the plaintiffs came up with this appeal.

2. The subject matter of the suit consists of plaint schedule properties having an extent of 22 cents. The relief sought in the plaint is for redemption of the mortgage and also for declaring that Ext.A3 gift deed and Ext.A5 release deed are void. Both the Trial Court and the First Appellate Court found that Ext.A4 document is a lease deed and as such the relief of redemption of mortgage rejected concurrently.

3. The substantial questions to be addressed are:

(i) What actually amounts to the expression “Ottikuzhikanam” ? Whether it stands for lease or mortgage and whether the Trial Court and the First Appellate Court are justified in construing Ext.A4 as a lease?

(ii) What actually makes the difference between an usufructuary mortgage and a lease and what are the factors which makes the difference, when the document is styled as “Ottikuzhikanam”?

4. The plaintiffs claim that Ext.A4 is a mortgage. Ext.A3 is the gift deed executed by father of the second defendant in favour of one Ravindran Nair, who is represented in the suit by defendants 3 to 6. Ext.A3 dated 31/05/1973 is a gift in favour of Ravindran Nair with respect to a portion of property having an extent of 14 cents out of 44 cents. The second defendant executed a release deed in favour of the first defendant releasing his right over the remaining part of 30 cents of property. Ext. A4 deed dated 14/07/1962 was executed by Damodara Panicker, the original owner of the property. It is in favour of second defendant and his sisters who are the nephew and niece of Damodara Panicker. Ext.A1 is the Will left out by Damodara Panicker dated 27/03/1967. He passed away on 04/07/1968. The plaintiffs are the persons claiming under the Will. The dispute centers around the nature of Ext.A4 deed. According to the plaintiffs, it is a mortgage but it was disputed by the defendants and asserted that it is a lease arrangement.

5. While the suit was pending before the Trial Court, a reference under Section 125 of Kerala Land Reforms Act 1963 (for short the Act) was made and the issue regarding right conferred under the Act was referred to the Land Tribunal for decision. The Land Tribunal in turn found that Ext.A4 document is a lease arrangement and passed an order, granting fixity of tenure in favour of defendants. On receipt of the order from the Land Tribunal, the Trial Court accepted the same and consequently the suit was dismissed.

6. In appeal, the First Appellate Court on a re-appraisal of facts and evidence found that Ext.A4 document is not a mortgage and concurred with the finding rendered by the Land Tribunal granting fixity of tenure in favour of the defendants, consequently the appeal was dismissed, confirming the decree and judgment of the Trial Court.

7. Ext.A4 is named as 'Ottikuzhikanam Deed'. Though the nomenclature of document not decisive to adjudicate the real nature of the document/transaction, it has got its own importance as it would prima facie show the intention of the executant. The definition given to the expression 'Ottikuzhikanam' under Section 2 (39A) of the Act is extracted below for reference:

“[(39A) “Ottikuzhikanam” means a transfer for consideration by a person to another of any land other than nilam for the enjoyment of that land and for the purpose of making improvements thereon, but shall not include a mortgage within the meaning of the Transfer of Property Act, 1882;]”

(Emphasis supplied)

8. The essential ingredient which makes a mortgage or a lease is the purpose for which the arrangement was entered into and if it is for securing a debt existing, present or future either in part or in whole, the document would be essentially a mortgage. The definition given under the section f