Deed-Kanam or usufrutuary mortgage.

Judgment.-These two appeals which are against orders of remand raise a common question for determination, and that

is the construction of a certain document, Exhibit A-1, a panayam kychit, as it is called, dated 25th May, 1923. The suit

out of which these appeals arise was one for redemption on the footing that the document constituted a usufructuary

mortgage. It was resisted by the defendants on the ground that the transaction was in the nature of a kanam. The suit

was decreed by the trial Court but dismissed on appeal with the result that an application for renewal of the kanam

which had been rejected by the trial Court was ordered by the lower appellate Court.

There has been much argument advanced on both sides on this question of the construction of the document, but I think that if certain broad considerations of perspective are borne in mind the construction is not by any means one of

difficulty..

That there was a prior kanam on the expiry of which the suit document came into existence is not disputed. That an

amount of Rs.250 was fixed by the parties as purapad payable on the date of the execution of the document in question

and was in fact so paid is also common ground. Laying down for his guidance two basic principles (1) that it is more the

substance of a transaction than its name that has to be looked into for the purpose of ascertaining the true nature of the

transaction, and (2) that where the parties to a transaction with full knowledge of its legal implications have chosen to

give a particular name to the transaction which is known to law, and the document evidencing the terms of the bargain

makes it clear that the intention of the parties was to enter into such a transaction as is named by them, the Court is

bound to give effect to the plain terms and tenor of the document, unless it is shown that the terms of the bargain are

repugnant to the character of the transaction as intended by the parties, the learned District Munsif came to the

conclusion that the document in question in the present case was in the nature of a possessory mortgage. The learned

Subordinate Judge on appeal reversed him essentially under the influence of the impression, which is not warranted by

the document itself, that although the parties intended a kanam they wanted to make it appear that it was a mortgage

and that way “to anticipate a passing of any tenancy legislation giving protection to kanamdars”. I should ordinarily be

loath to interfere on a question of construction with the view of the lower Appellate Court in any case, but where the

Courts below have differed, the question which I generally propound to myself is whether the lower Appellate Court

had sufficient reason in law which compelled it to differ from the trial Court on the construction which the latter had

placed upon the document. Applying this point of view to the present case, I have, after a careful and anxious

consideration of the arguments of counsel on both sides, arrived at the distinct conclusion that the trial Court in the

present case approached the matter from the right perspective and decided the case aright, whereas the lower Appellate

Court without sufficient warrant interfered with the conclusion arrived at by the trial Court. It follows in my opinion that

the order of the lower Appellate Court in the present case must be set aside and the decree and order of the trial Court

should be restored.

Looking at the definition of “kanam” in the Malabar Tenancy Act [section 3(1)], it is common ground that the first four

conditions stand satisfied, namely, a right in the transferee to hold the property liable for the consideration, (2) the

liability of the transferor to pay to the transferee interest on the consideration, (3) the payment of michavaram by the

transferee and (4) the right of the transferee to enjoy the property for the period provided for. As regards the fifth

condition of the definition it is argued by Mr. Krishna Wariar that it does not exist in th

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