Nature of deed in which some terms different from usual terms.

The only question in this revision is whether the suit transaction is a kanam within the meaning of the Malabar Tenancy Act. A kanam is defined in section 3(l) of the Malabar Tenancy Act as follows:

“‘Kanam’ means the transfer for consideration in money or in kind or in both by a landlord of an interest in specific immovable property to another (called the ‘kanamdar’) for the latter’s enjoyment the incidents of which transfer include

(1) a right in the transferee to hold the said property liable for the consideration paid by him or due to him which consideration is called ‘Kanartham’,

(2) the liability of the transferor to pay to the transferee interest on the kanartham,

(3) the payment of ‘michavaram ‘by the transferee,

(4) the right of the tranferee to enjoy the said property for 12 years or any other period, and

(5) the liability of the transferee to pay a renewal fee to the transferor, if the transferee is permitted to enjoy the said property for a further period after the termination of the original period;”

Ex. D-1 is a registration copy of the kanam-kuzhikanam deed by C. Gopalan and another to M. P. Mannan and another. The learned counsel for the petitioner argued that the document is not a kanam as it consists of the following two terms,

(1) that in regard to Rs. 300 out of the advance of a sum of Rs. 1,000 the owner agreed to pay interest at seven and a half per cent, per annum; and

(2) that the kanamdar is given the right to bring the property to sale in case the amount is not paid within the time prescribed."

As it contains the aforesaid two terms which are not included in the definition of a kanam, it is argued that the transaction is not a kanam but a mortgage and therefore Act XVII of 1946 has no application. In Sundara Aiyar’s Malabar Law (Malabar and Aliyasanthana Law by P.R.Sundara Aiyar, 1922 Edn. at page 290), the nature of kanam tenure has been succinctly described as follows:

"Kanam is described in the Sadder Court proceedings as mortgage with possession, the mortgagee recovering interest on the money he has advanced from the produce of the land and paying the net profits (michavaram) to the landlord. It thus partakes of the character of both a lease and a mortgage. Sometimes the one character predominates; sometimes the other."

Therefore the fact that the document partakes the character of a mortgage and contains some terms other than those found in the definition of kanam does not make it any the less a kanam. If it is kanam the kanamdar certainly comes under the definition of a tenant under the Malabar Tenancy Act.

The parties described the document as kanam-kuzhikanam deed. The petitioner in the plaint gave the terms of the kanam deed and described the respondent as a kanamdar. The document contains all the material terms that are generally found in a kanam deed. The fact that the parties agreed to one or more terms which are not ordinarily found in the kanam deed will not affect the question to be decided. It, therefore, follows that the respondent is a tenant within the meaning of Act XVII of 1946 and the lower Court was right in staying the suit under that Act. This revision petition is dismissed with costs.

K.C. ----- Petition dismissed.