ORDER
K.A. Mohamed Shafi, J.
1. The 2nd plaintiff is O.S.No. 131/1966 on the file of the Munsiff’s Court, Nedumangad is the appellant. The suit was field for redemption of a mortgage dated 19th Chingam 1091 M.E. and for recovery of possession of the properties. A preliminary decree for redemption was passed on 15.7.1967 directing the plaintiffs to deposit mortgage amount of Rs.198/- and the value of improvements of Rs.3984.95 in favour of the first defendant.
2. The 28th defendant claimed tenancy right in the property and the final decree application filed by the plaintiff was dismissed by the trial court on 19.7.1971 holding that the 28th defendant has got fixity of tenure in the mortgaged property. The plaintiffs preferred A.S. No. 103/1972 before the Principal Sub Court, Trivandrum and the appellate court by judgment dt. 23.2.76 set aside the final judgment and decree and remanded the case to the trial court directing to consider Ext.P2 in the light of the decision of this Court reported in Velayudhan Vivekanandan v. Ayyapan Sadasivan (1975 KLT 1).
3. During the pendency of A.S. No. 103/72 all the properties except plaint ‘C’ Schedule items 3 and 4 were surrendered by the original mortgagee to the first plaintiff. After remand the trial court against decreed the suit for redemption holding that the 28th defendant has no tenancy right in the property. The 28th defendant preferred A.S. No. 261/78 before the District Court, Trivandrum and the District Court allowed the appeal and set aside the final decree in so far as item Nos. 3 and 4 of plaint ‘C’ schedule claimed by the 28th defendant. Hence the 2nd plaintiff has preferred this second appeal.
4. The lower appellate court found that the 28th defendant is entitled to Ottikuzhikanam right as defined under S.2(39A) of the Kerala Land Reforms Act. The entire plaint schedule properties were mortgaged by the first plaintiff as per Ext. P1 mortgage dt. 10th Medam 1074 for 1000 fanams. That mortgage was redeemed and a fresh mortgage deed was executed as Ext.P2 dated 10th Chingam 1091 M.E. for 7000/- fanams in favour of the mortgagee under Ext.P1 and two others. Out of the mortgage amount of 7000/- fanams, 1000 fanams were to redeem the mortgage, 2500/- fanams were for payment of value of improvement to the mortgagee under Ext.P1 and the balance amount was adjusted towards another loan due from the mortgagor to the mortgagee. The 28th defendant is the transferee from a sub mortgagee under Ext.P1 mortgagee in respect of two items of properties comprised therein. The mortgagee in Ext.P1 had created a sub mortgage in respect of these two items and that sub mortgagee executed assignment deed in favour of the 28th defendant, as per Ext.B1 dated 27.4.64. At the time of execution of Ext.P2 that sub mortgage was subsisting and those two items of properties comprised in the sub mortgage are plaint ‘C’ Schedule items 3 and 4 properties. The only dispute now subsisting is in respect of those two items of properties.
5. The substantial question of law that arise for consideration in this S.A. are (1) whether the appellant is entitled to tenancy right as provided under S.2(39A) to the Kerala Land Reforms Act as amended in respect of the plaint schedule property as per Ext.P2 mortgage. (2) Whether the appellant who is an assignee of a portion of the mortgage property by the sub mortgagee created by the original mortgagee are per Ext.P2, is entitled to claim tenancy right in the plaint schedule property under the KLR Act as amended.
6. The appellant has contended that Ext.P2 evidences only a mortgage and not an Ottikuzhikanam lease as contemplated under S.2(39A) of the Kerala Land Reforms Act as contended by the 28th defendant. Senior counsel for the appellant submitted that in anomalous mortgages involving a composite transaction of this nature where elements of mortgage and lese are present dominant or essential purpose of the transaction has to be ascertained in order to determine the true of the transaction and this is the dictum laid down by the Full Bench of this Court in the decision reported in Velayudhan Vivekanandan v. Ayyapan Sadasivan (1975 KLT 1).
7. S.2(39A) of the Kerala Land Reforms act defines Ottikuzhikanam which reads as follows:-
“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.”
8. Therefore Ottikuzhikanam as per S.2(39A) of the KLR Act is a transfer for consideration of any land for enjoyment of the land and for the purpose of making improvements thereon. Therefore the appellant contended that the 28th defendant being the assignee from another sub mortgagee cannot claim protection under the provisions of S.64 of the KLR Act as tenant.
9. Counsel for 28th defendant submitted that the mortgage in favour of the 28th defendant will come within the provisions of S.4a(1) of the KLR Act. A.4A of the KLR Act reads as follows:-
“Certain mortgagees and lessees of mortgagees to be deemed tenants-
(1) Notwithstanding anything to the contrary contained in any law or in any contract, custom or usage, or in any judgment, decree or order of court, a mortgagee with possession of land, other than land principally planted with rubber, coffee, tea or cardamon, or the lessee of a mortgagee of such land shall be deemed to be a tenant if
(a) the mortgagee or lessee was holding the land comprised in the mortgage for a continuous period of not less than fifty years immediately proceeding the commencement of the Kerala Land Reforms (Amendment) Act, 1969 or
(b) the mortgagee or lessee has constructed a building for his own residence in the land comprised in the mortgage and he was occupying such building for such purpose for a continuous period of not less than twenty years immediately preceding such commencement.”
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But in the written statement the 28th defendant has not raised any contention that he is a deemed tenant under S.4A of the KLR Act. He has not raised any such contention before the appellate court also. Therefore the contention raised by the 28th defendant claiming tenancy under S.4A of the Kerala Land Reforms Act cannot be entertained in this Second Appeal.
10. The contention raised by the 28th defendant in the written statement is that she is entitled to tenancy right under S.2(57) of the KLR Act. S.2(57) of the KLR Act reads as follows:
“Tenant means any person who has paid or has agreed to pay rent or other consideration for his being allowed to possess and enjoy any land by a person entitled to lease that land, and includes-
(a) the heir, assignee or legal representative of, or any person deriving rights through, any such person who has paid or has agreed to pay rent or other consideration;
(aa) an intermediary;
(b) a kanamdar,
(c) a kanam-kuzhikanamdar
(d) a kuzhikanamdar
(dd) an ottikuzhikanamdar”.
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11. It is not in dispute that the property comprised in Exts. P1 and P2 mortgage deeds was of an extent of 9 cents and during the pendency of A.S. No. 108/1972 the original mortgagee surrendered possession of 7 cents of the property to the plaintiff except two cents of property now in the possession of the 28th defendant with building thereon. The mortgage under S.58 of the Transfer of Property Act is transfer of interest in immovable property to secure the money advanced. But Ottizkuzhikanam as defined under S.2(39A) of the KLR Act as noted above is transfer of land for enjoyment and for making improvement.
12. In the decision reported in Velayudhan Vivekanandan v. Ayyapan Sadasivan (1975 KLT 1) the document came up for consideration before the Full Bench was styled as an Otitkuzhikanam. It that document the Full Bench found that all but one of the six items of consideration mentioned in the document were borrowing, and the 6th one was also a borrowing though only for the purpose of meeting the expenses for the execution of the document. The amount borrowed is 6601 fanams. The land that was the subject matter of the transaction had only an extent of 43 cents. The amount of consideration that was received almost represented the value of the property at that time considering its location. There was no provision either for payment of any michavaram, rent or pattom. The direction to pay the Sirkar tax in the document cannot be treated to be other consideration. The provision in the document that the value of improvements will be paid is not inconsistent with a mortgage. Therefore the document created a relationship of debtor and creditor and that the transfer of possession was by way of security and it was a mortgage within the meaning of Transfer of Property Act. Therefore the application of S.2(39A) of the KLR is ruled out in that case. As already noted in a composite transaction where elements of mortgage and lease are present dominant or essential purpose should be found it. It is also held in that judgment that the nomenclature of the document as Ottikuzhikanam is not conclusive in determining the nature of the transaction.
13. In all usufructuary mortgages or anomalous mortgages enjoyment of the property is an incident of transfer but not the purpose or object of the transfer. In this case, as already noted Ext.P1 mortgage was executed for 1000 fanams and subsequently Ext. P2 mortgages was executed for 7000 fanams and out of that consideration 1000 fanams is used to redeem Ext. P1 mortgage, 25000 fanams to pay value of improvements to the mortgagee and the balance 3500 fanams is to discharge another debt due to the mortgagee. The property mortgaged is of a total extent of 9 cents. Though the consideration for the mortgage in 1974 was 1000 fanams for subsequent mortgage Ext. P2 in the year 1091 M.E. the consideration is 7000 fanams. There is no direction to pay michavaram by the mortgagee. It is not contended that the value of the property at the time of Ext.P2 was much more than 7000 fanams and the amount of 7000 fanams is representing value of a very small portion of the property so as to make the transaction a lease of the property for enjoyment of the land with premium and no security for the amount advanced. A reading of Ext.P2 as a whole clearly establishes that the recitals made therein create only a transaction in debt and not a transfer of interest in the property for the purpose of enjoyment. The fact that the term fixed in Ext.P2 is 45 years whereas in the case came up before Full Bench no term was fixed in that document no way makes the transaction a lease and not a mortgage as contended by the 28th defendant.
14. It is pertinent to note that the 28th defendant is claiming tenancy right in the property as assignee of the sub mortgage created by the mortgagee in Ext.P1. In the assignment deed in favour of the 28th defendant, there is reference to chittotty deed No. 387 of 1086 M.E. executed by the mortgagee under Ext.P1. That document No. 387 of 186 M.E. is not produced. Any how, it is clear that the sub mortgage right claimed by the 28th defendant is in respect of Ext.P1 mortgage sought to be redeemed as per Ext.P2 and not on the basis of Ext.P2 mortgage. Even though the lower appellate court remanded the case of the trial court on consider Ext. P2 in the light of the judgment of the Full Bench of this Court reported in 1975 KLT 1 in fact the consideration should have been Ext.P1 mortgage as the sub mortgage deed No. 387 of 1986 M.E. is created by the mortgagee thereunder. Even though the remand order passed by the lower appellate court is not challenged by the appellant, the remand order will bind only the lower appellate court and did not bind this court which is the superior court. In the decision reported in Collector of Central Excise Indore v. Hindustan Lever Ltd. (AIR 2000 SC 2907) the Supreme Court has observed as follows:
“That apart, even in law, so far as this court is concerned, it is not bound by the finding of the Tribunal rendered in the first instance while remanding the case to the lower authorities because this Court is now hearing an appeal against the order of the Tribunal in which the earlier order has merged. This Court in the case of Jasraj Inder Singh v. Hemraj Multanchand, (1977) 2SCC155= (AIR 1977SC 1011) has held in para 14 of the AIR in an appeal against the High Court’s finding the Supreme Court is not bound by what the High Court might have held in its remand order. It is true that a subordinate court is bound by the direction of the High Court. It is equally true that the same High Court, hearing the matter on a second occasion or any other court of co-ordinate authority hearing the matter cannot discard the earlier holding, but a finding in a remand order cannot bind a higher court when it hears the matter in appeal.”
15. Therefore this court can consider whether the claim made by the 28th defendant as assignee or sub mortgagee is entitled to claim tenancy right under S.2(39A) of the KLR Act. Ext. P1 and P2 are Otiikuzhikanam deed and in Ext.B1 the sub mortgage deed No. 387 of 1086 is described as chittotty meaning sub mortgage. In the decision reported in Padmanabhan Pankajakshan v Ayyappan Narayanan (1966 KLT 619) this Court has observed as follows:-
“As the mortgage is an Otti-the name as well as the operative parts of the deed expressly says so by the customary law of Travancore, recognised in precedents, a personal covenant to repay is implied in the encumbrance.”
16. Therefore in this case the transaction being entered into a Nedumanged a personal covenant to repay mortgage amount is implied in this case also. As already noted the 28th defendant has not produced the basic document 387 of 1086 mentioned in Ext.B1. The sub mortgage is entirely different from assignment of the mortgage right. The sub mortgage is a lesser right than that of the mortgage right created by the mortgagee. The mortgagee cannot create a higher right in his assignee or sub mortgagee putting fetter on right of redemption of the mortgagor under S.60 of the Transfer of Property Act. In the decision reported in Subramonia Iyer v. Pachi Amma Lekshmikutty Amma (AIR 1977 Kerala 5) this Court has observed as follows:-
“The mortgage holding the land comprised in the mortgage for a continuous period of not less than 50 years immediately preceding 1.1.1970 is a deemed tenant under this provision. Even if the mortgagee in possession was no holding the land for a continuous period of 50 years by himself or herself, the period during which the predecessor-in-interest of the mortgagee was holding the property has been directed to be taken into account in computing the period of 50 years by explanation II to that section.
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Predecessor-in-interest really means predecessor-in-title. A sub mortgagee is not a predecessor in interest or title of the mortgagee or the assignee of the mortgagee. Sub mortgagee’s possession is not possession of the mortgagee, because a sub mortgagee in his own right is entitled to be in possession until his mortgage money is paid. He is not holding the property of behalf of the mortgagor. He is not the agent of the mortgagor nor can the mortgagor say that the sub mortgagee’s possession is his possession. By redemption of the sub mortgage that right is extinguished and the mortgagee or the assignee who redeems does not become the successor-in-interest of the sub mortgagee.”
17. Therefore it is clear that the 28th defendant cannot equate his possession of the property as that o the mortgagee in this case and claim that he is the successor in interest of the mortgagee. On that ground also the contention of the 28th defendant that he is entitled to tenancy right in the property under S.2(39A) of the KLR Act is not sustainable. Therefore it is clear that the contention of the 28th defendant that he is entitled to tenancy right in the property under S.2(39A) of the KLR Act is not at all sustainable.
18. Therefore, I find that the appellant is not entitled to claim tenancy under S.2(39A) of the KLR Act the virtue of Ext.P2 mortgage in this case. I also find that the appellant who is the assignee of a portion of the mortgage property by the sub mortgagee created by the original mortgagee under Ext.P2 is not entitled to claim tenancy right under the provision of the KLR Act as amended.
19. Hence the findings arrived at by the trial court are just and proper and the findings arrived at by the lower appellate court are not at all justified in reversing the finding of the trial court. Therefore, I find that the 28th defendant is not entitled to tenancy right in the plaint schedule property. Hence this appeal is allowed. The decree and judgment passed by the lower appellate court are set aside and the decree and judgment passed by the trial court are restored.