{"id":154382,"date":"1971-01-28T00:00:00","date_gmt":"1971-01-27T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/mangala-kunhimina-umma-ors-vs-puthivaveottil-paru-amma-ors-on-28-january-1971"},"modified":"2015-08-09T04:34:38","modified_gmt":"2015-08-08T23:04:38","slug":"mangala-kunhimina-umma-ors-vs-puthivaveottil-paru-amma-ors-on-28-january-1971","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/mangala-kunhimina-umma-ors-vs-puthivaveottil-paru-amma-ors-on-28-january-1971","title":{"rendered":"Mangala Kunhimina Umma & Ors vs Puthivaveottil Paru Amma & Ors on 28 January, 1971"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Mangala Kunhimina Umma & Ors vs Puthivaveottil Paru Amma & Ors on 28 January, 1971<\/div>\n
Equivalent citations: 1971 AIR 1575, \t\t 1971 SCR 582<\/div>\n
Author: A Ray<\/div>\n
Bench: Ray, A.N.<\/div>\n
           PETITIONER:\nMANGALA KUNHIMINA UMMA & ORS.\n\n\tVs.\n\nRESPONDENT:\nPUTHIVAVEOTTIL PARU AMMA & ORS.\n\nDATE OF JUDGMENT28\/01\/1971\n\nBENCH:\nRAY, A.N.\nBENCH:\nRAY, A.N.\nMITTER, G.K.\n\nCITATION:\n 1971 AIR 1575\t\t  1971 SCR  582\n\n\nACT:\nKerala Land Reforms Act 1964, s. 2(22)-Kanam'-Definition of-\nDocument  purporting to be kanam whether lease or  mortgage-\nTests Description in document not sufficient guide.\n\n\n\nHEADNOTE:\n The  document Ex.  B-6 in so far as it related to  the\t suit\n lands\tpurported  to be a kanam executed in  favour  of  the\n predecessor-in-interest  of  the present appellants  by  the\n predecessors-in-interest  of the present  respondents.\t  The\n document  had a counter-part Ex.  A-1.\t The suit  was\tfiled\n for  the redemption of the kanam on payment of the  mortgage\n debt.\tThe appellants contended in defence that Ex.  B-6 was\n not a mortgage deed but a lease and, therefore, there was no\n right\tto  redeem.   One of the incidents of  the  kanam  as\n defined in s. 2(22) of the Kerala Land Reforms Act, 1964 was\n the  \"payment of michavaram or customary dues on renewal  on\n the  expiry of any specified period\".\tAgainst the  decision\n of  the  Kerala  High Court in\t favour\t of  the  plaintiffs-\n respondents, the present appeal was filed by special  leave.\n The   only  question  for  consideration  was\twhether\t  the\n appellants  were  protected against eviction  by  reason  of\n their\tcontention  that  Ex.  B-6 created  a  tenancy.\t  The\n decision   of\tthis  question\tdepended  upon\tthe   further\n consideration whether the provision in Ex.  B-6 for  payment\n of land revenue for properties by the appellants amounted in\n law to a stipulation as rent or michavaran to the landowner.\n HELD  : (1) The mere description of the deed as  kanam\t will\n not  be  decisive of the essence of  the  transaction.\t  The\n description  of the deed by itself, isolated from the\tterms\n and  provisions  may  be misleading  or  a  misnomerq.\t  The\n circumstances\tand the conduct of the parties are  always  a\n very useful guide in ascertaining the true character of  the\n transaction.\n [587 B-C; E]\n (2)  The first and foremost element to be found for a\tlease\n is  whether there is the intrinsic intention in the  written\n document for enjoyment of the property by the transferee  in\n lieu  of rent or perquisites.\tSecondly the term of  renewal\n of  the  enjoyment would indicate the features of  a  lease.\n Thirdly  it  has  to  be found\t out  whether  there  is  any\n provision for payment .of customary dues. [587 R; 588 Al\n The  dominant\tfeature of the mortgage\t transaction  on  the\n other\thand will be ascertainment of the ratio of the\tvalue\n of land to the amount advanced.  It the ratio of the  amount\n advanced bears a substantial proportion to the value of  the\n property transferred it would be a strong piece of intention\n and  circumstance  to\tindicate loan and  a  mortgage.\t  The\n provision  entitling the transferee to ask for a  return  of\n money\tby  sale of the property would be  a  very  important\n feature  to  indicate that the transaction is a loan  and  a\n mortgage and not a lease.  The absence of such a  provision,\n however  would\t not totally repel the transaction  to\tbe  a\n mortgage.   The  execution of counter-part  is\t sometimes  a\n common feature in the case of possessory mortgage though the\n existence of a counter-part by itself will not be conclusive\n of the question. [588 B-D]\n 583\n (3)  The High Court correctly held that a mere direction  to\n pay  therevenue of the property by the grantee\t particularly\n when  no payment is stipulated to be made to the grantor  or\n when the payment is not directed to be made out of  anything\n which is due or payable to the grantor, cannot be considered\n as a payment or rent or michavaran to the grantor. [588 G]\n (4)  In  the  present case the features which\tfavoured  the\n construction  of the transaction to be a mortgage and not  a\n lease\twere;  first  there was\t no  provision\tfor  renewal;\n secondly  there  was no provision for payment\tof  customary\n dues;\tthirdly\t the  property\twas  to\t be  enjoyed  by  the\n defendants.  by  way  of interest  on\ttheir  advance\tafter\n payment  of land tax to the State; fourthly the  payment  of\n land  tax  was\t not a deduction from  rent  or\t perquisites;\n fifthly there was a provision for surrendering the  property\n with  a registered release at the cost of the transferee  on\n the  receipt of the consideration of kanam and\t the  balance\n amount;  sixthly  when the consideration was paid  back  the\n counter-pattam deeds and prior deeds would he returned;, and\n finally  there was liability to pay interest on the  advance\n and possession and enjoyment of the property  was in lieu of\n interest.   The proportion of the amount advanced under  Ex.\n B-6 to the value of the property was also, substantial\t [589\n E-G-, A-C]\n Parameswaran  Embranthiri  v.\tNarasimha  Nambudri,   [1962]\n K.L.T.\t  404,\tSankunni  Variar  &  Ors.   v.\t Neelakandhan\n Nambudripad  & Ors., I.L.R. [1944] Mad.  Z54.\t Cherumanalil\n Lakshmi  &  Ors. v. Mulivil Kunninamkandy Narayani  &\tOrs.,<\/a>\n [1967]\t S.C.R. 314, Kunhiparan v. V. Naicken & Ors.,  [1967]\n K.L.T.\t 646  and Kunhirama Nambiar v. Pairu  Kutruo,  [1969]\n K.L.T. 62, referred to.\n Hussain Thangal v. Ali, [1961] K.L.T. 1033, approved.\n Patel\tBhuder\tMayji etc. v. Jat Mamdaji  Kalaji  (deceased)\n through L.. Rs.  Jat Singh Khan Mamdaji etc. [1969] 3 S.C.R.\n 690, applied.\n\n\n\nJUDGMENT:\n<\/pre>\n
 CIVIL APPELLATE JURISDICTION : Civil Appeal No. 980 of 1967.
\n Appeal by special leave from the decree dated the March  29,
\n 1967 of the Kerala High Court in Second Appeal Suit No. 374.
\n of 1965.\n<\/p>\n
 T.   Narayanan\t  Nambyar  and\tA.  V.\tV.  Nair,   for\t  the
\n appellants.\n<\/p>\n
 K.   T. Harindranath and A. S. Nambyar, for respondents Nos.\n<\/p>\n
 1    to 4 and 6(1) and 6(2).\n<\/p>\n
 The Judgment of the Court was delivered by
\n Ray, J.-This is an appeal by special leave against the judg-
\n ment  dated  29  March, 1967 of the, High  Court  of  Kerala
\n confirming the decree of the lower appellate Court declaring
\n that the sum of Rs. 1000\/- is due to defendants No. 10 to 17
\n as legal representatives of defendant No. 2 on the  mortgage
\n mentioned  in\tthe  plaint and that  the  plaintiffs  having
\n deposited  the\t said sum of Rs. 1000\/- on the\tfile  of  the
\n Court of the Munsif, Cannanore, the defendants No. 10 to  17
\n do surrender quiet and peaceable possession of the  property
\n described  in\tthe plaint to the plaintiff No.\t 7  with  all
\n documents  relating to the property in their possession  and
\n further that the defendants No. 10 to 17 do pay to the
\n 584<\/span>
\n plaintiff No. 7 half of the mesne profits from 22  December,
\n 1953 till the date of surrender of possession.
\n The relevant documents are Ex.\t B-6 and Ex.  A-1.  Ex.\t  B-6
\n is a kanam-kuzhikanam.\t Ex.  A-1 is its counter-part.\t They
\n are  both  dated 1 December, 1941.   The  transaction\tthere
\n undere is a ,composite one, a kanam in respect of taks I  to
\n 3 of item I which constitute properties in suit and a\tkanam
\n kuzhikanam  in respect of tak 4 of item I and item  2\twhich
\n are not the subject matter of this suit.  The kanamdars  are
\n defendants No. I and 2. In partition under Ex. 3 the  rights
\n under\tEx.   B-6  have\t been  divided\tequally\t between  the
\n defendants  No. I and 2 but the properties as such  are  not
\n divided.  The appellants being the legal representatives  of
\n ,defendant  No.  2  had  thus an  undivided  moiety  in  the
\n properties in suit.  The original plaintiff was an  assignee
\n of the jennii (the land owner) who granted Ex.\t B-6.  On the
\n death\tof the original plaintiff, her interest\t devolved  on
\n plaintiffs No. 2 to 6 who assigned the same to plaintiff No.\n<\/p>\n
 7. The suit is for redemption of the kanam on the properties
\n in  suit.   Subsequent\t to  the  institution  of  the\tsuit,
\n defendants  No.  3 to 9 being the legal  representatives  of
\n defendant  No. 1 and being respondents No. 7 to 13  in\t this
\n appeal\t surrendered  their  moiety in\tthe  suit  kanam,  to
\n plaintiffs  No. 2 to 6 and thereafter the suit proceeded  in
\n regard\t to  the  moiety  of  the  kannam  that\t belonged  to
\n defendant  No. 2 and his legal representatives. namely,  the
\n appellants.\n<\/p>\n
 The  only question in this appeal is whether the  appellants
\n are protected against eviction by reason of their contention
\n that  Ex.  P-6 created a tenancy or whether the  respondents
\n were entitled to possession of the properties, by reason  of
\n their\trival  contention  that\t Ex.   B-6  was\t a   mortgage
\n transaction and the respondents were entitled to redeem  the
\n mortgage on the expiry of the stipulated period.
\n The  Malabar Tenancy Act, 1929 was in force at the  time  of
\n the  institution  of the suit but it is common round  that
\n rights and liabilities of the parties are to be judged under
\n the  Kerala  Land  Reforms  Act’,  1964  by  reason  of  the
\n provisions contained in section Kerala Act of 1964\twhich
\n defines kanam are as follows :-\n<\/p>\n
 “(22) ‘kanam’\tmeans the transfer for consideration, in
\n money or in kind or in both, by a landlord of an interest in
\n specific  immovable  property\tto  another  person  or\t  the
\n latter’s  enjoyment,  whether\tdescribed  in  the   document
\n evidencing  the  transaction  as kanam\t or  kanapattam,  the
\n incidents of which transfer include-\n<\/p>\n
 (a)……………………\n<\/p>\n
 (b)  ………………………….\n<\/p>\n
 585<\/span><\/p>\n
 (c)  payment of michavaram or customary dues, or renewal  on
\n the expiry of any specified period……..”
\n It is indisputable that a kanam within the above ‘definition
\n involves payment of michavaram or customary dues or  renewal
\n on the expiry of any specified period. ln Ex.B-6 there is no
\n provision for renewal or for payment of customary dues.  The
\n pre-eminent  question\tis whether there is a  provision  for
\n payment  of michavaram.  Broadly stated, Ex.B-6 executed  by
\n defendants  No. 1 and 2 stipulated that they would  pay  the
\n kanam\tof Rs. 1400 charged on taks I to 3 of item No.\tI  in
\n the Schedule to Ex.B-6 to the 7 persons Narayani and  others
\n and  their representatives and redeem the same and hold  the
\n said  taks I to 3 of item No. I as kanam and tak 4 and\t item
\n No.  2 as kanam-kuzhikanam, paying the land revenue for  the
\n properties  and  enjoy them for interest on the  kanam,  and
\n after\tthe  term of 12 years when the kanam  of  Rs.  2000\/-
\n charged  on  taks  I  to 3 of item No.\t 1  was\t offered  the
\n defendants  shall receive and surrender the properties\t with
\n basic documents by a registered release at their costs.   No
\n rent  is  stipulated for the property\tin  consideration  of
\n advance of Rs. 2000\/whereof Rs. 1400\/- was to be paid to the
\n prior\tmortgagees  on taks I to 3 of item No.\t1.  The\t suit
\n properties in Ex.B-6 were to be enjoyed by defendants No.  I
\n and  2\t for interest on their advance after payment  of  the
\n land tax to the State.\n<\/p>\n
 It  therefore\tfalls  for consideration as  to\t whether  the
\n provision  in\tEx.B-6 for payment of land  revenue  for  the
\n properties by the appellants amounts in law to a stipulation
\n as rent or michavaram to the land owner.  Counsel on  behalf
\n of the appellants relied on the decision of the Kerala\t High
\n Court\tin Parameswaan Emranthiri v.  Narasimba\t Nambudiri(1)
\n and  the earlier Bench division of the Madras High Court  in
\n Sankunni Varriar & Ors. v. Neelakandhan Nambudripad Ors. (2)
\n in  support of the proposition that payment of land  revenue
\n would amount to payment of rent, up.\n<\/p>\n
 In the Madras Bench dicision in Sankunni’s case (supra)  the
\n kanam\tdeed was for 36 years and the deed provided that  the
\n jenmi\tshould\treceive inter alia an annual rental of\t41  1
\n paras,\t 4 idangalis and one nazhi of paddy and gingerly  oil
\n to  the value of six rupees.  The kandamdaras were  required
\n by  the  deed in Sankunni’s (supra) case to pay out  of  the
\n gross rent to the Government what became due by way of\t land
\n revenue.   The actual words in the kanam deed were that  the
\n pattam\t (gross rent) of the property demised was 2507\tparas
\n of  paddy and the kanamdars were to hold the  properties  in
\n their\tpossession  and enjoyment and pay to jenmi  a  pattam
\n (rent)\t of 411 paras, 4 idangalis, I nazhi of paddy, of  the
\n money value of Rs. 138\/- inclusive of paras vasi (allowance
\n (1) [1962]K.L.T.404
\n (2) I.L.R. [1944] Mad. 254
\n 586<\/span>
\n for   difference  of  measurement)  duly  dried,   winnowed,
\n cleaned, .conveyed to the jenmi’s residence and measured out
\n by their 40 nazhis para, after deduction of the interest due
\n on the mortgage amount and the assessment on the  properties
\n due  to  the  Government from the said\t rent  together\t with
\n sundry payment of one para, two idanglis of gingelly oil  of
\n the  value  of\t Rs.  6, within the  30th  of  Makaram\t(10th
\n February)  of each year commencing with the year  1069\t M.E.
\n (1893-94) and duly take receipt therefor.
\n In  Sankunni’s\t case  the land revenue was  increased\tas  a
\n result of resettlement.  The question was whether the burden
\n of  the  increased  revenue fall upon\tthe  jenmi.   It  was
\n contended  in Sankunni’s(1) case that inasmuch as there  was
\n reference  in\tthe deed to gross yield of the land  and  the
\n jenmi\twas  to\t receive  his rent  after  deduction  of  the
\n interest due on the mortgage and the Government revenue, the
\n intention  was to fix the kanamiars’ liability on the\tbasis
\n of the revenue payable to the Government on the date of  the
\n kanam.\t  If the revenue payable was to be increased  it  was
\n said  in that case that the jenmi was to be responsible  for
\n the payment of the additional amount.\n<\/p>\n
 The  entire ratio in Sankunni’s(1) case was first  that  the
\n liability of the jenmi was for the revenue and secondly, the
\n kanamdar  was\tto deduct from the rent the interest  on  the
\n mortgage amount and the assessment on the properties due  to
\n the Government.  The decision of the learned Single Judge of
\n the  Kerala  High Court in Parameswaran’s(2) case  was\t that
\n recital  in  the  deed\t that the  defendant  was  to  be  in
\n possession of the properties and was to pay the revenue  out
\n of  the income and appropriate the balance towards  interest
\n on  the amount of the advance amounted to a stipulation  for
\n payment of revenue as michavaran or rent.  In\tSankunni’s(1)
\n case  the  direction to pay revenue out of the rent  of  the
\n property which was due to the landlord was justifiably\t held
\n to  be a payment on behalf of the landlord because it was  a
\n part  of the michavaram.  That reasoning could not apply  to
\n Parames  waran’s(2)  case  because in that  case  there  was
\n neither any fixation of rent nor any stipulation for payment
\n of rent or michavaram to the landlord.\n<\/p>\n
 This  Court in Cherumanalil Lakshmi & Ors v.  Mlilivil\t Kum-
\n njnamkandy  Narayani  &  Ors.(3) considered  as  to  when  a
\n transaction   would   be   kanam-kuzhikanam   and   when   a
\n usufractuary  mortgage.  In each case it manifestly  depends
\n entirely on the terms of the transaction.  In Lakshmi’s case
\n there\twas a demise of land with fruit bearing trees for  24
\n years.\t  The  transfer “,as for the enjoyment of  land\t with
\n trees.\t The kanam amount was
\n (1) I.L.R. [1944] Mad. 254.\n<\/p>\n
 (2) [1962] K.L.T. 404.\n<\/p>\n
 (3)  [1967] 1 S.C.R. 314
\n 587<\/span>
\n Rs.  50001-  in one case and Rs. 600\/- in  the\t other.\t  The
\n transferees  were entitled to appropriate the income of  the
\n land in lieu of interest on the kanam amount and to hold the
\n land even after the expiry of 24 years until the payment  of
\n the kanam amount and the value of the trees planted by them.
\n It  was therefore found that all the ingredients  of  kanam-
\n kuzhikanam  were  satisfied.\tThe test  to  be  applied  is
\n whether  the purpose of the transaction is enjoyment of  the
\n property  by  the transferee or whether it  is\t intended  to
\n secure the repayment of debt by transfer of interest in  the
\n property.\n<\/p>\n
 The  mere description of the deed as  kanam-kuzhikanam\t will
\n not  be  decisive of the essence of  the  transaction.\t  The
\n description  of deed by itself isolated from the  terms  and
\n provisions may be misleading or a misnomer.
\n Counsel for the respondents relied on the Bench decision  of
\n tile Kerala High Court in Kunhiparan v. V. Naicken & Ors(1).
\n in  support  of the proposition that payment  of  perquisite
\n would\tindicate that the relationship was that of  land-lord
\n and  tenant  and  the\tname of the  document  would  not  be
\n sufficient to displace the real terms.\t In Kunhiparan’s case
\n the  transaction was described as a kudiyiruppu to have  the
\n flavour of a mortgage but the court found the transaction by
\n the  terms, provisions and intention of the parties to be  a
\n lease and not a mortgage.\n<\/p>\n
 The circumstances and the conduct of the parties are  always
\n a  very useful guide in ascertaining the true character  and
\n content  of  the transaction.\tCounsel for  the  respondents
\n relied\t on the Full Bench decision of the Kerala High\tCourt
\n in Kunhirama Nambiar v.Pairu Kurup(2) where the document was
\n a kanayadharam and in spite of its nomenclature it was\t held
\n to  be a mortgage and not a kanam.  The elements  which  are
\n usually considered relevant to find out the intention of the
\n parties, are first, the proportion of the amount advanced to
\n the  value of the security; secondly, the rate\t of  interest
\n payable  on  the  sum advanced; thirdly, the  absence\tof  a
\n provision  for making improvements   and the  proportion  of
\n the   rent   or  ‘purapad’  to\t the  income   reserved\t  for
\n appropriation\t towards   interest;   and   fourthly,\t  the
\n surrounding  circumstances at the time of  the\t transaction,
\n namely, that the tarward was at the time of the execution of
\n the  document\tin dire need of money to discharge  debts  to
\n indicate that the transaction was intended to be a  mortgage
\n and not a lease.  It will always be a significant feature in
\n a  document as to whether the jenmom right of the tarwad  in
\n the properties has been secured for the kanartham by way  of
\n mortgage.\n<\/p>\n
 The  first and foremost element to be found for a  lease  is
\n whether  there\t is the intrinsic intention  in\t the  written
\n document for en-\n<\/p>\n
 (1) [1967] K.L.T. 646.\t       (2) [1969] K.L.T. 62.\n<\/p>\n
 588<\/span><\/p>\n
 joyment of the property by the transferee in lieu of rent or
\n perquisites.  Secondly, the term of renewal of the enjoyment
\n would\tindicate the feature of a lease.  Thirdly, it has  to
\n be  found out whether there is any provision for payment  of
\n customary dues.  Ile learned Single Judge in the decision of
\n the  Kerala High Court in Hussain Thangal v. Ali(1)  rightly
\n said  that  the use of words like ‘pattam’  meaning  profits
\n would\tbe  a strong indication of the transaction  to\tbe  a
\n lease and not a mortgage.\n<\/p>\n
 The dominant features of a mortgage transaction on the other
\n hand would be the ascertainment of the ratio of the value of
\n land  to  the amount advanced.\t If the ratio of  the  amount
\n advanced bears a substantial proportion to the value of  the
\n property transferred it would be a strong piece of intention
\n and  circumstance  to\tindicate  loan\tand  a\tmortgage.   A
\n provision  entitling the transferee to ask for a  return  of
\n money\tby  sale of the property would be  a  very  important
\n feature  to  indicate\tthat  transaction is  a\t loan  and  a
\n mortgage and not a lease.  The absence of such a  provision,
\n however,  would  not totally repel the transaction to\tbe  a
\n mortgage.   The  execution of counter part  is\t sometime  as
\n common feature in the case of possessory mortgage though the
\n existence of a counterpart by itself will not be  conclusive
\n of the question.\n<\/p>\n
 The deed understood in the light of the surrounding  circum-
\n stances   will\t  provide  the\tanswer\tin  the\t  facts\t  and
\n circumstances\tof each case.  In the present case,  emphasis
\n was  placed by counsel for the appellants on the payment  of
\n Government  revenue by the transferee.\t This Court in\tPatel
\n Bhunder Mayji etc. v. Jat Mamdaji Kalaji (deceased)  through
\n L. Rs.\t Jai Saheb Khan Mamdaji(2) etc. .,aid that payment of
\n revenue  and other dues to the State, would not  clothe  the
\n occupants  with  the  right  of  the  tenants.\t  Ordinarily,
\n mortgagees  under section 76(c) of the Transfer of  Property
\n Act in the absence of a contract to the contrary pay out  of
\n the  income of the property the Government revenue  and  all
\n other charges of a public nature during their possession  of
\n such  land.   The High Court in the present  case  correctly
\n said  that stipulation in the deed of payment of  Government
\n revenue  by the transferee was “that by virtue of the\tgrant
\n the  liability to pay revenue is transferred to the  grantee
\n and  the  grantee  who\t had  accepted\tthe  grant  and\t  the
\n liability,  when  he pays the revenue, pays it\t on  his  own
\n behalf”.   The\t High Court also correctly held that  a\t mere
\n direction to pay the revenue of the property by the grantee,
\n particularly when no ment is not directed to be made out  of
\n anything  which is due or payable to the grantor, cannot  be
\n construed as a payment or rent or michavaram to the grantor.
\n The proportion between the amount advanced and the value  of
\n the property is one of the important tests to be taken\t into
\n con-\n<\/p>\n
 (1) [1961]K.L.T.1033.\n<\/p>\n
 (2) [1969] 3 S.C.R.690.\n<\/p>\n
 589<\/span><\/p>\n
 sideration in deciding the nature of the transaction.\tWhere
\n the  amount advanced bears a substantial proportion  to  the
\n value of the property it is an important element  indication
\n that the intention was the creation of a mortgage and not  a
\n tenancy.   In\tthe present case, the amount  for  which  the
\n properties  included  in  Ex.B-6  were\t sold  to  the\tfirst
\n plaintiff  under  Ex.A.2  was Rs. 5000\/- out  of  which  Rs.
\n 2500\/-\t was to go in discharge of the amount  under  Ex.B-6.
\n The advance, therefore, bore a substantial proportion to the
\n value\tof the property.  This feature when considered\talong
\n with  the fact that the document did not provide payment  of
\n any annual purapped to the jenmi and that the annual  amount
\n was  directed\tto be paid as revenue of the  property\twhich
\n came  to  Rs. 10-4-0, a paltry recurring  annual  liability,
\n would\tbe an additional reason to support the\tintention  of
\n the  parties that the transaction was a mortgage and  not  a
\n tenancy.\n<\/p>\n
 It  is\t significant  that  after  the\texecution  of  Ex.B-6
\n defendants ,No.  I and 2 entered into a partition  agreement
\n evidenced   by\t Ex.   A-3.   The  partition  deed   included
\n transactions  called  kanam  other  than  the\tdisputed  one
\n forming  the subject matter of the suit.  In almost all  the
\n properties held under kanam there was division by metes  and
\n bounds,  but  with regard to Ex.B-6 and the  amount  of  Rs.
\n 2000\/-\t there\twas no division by metes  and  bounds.\t This
\n would also point to the conclusion that the defendants No. 1
\n and 2 never treated Ex.B-6 as creating a tenancy.
\n In   the  present  case  the  features\t which\t favour\t  the
\n construction  of the transaction to be a mortgage and not  a
\n lease\tare : first, that there is no provision for  renewal;
\n secondly,  there  is no provision for payment\tof  customary
\n dues;\tthirdly,  the  property\t was to\t be  enjoyed  by  the
\n defendants by way of interest on their advance after payment
\n of land tax to the State, fourthly, the payment of land  tax
\n is not a deduction from rent or perquisites; fifthly, there
\n is  a\tprovision  for\tsurrendering  the  property  with   a
\n registered  release  at the cost of the transferees  on  the
\n receipt  of  the  consideration of  kanam  and\t the  balance
\n amount;  sixthly,  when the consideration is paid  back  the
\n counter-pattam deeds and prior deeds would be returned;  and
\n finally,  there is liability to pay interest on the  advance
\n and  possession and enjoyment of profits of the property  is
\n in lieu of interest.\n<\/p>\n
 For these reasons we are of opinion that the High Court  was
\n correct   in  its  conclusion\tas  to\tthe  nature  of\t  the
\n transaction  being a mortgage and not a lease.\t  The  appeal
\n fails and is dismissed with costs.\n<\/p>\n
 G. C.\t\t\t\t\t\t       Appeal\n dismissed\n 590<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Mangala Kunhimina Umma & Ors vs Puthivaveottil Paru Amma & Ors on 28 January, 1971 Equivalent citations: 1971 AIR 1575, 1971 SCR 582 Author: A Ray Bench: Ray, A.N. PETITIONER: MANGALA KUNHIMINA UMMA & ORS. Vs. RESPONDENT: PUTHIVAVEOTTIL PARU AMMA & ORS. DATE OF JUDGMENT28\/01\/1971 BENCH: RAY, A.N. BENCH: RAY, A.N. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-154382","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nMangala Kunhimina Umma & Ors vs Puthivaveottil Paru Amma & Ors on 28 January, 1971 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/mangala-kunhimina-umma-ors-vs-puthivaveottil-paru-amma-ors-on-28-january-1971\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Mangala Kunhimina Umma & Ors vs Puthivaveottil Paru Amma & Ors on 28 January, 1971 - 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