CHERUMANALIL LAKSHMI AND ORS. versus MULIVIL KUNNINAMKANDY NARAYANI AND ORS.

Citation: [1967] 1 S.C.R. 314 · Decided: 12-09-1966 · Supreme Court of India · Bench: K.N. WANCHOO · Disposal: Dismissed
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Judgment (excerpt)

314 
CHERuMANALIL LAKSHMI AND ORS. 
v. 
MULIVIL KUNNTIIOAMKANDY NARA YANI AND ORS. 
September 12, 1966 
[K. N. WANCHOO, J.C. SHAH AND R. S. BACHAWAT, JJ.] 
Kera/a Land Rl!forms Act (l of 1964), s. 
2(23)-Ma/abar Land 
Tenures-Difiercnce between usufrucruary mortga~e and kana1n.kuzhika-
nam. 
The suits, lands, together with the fruit-bearing trees standing thereon, 
were demised for ·a period of 24 years under two documents which speci-
fied the kananham (kanam amount). The documents did not contain 
any recital that they created security for repayment of a debt nor pur-
ported to be transactions for secwing debts 
such as a morl;lage, otti, 
panayam or kyyasampanayam. The transferees were entitled to enjoy the 
lands with the standing trees, plant other fruit-bearing trees thereon, ap-
propriate the income of the lands in lieu of interest on the kmiam amounts, 
and to lwld the lands even after the expiry of 24 years until p-Jyment of 
the kanam amounts and the value of trees planted. The documenis were 
styled kanam deeds and one of them explicitly statec,1 that the demise> 
were in kanam-kuzhikanam right. Subsequent documents also all recited 
that the transactions were kanam-kuzhikana1n transactions. 
HELD : 1lJc transactions were kanam-kuzhikanam and \\1crc 
not 
lLSufructuary mortgages. 
[316 B-C] 
A kanam-kut.hikanam and a U'iufructuary mortgage have many com-
mon features. 
Both of them involve transfer of posses.ion on payment 
of money by the transferee. set off profits against interest, and retenuon of 
possession until repayment of the money. 
The essential distinction bet-
ween them is that the kanam-kuzhikananr is. a lease, and is, therefure .i 
transfer of a right to enjoy the property, whereas. a mortgage is a trans-
fer of an interest in the property for securing the repayment of a debt. 
[316 B.CJ 
B 
c 
I> 
E 
CLVIL APPELLATE JURISDICTION : Civil Appeal No. 567 of 1964. 
Appeal by special leave from the judgment and decree dated 
June 22, 1961 of the Kerala High Court in A. S. No. 243 
F 
of 1955(M). 
H. R. Gokhale and A. G. Puddissery, for the appellants. 
P. Ram Reddy, K. P. Madham Menon and A. V. V. Nair, for 
respondents Nos. 2 to 13. 
The Judgment of the Court was delivered by 
Badlawat, J. The question in this appeal is whether Ex. 
G 
A-1 dated March 26, 1900 and Ex. B-1 dated March 27, 1900 were 
kanam-kuzhikanam transactions, or whether they created usu-
fructuary mortgages. The appellants sued for redemption and 
recovery of the suit lands alleging that Exs. A-1 and B-1 created 
w;ufructuary mortgages. The respondents claimed that 
they 
H 
were kanam-kuzhikanamdars and entitled to fixity of tenure under 
s. 21 read withs. 3 (15) of the Malabar Tenancy Act, 1929 (Madras 
Act 14 of 1930). The trial Court upheld the respondents' conkn-
,-
-
-
A 
B 
c 
D 
E 
F 
G 
H 
LAKSHMI v. NARAYAN! (Bachawat, l.) 
315 
tion and dismissed the suit. Qn appeal, the Kerala High Court 
affirmed this decree. The appellants now appeal to this Court 
by special leave. During the pendency of this appeal, the Kerala 
Land Reforms Act, 1963 (Act 1 of 1964) came into force. It is 
common case before us that the appeal must be disposed of in 
accordance with the provisions of Act 1 of 1964. In this appeal, 
the respondents claim that they are the holders of kanam-kuzhi-
kanam within the meaning of s. 2(23) of this Act. 
Section 13 of Act 1 of 1964 gives to every tenant fixity of tenure 
in respect of his holding and forbids resumption of the holding 
except as provided in ss. 14 to 22. Section 2 is the definition 
section. By s. 2(57), a tenant means any person who has paid 
or has .agreed to pay rent or other consideration for his being allow-
ed by another to possess and enjoy the land of the latter and in-
cludes inter alia a kanam-kuzhikanamdar. Section 2(23) reads : 
"kanam-kuzhikanam" means and includes a transfer 
by a landlord to another person of garden lands or of 
other lands or of both, with the fruit-bearing trees, 
if any standing thereon at the time of the transfer, for the 
enjoyment of those trees and. for the purpose of plant-
ing such fruit-bearing trees thereon, the incidents of 
which transfer .include 
(a) a right in the transferee to hold the said lands 
liable for the consideration paid by him or due to him; 
which consideration is called 'kanartham'; and 
(b) the liability of the transferor to pay to the trans-
feree interest on the kanartham unless otherwise agreed 
to by the parties ; 
Provi
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