MANGALA KUNHIMINA UMMA & ORS. versus PUTHIVAVEOTTIL PARU AMMA & ORS.

Citation: [1971] 3 S.C.R. 582 · Decided: 28-01-1971 · Supreme Court of India · Bench: G.K. MITTER · Disposal: Dismissed

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Judgment (excerpt)

ssa 
MANGALA KUNHIMINA UMMA & ORS. 
v. 
PUTHIVAVEOTIIL PARU AMMA & ORS. 
January 28, 1971 
[G. K. MITTER AND A. N. RAY, JJ,J 
Kera/a L<11d Reforms Act 1964, s. 2(22)-'Kanam'-Definition of~ 
Document purporting to be ka11am whether lease or mortgage-Tests-
Description in- docu1nent not sufficient guide. 
The document Ex. B-6 in so far as it related to the suit lands purported 
to be a kanam executed in favour of the predecessor-in-interest of the 
present appellants by the predecessors-in-interest of the present respon-
<lents. 
The document had a counter-part Ex. A-J,. The suit was filed for 
the redemption of the kanam on payment of the mortgage debt. 
The 
appellants contended in defence that Ex. B-6 was not a mortgage deed but 
a lease and, therefore, there was no right to redeem. One of the incidents 
of the kanam as defined in s. 2(22) of the Kerala Land Reforms Act, 1964 
was the "payment of michavaram or customary dues on renewal on the 
expiry of any specified period". 
Against the decision of the Kerala High 
Court in favour of the plaintiffs-respondents, the present appeal was filed 
by special leave. 
The only question for consideration was whether the 
appellants were protected against eviction by reason of their contention 
that Ex. B-6 created a tenancy. The decision of this question depended 
upon the further consideration whether the provision in Ex. B-6 for pay-
ment of .laild revenue for properties by the appellants amounted in law to 
a stipulation as rent or michavaran to the landowner. 
HELD : (I ) The mere description of the deed as kanam will not be 
decisive of the essence of the transaction. The description of the deed by 
itself, isolated from the terms and provisions may be misleading ;,r a mis-
nomer. 
The circumstances and the conduct of the parties are· always a 
very useful guide in ascertaining the true character of the transaction. 
[587 B-C; El 
( 2) The first and foremost element to be four,J for a lease is whether 
there is lhe intrinsic intention in the "'ritten document for enjoyment of 
the property by the transferee in lieu of rent or perquisites. Secondly the 
term of renewal of the enjoyment would indicate the features of a lease. 
Thirdly it has to be. found out whether there is any provision for payment 
of customa.ry dl\es. [587 H; 588 Al 
The · dom.inant feature of the mortgage transaction on the other hand 
will be ascertainment of the ratio of the value of land to the amount. 
advanced, It the ratio of the amount advanced bears a substantial pro-
portion to the value of the property transferred it would be a strong piece 
of intention and circumstance to indicate loan -and a mortgage. The provi-
sion entitling the transferee t0 ask for a return of money by sale of tlte 
property would be a very important feature to indicate that the transa.c~ion 
is a loan and a mortgage and not a lease. The absence of such a prov1s1on, 
however would not totally repel the transaction to be a mortgage. 
The 
execution of counter~part is sometimes a common feature in the case of 
possessory mortgage though the existence of a counter•part by itself will 
·not be conclusive of the question. [588 B-Dl 
A 
B 
c 
D 
E 
F 
G 
H 
A 
B 
c 
D 
MANGALA KUNHIMINA UMMA V. PUTHIVAVEOTTIL PARU 
583 
AMMA (Ray, J.) 
(3) The High Court correctly held that a mere direction to pay the 
revenue of the property by the grantee particularly when no payment is 
stipulated to be made to the grantor or when the payment is not directed 
to be made out of anything which is due or payable to the grantor, cannot 
be considered as a payment or rent or michavaran to the grantor. [588 G] 
( 4) In the present case the features which favoured the constructio11, 
of the transaction to be a molrtgage and not a lease were; fir>l there was 
no provision for renewal; secondly there was no provision for payment of 
customary dues; thirdly the property was to be enjoyed by the defendants 
by way of interest on their advance after payment of land tax to the State; 
fourthly the payment of land tax was not a deduction from rent or per· 
quisites; fifthly there was a provision for surrendering the property with a 
registered release at the cost of the transferee on the_r.eceipt of the consi· 
deration of kanam and the balance amount; sixthly when the consideration 
was paid back the counter-pattam deeds and prior deeds would be returned; 
and finally there was liability to pay interest on the advance and possession 
and enjoyment 

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