Judgment :- 1. The short point that arises for consideration in this Second Appeal by the defendant is as to whether a document dated 30-8-1937, Ext. Al in this case, which is admittedly styled as an usufructuary mortgage, or a Kanom as defined under S.3 (14) of the Malabar Tenancy Act. 2. Both the subordinate courts have held that the document Ext. Al creates only a debtor-creditor relationship and that it is only an usufructuary mortgage as is described in the document and not a Kanom, coming under S.3 (14) of the Malabar Tenancy Act. 3. It is against this that the appeal has been filed, and the substantial question that arises for consideration in this appeal is as to whether the view of both the lower courts regarding Ext. Al is correct. 4. In 1068, one Iffy Mayamma, mother of one Gopala Menon, granted an oral Verum Pattom lease in favour of her son Gopala Menon in respect of the suit properties. This Gopala Menon, under Ext. A4 dated 8-3-1921, executed an usufructuary mortgage of his tenancy rights in favour of his wife Kunji Kutty Amma for a consideration of Rs. 800/-. This Kunji Kutty Amma in turn, under Ext. Al dated 30-8-1937 namely, the suit document, executed in favour of the defendant what is styled therein. There is no dispute that Gopala Menon's rights have devolved on plaintiffs. 5. Both the courts have held that this document is only what it actually represents it to be namely, usufructuary mortgage pure and simple and not a Kanom under S.3 (14) of the Act. This question assumes importance in view of the fact that under S.22 of the Malabar Tenancy Act, it is open to any party interested to adduce evidence and prove that a transaction entered into on or after 1st January 1916 and purporting to be a mortgage of that land, is not in fact a mortgage, but that it is a transaction by way of Kanom etc., under which the transferee is entitled to fixity of tenure in accordance with the provisions of S.21. S.21 in turn, grants fixity of tenure in respect of a Kanomdar (which is the tenure that need be noted in connection with this appeal) and the section further provides that a Kanomdar shall not be evicted therefrom except as provided in this Act. S.21 in turn, grants fixity of tenure in respect of a Kanomdar (which is the tenure that need be noted in connection with this appeal) and the section further provides that a Kanomdar shall not be evicted therefrom except as provided in this Act. In turn, if really the appellant is a Kanomdar, Kerala Act 1 of 1957 gives him a stay pending final legislation in respect of those matters. 6. The question therefore is whether the document executed in favour of the defendant appellant, Ext. Al, is an usufructuary mortgage. Before I consider the various clauses & recitals in the document, it is better to advert to the definition of a'Kanam' under the Malabar Tenancy Act as it stands at present namely, S.3 (14) of the Act, which runs as follows: Sec. 3 (14) 'Kanam' "'Kanom' means the transfer for consideration in money or in kind or in both by a land lord of an interest in specific immovable property to another [called the 'kanamdar'] for the latter's enjoyment, the incidents of which transfer include: - [a] 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'; [b] the liability of the transferor to pay to the transferee interest on the kanartham; and [c] the payment of 'michavaram' by the transferee" Two other clauses in particular, which existed under the original Act have now been deleted by virtue of the Amending Act - Madras Act 33 of 1951. They were Clause.4 and 5 in the original definition which included also the right of the transferee to enjoy the said property for 12 years or any other period and the liability of the transferee to pay a renewal fee to the transferor, if the transferee is permitted to enjoy the said property for the period after the termination of the original period. These were deleted by the said Amendment. Therefore, I am now concerned with finding out whether a particular document is a 'Kanam' as per the definition as it now stands. In this connection, one cannot ignore the definition of "Tenant" in S.3 (27), which includes, among other persons, a kanamdar also. 6. According to Mr. These were deleted by the said Amendment. Therefore, I am now concerned with finding out whether a particular document is a 'Kanam' as per the definition as it now stands. In this connection, one cannot ignore the definition of "Tenant" in S.3 (27), which includes, among other persons, a kanamdar also. 6. According to Mr. Venkitakrishnan, learned counsel for the appellant, the test laid down by both the subordinate courts to find out the nature of the document, is wrong and he has also referred me to some decisions of the Kerala High Court. Before I deal with those several decisions, it is better that I advert to the material clauses in the document itself. 7. Ext. Al specifically styles itself. There is no dispute as ordinarily understood in the Malabar area, means only an usufructuary mortgage. The amount of consideration in respect of this is stated to be a sum of Rs. 500/-. This consideration of Rs. 500/ is arrived at as follows: - 8. The executant Kunjikutty Amma traces her title to the suit properties in the document in the following manner:- Her husband Gopala Menon had siaiaottuogo rights in the suit properties granted to him orally by his mother in 1068. Gopala Menon who is her husband, has in turn, usufructuarily mortgaged "In her favour his entire tenancy rights, under a document Ext. A4 on 8-3-1921, for a sum of Rs. 800/-. There is also a recital that after the said usufructuary mortgage in her favour, she has been in possession and enjoyment of the properties as an usufructuary mortgagee and she has granted the property on `11 JaIJ05° lease to one Mamunni, from whom release has been taken that day after paying Rs. 10/- which goes to make up one item of consideration under Ext- Al. It is also stated that after getting the release from the said Mamunni, she is, on that day, in full possession and enjoyment as an usufructuary mortgagee. Then finally, the vital clauses in the document follow. She says that all rights owned by her on are granted m favour of the defendant under this document for a term of 5 years on. There is also a recital that all the prior title-deeds which are in possession and which evidence her usufructuary-mortgage right, are handed over to the defendant. She says that all rights owned by her on are granted m favour of the defendant under this document for a term of 5 years on. There is also a recital that all the prior title-deeds which are in possession and which evidence her usufructuary-mortgage right, are handed over to the defendant. The document further says that the defendant is to enjoy the property from that day onwards on rights. 9. Regarding the appropriation of the yield from the properties, it is stated that the available yield is to go for: (a) payment of interest due on the (b) Rs. 20 is to be appropriated by the defendant for payment of Sirkar Revenue etc; and to Kunjikutty Amma herself in two equal instalments on or before the 15th of Makaram and 15th of Chingom and the mortgagee should take appropriate receipts for payment of those amounts. (c) the balance sum of Rs. 25 is to be paid as, 10. There is a further recital that at the end of 5 years, Kunjikutti Amma is to pay off the and also to obtain a release-deed from the defendant, at her expense, and at that time the defendant must hand over all documents in his possession and also the kist receipts for payment of Sirkar Revenue. There is the further provision to the effect that if the defendant does not pay the amounts due to Kunjikutti Amma or commits default in payment of Sirkar revenue etc., then the mortgagor is entitled to get not only those amounts, but also interest oh those amounts at 12 per cent per annum, and the defendant will be liable for destruction or any waste caused to the trees standing on the land. Here again, there is a specific recital to the effect that such loss caused by the defendant or by non-payment of the amount due to the plaintiff or the amounts defaulted to be paid as Sirkar revenue, can all be adjusted and set off by Kunjikutty Amma towards the ' 10. The document finally winds up by saying that if Kunjikutty Amma does not pay on the terms specified, the defendant-mortgagee is given a right to enforce all his rights and recover them by sale of the properties which are usufructuarily mortgaged. The document finally winds up by saying that if Kunjikutty Amma does not pay on the terms specified, the defendant-mortgagee is given a right to enforce all his rights and recover them by sale of the properties which are usufructuarily mortgaged. These in main, are the material clauses in the document and I have extracted more or less the document itself in full, because that will give a very good perspective of what relationship was contemplated as between the parties. 11. Mr. Venkitakrishnan contended that the nomenclature given namely, in this document is not conclusive. The learned counsel also contended that the necessary ingredients which go to make up a'Kanam' under S.3 (14) of the Malabar Tenancy Act, are present in this case and according to the learned counsel, this document though styled as a is not an usufructuary mortgage, but a'Kanam'. The learned counsel relied upon the decision of the Full Bench of our High Court reported in Janardhanan v. Kuppandy 1959 K.L.T. 118 (F. B.) I.L.R. 1959 Kerala 190. At one stage of his arguments the learned counsel was prepared to take the stand that the learned judges of the Full Bench have held that even though a document is described as such a document will automatically come under the definition of 'Kanam' under S.3 (14) of the Malabar Tenancy Act. In order to find out whether the learned counsel is justified in this - in my opinion, rather an extreme contention - it is better to know exactly the actual decision of the learned judges of the Full Bench will not by itself, enable a court to come to the conclusion that it is nothing else than a alone. This itself is based upon the clear provisions of S.22 of the Malabar Tenancy Act, which 13. No doubt, the learned counsel is correct in saying that the use of the expression specifically gives a right to such persons to establish that a document purporting to be a mortgage is not in fact, mortgage, but a transaction by way of 'Kanam'. Therefore, these observations contained in the judgment of the learned judges of the Full Bench, will not by themselves help the learned counsel in his contention. 14. Then the question is whether the Full Bench lays down that every document styled as will be a Kanam' under S.3 (14) of the Act. Therefore, these observations contained in the judgment of the learned judges of the Full Bench, will not by themselves help the learned counsel in his contention. 14. Then the question is whether the Full Bench lays down that every document styled as will be a Kanam' under S.3 (14) of the Act. After going through that decision in full, I do not think that the learned judges in the Full Bench have intended to lay down or actually held that every document, though styled as or will also be a 'Kanam' under S.3 (14) of the Act. That is made clear, in my opinion by the following observations of the learned judges at page 120 of the reports: "There is a full discussion of all the relevant matters in Para.6 to 11 of the judgment of the Subordinate Judge. He emphasised the following among other circumstances: (i) that no amount was advanced on the date of Ext. B1 and that the consideration for the document was the Kanartham of a Kanam of 1906; and [2] that there was no settlement of accounts regarding the value of the improvements effected by the tenant during the currency of the Kanom demise of 1906" 15. No doubt, if I may say so with very great respect to the learned judges of the Full Bench, what exactly was the nature of the document that the Full Bench had to construe is not extracted in the judgment as such. The learned judges had the document before them and also the reasons given by the learned subordinate Judge. That is why the learned judges make a reference to this effect namely, that all the relevant matters are contained in Para.6 to 11 of the judgment of the Subordinate Judge. But the vital consideration that appears to have prevailed in the mind of the learned judges in construing the document before them as coming within the definition of a'Kanam' is made clear by the two matters extracted from the judgment of the Subordinate Judge and mentioned in that judgment and they are, that on the date of the document before them, no amount was advanced by the party and the consideration for the document was the Kanartham of a Kanam of 1906. The second ground given by the learned judges is not material for this purpose. The second ground given by the learned judges is not material for this purpose. Therefore, the test appears to have been to find out whether any amount was advanced on the date of the document and also as to whether there was a prior relationship of a Kanamdar which is being continued in the subsequent document. That the learned judges had attached great importance to these circumstances, is again made clear by the learned judges, when they quoted a further passage from the judgment of the Subordinate Judge where the prior history of the property and the relationship of the parties are considered; and they are quoted with approval by the learned judges. Therefore, after going through the judgment of the Full Bench, it is not possible for me to accept the contention of Mr. Venkitakrishnan, that all documents even though styled as or will also automatically come within the definition of S.3 (14) of the Act. No doubt, the learned judges had to consider a document which was styled as a and the word 'Kanam' or Kanartham' were not used. But the learned judges found several other circumstances to come to the conclusion that the document really was not what it purported to be. Therefore, this judgment, in my opinion, will not assist Mr. Venkitakrishnan in this contention. 16. The learned counsel then relied upon the judgment of Mr. Justice N. Varadaraja Iyengar reported in Emunni Panicker v. Krishna Panicker, 1958 K.L.T. 756. There again, the learned judge had to consider as to whether a document described as a possessory 'panayam' was a'Kanam' or an usufructuary mortgage. The learned judge takes into consideration the change effected in the definition of a Kanam as it originally stood, by the Madras Act 33 of 1951, whereby the requirements of an enjoyment of the property for 12 years or any other period and the liability of the transferee to pay a renewal fee to the transferor and certain other matters were omitted. The learned judge observes at page 758 as follows: "It is not denied on the respondent-plaintiff's side that the definition in S.3 [14] is satisfied in the case. The learned judge observes at page 758 as follows: "It is not denied on the respondent-plaintiff's side that the definition in S.3 [14] is satisfied in the case. But the contention is raised that the customary incidents of a kanom as known in Malabar, viz., a minimum term of 12 years and a provision for periodical renewal at the end of the every 12 years are wanting here and much more than this the provision for sale at the instance of the transferee not associated with a Kanom, is found here." In that case, as is seen from the observations extracted above of the learned judge, the counsel appearing for the respondent therein, had no objection to treat the document as a'Kanam' under S.3 (14) of the Act as it at present stands. But the learned counsel there raised a contention that the document cannot be a 'Kanam', because there is no mention of a period of 12 years, as is usual in such documents. Reliance also was sought to be made on the right given to the mortgagee to bring the property to sale. These circumstances were relied upon by the learned counsel as taking that document out of the definition of a 'Kanam'. This argument was repelled by the learned judge by referring to the amendments effected to S.3 (14) by Madras Act 33 of 1951. Therefore, the judgment of Mr. Justice Varadaraja Iyengar only comes to this, that the absence of those considerations, so strongly pressed by the learned counsel in that case, cannot be availed of because those two circumstances have been deleted from the definition of a'Kanam'. There is also the further admission by the learned counsel therein that otherwise the document is a 'Kanam' under the definition as it stands. In my opinion, this decision also will not assist Mr. Venkitakrishnan in asking me to uphold that the suit document before me is a'Kanam' and not a WM0 . The learned counsel also relied upon an unreported judgment of Mr. Justice G. Kumara Pillai in S. A. 1096 of 1952 Incidentally I may say that a particular observation in this judgment has been approved by the learned judges of the Full Bench in Janardhanan v. Kuppandy, 1959 K.L.T. 118 (F. B.) = I.L.R. 1959 Kerala 190. The learned counsel also relied upon an unreported judgment of Mr. Justice G. Kumara Pillai in S. A. 1096 of 1952 Incidentally I may say that a particular observation in this judgment has been approved by the learned judges of the Full Bench in Janardhanan v. Kuppandy, 1959 K.L.T. 118 (F. B.) = I.L.R. 1959 Kerala 190. If the facts and circumstances, under which the document which was the subject of construction by the learned judge, are considered, in my opinion and with great respect to the learned judge, no other conclusion than that arrived at by the learned judge on that document is possible. There was a document before him which clearly recited a prior Kanam relationship between the parties, and the consideration for the new document was itself the Kanartham due under a prior Kanam document. No doubt, the new document styled itself as But the learned judge goes into several matters, the previous history of the document, previous transactions and the nature of the transactions and after giving due effect to the several recitals in the document itself, the learned judge comes to the conclusion that it is not but a 'Kanam' coming within the definition of S.3 (14) of the Act. Even this judgment, in my opinion, does not assist Mr. Venkitakrishnan in his contention that all documents though styled as are to be considered only as a'Kanam' under the Act. 17. The last decision relied upon by Mr. Venkitakrishnan, is again an unreported decision of Mr. Justice G. Kumara Pillai in C R. P. 379 of 1958. Unfortunately, from that decision I am not able to find what exactly were the recitals in the document which the learned judge had to construe. The learned judge has referred to his previous decision in S. A. 1096 of 52 and also to the judgment of Mr. Justice N. Varadaraja Iyengar in Emunni Panicker v. Krishna Panicker,1958 K.L.T. 756 and also the decision of the Full Bench in Janardhanan v. Kuppandy,1959 K.L.T. 118 (F. B.) = I.L.R. 1959 Kerala 190. After a reference to all these decisions, the learned judge observes that, on a consideration of the various recitals in the document that was before him, he has come to the conclusion that the said document falls within the definition of a 'Kanam' as defined under S.3 (14) of the Act. After a reference to all these decisions, the learned judge observes that, on a consideration of the various recitals in the document that was before him, he has come to the conclusion that the said document falls within the definition of a 'Kanam' as defined under S.3 (14) of the Act. The nature of the recitals are not mentioned in the judgment. But there is only one point which requires some consideration in this judgment namely, this: - reliance was sought to be placed in that case by the counsel on the decision of the Supreme Court reported in Ramdhan Puri v. Bankey Bihari, A.I.R. 1958 S. C. 941. But the learned judge declined to consider that decision on the ground that it has no bearing on a consideration of the provisions under the Malabar Tenancy Act As to how far this dictum of the learned judge is correct, if I may say so with respect, I need not now consider, and I reserve it for a later occasion, as and when the question directly arises. 18. The Supreme Court in the said decision, has considered the tests to be laid down to find put whether a particular document creates a debtor-creditor relationship or a lessor-lessee relationship. At present, I am not inclined to go to the extent of holding that the decision of the Supreme Court cannot have application to the provisions contained in the Malabar Tenancy Act. As mentioned earlier, I do not express any final opinion on this matter in the present case. 19. The contentions of Mr. Venkitakrishnan that a document even though styled as also automatically falls within the ambit of the definition of a'Kanam' under S.3 (14) of the Act, if accepted will have far reaching consequence, for example, that so far as the area where the Malabar Tenancy Act applies, the provisions of the Transfer of Property Act, which deal with mortgages and usufructuary mortgages will have no application at all. I do not think that the learned judges of the Full Bench have gone to the extent of holding that all documents styled as have to be considered only as a'Kanam' under S.3 (14). In fact S.22 of the Malabar Tenancy Act itself deals with a transaction purporting to be a mortgage. 20. Now that I have held that the several decisions relied upon by Mr. In fact S.22 of the Malabar Tenancy Act itself deals with a transaction purporting to be a mortgage. 20. Now that I have held that the several decisions relied upon by Mr. Venkitakrishnan have no application to the present ease, I am of the view, after a consideration of the various recitals in the document, that the document is nothing but an usufructuary mortgage oras it calls itself. The document itself is executed for purposes of borrowing the necessary amounts, from the defendant for discharging certain debts, which have been mentioned in the document, by giving the property as security for the debt. I have already adverted to the same. Then the executant herself traces title to the effect that she is in possession and enjoyment on right and it again specifically says, it is that right that she is assigning in favour of the defendant as usufructuary mortgage. 7 occasions in this document. That the parties were quite clear as to GMU ° rights as and from that date.what exactly a means and what is sought to be created under this document, is again evident from the use of the expression in the same document. Wherever certain other rights are referred to, they have been specifically stated to have been obtained on. In my opinion, none of the circumstances that gave trouble to the learned judges in any of the cases referred to above exist in this case. There is clearly a debtor and creditor relationship pure and simple, sought to be created and actually created by virtue of the document Ext. Al. 21. In this connection, it may also be stated that Mr. D.A. Krishna Varier, learned counsel for the plaintiff-respondent has also drawn my attention to some decisions of the Madras High Court to the effect that payment made annually by a person in the position of the defendant in this case, is hot'Rent' but is only 'Interest'. In view of the fact that the document before me is very clear as to what exactly it was intended to be, I do not think it necessary to refer to those decisions in this judgment. 22. In view of the fact that the document before me is very clear as to what exactly it was intended to be, I do not think it necessary to refer to those decisions in this judgment. 22. But it should not be forgotten that when a question arises as to whether a document is a 'Kanam' as defined under S.3 (14) of the Malabar Tenancy Act, due regard must be had to the fact that'Kanam' is dealt with in the Malabar Tenancy Act, the object of which is to define, declare, alter and amend the law relating to landlord and tenant. Further, there is the fact that S.3 (27) of the Act, which defines the term 'Tenant', is stated to include, among other persons, a 'Kanamdar' also. Again it should be noted that emphasis is laid in the definition of 'Kanam' on 'the transfer for consideration of an interest in specific immovable property to another (called the Kanamdar) for the latter's enjoyment'; whereas a mortgage is 'the transfer of an interest in specific immovable property for the purpose of securing the payment of money advanced or to be advanced by way of loan (See S.58 (a) of the Transfer of Property Act). Again S.58 (d) of the Transfer of Property Act states what a usufructuary mortgage is. 23. The essential difference between the two types of transactions, in my view, is that in the case of 'Kanam', there is a transfer for consideration by a land-lord of an interest in specific immovable property to another for the latter's enjoyment; whereas in a mortgage, it is the transfer of an interest in specific immovable property for the purpose of securing the payment of money advanced or to be advanced by way of loan. 24. Having regard to all the matters mentioned earlier, the document Ext. A in this case is not a'Kanam' as defined under S.3 (14) of the Act, but only a usufructuary mortgage or coming within S.58 (d) of the Transfer of the Property Act. Both the courts have also considered the evidence adduced by the parties in accordance with the provisions of S.22 of the Malabar Tenancy Act. After considering such evidence, both the courts have come to the conclusion that the intention of the parties in executing Ext. Al was only to secure the repayment of the debt. 25. Both the courts have also considered the evidence adduced by the parties in accordance with the provisions of S.22 of the Malabar Tenancy Act. After considering such evidence, both the courts have come to the conclusion that the intention of the parties in executing Ext. Al was only to secure the repayment of the debt. 25. I fully agree with these conclusions arrived at by both the courts. The other points argued by Mr. Venkitakrishhan, have also been held concurrently against his client by the two courts and I see no reason to interfere with those findings. The defendant is authorised to enjoy the properties on In fact, so far as I could gather, this expression' right is repeated on more than 6 or In the result, the Second Appeal fails and is dismissed with costs of the plaintiff-respondent in this court. Leave to appeal is granted.