Judgment :- 1. The plaintiff, whose suit for redemption of a transaction, which according to him, is an usufructuary mortgage, has been dismissed by both the subordinate courts, is the appellant in this second appeal. 2. According to the plaintiff, the suit properties were usufructuarily mortgaged by one Kuttiammad and others on behalf of their tarwad on 25-5-1907 under Ext. Al in favour of one Ibrayin for a sum of Rs. 400/-. The term of the mortgage is a period of 60 years and the tarwad, which had only a mulgani right, had usufructuarily mortgaged that right. It is the case of the plaintiff that ultimately, Ibrayin's rights have devolved on the first defendant. In turn, the plaintiff also stated that the rights owned as mortgagors by the tarwad of Kuttiammad, have also devolved on the plaintiff and he has also been empowered, by the transaction in his favour, to redeem the usufructuary mortgage evidenced by Ext. Al. He also claimed relief under Madras Act IV/1938 as amended by Act XXIII/1948. 3. The first defendant, who was the main contesting defendant, disputed the right of the plaintiff to redeem the suit transaction on several grounds. He contended that the assignors of the plaintiff had no right to transfer the equity of redemption regarding the suit properties. He also took several other pleas regarding his claim for value of improvements. But the most important contention raised by him was on the basis that the suit transaction is not an usufructuary mortgage, but a 'kanom-kuzhikanom' within the meaning of that expression under S.3 (15) of the Malabar Tenancy Act and in consequence, he claimed fixity of tenure by virtue of the provisions of S.21 of the Malabar Tenancy Act. 4. The learned District Munsiff came to the conclusion that the plaintiff has not obtained the entire rights in the equity of redemption and, that the equity of redemption, if at all, has only been obtained by the plaintiff jointly, along with the 3rd defendant and therefore, a suit by one of the co-owners of the equity of redemption was not maintainable. After considering this question, the learned District Munsiff considered the question as to the nature of the transaction evidenced by Ext. Al. The learned District Munsiff took into consideration the conduct of the parties as evidenced by the recitals in Ext. After considering this question, the learned District Munsiff considered the question as to the nature of the transaction evidenced by Ext. Al. The learned District Munsiff took into consideration the conduct of the parties as evidenced by the recitals in Ext. A2 and also the evidence of the plaintiff himself regarding the nature of this transaction. According to the trial court, there are clear recitals in the assignment-deed in favour of the plaintiff namely, Ext. A2 that the transaction evidenced by Ext. Al is a 'kanom-kuzhikanom' document. Then having regard to the definition of the term 'kanom-kuzhikanom as defined in S.3 (15) of the Malabar Tenancy Act and also having regard to some of the recitals in Ext. Al itself, the trial court was of the view that the suit document is a kanom-kuzhikanom document coming within the meaning of that expression, as defined in the "Malabar Tenancy Act. The main recital in Ext. Al which appears to have influenced the trial court in coming to this conclusion, on the basis of the recitals in the document itself that it is a kanom-kuzhikanom document, is the recital authorising the mortgagee to plant trees and make improvements. 5. After recording a finding that the transaction evidenced by Ext. Al is a kanom-kuzhikanom document, the trial court also goes into the question regarding the claim for value of improvements made by the defendants. On this point, the learned District Munsiff came to the conclusion that if the plaintiff is otherwise entitled to redeem the suit properties, the first defendant will be entitled to get a sum of Rs. 2,080/- and the second defendant will be entitled to get a sum of Rs. 200/- as by way of value for improvements. But ultimately, in view of the findings recorded on the question of the maintainability of the suit by the plaintiff himself, and also in view of his decision that the document being a kanom¬kuzhikanom document which resulted in the mortgagee namely, the first defendant having fixity of tenure under S.21 of the Malabar Tenancy Act, the trial court dismissed the suit of the plaintiff for redemption. 6. The plaintiff filed an appeal before the learned Subordinate Judge of South Kanara. The learned judge has substantially agreed with the views expressed by the trial court on the question of Ext. 6. The plaintiff filed an appeal before the learned Subordinate Judge of South Kanara. The learned judge has substantially agreed with the views expressed by the trial court on the question of Ext. Al as representing only a 'kanom-kuzhikanom' document coming within the meaning of that expression under S.3 (15) of the Malabar Tenancy Act. The learned judge was of the view that by a reading of the document, it cannot certainly be stated that the amount advanced and mentioned in the document is a loan and that the properties are offered by way of security. The learned judge was of the view that it is not necessary to consider whether the transaction is also a kanom. But nevertheless, the learned judge goes a little more in detail on this point also and ultimately comes to the conclusion that it is not necessary to record a finding on the question as to whether the document can be construed to be also a kanom. So far as the main document itself is concerned, the learned judge was of the view that the recitals in Exts. A2, BI and B3 ultimately show that the parties intended to treat Ext. Al only as a kanom-kuzhikanom deed. The learned judge also found support in an early decision of the Madras High Court reported in Perlathail Subba Rau v. Mankude Narayana (I. L. R.4 Mad. 113) to the effect that'Ilidarwar' in South Kanara is usually something more than an ordinary mortgage and when the same is for a long term of years, it amounts to a lease of the property on the terms agreed upon. The learned judge also considered the directions for planting trees wherever possible contained in Ext. Al as authorising the mortgagee to plant cocoanut trees, which could only be the trees contemplated by the parties. 7. After having recorded a finding in agreement with the trial court on the nature of the transaction, the learned judge ultimately held that S.21 of the Malabar Tenancy Act gives fixity of tenure in favour of the mortgagees in this case and that they could not be evicted except as provided in the Act. Regarding the maintainability of a suit by the plaintiff alone, the learned judge agreed with the trial court that the equity of redemption is now owned jointly by both the plaintiff and the third defendant. Regarding the maintainability of a suit by the plaintiff alone, the learned judge agreed with the trial court that the equity of redemption is now owned jointly by both the plaintiff and the third defendant. But the appellate court was not inclined to agree with the trial court that the suit will have to be dismissed solely on the ground that the plaintiff alone is not entitled to maintain this action. The reasoning of the learned judge as contained in Para.12 of the judgment gives the impression that the learned judge was prepared to recognise the right of the plaintiff alone to institute the present proceedings for redemption if he is otherwise entitled to redeem. This view of the Subordinate Judge has not been challenged here by the respondents. 8. So far as the value of improvements that has been considered by the trial court is concerned, it does not seem to have been contended again before the learned Judge. As the learned judge agreed with the view of the trial court regarding the nature of the transaction, he dismissed the appeal filed by the plaintiff and confirmed the decree of the trial court dismissing the suit for redemption. It is against the decrees and judgments of both the subordinate courts that this second appeal has been filed by the plaintiff. 9. On behalf of the plaintiff-appellant, Mr. Joseph M. Madathil, has contended that the interpretation placed upon Ext. Al by both the subordinate courts, is not correct. According to the learned counsel, both the courts, instead of focussing their attention on the recitals in Ext. Al, have erred in taking into consideration the recitals in Exts. A2, B1 and B3 or in further placing any reliance on the oral evidence adduced in this case. According to the learned counsel, this being a document executed long before 1st January 1916, S.22 of the Malabar Tenancy Act has no application and therefore, it is only the recitals in the document that will have to be looked into to find out the legal effect of the transaction. According to the learned counsel, this being a document executed long before 1st January 1916, S.22 of the Malabar Tenancy Act has no application and therefore, it is only the recitals in the document that will have to be looked into to find out the legal effect of the transaction. The learned counsel also contended that admittedly, the provisions of the Malabar Tenancy Act were made applicable to the 33 villages of the Hosdrug Sub-Taluk by Act 33/1951, only as and from 15-3-1952, whereas, the suit transaction has come into existence as early as 1907, when admittedly the Transfer of Property Act which was in force in British India then was applicable to the area from where this litigation comes. Therefore, the parties were well aware of the right to create usufructuary mortgages under the provisions of the Transfer of Property Act and that aspect has been missed by both the subordinate courts. The teamed counsel has also taken me through the document itself and contended that the dominant and main intention as could be gathered from the various recitals can lead to only one conclusion namely, that the object was to borrow money and to create a security over the properties which were entrusted to the possession of the mortgagees. The learned counsel also contended that even applying the definition of a 'kanom-kuzhikanom' as contained in S.3 (15) of the Malabar Tenancy Act, those necessary ingredients are not anywhere in evidence in this document. 10. On the other hand, Mr. V.P. Gopalan Nambiar, learned counsel appearing for the contesting respondent, has contended that even though the document may have some of the incidents of a mortgage, still the dominant intention is very clear that it was really for the purposes mentioned in S.3 (15) of the Malabar Tenancy Act. It cannot be stated that even the parties in South Kanara are unaware of a tenure as a 'kanom-kuzhikanom' and it is not as if that the said tenure comes into existence for the first time when the Act is applied to those areas. It cannot be stated that even the parties in South Kanara are unaware of a tenure as a 'kanom-kuzhikanom' and it is not as if that the said tenure comes into existence for the first time when the Act is applied to those areas. The learned counsel laid very great emphasis on the recital in the document to the effect that the mortgagee, who is put in possession of the properties, is directed to plant, wherever planting is to be made that, according to the learned counsel, fully and completely satisfies the main test necessary under S. 3 (15) of the Malabar Tenancy Act. The learned counsel also contended that even in such cases where S.3 (15) has to be applied, the idea of some sort of a security will not be absent; but taking the entire document as a whole, according to the learned counsel, it partakes more of a lease and therefore, comes as a 'kanam-kuzhikanom' as rightly held by both the subordinate courts. The learned counsel's contention also is that it was open to both the subordinate courts to consider as to how exactly this transaction has been understood by the parties and therefore, both the courts were justified in giving due importance to the description of this document as a 'kanom-kuzhikanom' in Exts. A2, B1 and B3. Ext. A2 is the document on which the plaintiff claims title and on the basis of that document has instituted the present proceedings and according to the learned Counsel the plaintiff cannot now be heard to say that Ext. Al is something other than a 'kanam-kuzhikanom' when Ext. A2 clearly refers to Ext. Al as a kanom-kuzhikanom alone. The learned counsel also relied upon two decisions of the Madras High Court namely, the decision in Perlathail Subba Rau v. Mankude Narayana (I.L.R. 4 Mad. 113); and Valiya Kalyani v. Krishnan (A.I.R.1932 Mad. 305). 11. Having considered the various contentions raised by both the learned counsel and also having regard to the decisions cited by Mr. V. P. Gopalan Nambiar in my opinion a final decision in this case must be rested mainly on the terms of the document, Ext. A 1 and in my opinion the dominant intention under Ext. Al is only to create a creditor-debtor relationship and not a landlord-tenant relationship. 12. V. P. Gopalan Nambiar in my opinion a final decision in this case must be rested mainly on the terms of the document, Ext. A 1 and in my opinion the dominant intention under Ext. Al is only to create a creditor-debtor relationship and not a landlord-tenant relationship. 12. In order to appreciate the various contentions advanced by both the learned counsel, it is desirable that I go through the document a little in detail. The document, Ext. Al, which is in Kanarese, has been translated by the office and there is no controversy that there is any mistake in the translation of this document. The document is styled as'Krithasartha Ilidarwar and the consideration for the document is Rs. 400 and the "term is fixed as 60 years. After the formal recitals about the parties who are executing it and also the parties in whose favour it is executed, it is stated that the properties mentioned therein belong to the party No.1 on 'Saswatha Mulgani' right and it is also stated that they are already in possession of the parties in whose favour the document is executed on'Ilidarwar' right. Then the recitals are to the effect that the properties mentioned in the schedule are mortgaged to the executees for Rs. 400/-and for a term of 60 years on'Ilidarwar' right and it also says that the full consideration has also been received and details of that adjustment are given later on. 13. The document further proceeds to say that the properties were mortgaged on'Ilidarwar' right in favour of the executees for Rs. 250/- on 22-11-1906 under document No 2270 of the Hosdurg Sub Registrar's office. The amount of Rs. 250 borrowed under the mortgage of 22-11-1906 is now adjusted and set off towards the consideration of the present mortgage. There is a further recital that an additional sum of Rs. 150/- is again borrowed on that day by the executants from the executee in cash for the purpose of meeting the marriage expenses of the female members of the tarwad and also for payment of Kashi to the husbands of the female members. The document further states that in all a total consideration of Rs. 400/ namely, Rs. 250/ adjusted and set of in respect of the mortgage of 22-11-1906 along with the Rs. The document further states that in all a total consideration of Rs. 400/ namely, Rs. 250/ adjusted and set of in respect of the mortgage of 22-11-1906 along with the Rs. 150/-advanced afresh on that day has, been received as consideration for the purpose off this document and it is also stated that the consideration so received is for their tarwad necessities. Then follows, in my opinion, the very crucial recital to the effect that "Therefore for this amount, you are to get possession of this property and you are to remove earth from kaippad portions of the property and convert them into fields and plant wherever planting can be made, erect buildings, dig wells and thus from today, you are to enter and enjoy the property for a term of 60 years. No doubt, I am aware of the contention of Mr. V.P. Gopalan Nambiar regarding the latter part of the sentence extracted above, namely the planting of (TOcrojaraOo which in the circumstances, can only mean planting of cocoanut trees. According to Mr. V.P Gopalan Nambiar, the essential tests and ingredients necessary under S.3 (15) of the Malabar Tenancy Act are satisfied by this recital in this document. I am not able to accept this contention of Mr. Gopalan Nambiar. 14. The sentence extracted above and taken along with the other recitals about borrowing and tarwad necessity etc. already mentioned by me, clearly gives an indication that the properties are put in possession of the executees as security for the amounts borrowed from the executee and more fully described in the earlier portion of the document. No doubt, there are the other recitals to the effect that the executee is to remove the earth from Kaippad portions and convert them into fields and also plant cnxtwjoBOo wherever planting can be made. But one should not fail to notice that there are also the various other recitals to the effect that the executees are allowed to convert Kaippad portions into fields, erect buildings and also dig wells in the property. It is really along with these recitals that this planting of oro.TDjsBBOo is also mentioned. But one should not fail to notice that there are also the various other recitals to the effect that the executees are allowed to convert Kaippad portions into fields, erect buildings and also dig wells in the property. It is really along with these recitals that this planting of oro.TDjsBBOo is also mentioned. Under the definition of 'kanom-kuzhikanom' in S.3 (15) of the Malabar Tenancy Act, there must be a transfer by a landlord to another 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 planting such fruit bearing trees thereon, the incidents of which transfer include (a) a right in the transferee to hold the said land 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 unless otherwise agreed to by the parties. 15. It will be seen from the definition extracted above that apart from the transfer of garden lands or other lands with fruit bearing trees, if any, standing at the time of the transfer for the enjoyment of those trees, there is also one other necessary ingredient mentioned in the said definition namely, that it must also be for the purpose of planting such fruit-bearing trees on the garden lands or other lands which are the subject of transfer. Applying this test, in my opinion, the document cannot satisfy the ingredients mentioned in this definition. Apart from the stray recital contained, along with the other recitals where right is given to the executee in possession of the property to remove earth from Kaippad portions and convert them into fields, to erect buildings, dig wells and also to plant wherever planting can be made, it cannot be stated by a reading of this document that the transaction in this case can be considered to be also for the purpose of planting such fruit-bearing trees thereon. No doubt, Mr. V. P. Gopalan Nambiar contented that even though this document may partake some of the incidents of a creditor-debtor relationship, still it can nevertheless be brought under the ambit of the definition of kanom-kuzhikanom document, if the necessary ingredients mentioned in the said definition are also present. No doubt, Mr. V. P. Gopalan Nambiar contented that even though this document may partake some of the incidents of a creditor-debtor relationship, still it can nevertheless be brought under the ambit of the definition of kanom-kuzhikanom document, if the necessary ingredients mentioned in the said definition are also present. In this connection the learned counsel referred to an early decision of the Madras High Court reported in Perlathail Suba Rau v. Mankude Narayana (I.L.R. 4 Mad. 113), a decision of Kindersley and Tarrant, JJ. No doubt, the learned judges had to consider the term'Ilidarwar' as obtaining in the South Kanara district and the learned judges, at page 113 observe follows: "It appears to us that in South Kanara an Iladarawara is usually something more than an ordinary mortgage, which is called by another name. When, as in the present case, the Iladarawara is for along term of years, it amounts to a lease of the property for the term agreed upon, and justice cannot be done by the repayment of the loan before the expiry of the term" 16. It is on these observations that Mr. Gopalan Nambiar placed considerable reliance to show that the transactions of the kind before me as obtaining in South Kanara have been understood by the learned judges of Madras High Court as amounting to a lease of the property for the term agreed upon. Prima facie, it may appear that this argument based upon these observations is plausible. But taken along with the next observations that follow immediately after, it cannot be stated that the learned judges intended to lay down a hard and fast rule applicable to all cases of a transaction styled as 'Ilidarwar'. The observations that I have in mind are to the following effect appearing on page 118:-"But the terms of the document in each case will determine whether the intention is to create such a lease." Therefore, it is made clear that even the learned judges of the Madras High Court were of the view that it is really the particular recitals in a document which will show whether a lease was intended to be created or a transaction by way of mortgage. 17. One other decision that has been relied upon by Mr. V. P. Gopalan Nambiar is the one reported in Valiya Kalyani v. Krishnan (A. I. R.1932 Mad. 17. One other decision that has been relied upon by Mr. V. P. Gopalan Nambiar is the one reported in Valiya Kalyani v. Krishnan (A. I. R.1932 Mad. 305), a decision of Reilly and Anantakrishna Ayyar, JJ. The relevant observation relied upon by the learned counsel is the one at page 308 in the judgment of Mr. Justice Anantakrishna Ayyar to the following effect: "In the case before us, we have got the specific conditions of the letting, namely that defendant I should plant trees and otherwise enjoy the property." It will be seen that the transaction before the learned judges styled itself as "kanom-kuzhikanom mortgage" and it is in such a document that the learned judges, apart from other recitals had also this particular recital, wherein the defendant in that case was authorised to plant trees and otherwise enjoy the property. In my opinion, these observations of the learned judges will not assist Mr. Gopalan Nambiar in his contention that the document before me should be considered as a 'kanom-kuzhikanom' document alone, on the basis of such a recital alone. 18. I have already extracted the various recitals obtaining in the document and also the context in which the recital regarding the planting of trees is made in this particular document. Having due regard to all these recitals, it is not possible to apply the principles laid down by the learned judges in the decision in Valiya Kalyani v. Krishnan (A.I.R.1932 Mad. 305) to the facts of the present case. 19. Mr. Gopalan Nambiar also contended that the plaintiff himself admits that the recital in the transaction in his favour namely, Ext. A2 about Ext. Al being a kanom-kuzhikanom is correct. He has also drawn my attention to the fact that Ext. A2 itself refers to Ext. Al as a kanom-kuzhikanom. He has also drawn my attention to the similar recitals in Exts. B1 and B3. In my opinion, all these recitals cannot be put against the plaintiff in this case, when it is the duty of this court to find out the legal effect of a document like Ext. Al, having due regard to the provisions of the Transfer of Property Act, defining an usufructuary mortgage and also to the provisions of the Malabar Tenancy Act defining a kanom-kuzhikanom. Al, having due regard to the provisions of the Transfer of Property Act, defining an usufructuary mortgage and also to the provisions of the Malabar Tenancy Act defining a kanom-kuzhikanom. It may be that the party has accepted a particular position and it is not as if there is an estoppel especially when S.22 of the M.T. Act does not apply which could operate as against the parties having expressed particular views about the nature of the document. The document before me namely Ext. Al, in my opinion, partakes more of a creditor-debtor relationship and as such, is an usufructuary mortgage as contended on behalf of the plaintiff. 20. In the result, the decrees and judgments of both the subordinate courts dismissing the suit of the plaintiff are set aside and the Second Appeal allowed. A preliminary decree in favour of the plaintiff for redemption, as prayed for is granted. So far as the question of the value of improvements payable by the plaintiff to the parties entitled to the same is concerned this will be considered by the trial court in the final decree proceedings, having due regard to the provisions of Kerala Act 29/1958. Parties will bear their own costs throughout. No leave. Allowed.