Judgment :- 1. The question is whether the transfer effected by the deed Ext. B1 dated 26th April 1920 (there is a counter-part, Ext. Al, of the same date), under which defendants 5 to 9 claim to be in possession of the property in, suit is a kanom entitling these defendants to fixity of tenure under S.21 of the Malabar Tenancy Act, 1929, now, since the institution of this appeal, replaced by S.6 of the Kerala Agrarian Relations Act, 1960 (which confers fixity of tenants, a kanomdar being by definition a tenant) or whether it is only a possessory mortgage entitling the plaintiffs to the decree for redemption which they claimed. The courts below have, on the concurrent finding that the transaction is a mortgage, decreed the plaintiffs' suit, and the 8th defendant has come up with this second appeal. 2. Although the law governing the matter at the time of the suit was the Malabar Tenancy Act, both sides are agreed that the matter has now to be disposed of in accordance with the provisions of the Kerala Agrarian Relations Act which I shall hereafter call the Act. This, it seems to me, is something that cannot admit of dispute. 3. This, it seems to me, is something that cannot admit of dispute. 3. It might be as well to begin by setting out in full the relevant definitions in S.2 of the Act: Kanam: (18) "Kanam" means the transfer for consideration in money or in kind or in both, by a landlord of an interest in specific immovable property to another for the latter's enjoyment, whether described in the document evidencing the transaction as kanam or kanapattom, 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; (b) the liability of the transferor to pay to the transferee interest on such consideration unless otherwise agreed to by the parties; and (c) payment of michavaram, or customary dues or renewal on the expiry of any specified period, and, in areas in the State other than Malabar, includes such transfer of interest in specific immovable property which is described in the document creating the transaction as Otti, Karipanayam, Panayam, Nerpanayam or by any other name and which has the incidents specified in items (a) and (b) above and also the following incidents: renewal on the expiry of any specified period; and (ii) payment of customary dues; Provided that kanapattom or any other demise governed by the Travancore Jenmi and Kudiyan Act of 1071 or the Kanam Tenancy Act, 1955, shall not be deemed to be a kanam. Explanation.- For the purpose of this clause, in a case where there has been no stipulation in the document evidencing the transaction for renewal on the expiry of any specified period, but there has been a renewal or payment of renewal fees, it shall be deemed that there had been a provision for such renewal in the document. Landlord: (23) "landlord" means a person under whom a tenant holds and to whom he is liable to pay rent and includes a landowner; Michavaram: (29) "michavaram" means whatever is agreed by a kanamdar to be paid periodically as residual rent, in money or in kind or in both to, or on behalf of, the landlord, but does not include customary dues. Tenant: (50) (i) "tenant' means any person who has paid or has agreed to pay rent or other consideration, for his being allowed, by another, to possess and to enjoy the land of the latter and includes (a) an intermediary; (b) a verumpattomdar of any description; (c) a kanamdar; (d) a kanam-kuzhikanamdar; (e) a kuzhikanamdar; (f) a punam or kumri cultivator; (g) a licensee in Kuttanad taluk; (h) a varomdar; (i) an odacharthudar or any person claiming under an odacharthudar referred to in S.4; 0) a holder of a kudiyiruppu; (k) a vechupakuthidar; (1) the holder of a chalgeni lease; and (m) a mulgenidar but shall not include a person holding land under a transaction known as Irakkipanayam. Explanation 1.- Where in a document a person is described as a 'Sambalapattomdar," 'Sambalachittudar' or 'Coolipattomdar" in respect of any paddy land situate in Palghat District he shall be presumed to be a tenant: Provided that such presumption shall stand rebutted if it is proved that the "Sambalapattomdar', "Sambalachittudar" or "Coolipattomdar" has not undertakers any risk of cultivation. Explanation II - For the purpose of this sub-clause any person who on the 11th day of April 1957, was continuously in occupation of the land of another situate in Malabar, for not less than two years bona fide believing himself to be a tenant and continued to be in occupation of such land at the commencement of this Act shall be deemed to be a tenant. Explanation III.- For the purpose of this sub-clause holder of a chalgeni lease' means a lessee or sub-lessee of specific immovable property situate in the taluk of Hosdrug or Kasaragod, who has contracted, either expressly or impliedly, to hold the same under a lease whether for a specified period or not. Explanation IV.- For the purpose of this sub-clause, any person who at the commencement of this Act continues in cultivation of any nilam by virtue of the provisions of S.6 of the Kerala Stay of Eviction Proceedings Act, 1957, shall be deemed to be a varomdar, notwithstanding the expiry of the term fixed under the varom arrangement." 4. There is one other provision of the Act which I might set out in full and that is S.9 replacing S.22 of the Malabar Tenancy Act. "9. There is one other provision of the Act which I might set out in full and that is S.9 replacing S.22 of the Malabar Tenancy Act. "9. Right to prove real nature of transaction- (1) Notwithstanding anything in the Indian Evidence Act, 1872 (Central Act I of 1872), or in any other law for the time being in force, any person interested in any land situate in Malabar may plead, adduce evidence and prove that a transaction purporting to be a mortgage, otti, karipanayam, panayam or nerpanayam of that land is not in fact such a transaction but a transaction by way of kanam, kanamkuzhikanam, kuzhikanam, verumpattam or other lease, under which the transferee is entitled to fixity of tenure in accordance with the provisions of S.6 and to the other rights of a tenant under this Act. (2) Where under the last foregoing sub-section the court holds that the transferee is entitled to fixity of tenure in accordance with the provisions of S.6, it shall be lawful for the court to pass a decree containing directions regarding the application of the sum, if any, advanced to the landlord and making other suitable alterations in the terms recorded in the instrument executed by the parties." 5. As I have already said, a kanamdar is a tenant, and S.6 confers on him fixity of tenure and prohibits resumption of his holding except as provided in the Act. What those provisions for resumption are we need not stop to consider, for, the plaintiffs have no case that they are - entitled to the decree they have obtained if indeed the transfer in question is a kanam. 6. Considering first the definition of "kanam" (as it applies in the Malabar area) it will be noticed that the ingredient of a transfer for consideration of an interest in specific immovable property and incidents (a) and (6) namely the right of the transferee to hold the property liable for the consideration, and his liability to pay interest on the consideration, are essential features of a possessory mortgage. And with regard to incident (c) [leaving out the alternatives of payment of customary dues or the incident of renewal on the expiry of any specified term which do not obtain in the present case and which perhaps would stamp a transaction as a kanam, and confining ourselves to the first incident of payment of michavaram], a periodical payment [of excess profits] is quite consistent with a possessory mortgage, in fact, is a common incident of such a mortgage. Whether this periodical payment is michavaram and whether the transferor is a landlord will depend on whether the transfer is a kanam. These features then do not help us to tell a kanam from a possessory mortgage though, of course, the absence of incident [c] would stamp the transaction as a mortgage. The essential difference between a kanam and a possessory mortgage is clear from a comparison of the definition of a kanam with the definition of a mortgage in S.58 of the Transfer of Property Act and the definition of a lease in S.105. It is that while both a kanam and a possessory mortgage involve putting the transferee in possession of the property transferred, a kanam is predominantly a lease, the transfer being for the transferee's enjoyment of the property, whereas a possessory mortgage is essentially a loan, the transfer being for the purpose of securing repayment. This is what all the decisions bearing on the question say. But, enjoyment is normally an incident of possession and the two words are commonly regarded as synonymous. Both kanam and a possessory mortgage involve transfer of possession and a appropriation of profits towards interest and hence the distinction of a kanam being a transfer for enjoyment and a mortgage being a transfer for purposes of security is largely an abstraction, of little use as a test for discovering from the words employed in the deed itself whether a particular transaction is a kanam or a possessory mortgage. Whether the transfer is a kanam or a possessory mortgage, the "words "kaivasam" or "anubhavam" are indiscriminately used in the deeds to indicate the transfer of possession and enjoyment. Courts have therefore been driven to formulate other tests for determining whether a transfer is for enjoyment or by way of security, in other words, whether the transaction is essentially a lease or a loan. Courts have therefore been driven to formulate other tests for determining whether a transfer is for enjoyment or by way of security, in other words, whether the transaction is essentially a lease or a loan. The more important tests that occur to me are: [1] The label given to the transaction in the deed itself; [2] The ratio which the consideration advanced bears to the value of the property transferred, a higher ratio being indicative of a loan and therefore of a mortgage and a lower ratio of an advance to secure due payment of the rent ImWpw ]Ww generally regarded as the main origin of the tenure and of its name, though impecunious landlords often used the device for borrowing money from their tenants without suffering the stigma of being their debtors and without being under any obligation to repay except when they wanted back their land) and therefore of a kanam. [See the second proviso to S.21 of the Malabar Tenancy Act 1929 which shows that a transfer, even if it satisfies the definition of a kanam, is resumable if the consideration received by the transferor exceeds a certain percentage of the value of his rights in the holding with the result that the transaction becomes, for all practical purposes, a possessory mortgage and ceases to be an irresumable tenancy]; [3] Anything savouring of subjection on the part of the transferee to the transferor in accord with the normal relations between a tenant and a landlord, or, at any rate, with what used to be regarded as the normal relational in less progressive feudal times. Such would be tributes like Onakazhcha, "the customary dues" of S. S.2 [7] of the Act, an incident and, it seems to be a distinctive incident of a kanam¬see S.2 [18] [c]; [4] Anything in the nature of a covenant to pay entitling the transferee to ask for a return of his money otherwise than when the transferor seeks to recover the property. Usually this takes the form of a provision for recovery of the money by sale of the property. This, it seems to me, would put; it beyond doubt that the transaction is a loan and not a lease, and therefore a mortgage and not a kanam. Usually this takes the form of a provision for recovery of the money by sale of the property. This, it seems to me, would put; it beyond doubt that the transaction is a loan and not a lease, and therefore a mortgage and not a kanam. The) absence of such a provision would, however, be no pointer the other way for it would be quite consistent with a mortgage which is purely usufructuary; [5] Whether the transfer is in renewal of a prior transfer, especially where the prior transfer is a kanam. Speaking for myself, I think this test is equivocal, for, it might well be that, on the expiry of the term, the landlord was not prepared to allow the tenant to retain possession except as a mortgagee in view of impending legislation conferring rights on tenants. The tenant also might have consented to this because otherwise he stood to lose the land, and, so far as I can see, there is no law preventing the parties to a kanam from substituting a possessory mortgage in its place. I see nothing either in the Malabar Tenancy Act or in the Kerala Agrarian Relations Act suggestive of any such presumption as, "Once a tenant, always a tenant". What they seek to expose [by S.22 of the former Act and S.9 of the latter] is the mask of a mortgage worn by what is in reality a lease. With a great respect I think the emphasis placed on this test by some of the decisions is mistaken, whatever might be its value as a piece of evidence in support of a plea under S.9 Of course, where the deed itself makes provision for a renewal the position would be very different. That would immediately stamp the transaction as a lease and not a mortgage; [6] The transferor's need for money indicating that the consideration advanced, and against which the property is held by the transferee is more in the nature of a loan than a deposit But it is to be remembered that a kanam is often a device consciously adopted by landlords for raising money and that it would not be right to presume that any transfer, short of a sale, for the purpose of raising money implies a borrowing. A lease with a premium is a means of raising money but involves no borrowing. A lease with a premium is a means of raising money but involves no borrowing. Moreover, recitals of need are often incorporated to show legal necessity (where legal necessity is required to justify the transfer) or to show that the recital of consideration is real; [7] Whether the periodical payments are stated to be by way of residual rent (the "michavaram" of S.2 (29) of the Act) or by way of residual profits, another way of ascertaining whether the transaction is essentially a lease or a mortgage. This test again often fails in practice. Generally speaking the rental value of a land is regarded as the measure of the net profit it yields, the tenant's profit being regarded as part of the expenses of cultivation. As a rule, in the Malabar area, every piece of land, whether actually in the hands of a tenant or not, has a rental value attached to it and which enters into its description. A mortgagee in possession is not usually required to actually account for the profits derived by him An estimate is made and he is required to adjust the amount towards interest and if there is a balance, to make a periodical payment of the balance to the mortgagor. This estimate is almost invariably the fair occupation - rent (of S. 76 [h] of the Transfer of Property Act) and hence it often happens that even in the case of a possessory mortgage the deed speaks of pattom in the process of computing the profits, and of purappad or michavaram in referring to the residual payment In fact the word "pattom" is often used to mean profits though strictly speaking it means rent. That the deed of transfer mentions pattom, purapad or michavaram is therefore no strong indication that the transaction is a kanam and not a mortgage. 7. Before proceeding to consider the transfer now in question in the light of these tests, I might say a word or two regarding the precise scope of S.9 of the Act, formerly S.22 of the Malabar Tenancy Act. It is commonly thought - and possibly that has also found expression in some decisions - that the effect of this section is to render the name given to the transfer in the deed itself as of no consequence whatsoever. It is commonly thought - and possibly that has also found expression in some decisions - that the effect of this section is to render the name given to the transfer in the deed itself as of no consequence whatsoever. It is also sometimes thought that it was S.22 of the Malabar Tenancy Act that for the first time conferred on the courts the power to construe a document differently from the label given to the transaction in the document itself. The legislature itself seems to have laboured under this belief, for, the definition of "kanam" in S.2 [18] of the Act would appear to assume, what is clearly not the correct position, that for a transaction in the Malabar area to be a kanam, the document effecting it must describe it either as a kanam or kanapattom, whereas in the other areas of the State the transaction can go by any name whatsoever. Probably the definition, so far as the Malabar area is concerned, had in mind S.9 of the Act enabling any interested person in the case of land in the Malabar area to plead and prove [as he could under S.22 of the Malabar Tenancy Act] that whatever the transaction purported to be, it was in fact not such a transaction, but a transaction byway of kanam or other lease. 8. This, it seems to me, is a misconception. The courts have never allowed themselves to be unduly oppressed by the name given to a transaction in the deed effecting it, and, where the terms of the deed clearly spell a different transaction, have felt themselves free to ignore the name. Thus courts have often construed what professes to be a will as a settlement deed, what professes to be a maintenance arrangement as a partition, and, even before the enactment of S.22 of the Malabar Tenancy Act, what professes to be a mortgage as a kanam. And vice versa But the name is prima facie a valuable indication of the purport of a deed, especially when the transaction named is a well-known transaction carrying with it certain well-defined legal incidents; and, when the terms themselves are equivocal, the name may be conclusive.1 do not think that S.22 of the Malabar Tenancy Act or S.9 of the Act in any way affects the significance of the label given to a transaction in the very deed effecting it. Under S.91 of the Evidence Act, so far as transfers in writing are concerned, the court cannot look into anything except the document itself for determining the true nature of the transaction, though, of course, for understanding the true meaning of the document it will doubtless relate its language to the surrounding circumstances. What the court has to ascertain is the purport of the document, that is all that matters. But, in doing so, it will pay due heed to the name given to the transaction in the document itself, for, that is a valuable prima facie indication of its purport and, where the terms of the document do not yield any definite result one way or the other, can be conclusive as to its nature. As I have already said S.22 of the Malabar Tenancy Act and S.9 of the Act have really no bearing on the value to be attached to the label given by the document itself. What these provisions enable is to get rid of, not the name used in the document - that could always be done if the purport were clearly different - but of its purport. The name is no doubt one of the factors to be considered in determining the purport, but what the provisions in question say is that notwithstanding anything in the Indian Evidence Act (the particular provision aimed at must be S.91) a person may plead, adduce evidence and prove, otherwise than by the document itself, that the transaction embodied therein, although purporting to be a mortgage, was, in truth, a lease. In other words, they enable a person claiming tenancy rights to show, contrary to the provisions of S.91 of the Evidence Act, that notwithstanding that the words used make out a mortgage, the transaction really entered into was a lease. Obviously the provisions are designed to meet cases where, in granting a kanam or other lease, a landlord, taking advantage of his superior position, so words the deed as to make it appear a mortgage. Ordinarily the parties would be confined to the four corners of the deed but these provisions enable the tenant to rend the mask of the deed and expose the true features of the transaction with the aid of other evidence. Ordinarily the parties would be confined to the four corners of the deed but these provisions enable the tenant to rend the mask of the deed and expose the true features of the transaction with the aid of other evidence. The provisions then are not an aid to the construction of the deed, to ascertaining its true meaning resolving the nice distinction between a kanam and a mortgage, but are an aid for making out a transaction different from what the deed proclaims. They contemplate even a verumpattom masquerading as a mortgage. 9. It seems to me then that in the Malabar area there are two stages in determining whether a particular transfer is a mortgage or a kanam. The first is, as in any other case, to construe the document itself paying due heed to its label but primarily to its terms, and where those terms betoken a different transaction, not to be oppressed by the label chosen. If, on such a construction, it turns out that the transfer is a kanam, there the matter ends. But, if it turns out that the transfer is a possessory mortgage, the matter does not end, for, it is still open for the transferee or other person interested to plead and prove by other evidence that the transfer really effected by the parties was a kanam or other lease. 10. So far as construction is concerned, I think it would be right to say that, in the case of a deed as of a statute, what the court tries to find out is what a reasonable man, who has taken care to inform himself of the surrounding circumstances in the case of a deed, and of the scope and intendment of the enactment in the case of a statute, would understand by the words employed. All the rules of construction are directed to this end. One reason, and that is the reason usually emphasised, is that the parties to a deed, no less than the law makers, must be presumed to be reasonable men and to have meant by the words they have used what a reasonable man would understand from them in their context. But, it seems to me, that there is another reason not less real for not being usually mentioned. But, it seems to me, that there is another reason not less real for not being usually mentioned. That is that the law is not solely the concern of the law-maker or a deed solely the concern of the parties to it; the law affects the rights and liabilities of the citizen, and a deed, the rights and liabilities of third parties dealing with the property. Therefore the law, no loss than a deed must, on the face of it, enable persons whose rights and liabilities it affects, to understand what it really means; and the test is what a reasonable man, informing himself of the context, would understand from the words used. It is, I think, this no less than the rule of best evidence and the desire to discourage perjury that underlies S.91 of the Evidence Act and underlies also the rules of statutory construction which dissuade a court from attempting to discover the intention of the legislature otherwise than from the words used, construed in the light of the scope and intendment of the statute Otherwise there were no need to rule out all evidence, other than the deed or statute itself, regarding the real intention however reliable and conclusive that evidence might be. The policy of the law seems to be that, since others are affected, the intention of the legislature or the parties as appearing from the words used, is the only relevant consideration, and that any secret intention or private meaning is of no consequence. It is to this rule that S.22 of the Malabar Tenancy Act and S.9 of the Act provide an exception, so as to enable a tenant who has been persuaded to subscribe to a document which does not truly reflect the transaction actually entered into, to prove what the transaction really was. 11. I must confess that this train of thought, or at any rate, the expression thereof, has been prompted by an observation of Devlin, L.J., in a very recent case, Davies v. Elsby Brothers Ltd. (1961) I WLR 170 at p. 178 and I am indebted to my learned brother, M. S. Menon, J., for having brought it to my notice: "It is a general principle of English law, not merely applicable to cases of misnomer that the intention which the framer of the document has in mind when he brings it into existence is not material. In that we differ from many continental systems. In English law as a general principle the question is not what the writer of the document intended or meant but what a reasonable man reading the document would understand it to mean;" Without venturing so far, I think I might say that, whatever may be its ultimate object, the quest in the judicial construction of a deed, as of a statute, is to discover what a reasonable man (who, as I have said, has taken care to inform himself of the context and the surrounding circumstances) would understand by the words used. 12. How this becomes material in cases like the present is that a reasonable man reading a deed would attach some importance to the name given by the deed to the transaction it effects, and, if there is nothing in the terms of the deed to spell a different transaction, would accept the name, particularly so, I should think, where the transaction is a well-known transaction carrying with it special legal incidents. 13. I shall now proceed to the first stage of ascertaining the purport of the deed now in question, in other words, what a reasonable man would understand by it in the light of the surrounding circumstances and the conditions prevailing in 1920 when it was executed. Ext. B1 runs as follows: "Deed of Possessory Mortgage ssIhi]Wbm[mcw executed by Moothakutty, son of Pulikkal Earatchalil Athan, Kuzhimannam desom, Ernad Taluk, in favour of Ahamed Haji and brother Pokker Ali, sons of Illiyan Moidin Haji of the said desom. I am hereby giving you possession, by way of mortgage, of one item of paramba described in schedule hereinbelow, with all the improvements therein as described in schedule B except the shop building shown in item 35 in the account prepared by the commissioner in O.S. 165 of 1919, a suit filed by me against No.1 among you and others and in execution of the decree in which I took delivery, and which belongs to me in kanam right and is in my possession, and I have received from you in cash Rs. 200 for the purpose of depositing the same in the said litigation. For this Rs. 200 for the purpose of depositing the same in the said litigation. For this Rs. 200 you shall have possession of the Paramba with the improvements and cultivate it in mortgage right and, after deducting from the pattom the interest on the mortgage, the maintenance expenses for the property, and the Sirkar tax that may from time to time be imposed on the property, shall pay me a purapad pattom of Rs. 2 from 1096 Meenam and take receipts from me, and, in case of default in payment of purapad, pay interest thereon at 2 per 100 per mensem. And it is agreed that, at any time after the expiry of one year, upon demand for mortgage money by you or for the paramba by me, then, without let or hindrance, the mortgage amount is to be paid and received by you and the paramba with all improvements is to be surrendered and an ozhumuri executed, and this document is to be returned to me. For the arrears of pattom and interest, and for damages on account of damage to any of my improvements, the mortgage money as well as yourself are always liable." The counterpart, Ext. Al is in much the same terms, and, there is nothing of particular significance in it excepting perhaps that the transferees by whom it is executed address the transferor as, Xm3 a form of address more in keeping with a creditor addressing his debtor rather than a tenant his landlord. But I would not attach any great significance to this, for, very likely the form of address was something chosen by the document-writer rather than by the parties themselves The document-writer being a Nayar, and the parties Moplas, it is quite likely that it was the form which he himself would have chosen to address either party. 14. It will be seen that there is under Ext. B1 a transfer by a person, for consideration in money, of an interest in specific immovable property to another and that the incidents of the transfer include: (a) a right in the transferee to hold the said property liable for the consideration paid by him; (b) the liability of the transferor to pay the transferee interest on such consideration; and (c) a periodical payment by the transferee to the transferor. These features with the exception of the last are essential features of a possessory mortgage and the last is by no means inconsistent with such a mortgage. The question is whether the transfer of the property was for the purpose of securing the money advanced, or for the purpose of the transferee's enjoyment thereof. On that will depend whether the transfer is a kanam or a mortgage. The remaining ingredients of the definition of a kanam in S.2 (18) of the Act, namely, that the transfer should be by a landlord and the periodical payments by way of michavaram merely beg the question, for the definition of those words in clauses (23) & (29) of S.2 of the Act shows that the satisfaction of these ingredients depends solely on the transfer being a kanam. 15. In a case like this, where the ingredients which are common to a kanam & to a possessory mortgage are satisfied and the only thing remaining to be determined is whether the transfer was by way of security or for the purpose of enjoyment, there is a tendency to assume, that the transaction must be a kanam (ignoring altogether the label given by the deed on the footing that S.22 of the Malabar Tenancy Act, now S.9 of the Act, renders that of no consequence) and then see whether there is anything in the terms that is clearly to the contrary. This, as I have already indicated, seems to me a wrong approach. The correct approach is to take the terms of the document into consideration paying due heed to the label used, and ascertain from them whether the transaction is essentially a loan or a lease, in other words, whether the transfer is essentially for the purpose of security or for the purpose of enjoyment. If, on such a consideration, it is not possible to come to a conclusion one-way or the other, then it might well be that the case will have to be decided in accordance with the onus. In a case like the present for redemption it would be for the plaintiff to prove that the transaction is a mortgage and, if that burden is not discharged, it would follow that he must fail. In effect, if it is not shown that the transaction is a mortgage, the court will have to hold that it is a kanam. 16. In effect, if it is not shown that the transaction is a mortgage, the court will have to hold that it is a kanam. 16. Turning to the terms of Ext. B1 in the light of the surrounding circumstances I have little doubt that the transaction was a loan rather than a lease, that the transfer therein was essentially by way of security for the loan advanced rather than for the enjoyment of the property by the transferee, and that the relations it created were of debtor and creditor rather than of landlord "and tenant. In the first place, there is the name used by the parties, namely, kaivasapanayam or possessory mortgage. Kaivasapanayam and kanam are well-known transactions, and there seems to me no reason why the parties should have used the former if the latter were intended. As S.22 of the Malabar Tenancy Act indicates, from 1916 onwards it was notorious that tenancy legislation was impending, under which benefits would be conferred on kanamdars. Therefore it seems rather unlikely that, after that time, anybody would use, or anybody reading a document would understand, the terms as synonymous. It would follow that in this case there was a more or less deliberate use of the word 'kaivasapanayam' to describe the transaction; and, that that word means a possessory mortgage and not a kanam, admits of no doubt. 17. The cumulative effect of the several terms of the deed understood in the light of the surrounding circumstances only tend to confirm that, far from making a mistake, the parties correctly described the transaction as a possessory mortgage. What seems to me to really conclude the matter is that there is the express promise by the transferor to repay the money advanced by the transferee (referred to in the deed as mortgage money) on demand by the latter at any time after the term of one year. This right of the transferee to demand repayment otherwise than on redemption by the transferor clearly be speaks a loan and is, in my view, altogether inconsistent with the transaction being a kanam. 18. Although this is scarcely necessary for arriving at a decision in this case I shall briefly refer to the other features relied upon by the plaintiffs to show that the transaction was a possessory mortgage and not a kanam. 18. Although this is scarcely necessary for arriving at a decision in this case I shall briefly refer to the other features relied upon by the plaintiffs to show that the transaction was a possessory mortgage and not a kanam. The property transferred was about 41/2 acres of barren land with nothing of value on it excepting one or two jack trees and two buildings. The consideration received is Rs. 200, more or less the value of the buildings, the land itself being practically valueless, so that it represents a very high proportion of the total value of the property transferred. The term fixed is one year, certainly a ridiculously low period if what was intended was the enjoyment of the land in question, especially having regard to the fact that the land was a barren paramba. The customary term for a kanam was, as indicated by the definition in S.3 (1) of the original Malabar Tenancy Act, 12 years; and I should think that so short a term as one year for a kanam is unheard of. It is true that the present definition of a kanam does not require any term, but what we are now trying to ascertain is what the deed in question must have meant when it was executed in 1920. There can be no doubt that at that time a kanam was ordinarily for a term of 12 years and, although sometimes less, never, I should think, so short as one year. That, in fact, the transferees have remained in possession for over 40 years by now is not a relevant consideration, for that can happen even in the case of a possessory mortgage in which no term at all is prescribed. Another feature to be noticed is that the consideration for the transfer was taken by the transferor for the purpose of a deposit towards a redemption decree he had obtained in respect of the property and other properties against one of the transferees himself, and this, it would appear, emphasises the essential character of the transaction as a loan. Another feature to be noticed is that the consideration for the transfer was taken by the transferor for the purpose of a deposit towards a redemption decree he had obtained in respect of the property and other properties against one of the transferees himself, and this, it would appear, emphasises the essential character of the transaction as a loan. It would also appear from the findings of the courts below that the income from the land would barely suffice to meet the interest on the advance and the kist and the purapad, leaving little or no margin for the transferee which again is an indication that the primary purpose could not have been enjoyment by the latter Taking all these factors into consideration along with the name used, not merely at the head of the document but at every stage where it became necessary to describe the transaction, I think it can safely be said that the purport of the deed makes out a mortgage and not a kanam. 19. I might mention the features on which reliance is placed on behalf of the appellant for the purpose of showing that the transaction is a kanam.. Much emphasis is laid on the sentence which says that the transferee is to keep possession of the paramba and cultivate it {"O1"m is the word used) to show that the primary object of the transfer was the enjoyment of the land by the transferee. But this loses sight of the word qualifying the word, ""s'"m~ namely the word, ]WbmhImiambn clearly indicative of the fact that such possession or enjoyment as was to be had by the transferee was to be in his character as a possessory mortgagee. Then it is said that a counterpart was executed. This is a very common feature even in the case of possessory mortgages, and seems to be an invariable feature where there are periodical payments to be made to the transferor; and hence the existence of a counterpart is no indication one way or the other. Then it is said that no right of sale is mentioned. But, as I have pointed out, there is a promise to pay, which is what really stamps the transaction as a loan and which would imply a right to recover by sale of the land even if no express mention is made of such a right. Then it is said that no right of sale is mentioned. But, as I have pointed out, there is a promise to pay, which is what really stamps the transaction as a loan and which would imply a right to recover by sale of the land even if no express mention is made of such a right. Moreover there is no right of sale in a usufructuary mortgage pure and simple, and this feature is at best a negative feature in the sense that while a right of sale would be an indication of a mortgage, its absence would be no indication one way or the other. Attention is drawn to the fact that it is not said that the money was taken by way of loan, but, as we have already seen, the circumstances show a loan rather than an advance on a lease. There is no mention at all of title deeds, and it is said that in the case of a mortgage, it is usual to hand over the title deeds and to make mention of that fact, or, in case title deeds are not handed over to state why they have not been handed over. This might be a feature of some little significance, but it would appear from the recitals in the deed itself that the transferor had only recently obtained a decree for a redemption of this very property among other properties as against one of the transferees so that any reference to title or title deeds was perhaps regarded as unnecessary. The use of terms like purapad, purapad pattam and pattam with reference to the periodical payments to be made by the transferee to the transferor, leads us nowhere, for, as I have already remarked, these terms are quite commonly used to describe the residual profits payable by a possessory mortgagee. 20. There is nothing in these features to throw the least doubt on the conclusion I have already reached that the transaction embodied in Ext. B1 is, on the face of that deed, a mortgage and not a kanam. 21. The next stage is to ascertain whether, in terms of S.22 of the Malabar Tenancy Act, now S.9 of the Act, there is anything to show that, contrary to the tenor and purport of the deed, the transaction embodied in Ext. B1 was, in fact, a kanam. 21. The next stage is to ascertain whether, in terms of S.22 of the Malabar Tenancy Act, now S.9 of the Act, there is anything to show that, contrary to the tenor and purport of the deed, the transaction embodied in Ext. B1 was, in fact, a kanam. There was nothing adduced by any of the contesting defendants to show that the transaction was really a kanam notwithstanding the terms of the deed that was actually executed. Their endeavour was throughout to show that, on the terms of the deed itself, the transaction was a kanam, an endeavour in which they failed in the two courts below and have now failed before me. In this connection it might be significant to note that, in the first written statement filed by defendants 5 to 9 (defendants 5 to 8, then minors represented by their mother the 9th defendant) on 29th August 1944, the only right claimed by these defendants was a mortgage right, and all that they sought was payment of the mortgage money together with the value of improvements The dispute really was whether these defendants or some other defendant had the mortgage right. The suit suffered many vicissitudes and, although redemption was once decreed in 1946 on the footing that the transaction was a mortgage, the suit came back for re-trial. In 1949, the 8th defendant who had by then become a major filed a written statement in which again he emphasised that his right was a panayavakasam, although, in seeking a stay of the suit under the provisions of Madras Act XVII of 1946 he did say that he was a tenant under the provisions of the Malabar Tenancy Act and that the suit should therefore be stayed. Even so, he did not say that he was a kanamdar, and the claim for the stay seems to have been based more on the circumstance that there were tenants holding under him rather than that he himself was a kanamdar or other tenant It was only in his written statement dated 28th February 1953 that for the first time the 8th defendant claimed fixity. Even so he was content to say that he had tenancy rights. He did not specify how exactly he was a tenant, and, in particular, did not say that the transfer under Ext. B1 was a kanam. 22. Even so he was content to say that he had tenancy rights. He did not specify how exactly he was a tenant, and, in particular, did not say that the transfer under Ext. B1 was a kanam. 22. I hold that the transaction in question was, in purport as in truth, a possessory mortgage and not a kanam. 23. This however is not an end of the matter since, under the definition of a tenant in S.2 (50) of the Act - see explanation II thereto - a person who on 11th April 1957 was continuously in occupation of the land of another situate in Malabar for not less than two years bona fide believing himself to be a tenant and who continued to be in occupation until the commencement of the Act is to be deemed to be a tenant. The 8th defendant has filed an additional written statement averring that he and defendants 4 to 7 & 9 have been in continuous occupation from beyond two years prior to 11th April 1957 up to this date, in the bona fide belief that they were kanamdars by virtue of the transfer effected by Ext B1. This is a question of fact which will have to be investigated, and therefore I call for a finding from the lower appellate court on this question. I would frame the issue thus: Were defendants 5 to 9 continuously in occupation of the suit land from a point of time more than two years before 11th April 1957 till the commencement of the Act bona fide believing themselves to be kanamdars? The parties will be allowed to put in fresh pleadings and adduce fresh evidence in respect of this issue. Of course, the issue will have to be decided on the footing that the transfer effected by Ext. B1 was in fact only a possessory mortgage and not a kanam. The finding will be submitted within two months of the records reaching the lower appellate court, and objections, if any, will be filed within two weeks thereafter. 24. Of course, the issue will have to be decided on the footing that the transfer effected by Ext. B1 was in fact only a possessory mortgage and not a kanam. The finding will be submitted within two months of the records reaching the lower appellate court, and objections, if any, will be filed within two weeks thereafter. 24. I might perhaps mention that several objections have been taken to this additional plea of the 8th defendant primarily that explanation II to S.2 (50) cannot be availed of by a person who holds under an express contract and that such a person cannot be heard to say that he bona fide believed his contract to mean something other than what it really means. I shall consider those objections when finally determining the matter after receipt of the finding It should now suffice to say that they have not impressed me in such a way as to dissuade me from calling for the finding.