JUDGMENT P.T. Raman Nayar, J. 1. This appeal, by a plaintiff, is against an order of remand. 2. On 22nd September 1948, the respondent-defendants, who are admittedly agriculturists entitled to the benefits of Kerala Act 31 of 1958, borrowed Rs. 4,250 from the appellant-plaintiff on the possessory mortgage, Ext. P-2, under the terms whereof the profits accruing from the mortgaged property were to be appropriated in lieu of interest. On 27th March 1950, they paid a sum of Rs. 2,500 towards the debt, thus reducing the principal to Rs. 1,750. On the same day, they took the property back on lease under Ext. P-1 for an annual rent of Rs. 210, which works out exactly to interest at 12 per cent per annum on the outstanding principal. (This shows that though no rate of interest is specified in the mortgage, the provision being that the entire profits should be appropriated in lieu of interest, the interest could not have worked out to less than 12% per annum.) In 1960 the plaintiff brought his present suit in which (after an amendment of the plaint on the basis that the defendants were entitled to the benefits of Act 31 of 1958) he sought a decree for the outstanding principal of Rs. 1,750 together with interest thereon at 5% per annum from 27th July 1958, the rent due under Ext. P-1 up to that date having been paid in full. 3. The defendants contended that, although the mortgage, Ext. P-2, purported to be a possessory mortgage, possession was not, in fact, handed over, and that, till the date of the leaseback under Ext. P-1, they were paying interest at the rate of 12% per annum. They therefore demanded that the debt be scaled down under the provisions of the Act, interest being allowed only at the rate of 5% per annum from the date of the mortgage in accordance with section 5. 4. P-1, they were paying interest at the rate of 12% per annum. They therefore demanded that the debt be scaled down under the provisions of the Act, interest being allowed only at the rate of 5% per annum from the date of the mortgage in accordance with section 5. 4. The first court, while rightly holding that under sub-section (6) of section 11 of the Act, the possessory mortgage could be deemed to be a simple mortgage only from the date of the leaseback in other words, from 27th March 1950, at the same time wrongly held that, by reason of clause (b) of the sub-section, only interest accrued due after the commencement of the Act, i.e., after 14th July 1958, could be reduced to 5% and that there could be no reopening of the payments made before that date which it thought must be appropriated in entirety in satisfaction of the interest accrued up to that date. (These payments were as for rent, but, by reason of the retrospective transmutation of the possessory mortgage into a simple mortgage with effect from the date of the leaseback so that it is as if the leaseback had never been, must be deemed to have been never due on that account.) In so holding, it apparently lost sight of the provisions of clause (a) of sub-section (6) which says that, The Mortgage shall be deemed to be a simple mortgage from the date of the leaseback and the provisions of this Act shall apply to the debt covered by the mortgage ". Among the provisions to be so applied would be sections 4 and 5 of the Act, This view has been taken by a Division Bench of this court in Pylee v. Madhavi Amma 1963 K.L.T. 332 so that the Single Judge decision to the contrary in Philipose v. Raman 1963 K.L.T. 317 cannot be regarded as good law. Among the provisions to be so applied would be sections 4 and 5 of the Act, This view has been taken by a Division Bench of this court in Pylee v. Madhavi Amma 1963 K.L.T. 332 so that the Single Judge decision to the contrary in Philipose v. Raman 1963 K.L.T. 317 cannot be regarded as good law. That section 11 (6), by clause (b) thereof, provides only for interest after the commencement of the Act rather unnecessarily, I should have thought, since the effect of section 5(1) (a) (i) would be to make 5% the rate both before and after the commencement, it being highly unlikely that the contract rate would, in any case, be less than 5% in this particular case, it was more than 12% and if, in any case, it is actually less, that the intention was that interest should be paid at the higher rate of 5% after the commencement of the Act and not for interest accrued due before that date, does not imply that in respect of such interest the provision in the mortgage for the appropriation of profits in lieu of interest is extant. For, with the retrospective conversion of the possessory mortgage into a simple mortgage as from the date of the leaseback, that provision goes, with the result that payment of interest on the simple mortgage will be governed by section 5 which is attracted by clause (a) of section 11 (6). 5. It is rather difficult to understand the judgment of the lower appellate court, for it talks of a "plaint mortgage of 1950" (the plaint mortgage is actually of 1948) and of that mortgage being ''deemed to be a simple mortgage debt only from the date of that document as per section 11, clause (6) of the Act". It also speaks of a "prior mortgage transaction, Ext. P-2, dated 6th Kanni 1124 M.E. (22nd September 1948 A.D)" .Ext. P-2 is in fact, the only mortgage transaction in this case. It also speaks of a "prior mortgage transaction, Ext. P-2, dated 6th Kanni 1124 M.E. (22nd September 1948 A.D)" .Ext. P-2 is in fact, the only mortgage transaction in this case. However, it would appear from the following portion of its judgment that it thought that section 9 of the Act enables a debtor to prove that what purports to be a possessory mortgage was only a simple mortgage it seems to have laboured under the belief that a possessory mortgage was not a transaction of debt and that, if the suit mortgage was thus shown to be only a simple mortgage, the plaintiff would be entitled to interest only at 5% per annum from the date of the mortgage subject to a maximum of one half of the principal amount for interest accrued up to the commencement of the Act, and that payments made in excess should go in reduction of the principal: " The defence contention is that the prior mortgage transaction (Ext. P-2) dated 6th Kanni 1124 for Rs. 4,250 is really a transaction of a debt and that it was intended only as a simple mortgage. It is seen that the court below has not considered this aspect of the defence case and that no issue has been raised in that behalf. If Ext. P-2 mortgage is a transaction of debt coming under the Act, the plaintiff is entitled to claim only 5% interest on the mortgage debt from the date of Ext. P-2 not exceeding a moiety till the date of the Act less the amount already paid. Hence for the satisfactory disposal of this suit, an additional issue, viz., 'whether the transaction under Ext. P-2 is really a transaction of debt as contended' has to be raised and tried. The court below has also gone wrong in holding that the payments made as pattom cannot be reopened and adjusted towards the interest payable at 5%." In this view the lower appellate court set aside the decree passed by the first court and remanded the suit to it for fresh disposal after trying the additional issue. 6. As I have already indicated, the view taken by the lower appellate court that, under section 9, a debtor is entitled to prove that what purports to be a possessory mortgage was, in truth, a simple mortgage is wrong. 6. As I have already indicated, the view taken by the lower appellate court that, under section 9, a debtor is entitled to prove that what purports to be a possessory mortgage was, in truth, a simple mortgage is wrong. A possessory mortgage no less than a simple mortgage is a transaction of debt, and the section which says that a subsisting transaction, whether reduced to writing or not, can be reopened at the instance of an agriculturist on the ground that it is really a transaction of debt, cannot entitle a person to come forward and prove, the provisions of sections 91 and 92 of the Evidence Act notwithstanding, that a possessory mortgage embodied in a deed was in truth a simple mortgage or subsequently became one by some arrangement not reduced to writing. At the same time, it is equally clear that the first court was wrong m thinking that interest was payable at the reduced rate of 5% per annum only from the date of the Act. By reason of section 5 of the Act, interest is payable only at that rate from the date of the conversion of the possessory mortgage into a simple mortgage, namely, from 27th March 1950. All payments made after that date as for rent due under the leaseback, Ext. P-1 (which has been retrospectively contracepted, if I might use such an expression) must be deemed to be payments towards the debt in fact they must be regarded as payments towards interest since they represent the profits which, under the terms of the mortgage, are to be appropriated in lieu of interest and to the extent to which they exceed interest at the rate of 5% per annum, or the ceiling of one half of the principal for interest due upto the commencement of the Act, must go in reduction of the principal in accordance with the provisions of section 5 of the Act. It is thus that the principal amount outstanding after the admitted payment of rent so called upto 27th July 1958 has to be determined, and, on this principal sum, interest will be payable after that date at 5% per annum. Credit will, of course, have to be given for any payments made after that date. It is thus that the principal amount outstanding after the admitted payment of rent so called upto 27th July 1958 has to be determined, and, on this principal sum, interest will be payable after that date at 5% per annum. Credit will, of course, have to be given for any payments made after that date. The court will also have to consider whether the defendants are entitled to the benefits of sub-sections (2) and (3) of section 4 of the Act or whether they have forfeited these benefits under the proviso to sub-section (5) thereof. 7. These matters can be determined only by the first court and, therefore, the order of remand against which this appeal is directed, will stand subject to this modification, namely, that the first court will now proceed to make a decree in accordance with the provisions of the Act in the light of what has been said in this judgment and not in accordance with what has been said in the order of remand made by the lower appellate court. And, in this connection, I might observe that, even if the defendants have forfeited the benefit of sub-sections (2) and (3) of section 4 of the Act, they would still be entitled to the benefits of section 5 see the Division Bench ruling in Antony v. Krishnan Nair I.L.R. 1964 (1) Kerala 295. 8. There will be no order as to costs in this appeal.