Judgment :- 1. In this revision and the appeal, the decree of the lower court dismissing S. C. S.127/60 and allowing an application filed under S.11 (6) of Kerala Act 31/1958 in A. D. R. P. 8/58 is the subject of attack. 2. I will refer in these proceedings to the rank occupied by the parties in the Small Cause Suit because that will be more convenient. The plaintiff is the petitioner in C. R. P. 486/62, as well as appellant in A. S.480/62. The plaintiff instituted Small Cause Suit 127/60, Munsiff 's Court, Changanacherry, against the two defendants, the first defendant being the husband, and the second defendant being the wife of the first defendant for recovery of arrears of rent for the year 1958 stated to be due from both the defendants on the basis of a lease-deed executed by them evidenced by Ext. D-5 dated 8 91950. 3. It is seen that in this suit the first defendant namely the husband has filed a written statement to the effect that there has been an Otti transaction in favour of the plaintiff and that the properties have been taken on lease by him and that it is in his exclusive possession and enjoyment. Those allegations are found in Para.3 thereof. No doubt, he is referring to the application filed by his wife claiming relief under S.11 of Act 31/58 which will be referred to hereinafter as the Act. It is rather interesting to note that both the husband and wife were made parties to this suit. From the case diary, it is seen that summons was served on both the defendants on 2710 60. The 1st defendant-husband alone entered appearance, filed vakalath and asked for time for filing written statement. There is also an entry in the case diary on 2710 60 to the effect that the second defendant namely the wife of the first defendant, did not appear though summons has been served and she has been declared exparte on that date. Later on the first defendant has filed a written statement, to the material part of which I have already referred to earlier. 4. Later on the first defendant has filed a written statement, to the material part of which I have already referred to earlier. 4. It will be seen from the judgment of the learned Munsiff that she does not appear to have been at all aware of the fact that there are two defendants to the action namely the husband and wife and that the wife never cared to enter appearance at all and put forward any defence in the suit. But on the other hand, the entire discussion in the judgment of the learned Munsiff is a reference, not to the plea raised by the first defendant claiming to be in exclusive possession of the property as a tenant; but there is only a reference to the second defendant as having raised the plea that there has been a lease back in her favour as contemplated under S.11(6) of the Act and that she is entitled to discharge the debt under the provisions of that statute. The learned Munsiff also refers to the fact that the second defendant refers to the circumstance that she has already initiated the proceedings under the Act being A. D. R. P. 8/58 to discharge the debt and the learned Munsiff takes note of what she calls as her contentions that no relief for arrears of pattam to be awarded to the plaintiff in the suit. Ultimately the learned Munsiff takes the view that inasmuch as the A. D. R. P. 8/58 filed by the wife namely the second defendant was allowed on that date, no relief can be granted to the plaintiff in the Small Cause Suit. It is really on that ground that the Small Cause Suit filed by the plaintiff against both the defendants was dismissed. 5. It is rather unfortunate that the learned Munsiff has not cared to find out as to which party has filed a written statement and what particular stand is being taken by that party. The second defendant was not in the scene at all before the court whereas the entire defence is stated to have been taken by the second defendant in the proceedings before the Court. The second defendant was not in the scene at all before the court whereas the entire defence is stated to have been taken by the second defendant in the proceedings before the Court. There is absolutely no reference at all in the judgment, so far as I could see to the stand taken by the first defendant particularly to the specific plea raised by him that he has taken the properties on lease and that he is in possession as a lessee. It is the decree of the learned Munsiff dismissing the Small Cause Suit that is challenged by the plaintiff in C. R. P. 486/62. 6. The second defendant filed A. D. R. P. 8/58 before the same learned Munsiff claiming relief under S.11(6) of the Act. Before I consider the nature of the claim made by her it is necessary to set out the circumstances under which this application was filed by the second defendant. 7. The second defendant executed an usufructuary mortgage Ext. D-1 dated 8 91950 in favour of the plaintiff for a sum of Rs. 2,000/-. Two other documents styled as purakuri deed also has been executed by her on 27101952 for Rs. 1,500/- and on 15121952 for Rs. 500/-. Therefore it will be seen that the second defendant has become indebted under these mortgage transactions to the plaintiff in the sum of Rs. 4000/- under Exts. D-1, D-3 and D-4. 8. There is no controversy that on the same date the second defendant executed the mortgage Ext. D-1 dated 8 9 50, there was a lease back in favour of, not only the second defendant, bat also her husband evidenced by Ext. D-5. 9. It is on the basis of the lease Ext. D-5 which was executed both by the husband and wife, that the plaintiff instituted the Small Cause Suit for recovery of arrears of rent for the year 1958. 10. The 2nd defendant pleaded in the A. D. R. P. that the transaction evidenced by Exts. D-1, D-3 and D-4 are covered by the provisions of S.11 (6) of the Act and therefore inasmuch as there has been an usufructuary mortgage and a lease back in favour of the mortgagor, the transaction must be deemed to be a simple mortgage and she is entitled to claim relief under these provisions. 11. D-1, D-3 and D-4 are covered by the provisions of S.11 (6) of the Act and therefore inasmuch as there has been an usufructuary mortgage and a lease back in favour of the mortgagor, the transaction must be deemed to be a simple mortgage and she is entitled to claim relief under these provisions. 11. It is seen that the second defendant alone originally appears to have filed the application under the Act. But later on the first defendant also has been joined as an additional applicant along with the wife. 12. The plaintiff raised two objections to the granting of relief under the Act namely, (1) the provisions of S.11(6) of the Act do not apply because in this case as the lease back evidenced by Ext. D-5 is not in favour of the mortgagor namely the second defendant wife but is in favour of both the second defendant-mortgagor and her husband the first defendant and therefore S.11(6) has no application; and (2) that in any event the transaction of mortgage in this case is taken outside the purview of the Act by virtue of clause (c) of S.25 of the Act. That is according to the plaintiff, the document Ext. D-1 as well as the subsequent documents Exts. D-3 and D-4 clearly make provision for payment of Michavaram by the mortgagee to the mortgagor and therefore the provisions of the Act do not apply and inconsequence the defendants are not entitled to claim any relief under Act 31/1958. 13. I have already referred to the fate of the Small Cause Suit at the hands of the learned Munsiff. So far as the D. R. P. is concerned, the learned Munsiff is of the view that notwithstanding that the husband namely the first defendant is also associated with the mortgagor namely the second defendant in the lease back transaction evidenced by Ext. D-5, there is absolutely no bar to the second defendant claiming relief under S.11(6) of the Act. That is, the contention of the plaintiff that inasmuch as the 1st defendant also is a party along with the wife the mortgagor, in the lease back transaction S.11(6) will not apply, was over-ruled by the learned Munsiff. 14. D-5, there is absolutely no bar to the second defendant claiming relief under S.11(6) of the Act. That is, the contention of the plaintiff that inasmuch as the 1st defendant also is a party along with the wife the mortgagor, in the lease back transaction S.11(6) will not apply, was over-ruled by the learned Munsiff. 14. Similarly considering the contention of the plaintiff that in view of the provisions contained in the documents concerned regarding the payment of Michavaram by the mortgagees the transaction is taken outside the ambit of the Act under S.25(c) was also not accepted by the learned Munsiff. The learned Munsiff is of the view that having due regard to the recitals contained in the document and to the nature of the relationship created between the parties under those documents namely of a creditor-debtor relationship the recitals regarding the payment of Michavaram can only be understood as the payment by the mortgagee of the balance profits accruing on the property to the mortgagor. Therefore both the contentions raised by the plaintiff were over-ruled and relief was granted to the defendants under S.11(6) of the Act. 15. Mr. P.P. John, learned counsel for the plaintiff-petitioner in C. R. P. 486/62 as well as Mr. Mathew Muricken'learned counsel for the same party who is the appellant in A. S.480/62 challenged the views expressed by the learned Munsiff over-ruling the objections raised to the maintainability of the application under the Act. 16. The points arising for decision in the Small Cause Suit will have to be in my view dealt with separately. Therefore, I will take up and dispose of the contentions of Mr. Mathew Muricken, learned counsel for the appellant in A. S.480/62. 17. The learned counsel pointed out that under S.11(6) unless the identity of the mortgagor who has executed the transaction by way of mortgage and the identity of the person who has taken the property under a lease back arrangement is the same, it cannot certainly be stated that there has been a lease back to the mortgagor as contemplated under S.11(6) of the the Act. The learned counsel pointed out that S.11 (6) is a special provision conferring certain benefits to a mortgagor in respect of such transactions and the fact that along with a mortgagor, though in this case it may be the husband, some third party also has been included in the lease back arrangement it cannot certainly be considered that there is a lease back in favour of the mortgagor under S.11 (6). 18. Association of any person along with the mortgagor in the lease back arrangement, according to the learned counsel, will take it outside the purview of S.11 (6) of the Act. This contention has not been accepted by the learned Munsiff. 19. Mr. M. M. Mathew, learned counsel for the respondents namely defendants has urged that there is absolutely nothing to indicate in S.11 (6) of the Act that by the mere association of any third party so long as the mortgagor also is a person in whose favour the lease-back is entered into to take such a transaction outside the purview of S.11 (6) of the Act. That is, according to the learned counsel so long as the mortgagor also is one of the persons in whose favour, though along with others, the transaction by way of lease is executed by the usufructuary mortgagee it must be considered to be a lease back in favour of the mortgagor and the mortgagor will certainly be entitled to a relief under S.11 (6) of the Act. 20. I am not inclined to accept this contention of Mr. M. M. Mathew, learned counsel for the respondents in this appeal. In my view, the expression'mortgagor' occurring in S.11 (6) must be given the same meaning as has to be given to the expression 'mortgagor'. That is putting it in other words the mortgagor who executed the mortgage, must be the mortgagor in whose favour a lease back arrangement has been entered into so as to attract the provisions of S.11 (6) of the Act. In this case the husband namely the first defendant was admittedly not a mortgagor under Exts. D-1, D-3 or D-4. No doubt, the second defendant was a mortgagor under these transactions. 21. Therefore when once the husband in this case has been associated with the original mortgagor in the lease back arrangement evidenced by Ext. In this case the husband namely the first defendant was admittedly not a mortgagor under Exts. D-1, D-3 or D-4. No doubt, the second defendant was a mortgagor under these transactions. 21. Therefore when once the husband in this case has been associated with the original mortgagor in the lease back arrangement evidenced by Ext. D-5 in my view, it cannot certainly be considered that the lease back is to the mortgagor so as to attract the provisions of S.11 (6) of the Act. 22. It is seen that a similar view has also been taken by my learned brother Mr. Justice T. C. Raghavan in C. R. P. 685/61. In that case it will be seen that the usufructuary mortgage was executed by one Karthiayani Amma; but she and her husband took the properties on lease. Question arose whether in respect of such a lease transaction, the provisions of S.11 (6) of the Act will apply. 23. The learned judge in considering this question observes that S.11 (6) will apply only to mortgages where the property mortgaged has been leased back to the mortgagor by the mortgagee. The learned judge also takes the view that in the case before him inasmuch as the lease back was not in favour of Karthiayani Amma alone who had mortgaged the property, but both in her favour and in favour of her husband, it is not a lease back in favour of the mortgagor and therefore S.11 (6) of the Act does not apply. I respectfully agree with the views expressed by the learned judge in the decision referred to above. 24. A similar question no doubt seems to have come up for consideration before my Lord the Chief Justice sitting with Mr. Justice P. Govindan Nair in A. S.317/62. But the counsel in that case felt difficulty in attempting to bring such a lease transaction under S.11 (6) of the Act and it is seen from the judgment that the counsel ultimately satisfied himself by getting relief under S.11 (2) to S.11 (5) of the Act. 25. Justice P. Govindan Nair in A. S.317/62. But the counsel in that case felt difficulty in attempting to bring such a lease transaction under S.11 (6) of the Act and it is seen from the judgment that the counsel ultimately satisfied himself by getting relief under S.11 (2) to S.11 (5) of the Act. 25. Therefore in my opinion, the view of the learned Munsiff that in this case notwithstanding that the lease transaction is in favour of not only the wife the mortgagor-second defendant but also in favour of the husband the first defendant nevertheless it is to be considered to be a lease back in favour of the mortgagor under S.11 (6) cannot certainly be sustained. 26. Then the second contention of Mr. Mathew Muricken, learned counsel for the appellant was 'the one based upon S.25 (c) of the Act. That section no doubt states that the provisions of the Act will not apply to a mortgage where there is provision for payment of michavaram, rent or customary dues. In this connection, the learned counsel referred me to the definition of Michavaram occurring in S.2 (36) of Kerala Act 1/964. The learned counsel urged that in this case inasmuch as the documents beginning from Ext. D 1 and ending with Ext. D 4 clearly refer to the payment of Michavaram by the mortgagee the transaction is taken outside the Act by virtue of S.25 (c). This contention has not found favour with the trial court. 27. The view of the learned Munsiff which has been sought to be sustained before me by Mr. M. M. Mathew, learned counsel for the respondent is that when once it has been held that the transaction is one creating a creditor-debtor relationship the mere circumstance that there is a reference to payment of Michavaram in these documents will not make that payment of Michavaram as is understood in the tenancy legislation. 28. M. M. Mathew, learned counsel for the respondent is that when once it has been held that the transaction is one creating a creditor-debtor relationship the mere circumstance that there is a reference to payment of Michavaram in these documents will not make that payment of Michavaram as is understood in the tenancy legislation. 28. The particular context in which the said expression occurs in the document is to the effect that the mortgagee is to take the income and after deducting interest due to him, should pay annually 170 paras of paddy as an" hmcambn That according to the learned counsel for the respondent ultimately only comes to this namely that after incurring the cultivation expenses and crediting a part of the income towards interest due, the balance profits will have to be paid over to the mortgagor. The learned counsel also pointed out that the expression "Michavaram" cannot certainly be given the meaning that is given under S.2 (36) of Act 1/1964. The learned counsel also pointed out that the said definition makes it very clear that the said payment is only when there is a landlord-tenant relationship. 29. Though the views expressed by the learned Munsiff on this aspect in favour of the respondent are not very happy nevertheless I am inclined to agree with the conclusions arrived at by the trial court on this aspect over-ruling the contention based upon S.25 (c) of the Act. Michavaram must be understood, in my view, as the balance of Pattom or rent payable to the jenmi after the interest on the money lent or advanced by a tenant has been deducted. That will only arise when there is a landlord-tenant relationship; and in this case the trial court has held that under these transactions the relationship between the parties is that of a creditor-debtor. So far as I could see the appellant has not taken up the position that the transactions do not evidence a creditor-debtor relationship but a landlord-tenant relationship. Therefore in my view, the mere fact that there is an expression as Michavaram used in these mortgage transactions cannot certainly avail to the appellant to urge that the transaction is outside the scope of the Act. 30. Therefore the rejection of the contention of the appellant in that regard by the trial court, was perfectly justified. Therefore in my view, the mere fact that there is an expression as Michavaram used in these mortgage transactions cannot certainly avail to the appellant to urge that the transaction is outside the scope of the Act. 30. Therefore the rejection of the contention of the appellant in that regard by the trial court, was perfectly justified. Then the question arises as to the nature of the relief that is to be granted to the parties. 31. This is a convenient stage to consider the grievance of the plaintiff arising for decision in in C. R. P 486/62. Mr. P. P. John, learned counsel for the plaintiff pointed out that the second defendant never took part in these proceedings. The suit is specifically on the basis of the lease executed by both the defendants. The first defendant-husband has categorically stated in his written statement that he is the person who has taken the property on lease and that he is in possession as a lessee. He has not claimed for himself any relief under Act 31/58 and has pointed out that the trial court has not at all cared to advert to the contentions raised by the first defendant but has erroneously proceeded on the basis that the second defendant who was admittedly exparte has filed a written statement and made a plea that she is entitled to the benefits of Act 31/1958. 32. Inasmuch as relief was granted by the lower Court in D. R. P. 8/58 the learned Munsiff has dismissed S. G. S.137/62. Therefore, the learned counsel for the petitioner urged that his client is entitled to a decree as against the 1st defendant in that suit as prayed for for the year 1958. 33. No doubt Mr. M. M. Mathew, learned counsel for the respondent has pointed out that the 2nd defendant has sought relief under Act 31/1958 and this claim of the plaintiff is also the subject of relief in A. D. R. P. 8/58. I am not concerned with any relief that may be claimed by the second defendant in A. D. R. P. 8 58. She never contested the proceedings in S. C. S.127/62. The first defendant has admitted that he is in possession of the properties as a lessee. I am not concerned with any relief that may be claimed by the second defendant in A. D. R. P. 8 58. She never contested the proceedings in S. C. S.127/62. The first defendant has admitted that he is in possession of the properties as a lessee. If that is so, the dismissal of the suit against the first defendant by the learned Munsiff will have to be set aside and C. R. P. 486/62 will be allowed to this extent namely, that the plaintiff will have a decree as against the 1st defendant with costs in the lower court. So far as this court is concerned, parties will bear their own costs. 34. Now coming to the directions to be given in A. S.480,62, I have already held that the second defendant is not entitled to claim relief under S.11 (6) of the Act. If that is so, it follows that the other provisions of S.11 namely sub-sections (2) to (5) will apply to the usufructuary mortgage in question and the lower court will consider her claim for appropriate relief under these provisions. 35. If in respect of the period for which a decree has been granted by this court against the 1st defendant in C. R. P. 486/62, the second defendant has made any deposits for A. D. R. P. 8 58 it is open to her to request the lower court to make suitable adjustments of any such excess payment if any, and that request will be considered and adjudicated upon by the lower court after hearing all parties concerned. 36. The second defendant will not be entitled to claim any sort of concession in respect of the period for which a decree has been passed in C. R. P. 486/62. 37. Therefore, the order of the learned Munsiff to the extent indicated above is set aside and A. S.480 62 is allowed in the manner indicated above. Parties will bear their own costs in this appeal.