Judgment :- 1. In this revision Mr. M. C. Sridharan, learned counsel for the petitioner challenges the two orders of the subordinate courts granting relief to the respondent under S.11 (6) of Act 31/58. 2. Two contentions have been taken before me by the learned counsel namely, (1) that the application that was filed before the learned Munsiff was by the assignees of the mortgagor and therefore the application was not maintainable; and (2) that, the construction placed by the two courts that the document in question Ex. A2 is not a kanam but an usufructuary mortgage is not correct. The stand taken by the learned counsel for the petitioner on these aspects is controverted by Mr. M. M. Abdul Khader, learned counsel for the contesting respondents. 3. One Chandu Asari executed on 17 7 46 a transaction evidenced by Ex. A2 in favour of one Cheriya Kunhimayan Haji and the petitioner what is purported to be a kanam. On the same date, there is no controversy that under Ex. A3 Chandu Asari took the properties on lease. Chandu Asari executed a gift of his rights in the property in favour of the applicants in O. P. 11/61 under Ex. Al dated 231154. Those assignees filed O. P. 11/61 before the learned Munsiff claiming relief under S.11 (6) of Act 31/58 and for a declaration that the entire amount due under the mortgage and a lease back has been discharged as per the Act. It may be mentioned that according to those applicants the transaction is really one by way of an usufructuary mortgage and lease back attracting the provisions of S.11 (6) of the Act. 4. The main objection to relief being granted in favour of those applicants was that the transaction evidenced by Ex. A2 is not an usufructuary mortgage accompanied by a lease-back so as to attract the provisions of S.11 (6) of the Act. On the other hand according to the petitioner the transaction is one by way of a kanam in which case the Act does not apply. Alternatively the petitioner appears to have raised a contention that even assuming that the transaction is a mortgage the document does not come within the purview of the Act in view of S.25 (c) of the Statute which takes away the transaction of mortgages provided for payment of Michavaram from the purview of the Act. Alternatively the petitioner appears to have raised a contention that even assuming that the transaction is a mortgage the document does not come within the purview of the Act in view of S.25 (c) of the Statute which takes away the transaction of mortgages provided for payment of Michavaram from the purview of the Act. It may also be stated that the first contention that is taken before me in this Court regarding the maintainability of the application at the instance of the applicants in the lower court was not raised before any of the subordinate courts but inasmuch as it is really a question of law I have permitted the learned counsel for the petitioner to raise that contention also in this Court. 5. The petitioner in particular relied upon the recitals contained in Ex. A2 to the effect that the document executed is a kanartham. The petitioner also relied upon the circumstance that when reference is made to certain other transactions it is called a panayam or kaivasapanayam. Therefore according to the petitioner parties were fully aware of what is meant by a kanam and kaivasapanayam. Therefore according to the petitioner when a document is clearly referred to as a kanartham all the legal incidence flowing from that nomenclature stands attracted to that transaction. The petitioner also appears to have raised the contention that the document read as a whole, will clearly show that there is provision for payment of revenue by his client and that amounts to a direction regarding payment of Michavaram. Therefore according to the petitioner, the transaction is a kanam and not an usufructuary mortgage. 6. As opposed to these contentions, the applicants urged that there is no question of payment of Michavaram by the transferee because Ex. A2 absolves the transferees from paying any Michavaram. There is a specific provision regarding the liability of the transferee to pay revenue and therefore the further provision in the same document which makes provision for Michavaram will clearly show that the payment of revenue contemplated under the document is not payment of Michavaram in which case alone the provisions contained in S.25 (c) may apply. 7. The learned Munsiff has construed the document as amounting to a transaction of usufructuary mortgage. Having due regard to the fact that a fairly large amount has been advanced under Ex. 7. The learned Munsiff has construed the document as amounting to a transaction of usufructuary mortgage. Having due regard to the fact that a fairly large amount has been advanced under Ex. A2 and the interest due has to be appropriated by the transferee from the income of the property and in the absence of a renewal the document cannot be considered to be a kanam but only creating a creditor-debtor relationship. The learned Munsiff held that Ex. A2 is not a kanam document but it is only an usufructuary mortgage and it has also held that even as a mortgage it is not exempted under any of the provisions contained in S.25 of the Act. 8. Having once held that it is an usufructuary mortgage the trial court had no difficulty in applying the provisions of S.11(6) because there was no controversy that on the same date as the mortgage there was a lease back in favour of the mortgagor evidenced by Ex. A3. 9. Coming to the actual relief to be granted on these findings the trial court has elaborately referred to the various payments claimed to have been made by the mortgagors and rejecting the contentions of the petitioner clearly held that the entire debt has been wiped off and in consequence granted the declaration asked for by the respondent. 10. The petitioner challenged the order of the trial court in appeal before the learned District Judge, Tellicherry. The learned District Judge has also accepted the findings recorded by the trial court and dismissed the appeal. The first contention which I have permitted the learned counsel for the first time in this Court which is purely a legal one for which no further investigation on facts is necessary relates to the maintainability of the application filed by the applicants in O. P. 11/61. According to the learned counsel it was Chandu Asari who had executed the transaction under Ex. A2. He did not file any application for relief assuming that he is the mortgagor and eligible for claiming the protection under Act 31/58. The persons who actually filed the application are assignees under Ex. Al from the original mortgagor. If that is so, the assignee of a mortgagor is not entitled to claim relief and file an application under S.11 of Act 31/58. 11. The persons who actually filed the application are assignees under Ex. Al from the original mortgagor. If that is so, the assignee of a mortgagor is not entitled to claim relief and file an application under S.11 of Act 31/58. 11. The learned counsel for the petitioner quite naturally places considerable reliance on the recent Division Bench Judgment of this Court rendered by my Lord the learned Chief Justice and Gopalan Nambiyar J. and reported in Subramania Iyer v. George (1966 KLT. 28.) 12. According to Mr. M. M. Abdul Khader this decision does not apply when a debtor seeks relief under S.11(6) of the Act. Inasmuch as both the learned counsel have started controversy regarding the actual scope of the principles laid down in the said decision it is necessary to advert to the actual facts of that case because if a Division Bench of this Court has laid down that even in respect of applications filed under S.11(6) of the Act as is the case before me, one of the essential conditions to be satisfied is that the original mortgagor himself must be the applicant it is needless to state that the said decision will be binding on this Court and I will have no option but to accept the contention raised by the learned counsel for the petitioner and allow the C. R. P. without even adverting to any of the other points which arose for decision on merits at the hands of the subordinate Courts. 13. It will be seen that before the learned judges of this Court in the decision referred to above the maintainability of an application under S.11(2) of Act 31/58 by the legal heirs of the original usufructuary mortgagor came up for consideration. It will be seen that in that case the father of the applicant had executed a mortgage and by succession on the death of the father the son who was the applicant obtained the rights in the equity of redemption and in that connection the learned judges have adverted to the question as to whether the right conferred by sub-section (2) to S.11 of the Act is confined to the executant of the mortgage or whether to the heirs, legal representatives and assigns of the mortgagor. Ultimately the learned judges having due regard to the expressions used in S.11(2) which gives a right to the "mortgagor" to apply and after referring to S.2(fff) of the Act ultimately held that the right conferred under S.11(2) of the Act is personal to the mortgagor and that he alone can file an application under S.11(2) and that it does not extend to his heirs, legal representatives and assigns. 14. Mr. M. M. Abdul Khader pointed out that the said Division Bench Judgment does not apply to applications filed under S.11(6) of the Act. A perusal of sub-ss. (2) to (5) of S.11 will clearly show that they deal with a right of the mortgagor on an application filed by him and according to the learned counsel that group of sub-sections deals with the rights which can be obtained by an application filed by the mortgagor i. e., his individual rights whereas the learned counsel argues that sub-section (6) clearly states that the provisions in sub-sections (2) to (5) do not apply to cases of mortgages and lease-back if those conditions mentioned therein applied. Under these circumstances the transaction is dealt with as a simple mortgage and with a further provision that the Act will apply to the debt. That is according to the learned counsel, sub-section (6) deals with the transaction as such which could be availed of for purposes of relief provided the conditions therein are satisfied by any of the persons who happened to be the debtor at the material time. The only restriction is that the debtor who claims relief in respect of such a debt under S.11(6) must be also an agriculturist. That is borne out from the provisions contained in S.2(fff) wherein it is stated that the expression "debtor" will include his assigns, legal representatives and heirs with a limitation that those persons must also be agriculturists. Therefore while sub-section (6) emphasises the transaction as such sub-sections (2) to (5) deal with the individual, namely the mortgagor. Therefore the decision of the Division Bench does not apply to this case. 15. After having given due consideration to the principles laid down by the learned judges in the said decision in my opinion, the contentions of the learned counsel for the respondent will have to be accepted and the stand taken before me by Mr. Therefore the decision of the Division Bench does not apply to this case. 15. After having given due consideration to the principles laid down by the learned judges in the said decision in my opinion, the contentions of the learned counsel for the respondent will have to be accepted and the stand taken before me by Mr. M. C. Sridharan that the application filed in the trial court is not maintainable has to be rejected. No doubt S.11 deals generally with usufructuary mortgages of agriculturists but a perusal of that section will clearly show that two different aspects are being dealt with therein. Sub-sections (2) to (5) deal with usufructuary mortgages where there is no lease-back and sub-section (6) deals with usufructuary mortgages accompanied by lease-back in favour of the mortgagor and matters enumerated in sub-sections (2) to (5) clearly show that the relief concerns a mortgagor as such and the pleas that he has to take in obtaining that relief. It is under those circumstances that the learned judges of the Division Bench emphasised that the right given under sub-section (2) of S.11 is to the "mortgagor" and therefore the learned judges further held that the use of the said expression clearly shows that the Legislature intended to give relief only to the person who has actually executed the mortgage and the heirs, legal representatives and assigns of the mortgagor cannot take advantage of the provisions of the Act. But when we come to sub-section (6) of S.11 it makes clear that sub-sections (2) to (5) do not apply to transactions mentioned in sub-section (6). It also emphasises what it deals with the transaction as such and how exactly it has to be considered for purposes of granting relief. 16. Sub-section (6) will make it clear that in order to attract the provisions of that sub-section it is necessary that there was an usufructuary mortgage and a lease back to the mortgagor by the mortgagee. If once that is established the Statute makes it clear that to such a transaction the provisions contained in sub-clauses (a) and (b) will apply. In fact, it should also be noted that sub-clause fa) emphasises that the provisions of the Act will apply to the debt covered by the mortgage. If once that is established the Statute makes it clear that to such a transaction the provisions contained in sub-clauses (a) and (b) will apply. In fact, it should also be noted that sub-clause fa) emphasises that the provisions of the Act will apply to the debt covered by the mortgage. If it is treated as a debt to which the provisions of the Act are specifically made applicable, in my opinion, the expression "debt" will also make it clear that the liability of the person whoever is owner of the equity of redemption will be that of a debtor. If so, S.2 (fff) also states that the expression "debtor" will include the heirs, legal representatives and assigns. Therefore in my opinion, the maintainability of the application at the instance of the assigns of Chandu Asari must be upheld. It follows that the first contention of the learned counsel for the petitioner has to be rejected. 17. So far as the second contention is concerned, Mr. M. C. Sridharan no doubt attacks the interpretation placed on the document by both the subordinate courts and holding that the transaction evidenced by Ex. A2 is not a kanam but an usufructuary mortgage. Both the courts have considered the various clauses in the document and rejected the contentions of the petitioner. Apart from agreeing with those conclusions arrived at by the trial court, in my opinion, the contention of the petitioner can also be rejected by reference to the definition of the expression "kanam" as stated in S.3 (14) of the Malabar Tenancy Act which was in force at the time when Ex. A2 was executed. No doubt this aspect has not been touched by either of the subordinate courts. The definition of "kanam" as contained in S.3 (14) will make clear that there must be two instances namely the liability of the transferor in this case Chandu Asari to pay the transferee the petitioner interest on the kanartham and there must be a liability on the transferee namely the petitioner to pay Michavaram. 18. As rightly pointed out by the learned counsel for the respondent apart from there being any liability on the part of the petitioner to pay Michavaram which is one of the essential ingredients to make a transaction a kanam the document Ex. 18. As rightly pointed out by the learned counsel for the respondent apart from there being any liability on the part of the petitioner to pay Michavaram which is one of the essential ingredients to make a transaction a kanam the document Ex. A2 clearly says that the petitioner is not liable to pay Michavaram, There is no liability on Chandu Asari to pay interest and on the other hand, the recital in Ex. A2 is that the petitioners are put in possession of the property to enjoy its income and appropriate the same towards interest. Therefore the essential ingredients of kanam are not present in this transaction. Here again, the contentions of the learned counsel for the respondent will have to be accepted. 19. Mr. M. C. Sridharan no doubt urged that a very large extent of property of about 8.78 acres and that of paddy-land is dealt with under Ex. A2 for a paltry sum of Rs 2000/- and that will clearly show that no debtor-creditor relationship was sought to be created by Ex. A2. This contention need not detain me long because so far as I could see, the petitioner does not appear to have raised any contention on this aspect. In fact, both the courts are of the view that very large amount has been taken in by Ex. A2 the inference being that it probabilises a debtor-creditor relationship. Therefore the conclusions arrived at by the two courts that the transaction Ex, A2 is not a kanam but an usufructuary mortgage will have to be sustained. 20. I am also disposing of a minor contention raised by the learned counsel for the petitioner based upon the provisions contained in S.25 (c) of the Act. That section no doubt exempts mortgages containing a provision for payment of Michavaram from the provisions of the Act. The learned counsel stressed that under Ex. A2 there is a liability on the part of his client to pay the revenue which is tantamount to payment of Michavaram and therefore because of S.25 (c) the view of the two courts is not correct. 21. That the payment of revenue under any circumstances will also amount to payment of any Michavaram is a question on which I express no opinion in these proceedings. There is a clear reference to the liability of the petitioners to pay revenue in Ex. A2. 21. That the payment of revenue under any circumstances will also amount to payment of any Michavaram is a question on which I express no opinion in these proceedings. There is a clear reference to the liability of the petitioners to pay revenue in Ex. A2. The same document also says that the petitioner need not pay Michavaram. That there is a recital specifically dealing with revenue and another recital in the same document dealing with Michavaram clearly shows that the two payments are in entirely different nature and therefore even this contention of the learned counsel cannot be accepted. 22. On the merits both the courts have considered the claims made by the respondent regarding the various claims and I have accepted the correctness of the same. 23. The C. R. P. fails and is dismissed but parties will bear their own costs.