Judgment :- 1. This appeal is in a suit to redeem a puisne mortgage, the kachit (counter-deed) whereof is Ext. A I dated 22nd July 1931, executed by the 1st defendant in favour of the plaintiff. The 1st defendant died pending the suit and is represented by defendants 2 to 4, defendants 2 and 3 being his sons, and defendant 4 the wife of defendant 2. The 5th defendant is his mother-in-law. By the written statement filed on 14th October 1950 the 1st defendant claimed immunity from eviction as a tenant under Ext. A I which he allowed to be a lease in substance, and in any view as holder of a kudiyiruppu on the suit property entitled and willing to purchase the rights of the landlord therein. That contention is continued by his legal representatives. The Courts below concurrently found the transaction under Ext. A I to be a mortgage and therefore redeemable. The Munsif held the defendants to be kudiyiruppu holders and therefore tenants entitled to immunity from eviction, and dismissed the suit; but on appeal by plaintiff, the Subordinate Judge held the defendants not to be kudiyiruppu holders entitled to fixity of tenure and decreed redemption on payment of Rs. 200/-as the mortgage amount and Rs. 8859.76 as value of improvements. Defendants 2 to 5 have come up in second appeal 2. The first question raised is whether the transaction under Ext. A 1 is a lease or a usufructuary mortgage. The document reads: 3. As ruled by a Full Bench of this Court in Krishnan Nair v. Sivaraman Nambudiri 1967 KLT. 78 FB. as also by the Supreme Court in Lakshmi v-Narayani 1967 KLT.1 SC. the distinction between a lease and a mortgage lies in the purpose of the transfer of property: a lease is for the purpose of enjoyment of the property and a mortgage is for the purpose of securing a loan. The property here is a small bit of building Site, about 18 odd cents in extent. The recitals in Ext. A 1 are clear that the purpose of the transfer is not cultivation of the land or even residence thereon, and Ext. A-2, the book of accounts of the plaintiff, shows that the purpose of execution of Ext. A 1 was to raise funds to be remitted to a Bank towards interest on a pronote executed in its favour by the plaintiff. A-2, the book of accounts of the plaintiff, shows that the purpose of execution of Ext. A 1 was to raise funds to be remitted to a Bank towards interest on a pronote executed in its favour by the plaintiff. Ext. A 1 spells a usufructuary mortgage. 4. Counsel for appellant relied on the dicta in Krishnan Nair v. Sivaraman Nambudiri 1967 KLT. 78 FB. to support his contention that the instant transaction is in substance a lease and not a mortgage. The test of "the ratio which the amount periodically payable to the transferor bears to the rental value of the property, a higher ratio being indicative of a lea se and a lower of a mortgage" cannot help the appellants as such ratio in the instant transaction is very low, being less than 6 in 40 (to be exact Rs. 5 As. 10 in Rs. 40). 5. Counsel urged alternatively that. Ext. A 1 embodies a composite transaction of a mortgage-cum-lease attracting the ratio of para 6 of the Full Bench judgment, which runs thus: "Moreover, as in the instance noticed in the order dated 8-11-1963 staying the hearing of S. A. No. 88 of 1963 under S.5 of Act 7 of 1963, a transaction can be a composite transaction embodying both a mortgage and a lease. If it is at least in part a lease no matter how small a part, the person holding under it would be a tenant entitled to fixity under S.13 so that redemption of the part which is a mortgage, no matter how predominant a part, would not entitle the mortgagor to obtain possession which is what a plaintiff suing for redemption normally wants. Therefore, the proper question to be asked in such cases is whether the transaction is, to any extent, a lease." The argument is that insofaras the instant transaction stipulates payment of a residual rent of Rs. 5 As. 10 per annum it partakes the nature of a lease and therefore comes within the dictum quoted above. Therefore, the proper question to be asked in such cases is whether the transaction is, to any extent, a lease." The argument is that insofaras the instant transaction stipulates payment of a residual rent of Rs. 5 As. 10 per annum it partakes the nature of a lease and therefore comes within the dictum quoted above. As the exact import of that dictum appeared to me a bit baffling, particularly as to the meaning of the expression "a composite transaction embodying both a mortgage and a lease" in respect of the same property, entitling the grantee to fixity of tenure "if it is at least in part a lease", I have got down the order dated 8th November 1963 referred to therein as an instance of seen a transaction. I must say it at once revealed the significance of the observation in Quinn v. Leathern 1901 AC. 495 that a judicial pronouncement, though general in its expression, must be understood Secundum subjectam materiam, which implies that, when a judge's mind is preoccupied with a case, his thoughts and therefore his expressions are bounded by the facts and circumstances of that case he is deciding. The composite transaction that provoked the concerned dictum was a Melvaippapattachit, the terms of which are given in the order itself thus: "Melvaipappattacheet executed by Mathai Mathew and wife Annamma in favour of Gheevarughese Gheevarugtese on 11th August 1953: We the executants are entitled to and are in possession and enjoyment of the property scheduled hereunder-Entrusting the property to you on pattam (lease) for one year from today on a pattam of 155 Pathinazhi paras of paddy, we haw received Rs. 1200 as Melvaipa artham charged on the property for the purpose of getting a surrender of the rights that .... Damodaran Pillai is supposed to have in the property. You are authorised to appropriate 54 paras of paddy towards interest for this amount from the pattam and are directed to deliver the balance, 101 paras, at the residence of the 2nd executant's father on or before 10th Medam 1112 and get a receipt from the 1st executant. You shall remain in possession till the term, expires, and, on the expiry of the term, we shall redeem the property on payment of the Melvaipa artham. You shall remain in possession till the term, expires, and, on the expiry of the term, we shall redeem the property on payment of the Melvaipa artham. If any loss or damage occurs in the property ...you must notify us and if you do so the 1st executant will come and see and jointly harvest and do what is proper so that you suffer no loss of the Melvaipa artham or, interest thereon...." The order continues, "The document calls itself a melvaipapattacheet which literally means a secured loan cum lease deed or mortgage cum lease deed; and its terms amply bear out this description. It opens by saying that the land is given to the transferee on pattam or rent, in the context, on lease, the rent fixed being 155 paras of paddy a year. This itself seems to me sufficient to show that the property was given for the enjoyment of the transfers in consideration of his agreeing to pay rent. This is not altered by the circumstance that, in addition, the transferor takes a loan from the transferee on the security of the property and authorises the latter to deduct the interest from the rent and paying him only the balance...." It is obvious from the terms of that instrument that the landowner first leased out the property and then took an advance from the lessee on the security of the reversion. The learned judge has made this clear in another portion of the order thus: "In fact, the mortgage in this case is of the reversion, and, it is not by accident that the lease is mentioned first in the document, and then the mortgage." It is then clear that that transaction was a composite one-a lease cum mortgage and its terms and recitals, which induced the observations in Para.6 of the Full Bench judgment 1967 KLT. 78 cited above, bear no parallel to what are embodied in Ext. A-1. In the instant deed, there is only one transaction not two and the question here is whether that single transaction is a lease or a mortgage. There is no scope here for consideration whether any part of a composite transaction is a lease while its remaining part is a mortgage. 6. In regard to transactions of the kind concerned here it is the observation in para 10 of the Full Bench judgment 1967 KLT. 78 FB. There is no scope here for consideration whether any part of a composite transaction is a lease while its remaining part is a mortgage. 6. In regard to transactions of the kind concerned here it is the observation in para 10 of the Full Bench judgment 1967 KLT. 78 FB. that is pertinent: "...Where a transfer of possession for enjoyment may be accompanied by; a transfer of some other interest (in the instance mentioned, of the remainder after the lease created by (he former transfer) by way of security for the loan advanced, it is theoretically possible for the same transfer to be for concurrent purposes, both for the purpose of enjoyment and for the purpose of security. In such a case, it might be necessary to find out the dominant or essential purpose; the other purpose would then be merely incidental, constituting an incident of the transfer rather than its purpose. But, generally speaking, if there is, in truth, a loan and a transfer of possession by way of security, that would be the real purpose of the transfer, and the enjoyment on the part of the transferee which this necessarily involves would be but an incident and not the purpose of the transfer." And, as has already been said (vide para 3 supra that the real nature of the transact tion depends really on the purpose of the transfer of possessions thereunder. Possession of property can only be for its enjoyment. If it is for enjoyment simpliciter the transfer is a lease. If it is for enjoyment for appropriation of profits, wholly or in part, in lieu of interest or in payment of the principal of a loan advanced it is a usufructary mortgage, exempt where the money advanced is insignificant when to call it a loan on the security of property might be ridiculous. As per Ext. A-1, out of Rs. 40, the annual rental value of the property, a sum of Rs.34/- odd is to be appropriated by the transferee for interest on his advance and Rs. 5 odd is to be paid as a residual rent to the transferor. The amount advanced cannot then be said to be insignificant in respect of the property concerned. Thus under the dicta in Krishnan Nair v. Sivaraman Nambudiri 1967 KLT. 78 FB. the transfer under Ext. A-1 has to be held a usufructuary mortgage, and not a lease. 5 odd is to be paid as a residual rent to the transferor. The amount advanced cannot then be said to be insignificant in respect of the property concerned. Thus under the dicta in Krishnan Nair v. Sivaraman Nambudiri 1967 KLT. 78 FB. the transfer under Ext. A-1 has to be held a usufructuary mortgage, and not a lease. 7. Counsel pointed out that the prior transactions by the landowner had been lease and cited Ext. B--2 dated November 2,1881, and Ext. B-3 dated September 12,1896, which are styled as "Verumpattom" (Simple Lease,) deeds. When it is remembered that Ext. B-3 lease was in favour of Narayana Pattar-the late husband of the 5th defendant in whose favour the later Kaivasa Panayams Exts, B-4 of 1910 and B-5 of 1925 had been executed the change in the style of the transaction appears deliberate and significant. It shows that the parties deliberately superseded the lease between them by a possessory mortgage. It cannot be said that that change was a camouflage to avoid fixity of tenure of a lessee, as in 1910 fixity of tenure was not known to local law and was not in contemplation of anybody in the State. Lt was while Narayana Pattar was holding the property under the usufructuary mortgage, Ext. B-5, that the instant puisne mortgage was executed in favour of the 1st defendant with a covenant to redeem him and the 1st defendant redeemed Ext. B-5 as per Ext. A-3 dated July 18, 1933 In the circumstances, the fact that the property was outstanding on Verumpattom before 1910 is not of any relevance in construing the real nature of the instant transaction under Ext. A-1 of 1931. 8. Counsel contends that the express permission given for construction of a house for the residence of the grantee shows that the primary purpose of the possession given under the deed was enjoyment of the land by residence thereon. As has been pointed out by me in Saidalikutty v. Amina Beevi Umma 1967 KLT. "Even as early as 1909 it had been enacted (Vide: Malabar Compensation for Tenants' Improvements Act.1 of 1900) that a mortgagee may put up dwelling houses and plant fruit-bearing trees on the mortgaged property and that they would be reckoned as improvements entitling him to compensation therefor at the time of redemption. "Even as early as 1909 it had been enacted (Vide: Malabar Compensation for Tenants' Improvements Act.1 of 1900) that a mortgagee may put up dwelling houses and plant fruit-bearing trees on the mortgaged property and that they would be reckoned as improvements entitling him to compensation therefor at the time of redemption. It cannot then be said that the mortgagee's putting up a dwelling house or/and planting fruit-bearing trees on the mortgaged property in 1935 or later are inconsistent with his being a mortgagee". The grant of permission to do what he is empowered by law to do as a mortgagee cannot affect the nature of the transaction being a mortgage. 9. Counsel stressed on the use of the word "pattom' (rent) in Ext. A 1 . But the word 'rent', as been observed by the Supreme Court in Mrs. M. N. Club-vwla v. Fida Hussain Saheb AIR. 1965 SC. 610 is not always indicative of a lease. In the context in which the word occurs in Ext. A 1 it can only mean the rental estimate of the property which has been made the basis for fixation of the residual pilots, that the mortgagee has to pay to the mortgagor year by year. By definition, a usufructuary mortgage may provide for appropriation of a portion only of the profits of the property in lieu of interest on the mortgage amount, when the mortgagee will have to pay the mortgagor the residue of the profits. In that event, the parties may agree to estimate the profits and quantify the residue that the mortgagee has to pay the mortgagor annually, in order to avoid a cumbrous accounting year by year." In Ext. A-1 is such an estimated rental, and after seating off the interest on the mortgage amount and the outgoings what is stipulated as payable to the mortgagor is only Rs. 5 As. 10. It shows Clearly that in substance the transaction is a usufructuary mortgage. The deed is styled as a Kaivasapanayam which means a possessory or usufructuary mortgage. The absence of a personal covenant to repay and as authority to sell the property to realise the amount advanced are only normal characteristics of a usufructuary mortgage. 10. Counsel contended that, even apart from the above, the defendants are tenants as they have paid consideration for their possession and enjoyment of the property. The absence of a personal covenant to repay and as authority to sell the property to realise the amount advanced are only normal characteristics of a usufructuary mortgage. 10. Counsel contended that, even apart from the above, the defendants are tenants as they have paid consideration for their possession and enjoyment of the property. The primary part of the definition in the Act I of 1964, defines a tenant to mean "any person who has paid or has agreed to pay rent or other consideration for his being allowed by another to possess and enjoy the land of toe latter." The contention is that for his possession and enjoyment of the property the defendant has paid the consideration under Ext. A 1. In Gopalakrishna Menon v. Gopala Panicker A.S. No. 512 of 1960 decided on 10-1-1967 Raghavan J., with concurrence of Mathew J., has observed: "In this definition the expression'other consideration' is obviously ejusdem generis rent, i. e., it must: be akin to rent, a periodical payment for being allowed to enjoy the land the landlord," Much the same thing I have also held in Kunhamina Umma v. Paru Amma 1967 KLT. 596, Para 12. The amount advanced under a usufructuary mortgage cannot be 'other consideration' in the above-quoted definition of a tenant in the Act I of 1964. The suggestion i that the advance of Rs. 200/-may be taken as security for regular payment of the rent reserved under the deed seems fanciful and not real. It is too much to imagine that a sum of Rs. 200/-bearing interest at Rs. 25 or 30 per annum was taken to secure payment of Rs. 5 odd per annum. Security must, bear a fair proportion to the annual payment secured by it, which is not in this case. 11. It was then contended that the defendant had been in possession of the land from 1955 onwards under an honest belief that he was a tenant and therefore he must be "deemed to be a tenant" under S.7 of the Act I of 1964. True it is that in the written statement filed on October 14, 1950, he has claimed himself to be a tenant entitled to immunity from eviction by the plaintiff-landlord. True it is that in the written statement filed on October 14, 1950, he has claimed himself to be a tenant entitled to immunity from eviction by the plaintiff-landlord. But a mere assertion of being a tenant will not satisfy the requirement of S.7 of the Act I of 1964: he must have believed himself to be a tenant "honestly". Honesty cannot be equated to fancy or whim. In Kunhamina Umma v. Paru Amma 1967 KLT. 596, I have held an honest belief to be belief entertained on reasonable grounds. Counsel puts the ground for the defendant's belief of being a tenant to be the enactment of a provision in the Malabar Tenancy Act defining 'tenant' to include the holder of a kudiyiruppu. But such a definition was enacted only by the Act XXXIII of 1951 which came into force on March 15,1952. The allegation in the written statement dated October 14, 1950, could not have been based on that enactment. If the belief is rested solely on a misunderstanding of law, it cannot be extolled as an'honest' belief. Honest belief must rest on reasonable grounds in facts and not on misconception of law. Having come by possession of the property under a usufructuary mortgage and having no reason-able ground to believe that his status as mortgagee has changed into one as a tenant, the 1st defendant (as also his legal representatives) cannot claim shelter under S.7 of the Act I of 1964. Nor can the 5th defendant urge any claim under the earlier transactions evidenced by Exts. B-3, B-4 or B-5 as they have been superseded and ultimately redeemed by the 1st defendant as per Ext. A-3 in 1933 whereafter they did not survive. 12. Much was argued on the claim of the defendants being kudiyiruppu-holders on the property and as such entitled to immunity from eviction. The argument proceeded on two different counts: One under S.21 of the Malabar Tenancy Act, 1929; and the other under S.13 of the Land Reforms Act, 1963. A-3 in 1933 whereafter they did not survive. 12. Much was argued on the claim of the defendants being kudiyiruppu-holders on the property and as such entitled to immunity from eviction. The argument proceeded on two different counts: One under S.21 of the Malabar Tenancy Act, 1929; and the other under S.13 of the Land Reforms Act, 1963. "Kudiyiruppu' is defined in the Malabar Tenancy Act to mean and in-clude "the site of any residential building, the site or sites or other buildings appurtenant thereto, such other lands as are necessary for the convenient enjoyment of such residential building and the easements attached thereto." The site F the building that the defendant has put up on the property with land appurtenant thereto may be a kudiyiruppu within that definition. But under S.21 of the Malabar Tenancy Act the holder of a kudiyiruppu has not been given fixity but only the tenant of a kudiyiruppu. It is pertinent to note that the right to purchase the land lord's right conceded in S.54 of the Malabar Tenancy Act is only to tenants who have been in occupation of a kudiyiruppu for 10 consecutive years. In the scheme of agrarian reforms the right to purchase the landlord's rights is related to right to fixity of occupation. It follows that a expression "tenant of a udiyiruppu" in S.21 and the expression "where a kudiyiruppu has been in the occupation of a tenant the tenant" refer to the same type of persons. In Raghavan Naieken v. Ayyappankutty (1964 KLT, 65 F.B ) a Full Bench of this court has held that the term 'tenant' in S.21 of the Malabar Tenancy Act means a person 'who pays rent or other consideration for being allowed by another to enjoy his land' and therefore a person in possession of land of another with whom he is not in land-lord-tenant relation cannot claim benefits of S.21 and that therefore "a usufructuary mortgagee who has put up a building in the mortgaged property and is residing there" is not entitled to fixity of tenure under S.21 of the Malabar Tenancy Act, That dictum must conclude the appellants' claim on the first count. As regard the second count: Under the Act I of 1964 'kudiyiruppu' is given a different definition to mean 'a holding or part of a holding consisting of the site of any residential building, the site or sites of other buildings appurtenant thereto, such other lands as are necessary for the convenient enjoyment of such residential building and easements attached thereto;" and 'holding' is defined as "a parcel of parcels of land held under a single demise by a tenant from a land-lord." In other words, under the present Act, a kudiyiruppu is the site of any residential building, with appurtenant land, in a leasehold. It follows that unless the residential building is on a leasehold it is not a kudiyiruppu within the mean-ing of the Act I of 1964 and therefore the holder or occupier of a building in a mortgaged property is act a tenant entitled to fixity of S. B read with S.2(57)(h) of the Act. 13. It is then argued that under the Act XII of 1965, the disposal of this appeal has to be stayed till a Record of Rights in respect of the suit property is prepared and made available to the Court. But it is clear from S.8 of the Act XII of 1966 read with S.29 of the Act I of 1964 that a Record of Rights is prepared only in respect of a 'holding' which, as already mentioned, is defined to be a leasehold which the suit property is not. The Act XII of 1966 has therefore no application to the instant case. Explanation IV of S.2 (25) of the Act I of 1964, added by S.8 of the Ordinance IV of 1967, is also invoked for a stay of disposal of this appeal. By its very expression, that explanation applies only "where a mortgagee with possession erects for his residence a but on the land to which the mortgage relates", 'hut' being defined as "any dwelling house which was constructed at a cost not exceeding Rs. 400 or could have at the time of construction, yielded a monthly rent hot exceeding Rs. 4." Evidence is that the building that the defendant has pet up on the suit property is a three-storied building which by no means can be brought under this definition of a hut. It follows that the Explanation IV is also not relevant to the instant case. 14. 4." Evidence is that the building that the defendant has pet up on the suit property is a three-storied building which by no means can be brought under this definition of a hut. It follows that the Explanation IV is also not relevant to the instant case. 14. In the result, this appeal fails and is dismissed, with costs.