Judgment :- 1. This appeal is by the legal representatives of the 2nd defendant in a suit for redemption of a moiety of a Kanom. 2. Ext. B6 is a Kanom-Kuzhikanom deed and Ext. Al its counter-part. They are of date December 1, 1941. The transaction thereunder is a composite one, a Kanom in respect of taks 1 to 3 of item 1 (which constitute the suit properties) and a Kanom-Kuzhikanom in respect of the 4th tak of item 1 and item 2 therein (which are not involved in this suit). The Kanomdars are defendants 1 and 2. In partition under Ext. A3 the rights under Ext. B6 have been divided equally between them; but the properties as such are not divided. The 2nd defendant, now represented by the appellants, had thus an undivided moiety in the suit properties. The original plaintiff was an assignee of the jenmi who granted Ext. B6. On her death, her interests devolved on plaintiffs 2 to 6 who assigned the same to the 7th plaintiff Company. The suit is for redemption of the Kanom on the suit properties. Subsequent to the institution of the suit defendants 3 to 9 being the legal representatives of the 1st defendant have surrendered their moiety in the suit Kanom to plaintiffs 2 to 6 (vide Ext. All) and thereafter the suit is prosecuted in regard to the moiety of the Kanom that belonged to the 2nd defendant. The 2nd defendant contended, and that contention is continued by the appellants, that the transaction evidenced by Exts. B6 and Al is really one of tenancy entitling the defendants to fixity of tenure. The Munsiff accepted the defence and dismissed the suit; but, on appeal by the plaintiffs, the Additional District Judge has reversed him. Hence this second appeal. 3. The primary contention of the appellants is that the transaction under Ext. B6 is a Kanom amounting to a tenancy entitling them to immunity from eviction. It is conceded that the rights and liabilities have now to be judged under the Kerala Land Reforms Act, 1963. S.132 (1) (a) of the Act provides so. It then follows that to earn immunity from eviction it is not enough if the transaction is styled a Kanom in the concerned instruments: it must satisfy the incidents of a Kanom as defined in Clause (22) of S.2 of the Act (I of 1964). S.132 (1) (a) of the Act provides so. It then follows that to earn immunity from eviction it is not enough if the transaction is styled a Kanom in the concerned instruments: it must satisfy the incidents of a Kanom as defined in Clause (22) of S.2 of the Act (I of 1964). That Clause reads thus: " (22) '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 person for the latter's enjoyment, whether described in the document evidencing the transaction as kanam or kana-pattam, the incidents of which transfer include (a) (b) ; and (c) payment of michavaram or customary dues, or renewal on the expiry of any specified period,... It (The rest of the definition is irrelevant as regards the suit properties which are situate in Malabar area of the State). To be a Kanom within the above definition, the transaction should involve payment of michavaram or customary dues or renewal on the expiry of a specified period. Admittedly there is no provision for renewal or for payment of customary "dues in the suit transaction. The question then is if there a provision for payment of michavaram. 4. The material recitals in Ext. A 1, the counter deed, executed by the defendants 1 and 2 identical are the contents in Ext. B-6 run thus: [We will pay the kanom (amount) of Rs.14CO charged on taks 1 to 3 of of item No.1 (the suit properties)... to the 7 persons the aforesaid woman Narayani and others or to their representatives ... and redeem (them) and hold taks 1 to 3 of item No.1 as kanom and tak 4 and item No. 2 (these are not involved in this suit) as kanom-kuzhikanom, paying the land revenue for the properties and enjoy them for interest on the kanom, and after the term of 12 years when the kanom of Rs. 2000 charged on taks 1 to 3 of item No.1 is offered we shall receive and surrender the properties with basic documents by a registered release at our cost. 2000 charged on taks 1 to 3 of item No.1 is offered we shall receive and surrender the properties with basic documents by a registered release at our cost. It is resolved that as taks 1 to 3 of the paddy flat being item No.1 of the schedule are good paddy flats having no defect whatsoever that needs rectification by spade work no improvement of any kind shall be made in taks 1 to 3 of paddy flat item No.1 of the schedule, that if any delay is made in redeeming (the properties) you are not responsible therefor, that the grant by you is only for 12 years from this date, and that you are not, at any time and in any manner, answerable for the costs, losses and delay that may happen to us in getting the properties redeemed from the prior possessors,..] It is pertinent to note here that no rent is stipulated for the property and that in consideration of an advance of Rs. 2000/- (inclusive of Rs. 1400/- to be paid to the prior mortgagees) the suit properties are to be enjoyed by defendants 1 and 2 for interest on their advance after payment of the land tax to the State. 5. Counsel contends that the stipulation for payment of land revenue to the State amounts in law to a stipulation for payment of rent or michavaram to the land-owner and therefore the transaction would be a kanom as defined in the Land Reforms Act (quoted above) and relies on the decision of Velu Pillai J. in Parameswaran Embranthiri v. Narasimha Nambudiri (1962 KLT. 404) in support. That decision of the learned single judge had been cited before me when I was hearing S. A. No. 1474 of 1961, and then I referred it to a Division Bench for reconsideration in the following words: 'Counsel for the appellants contended that the stipulation for payment of revenue amounts to a covenant for payment of michavaram, and relied on Parameswaran Embranthiri v. Narasimha Nambudiri (1962 KLT. 404). Under S.76 of the Transfer of Property Act, every possessory mortgagee is, unless there is a provision to the contrary in the deed of mortgage, obliged to pay the revenue charged on the property. Merely because that statutory liability has been expressly recited in a deed, it cannot change the character of the deed. 404). Under S.76 of the Transfer of Property Act, every possessory mortgagee is, unless there is a provision to the contrary in the deed of mortgage, obliged to pay the revenue charged on the property. Merely because that statutory liability has been expressly recited in a deed, it cannot change the character of the deed. In other words, if the mention of the statutory duty has been omitted the deed would have been a mortgage, even with mention of that duty it cannot be a transaction of a different character. But that is what seems to me to have been held in 1962 KLT. 404 That decision appears to rely largely on the dictum of a Division Bench of the Madras High Court in Sankunni Variar v. Neelakandhan Nambudiripad (1943-11 MLJ.127). The facts of that case, in my opinion, are far different. There, the deed provided for payment of 400 odd parahs of paddy to the transferor by the transferee after payment of revenue, and the question was whether a subsequent enhancement of the revenue was to be borne by the transferor or the transferee. Their Lordships held that though the stipulation had been that after payment of revenue the transferee was to pay a fixed quantity of paddy to the transferor the terms of the deed implied that the liability to pay revenue and therefore to pay the enhancement in revenue also was on the transferor. As there was an express provision for payment of 411 parahs of paddy annually to the transferor the document was construed by their Lordships to be a kanom, and in the light of that construction, the other incidents between the parties were adjudged. The incidents of the transaction in that case and in the case that came up for decision in 1962 KLT. 404 are far different in that in the latter case no payment of any michavaram has been stipulated in the deed concerned. In the circumstances, I am of the view that the decision in 1962 KLT. 404 requires reconsideration and for that purpose I refer this case to a Division Bench." But when the case was placed before the Division Bench constituted by Velu Pillai and Anna Chandy JJ. In the circumstances, I am of the view that the decision in 1962 KLT. 404 requires reconsideration and for that purpose I refer this case to a Division Bench." But when the case was placed before the Division Bench constituted by Velu Pillai and Anna Chandy JJ. their Lordships, without considering the view expressed by me in the reference order remanded the suit to the Court below for fresh disposal by the following judgment dated January 21, 1966: "The two courts below have held that Ext. B-4 is redeemable The contention of the appellant, which has been negatived by the lower appellate court is that it is a kanom under the Malabar Tenancy Act. Now that that Act has been superseded by Act I of 1964, this contention has to be considered and disposed of under the provisions of the latter Act. So we set aside the finding regarding Ext. B-4 and the decree for mesne profits and costs against defendants 4 to 6 and direct the trial court to dispose of issues 12 and 15 which relate to this matter at the time of passing the final decree. The costs incurred so far will be costs in the cause and will be provided for in the final decree. The rest of the decree is affirmed. This appeal is disposed of as above." When S. A. Nos. 110 and 838 of 1962 in which the identical question arose came up before me on June 20,1966, I adjourned them to be heard and determined by a bench of two Judges. When those cases were heard by Velu Pillai and Krishnamoorthy Iyer JJ. their Lordships followed the dictum in Parameswaran Embranthiri's case, without considering the view expressed by me that a reiteration in the mortgage deed of the normal legal liability of a mortgagee to pay the land revenue would not change the mortgage into a lease with the assumption that revenue paid to the State is payment of rent to the land owner. In these circumstance, I am now constrained to canvass the question myself to the best of my judgment. 6. A tax, called land revenue, is imposed by the State on all productive lands. From ancient times the State has been exercising a right to levy a share of the produce of all lands in the territory as part of its revenue. 6. A tax, called land revenue, is imposed by the State on all productive lands. From ancient times the State has been exercising a right to levy a share of the produce of all lands in the territory as part of its revenue. Vishnu Smrithi, Chapter III, verse 10 says: Table:#1 (Every year the king shall collect from his subjects as revenue one-sixth of the paddy; similarly in respect of all foodgrain Manmathanath Dutt). The same is told in Manusmrithi (Chapter VII, verse 130) and in Gautama Smrithi (Chapter X). The Mahomedan kings also asserted the power to take a share of the produce as revenue, but they assessed it as a fixed lump sum for an area and farmed out the right to collect it from the landholders. The British Government also maintained the latter system with certain changes that were calculated to secure uniformity and fixity in the demand which ultimately culminated in land survey and settlement. Recently, the Supreme Court held void an Act imposing a uniform rate of tax on all lands, irrespective of their productivity, actual or potential, observing: "....the Act obliges every person who holds land to pay the tax at the flat rate prescribed whether or not he makes any income out of the property, or whether or not the property is capable of yielding any income. The Act, in terms, claims to be 'a general revenue settlement of the State' (S. 3). Ordinarily, a tax on land or land revenue is assessed on the actual or the potential productivity of the land sought to be taxed. In other words, the tax has reference to the income actually made, or which could have been made, with due diligence, and, therefore, is levied with due regard to the incidence of the taxation." Kunnathat Thathunni Moopil Nair v. State of Kerala AIR. 1961 SC. 552 at 588) Thus the land revenue is understood, in all ages, to represent the State's share of the produce of the land. Its incidence is therefore on the land, or more correctly on the person who has the land. To facilitate collection of revenue the State issues pattahs showing the tax on every piece of land to the respective landholders and keeps a register of the pattahdars with facilities to effect changes in both as land changes hands. Its incidence is therefore on the land, or more correctly on the person who has the land. To facilitate collection of revenue the State issues pattahs showing the tax on every piece of land to the respective landholders and keeps a register of the pattahdars with facilities to effect changes in both as land changes hands. By the Revenue Recovery Act, the pattahdar-the registered landholder-is made liable to the State for the revenue on the land, irrespective of the fact whether he is the owner thereof at the relevant time. It is no answer to the State's claim that the land has been assigned offer given possession to a mortgagee or lessee with specific direction to pay the revenue out of its profits. The State would collect forcibly if it comes to that the revenue from the pattahdar, leaving the rights and liabilities between the citizens in regard to the same to be agitated in appropriate proceedings, for reimbursement or contribution, in the regular Courts of law. It is pertinent to remember here that the Revenue Recovery Act deals only with the process of recovery of revenue and not with incidence of revenue. The latter is dealt with in S.76 (c) and 108 (g) of the Transfer of Property Act, S.28 of the Malabar Tenancy Act, and the like. As the liability to pay land revenue would continue on the pattahdar in spite of a conveyance of the land, until mutation is effected in the pattah and the land-records, the invariable practice in conveyancing is to specify in sale deeds, gift deeds, etc. that the assignee shall hold and enjoy the land and pay the revenue thereof. It cannot be said that after a conveyance of the land, the vendor or donor continues liable for its tax, except for purposes of the Revenue Recovery Act with right to reimbursement from the landholder. With these premises, I advert to the dicta in the precedent relied on by counsel for the appellants. 7. In Parameswaran Embranthiri v. Narasimha Nambudiri (1962 KLT. 404) Velu Pillai J. observes: "Under S.76 (c) of the Transfer of Property Act, the duty to pay revenue for the mortgaged property is cast on the mortgagee, in the absence of a contract to the contrary But this is a rule, which operates as between the mortgagor and the mortgagee. The contract in Ext. 404) Velu Pillai J. observes: "Under S.76 (c) of the Transfer of Property Act, the duty to pay revenue for the mortgaged property is cast on the mortgagee, in the absence of a contract to the contrary But this is a rule, which operates as between the mortgagor and the mortgagee. The contract in Ext. B-5 is in accordance with this rule. Therefore it was contended that the mortgagee making payment of revenue does so on his behalf and not on behalf of the mortgagor. I cannot accept this contention, for as between the government to whom the revenue is payable and the pattadar, the primary liability is on the latter." I regret my inability to understand the reasoning of the learned Judge. In my view, simply because the parties have incorporated the legal incidents of their transaction in their deed, the force and effect of the legal incident would not be lost and it would still remain a legal incident of the transaction. If as between mortgagor and mortgagee the liability is on the mortgagee to pay the revenue, the mortgagee paying the revenue makes the payment on account of his duty to pay; he is discharging his own obligation and not the obligation of the mortgagor. It cannot then be said that the mortgagee made the payment on behalf of the mortgagor. The fact that as between the government and the pattadar, the latter is liable to pay the revenue to the former has no relevance when the question is of rights and liabilities between the mortgagor and the mortgagee, as between whom the liability is on the mortgagee only. Further I have already said that the Revenue Recovery Act is only a procedural law dealing with the mode of collection of tax by the State, while Transfer of Property Act is a substantive law dealing with the rights and liabilities of mortgagor and mortgagee. The effect of the Revenue Recovery Act is only that the State may recover the revenue from the mortgagor, leaving the mortgagor to have reimbursement thereof from the mortgagee under S.76 (c) of the Transfer of Property Act. The ultimate liability is on the mortgagee, and the liability of the mortgagor is more or less that of an intermediary or del credere agent. The ultimate liability is on the mortgagee, and the liability of the mortgagor is more or less that of an intermediary or del credere agent. If the liability to the State is one that he can pass on to the mortgagee and the ultimate liability is on the mortgagee it cannot be said that the primary liability is on the mortgagor. This is so because the mortgagor if he is obliged to pay the tax can collect it from the mortgagee, but the mortgagee if he is obliged to pay the tax cannot claim it from the mortgagor or any other person. Hence, in my opinion, the primary liability to the tax on the mortgaged property is on the mortgagee and not on the mortgagor and when the mortgagee pays it he pays it on his own behalf, and not on behalf of any other, unless the mortgage deed stipulates otherwise. 8. The Kerala Land Reforms Act defines 'Michavaram' it was substantially so in the Malabar Tenancy Act, 1929, and the Kerala Agrarian Relations Act, 1961 as "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." It is the residual rent that a kanamdar has to pay the landlord after appropriation of his interest on the kanom amount advanced by him. In my opinion, the expression "paid ...to or on behalf of the landlord" means the same thing as "paid to the mortgagor or to his nominee," or "paid to the mortgagor directly or indirectly." Payment of revenue as per the covenant "to hold and enjoy the land, paying the revenue to the State regularly" would not be a payment directly or indirectly to the mortgagor. Different may be the position if the covenant is: "Out of the rent payable to me you shall pay the revenue of the land and pay the balance to me regularly." In this latter case, in paying the revenue the tenant acts as the agent of the lessor and pays it with the amount that the lessor has deposited in his hands therefor. It is then a payment on behalf of the lessor. It is then a payment on behalf of the lessor. In legal terminology, in the former case the incidence of the revenue is transferred to the mortgagee and the mortgagee pays because of the transfer of incidence of tax liability to him; and in the latter the incidence is not transferred but retained by the lessor with himself and the lessee pays because of a direction of the lessor to pay it on his behalf. The facts in 1962 KLT. 404 are of the former white those in 1943-11 MLJ.127 are of the latter kind. 9. The dictum in Parameswaran Embranthiri's case purports to follow the dictum in Sankunni Variar v. Neelakandhan Nambudiripad (1943-II MLJ.127). I have pointed out in my order of reference in S. A. No. 1474 of 1961 (cited above) that the Madras decision does not warrant the dictum in Parameswaran Embranthiri's case. The document concerned in the Madras case has been described in the judgment thus: "The kanam deed having stated that the pattam (gross rent) of the properties demised is 2507 parahs of paddy proceeds as follows: "You should therefore hold the said properties in your possession and enjoyment, and cultivating them, pay to us a pattam (rent) of 411 paras, 4 idangalis,1 nazhi of paddy, of the money value of Rs. 138 inclusive of paravasi (allowance for difference of measurement) duly dried, winnowed, cleaned, conveyed to our residence and measured out by our 40 nazhis para, after deduction of the interest due on your mortgage amount and the assessment on the properties due to the Government, from the said rent, together with sundry payment of one para, two indangalis of gingely oil, of the value of Rs. 6, within the 30th of Makaram (10th February) of each year commencing with the year 1069 M. E. (1893-94) and duly take our receipt therefor.'" It is obvious from the above, that there is a specific stipulation for payment of annual michavaram in that deed which was therefore a Kanom in itself. The question was whether the payment of revenue partook the charge for michavaram. It is also to be noted that in that deed the gross rent for the property is fixed at 2507 parahs of paddy. The question was whether the payment of revenue partook the charge for michavaram. It is also to be noted that in that deed the gross rent for the property is fixed at 2507 parahs of paddy. The rent connotes what is due to the landlord from the demisee and it is out of that gross rent that the demisee is directed to pay the revenue to the Government. It is then obviously a payment made through the lessee by the landlord, in other words a payment by the lessee on behalf of the landlord out of the landlord's funds. As said in Quinn v. Leatham (1901 AC. 495 at 506) the observations in the Madras decision have to be understood Secundum subjectam materiam of that case. In the context of the case in 1943-11 MLJ.127, with the direction to pay revenue out of the rent of the property which is due to the landlord and to pay actually only the balance of the rent to the landlord, the construction that the payment of revenue by the demisee in that case was on behalf of the landlord and therefore part of the michavaram under the deed is, if I may say so with respect, well justified. I am afraid that the dictum in 1943-11 MLJ.127 does not support the contention that a mere direction to enjoy the land after paying revenue to the State amounts to a stipulation for payment of rent or michavaram to the landlord. In Parameswaran Embranthiri's case there is no fixation of rent, no stipulation for any payment to the landlord, and a mere recital "that the 1st defendant shall be in possession of the properties and shall pay the revenue out of the income thereof and appropriate the balance towards interest on the amount of the advance" is construed to contain a provision for the payment of michavaram to the grantor. This, in my opinion, is not warranted by 1943-11 MLJ.127, or by any law. 10. Reference has also been made by Velu Pillai J. in Parameswaran Embranthiri's case to the dictum in Itteeri Nambudiri v. Sankunni Nair (AIR. 1941 Madras 303). This, in my opinion, is not warranted by 1943-11 MLJ.127, or by any law. 10. Reference has also been made by Velu Pillai J. in Parameswaran Embranthiri's case to the dictum in Itteeri Nambudiri v. Sankunni Nair (AIR. 1941 Madras 303). That judgment says: "Michavaram is defined in S.3 (q), Malabar Tenancy Act, as 'whatever is agreed by a kanamdar in a kanam deed to be paid periodically, in money or in kind, or in both, to or on behalf of the jenmi.' By the terms of Ext. A, the kanam deed in the present suit, it is clear that the kanamdar is required to pay the land revenue on behalf of the jenmi and that the amount of this land revenue is deducted in arriving at the balance payable to the jenmi" (emphasis added). Obviously the payment of revenue in that case also must have been out of the gross rent fixed for the property, leaving the balance alone payable annually to the lessor. The revenue paid by the lessee in such a circumstance formed part of the rent of the property and therefore michavaram as defined in the Malabar Tenancy Act. That also, I am afraid, would not warrant the proposition that, where there is no stipulation for rent but only a direction to enjoy the property paying the revenue to the State, the payment of revenue to the State amounts to payment of michavaram to the landlord. 11. Thus, I am afraid that neither 1943-11 MLJ.127 nor AIR. 1941 Madras 303 supports the dicta that Velu Pillai J. has laid down in Parameswaran Embranthiri's case that payment of revenue to the State is payment of michavaram to the landlord, and therefore a transaction containing a direction to pay revenue out of profits of the property is a Kanom, and not a mortgage. In my view, when out of the rent stipulated in a lease or Kanom demise the landlord has directed the demisee to pay the revenue and to pay him only the balance, the aforesaid dicta may apply, but not when the grant simply says that the grantee may enjoy the property paying the revenue out of its profits. In my view, when out of the rent stipulated in a lease or Kanom demise the landlord has directed the demisee to pay the revenue and to pay him only the balance, the aforesaid dicta may apply, but not when the grant simply says that the grantee may enjoy the property paying the revenue out of its profits. In the latter case, by virtue of the grant the liability to pay revenue is transferred to the grantee; and the grantee who has accepted the grant and the liability, when he pays the revenue, pays it on his own behalf. Otherwise, I am afraid, it would lead to the absurd result that even in a conveyance, by way of sale or gift, where the vendee or donee is directed to enjoy the property paying the revenue thereon he will have to be held to pay rent to the vendor or donor every time he pays the revenue to the State. I therefore hold that a mere direction to pay the revenue of the property by the grantee, particularly when no payment is stipulated to be made to the grantor or when the payment is not directed to be made out of anything which is due or payable to the grantor, cannot be construed as a payment of rent or michavaram to the grantor. It then follows that there is no provision for payment of any michavaram in Ext. B-6 or A-1 and that therefore the transactions evidenced by Exts. B-6 and A-1 do not satisfy the elements of a Kanom laid in S.2 (22) of the Kerala Land Reforms Act (I of 1964). 12. It is then contended that the transaction under Ext. B-6 would come within the ambit of the definition of a 'tenant' in the Kerala Land Reforms Act, 1963 (Act I of 1964) which reads thus: "2. (57 ) '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,...." There is no agreement in the instant transaction to pay rent. Counsel therefore relied on the expression "other consideration" in the definition and contended that the amount advanced under the transaction would be such 'other consideration'. Counsel therefore relied on the expression "other consideration" in the definition and contended that the amount advanced under the transaction would be such 'other consideration'. In a usufructuary mortgage also an amount is paid by the mortgagee to the mortgagor in return whereof he is allowed to possess and enjoy the land under the mortgage. Counsel for appellants states to my surprise that a usufructuary mortgagee who pays such consideration does come within the aforesaid definition and would be a tenant within the meaning of the Land Reforms Act. I am afraid it is a desperate argument. Usufructuary mortgage is essentially different from any kind of demise entitling fixity of tenure under the Land Reforms Act and all the rulings on the subject have distinguished a usufructuary mortgagee from a tenant entitled to fixity of tenure. Even in Lakshmi v. Narayani (1967 KLT.1 (S. C.) such a distinction has been drawn. The contention that since usufructuary mortgage is excluded in the definition of a 'kanom-kuzhikanam', but not in the definition of a 'tenant' or 'kanom', usufructuary mortgage is within the definition of 'kanom' or 'tenant' does not bear, in my view, any force. I cannot therefore accede to the proposition that a usufructuary mortgagee is a tenant within the meaning of Clause (57) of S.2 of Act 1 of 1964. I am afraid, if "other consideration" means, as counsel would put it, any amount paid as a result of which the payer is allowed to possess and enjoy the land, even a sale or a possessory mortgage has to be held to come within the definition of a 'tenant', for it is the essence of a sale that in consideration of the price paid the vendee is allowed to possess and enjoy the property which was of the vendor. I would therefore construe the expression "other consideration" ejusdem generis with rent and hold that where possession and enjoyment are transferred to a person on account of his advance of a repayable amount or debt, it would not come within the scope of Clause (57) of S.2 of the Kerala Land Reforms Act, 1963. The terms of the instant instruments, Exts. B-6 and A-1, particularly the provision that irrespective of the delay that the grantee may meet in securing possession of the property the transaction embodied under Ext. The terms of the instant instruments, Exts. B-6 and A-1, particularly the provision that irrespective of the delay that the grantee may meet in securing possession of the property the transaction embodied under Ext. B-6 would come to termination on the expiry of 12 years from its date show that the essential aspect of the transaction is not the enjoyment of the property by the grantee for a period of 12 years. 13. In my view, the instruments, Exts. B6 and Al, do satisfy all the elements of a usufructuary mortgage under S.58 (d) of the Transfer of Property Act., viz , an advance, liability to pay interest on the advance and possession and enjoyment of the profits of the property in lieu of interest thereof. The liability to pay revenue is a paramount charge on the property. It is a paramount charge on the interest of the jenmi or the landlord; and all derivative interests taken under the jenmi or the landlord have necessarily to respect that paramount charge. The direction to pay the revenue cannot therefore militate against the fullness of the grant by way of usufructuary mortgage. The fact that there is no provision for a demand for return of the advance or a right of sale of the grantor's interest does not affect the position as, under a usufructuary mortgage, the mortgagee has no right to demand the amount or to sell the property in realisation of the amount but can only hold the property until the mortgage is discharged out of the profits of the property or until he is redeemed. I would therefore hold that the incidents mentioned in Exts. B6 and Al indicate only a usufructuary mortgage and not a kanom or other demise. 14. Counsel for appellants contended that the appellants are entitled to the benefit of S.7 of the Act I of 1964. It is urged by counsel for the respondents, rightly in my opinion, that such a contention which relates to a fact having not been raised in the Court below, even though the decision was rendered long after the provision came into force, and not even in the memorandum of second appeal in this Court, should not be allowed to be raised for the first time at the hearing of this second appeal. I agree with counsel and add the following observations on the merit of that contention to show that it has little substance. S.7 of the Act I of 1964 reads thus: "Notwithstanding anything to the contrary contained in any law, or in any contract, custom or usage, or in any judgment, decree or order of court, 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, honestly 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." If the transaction was, at its origin, a usufructuary mortgage and understood to be so, it cannot lightly be said that the mortgagee has subsequently come to believe honestly that he is a tenant. The fact that in 1953 in a reply (Ext. B12) to the plaintiff's demand for surrender the defendant had claimed to be a tenant does not mean that such assertion had any good faith. To claim the benefit of S.7, he must have believed so honestly, that is to say he must have had reasonable grounds to believe so. If he originally took a usufructuary mortgage knowing it to be so it requires pertinent reason for him to believe otherwise later. No ground or circumstance is made out, excepting the unilateral assertion in his reply (Ext. B12), to show that he honestly believed himself to be a tenant. The fact that his co-tenants, the holders of the other moiety of the suit kanom, have surrendered the properties to the plaintiffs show that they did not think the transaction to be one of tenancy accompanied by fixity of tenure. Though the proposition what is sauce for the goose is sauce for the gander may not hold strictly to the case, it is not without any bearing when both parties held under the same transaction. The plea of a deemed tenant under S.7 of the Act I of 1964 has therefore to be repelled in the circumstances. 15. The appellants have claimed compensation for their improvements on the suit properties on the ground that the 2nd defendant had removed silt that had accumulated thereon on the date of the mortgage. The plea of a deemed tenant under S.7 of the Act I of 1964 has therefore to be repelled in the circumstances. 15. The appellants have claimed compensation for their improvements on the suit properties on the ground that the 2nd defendant had removed silt that had accumulated thereon on the date of the mortgage. It is stated that rain water used to bring silt into the land from the surrounding garden lands which are of a higher level. The counter-deed, Ext. A-1, executed by defendants I and 2 recites clearly that the properties were in a very good condition at its date and therefore required no improvement at all. [Since taks 1 to 3 of the paddy flat being item No.1 of the schedule are good paddy flats having no defect whatsoever that needs rectification by spade work, no improvement of any kind shall be made in taks 1 to 3 of paddy flat item No.1 of the schedule.] That recital clearly disproves the present contention that on the date of Exts. B-6 and A-1 there was accumulated silt on the land. As regards the annual removal of silt there is no proof that it was anything beyond ordinary acts of husbandry, which are excluded from the definition of improvements in the concerned Act. The Courts below were therefore right in over-ruling the claim to compensation for improvements on the suit properties. 16. The court below has awarded mesne profits from the date of deposit of the mortgage amount under S.83 of the Transfer of Property Act, but no evidence appears to have been adduced and no finding has been entered as regards the quantum of mesne profits. In the circumstances of this case, I think it is fair to direct the appellants to pay the plaintiffs 6% interest on Rs. 1000/- being the one-half of the mortgage amount deposited for payment to them. This direction will not affect the plaintiffs' right to the profits of the other moiety of the properties they got surrendered from defendants 3 to 9 under Ext. A-11. 17. In the result, subject to the direction in regard to the mesne profits made in the last preceding paragraph, this second appeal is dismissed, with costs. Leave refused. Dismissed.