Judgment :- 1. The second appeal has been referred to a Division Bench by one of us since there was already a decision by Joseph J. in Karthyayani Amma v. Raghavan Pillai (1962 KLT. 380) regarding the nature of the" document to be considered (Ex. D1). 2. Under Ex. D1 some properties were outstanding with some persons; and a suit for redemption was filed and a decree obtained. In execution of the decree some of the properties were sought to be recovered, when objection was taken by the judgment-debtors in possession of those properties that Ex. D1 was a kanam-kuzhikanam coming under the provisions of Act IV of 1961. This was rejected by the executing court and the appellate court; and ultimately, the matter came in second appeal before Joseph J. The learned judge held that Ex. D1 was a mortgage and not a kanam-kuzhikanam as claimed by the appellants before him. The other items of properties are sought to be recovered in execution now; and the same document comes up for consideration before us. Since the appellants before us were not parties to the earlier proceedings, the decision by Joseph J. is not, as such, binding on them. It is also not disputed that in spite of the decree for redemption the appellants can claim fixity of tenure if the document evidences a tenancy. 3. Now we shall consider the provisions of the document. The document was of 30th Edavam 1099 and it is called otti adharam. An amount of Rs.1600/-was taken to discharge several debts mentioned in the document and the properties haying an extent of 6 acres and 94 cents were given possession to the transferees. A small michavaram (31/2 fanams) is fixed and a term of 12 years is also fixed. The transferees are allowed to plant more coconut and jack trees and pepper vines, to construct kayyalas and sub-kayyalas, to dig a well and to construct, if necessary, a new building in addition to the one already existing and live therein. The further provision in the document is that, after the expiry of the term of 12 years, the transferees, if the parties agree thereto, can have a renewal as well. The further provision in the document is that, after the expiry of the term of 12 years, the transferees, if the parties agree thereto, can have a renewal as well. One more provision has to be noted, because that seems to have weighed with Joseph J. in construing the document as a mortgage; and that is the indemnity clause that if there was any other encumbrance on the properties the transferees would be indemnified. We may incidentally mention that there is no right given to the transferees to bring the properties to sale to realise the amount advanced by them. These are the main provisions we have to consider. 4. The first contention of the appellants is that the transaction is a kanam. A kanam as defined under S. (22) of Act I of 1964 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 kanapattam. The incidents necessary are: (1) a right in the transferee to hold the property liable for the consideration paid by him; (2) the liability of the transferor to pay to the transferee interest on such consideration; and (3) payment of michavaram or customary dues or renewal on the expiry of any specified period. This definition of kanam applies to the whole of the State. But, in areas in the State other than Malabar, the same sub-section provides, a transaction which is described in the document as Otti, karipanayam, panayam, nerpanayam or by any other name and which has the first two incidents mentioned above and in addition the right to renewal on the expiry of any specified term and the payment of customary dues is also a kanam. 5. We shall now scrutinise the provisions of the document in the light of this definition. What appears then is that the transaction is not a kanam in the first sense in the sense in which it applies to the whole State because the transaction is not designated as kanam or kanapattam. Since this transaction arises in an area outside Malabar, we have to see whether the second part of the definition applies. What appears then is that the transaction is not a kanam in the first sense in the sense in which it applies to the whole State because the transaction is not designated as kanam or kanapattam. Since this transaction arises in an area outside Malabar, we have to see whether the second part of the definition applies. What we find then is again that the transaction is not a kanam even in this sense since there is no provision for payment of customary dues. 6. The next question is whether the transaction is a kanam-kuzhikanam coming under sub-section (23) of S.2. We are of opinion that this document might not even come within that definition, because the document is styled otti and the amount advanced is styled ottiartham and not kanartham as required by clause (a) of sub-section (23) of S.2. 7. In spite of all these, the appellants are entitled to succeed, because the document falls under S.2 (57) of Act I of 1964. S.2 (57) defines the term 'tenant'; and the transferees under Ex. D1 will clearly come under this term, because the properties were transferred to them for consideration and for being enjoyed by them. The provisions we have pointed out already provisions for planting coconut and jack trees and pepper vines, digging a well, constructing a new house, etc. clearly indicate that the intention of the parties to the document was the enjoyment of the properties by the transferees. If so, the transaction is a tenancy and S.13 of the Act confers fixity of tenure on the transferees. 8. Joseph J. seems to think that since the occasion for executing Ex. D1 was the raising of a loan the transaction must be a mortgage. We are afraid that the test is not the raising of a loan, but the test is whether the document creates a security for the loan. A loan can be raised by a landlord not only by creating a mortgage but by taking a kanam or even by taking advance rent on a lease. So that, the question to be decided is whether the document is intended to create security for the money taken by the transferor or whether the intention was to allow the transferees to enjoy the properties. So that, the question to be decided is whether the document is intended to create security for the money taken by the transferor or whether the intention was to allow the transferees to enjoy the properties. In this connection, we may refer to the Full Bench decision of this Court in Krishnan Nair v. Perumbalath Kizhakkiniyakath Manakkal Karanavan (AIR. 1967 Ker. 270: 1967 KLT. 78) to which one of us was a party. The Full Bench has said: "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. If it is, then by reason of the fixity given by S.13 of the Act the transferor cannot recover possession even if the transaction be at the same time a mortgage which he is entitled to redeem. The question would not be whether the transaction is predominantly a lease or predominantly a mortgage but whether it is a lease at all." If this test has to be applied-and it has to be applied the conclusion is that the transaction is a lease. We may however add that the indemnity clause on which reliance was placed by Joseph J. may indicate that the transaction was intended to be a mortgage too. In tenancy documents such a provision might be out of place. Still, even if we construe the document as a composite one embodying a mortgage and a lease, however small that lease part be, even then the transferees cannot be evicted. That was what the Full Bench laid down. 9. The foregoing discussion shows that the transaction was a lease. The second appeal is consequently allowed, the concurrent decision of the lower courts is set aside and the execution petition is dismissed. In the circumstances of the case, we direct all parties to bear their respective costs throughout. Allowed.