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1974 DIGILAW 203 (KER)

VELAYUDHAN VIVEKANANDAN v. AYYAPPAN SADASIVAN

1974-09-27

G.BALAGANGADHARAN NAIR, M.U.ISAAC, P.GOVINDA NAIR, V.BALAKRISHNA ERADI, V.P.GOPALAN NAMBIYAR

body1974
Judgment :- 1. The question is whether Ext. P5 described as an'Ottikuzhikanam' is a redeemable mortgage or a lease. The trial court held that it was a mortgage and granted a decree for redemption of plaint item No. 1. In appeal filed by the 2nd defendant, the lower appellate court held that the plaintiff had not established his tile to the property and so the decision of the trial court was reversed and the suit was dismissed. The appellate court did not find on the question whether Ext. P5 was a mortgage or a lease. In the second appeal which was heard by a learned single judge of this Court, title was found in favour of the plaintiff but the suit was dismissed on the ground that the transaction evidenced by Ext. P5 was a lease. Leave for appeal was granted by the judge and when the appeal by the plaintiff came up before a Division Bench, the correctness of the view taken by the learned single judge that the payment of land revenue may well be treated as "other consideration" within the meaning of that term in S.2 (57) of the Kerala Land Reforms Act, 1963, for short, the Act, was doubted in view of the decision of the Supreme Court in Kunhamina Umma v. Paru Amma 1971 KLT 163 and it was further felt that the decision in Rev. Fr. Victor Fernandez v. Albert Fernandez 1971 KLT 216 required reconsideration. The case was therefore directed to be placed before a Full Bench of five judges. 2. It is necessary to read the whole of the document Ext. P5. I shall extract the document in an appendix to this judgment. 3. Reliance on the provision in the document for payment of Sirkar-tax for holding that there was "other consideration" to satisfy S.2 (57) of the Act, by the learned single judge, cannot be sustained in view of the pronouncement of the Supreme Court in Kunhamina Umma v. Paru Amma 1971 KLT 163. 4. The Full Bench decision in Rev. Fr. Victor Fernandez v. Albert Fernandez 1971 KLT 216 also, I think with great respect, has not been correctly decided. The document that was considered therein was styled as 'Ottikuzhikanam" and the operative part of the document was to the effect. 4. The Full Bench decision in Rev. Fr. Victor Fernandez v. Albert Fernandez 1971 KLT 216 also, I think with great respect, has not been correctly decided. The document that was considered therein was styled as 'Ottikuzhikanam" and the operative part of the document was to the effect. The Full Bench observed that "The words, in the operative portion of the document would put it beyond any doubt that the property was given for enjoyment." S. 2 (39A) of the Act defines "Ottikuzhikanam" and I shall read that section: "'Ottikuzhikanam' means a transfer for consideration by a person to another of any land other than nilam for the enjoyment of that land and for the purpose of making improvements thereon, but shall not include a mortgage within the meaning of the Transfer of Property Act, 1882." 5. If the transaction is a mortgage within the meaning of the Transfer of Property Act, it will not be an 'Ottikuzhikanam' as defined in the section. There can of course be a combination of a mortgage and a lease in that the elements of both may be present in a transaction. In most cases transactions styled as 'Ottikuzhikanam' would at least be an anomalous mortgage as defined in S.58 (g) of the Transfer of Property Act from the usual terms embodied in such documents. If there is a lease element also present and the transfer is for the dual purposes of security and enjoyment, the further question whether the transferee would be a tenant under S.2 (57) of the Act can arise and when that question arises it will have to be resolved on the basis of the principles which, I think, are fairly well settled by the decisions in Hussain Thangal v. Ali 1961 KLT 1033 and in Krishnan Nair v. Sivaraman Nambudiri 1967 KLT 78. I am unable to agree, with respect, that the expression 'Ottikuzhikanam', whether it was used as the appellation given to the document, or when employed in the operative portion of the document as in Hanbpw IpgnimWhpsamsi FgpXnX¶v. can be conclusive in determining the nature of the transaction. I would therefore overrule the decision in Rev. Fr. Victor Fernandez v. Albert Fernandez 1971 KLT 216. 6. The transaction evidenced by Ext. P5 can be termed to be a composite transaction in which the elements of a lease and those of a mortgage are present. I would therefore overrule the decision in Rev. Fr. Victor Fernandez v. Albert Fernandez 1971 KLT 216. 6. The transaction evidenced by Ext. P5 can be termed to be a composite transaction in which the elements of a lease and those of a mortgage are present. In such cases "The correct approach is to take the terms of the document into consideration paying due heed to the label used, and ascertain from them whether the transaction is essentially a loan or a lease, in other words, whether the transfer is essentially for the purpose of security or for the purpose of enjoyment". (Paragraph 15 of the judgment in Hussain Thangal v. Ali 1961 KLT 1033). And in Para.10 of the Full Bench judgment in Krishnan Nair v. Sivaraman Nambudiri 1967 KLT 78 it was said: "10. Apart from a composite transaction of the kind already mentioned, 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 the 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. However, where the amount advanced is comparatively speaking insignificant, that would be an indication that the advance was not, in truth, by way of loan. However, where the amount advanced is comparatively speaking insignificant, that would be an indication that the advance was not, in truth, by way of loan. In that event, a promise to repay, or a provision for recovery by sale would not make it a loan, and the courts would probably ignore such a provision even with out resort to S.12 of the Act." On a reading of the document bearing the above principles in mind, it appears to me that the conclusion to be reached is that the dominant and essential purpose of the transaction evidenced by Ext.P5 was to take a loan and to transfer an interest by way of security I shall refer to the terms of the document in detail after dealing with the contentions and after adverting to the decisions, relied on in support of those contentions. 7. Counsel for the respondent relying on Para.5 and 6 of the judgment in Krishnan Nair v. Sivaraman Nambudiri 1967 KLT 78 and in Jagathamma v. Raghavan Pillai 1970 KLT 469, in Mathai Thomas v. Yohannan Kunjamma 1972 KLT 1, in Pathumma Hajumma v. Kalliani and others 1973 KLT772 and in Rajamma v. Bhaimikutty 1972 KLT 525 contended that there is an element of lease involved in the transaction (Ext. P5) and that therefore it must be held that the the transaction evidences a kanam (S. 2(22)) or a lease (S. 2(57)) and the respondent was entitled to fixity of tenure. This contention is based on the observation in Para.5 and 6 of the judgment in Krishnan Nair v. Sivaraman Nambudiri 1967 KLT 78 and it is those paragraphs that have been relied on or kept in mind in reaching the conclusions in Jagathamma v. Raghavan Pillai 1970 KLT 469 and the other decisions referred to above. 8. The passage from Para.5 of the judgment in Krishnan Nair v. Sivaraman Nambudiri 1967 KLT 78 relied on reads as follows: "if it is quite clear from the language of the deed effecting the transfer, that the transfer is at least partly if not wholly for enjoyment, the transfer embodies a kanam what everelse it might embody at the same time, and the existence of an inconsistent incident like a right of sale in the transferee for the recovery of the money advanced by him, cannot have the effect of ridding it of the kanam and making it purely a mortgage". And Para.6 of the judgment in Krishnan Nair v. Sivaraman Nambudiri 1967 KLT 78 runs thus: "6. The question usually asked in cases like the present is whether the transaction is a kanam or a mortgage, a kanam being, as we have already seen, the form of lease which is most likely to be mistaken for a mortgage. But S.13 of Act 1 of 1964 gives fixity to every kind of tenant, not merely to a kanam tenant, and it would appear that the Act does not treat a kanam tenant differently from other tenants. Moreover, as in the instance noticed in the order dated 8111963 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 master 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." These passages have been relied on for holding that if the transaction was "to any extent, a lease", or if the transaction is "a lease at all", there was a transfer for enjoyment and therefore the transferee was a "tenant" under S.2(57) of the Act or a "kanamdar" under S.2 (22) of the same Act, and was entitled to fixity of tenure. This, I conceive with due respect, is not what has been decided in Krishnan Nair v. Sivaraman Nambudiri 1967 KLT 78. This, I conceive with due respect, is not what has been decided in Krishnan Nair v. Sivaraman Nambudiri 1967 KLT 78. What is stated in Para.5 and 6 of the judgment in that case, as I shall presently show, will be applicable only to a very limited class of cases where on a reading of the document and considering the surrounding circumstances and applying the tests laid down, at the first stage indicated by Raman Nayar, Ag. C. J., in Para.4 of the decision in Krishnan Nair v. Sivaraman Nambudiri 1967 KLT 78 it is evident that the document evidences a lease. It will be useful to extract Para.4: "4. There are logically two stages in the process of ascertaining whether a transaction embodies a lease within the meaning of Act 1 of 1964 or is only a mortgage. The first stage (in compliance with S.9 of the Evidence Act) is to construe the document effecting the transaction in the light of the surrounding circumstances and find out its purport, in other words, what it really means. If the document makes out a lease, there the matter ends and it would be unnecessary to proceed to the second stage. But, if it makes out a mortgage, then, if the court is invited to do so by the defendant, it would be necessary to proceed to the second stage and find out whether the transaction was in substance other than what, from the document, it appears or purports to be and was, in truth, a lease. This is the second stage authorised by S.12 of Act 1 of 1964, the provisions of the Evidence Act S. 91 in particular notwithstanding. It was in the context of the first stage that the test was propounded. It has no relevance to the second stage which, in logical sequence, is reached only after the purport of the document has been ascertained. The two stages are, however, often telescoped it is in most cases difficult to keep them in separate watertight compartments- and it is, I am afraid, as a result of this that the validity of the test has been doubted." In such cases where it is evident that the transfer was for enjoyment, the mortgage element, however pronounced, is of no consequence and the lease element whether dominant or not must prevail. In all other cases of composite transactions where the elements of a lease and a mortgage are present it is the principles stated in Para.10 of the judgment in Krishnan Nair v. Sivaraman Nambudiri 1967 KLT 78 already extracted and the principles in Para.15 of the judgment in Hussain Thangal v. Ali 1961 KLT 1033 that should apply. 9. On a cursory examination, it might appear that those principles are inconsistent with what is stated in Para.5 and 6 of the judgment. But this is not so. In this State, more often than not, mortgages take the form of 'otti' in the South and transactions of a like nature in other parts where possession of the mortgaged property is transferred to the mortgagee as security. So it is conceivable that there could be transfer of possession for a mortgage as well as a lease, or, as is not infrequent in this State, for both purposes. It is in such cases that the difficulty in deciding whether the transfer was for enjoyment or as security arises. "Kaivasam" and "anubhavam", it was noticed in Hussain Thangal v. Ali 1961 KLT 1033 are indiscriminately used in the deeds to indicate the transfer of possession and enjoyment: "Both a kanam and a possessory mortgage involve transfer of possession and appropriation of profits towards interest and hence the distinction of a kanam being a transfer for enjoyment and a mortgage being a transfer for purposes of security is largely an abstraction, of little use as a test for discovering from the words employed in the deed itself whether a particular transaction is a kanam or a possessory mortgage. Whether the transfer is a kanam or a possessory mortgage, the words 'kaivasam' or 'anubhavam' are indiscriminately use d in the deeds to indicate the transfer of possession and enjoyment." And this aspect was again adverted in Para.7 of the judgment in Krishnan Nair v. Sivaraman Nambudiri 1967 KLT 78: "But, it is very rarely that the purpose of ultimate object of the parties in entering into a transaction is expressly disclosed in the document embodying it; enjoyment is ordinarily an incident of possession and possession normally carries with it the legal, if not the beneficial, title to enjoy; the words "possession" and "enjoyment" like their Malayalam equivalents, "kaivasam" and "anubhavam" are therefore commonly regarded as synonymous and are in combination often used to indicate transfer of possession, enjoyment being mentioned not so much to indicate the purpose of the transfer but to emphasise that there has been a transfer of actual or khas possession; hence it is very seldom that the underlying purpose can be gathered from the words used in the document; and therefore, more often than not, the purpose, like intention in a criminal case, is a matter for inference." 10. A transfer can be either for the purpose of enjoyment or as security or for both purposes and in the light of what has been pointed out the expressions used in the document will not always be helpful or conclusive in deciding whether the transfer of possession was for enjoyment or as security. In such cases it is the principle stated in Para.10 of the judgment in Krishnan Nair v. Sivaraman Nambudiri 1967 KLT 78 and that alone which would be applicable. The same proposition was stated in Hussain Thangal v. Ali 1961 KLT 1033 in Para.15 of the judgment. And as far as I know, this principle bad never been deviated from in any pronouncement of the Supreme Court or of this Court excepting in the decisions in Jagathamma v. Raghavan Pillai,1970 KLT 469In Mathai Thomas v. Yohannan Kunjamma,1972 KLT 1, in Pathumma Hajumma v. Kalliani and Others 1973 KLT 772 and in Rajamma v. Bhaimikutty 1972 KLT 525. 11. In view of what I consider, with great respect, the misapplication of the principles thus settled, the scope and ambit of the observations in Para.5 and 6 of the judgment in Krishnan Nair v. Sivaraman Nambudiri 1967 KLT 78 have to be explained. 11. In view of what I consider, with great respect, the misapplication of the principles thus settled, the scope and ambit of the observations in Para.5 and 6 of the judgment in Krishnan Nair v. Sivaraman Nambudiri 1967 KLT 78 have to be explained. A mortgage is a transfer of an interest in immovable property and such transfer is not always accompanied by a transfer of possession. I have no doubt that the principle enunciated in Para.5 and 6 of the judgment in Krishnan Nair v Sivaraman Nambudiri 1967 KLT 78 would apply only to cases where the transfer of possession was solely for enjoyment. What the learned judge had in mind in stating the principle in Para.5 and 6 was a document such as that had been considered in the order in S. A. No. 88 of 1963, specifically referred to in Para.6 of the judgment. In that order staying the appeal under S.5 of Act 7 of 1963, the same learned judge expressed himself thus: "The inquiry, it seems to me, is not so much what the courts below seems to have thought it was, namely, whether the transaction is predominantly a lease or predominantly a mortgage as whether it is a lease at all. If it is at least, in part a lease, no matter how' small a part, then the person holding under it must, I think, be a tenant within the meaning of the definition, for, he would be a person who has agreed to pay rent for being allowed by another to possess and enjoy the land of the latter." This was said in a case where from the terms of the document which was styled as a "Melvaipapattacheet" it was discernible that the transfer was for enjoyment, thus 'creating a lease. The document, the learned judge said "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 enjoy rent of the transferee in consideration of his agreeing to pay rent. This itself seems to me sufficient to show that the property was given for the enjoy rent of the transferee 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". The expressions whether the transaction was "in part a lease, no matter how small a part", in the order extracted above must be understood in this background. If so understood, it is evident that the transfer was for enjoyment and what was secured was the reversion and the creation of the security did not involve any transfer of possession. The words of the learned judge in the same order to the effect "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", are very significant. And however dominant this element of the transfer of interest as a security creating a mortgage would be, it will not affect the transfer of possession for enjoyment which is sufficient for the purpose of holding that there was a transfer for enjoyment and so the transaction fell within S.3(26) of the Kerala Tenants and Kudikidappukars Protection Act, 1963 (Act 7 of 1963) and within S.2 (50) of the Kerala Agrarian Relations Act, 1960 (Act 4 of 1961). It is the echo of the words used in that order in S. A. No. 88 of 1963 that we get in Para.5 and 6 of the judgment in Krishnan Nair v. Sivaraman Nambudiri, 1967 KLT 78 and those paragraphs must be understood, and can only be understood, as applicable to cases where it is evident that the transfer was solely for enjoyment of the property. This Is so is abundantly clear from the opening words of Para.10 of the judgment as well. This paragraph dealt with transactions of a composite nature "apart from a composite transaction of the kind already mentioned". What was already mentioned is indicated in that paragraph itself in the words put within brackets. I must extract once again that part for emphasis: "10. This paragraph dealt with transactions of a composite nature "apart from a composite transaction of the kind already mentioned". What was already mentioned is indicated in that paragraph itself in the words put within brackets. I must extract once again that part for emphasis: "10. Apart from a composite transaction of the kind already mentioned, 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 the 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 ease, 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.' There can be little doubt that the words within brackets have reference to the words in the order in S. A. No. 88 of 1963 already read, "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." Para.5 and 6 will apply only to such cases where the mortgage, in other words the transfer of an interest, was of the revision after the creation of a lease. Para.10 deals with cases where the same transfer is for "concurrent purposes, both for the purpose of enjoyment and for the purpose of security". In all cases of such composite transfers, it is the test that has been laid down in Para.15 in Hussain Thangal v. Ali 1961 KLT1033 and repeated in Para.10 of the judgment of the Full Bench in Krishnan Nair v. Sivaraman Nambudiri 1967 KLT 78 that should be applied, and not what has been stated in Para.5 and 6, which as I have endeavoured to show, would only have a very very limited application, viz., to cases where the transfer can be spelt out from the terms of the document and the surrounding circumstances, to be solely for enjoyment. Regretfully I have to state, as I indicated earlier, that this aspect has been lost sight of and the Full Bench decision has been misapplied in a number of cases. Regretfully I have to state, as I indicated earlier, that this aspect has been lost sight of and the Full Bench decision has been misapplied in a number of cases. Madhavan Nair J., in Balakrishnan & Others v. Parame swaran Namboodiri Alias P.N. Kakkat 1968 KLT128 referred to the"Melvaippapattachit" which was considered in passing the order staying S. A. No. 88 of 1963 and said "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". But this decision seems to have received no recognition. The decisions which purported to follow the Full Bench in Krishnan Nair v. Sivaraman Nambudiri 1967 KLT 78 did not refer to Balakrishnan & Others v. Parameswaran Namboodiri Alias P. N. Kakkat 1968 KLT 128. The decision, if I may say so with respect, is helpful in understanding the scope and effect of Para.5 and 6 of the judgment in Krishnan Nair v. Sivaraman Nambudiri 1967 KLT 78. 12. I shall sum up the principles to be applied in transactions of a composite nature under the following heads: (1) In examining such a transaction there are two stages. At the first stage the document must be read as a whole and in its entirety giving due weight to every term in it and the nomenclature of the document, and keeping in mind the surrounding circumstances. (2) If on a reading of the document in the manner indicated under (1) above, it is evident that there has been a transfer for enjoyment for rent or other consideration, then the transaction is a lease and no further question arises. (3) Such cases, where it is possible at the first stage, to reach the conclusion that the transaction is a lease, are very rare, and occur but seldom. I may add that those are the cases that arise from transactions akin to that evidenced by the document construed in the order staying S. A. No. 88 of 1963 under S.5 of Act 7 of 1963. (4) Para.5 and 6 of the judgment in Krishnan Nair v. Sivaraman Nambudiri 1967 KLT 78 refer only to transactions such as that evidenced by the document contained in the order referred to above. (4) Para.5 and 6 of the judgment in Krishnan Nair v. Sivaraman Nambudiri 1967 KLT 78 refer only to transactions such as that evidenced by the document contained in the order referred to above. The expressions "to any extent a lease" or "whether a lease at all" occurring is those paragraphs will be applicable only to those transactions of the kind mentioned above and not to other composite transactions. (5) In the case of 'other composite transactions' which are referred to in Para.15 of the judgment in Hussain Thangal v. Ali 1961 KLT 1033 and again in Para.10 of the judgment in Krishnan Nair v. Sivaraman Nambudiri 1967 KLT 78, that is, transactions other than those where it is evident that the transfer was for enjoyment already referred to, the question whether the transaction evidences a lease or a mortgage will have to be determined by taking into consideration all the factors which are pertinent and by applying the tests detailed in Para.6 of the judgment in Hussain Thangal v. Ali 1961 KLT 1033, read in the light of the modifications made in Para.9 of the judgment in Krishnan Nair v. Sivaraman Nambudiri 1967 KLT 78 in regard to the fourth test, and bearing in mind the observations in Para.8 of the same judgment in regard to the second test. (6) On applying the procedure indicated above if it is found that the elements of a lease predominate so as to justify the inference that the dominant intention was to transfer the property for enjoyment, the transaction must be held to be a lease. On the other hand, if the predominant elements indicate a transfer by way of security, then the transaction must be held to be a mortgage. 13. In the light of the above principles it has to be pointed out that there has been an over-emphasis of the creation of the security in Kunhiraman Nambiar v. Pairu Kurup 1969 KLT 62 the Full Bench decision to which I was a party. It was observed therein that "The clause ImW{Zhy ns ]Wambn h"ncnip¶p is very significant and will be a conclusive pointer to the intention of the parties to Ext. Al to create a mortgage". These words remind me of the fourth test enunciated in Hussain Thangal v. Ali 1961 KLT 1033. It was observed therein that "The clause ImW{Zhy ns ]Wambn h"ncnip¶p is very significant and will be a conclusive pointer to the intention of the parties to Ext. Al to create a mortgage". These words remind me of the fourth test enunciated in Hussain Thangal v. Ali 1961 KLT 1033. This test must be understood in the light of the clarification in Krishnan Nair v. Sivaraman Nambudiri 1967 KLT 78, in Para.4, 5 and 9 of the judgment. The creation of a charge on the kanam amount cannot be a "conclusive pointer". With great respect I have to hold that the view is incorrect. The conclusion arrived at in Kunhiraman Nambiar v. Pairu Kurup 1969 KLT 62 as is evident from the judgment itself is supportable without relying on any conclusive test. 14. Now turning to the decisions which have sought to apply the principles in Krishnan Nair v. Sivaraman Nambudiri 1967 KLT 78 we have the Division Bench ruling in Jagathamma v. Raghavan Pillai 1970 KLT 469. The learned judges held that there was an element of lease and so the transaction was a lease. With great respect, the learned judges have misunderstood the scope of what has been stated in Para.5 and 6 in Krishnan Nair v. Sivaraman Nambudiri 1967 KLT 78 which have been explained by me at some length with the hope that with this clarification there will be a lesser likelihood of misunderstanding the words used therein. The decision in Jagathamma v. Raghavan Pillai 1970 KLT 469 cannot be supported on the basis of the principle laid down in Krishnan Nair v. Sivaraman Nambudiri 1967 KLT 78. I would overrule that decision. For the same reason the decision in Mathai Thomas v. Yohannan Kunjamma 1972 KLT 1, another Division Bench ruling of this Court cannot also stand. And I am unable with due respect to agree with the view expressed by Poti J., in Pathumma Hajumma v. Kalliani and Others 1973 KLT 772 that "so long as the elements of both lease and mortgage are present, the document has to be construed as a lease". Here again what has been done is to see whether the transaction is to any extent a lease. Here again what has been done is to see whether the transaction is to any extent a lease. The true principle should be to find out what elements dominate; those pertaining to a lease or a mortgage.1 say nothing about what Namboodiripad J., has said in Rajamma v. Bhaimikutty 1972 KLT 525 since the decision is now pending in appeal. 15. I will have to say one word about the Full Bench decision in Kunhiparan Venkiteswara Naicken & Others 1967 KLT 646. The principles enunciated in Hussain Thangal v. Ali 1961 KLT 1033 and in Krishnan Nair v. Sivaraman Nambudiri 1967 KLT 78, if I may say so with great respect, had been correctly applied in interpreting the document which had to be interpreted in Kunhiparan v. Venkiteswara Naicken & Others 1967 KLT 646. But it appears to me that there is an over-statement of the principle in Para.6 of the judgment. I shall read that part of the judgment: "The two indications in the document that can be claimed to be in favour of the respondents are the right of sale conferred on the transferees to realise the amount advance by them, and the name of the document, kaivasompanayam. We have clearly indicated in Krishnan Nair v. Sivaraman Nambudiri 1967 KLT 78 (F.B.) that neither of them is conclusive that the transaction is purely a mortgage and does not embody a lease. As stated by us in that decision the real test is whether the transfer was intended by the parties for the enjoyment of the property by the transferee or whether it was intended solely to secure the amount advanced by him. (underlining is mine)". The established principles do not warrant an interpretation that the parties should have intended that the transfer was solely to secure the amount advanced before it can be inferred that there was a mortgage. As a matter of fact, in composite transactions the transfer can well be both for enjoyment and as security. If it is necessary to establish that the transfer was solely as security, . in no case of a composite transaction it would be possible to infer that the transaction was a mortgage. Surely that is not the law, The principles stated in Para.6 of the judgment in Kunhiparan v. Vankiteswara Naicken & Others 1967 KLT 646 cannot be accepted. The word "solely" ought not to have been used. in no case of a composite transaction it would be possible to infer that the transaction was a mortgage. Surely that is not the law, The principles stated in Para.6 of the judgment in Kunhiparan v. Vankiteswara Naicken & Others 1967 KLT 646 cannot be accepted. The word "solely" ought not to have been used. The sentence must be read without the word "solely". Certain decisions of this Court have been rendered by emphasising the word "solely" and with respect I have to state that those cases were wrongly decided. 16. I am now in a position to examine the terms of the document. All but one of the six items of consideration mentioned in the document were borrowings, and the 6th one was also a borrowing though only for the purpose of meeting the expenses, for the execution of the document. The amount borrowed is 6601 fanams. The land that was the subject matter of the transaction had only an extent of 43 cents. The amount of consideration that was received almost represented the value of the property at that time considering its location. There was no provision either for payment of any michavaram, rent or pattom. The direction to pay the Sirkar-tax in the document cannot be treated to be "other consideration", in view of the pronouncement of the Supreme Court in Kunhamina Umma v. Paru Amma 1971 KLT 163 confirming the view expressed by Madhavan Nair J., in Kunhamina Umma v. Paru Amma 1967 KLT 596. The provision in the document that the value of improvements will be paid is not inconsistent with a mortgage. It seems to me evident that the relationship is that of debtor and creditor and that the transfer of possession was by way of security. So there was a mortgage within the meaning of that term as defined in the Transfer of Property Act. This rules out the application of S.2 (39A) of the Act. Since the transfer has to be held to be one for securing the debt the transaction I have already said evidences a mortgage S.2 (57) also would not be attracted.1 therefore, with due respect, find it difficult to agree with the learned judge in his view in the judgment under appeal that the defendant is a tenant coming under the main part of the definition 'tenant' in S.2 (57) of the Act. I hold that Ext. I hold that Ext. P5 evidences a redeemable mortgage. Accordingly I set aside the judgments of the lower appellate court as well as of this Court in S.A. No. 348 of 1968 and restore that of the trial court. The parties will bear their costs throughout. Appendix Gopalan Nambiyar, J.: 1A. The question raised in this appeal against the judgment of Krishna Iyer J. of this Court (as he then was) is whether Ext. P5 document styled "Ottiyum Kuzhikkanavum" is a redeemable mortgage or a tenancy, coming particularly, within the purview of S.2 (39A) of the Kerala Land Reforms Act, or, generally within S.2 (57) thereof. The trial court held that it was a mortgage and decreed redemption. The lower appellate court reversed the decision and. dismissed the suit an the ground that the plaintiff had not proved title. In Second Appeal, Krishna Iyer J. found that the plaintiff had established his title, but sustained the order of dismissal on the ground that Ext. P5 evidenced a tenancy as contemplated by S.2 (57) of the Act. The learned judge found it difficult to hold that the transaction Tell within S.2 (39 A) (paragraph 5); rejected the contention that it was a kuzhikanom (paragraph 6); but held that the 2nd defendant is a tenant under S.2(57) of the Act. The learned judge expressed himself thus: "Be that as it may, the nature of the transaction, going by its terms, and interpreted in the light of the beneficent objects of the legislation, persuades me to the view that it is more a tenure than a mortgage. There is certainly a mortgage element in Ext. P5, but there is something more in it, the transaction being, if I may say so, composite. Whether it "was at least in part a lease could not have arisen for consideration in the past. I bold that Ext. P5 is in part a lease and the respondent, therefore, a tenant." 2A. When this appeal was heard by a Division Bench, it was argued by Counsel for the respondent that he was entitled to fixity of tenure under S.2 (39A) of the Act by reason of the decision of a Full Bench of this Court in Rev. Fr. Victor Fernandez v. Albert Fernandez (1971 KLT 216), rendered subsequent to the judgment under appeal. Fr. Victor Fernandez v. Albert Fernandez (1971 KLT 216), rendered subsequent to the judgment under appeal. Construing a document, almost similarly worded, the Full Bench in that case, observed: "The words, Hanbpw IpgnimWhpsamsi FgpXnX v. in the operative portion of the document would put it beyond any doubt that the property was given for enjoyment." The correctness of the above proposition was canvassed; and it was felt by the Division Bench that the matter required consideration by a Full Bench of five Judges. The whole case has accordingly come on before us. 3A. S.2 (39A) of the Act reads: "'Ottikuzhikanam' means a transfer for consideration by a person to another of any land other than nilam for the enjoyment of that land and for the purpose of making improvements thereon, but shall not include a mortgage within the meaning of the Transfer of Property Act, 1882." It is clear from the above definition that if the document is a mortgage within the meaning of the Transfer of Property Act, it would not be an'ottikuzhikanom' under S.2 (39A). In my view, as I shall endeavour to show, if the transaction is a mortgage, the 2nd defendant would not be a 'tenant' even under the generic definition in S.2 (57) of the Act. But it has been strenuously argued on the strength of certain observations in Krishnan Nair v. Sivaraman Nambudiri (1967 KLT 78) that even if Ext. P5 be a mortgage, it contains certain elements of a lease, and however small may be the lease-aspect of the transaction, that would suffice to qualify the 2nd defendant for being regarded as a tenant. It is said that the proposition in this form is warranted by the Full Bench decision in Krishnan Nair's case. To these aspects I shall now turn. 4A. Ext. P-5 dated 22-1-1096 is in respect of 43 cents of land, for a sum of 6601 fanams, representing about 926 Rupees. The amount represents almost the full market-value of the property in the locality, in which it is situated. To these aspects I shall now turn. 4A. Ext. P-5 dated 22-1-1096 is in respect of 43 cents of land, for a sum of 6601 fanams, representing about 926 Rupees. The amount represents almost the full market-value of the property in the locality, in which it is situated. There are six items of consideration shown in the document; 1200 fanams reserved to be paid to the transferor of another mortgage; 1800 fanams to discharge a chitty debt; 1400 fanams to obtain release of an Otti in respect of another property; 1650 fanams again, to discharge another otti on yet another property; 350 fanams for the purpose of demolishing a building situated in Ext. P5 property and for constructing another thereon; and 201 fanams borrowed in cash to meet the expenses of the document. All these represent essentially borrowings effected by the transferor. Reading the document as a whole, I am unable to hold that the transfer was for enjoyment of the property. There is no provision for payment of any purapad or michavaram or customary dues. The provision that the transferee may hold the property and receive the fair value of the trees on redemption is quite consistent with holding the property as security. I am of the opinion that Ext. P5 constituted only the relationship of a debtor and creditor between the parties and not that of lessor and lessee. The transaction was, therefore, a mortgage. Being a mortgage, it appears to make little difference whether it was a usufructuary mortgage under S.58(d) or an anomalous mortgage under S.58(g), of the Transfer of Property Act. As there is nothing in the document to indicate that the mortgagee was to receive the rents and profits from the property or part thereof, and to appropriate the same in lieu of interest or in payment of mortgage money, or partly in lieu of interest and partly in payment of the mortgage of money, I feel difficulty in holding that the transaction is a usufructuary mortgage under S.58(d); but it certainly answers the definition of an'anomalous mortgage' under S.58(g) of the Act- I hold accordingly. 5A. But we were strongly pressed with the observations of the Full Bench in Fernandez's case (1971 KLT 216), which have been extracted earlier; and it was contended that the use of the expression 'ottikuzhikanom' in Ext. 5A. But we were strongly pressed with the observations of the Full Bench in Fernandez's case (1971 KLT 216), which have been extracted earlier; and it was contended that the use of the expression 'ottikuzhikanom' in Ext. P5 would place the matter beyond doubt that the transaction was a lease and not a mortgage. Giving the matter my careful attention, I feel, with respect, that it would not be correct to say that the mere use of the term 'ottikuzhikanom' would infallibly indicate a lease. If the transaction, on its terms and purport, has to be regarded as a mortgage pure and simple, the said effect cannot be displaced or denied by the mere use of the term 'ottiyumkuzhikanavum' in the document, whether in its operative part or elsewhere. To the extent to which Fernandez's case (1971 KLT 216 (to which I was a party), lays down such a proposition, I feel satisfied that it cannot be accepted as correct. The correct position, in each case, is to construe the document as a whole, without regarding the label given to the transaction or the expressions used in the body of the document or the operative part thereof, as being conclusive of the nature of the transaction, or as placing the matter beyond doubt. 6A. It was then argued that even if the transaction be a mortgage, if it contained an element of lease, in howsoever small a measure, that would suffice to constitute the transferee a 'tenant' under S.2(57) of the Act. That Section reads: "tenant" means any person who has paid or has agreed to pay rent or other consideration for his being allowed to possess and to enjoy any land by a person entitled to lease that land, and includes (a) the heir, assignee or legal representative of, or any person deriving rights through, any such person who has paid or has agreed to pay rent or other consideration, (aa) an intermediary, (b) a kanamdar, (c) a kanam-kuzhikanamdar. (d) a kuzhikanamdar, (dd) an Ottikuzhikanamdar (e) a mulgenidar, (f) a verumpattamdar of any description (including a customary verumpattamdar), (g) the holder of a chalgeni lease, (h) the holder of a kudiyiruppu, (hh) a person holding lands under a kuzhichuvaipum kudiyiruppum, (hhh) the holder of a kariama, (i) the holder of a vaidageni lease, and 0) a person who is deemed to be a tenant under S.4, S.4A, S.S, S.6, S.6A. S.6B, S.7A, S.7B, S.7C, S.71), S.8, S.9 or S.10, or presumed to be a tenant under S.11. Explanation: For the purposes of this clause, (i) "holder of a chalgeni lease" means a lessee or sub-lessee of specific immovable property situate in the taluk of Hosdrug or Kasaragod in the district of Cannanore, who has contracted either expressly or impliedly to hold the same under a lease, whether for a specified period or not; (ii) "mulgeni" means a tenancy in perpetuity at a fixed invariable rent created in favour of a person called mulgenidar; (iii) "vaidageni lease." means a lease for a term of years". The inspiration for the argument is traced to certain observations of Raman Nayar, Ag. Chief Justice, in the Full Bench decision in Krishnan Nair's case (1967 KLT 78). I think, the decision, (to which again, I was a party), properly read and understood, lends no support to such a proposition. Krishnan Nair's case was concerned with further elucidating the tests which would tell a possessory mortgage from a kanam. These had been laid down earlier, by Raman Nayar J. himself in Hussein Thangal's case (1961 KLT 1033). In Hussein Thangal's case the learned judge observed that the essential difference between the two was, that while the one (Kanam) was a transfer for enjoyment of the land, the other (possessory mortgage), was a transfer for securing a debt. This, as see it, is the "golden thread" that runs throughout the web of the decisions on this aspect. This difference, observed the learned judge, was rarely an apparent feature in the document embodying the transaction and was largely a matter for inference. In the process of drawing the inference, a provision in the deed enabling the transferee to insist on repayment of consideration otherwise than as a condition for redemption of the property was stated to be a "sure way" of telling a possessory mortgage from a kanam. In the process of drawing the inference, a provision in the deed enabling the transferee to insist on repayment of consideration otherwise than as a condition for redemption of the property was stated to be a "sure way" of telling a possessory mortgage from a kanam. The proposition, stated in this form in Hussein Thangal's case, was doubted, and that had occasioned the reference to the Full Bench in Krishnan Nair's case (1967 KLT78). A second test propounded in Hussein Thangal's case was, ratio that the consideration advanced bears to the value of the property transferred, a higher ratio being indicative of a mortgage, and lower one, of a kanam. In Krishnan Nair's case the tests propound in Hussein Thangal's case to distinguish a possessory mortgage from a kanam were elaborated at a fairly considerable length, and a few more were added. The position was explained thus: In Para.4 of the judgment it was said that there are two stages in ascertaining whether a transaction is a lease or a mortgage. The first is to construe the document in the light of the surrounding circumstances and find out its purport, that is, what it really means. If the document makes out a lease, there the matter ends, and it would be unnecessary to proceed to the second stage. But if it makes out a mortgage, then it would be necessary to proceed to the second stage, and to find out if the apparent tenor of the document was its real effect and purport. The two stages are often telescoped, and it would not be possible to keep them in water tight compartments. In Para.5, the Chief Justice observed: "5. The two stages are often telescoped, and it would not be possible to keep them in water tight compartments. In Para.5, the Chief Justice observed: "5. I should have thought that the words prefacing the formulation of the tests for telling a kanam from a mortgage in Para.6 of the report in Hussain Thangal v. Ali 1961 KLT 1033 made it clear that the tests were formulated only for cases of difficulty and doubt, where the language used in the document did not disclose the true nature of the transaction effected, in other words, whether the transfer was for enjoyment or for the purpose of security." Lower down in the same paragraph the learned judge observed: "The only true difference between the two transactions is that while a kanam is a transfer for enjoyment of the property transferred a mortgage is a transfer for securing money advanced by way of loan. But, as explained in Hussain Thangal v. Ali (1961 KLT' 1033) this difference though real and critical is largely an abstraction, rarely discernible from the language usually employed in documents effecting such transactions. Indeed, the traditional view of a kanam was that it was a combination of a usufructuary mortgage and a lease it was often described as an anomalous mortgage. But, after the statutory definition first made in the Malabar Tenancy Act, of a kanam as a transfer for enjoyment, a kanam can no longer be regarded as, in any sense, a mortgage. For, a mortgage is a transfer for the purpose of security not a transfer for enjoyment, and, although it is conceivable that the same transfer may serve both purposes so as to embody both a kanam and a mortgage, the kanam aspect of it can only be a lease and not a mortgage. However, if it is quite clear from the language of the deed effecting the transfer, that the transfer is at least partly if not wholly for enjoyment, the transfer embodies a kanam whatever else it might embody at the same time, and the existence of an inconsistent incident like a right of sale in the transferee for the recovery of the money advanced by him, cannot have the effect of ridding it of the kanam and making it purely a mortgage. Possibly, any risk of the statement as to the conclusive nature of the test being read free of the qualifications imposed by the context, could have been avoided by saying that a right of sale, or other provision for recovery by the transferee of the money advanced by him otherwise than on redemption, would be strongly suggestive of a loan and therefore of a mortgage instead of saying that it would put it beyond doubt that the transaction was a loan and not a lease, and therefore, a mortgage and not a kanom." In Para.6 of the judgment, the learned Chief Justice discussed the case of a composite transaction embodying both a mortgage and a lease, and, in the course of the discussion, observed: "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." In Para.7 of the judgment the Chief Justice noticed the definition of a 'kanam' in S.2 (22) of the Land Reforms Act, of a 'tenant' in S.2 (57), and also certain other provisions of the Act. In Para.8, the learned judge referred to the definition of a mortgage in S.58 (a), and of a lease in S.105, of the Transfer of Property Act, and emphasised that the only essential difference between a lease and a mortgage with possession is that in the former the purpose of the transfer is that the transferee may enjoy the property, whereas in the latter, the purpose is, that the property may serve as security for a loan. In Para.10, the learned judge considered the case where, theoretically at least, the same transfer was for concurrent purposes, viz. In Para.10, the learned judge considered the case where, theoretically at least, the same transfer was for concurrent purposes, viz. both for enjoyment and for the purpose of security, and observed: "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. However, where the amount advanced is comparatively speaking insignificant, that would be an indication that, the advance was not, in truth, by way of loan. In that event, a promise to repay, or a provision for recovery by sale, would not make it a loan, and the courts would probably ignore such a provision even without resort to S.12 of the Act." This, it should be remembered, was in regard to transactions where the transfer was for concurrent purposes. In Para.16 of the judgment, the learned judge considered the question as to why the Act had given an elaborate definition of 'kanam', if a transfer for the purpose of enjoyment without more, would straightaway make the 'kanamdar' a 'tenant' under S.2 (57). The learned Chief Justice, venturing an answer, proceeded to state: "If the purpose of a transfer is not discernible, but otherwise the transfer satisfies the definition of both a kanam and a mortgage, then it may be presumed that the purpose is enjoyment and that the transfer is a kanam and therefore a tenancy. But if the transfer does not satisfy the definition of, "kanam" then it may be presumed that the purpose was to secure a loan and that the transfer is a mortgage and not a tenancy. In other words, if a transaction clearly satisfies the definition of, "kanam" in all other respects and the only element remaining positively to be established is the essential element of the transfer being for the purpose of enjoyment, then, unless the contrary is shown, that element must also be regarded as satisfied and the transfer held to be a kanam." 7A. I am clear that the principles laid down in Krishnan Nair's case are these. The essential test to tell a. kanam or for that matter, a lease from a mortgage, is to find out the nature of the transfer. If it is for purposes of enjoyment, the transaction is a lease; if, for the purpose of holding as security for a debt, the transaction is a mortgage. Once it is found that the transfer was for enjoyment and therefore a lease, the existence, or preponderance, of a mortgage element in the transaction by reason of such incidents as, a provision for sale, or payment of a high premium, or absence of payment of customary dues etc., would not make the transaction a mortgage. And, vice versa, if on its terms and purport the transaction is found to be a mortgage, a provision for payment of rent or customary dues, or the lowness of the ratio that the consideration bears to the value of property would not spell a lease. This properly understood, was what the learned Chief Justice meant, in the reference in Para.6, quoted supra, to the transaction being at least in part a lease, no matter how small a part, etc. These observations, have been much misunderstood. Whether this has been on account of the "sad incompetence of human speech" on the part of the Chief justice or any infirmity in sizing up the principle of the judgment, I need not pause to consider. Judicial decisions are not to be construed like Statutes, nor forgetting the rationale of the decisions read as a whole, and stressing a sentence in one place, or a word in another, divorced from the setting and context in which they occur. I have endeavoured to explain and clarify the position as I see it. 8A. I feel little difficulty in gathering the true principle of the decision in Krishnan Nair's case from that decision itself. But if the rule of contemporanea expositio were to be any guide, that is provided by another judgment, by the same Full Bench as in Krishnan Nair's case, speaking again, through the same Judge, Raman Nayar J. I have in mind the decision in Kunhiparan's case (1967 KLT646). But if the rule of contemporanea expositio were to be any guide, that is provided by another judgment, by the same Full Bench as in Krishnan Nair's case, speaking again, through the same Judge, Raman Nayar J. I have in mind the decision in Kunhiparan's case (1967 KLT646). It was there pointed out that it was a mistake to regard the test regarding the right of sale as affording a conclusive indication that the transaction was a mortgage.It was once again stressed that the real test was to find out whether the transfer was for enjoyment of the property rather than for securing the amount advanced by way of loan. Having held that the transaction was one for enjoyment of the land, the Full Bench observed that the two indications in the document claimed to make it out to be a mortgage, namely, the right of sale and the nomenclature of the document as 'kaivasam panayam', were neither individually nor cumulatively, conclusive on the question, as stated in Krishnan Nair's case. Having stated this, the Full Bench observed: "As stated by us in that decision, the real test is whether the transfer was intended by the parties for the enjoyment of the property by the transferee or whether it was intended solely to secure the amount advanced by him." The use of the expression 'solely', in the above sentence, as I shall show, was, I think unfortunate, and has been productive of some confusion and misunderstanding on this branch of the law. I think that, in the context, the expression 'solely' was unnecessary, and should not come in for any special emphasis. In concluding this part of the discussion, I may note the decision of the Supreme Court Lakshmi & Others v. Narayani & Others (AIR. 1967 S. C. 877 -1967 KLT 1), which while construing the document in question to see if it was a kanam kuzhikanam or a mortgage, stressed the elements of enjoyment or security as the guiding factors. 9A. In Kunhiraman Nambiar v. Pairu Kurup (1969 KLT62) a Full Bench of this Court noted the provision in the document construed, under which the rights of the transferor had been charged as panayam for the kanam amount. It was observed: "The clause is very significant and will be a conclusive pointer to the intention of the parties to Ext. A-1 to create a mortgage". It was observed: "The clause is very significant and will be a conclusive pointer to the intention of the parties to Ext. A-1 to create a mortgage". I wish to observe that it is wrong to regard the clause as conclusive. That view militates against the principle of the two Full Bench rulings in Krishnan Nair's case (1961 KLT 78) and Kunhiparan's case (1967 KLT 646), and I am unable to endorse the said view. For the same reason, I am also unable to endorse the view in Fernandez's case (1971 KLT 216) that the use of the expression'Ottikuzhikanam' would place it beyond doubt that the document is a tenancy. The true view is that real effect and nature of the transaction has got to be gathered from a conspectus of all its terms. No single incident, and no particular label or description, is to be regarded as conclusive. 10A. In Chacko Kochuvarghese v. Narayani Amnia Gouri Amma (1969 KLT 22) Krishna Iyer J. observed: "3. Many decisions, reported and unreported, have adopted approaches to the question of mortgage or lease which sometimes conflict with one another and often turn upon the particular facts of each case. To distil principles of general application, one has to study the two recent Full Bench rulings reported in 1967 K.L.T. 78 and 646. The propositions laid down there are binding, and even if sometimes too abstruse, abstract and recondite, are the most comprehensive and fruitful judicial effort in this field of law, if I may say so with great deference. A few later rulings seeking to annotate the observations of the Full Bench were brought to my notice by respondent's counsel but I prefer to go by the Full Bench decisions themselves." The learned judge stressed that the transfer must have been 'solely' intended to secure the amount advanced, and held that if it is not 'solely' to secure a loan, the transfer is a lease. The learned judge relied on the sentence in Kunhiparan's case (1967 KLT 646), which I have extracted earlier. This mode of approach, as I have pointed out, was wrong. If the transaction viewed as a whole, was by way of security for a loan and therefore a mortgage, the lease element, small or great, present in it, would be immaterial. The learned judge relied on the sentence in Kunhiparan's case (1967 KLT 646), which I have extracted earlier. This mode of approach, as I have pointed out, was wrong. If the transaction viewed as a whole, was by way of security for a loan and therefore a mortgage, the lease element, small or great, present in it, would be immaterial. The decision of Namboodiripad J. in Rajamma v. Bhaimikutty (1972 KLT 525) is pending in appeal in this Court. It is not fair to say anything which might pre judge the result of the appeal. In Mathai Thomas v. Yohannan Kunjamma (1972 KLT 1) without considering the question whether the transfer was by way of security for a debt or for enjoyment of the land, the learned judges held that an element of lease was present, however small it was, and this would suffice to protect the transferee under the Land Reforms Act. The same view was also taken in Jagathamma v. Raghavan Pillai (1970 KLT 469). I cannot accept these decisions as having approached the consideration of the question in the perspective of the correct principle in Krishnan Nair's case. The decision of Poti J. in Pathumma Hajumma v. Kalliani and Others (1973 KLT 772) also appears to have missed the real import of the decision in Krishnan Nair's case. The observation of the learned judge that it is difficult to conceive of the elements of both a mortgage and a lease with respect to the same property does not appear to take into account the nature of a kanom, held in a number of rulings, to be a combination of a mortgage and lease. The statutory definition of kanam in the Malabar Tenancy Act, 193 C, marked a change, and shifted the emphasis to the transfer being for enjoyment of the land. This is pithily pointed out in the judgment in Krishnan Nair's case. 'Kanam Kuzhikanam', to mention only one more, is yet another transaction, partaking of the elements of both a mortgage and a lease. 11A. As before Krishna Iyer J., the argument was attempted before us that the second defendant is a "tenant" under S.2(57) of the Act, as he had paid 'other consideration' for being allowed to enjoy the land. 'Kanam Kuzhikanam', to mention only one more, is yet another transaction, partaking of the elements of both a mortgage and a lease. 11A. As before Krishna Iyer J., the argument was attempted before us that the second defendant is a "tenant" under S.2(57) of the Act, as he had paid 'other consideration' for being allowed to enjoy the land. Krishna Iyer J. in the judgment under appeal, held that the payment of tax or assessment was payment of 'other consideration', and that the expression'other consideration' must be read ejusdem generis with rent. This question does not really arise, as we have held that the transfer was not'for enjoyment', but only as security for a debt. That apart, I think that the question is concluded against the Respondent by the principle of the recent decision of the Supreme Court in Kunhamina Umma v. Paru Amma (1971 KLT 163) which has ruled that the payment of tax or assessment by a mortgagee would not be a payment of 'rent' or 'michavaram'. In the light of the above ruling, I am unable to regard the payment of tax or assessment as a payment of "other consideration" so as to bring the case within S.2(57) of the Act. I think too, that no genus is indicated by the use of the expression 'rent', in S.2(57) into which the expression 'other consideration' can fall as species. There is thus no scope to attract the rule of ejusdem generis. For these reasons again, I am unable to sustain the judgment of the learned judge. 12A. I agree that this appeal be allowed. Isaac J.:- I agree. Balakrishna Eradi J.: I too agree and have nothing to add. Balagangadharan Nair J.: I agree.