( 1 ) THIS is tenants' writ petition challenging the order dated 2-2-1977 passed by the Land Tribunal, Haveri, rejecting their application filed in Form no. 7 for grant of occupancy rights in respect of the lands in Sy. Nos. 11/4 and 12/4 of Galagnath village in Haveri taluk, measuring 9 acres 16 guntas and 8 acres 7 guntas respectively, on the ground that the land in question was cultivated by the petitioners on advance lease (Agavu lavani) basis. ( 2 ) THE Land Tribunal while reaching the above conclusion has relied upon the decision of this Court in Veerappa rudrappa Alagawadi v. Land Tribunal ( (1976) 1 Kar. L. J. 98. ). Venkataramaiah, J. , as he then was was considering a case which related to "undu biduva karara Agava Lavana". The facts in that case were, the tenant had obtained "undu biduva karara; agava Lavana" advancing a sum of Rs. 600/- for a period of five years and even after the expiry of the period of live years, he continued to be in possession and cultivation of the land paying the rent. While considering the facts of the case, his Lordship has observed thus:"in this case the parties intended that the petitioner should give up possession of the property at the end of 1969-70. It has also to be borne in mind that the above agreement was entered into by the petitioner at a time when an ordinary tenant of agricultural land was not to give up possession after the expiry of the period agreed upon. If the parties intended that the transaction should be one in the nature of an ordinary lease they would not have used the word "undu biduva karara". It is no doubt true that there is a state- ment in the above deposition that the petitioner had paid the rents subsequent to 1969-70. But there is no proof available on record in support of his case that he had paid rent in respect of the period subsequent to 1969-70. The Tribunal has not accepted that part of the case of the petitioner. The petitioner has not got any receipt to show that he had paid rents after 1969-70. Even if he has continued in possession of the property after 1. The Tribunal has not accepted that part of the case of the petitioner. The petitioner has not got any receipt to show that he had paid rents after 1969-70. Even if he has continued in possession of the property after 1. 969-70, his possession cannot be that of a tenant particularly in the absence of any plea much less proof of the fact that an agreement of tenancy was entered into after the expiry of 1969-70. Whatever else, it may be, one thing is clear that his possession is not that of a tenant. When that conclusion is reached, the question of applying the provisions of the Karnataka Land Reforms Act and declaring him as a tenant would not arise,. "in the earlier part of the judgment his lordship also observed thus:"it is well settled that the provisions of the Transfer of Property Act do not apply to all types of transactions which are prevailing in India. From the preamble to the Act it is clear that it was intended to deal with only certain kinds of transfers. Transactions like 'zuripeshgi' lease, 'ilibhogya' etc. , are not expressly dealt with by the provisions of the transfer of Property Act. It is also well settled that in respect of transfers which axe not governed by the provisions of the Transfer of property Act, the courts should apply the principles of justice, equity and good conscience. "from what has been excerpted above, it is clear that the learned Judge construed 'undu karara agavu lavani' as 'ilibhogya' which is to be governed by the principles of justice, equity and good conscience. Ilibhogya as commonly understood is that land with possession is given as security for the loan advanced for a stipulated periqd and the loan gets discharged by the enjoyment of the usufruct or income from the land by the person who advances the loan and after the expiry of the period for which Ilibhogya was created, Undu Biduva Karara Agava lavani possesses all the ingredients of ilibhogya. The loan advanced is paid off by the enjoyment of income from the lands during the period stipulated in the transaction. In this view of the matter, his Lordship held that in such cases the question of applying the provisions of the Karnataka Land Re- orms Act and declaring him as a tenant would not arise. The loan advanced is paid off by the enjoyment of income from the lands during the period stipulated in the transaction. In this view of the matter, his Lordship held that in such cases the question of applying the provisions of the Karnataka Land Re- orms Act and declaring him as a tenant would not arise. ( 3 ) IN my opinion, the above cited decision relied upon by the Land Triunal does not bear upon the facts of this case. The nature of tenancy arising in this case is only 'agavu lavani'. Its simple English translation is 'advance lease'. While interpreting the words 'agavu layani' this Court in marthanda Rao Shankar Rao Patil v. Land Tribunal Haven (ILR (1977) Kar. 648.) Malimath J. has held that the expression used 'agavu Lavani' is a well known expression used in Bombay-Karnataka area to convey the meaning that the transaction is an advance lease transaction and there are no recitals in the document from which an inference can be drawn that the transaction is not in reality an advance lease transaction but a mortgage transaction. ( 4 ) IT it clear from the decision immediately cited above that a simple 'agavu lavani' is construed as advance lease transaction. Therefore, the facts and circumstances in the instant case attract the application of ratio of the decision, in Marthanda Rao Shankar patil's case. The finding recorded by the Land Tribunal is, therefore, contrary to the ruling of this Court in marthanda Rao Shankar Rao Patil's case. The view taken by Malimath, J. , in the said case receives support from the decision of the Supreme Court in fuzhakkal Kuttappa v. C. Bhargavi ( AIR 1977 SC 105 .) wherein the Supreme Court has enuniciated the principles which distinguish a lease from a mortgage. In para 14 of the judgment, we find the enunciation of the law. It reads:"human transactions cannot be tied to textual definitions. They have to respond to variable requirements under different situations and often to the dictates of the party at an advantage in the bargain. Mortgages are not always simple, english or usufructuary or such other types as defined in the Transfer of Property Act. They are anomalous too and sometimes more anomalous than what is defined in the said Act. They have to respond to variable requirements under different situations and often to the dictates of the party at an advantage in the bargain. Mortgages are not always simple, english or usufructuary or such other types as defined in the Transfer of Property Act. They are anomalous too and sometimes more anomalous than what is defined in the said Act. Even so, there is one most essential feature in a mortgage which is absent in a lease, that is, that the property transferred is a security for the repayment of debt in a mortgage whereas in a lease it is a transfer of a right to, enjoy the property. "in the instant case, there is no material on record to infer that the, land in question was transferred as a security for the repayment of Rs. 1,300/- advanced by the petitioners. The amount advanced was the advance rent paid for the stipulated period for enjoyment of the land and the advanced amount was neither repayable at the end of the period nor adjustable for repayment of any loan. Therefore, the main ingredient of a mortgage does not exist in this case. Further, the petitioners have not handed over possession immediately after the expiry of five years period in the year 1969-70. They continued in possession even after the expiry of a period of five years and cultivating the lands by paying rent to the respondent owner. The respondent owner has admitted 'this position. In these circumstances, it must be said that the transaction between the petitioners and the respondent-owner was a transfer of right to enjoy the property on payment of advance lease, amount. The transaction is therefore clearly one of lease and not a mortgage as held by the Land Tribunal. ( 5 ) THEREFORE, for the reasons stated above, the impugned order cannot be sustained in law- the finding recorded by the Land Tribunal is set aside and the Land Tribunal is directed to consider the application of the petitioners for grant of occupancy rights on the basis that the transaction of 'agavu layani' was a lease and not a mortgage and dispose of the same in accordance with law. Rule made absolute,. Writ Petition is allowed. --- *** --- .