JUDGMENT 1. The plaintiff in a suit for declaration that he is the owner of the plaint A schedule property and is entitled to redeem it on payment of the mortgage money and for a consequential injunction restraining the defendant from executing any document in respect of the equity of redemption over the property is the appellant in "this Second Appeal. The suit property originally belonged to one Korapalu. On her death the property devolved on her children. On 29th April 1,953 children of Korapalu executed Ext. A1 illidarwar mortgaging the property to the defendant and raised a sum of Rs. 5,000. The term of the illidarwar, which is understood to be a mortgage was 35 years. The property that was mortgaged was not an agricultural property. The mortgage property contained a building and a few coconut trees and was situate in the town of Kasaragod. It appears that there were disputes among the children of Korapalu regarding the division of the properties obtained by them in common including the property that was the subject-matter of the illidarwar. The parties appointed one Mr. O. Vijayan, Advocate, Kasaragod as Arbitrator. The Arbitrator rendered an award the registration copy of which is marked as Ext. A2 dated 6th August 1964. By that award the Arbitrator set apart various items of properties to the various children of Korapalu. As regards the property that was the subject-matter of Ext. A1 illidarwar the Arbitrator suggested that it would be more convenient to sell the equity of redemption and since it would be cumbersome for all the heirs of Korapalu to join the execution of such a sale of the equity of redemption three of the members referred to in the arbitration award, presumably the representatives of three branches were authorised to execute the assignment deed. The three persons so authorised were Kannappa, Laxmi and Korapalu D/o Undachi. The arbitration award passed by the arbitrator Mr. O. Vijayan was not made into a rule of court in terms of the Arbitration Act. Korapalu D/o Undachi purported to assign her interest in favour of one Nani under Ext. A4. Presumably acting on the basis of the provision in the arbitration award but without the junction of Kannappa or anyone representing him. Laxmi and Nani executed a sale deed Ext. Korapalu D/o Undachi purported to assign her interest in favour of one Nani under Ext. A4. Presumably acting on the basis of the provision in the arbitration award but without the junction of Kannappa or anyone representing him. Laxmi and Nani executed a sale deed Ext. A3 dated 18th April 1,968 purporting to convey to the present plaintiff the equity of redemption over the property covered by Ext. A1 illidarwar. It is on the strength of this assignment Ext. A3 that the plaintiff filed the present suit on 23rd July 1979 for declaration of his title over the equity of redemption and his entitlement to redeem Ext. Al illidarwar on payment of the mortgage money and for consequential reliefs. It can be noticed here that Ext. A1 illidarwar dated 29th April 1953 was for a period of 35 years and on the date of suit, the said term of the illidarwar had not expired. Presumably it may be for this reason that the plaintiff did not seek a redemption of the illidarwar or mortgage, when he filed the suit on 23rd July 1.979. The defendant (she died pending suit and his legal representatives were impleaded) denied the title of the plaintiff. The defendant contended that Ext. A2 award not being made into a rule of court was invalid in law and could not confer any right on the parties to that award as proposed in that award. The award was also incapable of conferring any right on Kannappa, Laxmi and Korapalu D/o Undachi to assign the equity of redemption over the property covered by Ext. A1 illidarwar. Ext. A4 sale by Korapalu to Nani was incapable of conferring any right on Nani over the equity of redemption and Ext. A3 sale deed executed by Laxmi and Nani in favour of the plaintiff could not also convey any valid title to the equity of redemption in the plaintiff. Thus the plaintiff was incompetent to sue on the basis of Ext. A3 assignment and hence was not entitled to a declaration of his title over the equity of redemption. It was also contended that without suing for redemption on the expiry of the term of the mortgage, the plaintiff would not be entitled to any relief. The plaintiff's right to relief was questioned. It was also contended that the transaction Ext. A3 assignment and hence was not entitled to a declaration of his title over the equity of redemption. It was also contended that without suing for redemption on the expiry of the term of the mortgage, the plaintiff would not be entitled to any relief. The plaintiff's right to relief was questioned. It was also contended that the transaction Ext. A1 illidarwar was not a usufructuary mortgage as defined in the Transfer of Property Act and hence it was a deemed tenancy protected by S.10 (v) of the Kerala Land Reforms Act. Consequently in any event the plaintiff would not be entitled to redeem Ext. A1. The trial court held that Ext. A3 assignment by two of the members of the family would confer a valid title over the properties in favour of the plaintiff but that the mortgage in question qualified for protection under S.10 (v) of the Kerala Land Reforms Act. That court also held that since the term of the mortgage had not expired, the suit for declaration of the right to redeem without including a prayer for redemption was maintainable. But in view of the finding that the defendant was entitled to the protection of S.10(v) of the Kerala Land Reforms Act the suit was dismissed. The plaintiff filed an appeal. The appellate court held that since Ext. A2 award was not made into a rule of court it could not be considered as the source of exclusive title of the various allottees thereunder and that the assignment Ext. A3 by two of the persons, one a party to the award and the other an assignee was invalid and could not confer any title to the equity of redemption on the plaintiff and hence the plaintiff was not entitled to seek relief on the strength of Ext. A3. Thus the title of the plaintiff was found against. That court also held, in agreement with the decision of the trial court that the transaction Ext. A1 qualified for protection under S.10(v) of the Kerala Land Reforms Act. A3. Thus the title of the plaintiff was found against. That court also held, in agreement with the decision of the trial court that the transaction Ext. A1 qualified for protection under S.10(v) of the Kerala Land Reforms Act. Dealing with an argument that S.10(v) could not apply to the land in question, that court observed that merely because the suit property was situated in the town, it could not be said that it was a commercial site and that there was no bar for claiming, tenancy in respect of the suit property even though it is situated in Kasaragod town. It may be noted that the extent of the property was 33 cents. The appellate court thus dismissed the appeal confirming the dismissal of the suit. It is feeling aggrieved by this decree that the plaintiff has filed this Second Appeal. The substantial questions of law formulated in the Memorandum of Second Appeal and, on which notice was issued by this court took in the question whether Ext. A2 arbitration award is unenforceable in law, whether Ext. A4 assignment and the subsequent assignment Ext. A3 in favour of the plaintiff would not be sufficient to confer title on the plaintiff to the equity of redemption, whether the validity of Ext. A2 could be questioned by a mortgagee like the defendant and whether the finding by the appellate court that the transaction Ext. Al qualified for protection under S.10 (v) of the Kerala Land Reforms Act was correct. 2. It is not disputed that the arbitration award passed by Mr. O. Vijayan, Advocate registration copy of which is marked as Ext. A2 was not made into a rule of court. In Raman Nair v. Krishnan Nair 1976 K.L.T. 175 following the decisions of the Madras High Court and the Andhra Pradesh High Court it was held that an award which had not been made subject of a Judgment was infructuous and unenforceable and was therefore incapable of extinguishing the earlier rights if any. It was pointed out that an award by an Arbitrator after the Arbitration Act, 1940 had come into force was but a stage in a scheme formulated in that Act for the adjudication of disputes by a private tribunal. Confirmation of that adjudication by the tribunal by a Judgment of court was essential in order to render it an effective adjudication of the dispute. Confirmation of that adjudication by the tribunal by a Judgment of court was essential in order to render it an effective adjudication of the dispute. It is seen from the decision in Raman Nair's case 1976 K.L.T. 175 that this was also the view adopted by the High Courts of Bombay and Patna but the High Court of Rajasthan appears to have struck a different note. Going by the decision in Raman Nair it has to be held that since Ext. A2 award had not been made into a rule of court, the same is not capable of conferring exclusive title on the allottees referred to therein. Consequently any provision regarding the assignment of the equity of redemption would also be not valid or enforceable. Hence the sale by Korapalu in favour of Nani and the subsequent sale by Nani and Laxmi in favour of the plaintiff would be insufficient to confer on the plaintiff any exclusive title to the equity of redemption. The question whether the plaintiff can be said to have acquired the fractional interests of Laxmi and Korapalu through Nani in the equity of redemption need not be considered in the present litigation since the present suit is one for declaration of the exclusive title of the plaintiff over the equity of redemption based on Ext. A3 assignment and the suit is not one for redemption of the mortgage. Therefore the question whether as a part owner of the equity of redemption, the plaintiff is entitled to redeem the mortgage need not be decided in this litigation especially since this litigation was at a time when the term of the mortgage had not expired and the suit was clearly premature. Of course, as observed by this court in Sankara Pillai v. Ittiera 1958 K.L.T. 220 to mitigate hardship and shorten litigation, it may be open to a court to take note of the subsequent events in granting reliefs to a litigant. In a case where the suit for redemption is filed before the expiry of the term and the term of the mortgage expires pending the suit a decree for redemption can be granted provided the substantive rights of parties are unaffected. In a case where the suit for redemption is filed before the expiry of the term and the term of the mortgage expires pending the suit a decree for redemption can be granted provided the substantive rights of parties are unaffected. But, considering the serious dispute on title raised and the other circumstances obtaining, I am not satisfied that it will be just to take note of the fact that the term of the mortgage has now expired pending the litigation and to grant relief to the plaintiff on that basis in the present suit itself. 3. The lower appellate court has referred to the relevant facts and had come to the conclusion that the assignors of Ext. A3 had no absolute title over the suit property and consequently they could not confer any absolute title on the plaintiff. The said finding is justified on the pleadings and the principle of law as indicated in Raman Nair's case 1976 K.L.T. 175. The finding therefore that the plaintiff has failed to prove that he is the exclusive owner of the equity of redemption has therefore to be confirmed. The question whether he as an assignee of a share or shares in the equity of redemption is entitled to redeem the transaction Ext. Al is left open for decision in an appropriate suit for redemption that he may file and that aspect sought to be urged by counsel for the plaintiff in this Second Appeal is not considered or decided in the nature of the prayers made in the plaint. I must also notice that the plaintiff has claimed exclusive title to the equity of redemption and the other persons who can be coowners of the equity of redemption have not been impleaded in the suit. 4. Learned counsel for the plaintiff seriously challenged the finding by the courts below that the transaction in question was a deemed tenancy in view of S.10(v) of the Land Reforms Act. S.10(v) of the Kerala Land Reforms Act states that a person shall be deemed to be a tenant if he is holding land situate in any part of the Taluk of Hosdurg and Kasaragod to which the Malabar Tenancy Act did not extend under a transaction described in the document evidencing it as an 'illidarwar' but not being a usufructuary mortgage as defined in the Transfer of Property Act. Ext. Ext. Al illidarwar is in Canaries and an accepted translation of the same was produced in the trial court. The trial court has extracted the relevant portions of Ext. Al. The said portion reads: "We do hereby hand over possession of the undermentioned property with the following kole measurements and building and trees to you. You shall enjoy the same for a term of 35 years on (illidarwar mortgage with possession) right effecting improvements paying assessment. Later on after the period when we want the property or when you demand the kanom amount that year at the time of Vishu on payment of the kanom amount of Rs. 5,000 together with value of improvements effected by you till then as determined by mediators to you in lump on the charge of the properties we shall redeem the property and obtain the mortgage deed demand promissory note, etc. subjected herein. Till then we are not entitled to claim any surplus profits and you shall not claim any enhanced rent on the amount advanced." It may be noted that this property having an extent of 33 cents is situate in Kasaragod town and at the time of the mortgage it contained a building and 27 coconut palms. The property was urban and was not agricultural in character. The courts below relied on the decision of this court in Moidu v. Mammunhi Beary 1974 K.L.T. 879 to come to the conclusion that every illidarwar was a tenancy and hence under the transaction the defendant was entitled to the protection of S.10 (v) of the Kerala Land Reforms Act. It is seen that the trial court had also merely made an observation that Ext. Al is not a usufructuary mortgage. The appellate court though it noticed that the property was an urban property stated that it was not shown that it was a commercial site and held that in the light of the decision in Moidu's case 1974 K.L.T. 879 the transaction ought to be held to be one coming within the purview of S.10(v) of the Kerala Land Reforms Act. The question is whether this finding rendered by the courts below is vitiated by substantial error of law warranting interference by this court. 5. There is no evidence in this case that the land was ever put to agricultural use by the mortgagee. The terms of Ext. The question is whether this finding rendered by the courts below is vitiated by substantial error of law warranting interference by this court. 5. There is no evidence in this case that the land was ever put to agricultural use by the mortgagee. The terms of Ext. Al clearly shows that the mortgage was created in view of the fact that the mortgager family had incurred debts for the repair of the family house and for the marriages of the female members of the family. The document further shows that to discharge those debts a simple mortgage had earlier been executed and the principal and interest thereon were due. In addition one Kunhappu had obtained a decree against the family and execution was pending. Other debts had also been incurred. It was under those circumstances and with a view to raise a sum of Rs. 5,000 that the mortgagors were mortgaging the property under the transaction. The items of consideration received from the mortgagee are also set out in the mortgage deed. Pursuant to that transaction, the mortgagers were handing over possession of the property with the kole measurements mentioned in the document and the building and trees standing thereon to the mortgagee to be enjoyed by him for a period of 35 years on illidarwar right. It is thus clear that what was created was a mortgage to secure the repayment of a debt and the debt was incurred for the discharge of prior debts. It is therefore clear that the relationship that was brought about by the transaction in question was one of debtor and creditor between the mortgagers on the one hand and the mortgagee on the other. This was not a case where the property was conveyed by the mortgagors to the mortgagee for the enjoyment of the land by the mortgagee. The document provides that the mortgagee is to take the income from the property towards the interest due to him and is to remain in possession for a period of 35 years. On the expiry of the term on the mortgagers tendering the amount borrowed and the value of improvements if any effected by the mortgagee, the mortgagee was liable to surrender the property. On the expiry of the term on the mortgagers tendering the amount borrowed and the value of improvements if any effected by the mortgagee, the mortgagee was liable to surrender the property. Till the tendering of the amount borrowed and the value of improvements the mortgagors were not entitled to claim any surplus profits from the mortgagee and the mortgagee was not entitled to claim any enhanced rent on the amount advanced. It is significant to note that there is no corresponding right given to the mortgagee to recover the mortgage money though while providing for redemption after the expiry of the term of 35 years it is stated that the mortgagors would redeem either after the period had expired or when the mortgagee demanded the amount advanced. It is clear from a reading of the document that the document does not contain any personal covenant to repay the mortgage money which would take it out of the definition of a usufructuary mortgage as defined in the Transfer of Property Act. As observed by Mr. Justice Madhavan Nair in Ganapathi Bhatta v. Umavathi 1965 K.L.T. 903 the distinctive, test of a usufructuary mortgage is the absence of a right in the mortgagee to claim the mortgage money against the mortgagor. Going by that test and taking note of the absence of any right in the mortgagee to claim the mortgage money after the expiry of the term and the only right in the mortgagee is to call upon the mortgagor to redeem the mortgage, it is clear that the transaction Ext. A1 does not cease to be a usufructuary mortgage on the ground that it contains a personal covenant on the part of the mortgagor to repay the mortgage money. The decision of Bhat, J. (as he then was) in Retnabai v. Rajeev 1981 K.L.T. (S.N) Page 62 Case 116 also supports this position though in that case His Lordship held that the document in question contained a personal covenant to pay. 6. Learned counsel for the defendant relying on the decision in Moidu v. Mammunhi Beary 1974 K.L.T. 879 contended that even if there was no right in the mortgagee to demand the mortgage money or a personal covenant to repay the mortgage money in Ext. Al illidarwar, every illidarwar transaction for a long term like the one in question must be considered to be a lease. Al illidarwar, every illidarwar transaction for a long term like the one in question must be considered to be a lease. In that decision the Division Bench of this court after distinguishing the cases of other Division Benches on the ground that they were cases where the question that was decided was whether there was a personal covenant to repay the mortgage money on the part of the mortgager took the view that in the light of the decision in Perlathail Subba Rao v. Mankude Narajana I.L.R. 4 Mad. 113 every illidarwar must be considered to be a lease, in Perlathail Subba Rao's case I.L.R. 4 Mad. 113 the Madras High Court observed: "It appears to us that in South Canara an illadarawara is usually something more than an ordinary mortgage, which is called by another name. When, as in the present case, the Illadarawara is for a long term of years, it amounts to a lease of the property for the term agreed upon, and justice cannot be done by the repayment of the loan-before the expiry of the term. But the term of the document in each case will determine whether the intention is to create such a lease." With respect, it appears to me that the Division Bench assumed that this would mean that every illidarwar for a long term is a lease. As I understood it all that the Division Bench said was that before the expiry of the term mentioned in an illidarwar a mortgager would not be entitled to redeem that transaction since an illidarwar was something more than an ordinary mortgage. The use of the expression that it amounts to a lease of the property for the term agreed upon cannot be read in isolation or separated from the rest of the sentence wherein it is pointed but that justice cannot be done by the repayment of the loan before the expiry of the term. In fact the Division Bench noticed that what the Madras High Court had noted was that an illidarwar can be considered to be a sale of the property for the term referred to in the transaction. With respect, it cannot be said that for that reason the transaction can be considered as a lease or as one coming within the purview of S.10(v) of the Kerala Land Reforms Act. With respect, it cannot be said that for that reason the transaction can be considered as a lease or as one coming within the purview of S.10(v) of the Kerala Land Reforms Act. It is seen that the decision in Narayana Rao v. Lekshmi Amma 1994 (2) K.L.T. 317 after referring to the earlier decision in K. Venkatarama Bhat v. Pakkira 1990 (1) K.L.N. 18 held that the legal position for the purpose of considering the applicability of S.10(v) of the Kerala Land Reforms Act was for ail whether the document was a usufructuary mortgage as denied in S.58(d) of the Transfer of Property Act. The document introducing any condition other than those mentioned in S.58(d) of the Transfer of Property Act could not be regarded as a usufructuary mortgage but can be regarded only as an anomalous mortgage. It can be seen from Moidu v. Mammunhi Beary 1974K.L.T. 879 that what the Division Bench ultimately held was that the transaction in which in addition to the amount borrowed the value of improvements also had to be paid by the mortgagor to the mortgagee, the amount that was payable would not be considered to be mortgage money. The relevant head note of that decision wherein the decision of Justice Madhavan Nair in Ganapathi Bhatta v. Umavathi 1965 K.L.T. 903 referred to earlier was dissented from reads as follows: "In view of the definition clause in the section itself it is not possible to hold that the term 'mortgage money' in S.58 (d) includes compensation for improvements effected by the mortgagee. The compensation for improvements is certainly not part of the 'mortgage money' as defined in the second paragraph of S.58 (a). The payment of such compensation is not secured by the deed, and there is only a promise to pay it along with the mortgage money, for realisation of either of which the, mortgagee cannot bring a suit". Their Lordships dissented from the statement of the law by Mr. Justice Madhavan Nair that the recital of additional provisions in the deed of mortgage cannot take the transaction beyond the definition of usufructuary mortgage. Their Lordships dissented from the statement of the law by Mr. Justice Madhavan Nair that the recital of additional provisions in the deed of mortgage cannot take the transaction beyond the definition of usufructuary mortgage. 1 may here observe that the Division Bench in Moidu's case 1974 K.L.T. 879 has not adverted to the decision of the Full Bench in Varkey Paily v. Kurian Augusthy 1967 K.L.T. 189 to which one of the learned Judges who decided Moidu's case 1974 K.L.T. 879 was himself a party. In that decision the Full Bench was considering the question whether the value of improvements payable in terms of the Kerala Compensation for Tenants Improvements Act to a mortgagee who was recognised to be a tenant under that Act would form part of the mortgage money as understood under the Transfer of Property Act. Their Lordships held that whether compensation payable was part of the mortgage money or not would depend on whether, under the terms of the mortgage, the mortgage is entitled to add the amount due by way of compensation to the principal money, or on whether the improvements can be regarded as accessions acquired with the assent of the mortgagor so as to attract S.63 of the Transfer of Property Act. In the present case the document clearly indicates that the mortgagee was entitled to add the value of improvements due to him as determined by the mediators to the amount advanced. It is therefore possible to say, following the ratio of the decision in Varkey Paily's case 1967 K.L.T. 189 that the amount payable by the mortgagor to the mortgagee under Ext. A1 including the value of improvements for the mortgage money. If that be so, it cannot be held that something more than the mortgage money was payable and consequently the transaction would go out of the definition of a usufructuary mortgage as in S.58(d) of the Transfer of Property Act. It appears to me that the decision in Moidu v. Mammunhi Beary 1974 K.L.T. 879 would require reconsideration on this aspect as well as on the earlier aspect regarding the nature of a transaction of illidarwar in the erstwhile South Canara District. It appears to me that the decision in Moidu v. Mammunhi Beary 1974 K.L.T. 879 would require reconsideration on this aspect as well as on the earlier aspect regarding the nature of a transaction of illidarwar in the erstwhile South Canara District. Since going by the decision of the Full Bench in Varkey Paily's case 1967 K.L.T. 189 it is possible to hold that on the terms of the transaction involved in this case, the value of improvements payable by the mortgagor to the mortgagee is capable of being added on to the mortgage money, I am of the view that the transaction involved can be considered to be usufructuary mortgage as defined in the Transfer of Property Act. 7. In this context I must observe that S.10(v) confers a right on a creditor who has taken security of a property from an impecunious debtor who has borrowed out of necessity and hence deprives the impecunious debtor of his property for ever. Unless the court is compelled, I do not think that the court could deprive the impecunious debtor mortgagee of his right to get back the property that he has secured only for the repayment of the amount he has borrowed from the mortgagee. This approach is also supported by the observations of the Supreme Court in Victoria v. K. V. Naik and others J. T. 1997 (5) S.C. 606. I am therefore of the view that there is nothing in Ext. A1 or in S.10(v) of the Act which would deprive the debtor mortgagor of his right to get back the properties on tendering the mortgage money and the value of improvements. This approach supports my conclusion that the transaction in this case is a redeemable mortgage. 8. There is also another aspect. It is clear that the property is urban property. It is not an agricultural property. It is 33 cents in Kasaragod town. A Division Bench of this court in Sankaran Nambeesan v. Sarvothama Rao 1972 K.L.T. 891 took the view that the land situate within a city and which is to be used for non-agricultural purposes could not be hit by the provisions of the Kerala Land. Reforms Act since provisions of that Act may not apply to such lands. A Division Bench of this court in Sankaran Nambeesan v. Sarvothama Rao 1972 K.L.T. 891 took the view that the land situate within a city and which is to be used for non-agricultural purposes could not be hit by the provisions of the Kerala Land. Reforms Act since provisions of that Act may not apply to such lands. The Supreme Court in Malankara Rubber and Produce Company v. State of Kerala 1972 K.L.T. 411 held that the Land Reforms Act would apply to agricultural lands in the sense of Art.31A (2) of the Constitution of India and lands used for building and other purposes would be outside the purview of Art.31A(2) of the Constitution of India. In Madhavan Thambi v. Padmavathi 1974 KLT 310 . His Lordship Justice G. Viswanatha Iyer also held that the deemed tenancy can only be with reference to agricultural lands. While considering the question whether S.4A of the Kerala Land Reforms Act which conferred a right on a mortgagee to claim fixity of tenure under the Land Reforms Act as against the mortgagor a Full Bench of this court in Parameswara Pillai v. Narayanan Nair 1976 K.L.T. 341 held that S.4A of the Act applied to a land notwithstanding the fact that it was situate in an important part, almost in the heart of a city and may not reasonably be expected to be used for agricultural purposes now or in the near future by any reasonable person. This decision was referred to and followed by me in P. G. Plywoods v. Hamsa Kutty 1992 K.L.T. (2) 756 to hold that even a land which was part of an agricultural holding but which was not being used for an agricultural purpose would also qualify for protection under S.13 of the Land Reforms Act conferring fixity on the tenant. But 1 must observe that in P. G. Plywood's case 1992 (2) KLT 756 the land involved was originally part of an agricultural land though it had not been used for agricultural purposes but was being used only as a way by the tenant for a considerable number of years. But 1 must observe that in P. G. Plywood's case 1992 (2) KLT 756 the land involved was originally part of an agricultural land though it had not been used for agricultural purposes but was being used only as a way by the tenant for a considerable number of years. I may incidentally notice that a Petition for Special Leave to Appeal to the Supreme Court against that decision was entertained by the Supreme Court but ultimately the appeal before the Supreme Court was allowed on agreement and the tenant permitted to pay the market value of the property to the land owner thereby suggesting that the view adopted by this court may be open to doubt. Since a final decision in this suit does not depend on a finding on this question one way or the other, 1 do not think it necessary to refer this question for a fresh consideration by a Division Bench. But I am inclined to the view that S.10(v) of the Kerala Land Reforms Act cannot have any application to a land which is urban in character, was never used for agricultural purpose and could not be expected to be used for agricultural purposes by any prudent mortgagee. I would therefore be inclined to hold that the defendant would not be entitled to the benefit of S.10(v) of the Act in this case. 9. It is also seen that the subject matter of Ext. A1 was the land and a building therein. Since the property was urban in character, it is possible to hold that the mortgage was of a building and the appurtenant 33 cents of land. S.3(1)(ii) of the Land Reforms Act exempts from within the purview of S.13 of the Act conferring fixity leases only of buildings with appurtenant lands and S.3(1)(iii) of the Act exempts leases of land or of buildings or of both specifically granted for industrial or commercial purposes . These exemptions in my view also support the possible conclusion that illidarwar of a property which is urban in character and which takes in a building and the land appurtenant thereto would not qualify for protection under S.10(5) of the Act. Thus on the question whether the transaction is redeemable or not, I am inclined to disagree with the courts below and to hold that the transaction in the present case is a redeemable mortgage. 10. Thus on the question whether the transaction is redeemable or not, I am inclined to disagree with the courts below and to hold that the transaction in the present case is a redeemable mortgage. 10. But in view of my conclusion that the plaintiff has not acquired the exclusive title to the equity of redemption as claimed by him and hence is not entitled to the declaratory relief sought for by him, and this is not a fit case were the subsequent event of the expiry of the term of the mortgage can be taken note of to mould reliefs, 1 have to hold that the dismissal of the suit by the lower appellate court is justified. While therefore vacating the finding of the courts below to the effect that the defendant is protected by S.10(v) of the Land Reforms Act and while holding that the transaction is redeemable by the mortgagers under Ext. A1, I confirm the dismissal of the suit on the finding that the plaintiff has not acquired exclusive title to the equity of redemption as claimed by him and hence he is not entitled to the declaratory relief sought for by him. It cannot also be forgotten that the grant of a declaratory relief is discretionary and in the circumstances of the case I do not think that it is appropriate to grant the declaratory relief to the plaintiff even in respect of his claim that he has at least acquired fractional interest in the equity of redemption. That question will have to be considered as and when a suit for redemption of the impugned transaction is filed. In the result, while I vacate the finding of the lower appellate court that the defendant is entitled to the protection of S.10(v) of the Kerala Land Reforms Act, I confirm the dismissal of the suit on the ground that the plaintiff has not established the exclusive title he has put forward in the suit and dismiss the Second Appeal. In the circumstances I direct the parties to suffer their respective costs in this court.