JUDGMENT : The praxical interpretation of the concept of 'choondippanayam' and the ambit of the rights of a mortgager under it are pressed for the consideration by this Court in this appeal. 2. The facts herein involved are not too many or in great contest, but the manner of its assessment and evaluation-especially from the touchstone of the nature of 'choondipanayam,'- assume some significance in this case. 3. This is an appeal filed by the plaintiff in O.S.No.154/2001 on the file of the III Additional Sub Court, Kozhikode, seeking partition of plaint B schedule properties into four equal shares and for separate allotment of one of the shares to her, along with mesne profits. 4. According to the appellant, plaint B schedule properties were owned by her father, late Unnichoyi, who died in the year 1971; and therefore, that his line of succession opened immediately thereafter. She says that she, therefore, issued Exts.A2 and A3 notices to the defendants seeking partition of the properties, but that it was resisted by them through Ext.B18 reply notice, wherein, it was stated that the properties in question had been mortgaged by late Unnichoyi in favour of the appellant's mother-late Pennutty, through a document executed by the former, along with his family members, which has been marked on record as Ext.B2, as early as on 03.05.1938. 5. The appellant, thereupon, filed the suit contending that Ext.B2 document is either sham or one intended only to defeat her rights; and secondly, that there was no requirement for her father, late Unnichoyi, and his family to have executed the said document, through which a loan of Rs.800/-is shown to have been taken from late Pennutty- her mother. 6. The plaint was resisted by defendants 1 to 3, who are the appellant's deceased brother's legal heirs, asserting that plaint B schedule properties are not available for partition, since, through Ext.B2, it had become vested in late Pennutty; and that she had executed Ext.B19 Will bequeathing the same to her son, namely their deceased father. They, therefore, asserted that the suit is not maintainable and that the properties are not answerable to a claim for partition. 7. The court below raised the following issues in the suit: “1. They, therefore, asserted that the suit is not maintainable and that the properties are not answerable to a claim for partition. 7. The court below raised the following issues in the suit: “1. Whether the possessory-mortgage deed executed by late Unnichoyi and others in favour of Pennutty with respect to item No.1 of plaint schedule property is a sham document as alleged by the plaintiff and defendants 4 to 16? 2. Whether the possessory mortgage executed in favour of Pennootty is binding on the parties or not? 3. Whether the alleged testamentary will executed by deceased Pennootty in favour of Jararajan is valid and genuine? 4. Whether the plaintiff and defendants 4 to 16 are having right of title and possession over plaint schedule item No.1 property? 5. Whether the right of the plaintiff and defendants 4 to 16, if any, is barred by adverse possession ouster and limitation? 6. Whether the plaintiff and defendants 4 to 16 are entitled to a decree of partition of plaint schedule property? 7. Whether there is an item of property answering the description of plaint schedule item 2 property available for partition? 8. Reliefs and costs.” 8. The suit was, thereafter, taken to trial and the plaintiff testified as PW1; while the first defendant offered herself as DW1 and DW2 -Sri.A.Sahadevan-testified as the attesting witness to B19 Will executed by the mother of the appellant. Exts.A1 to A3 were marked on the side of the plaintiff, while Exts.B1 to B19 were marked on the side of the defendants. 9. After evaluation of the evidence and testimonies on record, the Court below concluded that late Unnichoyi had lost title to the property in favour of his wife-late Pennutty-through Ext.B2 document; and consequently, that since Ext.B19 Will had been executed by her, the entire properties would devolve only on her son, namely the deceased father of defendants 1 to 3. 10. It is this judgment and decree of the Sub Court, Kozhikode, which are assailed in this appeal. 11. Sri.M.Krishnakumar, learned counsel for the appellant, began his submissions by making an admission. 10. It is this judgment and decree of the Sub Court, Kozhikode, which are assailed in this appeal. 11. Sri.M.Krishnakumar, learned counsel for the appellant, began his submissions by making an admission. He conceded that there was no requirement for his client to have challenged Ext.B19 Will executed by her mother, since even if it is accepted, it would only mean that one of the shares, which would have devolved upon late Pennutty-her mother, would go to her deceased son, the father of defendants 1 to 3. After saying so, Sri.Krishnakumar asserted that, in fact, the essential question which the Court below ought to have considered was the nature, essence and validity of the mortgage deed, namely Ext.B2. He, therefore, submitted that his client is willing to give up the contest against Ext.B19 Will, if this Court is inclined to consider the validity of Ext.B2 document or to have the suit remanded for that limited purpose. 12. The hypostasis of the afore submissions of Sri.M.Krishnakumar is that the property is conceded by the defendants to have originally belonged to late Unnichoyi; and therefore, that the acme question is whether Ext.B2, in any manner, intervenes with such rights and would disrupt the normal line of succession consequent to his death in the year 1971. 13. Sri.M.Krishnakumar, in support of his contentions, took me through Ext.B2 document in detail and showed me that the creation of mortgage in favour of late Pennutty by late Unnichoyi and his family members is in the following manner: xxx xxx 14. He then vehemently asserted that, as is clear from the extracted portions of Ext.B2, late Unnichoyi and family has created two types of mortgages in favour of late Pennutty; the first being a simple mortgage with respect to the land and property in question; while the second being a possessory mortgage with respect to the usufructs available in the property. He says that this is manifest from the fact that the said document further goes on to say that late Pennutty can use the usufructs and set it off against the interest due on the loan availed of by late Unnichoyi and his family. He says that this is manifest from the fact that the said document further goes on to say that late Pennutty can use the usufructs and set it off against the interest due on the loan availed of by late Unnichoyi and his family. He alleges that, unfortunately, the Trial Court missed these aspects fully and proceeded to hold, in a rather mechanical fashion, that Ext.B2 creates a possessory mortgage in favour of late Pennutty with respect to the land and buildings and therefore, that title of late Unnichoyi to it was lost on account of the efflux of more than 6 decades. 15. Sri.Krishnakumar continued to submit that, on a careful reading of Ext.B2, it will become clear that, as regards the land and properties are concerned, what was created through Ext.B2 was only a simple mortgage; and consequently, that since no evidence has been led by the defendants that late Pennutty had, at any point of time, moved against the property for selling it for recovery of debt due to her, her rights consequent to Ext.B2 on the land and building now stand completely extinguished. 16. Sri.Krishnakumar then asserted that the possessory mortgage is only with respect to the usufructs on the property and therefore, that, even assuming that Ext.B2 operates in favour of the defendants, it can only be to the extent of the usufructs and not as regards the property and buildings in the plaint schedule property. He thus prays that this appeal be allowed and the judgment and decree of the Trial Court be set aside. 17. I have examined the judgment of the Trial Court and have also evaluated the evidence on record and the depositions of the witnesses in great detail. 18. The plaint B schedule property consists of two items of properties, but Sri.M.Krishnakumar concedes that the second item of property may not be available since it has been sold much earlier than the filing of the Suit. 19. Therefore, the controversy in question now revolves around the first item in plaint B schedule property, consisting of a house and 40 cents of land, which was admittedly owned originally by late Unnichoyi. 19. Therefore, the controversy in question now revolves around the first item in plaint B schedule property, consisting of a house and 40 cents of land, which was admittedly owned originally by late Unnichoyi. The sole question that is, consequentially, relevant is whether Ext.B2 document, created by late Unnichoyi and his family in favour of late Pennutty, could extinguish his rights over the land and buildings in question; and it is ineluctable from the impugned judgment that the Trial Court has concluded so under the impression that Ext.B2 creates a possessory mortgage in favour of late Pennutty over the properties itself. If this assumption is right, then certainly the plaintiffs stand divested of any right to seek partition of the properties since, if, through Ext.B2 executed in the year 1938, late Pennutty had been given a possessory mortgage over the land and buildings, then certainly, her rights over it cannot be now called into dispute on account of the Laws of Limitation and hence, resultant to the operation of Ext.B19 Will, the entire property would devolve upon her son-the husband of defendant No.1 and father of defendants 2 and 3. 20. The pertinent question thus is whether Ext.B2 creates such effect. 21. When one examines Ext.B2 closely and goes through the afore extracted statements therein, it becomes necessary that the impression gathered by the Court below requires a second look. This is because, the document certainly talks about two types of mortgages therein. 22. The first part of the afore extracted portion of Ext.B2 talks about a 'choondipanayam' over the land and building, which can, prima facie, be only construed as a simple mortgage going by the 'Malabar Land Tenure', 'Kerala Revenue Survey Padavinjanakosam' and the 'Malabar Manual' by Sri.William Logan which defines it as below: a) Malabar Land Tenure -'simple mortgage with the personal remedy for 'kadappalisa'. (b) Malabar Manual – Thoduppanayam From Dravidian Toduka (=to touch, feel, come into contact with) and Panayam (q.v) A deed in use. Notes:-1. The land is here pledged as security for the repayment with interest of certain sums advanced, but the lender has no right to interfere in the management of the property. In some cases it is stipulated that no failure on the part of the borrower to pay the interest, the lender shall be placed in possession of the land. Notes:-1. The land is here pledged as security for the repayment with interest of certain sums advanced, but the lender has no right to interfere in the management of the property. In some cases it is stipulated that no failure on the part of the borrower to pay the interest, the lender shall be placed in possession of the land. Where such stipulation exists the lender can sustain an action for possession. In other cases he must sue for the recovery of the principal and interest of the loan, the land being liable in the event of the money not being paid.- (Proceedings of the Court of Sadr Adalat, No.18, dated 5th August 1856) Another term for the same deed is Chundipanayam (Dravidian Chunduka=to point at). (c) Kerala Revenue Survey Padavinjanakosam- xxx xxx 23. The second part of Ext.B2 indicates the creation of a possessory mortgage with respect to the usufructs on the property. The said document speaks luculently that as regards the debt of Rs.800/-is concerned, the land and buildings will be subjected to a 'choondipanayam'; while for the purpose of the interest thereon, late Pennutty can use the usufructs, for which purpose, a possessory mortgage over the same has been created. 24. If the afore statements in Ext.B2 are subjected to interpretation in the manner as above, then certainly, the basis on which the Trial Court has disposed of the suit would become shaky. This is because, the Trial Court has proceeded on the assumption that Ext.B2 creates a possessory mortgage over the land and building and it does not appear from the impugned judgment that the afore extracted statements in the said document have been carefully surveyed. However, I lay no blame on the Court because the appellant only attempted to establish that Ext.B2 is a sham document and that Ext.B19 is not a genuine Will, but the issue as to the real nature of the contents of Ext.B2 was never projected or attempted to be established. 25. I am, therefore, of the view that, to obtain complete justice to both sides, an assessment of Ext.B2 and the nature of its contents are required to be made by the Court below, before an affirmative declaration either way could be taken. 25. I am, therefore, of the view that, to obtain complete justice to both sides, an assessment of Ext.B2 and the nature of its contents are required to be made by the Court below, before an affirmative declaration either way could be taken. In the absence of any discourse by the Trial Court with respect to the contents of Ext.B2 and since the said Court appears to have accepted the said document as if it has created a possessory mortgage over the plaint B schedule property as a whole, in favour of late Pennutty, I am sure that this matter deserves to engage the attention of the Trial Court again. 26. In the afore circumstances, I am of the firm opinion that the afore aspect needs to be reconsidered by the Trial Court, for which purpose, I deem it appropriate to set aside the judgment and decree to the limited extent of the nature and terms of Ext.B2 document, but confirming the conclusions of the Court below with respect to Ext.B19 will. 27. Consequently, the judgment and decree assailed in this appeal will stand set aside to the afore extent and the matter is remanded to the Trial Court for the purpose of evaluation of the nature of Ext.B2 document, leading to a judgment and decree relating to the dialectical contentions of the parties on this sole issue, after following due procedure and after affording them necessary opportunities of leading evidence on this sole aspect. It is so ordered. 28. Since the suit is of the year 2001, I also deem it appropriate that the Trial Court complete the proceedings as expeditiously as is possible, but not later than six months from the date of receipt/production of a copy of this judgment. 29. The Registry is directed to return the case records to the Lower Court urgently and I direct the parties to appear before it on 14.02.2020, so as to enable the said Court to commence proceedings in terms of this judgment. 30. Taking note of the rather peculiar factual circumstances involved in this case, I deem it appropriate not to make any order as to costs and direct that the parties will suffer their respective costs in this appeal.