Kandiyil Parkum Vania Puthukkuti Kanna Kurup vs Thottoli Kottarathil Thamasikum Ayancheri Kovilakath Sankara Varma Raja Avl. and Others

Sadasiva Aiyar, J.—The third defendant whom I shall call the mortgagee is the appellant before us. The plaintiff is a melkanomdar and he

got his melkonam from the Jenmi, the first defendant, who was then the stanom-holder of a Desam. The suit was for redemption of the 3rd

defendant, the mortgagee under the Kanom deed dated 1904, Ex. A, and all the sub-mortgagees and other demises under the 3rd defendant were

also made parties. (The second and the third plaintiffs and the second defendant may be treated as claiming under sub-mortgages created by the

1st plaintiff.) The first Count held that Melcharth or Melkanom to the 1st plaintiff given by the 1st defendant was not a Kanom, but an improvement

lease and that if it did not require therefore to be attested by two witnesses (as a mortgage is required to be attested by Section 59 of the Transfer

of Property Act.) Then it found the value of improvements due to the 3rd defendant and his sub-mortgagees and lessees and gave an elaborate

decree from which I shall make the following extracts : ""This Court doth order and declare that the amount due to the 3rd defendant on account of

kanom is Rs. 1-8-0 and the value of improvements is Rs. 4047-3-11; to the 4th defendant is Rs. 204-7-6"" and so on up to the 107th defendant;

and then the decree says that ""if the plaintiffs pay into the Court the amount so declared due on or before 12th February 1919, the defendants shall

deliver up to the plaintiffs all documents in their possession or power relating to the mortgaged properties, and shall put the plaintiffs in possession

of the properties."" This decree means that each of the particular defendants mentioned in the first portion of the decree to whom a specified amount

is declared to be due by the plaintiffs shall put the plaintiffs in possession of the particular properties in his possession. Then the 3rd defendant

preferred an appeal and he made only the defendants 1,2,37,112 and 154 and the three plaintiffs party respondents to his appeal. The main points

taken by him in the appeal were (1) that the melcharth in favour of the 1st plaintiff. Ex. B. was invalid for want of proper attestation; (2) that Ex. B.

was a mortgage and ought to be attested as a mortgage and not as mere lease.

These were the two principal contentions in the appeal before the Subordinate Judge. The plaintiffs-respondents did not take the objection

before the Subordinate Judge that the appeal was bad for non-joinder of the other defendants who had been parties in the first Court. The learned

Subordinate Judge held that Ex. B. might be considered as an improvement lease and not a kanom and that therefore it did not require attestation

as a mortgage and hence he dismissed the appeal.

In second appeal before us the same points are taken, namely that Ex. B was a kanom document and therefore was not properly attested and

was wholly invalid; and then there is also a point taken about compensation for a well in plot B and for tank and well in plot D. The 1st defendant

the stanomdar who granted the melcharth and the original kanom Ex. A., died after the date of the decision of the lower appellate court, and the

3rd defendant brought the next stanomdar on record in this second appeal as the legal representative of the 1st defendant.

The first question for consideration is whether Ex. B is a mortgage document and whether it ought to be attested as such to have legal validity.

The plaint is worded as a suit for redemption of the kanom mortgage and court-fees have been paid on the principal mortgage amount as in a suit

for redemption of mortgage. The document of which Ex. A is a counterpart and the document Ex, B. are no doubt called Taragas or royalgrants,

but that should make no difference in their construction. What we have to look to is not the form but he substance of the documents. The

contention that they are not kanoms but leases is based on the circumstance that the kanom amount is only Rs. 3 and that reference is made to the

planting of trees on some vacant sites forming portion of the demised premises. Reliance is placed on two decisions of this Court in support of the

above contention and especially on the decision in Meppatl Kunhamad v. Chathu Nair ILR (1903) Mad. 373 . That was a case in which the

document was described as a kanom deed, but it was also recited in the document that ""kanom and kuzhikanom right"" was granted of the

Neettukotta mala (that is hill) and. the grounds included therein. The amount of the kanom was only Rs. 5 and the full yearly rent was to be given to

the demisor, and the demisee was asked to reclaim the aforesaid forest sites and make improvements thereon. The property demised was

evidently forest jungle land whose measurements even could not be entered in the deed. The learned Judge held that the transaction must be

regarded in substance as a lease having regard to the small amount of the kanom. Reliance was again placed upon the case in Nellaya Variyath

Silapani v. Vadakipat Manakel Ashtamurthi Nambudri and Ors. ILR (1830) Mad. 382 . The Full Bench decision in the case states that for

purposes of limitation, the object for which the tenure was created must be regarded. "" In some cases it may be a mere lease, a sum being

advanced as security for the rent or for proper cultivation to be repaid on the expiry of the term. In other cases, and most frequently, it is created

as a lease by way of mortgage to secure a loan advanced to the Jenmi (proprietor),"" This is a very old case decided before the Transfer of

Property Act came into force. I think the principle to be deduced from the decisions pronounced after the Transfer of Property Act came into

force is that a kanom partakes of the nature of a usufructuary mortgage and a lease and that is an anomalous mortgage falling u/s 98 of the Transfer

of Property Act. I do not think it either convenient or even practicable to embark in each case on an enquiry as to whether the amount advanced is

so insignificant having regard to the necessities and position of the grantor of the kanom that the transaction should be viewed only as a lease and

not a mortgage. In Gopalan Nair v. Kunhan Menon ILR (1907) Mad. 300 . Benson, J. states that where the document on the face of its recitals

purports to evidence a kanom demise, it is an anomalous mortgage, within the meaning of Section 98 of the Transfer of Property Act, "" with certain

well known incidents attached to it by the customary law of Malabar."" I think that this is the only safe ground on which to determine the character

of such a document. If Meppat Kunhamed v. Chathu Nair ILR (1903) Mad. 373 (the judgment in which is very short) intended to lay down a

different proposition, I respectfully dissent therefrom. Holding therefore that Ex. B. melcharth, relied on by the plaintiff is a mortgage, it requires for

its legal validity to be attested in the manner provided for in Section 59 of the Transfer of Property Act. On the finding that it has not been so

attested it is wholly invalid and the plaintiffs have no right to sue for redemption. It was however contended that the appeal by the 3rd defendant to

the lower appellate court ought to have been dismissed for nonjoinder of most of the defendants and the second appeal to this court ought also to

be dismissed on the same ground. The objection as to non-joinder was not taken in the Lower Appellate Court. I agree with the appellant''s

counsel that under Order 1, Rule 13 the objection not being taken at the earliest possible opportunity, namely, to the Lower Appellate Court, it

cannot be allowed to be taken here. Of course if nonjoinder is fatal to the consideration of a suit or appeal, say where a sharer is not joined in a

partition suit, the objection will be an attack on the maintainability of the suit itself against some person only. Also perhaps under the old code,

wherever there is an imperative provision of law as to the necessity for the joinder of certain parties and such an imperative provision is not

complied with, the suit might be liable to be wholly defeated for non-joinder of such necessary parties even though the rights as between the parties

on record can be determined. Section 31 of the old CPC provided that no suit shall be defeated by reason of mis-joinder of parties and did not

specifically provide for cause of non-joinder. Order 1, Rule 9 however states that no suit shall be defeated by reason of mis-joinder of parties, and

the court may in every suit deal with the matter in controversy so far as the rights and interest of the parties before it. Hence though the (alleged)

legal representative of the 1st defendant and the defendants 2, 37, 154 and 112 and the plaintiffs have alone been made respondents in this second

appeal by the 3rd defendant, I think that we are entitled to deal with the rights of the parties before us leaving the decrees of the lower courts in

tact so far as possession is decreed to the plaintiffs of the lands in possession of these defendants who are not parties to the second appeal and as

regards the amounts made payable to those defendants as a condition to the plaintiffs obtaining possession from them. On the finding that the

plaintiffs had no right to redeem the 3rd defendant, I would modify the decrees of the lower courts by dismissing the suit so far as the redemption

of the properties in possession of the defendants 2, 37, 154 and 112 is concerned.

As regards the 1st defendant''s alleged legal representative who is the fourth respondent before us, I would declare that the question whether he

is liable under any transaction entered into by his predecessor in the stanom is not determined, nor his rights to question any such transaction

affected by his having been made a party to his second appeal or by anything which has occurred in this litigation.

The parties to this second appeal will bear their respective costs of this second appeal. On the question of the nature of a kanom, I shall add the

following observations. I have no doubt that in very old times a Malabar Jenmi (who was originally of course a Numbudri Brahmin) would consider

himself to be insulted if he was considered a borrower who was under necessity to resort to a creditor and to give security for the loan wanted

simply because he graciously accepted a kanom perquisite from a non-brahmin dependent of his and allowed him to enjoy his land as a kanomdar.

(The etymology of the word "" Kanom"" is interesting in this connection.) But it is too late to decide such questions on such ancient history, and I

think a kanom ought to be treated by courts in modern days always as a mortgage of land secured for the amount borrowed, however small it may

be.

Napier, J.

I agree. I wish to add only a few words on the question of the construction of this document. The proposition contended for by Mr.

Ananthakrishna Aiyar that the court should in every case examine the terms of the document and the surrounding circumstances for the purpose of

ascertaining whether the transaction is a mortgage or a lease is certainly attractive. But I agree with my learned brother that it would lead the Court

into enquiries which might in many cases be perfectly fruitless and introduce an element of uncertainty as to the effects of these documents. It is

most important to my mind that the people who are in the habit of executing these documents should be thoroughly assured of the results of the

transactions which they enter into. And I cannot imagine anything more dangerous than a feeling that many years after the Courts might be led into

an enquiry for the purpose of determining whether the document was a mortgage or a lease. It may be that the decisions of the Court compel us to

hold that, where the transaction has reference to the reclaiming of absolute waste land and the amount of the kanom is very small, that the

transaction is a lease. 1 express no final opinion on that point. But I am clear that where such a condition does not exist it is advisable that a right

and a standard rule should be enunciated for the guidance of persons who wish to put their transaction in this form that such documents are

mortgages. With regard to the present case no inference can be drawn from the fact that the document was intentionally not witnessed because it

appears that this style of expression is due not to any doubt as to the necessity of witnessing but to some absurd pretensions of semi royal

prerogatives which cannot of course be allowed to derogate from the provisions of statutes and should I think be now recognised by such persons

to be out of date.

I entirely agree with my learned brother in his decision on the other points raised. Decree modified.