Kunjen Meno vs Raghavan Pillai

N.V. Iyengar, J.—This second appeal is by the 4th defendant. The matter arises in execution of the decree on objection raised by the appellant that the decree for delivery could not be executed in view of Act VIII of 1950 (The Holding Stay of Execution Proceedings Act). The executing court allowed the objection while the lower appellate court repelled it and hence this second appeal. The property consisting of 15 cents of garden land was originally held by the defendant under a lease of 1098. Subsequently on 25-8-112 the parties entered into a Kanapattom arrangement where under the defendant was to advance a Kanom amount of Rs. 190 and enjoy the property for a period of 12 years, appropriating the pattom and profits of the property towards the interest due on the Kanom and pay a nominal Michavaram to the jenmi and also look to the payment of the Sirkar tax due upon the property. The defendant was further given the liberty to effect improvements and this was estimated to amount to Rs. 50 under the decree in the case. The question is whether the property is a ''holding'' within the meaning of the Act. The executing court laid emphasis on the fact that the property was originally held under lease and the relation of lessor and lessee so constituted stood unaffected by the subsequent renewal as Kanom. The lower appellate court on the other hand found that in essence the relationship of the parties was that of a lender and borrower rather than of landlord and tenant. It therefore held that the Act would not apply.

Having heard learned counsel on both sides and perused the document in question it seems to me that the conclusion of the executing court is right and the jural relationship of the parties in this case is more that of lessor and lessee than lender and borrower and the defendant is entitled to the concession under Act VIII of 1950. The document does no doubt partake the characteristics of both lease and mortgage but the elements of lease predominate. In my Judgment the nomenclature of the document and the provision for long term of enjoyment with liberty to effect improvements must be taken to clinch the question. Learned counsel for the decree-holder respondent emphasized the element of security, both property and personal provided for, in the document, as regards the Kanom amount and further the allocation of not alone the pattom but the profits of the property towards interest on the Kanom and the Michavaram and tax liability. But the former aspect by itself does not turn the scale while the latter aspect cannot in my opinion have any significance in the whole matter. I therefore allow the appeal and set aside the order of the lower appellate court and restore that of the learned Munsiff. In the circumstances of the case both parties will bear their costs.