Ouseph Ouseph vs Rama Iyen Krishna Iyen

Govinda Pillai, J.—The D. H. is the applt. He had filed the suit to recover possession of the plaint ''property which the defts. were holding under Ex. A. The pltf. stated that it evidenced a redeemable mtge. where as deft. 4''s contention was that it was an irredeemable Kanom & that the pltf. was not entitled to recover possession of the property. The deft.''s contentions were overruled by the trial, appellate & the Second appellate Cts, & the decision of the H. C. was reported in 1949 T. L. R. 139 . That was passed on 25-1-1949. Before the pltf. could take out execution & recover possession of the property there was then the Holding Stay Act XXI [21] of 1124 which stayed execution of decrees or a period of six months from 19-3-1949 if the decree was for recovery of possession based on pattom, Otti, Panayam with possession & Kanom. This expired on 24-9.1949 when the Ordinance II [2] of 1125 was promulgated. This ordinance prohibited execution of decrees involving lease-hold interest. On the assumption that this ordinance would not apply to the decree in. question the D. H. applied to execute the decree for possession. Deft. 4 on notice objected to the same on the ground that Ordinance II [2] of 1125 was a bar to the execution. The execution Ct. dismissed the objection & ordered delivery of possession. Possession was accordingly given on 6-10-1949 to the .0. H. Deft 4 filed an appeal against this order on 11-10-1949. While the appeal was pending the period proscribed in Ordinance 11 [2] of 1125 had expired & in its place. Act VIII [8] of 1950 was passed on 5-4 1350 with retrospective effect from 25-3-1950. The appellate Ct. held that Ordinance II [2] of 1125 would not apply to the decree in question, but it was of opinion that Act VIII [8] of I950 which came into force while the appeal was pending would be a bar to the execution & so the order of the execution Ct. was set aside & the appeal allowed. It is against this that the D. H. has filed this appeal. The J. D. deft. 4 has objected to the findings that Ordinance II [2] of 1125 would not apply to this decree.

Act XXI [21] of 1124 stayed execution of all decrees based on Pattom, Otti, Panayam with possession & Kanom other than those covered by the Janmi-Kudiyan Act. Ottis & Panayam with possession are definitely excluded in Ordinance II [2] of 1125 & Act VI Il [8] of 1950. Ordinance lI [2] of 1125 & Act VIII [8] of 1950 related only to a holding which was defined to mean any immovable property held under a single transaction by which a lease hold right in the property was created & possession of the property was transferred by one person in favour of another. Evidently therefore it was only leases & documents that had the characteristics of lease alone were intended to be governed by these later enactments. If the transaction in question was not a lease hold right but only a mtge. or otti then the question of the applicability of ordinance 11 [2] of 4125 or Act VIII [8] of 1950 would not arise for consideration at all. These enactments do not define lease & so the accepted definition of the same as laid down in the T. P. Act would be the proper guide in such matters. A lease of immovable property is defined to be a transfer of a right to enjoy such property, made for a certain time, express or implied, or in perpetuity, in consideration of a price paid or promised, or of money, a share of crops, service OR any other thing of value, to be rendered periodically or on specified occasions to the transferor by the transferee who accepts the transfer on such terms. (Vide Section 105, T. P. Act, vol. III, 3rd Edn. 1950 of A I R. series. Section 58 Clause (d) of the same Act (vol II) defines an usufructuary mtge. thus:

Where the mtgor, delivers possession or expressly or by implication binds himself to deliver possession of the mortgaged property to the mtgee; & authorizes him to retain such possession until payment of the mtge. money & to receive the rents & profits accruing from the property or any part of such rents & profits & to appropriate the same in lieu of interest, or in payment of the mtge-money, or partly in lieu of interest or partly in payment of the mtge-money, the transaction is called a usufructuary mtge., & the mtgee. a usufructuary mtgee.

The distinction between an usufructuary mtge, & a lease for a premium is apparent from the definition of two tenures. The points of distinction are thus analysed at pp. 1695 & 1696 of Vol. III of the AIR Commentaries of the T. P. Act 1950 Edn.

(1) A lease for a premium is a transfer of the right to ''enjoy'' the property. Under such a lease, the usufruct of the property will belong to the lease till the lease is determined. But under a usufructuary mtge, only the right to ''possession'' is transferred, to the mtgee. The usufruct of the property will not ''belong'' to the mtgoe. He will have only the right to receive it. He must adjust it towards the mtge-debt. This is the principle even in oases in which the mtgee''s remaining in possession & appropriating the profits of the property for a certain period is to wipe out ''ipso facto'' the mtge-debt without his being liable to account for such profits during that period.

(2) A usufructuary mtge. connotes a transfer of an interest in the ''fee simple'' in the property, though not the entire fee simple or ownership of the property. The interest in immovable property which, according to the definition of a mtge. in Section 58, is transferred to the mtgee. is an interest in the ''fee simple''. But the interest transferred under a lease for a, premium is not an interest in the fee simple. It is merely ''a right to the enjoyment'' of the property.

(3) The premium for a lease is a ''price'' paid or promised for the lease. But the consideration for a usufruotuary mtge. is the advancement of a ''loan''.

(4) The transfer of an interest under a usufructuary mtge, is for the purpose of securing repayment of the loan. There is no such object in a lease. It is this difference that is at the root of the difference mentioned in item (1) above.

With these points of distinction in view we shall examine the document on the basic of which the decree in the case had been passed. It is true that it is called a "KanapattaEthivadharam". The deft, advanced the Jenmi fanams 1865-3 chs. 12 cash as a loan & of this, a sum of 1500 fanama-1 ch. 0 cash was declared to be a charge on the properties conveyed hereunder. The yield which these properties would fetch was then assessed & interest on the loan advanced was deducted. The balance was agreed to be paid as Michavaram along with other prerequisites mentioned therein. He also undertook to take renewal after the expiry of 12 years. There was the balance of 365 fanams-2chs. 12 cash which had not been charged on the property. These properties were outstanding with another party. To redeem him a decree had already been obtained by the owner. The tight of that tenant to the amount advanced as well as to the value of improvements had been purchased in court auction, by the owner. The right over the value of improvements was assessed at fanams 365-2 chs-12 cash & assigned over to deft. 4. The details thus given would show that this document will not come under the category of a lease & that deft 4 were not holding the property under a lease-hold right. The nomenclature of the document as a "Kanapattom" is immaterial for the purpose of gathering the intention of parties & the tenure created thereby. The rulings in Tukaram v. Ram Chand 26 Bom 252 : 3 Bom. L. R. 778 , Chitikala Peda Yerranna Vs. Chitikala Somanna and Others, Seshayya v. Lakshminarasimha Rao AIR 1930 Mad. 160 : 124 I.C. 282 ; Gulabbhai Ranchhodbhai Vs. Bhagvan Kesur, & Hitendra Singh v. Rameshwar Singh AIR 1921 Pat. 43 : 6 Pat. L. J. 37 are in support of this position.

This Ct. also in disposing of the appeal on the decree had proceeded on the assumption that Ex. A evidenced only a redeemable mtge. Thus the execution of a decree obtained on a transaction like Ex. A is not stayed by the provisions of Ordinance II [2] of 1125 or Act VIII [8] of 1950. It would, therefore, be unnecessary for us to enter a discussion as to the applicability of Act VIII [8] of 1950 to a decree which had been satisfied before that Act came into force & also the several other nice questions of law raised at the time of the argument. We would therefore, set aside the order passed by the lower appellate Ct. & restore that of the first Ct. The applt. will get his coats in all the three lower Cts.