AIR 1967 SUPREME COURT 876 ::1967 Ker LT 1 ::1967 Ker LJ 234 ::1967 (1) SCJ 314 ::1967 (1) SCWR 168

Supreme Court Of India

(From Kerala : (1961) 2 Ker LR 123)

Hon'ble Judge(s): K. N. Wanchoo, J. C. Shah, R. S. Bachawat , JJJ

Kerala Land Reforms Act (1 of 1964) , S.2(23), S.12— Transfer of Property Act (4 of 1882) , S.58(d)— Tenancy Laws - Kanam-kuzhikanam and usufructuary mortgage - Distinction - Transaction whether one or the other - Test. A kanam-kuzhikanam and a usufructuary mortgage have many common features. @page-SC877 Both the transactions involve or may involve transfer of possession on payment of money by the transferee, set-off of profits against interest and retention of possession until repayment of the money. In spite of their close resemblance, the essential distinction between the two types of transactions must not be overlooked. A Kanam-kuzhikanam is a lease, and is, therefore, a transfer of a right to enjoy the property. A mortgage is a transfer of an interest in the property for securing the repayment of a debt. The purpose of one is to enable enjoyment of the property by the transferee, that of the other is to secure the debt. On the question whether a transaction is a Kanam-kuzhikanam or a usufructuary mortgage, the name given to it by the parties is a relevant, though not always a decisive, consideration. If the parties described the transaction to be a Kanam-kuzhikanam it is a valuable indication that they intended it to be such and not a usufructuary mortgage. If the document purports to be a mortgage, S. 12 of the Act allows ....