Kochkunju Nair Vs. Koshy Alexander & Ors [1999] INSC 94 (24 March 1999)

K.T.Thomas, D.P.Mohapatra Thomas J.

A Full Bench of the Kerala High Court has held that when a person has land in co-ownership with another, whatever be its extent, it would not disentitle him to claim the rights of a Kudikidappukaran under the provisions of the Kerala Land Reforms Act, 1963 (for short the Act). Having held so the Full Bench proceeded to consider whether appellant has such an entitlement. It was found that the land in his possession is not in co-ownership with others and hence the Full Bench repelled his claim to have Kudikidappu rights.

The predecessor of respondent (late Geevargis Koshy) was the owner of a building which he rented out to the appellant in the year 1963 for conducting a tea-shop. As per a settlement in the family of the said Geevargis the said building and the land on which it is situate have been allotted to the share of first respondent. Two suits were filed in respect of this building, one by the appellant for a declaration that the building is his, and the other by the first respondent together with Geevargis Koshy for recovery of possession of the building.

The suits underwent a checkered carrier and when they reached the Kerala High Court on an earlier occasion in Second Appeal a direction was issued to the trial court on 11.9.1982 to refer the question (which relates to the claim of appellant that he is entitled to Kudikidappu rights) to the Land Tribunal under Section 125(3) of the Act. Pursuant to the reference made by the trial court the Land Tribunal answered the question in favour of the appellant holding that he is Kudikidappukaran. Accordingly the suit filed by the respondent was dismissed by the trial court but the District Court before which respondents filed a regular appeal, reversed the finding and decreed the suit for recovery of possession on the premise that appellant has in his possession land in excess of ten cents in area. Appellant took up the matter before the Kerala High Court again in Second Appeal.

In the High Court, appellant adopted a contention that since the land is held by him in co-ownership with his wife and son it cannot be taken into consideration while deciding whether he has right of Kudikidappukaran. When the Second Appeal came up before a Division Bench an earlier decision of another Division Bench was cited before it (Chakkara Ramakrishnan and others vs. Kuruvaikkandy Kumaran and others (1980 Kerala Law Notes 19). But the Division Bench which heard the Second Appeal could not persuade themselves to follow the said decision as learned judges were inclined to take the view that possession of other lands in co-ownership by a person claiming to be a Kudikidappukaran in excess of the limits prescribed under Section 2(25) of the Act will dis-entitle him from claiming the benefits thereunder.

Hence the matter was placed before a Full Bench which again concurred with the view adopted in Chakkara Ramakrishnan (Supra).

We are unable to uphold the view of the Full Bench that the property held in co-ownership cannot be taken into account while considering whether the claimant has possession of land exceeding the limit prescribed in Section 2(25) of the Act. The said sub-section, which is the definition clause, is extracted below (only the material portion which is necessary for this case):

"Kudikidappukaran means a person who has neither a homestead nor any land exceeding in extent three cents in any city or major municipality or five cents in any other municipality or ten cents in any panchayat area or township, in possession either as owner or as tenant, on which he could erect a homestead.." The word homestead in the context would only mean a dwelling house. As the land said to be in the possession of the appellant is situated in a panchayat area the necessary requirements can be re-cast like this: The person claiming to be a Kudikidappukaran should not have, in his possession, land exceeding ten cents in a panchayat area, either as owner or as tenant on which he could erect a dwelling house.

Here the contention is that if the person has only co-ownership over the land it cannot be said that he is the owner thereof, nor is he in possession of it. Conflicting decisions have been adopted by the Kerala High Court on that point at different times. In Vasudevan vs. Sreemathi Amma (1966 Kerala Law Times 594) a single judge took the view that the person who has joint ownership of the necessary extent of land is disentitled to the rights of Kudikidappukaran. But a contrary view was adopted by a Division Bench in Pennamma vs. St. Pauls Convent (1972 Kerala Law Times 12). Another Division Bench has held in Vasistha Vadhyar vs. Mohini Bai (1975 Kerala Law Times 365) thus: A member of a joint family has no ownership or possession exclusively on any portion of the property belonging to the joint family. Therefore, the fact that a person owns land with others as joint tenant cannot disentitle him from the protection extended under s.2(25) of the Act. On the words of the section, this is the only conclusion that can be arrived at.

Nonetheless, the Division Bench doubted whether the above principle can be extended to a tenant-in-common since possession of such a person is different from the possession of a co-parcener or member of a tarwad. However, a single judge in Damodaran vs. Vasukutty (1978 Kerala Law Times 1) took the view that there is no distinction between a member of joint family and a tenant-in-common or a co-owner and that he too can claim to be a Kudikidappukaran.

We are not now considering the question whether a person who has right in a joint family property can be treated as one in possession of that land. But we do consider now whether a person who is a co-owner along with others can be treated as owner and whether he is in possession thereof.

Ownership imports three essential rights, namely, right to possession, right to enjoy and right to dispose. If an owner is wrongly deprived of possession of his property he has a right to be put in possession thereof. All the three essentials are satisfied in the case of co-owner of a land. All coowners have equal rights and co-ordinate interest in the property, though their shares may be either fixed or indeterminate. Every co-owner has a right to enjoyment and possession equal to that of the other co-owner or co-owners. Each co-owner has, in theory interest in every infinitesimal portion of the subject matter and each has the right, irrespective of the quantity of his interest, to be in possession of every part and parcel of the property, jointly with others. (vide Mitras Co-ownership and Partition, Seventh Edn.) A three-Judge Bench of this Court has held in Sri Ram Pasricha vs. Jagannath and ors.(AIR 1976 SC 2335) that a co-owner owns every part of the composite property along with others. The following statement of law has been made by their Lordships:

"Jurisprudentially it is not correct to say that a co-owner of a property is not its owner. He owns every part of the composite property along with others and it cannot be said that he is only a part-owner or a fractional owner of the property. The position will change only when partition takes place." To hold that a co-owner is not an owner and his possession is not the possession envisaged in Section 2(25) of the Act is in conflict with the correct legal position. If a co-owner wants to erect homestead on the land he is free to do so. When a division of the co-ownership property takes place the coowner who put up the homestead can claim that the said portion may be allotted to his share. Courts would ordinarily grant such equitable relief when claimed. [vide Nutbehari Das v. Nanilal Das and ors.(AIR 1937 PC 61)]. If the other co-owner objects to the construction of a homestead he can get the co-ownership property divided by partition, and if the other party is not readily willing to that course it is open to him to get it partitioned through suit. These are various remedies available to the co-owner in respect of his land. Merely because he has to resort to such steps it cannot be said that a co-owner cannot erect a homestead on his land.

The view adopted by the Full Bench of the Kerala High Court that once the claimant is a co-owner of whatever extent of land, he must be treated as a person who has no land on which he could erect a homestead, has preposterous legal implications.

For example, a co-owner having 50 acres of land along with another co-owner claims right of Kudikidappu as against another person who has only a wee bit of land. If the Full Bench view gains acceptance the claimant must be declared entitled to Kudikidappu right. Such an order would be unjust and inequitable, if not ridiculous. The Full Bench of Kerala High Court has gone wrong in adopting such a view.

Learned counsel for the appellant alternatively contended that even if this co-ownership land can be taken into account, the area of his land, after partition, would fall below 1 executed by the appellant..... and his brother as per which 27½ his wife and son who was then a minor. Person is defined in Section 2(43) of the Act as including a company, family, joint family, association or other body of individuals. Section 2(14) of the Act defines family as consisting of husband, wife and their unmarried minor children or such of them as exist.

A combined reading of the above definitions leads to the only conclusion that appellant (with or without his wife and minor son) has 27½ cents of land. There is no contention that the nature of the land is such that no homestead could be erected thereon. Even if the minor son would have claimed his share after attaining majority, appellant and his wife together will still have land much in excess of 10 cents.

So looking from any angle, appellant has no right to claim that he is a Kudikidappukaran in respect of the building which is the subject matter of the suit. We therefore dismiss this appeal, without any order as to costs.

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