Kochkunju
Nair Vs. Koshy Alexander & Ors [2000] INSC 139 (24 March 2000)
D.P.Mohapatro,
K.T.Thomas
J U D
G M E N T Thomas J. A Full Bench of the KeralaHigh 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
co-owners 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 co-owner 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 10 cents in extent. Ext.B-16 is a Partition Deed of
the year 1952 executed by the appellant and his brother as per which 27½ cents
of land has been allotted to the appellant, 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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