Kudikidappukaran; Ammukkutty Amma Krishnakumari Vs. Rajasekharan Nair

Land Reforms Act, 1963 (Kerala) – S. 2(25) & 125 (3) – Explanation IV – Compensation for Tenants Improvements Act, 1959 (Kerala) – ‘kudikidappukaran’ – Plea of – Assessment of improvements – Redemption of a mortgage – Whether an assignee mortgagee not alive on the date of redemption of the mortgage can claim the benefit of ‘kudikidappukaran’ – Held, All the legal heirs of the assignee mortgages should together satisfy the test of ‘Kudikidappukaran’ – All the legal heirs of the assignee mortgages are also necessary parties to the execution petition – the valuable right of ‘kudikidappukaran’ would not disappear on assessment of improvements – the assessment of improvements was for the purpose of ascertaining the mortgage money – there could be a redemption of mortgage only after the mortgage money was so ascertained and deposited.

# Kudikidappukaran

# 2012 (3) KLT 183 : ILR 2012 (3) Ker. 228 : 2012 (3) KHC 80

IN THE HIGH COURT OF KERALA AT ERNAKULAM

V. CHITAMBARESH, J

Dated this the 25th day of June, 2012

C.R.P.NO. 484 OF 2011

E.P. NO. 173/2008 IN OS.312/1984 OF MUNSIFF COURT, NEYYATTINKARA RC.2/2009 of LAND TRIBUNAL, TRIVANDRUM

FOR REVISION PETITIONER(S)/REVN. PETITIONER/4TH JUDGMENT DEBTOR/4TH: BY ADVS.SRI.G.S.REGHUNATH SRI.K.RAJESH KANNAN SRI.A.S.SHAMMY RAJ SRI.P.SHANES FOR RESPONDENT(S)/DECREE HOLDER/PLAINTIFF.: BY ADV. SRI.S.VINOD BHAT BY ADV. SRI.LEGITH T.KOTTAKKAL BY ADV. SRI.R.D.SHENOY (SR.)

O R D E R

This is a piquant situation where the legal heirs claim that their predecessor-in-interest would be a ‘kudikidappukaran’ had been alive on the date on which the right got crystallized in law. It was a delight to hear Mr. G.S. Raghunath, Advocate on behalf of the revision petitioner and Mr. R.D. Shenoy, Senior Advocate on behalf of the respondent on this stimulating question.

2. The suit in O.S. No. 312/1984 on the file of the court of the Munsiff of Neyyattinkara is one for redemption of a mortgage dated 11.07.1122 M.E. The plaint ‘A’ schedule property is 15 cents of land and the plaint ‘B’ schedule property is a thatched house therein. The property belonged to one Krishnan Nair who mortgaged the same in favour of Padmanabha Pillai and Lakshmi Amma under Ext.A3 deed. The mortgagees assigned their right in favour of Velayudhan Pillai and Rajamma in the year 1950. Velayudhan Pillai released his one half mortgage right in favour of Rajamma in the year 1954. Rajamma in turn assigned the whole mortgage right in favour of Raghavan Pillai in the year 1955 under Ext.A4 deed and the petitioner is his daughter. Raghavan Pillai sub- mortgaged the property in favour of Ramakrishnan Nair who assigned his sub-mortgage right to Krishnan Nair. Krishnan Nair released his sub-mortgage right to the petitioner in the year 1979 under Ext.A5 deed. The petitioner is the fourth defendant in the suit filed by the respondent for redemption of the mortgage aforestated.

3. The suit was originally dismissed by the trial court whereby the claim for redemption by the plaintiff and the plea of ‘kudikidappu’ by the defendants were negatived. The appeal therefrom in A.S. No. 780/1984 on the file of the court of the Subordinate Judge of Neyyattinkara was allowed. But the appellate court remanded the suit without disturbing the finding against the defendants on ‘kudikidappu’. The order of remand was challenged by the fourth defendant in CMA No. 50/2000 on the file of this court. The order of remand was modified whereby the question of ‘kudikidappu’ was left open to be considered at the time of redemption of mortgage. The plaintiff had in the meanwhile taken assignment of the ‘jenm’ right from the erstwhile landlord in regard to the property. The suit was eventually decreed and the question of ‘kudikidappu’ referred to the land tribunal under

# Section 125 (3) of the Kerala Land Reforms Act, 1963

(‘the Act’ for short). The reference to the land tribunal was made at the execution stage since the claim of ‘kudikidappu’ in the instant case arose at the stage of redemption of mortgage only. The land tribunal by order dated 27.07.2000 did not uphold the claim of ‘kudikidapu’ put in by the fourth defendant. But the order was set aside in CRP No. 519/2010 by this court as sufficient opportunity had not been afforded by the land tribunal. The land tribunal again negatived the plea of ‘kudikidappu’ and forwarded the finding to the execution court. The execution court accepted the finding and directed delivery of the property which is impugned in this Civil Revision Petition.

4. The plea of ‘kudikidappu’ hinged on Explanation IV to Section 2(25) of the Act and the relevant portion thereof is as follows:

“2. Definitions:- In this Act, unless the context otherwise requires,-

xxxxxxxxxxxxx xxxxxxxxxxxxx

(25) ‘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 and-

(a) who has been permitted with or without an obligation to pay rent by a person in lawful possession of any land to have the use and occupation of a portion of such land for the purpose of erecting a homestead; or

(b) who has been permitted by a person in lawful possession of any land to occupy, with or without an obligation to pay rent, a hut belonging to such person and situate in the said land; and ‘kudikidappu’ means the land and the homestead or the hut so permitted to be erected or occupied together with the easements attached thereto:

Explanation I- xxxxxxxxx xxxxxxxxxxxxx

Explanation IV- Where a mortgagee with possession erects for his residence a homestead, or resides in a hut already in existence, on the land to which the mortgage relates, he shall, notwithstanding the redemption of the mortgage, be deemed to be a kudikidappukaran in respect of such homestead or hut, provided that at the time of the redemption

(a) he has no other kudikidappu or residential building belonging to him or any land exceeding 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; and

(b) his annual income does not exceed two thousand rupees”.

(emphasis supplied).

5. The question whether an assignee mortgagee can claim the benefit of Explanation IV to Section 2 (25) of the Act is no longer res integra. A Division Bench of this court in

# Narayani Vs. Neelakantan [1990 (2) 154]

has held that the assignee mortgagee is also entitled to the benefit. This is subject to the condition that the assignee mortgagee satisfies other conditions to qualify for being a ‘kudikidappukaran’. But then the assignee mortgagee was not alive on the date of redemption of the mortgage. The assignee mortgagee had died in the year 1970 whereas the mortgage money was deposited by the mortgagor only on 05.04.2008. It is only when the mortgagor- mortgagee tie is snapped can the claim of ‘kudikidappukaran’ spring up, if at all any. The assignee mortgagee was not alive to enable him to establish that he qualified for the status of ‘kudikidappukaran’. Explanation IV to Section 2 (25) of the Act is categoric that the mortgagee should satisfy the qualification ‘at the time of the redemption’. The irresistible conclusion therefore is that all the legal heirs of the assignee mortgagee should together satisfy the test of ‘kudikidappukaran’ in the instant case.

6. It is no doubt true that one of the legal representatives of the ‘kudikidappukaran’ can alone maintain the claim for and on behalf of the others also. A Full Bench of this court in

# Moothorakutty Vs. Chiruthakutty [1995 (1) KLT 251]

has considered this aspect in detail. It was held therein that possession of other land by any or all of the legal representatives may not disqualify them. But the said decision is distinguishable in as much as the same dealt with an inheritance of a crystallized right of ‘kudikidappukaran’. The alleged right of  ‘kudikidappukaran’ in the instant case crystallized much after his death. The legal heirs who stepped in to the shoes of the ‘kudikidappukaran’ should together satisfy the tests on the date of redemption of mortgage. The tests are:

(i) They should not together own any residential building or land exceeding the limit prescribed in the Act;

(ii) Their annual income put together should be within the limit prescribed in the Act.

7. Ext.A4 deed in favour of the assignee mortgagee is silent as regards the existence of any building in the property. But Ext.A5 deed under which the fourth defendant got release of the sub-mortgage right speaks of the construction of a building. The recitals in Ext.A5 deed prima facie indicate that the assignee mortgagee had erected a homestead while in possession. A ‘homestead’ is quite different from a ‘hut’ as is evident by Explanation II to Section 2 (25) of the Act. There is no stipulation that the cost of construction for a homestead should not exceed Rs.750/- unlike in the case of a hut. Moreover a mortgagee need have possession only and not be in physical occupation of the homestead as per Explanation IV to Section 2 (25) of the Act. This subtle distinction as well as the recitals in Exts.A4 and A5 deeds have been overlooked by the authorised officer deputed by the land tribunal.

8. The plaintiff contended that the fourth defendant should have occupied the homestead in her own right to be styled as a ‘kudikidappukaran’. It was contended that a mere occupation by virtue of a right vested in another would not enable her to be clothed with the right. Reference in this connection was made to the following decisions:

# (i) Perila Janardhanan Vs. Vellachi Chinna [1972 KLT 207].

# (ii) Balammal Vs. Vasantha Kumari and others [1984 KLJ 60]

Those decisions exhibited a situation where the relatives or the legal heirs were not in possession on their own right which is not so in the case on hand. The fourth defendant was in occupation of the homestead in her own right as the title of assignee mortgagee had by then devolved on her.

9. The plaintiff also vehemently contended that the fourth defendant is estopped from putting forth the plea of ‘kudikidappukaran’. This is because the fourth defendant had filed an affidavit dated 06.12.1998 to have the value of improvements assessed. The plaintiff asserted that the fourth defendant is at best entitled to the value of improvements under the Kerala Compensation for Tenants Improvements Act, 1959. It should be noted that the assessment of improvements was for the purpose of ascertaining the mortgage money. There could be a redemption of mortgage only after the mortgage money was so ascertained and deposited. I am not prepared to accede to the contention that the valuable right of ‘kudikidappukaran’ would disappear on assessment of improvements.

10. All the legal heirs of the assignee mortgagee though are parties to the suit have not been impleaded in the execution petition filed for delivery. The plaintiff resorted to this course presumably because only the fourth defendant is now in occupation of the homestead. All the legal heirs of the assignee mortgagee are also necessary parties to the execution petition. Only then will all the legal heirs get an opportunity to substantiate their claim before the land tribunal on the reference by the execution court. I also find that the fourth defendant was not permitted to examine the authorised officer though sought for in the land tribunal. The entitlement of ‘kudikidappu’ to all the legal heirs together on the date of redemption of mortgage deserves to be considered afresh.

11. I set aside the impugned order and remit the matter to the execution court for fresh consideration in the light of the observations supra. The parties will appear before the execution court on 01.08.2012 for further enquiry. The Registry shall send down the records forthwith. The Civil Revision Petition is allowed. No costs.

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