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,-

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(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