SAINABA Vs. NARAYANAN

JUDGEMENT

(1.) THE only question that is urged before me in this second Appeal is the claim of defendants to Kudikidappu right in the building in plaint schedule item 1. THE building is scheduled as plaint item 2. This question arises in a suit for redemption of Ext. P-1 mortgage. Plaint item 2 building was in existence even on the date of the mortgage, Ext. P-1, of 1123 and even prior to the mortgage the defendants were residing in that building That is mentioned in Ext. P-1 mortgage. What is now claimed is that prior to the mortgage they were living in the property as Kudikidappukars and on redemption their Kudikidappu right will revive and if so the decree for redemption must be passed subject to that right.

(2.) THE only contention urged before the courts below in answer to the claim of the defendants was that the building in the suit property was constructed at a cost of more than Rs. 400/- and therefore it would not be a but within the meaning of Explanation II to S. 2 (25) of the kerala Land Reforms Act 1 of 1964. THE commissioner valued the building at Rs. 515. 35, According to the defendants this value was excessive and it ought to have been found to be less than Rs. 400/. By the time the matter came up for hearing before this Court, Explanation II stood amended. By reason of such amendment a dwelling house would be a but if the cost of construction did not exceed Rs. 750/- though prior to the amendment it would be a but only if the cost of construction did not exceed Rs. 400/ -. THErefore on the finding of the court below defendants may be entitled to succeed as the building would come with the definition of but and if so defendants would be Kudikidappukars whose right would revive on redemption. In view of this, certain other answers are urged to the claim of the defendants by the learned counsel for the respondent here. It is these that I am concerned with.

(3.) IT is therefore not difficult to read the term 'land' in Explanation III as not referring to the surface or soil alone but also the buildings, if any, standing thereon.