KALI NARAYANI Vs. NEELAKANTAN NANU

JUDGEMENT

(1.) A doubt expressed on the correctness of the decision of our learned brother Pareed Pillay, J. in Anna v. Devassia, 1986 KLT 79 led to the reference on the case to the Division Bench.

(2.) The second appeal arose out of a suit for redemption and a claim of kudikidappu. The property had been mortgaged under Ext. P2 dated 6-10-1951. The mortgage rights were assigned in favour of the first defendant by Ext. P3 dated 13-7-1954. Second defendant was the husband and the 3rd defendant, the son of the assignee mortgagee. Defendants 2 and 3 were impleaded as persons residing in the suit property. The suit was decreed but subject to the right of kudikidappu of the defendants in the suit property. In appeal, kudikidappu claim was denied on the ground that there was a joint acquisition covered by Ext. P4, and if the share in that property is also reckoned, the assignee mortgagee will be in possession of an excess over the permissible area to qualify for kudikidappu rights. This view is no longer tenable in the light of the decisions of this Court, including Balammal v. Vasantha Kumari & others, 1984 KLT 137 , where joint possession of a property has been held to be not sufficient to destroy a claim of kudikidappu. That contention raised specifically in the second appeal, would ordinarily result in the appeal being allowed and the appellate decree reversed.

(3.) The respondents, however, could rightly claim protection of the dictum laid down in 1986 KLT 79 supra, which denied to the assignee mortgagee the right of kudikidappu. No one other than the mortgagee himself could claim it - was the firm declaration of this Court. The dictum, naturally, would have application in large number of cases.