VELAYUDHAN Vs. AISHABI

JUDGEMENT

(1.) Assankunji is the father of the 1st plaintiff 1st respondent. On 29th September 1944, when the 1st plaintiff was still a minor, he executed Ext. A1 document. It is, as mentioned therein, a sale deed. He is also the executee thereunder, but is described therein, as the guardian of his daughter, the 1st plaintiff. Later, on 29th February 1956 Assankunji executed Ext. A2 possessory mortgage deed in favour of the 1st defendant, a cooly labourer, and put him in possession of Ext. A1 property thereunder. This be did stating that the mortgaged property is his. The same year the 1st defendant put up a hut thereon and since then he is residing in that hut with his family. First defendant leased out this property to his wife, the 2nd defendant, also a cooly labourer, as per Ext. P2 lease deed of 12th November 1960. Claiming title under Ext. A1 and contending that the mortgage and lease transactions are void 1st plaintiff and her husband, the 2nd plaintiff, filed the suit for recovery of the suit property on 9th August 1965. The learned Munsiff held that the mortgage and the lease are void. However, he found that the defendants (defendants 3 onwards are the children of dependants 1 and 2) have no other house to reside and no other land to construct a homestead. He, therefore, applied the proviso (then in force) to S.2(25) of the Kerala Land Reforms Act, 1963, Act I of 1964 (for short, the KLR Act) and decreed the suit on 29th January 1972 in respect of 10 cents out of 20 cents of the suit property; and directed the parties to apply for the issue of a commission to divide the plaint property demarcating the defendants' kudikidappu having an extent of 10 cents where the hut is standing. The plaintiffs appealed. The lower appellate court allowed the appeal and decreed the suit in toto. Though by the time the lower appellate court decided the appeal on 5th December 1975, the proviso to S.2(25) of the Act had been deleted from and Explanation IIA to S.2(25) had been introduced into the KLR Act, that Court, unaware of that fact, held that the Proviso does not apply since the mortgage, and consequently, the lease are void. Defendants have come up in second appeal.

(2.) Perhaps, it is possible to contend that Ext. A1 cannot operate as a conveyance in so far as it has been executed by Assankunji in his own favour, though in different capacities. 'The mere fact that a man has two or more capacities does not give him power to enter into a legal transaction with himself. Double capacity does not connote double personality. For instance, at common law a man could not sue himself, or contract with himself, or convey property to himself; and it made no difference that he was acting on each side in a different capacity. 'Salmond on Jurisprudence, 12th Edn., pp.64-65. If this be so, this case would fall squarely under Explanation IV to S.2(25) for then Ext. A2 mortgage would be a competent mortgage executed by Assankunji, the owner; and, the suit would have to be dismissed as incompetent, for, then, the 1st plaintiff would derive no title to the suit property under Ext. A1. However, no case appears to have been set up on behalf of the defendants in this form before either of the lower courts, nor was such a case in that fashion advanced before us, though the defendants seem to have a case that Ext. A1 is a pocket instrument and therefore Assankunji continued to be the owner of the suit property despite the execution of Ext. A1 document. We therefore do not propose to probe into this aspect any further.

(3.) The main arguments advanced before us were centred on the scope and ambit of the fiction contained in Explanation IIA to S.2(25) whereunder a person, who on 16th August 1968 was in occupation of any land and the dwelling house thereon and continued to be in such occupation till 1st January 1970, is to be deemed to be a kudikidappukaran provided he does not come under the proviso to that explanation. The reference to the Full Bench, i.e., in view of the conflict between Achuthan v. Narayani Amma ( 1980 KLT 160 ) and Moideenkutty v. Gopalan ( 1980 KLT 468 ), two Division Bench decision construing Explanation IIA mentioned above. So we will deal with that point hereinafter.