MATHAI ANTHRAPER Vs. LONAN CARLOSE

JUDGEMENT

(1.) The petitioners are the same in these revision petitions; but the respondents are different. The petitioners are the children and wife of a deceased Mathai Anthraper; and the respondent are the tenants of Anthraper. Mathai Anthraper was not a small holder; but the petitioners claim that, on the death of Anthraper, they became small holders and hence are entitled to resume portions of the land in the possession of the respondents. This contention has been disallowed by the Land Tribunal and the Appellate Authority and hence these revision petitions. A Single Judge felt that the question was not finally decided in Ammukutty v. Murugan ( AIR 1972 Ker. 132 = 1972 KLT 659 ) and placed the revision petitions before a Division Bench. And the question involved is the same in the both the cases.

(2.) S.2(52) defines small holder to mean a landlord who does not have interest in land exceeding a particular extent. We are not much concerned with the definition of this expression in these cases; but we have to note the Explanation to the provision. The Explanation reads:

(3.) Now, the argument of the counsel of the petitioners is that, on the death, of Mathai Anthraper, the petitioners became tenants in common of the estate left by Anthraper, they being Christians, and, therefore, they are small holders entitled to resume portions of the land in the possession of the respondents. The counsel of the petitioners has pointed out that the Explanation quoted above deals with only cases of partition or transfer after 18th December, 1957 and where, by a such partition or transfer, the person who was not a small holder before that date is reduced to a small holder, and also with allottees or transferees under such partition or transfer who are small holders. In other words, the argument is that the Explanation covers only partition or transfer; and that, if, by succession, a person becomes entitled to a share in land, which share is equal to or within the limit for a small holder, he is entitled to resume portions of the land from his tenants. Our attention has also been drawn to the decision referred to already at the commencement of the judgment.