ANNA Vs. DEVASIA

JUDGEMENT

(1.) REVISION petitioners are defendants 6 and 8 in O. S.185/76 of the Munsiff Court, Ettumanoor. First respondent (decree holder) filed E. P. 12/83 to execute the decree for redemption of a mortgage. Preliminary decree and final decree were passed. Revision petitioners and the second respondent (10th judgment debtor) filed objections to the delivery notice contending that they are mortgages by assignments and that they have kudikidappu rights over the extent of property in their respective possession. First revision petitioner claims to be in possession of 3 cents of property. According to him, he has constructed a hut and he is residing there. Second revision petitioner claims to be in possession of 13 cents of property and contends that he has constructed a hut and that he has been residing there The executing court accepting the finding of the Land Tribunal held that the revision petitioners and the 10th ((THELAW)) 2009 KLT INFOTECH VerDIS ® Page 1 of 41986 KLT 79 respondent are not entitled to claim any kudikidappu rights over the property.

(2.) . Counsel for the revision petitioners contends that the Land Tribunal's finding that the revision petitioners are not entitled to kudikidappu rights over the property is unsustainable and is opposed to the evidence adduced in the case. Counsel relying on Ratnamma v. Kamalamma Pillai (1983 KLT. 227) contended that the right which the petitioners claim under Explanation IV of S.2 (25) of the Kerala Land Reforms Act springs up only on redemption of the mortgage and therefore merely because the tenancy rights claimed by them were found negatived will not bar the contention of kudikidappu rights over the property. Counsel for the first respondent pointed out that the revision petitioners cannot claim kudikidappu rights as they are admittedly assignees of the mortgage rights from the original mortgagee.

(3.) . S.59A of the T. P. Act makes it clear that the references to mortgagors or mortgagees in Chapter IV of the Transfer of Property Act include persons deriving title from them. As S.59A makes it clear that the references to mortgagors or mortgagees would include persons deriving title from them so far as Chapter IV is concerned it is not possible to hold that reference to mortgagee in Explanation IV would include assignee mortgagee as well. Explanation IV to S.2 (25) of the Kerala Land Reforms Act reads thus: