KALI PENNAMMA Vs. ST PAULS CONVENT

JUDGEMENT

(1.) The first appellant is a mother and the second appellant her son: and they claimed before the lower courts that they were kudikidappukars. The Trial Court upheld that contention, while the lower appellate court rejected it. The main question thus for consideration is whether the appellants are kudikidappukars. To be more precise, the question is whether the first appellant is a kudikidappukari.

(2.) The father of the first appellant had a kudikidappu right over the disputed property; and he put up a building thereon. He made a gift of the same to the first appellant, who is now found by the lower courts to be the widow of a Sanku. (I may point out at this stage that the first appellant had a case that she was divorced by Sanku before his death; but that has been concurrently found against by both the lower courts and I do not find any reason to come to a different conclusion.) The claim of the respondent, the landlord, is that on the death of Sanku the appellants became entitled to the properties left by him including a homestead, where the first appellant is entitled to reside. The respondent contends further that since the first appellant is thus entitled to a right in a homestead, she is not entitled to claim benefits as a kudikidappukari under Act I of 1964.

(3.) The relevant portion of the definition of ''kudikidappukaran" under S.2(25) of Act I of 1964 is "a person who has neither a homestead nor any land, either as owner or as tenant in possession, on which he could erect a homestead". The argument of the counsel of the appellants is that the first appellant is not entitled to the homestead left by Sanku either as owner or as tenant in possession, so that it cannot be said that she has another homestead, which deprives her of her right to claim benefits as a kudikidappukari. It is pointed out by the counsel of the respondent that even under the Hindu law the widow has a share, if her sons partition the properties left by her husband. The counsel draws my attention to Para.316 of Mulla's Principles of Hindu Law, 13th Edn., which says that a mother cannot compel a partition so long as the sons remain united; but if a partition takes place among the sons, she is entitled to a share equal to that of a son in the coparcenary property. Even if, for the sake of argument, it is accepted that the widow is entitled only to a right of residence in the homestead left by her deceased husband, still it cannot be said that she has no sufficient interest in the homestead so as to obtain benefits as a kudikidappukari under Act I of 1964. It is not so much the right of alienation the widow has in the homestead that has to be considered; but it is her right to live in the homestead that is the relevant question for consideration. The kudikidappu right is conferred by Act I of 1964 on persons who have no homesteads or lands in their possession on which they can erect homesteads. In view of this clear intention of Act I of 1964, it is not possible to accept the contention that the widow's right in the property left by her deceased husband is not an alienable one as owner. The object of the definition is clear: it is to exclude such rights as those of a mortgagee in possession, who may be redeemed. The possession of another homestead by the person who claims benefits as a kudikidappukaran should not be precarious in the sense that he may be deprived of it against his will. The widow's right is not such a right. Again, it cannot even be said that her right is not as owner. It may be said that she is a joint owner with her sons with no right to claim partition. The right to claim partition or to divide the properties is available only to the sons; and when that right is exercised, the widow is also entitled to a share as owner in the properties left by her deceased husband. Therefore, I an inclined to agree with the conclusion of the lower appellate court, which however is based on the reasoning that the law applicable to the appellants is not Hindu law but justice, equity and good conscience, with which I do not agree.