KANARAN NAIR Vs. STATE OF KERALA

JUDGEMENT

(1.) This revision under S.103 of the Kerala Land Reforms Act is filed by the land owner. He was the respondent in an application made by the first respondent under S.80B of that Act. The husband of the first respondent was permitted to occupy a building situate in the property. Claiming that the building was a 'hut' as defined in the Act, the application was made. The land owner objected. He contended that he had himself obtained an assignment of 60 cents of land in which the present building was situate, by applying as a tenant under S.72B of the Act and in the year 1983, he had permitted the husband of the first respondent to occupy the building. The first respondent was only claiming through her husband. She had no independent possession or right Her husband had one third share in 43 cents of property held by him along with his two brothers. The person permitted had therefore clearly available an extent of 14 1/3 cents of land towards his share, for erecting a homestead, and that precluded him from claiming a right of kudikidappu. The right over that land had been inherited by the first respondent. She had hence, other suitable land in which she could erect a homestead. Hence, the application could not be allowed.

(2.) The Land Tribunal held that the husband of the first respondent along with his two brothers, did have title and possession over 43 cents of land in R. S. No. 25 of Paranoor Desom and that on the death of the husband, the said right devolved on the first respondent and her children. Of course, I notice that the application for purchase was bad for non joinder of the other legal representatives of Theyyathira, the husband of the first respondent. But, that question did not loom large before the authorities and the case proceeded on the basis that the application was on behalf of all the heirs. The Land Tribunal held that the first respondent though had one third right in 43 cents of land held by her jointly with the two brothers of her husband, she would still be entitled to claim kudikidappu. It therefore, allowed the application for purchase. The landowner filed an appeal. The Appellate Authority also found that the husband of the first respondent had one third share in 43 cents of land. It also took the view that the same would not disqualify him or the first respondent, his legal representative, from claiming assignment of the kudikidappu. The Appellate Authority referred to a decision cited in that judgment as reported in 1995 KLT 51 . But that citation is apparently a mistake.

(3.) Before the authorities below, the first respondent had attempted to pretend ignorance of document No. 2024/54 of the Sub Registrar's Office, Thamarassery, under which the husband of the first respondent had acquired one third right over an extent of 43 cents. The finding now is that her husband under whom the first respondent was claiming, had right over 14 1/3 cents out of the 43 cents of property held by him along with his two brothers. Learned counsel for the revision petitioner contended that the husband of the first respondent was a coowner in respect of 43 cents of land with a distinct one third share in the coownership property and that he cannot therefore be said to be a person who has no land exceeding 10 cents, in any Panchayath area or township in possession as owner, on which he could erect the homestead. In other words, his contention is that even a person who holds land as a coowner but whose share in the coownership property would exceed the extent of 10 cents referred to in S.2(25) of the Act, cannot qualify to be a kudikidappukaran. The object of conferring a right on a kudikidappukaran was stressed and it was pointed out that a building could be put up in the land available to the first respondent. This argument on behalf of the revision petitioner is met by counsel for the first respondent who submits that this court has always taken the view that the mere holding of land exceeding 10 cents towards one's share as a coowner, would not disqualify mat person from being a kudikidappukaran as defined in the Act. The decisions of this court starting from Achuthan v. Sulochana ( 1971 KLT 549 ) and ending with the decision in Kochukunju Nair v. Koshy Sosamma ( 1995 (1) KLT 165 FB) and Moothorakutty v. Chiruthakutty ( 1995 (1) KLT 251 FB) were relied on. I may say that the decision in Moothorakutty (1995 (1) KLT 251), does not relate to this aspect as such, but the decision in Kochukunju Nair (1995 (1) KLT 165) does not have relevance to the question.