PARU NARAYANI Vs. THOMAS VARGHESE

JUDGEMENT

(1.) The only question for decision in this civil revision petition is as to whether the 1st respondent's application under S.77(1) read with S.75(2) of the Kerala Land Reforms Act is liable to be dismissed for want of a notice to the revision petitioner as required by the first proviso to Sub-Sec. (1) of S.77.

(2.) The facts of the case are not in dispute. The 1st respondent in this C.R.P. is the owner of the land where one Ankan had a kudikidappu. Ankan died. The revision petitioner and one Ankan Achuthan are his legal representatives and they continued to reside in the kudikidappu. The land owner issued a notice to Ankan Achuthan requiring him to shift the kudikadappu to an alternative site offered by the land owner. No notice was given to the revision petitioner. She was however made a party to the application under S.77(1) of the Act. The Land Tribunal as well as the appellate authority have held that the notice to Ankan Achuthan is sufficient compliance to the requirements of the proviso to Sub-Sec. (1) of S.77 of the Act and in that view of the matter has directed the shifting of the kudikidappu where Ankan Achuthan and the revision petitioner are residing. A notice under the first proviso to S.77(1) of the Act is a statutory requirement before an application for shifting of the kudikidappu can be filed. The contention of the 1st respondent is that the notice to Ankan Achuthan is sufficient notice also to the revision petitioner who is residing in the same kudikidappu. It is also pointed out that in the notice issued to Ankan Achuthan the name of the petitioner is also shown as a person residing in the kudikidappu and she should therefore be held to have notice under the first proviso to S.77(1) of the Act. We find it difficult to agree with this proposition. Sec. 78 of the Act enacts that the rights of a kudikidappukaran in his kudikidappu are hereditable. Hence on the death of Ankan his rights as a kudikidappukaran devolved on his children in equal rights as tenants-in-common. The revision petitioner has therefore a right independent of Ankan Achuthan in the kudikidappu inherited from her father.

(3.) Counsel for the 1st respondent relies on the decision of the Supreme Court in Kanji v. Trustees, Port of Bombay, (AIR 1963 SC 468) wherein it has been held with reference to a notice under S.106 of the Transfer of Property Act : "Once it is held that the tenancy was joint a notice to one of the joint tenants was sufficient, and the suit for the same reason was also good." That principle can have no application to a case where the leasehold right held by different persons is as tenants in common, in which case notice to one of the co-tenants will not be sufficient notice to the others. Raman Nayar J., as he then was, referring to the decision of the Supreme Court in Kanji's case (supra) stated in Konnappan v. Manikkam (1967 Ker LT 585) :