PERILA JANARDHANAN Vs. VELLACHI CHINNA

JUDGEMENT

(1.) This second appeal is by the 3rd defendant in a suit for redemption. The mortgage is one executed by the plaintiff in favour of defendants 1 and 2 (father and son). The 3rd defendant is the son of a late elder brother of the 1st defendant. He has been impleaded as one in occupation of a hut on the suit property, having been inducted therein by the mortgagees. By his written statement, the 3rd defendant claimed independent title as also possession of the entire property long before the mortgage. The claim has been negatived concurrently by the courts below and being a question of fact it is conclusive in this second appeal. The Munsiff however declared the 3rd defendant's occupation of the hut on the property to entitle him to the status of a kudikidappukaran and consequent immunity from eviction out of the property. On appeal the Subordinate Judge has reversed it. Hence this second appeal.

(2.) The averment in para 5 of the plaint is that, subsequent to the mortgage, the 3rd defendant has been put to reside in a hut on the property by the mortgagees. The 3rd defendant disclaimed it in his written statement and claimed to have had independent possession of the property long before the mortgage. The Subordinate Judge has held that neither the plaint averments nor the plea in the written statement of the 3rd defendant is sufficient to concede the status of a kudikidappukaran to him. I am afraid that both the Munsiff and the Subordinate Judge failed to notice the material fact in the case that the 3rd defendant is a member of the coparcenary with the mortgagees. The relation between defendants 1 to 3 is conceded and they are Hindus. There is no case that they are divided. Defendants 1 to 3 therefore belong to a Hindu coparcenary.

(3.) Kudikidappukaran, as defined in the Land Reforms Act and its accessory enactments, like the Act IX of 1967, must have occupation of a portion of any land or of a hut in his own right. A person in occupation by virtue of a right vested in another, e.g. a wife, child, member of the family, or servant residing in a building or outhouse in virtue of a right in the husband, parent, manager of the family or master, cannot claim the status of a kudikidappukaran. A member of the mortgagee's family occupying a building on the mortgage property or a member of a tenant's family occupying a building on the leasehold, cannot be said to have such an occupation of the building as would entitle him to the status of a kudikidappukaran and to consequent fixity of occupation contemplated in the laws. In short, the expression "occupation" in the definition of "kudikidappukaran" means occupation in one's own right and not occupation in virtue of a right of another, or of a right common to him and the person who permitted his occupation. Duality of persons in the permittor and the permitted is an essential feature of a 'kudikidappu'. It will be a fraud on law for a mortgagee to put a near relative of his in occupation of a building on the mortgage property to entitle the latter to fixity of occupation and consequent immunity from eviction on redemption of the mortgage; it is in effect the ouster of a needy person out of his property, which law always regarded as unconscionable. It is one thing to expose a camouflage and construe a disguised mortgage as a lease in reality, but a different thing to conclude fixity of occupation of the mortgaged property or a part thereof to a mortgagee's relation. Even when the deprivation is only of a part of the mortgaged property, its obvious effect is to compel the debtor to repay the entire debt to have back only a part of the mortgaged property, and to give the creditor's relations unearned and unwarranted benefits at the cost of the debtor who was constrained to mortgage his property to tide over a temporary difficulty. The occupation by a number of the family of the mortgagee of a building on a mortgage property be it a but or a bungalow has to be construed as occupation by the mortgagee and not independent of him. The evidence that the 3rd defendant has adduced to claim possession of the property long before the suit mortgage has been discredited by the courts below. It is then natural to infer that he came to reside in the property after defendants 1 and 2 have secured a possessory mortgage thereof, and as he is a member of the joint family of defendants 1 and 2 his occupation must be identified with the possession of the mortgagees and therefore not as a kudikidappukaran thereon. It is in evidence that the mortgagees are in possession of other lands as defendants 1 and 2 are admittedly residing elsewhere. The finding of the court below that the 3rd defendant is not entitled to any immunity as a kudikidappukaran appears right in the circumstances of this case.