Devassy and Others vs Thomas

P.K. Balasubramanyan, J.—The defendants are the appellants. The first defendant is the son of one Mariyam through her first husband Chacko. The plaintiff in the suit is a son of Mariyam through her second husband Joseph, Through Joseph Mariyam had another son and two daughters also. The said son of Joseph and the two daughters released their rights in favour of Thomas the plaintiff. Defendant No. 2 is the wife of the first defendant and defendants 3 to 6 are their children. The plaintiff filed the suit for partition and delivery to him of a 4/5th share in the suit property. The first defendant resisted the suit contending that he is entitled to the property and in the alternative he is entitled to the one half share, in the property and not to a l/5th share as contended by the plaintiff. The courts below have accepted the plea of the plaintiff and have held that the first defendant is entitled only to l/5th share in the property. The first defendant alongwith his wife and children have come up with this Second Appeal. The property sought to be divided was the kudikidappu of Mariyam, the mother. Mariyam died on 8-2-1967. Mariyam had, as noticed, five children. Three of the children assigned their rights over the property to the plaintiff. On the strength of that assignment and claiming on the basis that the property belonged to his father, the second husband of Mariyam the plaintiff applied to the Land Tribunal for assignment of the kudikidappu right in his favour. The first defendant got himself impleaded and claimed that he was also an owner of the kudikidappu. It was determined by the order Ext. A2 that the first defendant was also entitled to kudikikappu right in the property. The Land Tribunal passed an order directing assignment of the kudikidappu in the joint names of the first defendant and the plaintiff. There was also a suit O S 374 of 1979 filed by the present plaintiff for an injunction restraining the appellant from altering the structure in the property. The first defendant raised the plea of kudikidappu in that suit as well. The question was referred to the Land Tribunal u/s 125(3) of the Kerala Land Reforms Act. The said reference and the application under Sec. 80B filed by the present plaintiff Thomas referred to earlier were heard together. The finding in the reference was also that the kudikidappu right belonged both to the present plaintiff and the first defendant. The suit was dismissed by the trial court on accepting that finding. There was an appeal against that decree as A.S. 118 of 1984. By Ext. B2 judgment that appeal was also dismissed. There was an appeal as LRAS 48 of 1985 against the order on the application under S c, 80B recognising the joint rights of the parties. That appeal was also dismissed by the Appellate Authority (LR)

It is thereafter that the present suit was filed by Thomas for partition claiming a 4/5th share on the strength of the assignment in his favour by the three other heirs of his mother and conceding a share to the first defendant. The fist defendant pleaded that he was entitled to a half share in the property. He had also a larger contention that free he alone was residing in the kudikidappu at the relevant time he alone was the kudikidappukaran and the rights of the other children of Mariyam does not survive.

The learned counsel for the appellants Sri. Madhusoodanan persuasively contends that since the other heirs of Mariyam had ceased to occupy the building for a period exceeding two years, their right to kudikidappu had bean lost under Sec. 75(I)(iii) of the Kerala Land Reforms Act. According to him Mariyam died on 8-2-1967 even before the conferment of the right to purchase u/s 80A of the Kerala Land Reforms Act with effect from 1-1-1970. He therefore contended that even if all the heirs of Mariyam inherited the right of kudikidappu, the other heirs not having occupied the kudikidappu they have ceased to be kudikidappukaran on the day the right to apply for purchase arose and that therefore it cannot be postulated in any event that the eldest son and the two daughters of Mariyam through Joseph had any kudikidappu right so as to enable them to acquire a title over the kudikidappu in short his submission was that he and the plaintiff alone were residing in the kudikidappu at the relevant time and therefore the right to purchase enured to them alone since they alone had the intention of being kudikidappukars on the day the application was made. This is sought to be controverted by Mr. T. A. Narayanan Nair learned counsel for the plaintiff-respondent by contending that such a claim is barred in view of the order of the Land Tribunal Ext. A2 and the judgment in the civil case Ext. B2. He submits that when once the right of kudikidappu is inherited by all the heirs, the rights of some of the heirs are not lost morely because they were not at that time residing in the kudikidappu. He further submits that the fact that some of the heirs are residing would amount to occupation by all the heirs of the deceased kudikidappukaran and that therefore the right to purchase enures to all the heirs in a body. He submits that even if one of the heirs obtain a certificate of purchase or an assignment of kudikidappu that would enure to the benefit of all the heirs of deceased kudikidappukaran. Though the argument of Sri. Madhusoodanan, the learned counsel for the appellants sound attractive, i am afraid, the same cannot be accepted Firstly in this case there is no foundation laid for such a claim. Even assuming that the other heirs of Mariyam namely her eldest son and two daughters through Joseph were not in occupation of the kudikidappu for more than two years prior to the date of the application for purchase, that by itself could not be considered as their ceasing to occupy the kudikidappu for two years so as to postulate a loss of right in them. Section 78 of the Kerala Land Reforms Act clearly provides that the right of a kudikidappukaran is heritable and alienable. Obviously the inheritance would fall on all (ho heirs of the deceased kudikidappukaran. There is nothing in See. 78 qualifying the inheritance of the heirs. In the context of Sec. 78 Sec. 75(1)(iii) of the Act cannot be considered as bringing about a disqualification in those heirs who are not residing in the kudikidappu as such. The heir or heirs who are in occupation would be in occupation of the kudikidappu on behalf of all the heirs. There is nothing in the Kerala Land Reforms Act which insists that to preserve the right inherited, all the heirs of the kudikidappukaran must be huddled together in the kudikidappu without at any time breaking occupation for two years. It appears to Home that to so insist would be a strained and impractical interpretation of the relevant provisions of the Act. I am therefore of the view that the fact that one son and two daughters of Mariyam, admittedly the heirs of Mariyam were not in occupation of the kudikidappu for two years continuously after their mother died on 8-2-1967 when the in heritance opened in their favour, would not disentitle them to claim a right of kudikidappu along with the other heirs of Mariyam who were in actual occupation of the kudikidappu, I therefore overrule the argument of Sri. Madhusoodanan that the right of kudikidappu has been lost to three of the heirs of Mariyam for non-occupation.

In the case on hand the application for assignment was made by Thomas not only in his own right but on the strength of the release deed executed in his favour by his brother and two sisters. Thomas tried to exclude a share to the first defendant and the first defendant thwarted Thomas in that attempt by getting himself impleaded in that proceeding and putting forward his claim as a heir of Mariyam. The said right was accepted by the Land Tribunal and an order for purchase was made in the joint names of the plaintiff and the first defendant. The said order for purchase must, be understood in the light of the assignment taken by the first defendant marked as Ext. A1 here, of the rights of the other heirs of Mariyam. If so understood there cannot be any difficulty in holding that the first defendant is entitled only to a 1/5th share in the property in view of the fact that he is only one of the five heirs of Mariyam. There is also nothing in the order Ext. A2 or the judgment Ext. B2 which would militate against the finding that the share of the first defendant is only l/5th in the property in view of the fact that Mariyam has left behind five heirs.

The point raised in the Memorandum of Second Appeal that the appellant has become a kudikidappukaran by virtue of Explanation IIA to Section 2(25) of the Kerala Land Reforms Act cannot help the appellants in this case in view of the fact that Explanation IIA to Section 2(25) of the Kerala land Reforms Act cannot have any application to this case Here the predecessor of the parties was a kudikidappukaran even under the mala definition and therefore there is no scope for invoking Section 2(25) Explanation IIA to deem the heirs of that person as kudikidappukars. Moreover as pointed out by learned counsel for the respondent there is considerable doubt in this case as to whether tested in the light of Explanation IIA to Sec. 2(25) of the Kerala Land Reforms Act, the first defendant was in occupation on both the dates mentioned in that Explanation. The argument based on Explanation IIA to Sec. 2(25) of the Kerala Land Reforms Act raised by the learned counsel for the appellants is therefore liable to be rejected. Once it is found that the rights of the other heirs of Mariyam are not lost, the share awarded by the court below is perfectly correct. I find no reason to interfere with the decree passed by the lower appellate court.

The result is that I confirm the judgment and decree of the lower appellate court and dismiss this Second Appeal. Considering the relationship between the parties I make no order as to costs.