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PETITIONER: KOCHKUNJU NAIR

       Vs.

RESPONDENT: KOSHY ALEXANDER AND OTHERS

DATE OF JUDGMENT:       24/03/2000

BENCH: D.P.Mohapatro, K.T.Thomas

JUDGMENT:

     J  U D G M E N T Thomas J.  A Full Bench of the KeralaHigh  Court  has  held that when  a person has  land      in  co- ownership with another, whatever be its extent, it would not disentitle  him to claim the rights of a  Kudikidappukaran under  the  provisions of the Kerala Land Reforms Act,  1963 (for  short  the  Act).   Having held  so  the  Full  Bench proceeded   to  consider  whether   appellant  has  such  an entitlement.   It was found that the land in his  possession is  not in co-ownership with others and hence the Full Bench repelled his claim to have Kudikidappu rights.

     The  predecessor of respondent (late Geevargis  Koshy) was  the  owner  of a building which he rented  out  to  the appellant  in  the year 1963 for conducting a tea-shop.   As per  a  settlement in the family of the said  Geevargis  the said  building and the land on which it is situate have been allotted  to the share of first respondent.  Two suits  were filed  in respect of this building, one by the appellant for a declaration that the building is his, and the other by the first  respondent together with Geevargis Koshy for recovery of possession of the building.

     The  suits underwent a checkered carrier and when they reached  the  Kerala  High Court on an earlier  occasion  in Second  Appeal a direction was issued to the trial court  on 11.9.1982  to refer the question (which relates to the claim of  appellant that he is entitled to Kudikidappu rights)  to the Land Tribunal under Section 125(3) of the Act.  Pursuant to  the reference made by the trial court the Land  Tribunal answered  the  question in favour of the  appellant  holding that  he is Kudikidappukaran.  Accordingly the suit filed by the  respondent  was  dismissed by the trial court  but  the District  Court  before  which respondents filed  a  regular appeal,  reversed  the  finding  and decreed  the  suit  for recovery  of possession on the premise that appellant has in his  possession  land  in  excess  of  ten  cents  in  area. Appellant  took  up the matter before the Kerala High  Court again in Second Appeal.

     In the High Court, appellant adopted a contention that since  the land is held by him in co-ownership with his wife and son it cannot be taken into consideration while deciding whether  he has right of Kudikidappukaran.  When the  Second Appeal  came up before a Division Bench an earlier  decision of  another  Division  Bench was cited before  it  (Chakkara Ramakrishnan  and  others  vs.   Kuruvaikkandy  Kumaran  and others  (1980 Kerala Law Notes 19).  But the Division  Bench

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which  heard the Second Appeal could not persuade themselves to  follow the said decision as learned judges were inclined to  take  the  view  that  possession  of  other  lands  in co-ownership  by a person claiming to be a  Kudikidappukaran in  excess  of the limits prescribed under Section 2(25)  of the  Act  will dis- entitle him from claiming  the  benefits thereunder. Hence the matter was placed before a Full Bench which  again  concurred  with the view adopted  in  Chakkara Ramakrishnan (Supra).

     We  are  unable to uphold the view of the  Full  Bench that the property held in co- ownership cannot be taken into account   while  considering  whether   the   claimant   has possession of land exceeding the limit prescribed in Section 2(25)  of  the  Act.   The said sub-section,  which  is  the definition  clause,  is extracted below (only  the  material portion    which    is    necessary    for    this    case): Kudikidappukaran means a person who has neither a homestead nor  any land exceeding in extent three cents in any city or major  municipality or five cents in any other  municipality or  ten  cents  in  any   panchayat  area  or  township,  in possession  either as owner or as tenant, on which he  could erect a homestead..

     The  word homestead in the context would only mean a dwelling house.  As the land said to be in the possession of the  appellant is situated in a panchayat area the necessary requirements  can be re-cast like this:  The person claiming to be a Kudikidappukaran should not have, in his possession, land  exceeding  ten  cents in a panchayat area,  either  as owner or as tenant on which he could erect a dwelling house.

     Here  the  contention is that if the person  has  only co-ownership  over the land it cannot be said that he is the owner  thereof, nor is he in possession of it.   Conflicting decisions have been adopted by the Kerala High Court on that point  at different times.  In Vasudevan vs.  Sreemathi Amma (1966  Kerala  Law Times 594) a single judge took  the  view that  the  person who has joint ownership of  the  necessary extent   of   land  is  disentitled   to   the   rights   of Kudikidappukaran.   But  a  contrary view was adopted  by  a Division  Bench  in Pennamma vs.  St.  Pauls Convent  (1972 Kerala  Law  Times 12).  Another Division Bench has held  in Vasistha Vadhyar vs.  Mohini Bai (1975 Kerala Law Times 365) thus:   A  member  of a joint family has  no  ownership  or possession  exclusively  on  any  portion  of  the  property belonging  to the joint family.  Therefore, the fact that  a person  owns  land  with  others   as  joint  tenant  cannot disentitle him from the protection extended under s.2(25) of the  Act.   On  the words of the section, this is  the  only conclusion  that  can  be   arrived  at.  Nonetheless,  the Division  Bench  doubted whether the above principle can  be extended  to  a tenant-in-common since possession of such  a person  is different from the possession of a co-parcener or member  of  a tarwad.  However, a single judge in  Damodaran vs.   Vasukutty (1978 Kerala Law Times 1) took the view that there is no distinction between a member of joint family and a  tenant-in-common or a co-owner and that he too can  claim to be a Kudikidappukaran.

     We  are  not  now considering the question  whether  a person  who  has  right in a joint family  property  can  be treated  as  one  in  possession of that land.   But  we  do consider  now whether a person who is a co-owner along  with others  can  be  treated  as  owner and  whether  he  is  in

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possession thereof.

     Ownership  imports  three  essential  rights,  namely, right  to  possession, right to enjoy and right to  dispose. If  an  owner  is  wrongly deprived  of  possession  of  his property  he  has a right to be put in  possession  thereof. All  the  three  essentials  are satisfied in  the  case  of co-owner  of  a land.  All co-owners have equal  rights  and co-ordinate  interest  in the property, though their  shares may  be either fixed or indeterminate.  Every co-owner has a right to enjoyment and possession equal to that of the other co-owner  or  co-  owners.   Each co-owner  has,  in  theory interest  in  every  infinitesimal portion  of  the  subject matter  and each has the right, irrespective of the quantity of  his  interest,  to be in possession of  every  part  and parcel  of the property, jointly with others.  (vide Mitras Co- ownership and Partition, Seventh Edn.)

     A  three-Judge Bench of this Court has held in Sri Ram Pasricha  vs.   Jagannath and ors.(AIR 1976 SC 2335) that  a co-owner  owns  every part of the composite  property  along with  others.  The following statement of law has been  made by their Lordships:

     Jurisprudentially  it  is not correct to say  that  a co-owner of a property is not its owner.  He owns every part of the composite property along with others and it cannot be said  that he is only a part-owner or a fractional owner  of the  property.  The position will change only when partition takes place.

     To  hold  that  a  co-owner is not an  owner  and  his possession  is not the possession envisaged in Section 2(25) of  the Act is in conflict with the correct legal  position. If  a  co- owner wants to erect homestead on the land he  is free to do so.  When a division of the co-ownership property takes  place the co-owner who put up the homestead can claim that  the said portion may be allotted to his share.  Courts would  ordinarily grant such equitable relief when  claimed. [vide  Nutbehari  Das v.  Nanilal Das and ors.(AIR  1937  PC 61)].   If the other co-owner objects to the construction of a homestead he can get the co- ownership property divided by partition,  and if the other party is not readily willing to that  course it is open to him to get it partitioned through suit.   These are various remedies available to the co-owner in  respect of his land.  Merely because he has to resort to such  steps it cannot be said that a co-owner cannot erect a homestead on his land.

     The  view adopted by the Full Bench of the Kerala High Court  that  once  the claimant is a  co-owner  of  whatever extent  of  land, he must be treated as a person who has  no land  on which he could erect a homestead, has  preposterous legal implications.  For example, a co-owner having 50 acres of  land  along  with  another   co-owner  claims  right  of Kudikidappu as against another person who has only a wee bit of  land.   If  the  Full Bench view  gains  acceptance  the claimant  must  be declared entitled to  Kudikidappu  right. Such  an  order  would  be unjust and  inequitable,  if  not ridiculous.   The  Full Bench of Kerala High Court has  gone wrong in adopting such a view.

     Learned   counsel  for   the  appellant  alternatively contended  that even if this co- ownership land can be taken into  account, the area of his land, after partition,  would

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fall below 10 cents in extent.  Ext.B-16 is a Partition Deed of  the year 1952 executed by the appellant and his  brother as  per  which  27½ cents of land has been allotted  to         the appellant,  his wife and son who was then a minor.  Person is  defined  in  Section 2(43) of the Act  as  including  a company,  family, joint family, association or other body of individuals.  Section 2(14) of the Act defines family as  consisting  of husband, wife and their unmarried  minor children or such of them as exist.

     A  combined reading of the above definitions leads  to the only conclusion that appellant (with or without his wife and  minor  son)  has  27½  cents  of  land.   There  is  no contention  that  the  nature of the land is  such  that  no homestead  could be erected thereon.  Even if the minor  son would  have  claimed  his share  after  attaining  majority, appellant and his wife together will still have land much in excess of 10 cents.

     So  looking from any angle, appellant has no right  to claim  that  he  is  a Kudikidappukaran in  respect  of  the building  which  is  the  subject matter of  the  suit.   We therefore  dismiss  this  appeal, without any  order  as  to costs.