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PETITIONER: KOCHKUNJU NAIR

       Vs.

RESPONDENT: KOSHY ALEXANDER AND OTHERS

DATE OF JUDGMENT:       24/03/1999

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

JUDGMENT:

Thomas J.

       A Full Bench of the Kerala High 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  which  heard  the  Second  Appeal could not persuade themselves to follow the said decision as learned judges

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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 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  coowners  have

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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 coowner  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  fall  below  1 executed by  the appellant.....  and his brother as per which 27½ 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

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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.