Decided on August 08,1974



- (1.) THE short question here is whether a person who is otherwise entitled to claim that he is a kudikidappukaran, will lose such right merely because he happens to be a member of a marumakkathayam tarwad possessed of some properties, a share in which may come to his hands in the event of a partition It is agreed in this case that but for the fact that the defendant in the suit is a member of a tarwad owning 8. 60 acres of land with about,30 to 40 members he would be entitled to claim that he is a kudikidappukaran. THE case of the plaintiff who seeks eviction in the suit is that on partition the defendant may be entitled to a share exceeding 10 cents and therefore he should be found to be disentitled to the benefits of fixity under the provisions of act 1 of 1964. A kudikidappukaran is defined in S. 2 (25) of the Act as 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 and who further satisfies certain conditions which may not be relevant for the purpose of this case. THErefore what is required is the possession of requisite area by the person claiming the right of kudikidappu with the further qualification that the possession should be such as would enable him to erect a homestead thereon. Any person who is not in 'possession' but has title to a property cannot erect a homestead on that property. THE mere fact that he may be, at some future date, possibly entitled to possession of some area of land will not enable him to erect a homestead. A member of a tarwad has, no doubt, a right to seek partition. But the time at which he may get possession of his share and what extent of property he will get in a partition are matters which cannot be anticipated and therefore he cannot be said to be a person in possession of land either as owner or as tenant on which he can erect a homestead. "person" is defined in S. 2 (43) of the Act to include a family and a joint family also. But this cannot be of any assistance to the plaintiff, for, this definition of person cannot logically lead to the construction that a person becomes possessed of land merely because his family is possessed of such land.
(2.) AS early as the decision in Achuthan v. Sulochanan (1971 KLT. 549) Raman Nayar C. J. , had expressed the same view. Raghavan, Ag. C, J. also took the same view in Achuthan v. Sulochanan (1971 KLT 846 ). A division Bench of this Court had occasion to consider the claim of kudikidappu by a person entitled to the right of residence in a building. This court held that this would not be sufficient to disqualify a person from claiming a kudikidappu right. The reference here is to Kali Pennamma v. St. Paul's Convent (1972 KLT 12 ). Isaac J. said at Para. 23 of the decision thus: "it appears to me that a person can be said to have a thing, only if it is his own. If he has only a joint right in a thing, it is not his own; he has it only along with others. In my opinion, the Act gives the protection of a kudikidappukaran to every person who has no dwelling house of his own, or sufficient land as mentioned in S. 2 (25) in his possession as owner or as tenant on which he can erect a dwelling house. " My attention has been drawn to a recent decision of my learned brother Namboodiripad J. in Damodaran v. Kunhiraman (1973 KLT. 14 ). I do not think that the case is of any assistance to the appellant here. The question raised there was whether a person possessed of more than 10 cents of land out of which 71/2 cents was suitable for erecting a homestead would be disentitled to claim right of kudikidappu. The learned judge, finding that the applicant had no case that the 71/2 cents of land was not extensive enough to construct a homestead and further on the basis that the total area in his possession exceeded 10 cents, found that such person is not a kudikidappukaran. That, of course, is not the position here. It is not necessary for me to express my respectful agreement or dissent with the view expressed by my learned brother in that decision, as the question that was in controversy in that case is not relevant for the case before me. In view of what I have said above, I have no doubt that the lower appellate court was right in holding that the defendant is a kudikidappukaran. The Second Appeal is without merit and it is dismissed with costs. Dismissed. . .;

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