KOCHUNJU NAIRversusKOSHY ALEXANDER AND ORS.

                         KOCHUNJU NAIR                                           A
                               v.
                    KOSHY ALEXANDER AND ORS.

                            MARCH 24, 1999

             [K.T. THOMAS AND D.P. MOHAPATRA, JJ.]                               B

      Kera/a Land Reforms Act, 1963

      S. 2 ( 25)-Person in possessicn of land held in co-ownership with
others in excess of limits prescribed under S.2 (25)-Whether such person         C
would be entitled to claim the rights of 'Kudikidappu' under the provisions
of the Act-Held : such a person would not be entitled to claim the rights
of Kudikidappu.

      Words & Phrases- 'Kudikidappu ', 'Co-owner', 'Homestead',
'Person', 'Family '-Meaning of in the context of Kera/a land Reforms             D
Act, 1963.

      .The predecessor of the respondent was the owner of a building
which he rented out to the appellant for conducting a tea-shop. In the
family settlement of the predecessor of the respondent, the said building and    E
the land on which it was situated was allotted to the share of the first
respondent. Two suits were filed in respect of the building, one by the
appellant for a declaration that he is the owner of the building and the other
by the first respondent together with his predecessor for recovery of
possession of the building. The appellant claimed that he was a
Kudikidappukaran and was entitled to the rights thereof under the provisions     F
of the Kerala·Land Reforms Act, 1963.

       The suit filed by the respondent was dismissed by the trial court after
a finding by the Land Tribunal under Section 125 (3) of the Act that the
appellant is a Kudikidappukaran pursuant to a reference made to it by the G
trial court on the direction of the Kerala High Court. The respondents filed
appeal against the order of the trial court before the first appellate court.
The first appellate court allowed the appeal and decreed the suit of the
respondents for possession of the premises, on the premise that the appellant
had in his possession land in excess of ten cents in the area i.e., in excess
of the limit prescribed under Section 2 (25) of the Act. Aggrieved by the H
                                      169
    170                      SUPREME COURT REPORTS                    [1999] 2 S.C.R.

A judgement of the first appellate court, the appellant preferred Second Appeal
    before the Kerala High Court. The contention of the appellant before the
    High Court was that since the land was held by him in co-ownership with
    his wife and son it cannot be taken into consideration while deciding whether
    he has the right of Kudikidappukaran. The Division Bench which heard the
B   Second Appeal differed with an earlier decision of another Division Bench
    as it was of the view that such possession would dis-entitle him from claiming
    the benefits of Kudikidappukaran under the Act and placed the matter before
    a Full Bench.

          The Full Bench concurred with the view taken in the earlier decision
C and held that when a person has land in co-ownership with another, whatever
    be its extent, it would not disentitle him to cllfim the rights of a
    "Kudikidappukaran" under the provisions of the Kerala Land Reforms Act,
    1963 as the person cannot be said to be in possession of land in excess of
    the limit prescribed in S. 2 (25) of the Act as co-ownership property cannot
    be taken into consideration. However, the Full Bench found that the land in
D   the appellant's possession was not in co-ownership with others and hence,
    repelled his right to have Kudikidappu rights.

           Against the Judgement of the Full Bench, the appellant has appealed
    to this court, contending that if the person has only co-ownership over the
    land it cannot be said that he is the owner thereof, nor can it be said that
E   he is in possession of it; alternatively even if the co-ownership can be taken
    into account, the area of the appellant's land, after partition, would fall below
    10 cents in extent.

          Dismissing the appeals, the Court
F         HELD : 1. 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. The word
    "homestead" in the context would only mean a dwelling house. (173-H-G)

G         2. 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
H   has a right to enjoyment and possession equal to that of the other co-owner



                                                                                        '·
                    KOCHUNJU NAIR v. KOSHY ALEXANDER                           171
    or co-owners. Each co-owner has, in theory, interest in every infinitesimal       A
    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. (17 4-F-G J

          Mitra 's Co-ownership and partition, Seventh Edition, referred to.
                                                                                      B
          3.1 A co-owner owns every part of the composite property alongwith
    others. To hold that a co-owner is not an owner and his possession is not the
    possession envisaged in Section 2 (25) of the Kerala Land Reforms Act is
    in conflict with the correct legal po~ition. If a co-owner wants to erect
    homestead on the land he is free to do so. When a division of the co-             C
    ownership property takeslplace 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. If the other co-owner
    objects to the construction of a homestead he can get the co-ownership
    property divided by partition, and tt the other party is not readily willing to
    that course it is open to him to get it partitioned through suit. These are       D
    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. [175-C-D]

         Sri Ram Pasricha v. Jagannath and Ors. AIR (1976) SC 2335 and
    Nutbehari Das v. Nani/al Das and Ors., AIR (1937) PC 61, relied on.               E

         3.2 The view of the Full Bench that the property ht:ld 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
    cannot be upheld. [173-E]                                                         F
-         Chakkara Ramakrishnan and others v. Kuruvaikkandy Kumaran and
    others, (1980) and Kera/a Law Notes 19, Pennamma v. St. Paul's Convent,
    (1972) Kerala Law Times 12, overruled.

          Vasudevan v. Sreemathi Amma, (1966) Kerala Law Times 594, relied            G

-   on.

        Vasishta Vadhyar v. Mohini Bai, (1975) Kerala Law Times 365, and
    Damodaran v. Vasukutty, (1978) Kerala Law Times 1, referred to.

          4. The appellant, his wife and son, who was at that time a minor, were      H
    172                     SUPREME COURT REPORTS                    [1999] 2 S.C.R.

A allotted 27-1/2 cents of land as per the partition deed. A combined reading
    of Sections 2 (43) and 2 (14) of the Act leads to the only conclusion that
    appellant (with or without his wife and minor son) has 27-112 cents of land.
    There is no contention that the nature of the land is such that no homestead
                                                                                        -
    could be erected thereon. Even ifthe minor son would have claimed his share
                                                                                        \
B   after attaining majority, appellant and his wife together would still have land
    much in excess of 10 cents. [176-B]

            CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 9725-26 of
    1995.

          From the Judgment and Order dated 20.12.94 of the Kerala High Court
C   in S.A. Nos. 274 and 415 of 1991.

            K. Sukumaran, Ms. Kartika, S. and G. Prakash for the Appellant

            K. John Mathew, N. Sudhakaran for the Respondents.
                                           _/

            The Judgment of the Court was delivered by
D
           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
E   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
F   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
G   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 I 1.9. I 982 to refer the question (which relates to
    the claim of appellant that he is entitled to Kudikidappu rights) to the Land
H   Tribunal under Section I 25(3) of the Act. Pursuant to the reference made by
            KOCJiUNJU NAIR v. KOSHY ALEXANDER [THOMAS, J.)                     173

    the trial court the Land Tribunal answered the question in favour of the          A
    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      B
    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          C
    another Division Bench was cited before it Chakkara Ramakrishnan and
    others v. 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 were inclined "to
    take the view that possession of other lands in co-ownership by a person          D
    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        E
    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           F
           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              G


-   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.                                         H
    174                     SUPREME COURT REPORTS                   [1999) 2 S.C.R.

A          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 v. Sreemathi Amma, (1966) Kerala
    Law Times 594 a single judge took the view that the person who has joint               \

B   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 v. St. Paul's Convent, (1972) Kerala Law Times 12. Another
    Division Bench has held in Vasistha Vadhyar v. 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       \
C   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.
D   However, a single judge in Damodaran v. Vasukutty, (1978) Kerala Law
    Times 1 took the view that there is no distinction between· a membei: of joint
    family and a tenant-in-common or a co-owner and that he too can claim to
    be a Kudikidappukaran.

E         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,
F   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
G   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 Mitra's Co-ownership and Partition, Seventh Edn.)

H         A three-Judge Bench of this Court has held in Sri Ram Pasricha v.
                  KOCHliNJU NAIR v. KOSHY ALEXANDER [THOMAS, J.]                       175
          Jagannath and ors., AIR (1976) SC 2335 that a co-owner owns every part of           A
          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        B
                  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
                                                                                              C

          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. Nani/al Das and ors., AIR (1937)
          PC 61. If the other co-owner objects to the construction of a homestead he          D
          can get the co-ownership property divided by partition, and if the other party
          is not readily willing to that course it i<; 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.
                                                                                              E
                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             F
          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      G
          this co-ownership land can be taken into account, the area of his land, after
          partition, would 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 27Yl
          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"...         H


      •
    176                    SUPREME COURT REPORTS                    [1999] 2 S.C.R.

A   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 definition< leads to the only conclusion
    that appellant (with or without his wife and minor son) has 27Yz cents of land.   'I


B
    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
C   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.

    AT.                                                       Appeals dismissed.




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