Kerala High Court
Augustin Henry vs Joseph Varghese And Anr. on 22 July, 1986
Equivalent citations: AIR 1987 KERALA 259, (1986) KER LJ 727 (1986) KER LT 978, (1986) KER LT 978
ORDER V. Bhaskaran Nambiar, J.
1. Where, one co-owner has more than one kudikidappukaran as his tenants, is the extent of the land owned by the other co-owners liable to be taken into consideration for fixing the extent available for purchase by the kudikidappukarans. The scope and applicability of Clause (4) of Section 80-A of the Kerala Land Reforms Act, Act I of 1964, thus arises for determination on the facts of this case.
2. The facts, no longer in dispute, are these. The petitioner is the landlord and the first respondent is his kudikidappukaran. As a co-owner, the petitioner owns 1 acre 20 1/4 cents while his wife holds 47 cents. The petitioner's family has thus ownership and possession of 1 acre 67 1/4 cents. There are two kudikidappukars for the petitioner and two for his wife, thus four kudikidappukars for this "family" as defined in the Act. Regarding the co-ownership property of the petitioner, it is seen that he is the co-owner along with his three brothers, of a property having a total extent of 5 and odd acres. There has been no partition between the co-owners. But the extent of the land which the petitioner is entitled as co-owner in the event of actual partition is found to be 1 acre 67 1/4 cents.
3. The kudikidappukaran filed an application for purchase under Section 80-A of the Act. By a preliminary order dated 7-9-1972, the Land Tribunal found that the kudikidappukaran was entitled to purchase 10 cents of land. A final order followed. The appeal against this decision was also in favour of the kudikidappukaran. The authorities held that the petitioner owned more than five acres including the property owned by the other co-owners and therefore Under Section 80-A(5), the kudikidappukaran is entitled to ten cents. These orders are challenged in revision under Section 103 of the Act.
4. Section 80-A governs the right of the kudikidappukaran to purchase his kudikidappu and fixes the extent of land available for purchase, if there are more than one kudikidappukars in the land. The relevant provisions are extracted below : --
"80-A...(1) Notwithstanding anything to the contrary contained in any law for the time being in force, a kudikidappukaran shall, subject to the provisions of this section, have the right to purchase the kudikidappu occupied by him and lands adjoining thereto.
(2) Notwithstanding anything contained in Sub-section (1), where the total extent of land held by the person in possession of the land in which the kudikidappu is situate, either as owner or as tenant is less than one acre, the kudikidappukaran shall be entitled to purchase his kudikidappu and lands adjoining thereto only in cases where the person in possession of the land in which the kudikidappu is situate does not apply to the Government under Sub-section (3) of Section 75 for the acquisition of the land to which the kudikidappu may be shifted, within a period of two years from the commencement of the Kerala Land Reforms (Amendment) Act, 1969:
XX XX XX XX (4) Notwithstanding anything contained in Sub-section (3), where in the lands held by a person, either as owner or as tenant, there are more kudikidappukars than one, the maximum extent of land which is liable to be purchased under this section shall be,--
(a) xx xx xx xx
(b) where such person holds one acre or more, but less than two acres, of land, six cents in a city or major municipality or ten cents in any other municipality or twenty cents in a panchayat area or township;
xx xx xx xx (5) Where any person holds five acres or more of land, either as owner or as tenant, and there are more kudikidappukars than one in the lands held by him, each of the kudikidappukars shall be entitled to purchase the extent of land specified in Sub-section (3).
xx xx xx xx (12) For the purposes of this section,--
(a) the extent of land held by a person shall be the total extent of land held by such person, either as owner or as tenant, on the 1st day of July. 1969;
(b) in calculating the extent of land by a person who is a member of a family and the number of kudikidappukars in the lands held by such person, the extent of the land held individually by any member of his family or jointly by some or all of the members of such family, and the number of kudikidappukars thereon shall also be taken into consideration;
(c) in deciding the extent of land available for purchase by the kudikidappukaran or kudikidappukars, --
(i) any voluntary transfer effected, or any boundaries put up or any building or other structures erected, after the 1st day of July, 1969, shall not be taken into account;
(ii) the sites of the buildings and other strictures situate on the land shall be excluded."
5. Kudikidappukaran is inducted into possession by a person in lawful possession of a land. He is given the right Under Section 80-A "to purchase the kudikidappu occupied by him and the lands adjoining thereto. It is not only the land where the kudikidappu is situate, but also the adjoining land which belonged to the landlord that is the subject-matter of the statutory purchase in favour of the kudikidappukaran. Thus the landlord has to part with his rights over portions of land over which the kudikidappukaran never had any rights. The extent of lands which the udikidappukaran is normally entitled to purchase is 3 cents in a City or major Municipality, five cents in any other Municipality or ten cents in a Panchayat. It is, therefore, clear that the landlord of the kudikidappukaran alone is affected by the purchase. But the extent of land which the" kudikidappukaran can purchase is dependent in certain cases, on the extent of land which the landlord, "the person in possession of the lard in which the kudikidappu is situate" holds either as owner or tenant. If he is in possession of less than one acre, the kudikidappukaran can purchase only if the landowner does not apply to the Government for acquisition Under Section 75(3) of the Act, The extent of land available for purchase by the kudikidappukaran will also depend on the number of kudikidappukars which the landlord has in respect of his land and the extent of land held by him as owner or tenant. Where the extent of the land of the landowner is relevant and necessary for the purpose of the Act Under Section 80-A, sub Clause 12(a) and (b) of Section 80-A provides thus : --
(a) that the extent held by a person shall be the total extent held by such person either as owner or tenant, on the 1st day of July, 1969; and
(b) in calculating the extent of land by a person who is a member of a family, the extent of land held individually of any member of the family or jointly by some or all of the members of such family shall be taken into consideration.
In view of this provision, the extent of land held by the landholder's family has to be taken note of for the purpose of Section 80-A. This has been correctly done by the authorities and accepting this finding, it has to be held that the extent of land of the petitioner's family is 1 acre and 67% cents.
6. However, it is contended by the counsel for the petitioner, in support of the reasoning of the authorities under the Act, that an owner includes a co-owner and Section 80-A (2), (4) and (5) refer to lands held by a person either as owner or as tenant and therefore the entire co-ownership extent will have to be taken into consideration. He stresses that there was no partition between the co-owners and thus the extent of land belonging to the other co-owners also shall be taken note of for the purpose of these provisions.
7. True, owner includes a co-owner. The extent of land of the co-owner under whom the kudikidappu right is claimed alone is relevant for the kudikidappukaran is not allowed to purchase any land not belonging to his landlord, These provisions, Section 80-A(2), (4) and (5), do not state in express words that the lands belonging to the other co-owners who had nothing to do with the kudikidappu created by one of the co-owners, shall also be available for purchase or shall be reckoned for any purpose. This cannot be implied from these provisions and there is no enabling provision corresponding to Sub-clause 12 to rope in the properties belonging to the other co-owners who are not the landholders of the kudikidappu. The acceptance of the contention of the 1st respondent will also lead to practically absurd results. If the extent of land of the other co-owner? has to be taken into consideration, the extent of the family of each co-owner also will have to be taken note of, for Clause 12 will attract to those cases as well. As I see it, it is not the intention of the legislature that the kudikidappukaran should be able to purchase rights of any person other than his landlord. Different considerations may, however, arise where the kudikidappu is created by all the co-owners and the purchase claim is against all of them.
8. In this view, it has to be held in this case that the petitioner's family was entitled only to 1 acre 67 1/4 cents of property and as there are admittedly 4 kudikidappukars, Section 80 A (4)(b) applied and 20 cents should be available for the four kudikidappukars. The 1st respondent is entitled to purchase 5 cents of land Under Section 80-A and not 10 cents as held by the authorities. It is so ordered. The orders of the Land Tribunal and that of the appellate authority are thus set aside and the matter is remanded back to the Land Tribunal for further orders under the Act in the light of the finding given above.
9. The petitioner had a contention that the 1st respondent was the tenant of his wife. This contention was rejected by the authorities. There is nothing to substantiate this contention. Moreover, this is not a material consideration, when it is the extent of the family, the family of the husband and wife that is relevant for our purpose.
In the result, the C.R.P. is allowed as above but without costs.