Kerala High Court
Vidhyadharan vs Sivadas on 11 June, 2001
ORDER K.A. Mohamed Shafi, J.
1. The order in E.P. 1103 of 1991 in O.S. 179 of 1984 on the file of the Munsiff's Court, Thiruvananthapuram, is under challenge in this Revision Petition.
2. In that E.P. filed for delivery of possession of the plaint schedule property on redemption of the mortgage, judgment debtors 2 and 3 contended that they are entitled to kudikidappu right in respect of the decree schedule property. The Executing Court referred the question of kudikidappu to the Land Tribunal for finding under S. 125(3) of the Kerala Act 1 of 1964 as amended. The Land Tribunal, by order dated 9.8.99 in R.C. 26 of 1998 held that Judgment Debtors 2 and 3 are not entitled to kudikidappu right in respect of the decree schedule property.
3. The Execution Court, accepted the finding of the Land Tribunal and ordered delivery of the property to the petitioner/decree holder. Hence the judgment debtors 2 and 3 have preferred this revision petition before this court challenging that order.
4. The Land Tribunal found that the mortgage sought to be redeemed was after the commencement of the Act 1 of 1964 and the revision petitioners were not in possession of the land and the building as on 1.1.1970 so as to entitle them to get the benefits under the Kerala Land Reforms Act and accordingly negatived the contention regarding kudikidappu raised by them.
5. The finding of the Land Tribunal that the revision petitioners are not entitled to claim kudikidappu in respect of the plaint schedule property since they came into possession of the property only subsequent to 1.1.70, the date of commencement of the Kerala Act 1 of 1964 as amended by the Kerala Act 35 of 1969 and therefore they are not entitled to claim kudikidappu right in respect of the property is absolutely illegal and unsustainable. It has been authoritatively laid down by this Court that claim of kudikidappu is not restricted to persons who came into possession of the property prior to 1.1.1970 and persons who came into possession of the property subsequent to 1.1.70 are also entitled to claim kudikidappu right under S. 2(25) of the Kerala Land Reforms Act as amended.
6. In the decision reported in Mary Yohannan v. Sreekumaran Nair (1991 (2) KLT 751), a Full Bench of this Court has observed as follows:
"for the aforesaid reasons, we hold that even though the petitioner became a kudikidappukaran during 1978-79 and became entitled to purchase the kudikidappu under S. 80A read with s. 80B subsequent to 1978 and even though the petitioner was not a kudikidappukaran by 1.1.1970 when the Act 35 of 1969 was introduced, the petitioner would be entitled to the benefit of the right to purchase conferred by the said sections. The said right is not restricted to persons who acquired the status of kudikidappukaran before 1.1.1970".
7. In the decision reported in Maniyan v. Ramachandran, (1999 (3) KLT 86), a Division Bench of this Court considered on reference of the question whether kudikidappu as defined in S. 2(25) of the KLR Act 1963 can come into existence after 1.1.1970. The Division Bench of this Court, overruled the decision of a Singh Bench of this Court reported in Mohamed v. Abdulla (1997 (1) KLT 410), to the effect that no kudikidappu can come into existence after 1.1.1970 following the above decision of the Full Bench reported in 1991 (2) KLT 751 and observed as follows:
"We are unable to agree with the learned Judge that the definition under S. 2(25) has to be understood in such a manner that permission granted must be as on 1.1.1970. We do not find any reason to doubt the correctness of the two Bench Decisions and the Full Bench as observed by the learned Singh Judge. According to us, no fresh consideration is necessary on this issue".
Therefore it is patent that the order passed by the Land Tribunal in the reference made by the Executing Court to the effect that the revision petitioners are not entitled to claim kudikidappu right under S. 2(25) of the Kerala Act 1 of 1964 as amended since they came into possession of the property after 1.1.70 is absolutely illegal and unsustainable.
8. It is seen from the order passed by the Land Tribunal, copy of which is appended by the Executing Court to the impugned order as part of the order it is settled that the Authorised Officer under S. 105A of the K.L.R. Act was deputed to inspect the decree schedule property and the report filed by him has been marked as Ext. C1, absolutely, no reference is made in the order passed by the Land Tribunal regarding the observation made by the Authorised Officer in Ext. C1 with regard to the nature of the building and whether it will come within the definition of kudikidappu under S. 2(25) of the Kerala Act 1 of 1964 as amended. Therefore there is absolutely no material on record before this court to ascertain whether the building in question situated in the plaint schedule property comes within the purview of kudikidappu under S. 2(25) of the Kerala Act 1 of 1964 as amended as claimed by the revision petitioners or not.
9. As already noted, the above suit is filed for redemption of the mortgage and recovery of possession. In the suit itself the revision petitioners herein as defendants 2 and 3 have contended that they are entitled to kudikidappu right in respect of the hut situated in the plaint schedule property. The Trial Court found that the revision petitioners are not entitled to claim kudikidappu right in respect of the plaint schedule property since no evidence, either oral or documentary is adduced by them in support of their contentions. It is thereafter they raised the plea of kudikidappu in the execution proceedings. The respondents 1 to 3, the decree holders 2 to 4 have contended that the revision petitioners are barred by resjudicata from raising the plea of kudikidappu in the execution proceedings in view of the finding by the Trial Court in the judgment in the suit that they are not entitled to kudikidappu right in the plaint schedule property and therefore such a contention of kudikidappu cannot be entertained in the execution proceedings in this case.
10. The counsel for the revision petitioner submitted that under Explanation IV to S. 2(25), it is statutorily provided that where a mortgagee with possession either erected or is residing in a hut already in existence in the mortgaged property he be deemed to be a kudikidappukaran in respect of such homestead or hut notwithstanding redemption of the mortgage, if at the time of redumption, he satisfied the requirements of the clauses a and b to the explanation.
11. Explanation IV to S. 2(25) of the Kerala Land Reforms Act as amended reads as follows:
Explanation IV:- Where a mortgagee with possession erects for his residence or resides in a hut already in existence, on the land to which the mortgage relates, he shall, notwithstanding the redemption of the mortgage, be deemed to be a kudikidappukaran in respect of such homestead or hut, provided that at the time of the redemption:-
(a) he has no other kudikidappu or residential building belonging to him, or any land exceeding 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
(b) his annual income does not exceed two thousand rupees.
12. This court as early in the year 1982 had occasion to consider the question whether a mortgagee can claim right under Explanation IV to S. 2(25) in execution of decree for redemption of mortgage and held in the affirmative. In the decision reported in Ratnamma v. Kamalamma Pillai (1983 KLT 227) a Single Judge of this Court has observed as follows:
"The right which the petitioner claims is under Explanation IV. The right springs up only on redemption of the mortgage. As per the Explanation, the respondent-mortgagee who resides in the mortgage property will be deemed to be a kudikidappukari on the redemption of the mortgage with possession. In that case, a reference of the question of kudikidappu to the Land Tribunal and it's finding that the petitioner has no kudikidappu right pending the suit for redemption cannot stand in the way of the adjudication of the claim of kudikidappu which snapped the ties of mortgagor and mortgagee. Under law, the respondent had yet to become a deemed kudikidappukari when the Land Tribunal gave the finding that she had no kudikidappu rights. The claim of kudikidappu now made in execution being on made on facts and circumstance not in existence at the time when the Land Tribunal gave the finding that the respondent was not a kudikidappukari cannot be barred by res judicata. So, in a case like this, a reference is a must at this stage. If a person in possession satisfies the conditions insisted by the Explanation, he will be entitled to purchase the hut and the extent of the land he is entitled under S. 80A(3) of the Act".
13. I had an occasion to consider the claim of kudikidappu right under Explanation IV to S. 2(25) of the Land Reforms Act in similar circumstance. In the decision reported in Janaki Thankamma v. Kamalakshy Sumangala (1997 (1) KLJ 30), following the above decision of the learned Single Judge, I held that "the fact that at the trial stage it was held that the petitioner is not entitled to claim kudikidappu right is no bar against her from claiming kudikidappu right under Explanation IV to S. 2(25) of the Land Reforms Act since the claim of kudikidappu is accrued to the revision petitioner only by the above decree for redemption extinguishing her right in the property as a mortgagee".
14. The counsel for the respondent submitted that the above view expressed by this Court is not good law in view of the authoritative pronouncement of the Supreme Court in the decision reported in Victoria v. K.V. Naik & Ors. (1997 (6) SCC 23). In that decision, the Supreme Court, by interpreting Explanation IV to S. 2(25) and S. 125(3) of the Kerala Land Reforms Act, as amended held that:
"If the plea regarding Kudikidappu rights had not been raised, it would operate as constructive res judicata on the principle of "might and ought". If it was taken and rejected, it would operate as res judicata and the same cannot be raised in execution. Even if it was left open, in equity, justice and good conscience, it must not be extended to the mortgagee."
In that judgment, the Supreme Court has observed as follows:
"When Ss. 2(25) and 125(3) of the Land Reforms Act are to be considered in a suit of redemption, claiming the right of kudikidappu as was found by the Court it is not barred by the principle of constructive res judicata in execution proceedings. We find that later part of the view taken therein is not correct for the reason that if the plea has not been raised, it operates as constructive res judicata on the principle of "might and ought". If it is taken and rejected, it operates as res judicata and the same cannot be raised in execution. Even if it is not left open, in equity, justice and good conscience, it must not be extended to the mortgagee. After all, the mortgagee-moneylender comes into possession of the property as mortgagee and always remains as mortgagee unless limitation snaps off the link. he receives interest on the amount advanced. He cannot be permitted in good sense of law to eat away the cake as Kudikidappu. It would be abhorrent to good conscience and playing upon the property of indigent mortgagor's own property. Certainly, that is a matter gone into at the time of execution. Since in the suit, the plea had been raised and negative and a preliminary decree had been passed followed by a final decree, it was not open to the petitioner to raise the plea after the passing of the final decree that he was entitled to three cents of land as Kudikidappu".
15. The counsel for the revision petitioners submitted that the above decision of the Supreme Court is directly in conflict with Explanation IV to S. 2(25) of the Kerala Land Reforms Act as amended empowering the mortgagee to claim kudikidappu right at the time of redemption of the mortgage and that provision of law which is included in the 9th schedule of the Constitution will be made nugatory if the decision is followed. Even though it would appear on a plain reading of Explanation IV to S. 2(25) and the judgment passed by Supreme Court that the judgment is directly in conflict with the above provision of law contained in Explanation IV to S. 2(25) of the Kerala Land Reforms Act as amended enacted by legislature, in view of the fact that the pronouncement of law by the Supreme Court is a law of land under Art. 141 of the Constitution binding upon all the Courts, including this Court, this Court cannot go against the above ruling of the Supreme Court and find that the revision petitioner are entitled to claim kudikidappu right in the execution proceedings in the above suit for redemption since the right to claim kudikidappu accrues to the revision petitioner only on redemption of the mortgage, irrespective of the fact that such a contention raised by the revision petitioner in the suit was negative by the Court. The correctness or otherwise of the above judgment passed by the Supreme Court has to be canvassed before the Supreme Court itself. The counsel for the revision petitioners argued that in the decision reported in Janaki Padmakshi v. Saraswathi (2000 (1) KLJ 453), another Judge of this Court had distinguished the above decision of the Supreme Court. It is seen that the facts and circumstances of that case and the case came for consideration in the above decision were entirely different. Even though the defendant had raised a claim of kudikidappu in the suit at the time of trial, the Trial Court had not referred that question to the Land Tribunal and relegated the question of kudikidappu to be decided at a later stage. Accordingly, this Court held that the decree passed in the suit will not operate as resjudicata against the defendant from raising the claim of kudikidappu at the time of execution of the decree. Therefore, as the facts of the case were entirely different, the learned Judge distinguished that case from the above ruling of the Supreme Court on facts. That decision is of no help to the revision petitioners in this case since the facts and circumstances in this case and the above judgment passed by the Supreme Court are almost identical.
16. Under such circumstance of the case, following the judgment passed by the Supreme Court in the decision reported in 1997 (6) SCC 23, the contention raised by the revision petitioners in the above execution petition in execution of decree passed allowing redemption of the mortgage negativing the claim of kudikidappu set up by them at the trial stage cannot be entertained in the execution proceedings. Therefore even though the finding arrived at by the Land Tribunal under S. 125(3) of the Land Reforms Act negativing the claim of kudikidappu is on wrong premises, the conclusion arrived at by Land Tribunal to the effect that the revision petitioners are not entitled to kudikidappu right in respect of the plaint schedule property has to be upheld. Therefore the impugned order passed by the executing court accepting the finding of the Land Tribunal in the reference under S. 125(3) of the Land Reforms Act is confirmed and the Revision Petition is dismissed.