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Smt. Pathummama Umma and anr. Vs. the Special Tahsilar-cum-land Tribunal and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKerala High Court
Decided On
Case NumberWrit Appeal No. 387 of 1976
Judge
Reported inAIR1980Ker125
ActsKerala Land Reforms Act, 1964 - Sections 75(2), 77 and 77(1)
AppellantSmt. Pathummama Umma and anr.
RespondentThe Special Tahsilar-cum-land Tribunal and anr.
Appellant Advocate T.R.G. Warrier, K. Ramakumar and Sebasmen Davis
Respondent Advocate Adv. General and; L. Gopalakrishnan Poti, Adv.
DispositionAppeal dismissed
Cases ReferredTn Gonalan v. Oommen
Excerpt:
.....(2) and 77 of the act and the application for shirting was, therefore, not maintainable. (2) the land tribunal, after such inquiry as it deems fit, and on being satisfied that the applicant has complied with all the conditions mentioned in sub-section (2) or sub-section (4), as the case may be, or section 75, may pass an order requiring the kudikidappukaran to shift the kudikidappu before such date te may be specified in the order. sub-section (1) of section 77 makes it clear that the right thereunder conferred on the landholder is to apply to the land tribunal to enforce the requisition made under sub-section (2) of section 75 in the event of failure on the part of the kudikidappukaran to comply with such requisition within a period of one month from the date of receipt of a..........5957 of 1975 filed by respondents nos. i and 2 herein and quashing the order ext, p3 passed by the land tribunal no. 11, ponnani. by the said order the land tribunal had allowed an application -- o. a. no, 1212 of 1971 -- filed by the appellant herein under section 75 (2) of the act for shift-ing the kudikidappu of respondents nos. 1 and 2 from its existing site in r. s. no. 144/2 of kadavanadu amsom to another property comprised in r. s. no, 215/5 and 7a of ponnani nagaram amsom, admittedly the site of tha existing kudikidappu of respondents nos. 1 and 2 belongs to the appellant and the relief of shifting the same to the alternate site described in the petition was sought by the appellant on tha ground that he bona fide required tha property to construct a dwelling house for himself......
Judgment:

Balakrishna Eradi, J.

1. A short question concerning the interpretation of Section 75 (2) of the Kerala Land Reforms Act, 1963 (hereinafter called the Act) arises for determination in this case. In view of the importance of the said question the Division Bench before which this appeal orginally came up for hearing referred the case to a Full Bench, and that is how matter has come up before us.

2. The writ appeal is against the decision of our learned brother Vadakkel, J. allowing O. P. No, 5957 of 1975 filed by respondents Nos. I and 2 herein and quashing the order Ext, P3 passed by the Land Tribunal No. 11, Ponnani. By the said order the Land Tribunal had allowed an application -- O. A. No, 1212 of 1971 -- filed by the appellant herein under Section 75 (2) of the Act for shift-ing the kudikidappu of respondents Nos. 1 and 2 from its existing site in R. S. No. 144/2 of Kadavanadu Amsom to another property comprised in R. S. No, 215/5 and 7A of Ponnani Nagaram Amsom, Admittedly the site of tha existing kudikidappu of respondents Nos. 1 and 2 belongs to the appellant and the relief of shifting the same to the alternate site described in the petition was sought by the appellant on tha ground that he bona fide required tha property to construct a dwelling house for himself. The alternate site in R. S, No. 215/5 and 7A of Ponnani Nagaram Amsom to which the kudikidappu was proposed to be shifted, however, belonged jointly to the appellant and his brother's widow, one Pathavu alias Kun-himol. The appellant had thus only an undivided half right over that property but it was alleged that there was an agreement entered into between himself and Kunhimol for transfer of the letter's right in favour of the appellant and that pursuant thereto the property was in the sole possession of the appellant since 1970. The kudikidappukars, namely, respondents Nos. 1 and 2, opposed tha application for shifting by contending that the plea of bona fide requirement put forward by the appellant was not true and that, in any event, the prayer for shifting could not be sustained since one of the vital conditions specified in Section 75 (2) of the Act, namely, that the new site offered to the kudikidap-pukaran should be one belonging to the person who seeks the relief of shifting, Is not satisfied in this case. The Land Tribunal by its order evidenced by Ext. P3 dated 31st October, 1975 rejected the aforesaid contentions raised by respondents Nos. 1 and 2 and allowed tha appellant's application for shifting. It accordingly directed that respondents Nos. 1 and 2 shall shift their kudikidappu to the new site specified in the application within thirty days from the data of its order. Aggrieved by the said decision of the Land Tribunal respondents Nos. 1 and 2 filed O. P. No. 5957 of 1975 before this court seeking to quash Ext. P3, the principal contention raised in the writ petition being that the Land Tribunal had acted illegally and without jurisdiction in allowing the prayer for shifting notwithstanding the fact that the landholder who sought the relief of shifting had not complied with the mandatory requirement contained in Section 75 (2) that he must offer to the kudikidappukaran a new site 'belonging to himself in respect of which he was legally competent to transfer ownership and possession to the kudikidap-pukaran. Vadakkel. J., allowed the original petition holding that since at the time when the requisition of shifting was made on the kudikidappukaran by the landholder as well as at the time of filing the application under Section 77 of the Act the applicant for the relief of shifting (landholder) was legally entitled only to a half share in the alternate site offered' to the kudikidappukaran, there was no valid requisition as contemplated by Sections 75 (2) and 77 of the Act and the application for shirting was, therefore, not maintainable. In coming to the said conclusion the learned Judge relied on the ruling of a Division Bench of this court reported in Gopalan v. Oommen, 1975 Ker LT 284. The order Ext. F3 was accordingly quashed by the learned Judge. While challenging the correctness of the decision so rendered by Vadakkel, J. the appellant contends that the ruling of the Division Bench in Gopalan's case 1975 Ker LT 284, requires reconsideration and it is the said plea that has necessitated the reference of the case to a Full Bench.

3. Sub-section (1) of Section 75 of the Act lays down that no kudikidappukaran shall be liable to be evicted from his kudikidappu except on the grounds specified in Clauses (i) to (iv) thereof. However, Sub-section (2) confers on the landholder a right to require the kudikidappukaran to shift the kudikidappu to an alternate site subject to the fulfilment of the conditions laid down therein. In case the kudikidappukaran fails to comply with such requisition made by the landholder by a registered notice within a period of one month of such notice the land-holder is given a right under Sub-section (1) of Section 77 to apply to the concerned Land Tribunal to enforce compliance with the requisition and to pass an order requiring the kudikidappukaran to shift the kudikidappu before a specified date.

4. At this stage it will be convenient to extract Sub-section (2) of Section 75 and Sub-sections (1) to (3) of Section 77 of the Act :--

'75. Kudikidappukaran to have fixity:

(1).....

(2) Notwithstanding anything contained in Sub-section (1), the person in possession of the land on which there is a homestead or hut (hereinafter in this sub-section referred to as the landholder) in the occupation of a kudikidappukaran may, if he bona fide requires the land-

(a) for constructing a building for his own residence or for the residence of any member of his .family including major sons and daughters; or

(b) for purposes in connection with a town planning scheme approved by the competent authority; or

(c) for any industrial purpose, require the kudikidappukaran, to shift to a new site belonging to him, subject to the following conditions, namely :--

(i) the landholder shall pay to the kudikidappukaran the price of the homestead, if any, erected by the kudikidappukaran;

(ii) the new site shall be fit for erecting a homestead and shall be within a distance of one mile from the existing kudikidappu;

(iii) the extent of new site shall be the extent of the existing kudikidappu, subject to a minimum of three cents if with in the limits of a city or a major municipality, five cents if within the limits of any other municipality and ten cents if in any panchayat area or township;

(iv) the landholder shall transfer ownership and possession of the new site to the kudikidappukaran and shall pay to him the reasonable cost of shifting the kudikidappu to the new site.

Where the above conditions are complied with, the kudikidappukaran shall be bound to shift to the new site.'

'77. Procedure to enforce shifting of kudikidappu in certain cases :

(1) If the kudikidappukaran does not comply with the requisition made under Sub-section (2) or Sub-section (4) of Section 75 by the person in possession of the land to shaft to a new site, such person may apply to the Land Tribunal having jurisdiction to entertain an application under Section 80B in respect of the kudi-kidappu to be shifted, to enforce compliance with such requisitions :

Provided that no application under this sub-section shall be made without giving the kudikidappukaran one month's notice by registered post:

Provided further that the Land Tribunal shall not entertain any application tinder this sub-section in respect of a kudikidappu, if an order under Sub-section (3) of Section 80B allowing an application for the purchase of that kudikidappu has been passed and such order is in force.

(2) The Land Tribunal, after such inquiry as it deems fit, and on being satisfied that the applicant has complied with all the conditions mentioned in Sub-section (2) or Sub-section (4), as the case may be, or Section 75, may pass an order requiring the kudikidappukaran to shift the kudikidappu before such date te may be specified in the order.

(3) If the kudikidappukaran does not shift the kudikidappu before the date specified in the order under Sub-section (2)', the Land Tribunal shall cause the kudikidappukaran to be evicted from the kudikidappu.'

The provision in Sub-section (2) of Section 75 conferring on the land-holder a right to require the shifting of the kudikidappu subject to the conditions specified therein is by way of an exception to the general rule laid down in Sub-section (1) of the said section that no kudikidappu-karan shall be liable to be evicted from his kudikidappu except on the grounds specified in Clauses (i) to (v) of the said sub-section. When due regard is had to the fact that the primary object and purpose of the enactment is to confer fixity of tenure and immunity from eviction on tenants and kudikidappukars it is obvious that any provision by way of exception which deprives a tenant or ft kudikidappukaran of the right to fixity has to be given a strict construction.

5. The right conferred by Sub-section (2) on a landholder who bona fide requires the land for any of the purposes enumerated in Clauses (a) to (c) is to require the kudikidappukaran to shift to a new site belonging to him. Even where a landholder bona fide requires the land for any of the purposes specified in Clauses (a) to (c) he is given a right to require the kudikidappukaran to shift to a new site belonging to him only subject to compliance with the conditions mentioned in Clauses (i) to (ivj, Of them it is Clause (iv) that is material for our present purpose. That clause requires that the landholder shall transfer ownership and possession of the new site to the kudikidappukaran and shall pay to him the reasonable cost of shifting the kudikidappu to the new site. Sub-section (1) of Section 77 makes it clear that the right thereunder conferred on the landholder is to apply to the Land Tribunal to enforce the requisition made under Sub-section (2) of Section 75 in the event of failure on the part of the kudikidappukaran to comply with such requisition within a period of one month from the date of receipt of a registered notice containing such' requisition.

6. On a combined reading of Section 75 (2) and Section 77 (1) it becomes clear that the scheme of those provisions is that a valid requisition by the landholder in due compliance with the stipulations contained in Section 75 (2) and a failure on the part of the kudikidappukaran to comply with such a requisition made by the landholder by a registered notice, within one month from the date of receipt thereof, are conditions precedent for entitling the landholder to invoke the Land Tribunal's jurisdiction under Section 77 (IT. In order that a requisition should be valid under Section 75 (2) the landholder omitting the aspect of bona fide requirement with which we are not concerned in this case should require the kudikidappukaran to shift to a new site 'belonging to him'. The question for consideration is whether a property, in respect of which the landholder is a joint owner along with some other person or persons and whereto he is entitled only to an undivided share can be said to be a site 'belonging to him' for the purposes of this subsection. It was strongly contended on behalf of the appellant that a co-owner owns every part of the composite property along with others and that he is as much as a owner of the entire property as any sole owner of a property is. In support of this argument reliance was placed by counsel on the observations of the Supreme Court in Sri Ram Pasricha v. Jagannath, AIR 1976 SC 2335, and also on the following passage occur ring in Chapter 8 (Ownership), paragraph 46 of 'Salmond on Jurisdprudence' (13th edition) :--

'As a general rule a thing is owned by one person only at a time, but duplicate ownership is perfectly possible. Two or more persons may at the same time have ownership of the same thing vested in them. This may happen in several distinct ways, but the simplest and most obvious case is that of co-ownership. Partners, for example, are co-owners of the chattels which constitute their stock-in-trade, of the lease of the premises on which their business is conducted, and of the debts owing to them by their customers. It is not correct to say that property owned by co-owners is divided between them, each of them owing a separate part. It is an undivided unity, which is vested at the same time in more than one person.....

The several ownership of a part Is a different thing from the co-ownership of the whole. So soon as each of two co-owners begins to own a part of the thing instead of the whole of It, the co-ownership has been dissolved into sole ownership by the process known as partition. Co-ownership involves the undivided Integrity of what is owned.'

No doubt, generally speaking, It Is not Jurisprudentially correct to say that a co-owner of a property is not its owner. Every one of the co-owners has legal ownership over every part of the composite property. However, it is a sound principle of interpretation that if a word occurring in a statute Is capable of being understood in a narrow as also a broad sense the court has to look to the setting in which the word appears in order to ascertain the sense in which the legislature used the word. Thus, in interpreting the words 'new site belonging to Mm' used in Section 75 (2) of the Act the court has to carefully consider the context and setting In which the expression has been used by the legislature as well as the object and purpose underlying the particular provision. It is plain on a reading of Section 75 (2) that under its scheme the landholder is conferred a right to require the kudiki-dappukaran to shift to a new site belonging to him only subject to his fulfilling the conditions specified in Clauses (i) to (iv). The condition laid down inter alia by Clause (iv) is that the landholder shall transfer ownership and possession of the new site to the kudikidappukaran. This stipulation contained in Clause (iv) is an integral part of the contextual setting in which the words 'new site belonging to him' have been used by the legislature. Viewed in that setting the said expression can, in our opinion, connote only a new site in respect of which the landholder is legally capable of transferring to the kudikidappukaran ownership and possession. In other words, what is contemplated by the provision is that the landholder can require the kudikidappukaran to shift only to an alternate site in respect of which he has the legal competence to transfer ownership and possession to the kudikidappukaran. It then follows that a property which does not exclusively belong to the landholder and over which he has only an undivided interest as a co-owner or a joint tenant cannot be regarded as a site 'belonging to him' for the purposes of this sub-section.

7. Inasmuch as Sub-section (2) of Section 75 of the Act only empowers the landholder to require the kudkidappu-karan to shift to a new site 'belonging to him' it is manifest that the landholder must possess the requisite capacity to effect a transfer of ownership and possession in respect of the new site as on the date on which the requisition is made. Otherwise it will not be a valid requisition. As already noticed, it is a condition precedent for invoking the Land Tribunal's Jurisdiction under Section 77 (1) of the Act that the landholder should have served a valid requisition on the kudikidappukaran by notice despatched by registered post and there should have been a failure on the part of the kudikidappukaran to comply with such requisition within a period of one month. In fact Section 79 (1) makes it clear that the application to be made thereunder to a Land Tribunal is one to enforce compliance with the requisition made under Sub-section (2) or Sub-section (4) of Section 75 (we have not referred to Sub-section (4) of Section 75 since it is not relevant for the purpose of this case). The making of a valid requisition on the kudikidappukaran in conformity with the provisions of Section 75 (2) is thus a mandatory prerequisite for seeking relief from the Land Tribunal wider Section 77 (1). The legislature has placed this beyond all doubt by expressly providing in Sub-section (2) of Section 77 that the Land Tribunal may pass an order requiring the kudikidappukaran to shift the kudikidappu only on its being satisfied that the applicant has complied with all the conditions mentioned in Sub-section (2) or Sub-section (4), as the case may be, of Section 75.

8. In the light of what we have stated above we see no force in the contention advanced by the counsel for the appellant that the notice served by him on the kudikidappukaran calling upon the latter to shift to the alternate site belonging jointly to himself and his deceased brother's wife was a valid requisition under Section 75 (2) of the Article Equally untenable is the further argument advanced on the side of the appellant that it would be sufficient compliance with the requirement of Section 75 (2) if the landholder, who was only a co-owner in respect of the alternate site as on the date of issuance of the notice requiring the kudikidappukaran to shift, acquires full title to the property before the data on which the application under Section 77 (1) is finally taken up for consideration by the Land Tribunal. We have already pointed out that the service of a valid requisition on the kudikidappukaran calling upon him to shift to an alternate site in respect of which the landholder has legal competence to transfer ownership and possession as on the date of issuance of the requisition is a mandatory prerequisite for claiming the relief of shifting of the kudikidappa under Section 77 (1).

9. Tn Gonalan v. Oommen, 1975 Ker LT 284. a Division Bench of this court consisting of Govindan Nair. C. J. and Khalid, J. after a fairly detailed survey of the earlier rulings rendered by single Judges on the subject observed :--

'The wording of the section, Sub-section (2) of Section 75, clearly and in an unambiguous language states that the applicant or the landlord, or to be more exact and to use the language of the section, the person in possession of the land on which the kudikidappu is situated, may require the kudikidappukaran to shift to a new site belonging to him. It is, therefore, clear that the site to which the kudikidappukaran is required to shift is one that belonged to the person requiring him to shift. We see no reason either, from the subject or the context in read these words whose import, as we said, is clear, in any other manner as not to give effect to the statutory provisions.....The proviso to Sub-section (1) of Section 77 states that 'no application under the sub-section shall be made without giving the kudikidappukaran one month's notice by registered post'. The provision in condition (4) of Section 75 (2), to which we have already referred, that 'the landholder shall transfer ownership and possession of the new site to the kudikidappukarnn' and the proviso to Section 77 (1) that notice should be given one month before the application is made under Section 77 (1) clearly indicate that the requisition should be to shift to a land belonging to the landlord and that he must be in a position to transfer ownership and possession of that land'.

We are in complete agreement with the above statement of the legal position.

10. Tn the case before us, as on the date of the notice Ext. P1 (22-6-1972) issued to the kudikidappukaran by the landholder (appellant) under Section 75 (2) of the Act the appellant had only a co-ownership right over the alternate site offered to the kudikidappukaran. The petition for shifting of the kudikidappu was filed by the appellant before the Land Tribunal on 2nd July, 1972. Ext. P2 is a copy of that petition. In paragraph 3 thereof it is recited that the alternate site described in the schedule belonged Iointly to the appellant and his sister-in-law Kunhimol Umma. The appellant gave evidence as P. W. 1 before the Land Tribunal on 20-12-1973. In his deposition he has stated that the alternate site offered by him to the kudikidappukaran is a property jointly owned by himself and his sister-in-law. It was only on 1st January, 1974 after the evidence was closed before the Land Tribunal that the appellant obtained a sale deed from Ms sister-in-law Kunhimol Umma and thereby acquired full proprietorship over the alternate site. Such being the facts the learned single Judge was perfectly right in holding that there was no valid requisition as contemplated by Section 75 (2) read with the first proviso to Section 77 (1) of the Act and that hence the application filed by the appellant before the Land Tribunal was not maintainable.

11. The conclusion that emerges from the foregoing discussion is that the decision of the learned single Judge does not call for any interference and that this writ appeal is devoid of merits. This Appeal is accordingly dismissed with costs.


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