Govindan Nair, J.
1. I have had the benefit of reading the Judgment of Isaac, J. I agree with the conclusion reached in that judgment. But I regret I am unable to agree with the view that there is no customary law in the matter of inheritance applicable to the Valan Community. In Thommen v. Konnunni, 1955 Ker LT 564 it was decided that a daughter is not an heir and in Kuttan v. Neela-kandan, 1966 Ker LT 790 it was ruled that in the Valan Community Marumakka-thayee heirs do not exclude the Makka-thayee heirs and that the Valans follow the Makkathayam system of inheritance. Both these decisions proceed on the basis that in the matter of inheritance the Valan Community has a customary law and the Hindu Law is not applicable. Reliance has been placed on the History of Kerala by Mr. Padmanabha Menon, the Cochin State Manual by Achutha Menon, the Cochin Tribes and Castes by Ananthakrishna Iyer, Castes and Tribes of Southern India by Edgar Thurston and the Travancore State Manual by Velu Pillai and other publications. These are not of course treatises on law. But they do give, to the extent to which they go, the practises and customs followed by the castes and tribes dealt with therein and thus afford '.....such reasonably clear proof as the court will, in the circumstances of each case, insist upon for proving any other fact'. (vide 25 Cochin 584, 39 Cochin 19). In this connection a passage from the decision in 1955 Ker LT 564 may usefully be extracted.
'I am prepared to assume that the Hindu Law as such is not applicable to the Valans and that as a result the standard of proof required to establish a rule of customary law in their community 'need not come up to the standard required for making out a custom in derogation of a known body of antecedent law postulated to be generally binding such as the Hindu Law or the Mahomedan Law' and that all that is required 'is such reasonably clear proof as the court will, in the circumstances of each case, insist upon for proving any other fact'. See 25 Cochin 584 and 39 Cochin 19. In other words, as stated in the latter case the evidence adduced in support of the custom need not be 'subjected to those well known tests which are applied to the case of an alleged custom contrary to, or in derogation of, the ordinary law, but should be viewed merely as evidence adduced to show what is the rule of the customary law itself and 'in any enquiry into what the customary law of the parties is we do not start with any bias in favour of a particular view -- that daughters are or are not entitled to suc-ceed along with the sons -- and see, whether the evidence adduced is sufficient to displace it. The enquiry itself is -- what is the customary law of the community, and this has to be ascertained, like any other question of fact on the evidence in the case. If the court comes to the conclusion that a certain customary law has been proved, then that is their law which the court must apply to them. If not, then the court will, in the absence of proof of what their law is, apply to them rules of justice, equity and good conscience. This in fact, is the ratio of the decision in Kochi v. Raman, 21 Cochin 1 (FB).'
2. In the case of the Valan Community when it is seen on a reference to the publications referred to that there is a customary law of inheritance it is the above passage that is apposite and not that in 1967 Ker LT 395 = (AIR 1967 Ker 259) that a custom can receive the recognition of the court only when there is satisfactory proof of usage.
'....so long and invariably acted upon in practice, as to show that it has, by common consent, been submitted to as the established governing rule of the particular family, class, district or country; and the course of practice upon which the custom rests must not be left in doubt, but be proved with certainty.'
3. Relying on the passages from the publications referred to in the two decisions, 1955 Ker LT 564 and 1960 Ker LT 790, and on these decisions, the correctness of which, with respect, I do not see any grounds to doubt, particularly at this distance of time, it has to be held that according to the customary law of inheritance in the Valan Community a widow does not get any share in the estate of her deceased husband and does not even get a right of residence.
4. It is however not necessary to express any final opinion on the question in this case. In the light of what is stated above the Hindu Law cannot apply and assuming that the customary law has not been established on the question whether a widow inherits her husband's property, the principles of justice, equity and good conscience must apply. On this principle if the widow is to get a share equal to that of a son, she will get a share in the homestead left by her deceased husband. Would that be sufficient to take her out of the definition of the term kudikidappu-karan' in Section 2 (25) of the Kerala Land Reforms Act? I think not. The definition is in these terms:
'2 (25). 'Kudikidappukaran' means 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-- (a) who has been permitted with or without an obligation to pay rent by a person in lawful possession of any land to have the use and occupation of a portion of such land for the purpose of erecting a homestead; or
(b) who has been permitted by a person in lawful possession of any land to occupy, with or without an obligation to pay rent, a hut belonging to such person and situate in the said land; and 'kudi-kidappu' means the land and the homestead or the hut so permitted to be erected or occupied together with the easements attached thereto:'
The expression 'homestead' used in the first part of the first paragraph of the definition will have to be understood in the context according to its plain ordinary meaning; 'dwelling house'. The application of the definition in clause (b) of Explanation II will lead to anomalies.
5. The question then is can the first defendant be said to have a homestead. Such a view is not possible even if it is assumed that the first defendant has a right of residence in the dwelling house left by her husband or even if she is en-tilled to a share therein as an heir. A person can be said to have a 'homestead' only when that person has a homestead of her own. With respect I am unable to agree with the view expressed by Raghavan, J. in the judgment under appeal and in the decision in 1966 Ker LT 790 that an interest in a homestead is sufficient to take a person out of the definition in Section 2 (25) of the Kerala Land Reforms Act.
6. The appeal is allowed and the suit is dismissed. The parties will Dear their costs throughout.
This is an appeal under Section 5 of the Kerala High Court Act, 1958, from the decision of a learned Single Judge of this Court in a Second Appeal in Pennamma v. St. Paul's Convent, 1966 Ker LT 762. The appeal arises out of a suit for eviction of the two defendants from a land which belongs to the plaintiff.
8. The appellant is the first defendant. She is a widow belonging to the community of Valans; and the second defendant is her son through her deceased husband Sanku. Admittedly they are residing in a house which the first defendant's father constructed in the said land with the permission of the plaintiff, and which he bequeathed to her under his last will. The plaintiff would not be entitled to eviction, if the first defendant is a 'Kudikidappukaran' as defined in Section 2 (25) of the Kerala Land Reforms Act, 1963. It is alleged in the plaint that the defendants have their own properties and house, and the plaintiff is, therefore, entitled to get them evicted. In other words, the plaintiff sought eviction on the ground that the defendants are not 'Kudikidappukars'. The first defendant alone contested the suit. She pleaded that she was not possessed of any property, and that she is a 'Kudikidappukari' entitled to the protection' of the above Act.
9. The defendants admitted In their evidence that the second defendant's father, Sanku, owned a land having an extent of 31/4 cents and a house therein. Within the limits of the Mattancherry Municipality at the time of his death. But they stated that the first defendant had no right in the above property for two reasons. One is that she was divorced by Sanku, long before his death, and 'he Other is that, under the law applicable to the Valans, a widow has not got any right in her husband's property. The case o divorce was found to be untrue by all the Courts below. Admittedly, there is no evidence which deserves consideration, as to the existence of any customary law in the community of Valans relating to the rights of a widow in her husband's property. The trial Court held that in the absence of any such evidence, 'Hindu Mitakshara law as such must be deemed to apply', that under that law, she may have only a right of residence in the husband's house, and that such a right would not deprive the first defendant of her right as a Kudikidappukari in the suit land. Accordingly the suit was dismissed.
10. The first appellate Court differed from the above view. It held that Hindu law as such would not apply to the Valans; that, in the absence of any custom indicating a particular line of devolution of property, the principles of justice, equity and good conscience would apply, that according to the said principles, the widow would at least have a right of residence in her husband's house, and that a person having such a right would not be a Kudikidappukari. In this view of the matter the first appellate Court decreed the suit.
11. In second appeal, the learned Single Judge held that the Hindu law applies to the Valans, under which the first defendant was entitled to a right of residence in her deceased husband's house, and that a person having such a right would not be a Kudikidappukaran. Accordingly he agreed with the conclusion of the lower appellate Court, though for a different reason.
12. All the three Courts Found that the first defendant has a right of residence in her deceased husband's house. The trial Court held that such a right would not deprive her of the right of a Kudikidappukaran, while the first appellate Court and the learned Single Judge differed from the above view. The trial Court and the learned Single Judge of this Court held that the Hindu law applies to the Valans, while the first appellate Court held to the contrary; but no one has stated any reasons. Before us, it was contended by counsel for the first defendant, that, in the absence of any custom to the contrary, the Hindu law applies to the Valans, as they are Hindus, that under the said law, the first defendant had no manner of right in the property left by her deceased husband, which was his self-acquisition, and that she was, therefore, a Kudikidappukari. It was also contended that the plaintiff can succeed only if it is established that the first defendant has a homestead or sufficient extent of land as mentioned in Section 2 (25) of the Kerala Land Reforms Act, and that, for that purpose, it was not enough if it establishes that the first defendant's husband died leaving property, but it must also satisfy the Court as to what is the law under which she would inherit her husband's property. Admittedly, the only property which the first defendant's husband owned at the time of his death was the one which he purchased as per sale deed Ext. P-6 dated 6-6-1117 and the house which he subserviently constructed therein. The contention that the widow would have no right in the said properly, as it was a self-acquisition of the husband has been advanced before us for the first time. But it cannot be rejected on that ground as it is a pure question of law. Alternatively, it was contended that, even if the Hindu law did not apply and she was entitled to right of residence in her deceased husband's house or she had a share in his property along with her son under the principles of justice, equity and good conscience, such a right would not deprive her of her right as a Kudikidappukari under the Kerala Land Reforms Act. The first two contentions relate to the question whether the first defendant has any right in her deceased husband's property; and this may be considered presently.
13. In Morcillia Lewis v. Nani, 1954 Ker LT 631, a Division Bench of the Travancore-Cochin High Court held, on the authority of a passage appearing at page 82 of Mayne's Treatise on Hindu Law and Usage, 1953 Edition, that Hindu Law applies to all Hindus by birth as well as to Hindus by religion, except to those who are governed by customary laws. Therefore, any claim in derogation of the rule of the Hindu law can only be sustained under a custom which has to be pleaded and established, unless it be one recognised beyond controversy as in the case of those who follow the Marumakka-thayam or the Aliyasanthana law. That case related to the Kammal as (blacksmiths) in Cochin, wherein a married daughter claimed share in the property of her deceased father.
14. In Chakki Amma v. Sundara Iyer, 1955 Ker LT 101 another Division Bench of the Travancore-Cochin High Court, consisting of Koshi C. J. and San-karan J., held that in the case of a Hindu community governed by custom or usage and not by the strict principles of Hindu Mitakshara law, the principles of justice, equity and good conscience would apply, in the absence of proof of any custom. That case related to the Ezhavas in Cochin; and the question was whether married daughters were entitled to share in the father's property along with unmarried daughters. In his judgment delivered on behalf of the Court, Koshi C. J. stated:
'It is well settled by a series of decisions of the Cochin High Court that before the enactment of the Cochin Thiyya Act, the Makkathayam Thiyyas (commonly known in the State as Ezhavas) were governed by custom or usage and not by the strict principles of Hindu-Mithakshara Law. If custom was not proved in a particular case courts used to decide questions of inheritance etc. arising in the case of such parties, according to principles of justice, equity and good conscience. Practically all the decisions bearing on the point are referred to in (1124) 40 Cochin 179 at p. 189 (FB).'
15. The Full Bench decision of the Kerala High Court in Narayani Amma v. Sankara Pillai, 1960 Ker LT 1195 = (AIR 1961 Ker 149 (FB)), was concerned with the question of the law of inheritance applicable to Sree Bandara Chettis belonging to the Trivandrum District. The Court referred to Scctipn 18 of the Tra-vancore Civil Courts Act, and held that, by virtue of the said provision and the corresponding provisions contained in the Travancore-Cochin Civil Courts Act as well as the Kerala Civil Courts Act, the Court was bound to apply the rules of Hindu law, unless there was a custom modifying the same, since the parties were Hindus. Section 18 of the Travaneore Civil Courts Act reads:
'Where in any suit or proceeding, it is necessary for any Court under this Regulation to decide any question regarding succession, inheritance, marriage or caste, or any religious usage, or institution,--
(a) the Mohommadan law in cases where the parties are Mohommadans, and the Hindu law in cases where the parties are Hindus, or
(b) any custom (if such there be) having the force of law and governing the parties or property concerned,
shall form the rule of decision, unless such law or custom has, by legislative enactment, been altered or abolished,
(c) in cases where no specific rule exists, the Court shall act according to justice, equity and good conscience.'
16. There is a similar provision in Section 24 of the Travancore-Cochin Civil Courts Act, 1951; but there is no such corresponding provision in the Kerala Civil Courts Act, 1958. Perhaps the above provision may be justified as one laying down the law in respect of the matters mentioned therein, and not one which fetters the duty of the Court to decide those matters according to law. Whatever that may be, this Court is not concerned with it, as such a provision is not contained in the Kerala Act, as wrongly thought by the Full Bench. I do not also think that the above statutory provisions lays down a law contrary to the principle envisaged in 1955 Ker LT 101. The said provision only says-
(a) apply the Mohammadan law to Mohammadans and the Hindu law to Hindus;
(b) if there is a custom having the force of law, apply that to all parties; and
(c) in cases where no specific rule exists, namely the Mohammadan or the Hindu law as such does not apply, or a custom having the force of law does not exist, apply the principles of justice, equity and good conscience.
All that the decision in 1955 Ker LT 101, said was that the Hindu law as such did not apply, a custom having the force of law was not established, and that, therefore, the matter would be governed by the principles of justice, equity and good conscience,
17. I shall quote one passage from a Full Bench decision of the Cochin Chief Court in 21 Cochin 1 (FB), which, in my view, contains a very clear statement of tbe correct legal position. That case related to the claim of an Ezhava lady in Cochin for a share in her deceased father's estate. The question posed was whether a party who claims a share by inheritance in the property of a deceased person can succeed in a case where there is no law governing the succession and the only law is the custom prevalent among them, unless that party establishes that custom. The Court said:
'Even in the absence of proof of a custom, this Court is bound to declare the law, when there is a question of inheritance before it. To deny the plaintiff's right to inherit is practically to declare the defendant's right. Since then as the Court has to choose between the plaintiff and the defendant, it will make its choice according to justice, equity and good conscience in the absence of an established law governing the inheritance or a custom having the force of law.'
18. This decision was followed by the Division Bench of the Travancore-Cochin High Court in 1955 Ker LT 101 already referred to, and also by M. S. Menon J. in another decision of the same Court in 1955 Ker LT 564. In the latter decision, the learned Judge said: --
'The enquiry itself is what is the customary law of the community; and this has to be ascertained like any other question of fact on the evidence in the case. If the Court comes to the conclusion that a certain customary law has been proved, then that is the law, which the Court must apply to them. If not, then the Court will, in the absence of proof of what their law is, apply to them rules of justice, equity ana good conscience. This, in fact, is the ratio of the decision in 21 Cochin 1 (FB).'
19. Reliance has been placed by counsel for the first defendant on this decision in support of his contention that a widow under the customary law applicable to the Valans in Cochin is not entitled to any right in her husband's property. In that case, the question was whether a daughter was entitled to a share along with her brothers in the estate of their deceased father, who belonged to the community of Valans in Cochin. The learned Judge negatived her claim, holding that it was well established on authorities that a daughter belonging to the above community had no right in her father's estate. All the authorities he relies on for the above conclusion are mentioned in the following passage of his judgment:
'The Valans form one of the two important fishing castes of Cochin, the other being the Arayan or Kaclalarayan and according to Mr. Padmanabha Menon in his history of Kerala, Vol. III, P. 468:--
'While the Valans follow a mixed form of inheritance the Arayans observe Makkathayam. The Valans divide their self-acquired property equally among their nephews or Anantharavans and sons.'
Mr. Padmanabha Menon was one of the leading lawyers of Cochin and the book was edited and published after his death by another eminent lawyer, the late Mr. T. K. Krishna Menon. There can be no doubt that if a custom as alleged by the appellant obtained in the community it would have found specific mention and cannot attribute the absence of a reference to such a custom to anything other than the absence of the custom itself.
There are references to the rules of inheritance obtaining among the Valans at p. 204 of the Cochin State Manual by Mr. C. Achutha Menon, at p. 236 of Volume I of the Cochin Tribes and Castes by Mr. Ananthakrishna Iyer and in Mr. Iyer's Note on Valans in Volume VII of Thurston's Castes and Tribes of Southern India. There is nothing in these passages also which will in any way lend support to the existence of the custom as alleged in this case.'
20. It would be useful in this context to notice another decision of the Kerala High Court by Raghavan J. in 1966 Ker LT 790. That case related to the Valans of Travancore; and the controversy was whether the law of inheritance applicable to that community was Makkathayam or Marumakkathayam. The learned Judge referred to the above mentioned decision of M. S. Menon J. and relied on same treatises. He also referred to the Travancore State Manual by Velu Pillai and Castes and Tribes of Southern India by Edgar Thurston, who only follows Mr. L. K. Anantha Krishna Iyer, and to the Census Report of 1931. The learned Judge then
'What appears from the aforesaid works is that Arayans, Marakkans, Mukku-vaus, Nulayans and Valans are fishermen communities; and that most of them follow Makkathayam and some of them a mixed system of Makkathayam and Marumakkathayam. None of them is said to follow Marumakkathayam alone as claimed in the present case. The works referred to above also show that Valans, with whom I am directly concerned in this case, follow Makkathayam and probably a mixed system of Makkathayam and Marumakkuthaym. In this case the claim of the plaintiffs is that the law applicable is Marumakkathayam; while the defendants claim that the system of inheritance applicable is Makkathayam. I am inclined to think, in the light of the above discussion, that the law applicable is Makkathayam.'
21. Both the learned Judges seem to agree that the Hindu law as such does not apply to the Valans. I respectfully agree with the above view. There is neither authority nor any valid reason to hold that the Valans are governed by the Hindu law. The view taken by tbe learned Judge in the decision under appeal cannot, therefore be sustained.
22. If the Hindu law does not apply, it follows on the authority of the decisions which I have cited above, that the parties would be governed by the customary law, if any, which is set up and proved, and in the absence of any such proved custom, by the principle of justice, equity and good conscience. If the customary law is well established on authorities, there is no question of again establishing it by evidence. Speaking with great respect. I am slow to accept the treatises relied on by M. S. Menon J. or Raghavan J. in the two decisions referred to above as authorities which establish the customary law applicable to any of the communities dealt with therein. The learned authors themselves have no such claim. They deal only in a general manner about the numerous castes and tribes in Kerala, who follow different religions and different laws with so many variations. Mr. K. P. Padmanabha Menon in his History of Kerala says as follows about the Valans:
'They have but little property which they can call their own, being but day labourers and fishermen, acquiring something sufficient for the needs of the day and eking out a somewhat miserable existence.' -- (Vol. III, page 468).
All the learned authors are agreed that this was the social and economic position of the Valans in Kerala. In such a community, there is very little scope for having an established customary law regarding succession. None of the learned authors relies on any instance where any definite rule of succession has been followed, M. S. Menon J. has stated that Mr. K. P. Padmanabha Menon and Mr. T. K. Krishna Menon were very eminent lawyers of Cochin, and that the statement appearing in Mr. K. P. Padmanabha Menon's book which was edited by Mr. Krishna Menon should be taken as authority regarding the customary law of inheritance applicable to Valans. Mr. Padmanabha Menon's treatise is a monument of labour, learning and industry. But it is not a treatise on the law applicable to any of the castes and tribes dealt with therein, though there is passing reference to that mailer in appropriate places. I am not prepared to treat a statement appearing in such a book as laying down the correct law of succession applicable to the Valans, by virtue of the fact that Mr. Padmanabha Menon and Mr. Krishna Menon were eminent lawyers of Cochin. There is nothing to show that they were specialised in this branch of the law or that they bad any special knowledge about this community.
23. None of the learned authors relied on by M. S. Menon J. or Raghavan J. has stated with any amount of defini-teness what the law applicable to the Valans is. M. S. Menon J. held on the authority of Mr. Padmanabha Menon's History of Kerala that the Valans follow a mixed form of inheritance, and that a daughter has no right in her father's property, while Raghavan J. held that the law applicable to the Valans is Makkathayam, which docs not necessarily exclude the daughters from inheriting along with the sons. As pointed out by Mathew J. in 1967 Ker LT 395 = (AIR 1967 Ker 259), before an alleged custom can receive the recognition of the Court and so acquire legal force, there must be satisfactory proof of usage, so long and invariably acted upon in practice as to show that it has, by common consent, been submitted to as the established governing rule of the particular family, class, district or country; and the course of practice upon which the custom rests must not be left in doubt, but be proved with certainty. The treatises relied on by M. S. Menon J. in 1955 Ker LT 564, or by Raghavan J. in 1966 Ker LT 790, cannot, therefore, be considered as authorities which lay down any recognised customary law of succession applicable to the Valans of Cochin or Travan-core. There is also no evidence in the instant case worthy of consideration on that question. The matter should, therefore, be governed by the principles of equity, justice and good conscience.
24. In applying the above principles, Courts have acted according to the following rule. If a community is governed by a statutory law which came into force after the succession opened, the provisions in the statute would be applied on the assumption that the law enacted by the legislature is in consonance with the custom accepted or acted on by the community or that it is in accordance with the principles of justice, equity and good conscience. If there is no such statutory law, the rule that equality is equity would be applied. In the case of the Valans, there is no statutory law governing succession. Therefore, the only rule that can be applied is the rule of equality. This is the principle followed by the Full Bench of the Cochin Chief Court in 21 Cochin 1 (FB). Accordingly the first defendant in this case would be entitled to share her deceased husband's property equally along with her son, who is their only issue.
25. The next question for consideration is whether by virtue of the fact that she succeeded to a half share in her husband's property, she would cease to be a Kudikidappukari as defined in Section 2 (25) of the Kerala Land Reforms Act, 1963. That depends on a true interpretation of the said definition. It reads:
'Kudikidappukaran' means 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 pan-chayat area or township, in possession either as owner or as tenant, on which he could erect a homestead and--
(a) who has been permitted with or without an obligation to pay rent by a person in lawful possession of any land to have the use and occupation of a portion of such land for the purpose of erecting a homestead; or
(b) who has been permitted by a person in lawful possession of any land to occupy, with or without an obligation to pay rent, a hut belonging to such person and situate in the said land and 'kudikidappu' means the land and the homestead or the hut so permitted to be erected or occupied together with the easements attached thereto:'...
The definition has a proviso and six Ex-lanations; it is not necessary to read them for the purpose of tbis case, except Clause (b) of Explanation II, which defines 'homestead'. That definition is as follows:
'homestead' means, unless the context otherwise requires any dwelling house erected by the person permitted to have the use and occupation of any land for the purpose of such erection, and includes any such dwelling house reconstructed by the Kudikidappukaran in accordance with the provisions of Section 79.'
26. There is no case that the first defendant has got sufficient land as mentioned in Section 2 (25) of the Act on which she could erect a homestead. The only contention is that she has a homestead as she is entitled to a share along with her son in the house left by her deceased hus-band or at least to a right of residence in the said house. The word 'homestead' is plain enough; and it means a dwelling house. But its definition has caused confusion, according to which only a dwelling house erected in another person's land would be a homestead. The dwelling house of a person situate in his own land, or a dwelling house constructed by him in such a land would not be a 'homestead' as defined in the Act. The word 'homestead' appears twice in the first part of the definition of 'Kudikidappukaran'; and if the said word is given its defined meaning, it would lead to absurd results. It is clear from a reading of the definition of 'Kudikidappukaran' that the word 'homestead' is used in the first part of the definition in its plain ordinary meaning; and it is irrelevant whether the homestead is situate in his own land or in another person's laud.
27. It is Section 75 of the Kerala Land Reforms Act, 1963, that gives protection to a Kudikidappukaran from eviction. That Section also states the grounds under which a Kudikidappukaran can be evicted. In holding that the first defendant was not entitled to protection under the above provision of the Act, the learned Single Judge said:
'Even if, for the sake of argument, it is accepted that the widow is entitled only to a right of residence in the homestead left by her deceased husband, still it cannot be said that she has no sufficient interest in the homestead so as to obtain benefits as Kudikidappukari under Act I of 1964. It is not so much the right of alienation the widow has in the homestead that has to be considered; but it is her right to live in the homestead that is the relevant question for consideration. The Kudi-kidappu right is conferred by Aet I of 1964 on persons who have no homesteads or lands in their possession on which they can erect homesteads. In view of this clear intention of Act I of 1964, it is not possible to accept the contention that the widow's right in the property left by her deceased husband is not an alienable one as owner. The object of the definition is clear; it is to exclude such rights as those of a mortgagee in possession, who may be redeemed. The possession of another homestead by the person who claims benefits as a Kudikidappukaran should not be precarious in the sense that he may be deprived of it against his will. The widow's right is not such a right. Again, it cannot even be said that her right is not as owner. It may be said that she is a joint owner with her son with no right to claim partition. The right to claim partition or to divide the properties is available only to the sons; and when that right is exercised, the widow is also entitled to a share as owner in the properties left by her deceased husband.'
28. The learned Judge took more or less the same view in Vasudevan v. Sreemathi Amma, 1966 Ker LT 594, wherein he held that a person who has got a joint ownership of a family house would not be entitled to the protection under Section 75 of the Act. The correctness of the above view has been questioned in this appeal; and the point for determination is whether a person who has got a joint right of ownership or a right of residence along with others in a dwelling house can be said to be one who has no homestead within the meaning of Section 2 (25) of the above Act. If by virtue of that joint right, it can be said that he has a 'homestead', he would not be a Kudikidappukaran; and he would be liable for eviction. According to the learned Judge the Act does not give the protection of a Kudikidappukaran to a person who has got such a right in a dwelling house.
29. I regret I am unable to agree with the above view. 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 Section 2 (25) in his possession as owner or as tenant on which he can erect a dwelling house. The question may airse whether a person, who would get sufficient land on partition of a property in which he has a right as joint owner or as tenant-in-common, can be said to be one who has no land in his possession as owner or as tenant for erecting a homestead. That question does not arise for decision in the instant case. We are only concerned with a joint right of ownership or residence in a homestead. If a person having such a right can be said to have a homestead, a member of Maru-makkathayam tarwad or joint Hindu family having a tarwad or family house, would not be a Kudikidappukaran, as he has the right to reside in the common house. In the case of a male member of a Maruma-kkathayam tarwad, he can reside in the tarwad house; but he has no right to per-mit his wife and children to reside along with him in that house. In the case of a female member, she is not entitled to permit her husband to reside in the tarwad house. The position of a member of a joint Hindu family or of a person belonging to any other community who has got a joint right along with other members of the family in a common family house is not so bad as that of a member of a Marumakkathayam tarwad. All the same, he would not be a Kudikidappukaran, as he can reside in the family house along with the other members of the family. Take the case of a Christian, Mohammadan or a Makkathayec Ezhava, who is a Kudikidappukaran and whose father has a homestead wherein the father is residing with his other children. When the father dies, the son inherits a share in the father's homestead, and he would thereupon cease to be Kudikidappukaran and he would forfeit his kudikidappu, though there may be scarcely any room for him to live in the house left by his deceased father. If joint right of ownership or residence in a dwelling house would disqualify a person to be a Kudikidappukaran, such calamitous results would follow. In my view, the language employed in Section 2 (25) of the Act, which defines 'Kudikidappukaran', does not yield to such a construction. The provision is intended to give protection to a person who has not got a homestead of his own, or sufficient land on which he can construct one. The homestead must be one wherein he can reside to the exclusion of all others. The right that the first defendant has got in her deceased husband's house is not such a right. She would, therefore, be a Kudikidappukari entitled to the protection of the Act.
30. In the result, the appeal is allowed; and the suit is accordingly dismissed. In the circumstances of the case, the parties are directed to bear their own costs throughout.