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Vastian Louise Vs. Andrews and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKerala High Court
Decided On
Case NumberO.P. No. 5345 of 1972
Judge
Reported inAIR1973Ker235
ActsKerala Land Reforms Act, 1964 - Sections 75(2)(1)
AppellantVastian Louise
RespondentAndrews and anr.
Appellant Advocate M.N. Sukumaran Nayar,; N.A. Muraleedharan and; B. Raman
Respondent Advocate George Vadakel and; Varghese Kalliyat, Advs.
DispositionPetition dismissed
Excerpt:
.....to shift kudikidappu to another property giving price of homestead - petitioner entitled to cost of shifting kudikidappu to new site - petition liable to be dismissed. - - in the proceedings the petitioner's contention was that the landlord does not require the property in which the kudikidappu is now situate for any purpose mentioned in the act, and secondly, he has got some interest in the property on the basis of the udampady executed between him and the 1st respondent in 1962. as per that udampady the petitioner is entitled to the usufructs of two cocoanut trees and also a right to set 30 cocoanuts from the compound during every cropping and also to take all the husks of the cocoanuts plucked during the best cropping in an year. ) this will clearly show that as..........has to be shifted he is entitled to the value of the homestead and also rs. 300/- as reasonable cost of shifting the kudikidappu. the land tribunal negatived these contentions. it was found that the land owner is entitled to have the kudikidappu shifted to another property. the right which the kudikidappukaran was enjoying was held to be a right which was incidental to or customary to his occupation of the homestead as a kudikidappukaran and therefore he cannot resist the shifting to another property. on so finding the land tribunal found that the value of the homestead will come to rs. 216-50 and the shifting charge was determined at rs. 15/-. the land owner was directed to deposit this amount within two months from the date of the order and also produce the draft sale deed of the.....
Judgment:
ORDER

G. Viswanath Iyer, J.

1. This original petition is filed by 1st Respondent in O. A. No. 65 of 1972 on the file of the Principal Land Tribunal. Kanjikuzhi. The petitioner is a kudikidappukaran in the property belonging to the 1st Respondent in this original petition. The 1st respondent filed a suit to get the kudikidappu shifted to another property belonging to the 1st respondent as provided for in Section 75 Of the Land Reforms Act (Act 1 of 1964). Pending that suit the Land Reforms Act was amended by Act 25 of 1971. As per this amendment the power to decide the question of shifting the kudikidappu was vested with Land Tribunals constituted under Section 7 of the amended Act and therefore the suit was transferred to the Tribunal under Section 23 of the said Act On the basis of this provision the suit was transferred to the Tribunal. In the proceedings the petitioner's contention was that the landlord does not require the property in which the kudikidappu is now situate for any purpose mentioned in the Act, and secondly, he has got some interest in the property on the basis of the Udampady executed between him and the 1st Respondent in 1962. As per that Udampady the petitioner is entitled to the usufructs of two cocoanut trees and also a right to set 30 cocoanuts from the compound during every cropping and also to take all the husks of the cocoanuts plucked during the best cropping in an year. This right, it is alleged, cannot be taken away by the proceedings for shifting the kudikidappu and if for any reason the kudikidappu has to be shifted he is entitled to the value of the homestead and also Rs. 300/- as reasonable cost of shifting the kudikidappu. The Land Tribunal negatived these contentions. It was found that the land owner is entitled to have the kudikidappu shifted to another property. The right which the kudikidappukaran was enjoying was held to be a right which was incidental to or customary to his occupation of the homestead as a kudikidappukaran and therefore he cannot resist the shifting to another property. On so finding the Land Tribunal found that the value of the homestead will come to Rs. 216-50 and the shifting charge was determined at Rs. 15/-. The land owner was directed to deposit this amount within two months from the date of the order and also produce the draft sale deed of the property proposed to be conveyed to the kudikidappukaran to which he is toshift It is this that is questioned in this original petition.

2. The first contention that is raised by the petitioner's counsel is that the petitioner is entitled to certain rights in the property as per the registered Udampady entered into between him and the 1st respondent in the year 1962. The circumstances under which that Udampady was executed are stated in that Udampady itself a copy of which is filed by the 1st Respondent as Ext. R-4. The 1st Respondent alleging that the petitioner is interfering with his possession of the property and also misappropriating the yield from the property, filed a suit. O. S. No. 477 of 1961 on the file of Shertallai Munsiffs Court. That suit was compromised on the execution of the Udampady referred to earlier. In that Udampady the filing of the suit and the understanding arrived at between the parties are narrated and then it is stated that on receipt of Rs. 200/- the petitioner herein has relinquished all his claims for value of improvements and other rights in the property and he has no objection to an order of injunction being passed as one of the terms of the plaint. It is further stated that he will continue to reside in the building put up by him in it as Adakudi. The right which he has as an Adakudi is stated in the document thus:-- (Original in Malayalam omitted --Ed.)

This will clearly show that as incidentalto his residence in the property he will take these articles and he will have no other right in the property. He himself has understood this right as a customary right mentioned in Section 79-A of the Act and stated so in his written statement filed in the suit for shifting. The moment he shifts from the premises this incidental right also will naturally vanish. He cannot refuse to shift from the premises on the basis of these terms. Therefore, the Land Tribunal was correct in coming to the conclusion that he is bound to shift to another property of the 1st Respondent if the 1st Respondent satisfies the conditions mentioned in Section 75 (2) of the Act.

3. The next contention raised by the petitioner is that he has not been awarded the reasonable cost of shifting the kudikidappu to the new site. The Land Tribunal fixed the value of the building belonging to the petitioner at Rs. 216.50, directed payment of that and also another sum of Rs. 15/- as shifting charges for transporting the household utensils. In so doing the Land Tribunal observed thus:--

'The shifting charges contemplated in the Act are the charges for shifting the 'Kudikidappu'. When once the cost ofthe homestead is paid to the kudikidappukaran the property becomes that of the land owner and the kudikidappukaran cannot remove the same after receiving the cost. The removing and constructing the house is therefore out of question. The shifting charges can only be the cost of shifting the utensils in the house of the kudikidappukaran. In other words the kudikidappukaran is not entitled to both the cost of the house as well as the charges for dismantling and reconstructing the same in the new site. If the cost of the house is paid to the kudikidappukaran he is entitled only to the shifting charges of the utensils. Hence in the present case the 1st respondent is entitled to Rs. 216.50 towards the cost of the building and Rs. 15/- as shifting charges for transporting the household utensils.'

According to the petitioner, besides the cost of the house he is entitled to a sum of Rs. 100/- towards the shifting charges as reported by the commissioner. The Commissioner in his report mentioned that Rs. 100/- will be required towards shifting charges of the kudikidappu. Respondent's counsel supported the reasoning of the learned Land Tribunal and contended that as the petitioner is getting Rs. 216.50 as the price of the homestead as provided for in Section 75 (2) (1) and in arriving at this value as the Commissioner has taken into account the price of the materials and the labour charges for construction another amount by way of labour charges for constructing the homestead in the new site cannot be granted. But the Act provides for payment of a reasonable cost of shifting the kudikidappu to the new site. That expression 'reasonable cost of shifting the kudikidappu' is very wide and takes within its fold the cost of shifting the two types of kudikidappus i.e. (1) kudikidappus with a homestead and (2) with a hut belonging to the owner of the land. The Act requires the kudikidappukaran to shift his residence from the old site to the new site. Everything required to do that will have to be reckoned in fixing the reasonable cost of shifting the kudikidappu. In a kudikidappu with a hut only the reasonable cost may include the cost of dismantling the hut and constructing one in the new site. The fact that the price of the homestead is paid for as required under Clause (i) of the Section may be taken into account in arriving at the reasonable cost of shifting the kudikidappu of the first type. But the price of the homestead paid will not be sufficient for the kudikidappukaran to put up a homestead in the new site unless the labour charges of construction of a similar sized homestead in the new site is also paid. Inother words In a case where the price of the homestead is paid to the kudikidappukaran he must be given also the labour charges of constructing a homestead in the new site. That will be comprehended within the expression 'reasonable cost of shifting the kudikidappu'. The Land Tribunal was not correct in not awarding to the petitioner the cost of shifting the kudikidappu amounting to Rs. 100/-. Therefore, the petitioner is entitled to get, over and above what has been awarded by the Land Tribunal, a sum of Rs. 100/- more towards the cost of shifting the kudikidappu to the new site. This amount will have to be paid by the 1st respondent before the petitioner is asked to shift to the new site. The 1st respondent will deposit this amount also over and above what has been directed to be deposited within a month from this date. Subject to this modification in the order of the Land Tribunal (Ext. P-1) the original petition is dismissed in all other respects. There will be no order as to costs.


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