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Damodaran v. Vasukutty
Concise Analytical Summary of the Opinion
Factual and Procedural Background
The plaintiff (respondent) sued for eviction of the 1st defendant and his wife (the 2nd defendant) from a dwelling on the suit property. It is admitted that the 1st defendant constructed the dwelling with the permission of the plaintiff's predecessor-in-interest and was residing there with his wife. The trial court decreed the plaintiff's suit and the lower appellate court confirmed that decree. The lower courts rejected the 1st defendant's claim to kudikidappu (residential) rights on the ground that the 1st defendant and his three brothers jointly owned a common property amounting, after deduction for an existing kudikidappu, to 45 cents in the aggregate; thus each brother was held to be entitled to more than 10 cents as co-owners and the 1st defendant was held not to be a "kudikidappukaran" within the meaning of the Kerala Land Reforms Act, 1963. The correctness of that conclusion was contested before the court in this opinion.
Legal Issues Presented
- Whether a person who is a co-owner of a common property (tenant-in-common / co-owner) can be regarded as having a "homestead" or land in his own right such as to disqualify him from being a "kudikidappukaran" under S. 2(25) of the Kerala Land Reforms Act, 1963.
- Whether possession of undivided interest / co-ownership in common property amounts to possession "as owner or as tenant" such that the co-owner could be lawfully evicted from an existing homestead on the sole ground that he has other land in his possession where he could erect a homestead.
- Whether the first defendant, given the facts of co-ownership and the size of the common property, was properly held by the lower courts not to be a kudikidappukaran and thus liable to eviction.
Arguments of the Parties
Plaintiff's Position
- The plaintiff sued to evict the 1st and 2nd defendants from the dwelling on the suit property; the trial court and the lower appellate court decreed the suit.
Defendants' (1st and 2nd) Position
- The defendants challenged the lower courts' conclusion on appeal. The lower courts had repelled their claim to kudikidappu rights on the factual basis that the 1st defendant and his three brothers owned a common property which, after deducting an existing kudikidappu of 8 cents, left 45 cents as co-ownership property—thus each brother effectively had entitlement to more than 10 cents and was not a kudikidappukaran within S.2(25).
- The correctness of that legal conclusion (that co-ownership and the aggregate area disqualified the 1st defendant) was canvassed on their behalf before the court in this opinion.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Mammathu v. Kathijumma Umma (1965 KLT. 655) | Illustrates the equitable principle that a co-owner who improves a portion of common property may, at partition, have that portion allocated to him as far as possible. | Used to explain limitations on a co-owner's rights to exclusive possession or compensation for improvements and why improvements do not confer unchallenged exclusive possession when the common property is small. |
| Kassinkunju v. Velayudhan Pillai (1972 KLT. 861) | Same line of authority recognizing that co-owners cannot claim exclusive possession and that equities in improvement may be recognized on partition. | Relied upon to support the proposition that co-owners have unity of possession and cannot lawfully resist entry by other co-owners. |
| Pennamma v. St. Paul's Convent (1972 KLT. 12) | Construction of “has neither a homestead” — a person can be said to have a homestead only when it is his or her own; joint rights are not equivalent to “own” possession. | Adopted to hold that a co-owner's undivided share is not equivalent to having a homestead of his own for the purposes of S.2(25). |
| Vasistha Vadhyar v. Mohini Bai (1975 KLT. 365) | Approved the view that possession “either as owner or as tenant” in the section must be construed to mean possession that is one’s own (i.e., not merely joint possession). | Used to reinforce the interpretation that co-ownership (joint/undivided possession) does not amount to possession “as owner” for excluding kudikidappu rights. |
| Devaki Amma v. Kunhirama Marar (1974 KLT. 758) | Held that what is required is actual possession of requisite area enabling erection of a homestead; mere title without possession will not suffice. | Invoked to emphasize that a person must have the requisite possession so as to be able to erect a homestead; a future or contingent entitlement to possession is insufficient. |
Court's Reasoning and Analysis
The court's analysis proceeded in discrete steps grounded in statutory construction and principles of co-ownership:
- Statutory requirements: The court set out the operative part of S.2(25) (definition of "kudikidappukaran") and identified four elements the statute requires: (i) the person has a homestead or land in excess of specified area; (ii) he possesses it; (iii) possession is either as owner or as tenant; and (iv) he can erect a homestead thereon.
- Nature of possession required: The court explained that the Act seeks non-precarious title and possession of an alternate land so that the kudikidappukaran may reside without fear of lawful obstruction. Therefore, the alternate land must be such that the person could erect and occupy a homestead thereon free from risk of disturbance.
- Effect of co-ownership: Drawing on settled principles, the court observed that co-owners have unity of possession (an undivided share), and no co-owner can lawfully exclude another co-owner from any part of the common property. A co-owner who improves or builds on common property does not, in the absence of agreement, acquire the right to compel other co-owners to accept that exclusive improvement or to pay compensation; the correct remedy for disputes about exclusive possession or improvements is partition.
- Practical consequence for small common properties: The court reasoned that when common property is small, it is difficult to be confident that a homestead can be erected on any portion of it without risking disturbance at partition or before partition. Thus, co-ownership of a small common property does not constitute possession of an alternate site "free of any risk of lawful obstruction and of disturbance."
- Precedential support on construction of “has a homestead”: The court relied on Pennamma (and judicial observations by Govindan Nair, J. and Isaac, J.) and Vasistha Vadhyar to support the view that "having a homestead" carries the connotation of having it of one’s own; joint or undivided rights are not equivalent to ownership for the purpose of disqualifying kudikidappu rights.
- Unities and tenancy-in-common: Citing Freeman on Co-Tenancy and Partition, the court emphasized that tenancy in common is characterized primarily by unity of possession; tenant-in-common or co-owner only holds by unity of possession and therefore cannot claim exclusive possession as if the property were his own.
- Possession as prerequisite to erect a homestead: The court relied on Devaki Amma to underscore that mere title without possession or a speculative future right will not permit erection of a homestead; the possession must be of such a character as to enable immediate and peaceful erection and occupation.
- Conclusion from application: Applying these principles to the facts, the court concluded that the first defendant's undivided co-ownership did not amount to possession of an alternate site in his own right, free from risk of disturbance, and therefore he qualified as a kudikidappukaran in respect of his existing homestead on the suit property and could not be evicted except in accordance with the statutory scheme.
Holding and Implications
Core Ruling: APPEAL ALLOWED; THE JUDGMENTS AND DECREES OF THE LOWER COURTS ARE SET ASIDE; THE SUIT IS DISMISSED.
Direct consequences on the parties:
- The court held that the first defendant is a kudikidappukaran in respect of the homestead on the suit property and therefore cannot be evicted except in accordance with the procedures and safeguards laid down in the Kerala Land Reforms Act, 1963.
- Because the appeal was allowed, the plaintiff's decree for eviction was set aside and the suit dismissed.
- Costs: The parties shall suffer their costs throughout.
Wider implications: The opinion applies and clarifies existing statutory interpretation and co-ownership principles to the statutory notion of a kudikidappukaran. The opinion does not purport to lay down a novel legal principle beyond the application of established authorities and statutory construction; it addresses the direct legal effect for the parties in this case.
1. Admittedly the 1st defendant constructed the dwelling house in the suit property with the permission of the predecessor-in-interest of the plaintiff, and is residing there with his wife, the 2nd defendant. The plaintiff-respondent sued for evicting them therefrom and the trial court decreed the suit. The lower appellate court confirmed that decree. Their claim for kudikidappu rights was repelled by the lower courts on the ground that the 1st defendant and his three brothers own a property in common, and that deducting 8 cents occupied by a kudikidappu that is on that property, the four brothers have 45 cents of land as co-ownership property, so that each of the four brothers is entitled to more than 10 cents of land. It was held that the 1st defendant is, therefore, not a kudikidappukaran as defined in S. 2(23) of the Kerala Land Reforms Act, 1963. The correctness of this is canvassed before me on behalf of defendants 1 and 2. S. 2(25) aforesaid, so far as it is material for this case, 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 panchayat area or township, in possession either as owner or as tenant, on which he could erect a homestead and—”
2. To take a person outside the ambit of the above provision four things have to be established, and they are:— (i) he has a homestead, or has land in excess of the area specified therein; (ii) he possesses it; (iii) he has it and be possesses it either as owner or as tenant; and (iv) he can erect a homestead thereon. Under the Act, a tenant has fixity of tenure, and therefore, what the statute requires seems to be non-precarious title and possession of an alternate land where he could erect a homestead. In other words, if possession of the alternate land is not in his own right so that peaceful and undisturbed residence there is a matter of chance, it cannot be said that he is disqualified to be a kudikidappukaran. This is clear from the object, the statute has in view in enacting S. 75 onwards in Chapter II of the Act. These provisions confer on a kudikidappukaran fixity of kudikidappu or residential rights so that he may without fear of eviction continue to reside in the homestead or kudikidappu, and this is achieved by prohibiting his eviction; he can only be shifted to an alternate site on the same land or on another land belonging to the landholder or on a land acquired for that purpose, and that, after giving ownership of that alternate site to him (the kudikidappukaran). Therefore, when a kudikidappukaran is sought to be evicted on the sole ground that he has another land in his possession where he can erect a homestead, the statute requires that he should have it and he possesses it free of any risk of lawful obstruction and of disturbance to erect a homestead there and to reside there peacefully. In this connection it is worthwhile to note that unlike S. 75(2)(ii) of the Act wherein the emphasis is on the fitness of the alternate site offered by the landholder to shift a kudikidappukaran to that site, the stress here is on: he could erect a homestead. This means not only that the land he has should be fit for erecting a homestead but also that he should be able to erect a homestead thereon unhampered by any one.
3. It is well settled that co-owners have unity of possession, and that all of them have an equal right to be in possession of every part aud parcel of the common property. No one co-owner can, therefore, lawfully resist another co-owner from entry on the common property or any portion thereof, claiming exclusive possession in himself, though, however, if resisted the other co-owner's remedy lies in seeking partition and separate possession of his share and not, in claiming enforced joint possession. Similarly, though a co-owner can make improvements on any portion of the common property and construct buildings thereon, he cannot compel another co-owner to join hands with him in improving the common property or constructing buildings thereon, with the result the co-owner improving the common property and erecting buildings thereon is not in the absence of agreement, entitled to compensation therefor from other co-owners. And in the face of resistance by other co-owners, he who wants to improve the common property or build thereon has to seek partition and get his share separated. No doubt, courts recognise an equity in his favour to have the portion he has improved or the portion where he has constructed buildings allotted to him, as far as possible and without prejudice to other co-owners, when the property is ultimately partitioned. See Mammathu v. Kathijumma Umma (1965 KLT. 655) and Kassinkunju v. Velayudhan Pillai (1972 KLT. 861). This is possible only when the common property is sufficiently extensive and improvements are made or buildings constructed only over a portion of it not extending over the share that may reasonably fall to his lot on partition by metes and bounds. In such cases a co-owner may, perhaps, with some sense of security from disturbance of possession by other co-owners at the time of partition, make improvements and construct buildings on a portion of the common property not extending over his legitimate share, provided there is no resistance from the other co-owners, but, not in other cases, as for instance the case on hand, where the extent of the common property is so small that it is difficult to postulate with any amount of certainty that a homestead can be put up on any portion of it without risking disturbance of possession at the time of partition, if not earlier, when the construction is attempted for.
4. Cons'ruing the words ‘has neither a homestead’ in S. 2(25) Govindan Nair, J. as he then was, in Pennamma v. St. Paul's Convent (1972 KLT. 12) said: A person can be said to have a homestead only when that person has a homestead of her (his) ‘own’ (See para 5). In the same case Isaac, J. said:—
“It appears to me that a person can be said to have a thing, only if it is his own. If be has only a joint right in a thing, it is not his own; be has it only along with others.”
5. This statement of law was approved by another Division Bench of this court in Vasistha Vadhyar v. Mohini Bai (1975 KLT. 365). There it was said as follows:—
“Isaac, J. observed that a person can be said to have a thing only if it is his own. Though the section does not use the words his own, this is the only possible construction that can be given to the expression “in possession either as owner or as tenant.””
6. It cannot be said by a co-owner that the common property is his own; to borrow the language used by Isaac, J.: ‘he has it only along with others.’
7. In the last mentioned case the Division Bench also said:
“Whether the principle enunciated in the above decisions can be extended to tenants-in-common is a doubtful proposition since possession of a tenant-in-common is different from the possession of a coparcener or the member of a tarwad. However, we leave that question open since the question in that form is not before us.”
8. Since the matter is res integra and has been specifically left open I venture to say that no distinction can be drawn between possession of a joint-tenant and that of tenant-in-common or co-owner, in so far as the minimum common requirement, of all kinds of ownership of a thing by more persons than one is ‘unity of possession’. According to Freeman on Co-Tenancy and Partition (Second Edition P. 150 Para 86):
“The several tenancies are best distinguished from one another by considering the unities of each. Beginning with tenancy by entireties, we find five unities, viz., a unity of possession of title, of estate, of time, and of person Next comes joint-tenancy with the same unities as tenancy by entirety, except that of person Then, next below joint-tenancy, as coparcenary, with its three unities, viz., of title, of possession, and of estate. And lastly, we have tenancy in common, which is different from the other tenancies in this, that it requires but one unity-that of possession. It is therefore a sufficient description of tenants in common to say that they “are persons who hold by unity of possession.”
9. Since a co-owner has only a share in the common property, he has no right to exclude the other co-owners from possession of it, and this rule applies to every part and parcel of the common property, so that, in law he can possess it only along with the other co-owners; even when a co-owner is not in physical possession of the common property and another co-owner is, in law the former possesses it constructively through the latter, of course, unless ouster is established.
10. In Devaki Amma v. Kunhirama Marar (1974 KLT. 758) my learned brother Poti, J. said:
“Therefore what is required is the possession of requisite area by the person claiming the right of kudikidappu with the further qualification that the possession should be such as would enable him to erect a homestead thereon. Any person who is not in ‘possession’ but has title to a property cannot erect a homestead on that property. The mere fact that he may be, at some future date, possibly entitled to possession of some area of land will not enable him to erect a homestead.”
11. No doubt this case related to a member of a tarwad who claimed kudikidappu rights and was resisted on the ground that the tarwad has lands. It appears to me that the same could be said of a co-owner, where the claim for kudikidappu rights is resisted on the ground that he has an undivided share in the common property. I hold that the first defendant is a kudikidappukaran in respect of the homestead on the suit property. He cannot therefore be evicted therefrom except as provided in the Kerala Land Reforms Act, 1963. The judgments and decrees of the lower courts are set aside and this appeal is allowed. The suit is dismissed. In the circumstances of the case the parties shall suffer their costs throughout.
12. Allowed.
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