This revision petition arises out of order in E.P.No.4 of 2003 in O.S. No.935 of 1983. The said E.P was dismissed on the ground that on reference of the question of kudikidappu right of the judgment debtor, the land tribunal found in favour of the judgment debtor. 2. The facts necessary for the disposal of this revision petition are as follows :
The property originally belonged to one Velayudhan Kunjan, who is the father of the revision petitioners, who filed the suit for redemption of mortgage in the year 1964. The extent of property was 15 cents. Subsequently, a suit for redemption was laid. The defendant in the suit did raise a claim of kudikidappu at that point of time. But observing that the question of kudikidappu can be raised only at the time of redemption, the trial court passed a preliminary decree for redemption of mortgage. That was confirmed in appeal. The appellate court also observed that the question of kudikidappu can be raised only during execution. The mortgage amount was of course only `500/- and the value of improvement was determined as `1,09,000/-.
3. The mortgagors deposited the value of improvements and mortgage amount and applied for passing of the final decree. Final decree was passed and execution of the final decree was taken out. At the execution stage, the respondent herein raised a claim of kudikidappu. That was referred to the land tribunal. The land tribunal by its order dated 02.09.2011 found in favour of the respondent i.e., he was found to be the kudikidappukaran. The execution court left with no choice, accepted the said finding and dismissed the execution petition.
4. Assailing the said findings, it is contended that land tribunal was not justified in holding that the respondent is a kudikidappukaran as there was no evidence regarding the same. It is also claimed that, the claim of kuidikidappu right at the execution stage is barred by the principle constructive resjudicata and if at all the respondents had a claim of kudikidappu, that ought to have been raised at the trial stage itself. The belated claim of kudikidappu cannot enure to the benefit of the respondents. The mortgagor had deposited the mortgage amount and the value of improvements and they are entitled to redemption and delivery of property.
5. The learned counsel for the respondent on the other hand contended that going by Section 2(25) [Explanation IV], the right of a mortgagee to claim kudikidappu arises only at the time of redemption and not before redemption. The learned counsel went on to point out that, the redemption occurs only when the mortgage amount and the value of improvements are deposited and till then, the mortgagor-mortgagee relation subsists. The snapping of relationship occurs only on deposit of the amount assessed by the court and till then the mortgagee cannot raise a claim of kudikidappu.
6. In the case on hand, learned counsel pointed out that, in fact, at the trial stage itself, the mortgagee had raised the question of kudikidappu, but his claim was relegated to be considered at the time of execution. It is not a case where the claim was not agitated or a claim agitated was answered against. Claim was preferred at the first opportunity itself but the courts relegated to the matter to be considered at the time of execution. Therefore, it is contended that the principle of resjudicata as well as constructive resjudicata cannot be applied to the facts of the case.
7. The execution court has appended the order of the land tribunal in its order. The land tribunal has elaborately considered the question of kudikidappu right claimed by the respondent and had come to the conclusion that he is entitled to kudikidappu right. It is interesting to note that in fact the plea of tenancy right also was raised by the respondent. But the land tribunal found that only the plea of kudikidappu was referred to the execution court and that alone can be considered.
8. Relying on Ext.P1, the Ottikuzhikaanam document produced by the claimant, the court below came to the conclusion that it was the claimant, who had put up the structure in the property as the document permitted him to do so. Building tax receipts were produced by the applicant and so also the property tax. The land tribunal found that there was sufficient evidence to show that the structure had been put up by the mortgagee and also that he and his family were residing in the property. The land tribunal found that the applicant before it satisfies all the conditions necessary to qualify himself as a kudikidappukaran and upheld his claim.
9. On going through the order passed by the land tribunal, this Court finds that there are no grounds to interfere with the finding of the land tribunal that the applicant is a kudikidappukaran.
10. However, it needs to be mentioned at this juncture that the Apex Court had occasion to consider almost a similar question in the decision reported in Victoria v.
K.V.Naik and others (1997) 6 SCC 23 wherein it was held as follows :
Tenancy and Land Laws - Kerala Land Reforms Act, 1963 (1 of 1964) - Ss.2(25) Expln.IV and 125(3) - Constructive res judicata - Plea regarding Kudikidappu rights of mortgagee over a part of the mortgaged land raised by mortgagee in a suit for redemption of the mortgage - Plea rejected and a preliminary decree followed by a final decree passed - Trial court taking the view that in a suit for redemption, claim of Kudikidappu rights of the mortgagee would arise for consideration at the time of execution of decree and so prima facie mortgagee not entitled to reference under S.125(3) - Plea again raised in execution - Held, barred by constructive res judicata - Transfer of Property Act, 1882, S.60 - Civil Procedure Code, 1908, S.11
11. Placing reliance on the observation made by the Apex Court, it is contended that even assuming that the matter was left open at the trial stage, it could not have been considered at the execution stage and it is claimed that the claim of kudikidappu cannot survive for consideration at the execution stage.
12. It must at once be noticed that in the decision rendered by the Apex Court there was a claim of kudikidappu at the trial stage, which was referred to land tribunal and was found against by the tribunal. It was thereafter, the same issue was raised at the execution stage. It was in that context that the Apex Court had occasion to observe that such a plea cannot be raised again at the execution stage and it is barred by principle of constructive resjudicata. Of course, the Apex Court also observed that if the issue is not raised before the trial court, it cannot be raised for the first time at the execution court.
13. However, in the case on hand, it is necessary to notice that the mortgagee had raised the plea of kudikidappu at the trial stage itself i.e., at the first opportunity itself, but he was relegated to the execution stage to substantiate his claim. So, it could be seen that there was no fault on the part of the mortgagee at all in not being adjudged as the kudikidappukaran in the trial stage. The appellate court also, while dealing with the appeal from decree for redemption, had occasion to observe that the plea of kudikidappu needs to be considered only at the time of redemption before the execution court.
14. This court had occasion to consider a similar question in the decision reported in Chellamma v. Ayyan Oman [2001 (2) KLT SN3 case No. 2] wherein it was held as follows :
Explanation IV to S.2(25) of the KLR Act provides that where a mortgagee with possession erects for his residence a homestead, or resides in a hut already in exercise 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 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 also subject to the condition that his annual income does not exceed two thousand rupees. What is clear from the above provision is that at the time of redemption the mortgagee can set up the claim. The petitioner took care to raise it before that Forum and the court thought it fit to relegate the decision on the aspect to the stage of delivery proceedings. Neither side had challenged the final decree passed in the case and the question therefore had necessarily to be considered in the delivery proceedings.
15. Again the issue was considered in the decision reported in Amminikutty Amma Krishnakumari v.
Rajasekharan Nair [2012 (3) KLT 183] wherein it was observed as follows :
5. The question whether an assignee mortgagee can claim the benefit of Explanation IV to Se.2(25) of the Act is no longer res integra. A Division Bench of this court in Narayani v. Neelakantan (1990 (2) KLT 154) has held that the assignee mortgagee is also entitled to the benefit. This is subject to the condition that the assignee mortgagee satisfies other conditions to qualify for being a 'kudikidappukaran'. But then the assignee mortgagee was not alive on the date of redemption of the mortgage. The assignee mortgagee had died in the year 1970 whereas the mortgage money was deposited by the mortgagor only on 05.04.2008. It is only when the mortgagor-mortgagee tie is snapped can the claim of 'kudikidappukaran' spring up, if at all any. The assignee mortgagee was not alive to enable him to establish that he qualified for the status of 'kudikidappukaran'. Explanation IV to S.2(25) of the Act is categoric that the mortgagee should satisfy the qualification 'at the time of the redemption'. The irresistible conclusion therefore is that all the legal heirs of the assignee mortgagee should together satisfy the test of 'kudikidappukaran' in the instant case.
6. It is no doubt true that one of the legal representatives of the 'kudikidappukaran' can alone maintain the claim for and on behalf of the others also. A Full Bench of this court in Moothorakutty v. Chiruthakutty [1995 (1) KLT 251 (F.B.)] has considered this aspect in detail. It was held therein that possession of other land by any or all of the legal representatives may not disqualify them. But the said decision is distinguishable in as much as the same dealt/with an inheritance of a crystallized right of 'kudikidappukaran'. The alleged right of 'kudikidappukaran' in the instant case crystallized much after his death. The legal heirs who stepped in to the shoes of the 'kudikidappukaran' should together satisfy the tests on the date of redemption of mortgage. The test are :
(i) They should not together own any residential building or land exceeding the limit prescribed in the Act;
(ii) Their annual income put together should be within the limit prescribed in the Act.
The facts of this case are similar to the facts dealt with in the above two decisions and if that be so, there is no reason as to why principles laid down in the above decisions should not be applied to the facts of the present case. As already observed, the land tribunal, on considering the evidence available before it, had come to the conclusion that the plea of 'kudikidappu' has to succeed. Of course, the execution court had no choice at all but to accept the same. Since this Court finds no ground to interfere with the finding of the land tribunal, order of the execution court dismissing the execution application is only to be upheld.
The result is that, the revision is without any merits and it is liable to be dismissed. I do so.
AMV Sd/-
(P. BHAVADASAN, JUDGE) /TRUE COPY/ P.A.TO JUDGE