Appeal No 225 of 1964
Appeal by special leave from the judgment and decree dated July 25 1961 of the Kerala High Court in SA No 852 of 1957
LS5SCI 11 136 A G Pudissery for the appellant
M R K Pillai for the respondents
The Judgment of the Court was delivered by Bachawat J
In 1921 the plaintiff executed in favour of the defendant an otti kuzhikanam deed in respect of the suit property
By this deed the plaintiff sold to the defendant the building standing on the property for 350 fanams and also transferred to him for 350 fanams the right to possess and enjoy the property for 12 years in kuzhikanam right with liberty to plant coconut trees thereon expressly reserving for the plaintiff the right to enjoy the fruit bearing trees then standing on the property  The deed provided that after the expiry of 12 years the defendant would on demand demolish and take away the building and surrender possession of the land on receipt of 350 fanams and the agreed compensation for the coconut trees planted by him
The plaintiff instituted a suit for redemption of the property
During the pendency of the litigation the plaintiff and the defendant died and their legal representatives were substituted in their place
On May 31 1951 the Principal District Munsif Quilon decreed the suit
On appeal the District Court of Quilon affirmed this decree
The present appellant who is one of the legal representatives of the original defendant filed a second appeal in the High Court of Kerala
During the pendency of this appeal the Kerala Agrarian Relations Act 1960 Act IV of 1961 came into force
Before the High Court the appellant claimed fixity of tenure and protection from eviction on the ground that he was a kuzhikanamdar or alternatively the holder of a kudiyiruppu and therefore a tenant within the meaning of section 250 ie read with section 222 and section 250ij read with section 221 of Act IV of 1961
The High Court negatived this contention and dismissed the appeal
The appellant now appeals to this Court by special leave
During the pendency of this appeal Act IV of 1961 was repealed and the Kerala Land Reforms Act 1963 Act 1 of 1964 came into force
The appellant now claims fixity of tenure and protection from eviction on the ground that he is a kuzhi kanamdar within the meaning of section 257d read with section 228 or alternatively the holder of a kudiyiruppu within the meaning of section 257h read with section 226 of Act 1 of 1964
In the High Court the appellant also claimed protection from eviction on the ground that he was a kudikidappukaran  but this contention was negatived by the High Court and is no longer pressed
Section 13 of Act 1 of 1964 gives to every tenant fixity of tenure in respect of his holding and forbids resumption of the holding except as provided in sections 14 to 22
Section 257 defines tenant 
By sections 257d and h a tenant includes a kuzhikanamdar and the holder of a kudiyiruppu
The appellant does not contend that he is a tenant as defined in the main part of section 257
137 He however contends that he is a tenant as defined in section 257d and section 257h
The deed of 1921 was styled otti kuzhikanam deed 
In Malabar the word otti in the context of the deed designates a possessory mortgage
According to Wilson s Glossary of Judicial and Revenue Terms kurikanam means compensation allowed for the value of trees planted or other improvements made by the tenant or mortgagee on relinquishing possession a lease or mortgage on such conditions Under a kuzhikanam mortgage or lease in Malabar the grantee normally acquires the right to hold the property for 12 years for the purpose of planting fruit bearing trees thereon and to claim compensation for the value of the trees planted on relinquishing possession
Had there been no special definition of the expression kuzhikanam in Act 1 of 1964 we would have been inclined to hold that the grantee under the deed of 1921 was a kuzhikanamdar
But section 228 of Act 1 of 1964 provides that in this Act unless the context otherwise requires kuzhi kanam means and includes a transfer of garden lands or of other lands or of both with the fruit bearing trees if any standing thereon at the time of the transfer for the enjoyment of those trees and for the purpose of planting such fruit bearing trees thereon but shall not include a usufructuary mortgage as defined in the 
 This definition of kuzhikanam is both inclusive and exhaustive
Unless the context requires otherwise the expression kuzhikanam in the Act can have only the meaning given in section 228
There is nothing in the context of section 257 and section 13 which requires a different meaning for this expression
Kuzhikanam as defined in section 228 means a transfer 1 of garden lands or of other lands or of both 2 with the fruit bearing trees if any standing thereon at the time of the transfer 3 for the enjoyment of those trees and 4 for the purpose of planting such fruitbearing trees thereon
It does not include a usufructuary mortgage as defined in the  but it is not the case of the plaintiff that the deed of 1921 created such a usufructuary mortgaee
Now the deed of 1921 while effecting a transfer of land for the purpose of planting coconut trees thereon expressly reserved for the grantor the right to enjoy the fruit bearing trees then standing on the land and did not transfer those trees to the grantee
On behalf of the appellant it was argued that the words with the fruit bearing trees if any standing thereon at the time of the transfer for the enjoyment of those trees are not essential parts of the definition of kuzhikanam  in section 228 and that we should hold that a transfer of land for the purpose of planting fruit bearing trees thereon is kuzhikanam though there is no transfer of the fruit bearing trees standing on the land at the time of the transfer and though the transfer is not for the enjoyment of those trees
We are unable to accept this contention
We think that a transfer of land without the fruit bearing trees then standing on it and Dot carrying with it the right to enjoy those trees is not a LS5SCI 11a 138 kuzhikanam as defined in section 228
The force of the words if any in the definition is that if there are any fruit bearing trees on the land at the time of the transfer the trees also must be transferred for their enjoyment by the transferee
The contention that the deed of 1921 granted kuzhikanam rights as defined in section 228 of Act 1 of 1964 is rejected
The appellant next contends that he is the holder of kudiyi ruppu
Section 226 of Act 1 of 1964 which defines kudiyiruppu  reads  kudiyiruppu means a holding or part of a holding consisting of the site of any residential building the site or sites of other buildings appurtenant thereto such other lands as are necessary for the convenient enjoyment of such residential building and easements attached thereto but does not include a kudikidappu
 I here is no material on the record to show that the building on the land is a residential building
Moreover it does not appear that the land is necessary for the convenient enjoyment of the building
The contention that the appellant is the holder of kudiyiruppu is rejected
The appeal fails and is dismissed
There will be no order as to costs
Appeal dismissed


Summary:
By a deed styled otti Kuzhikanam deed  the predecessor of the respondent sold a building standing on a property to the predecessor of the appellant and also transferred to him the right to possess and enjoy the property for 12 years in Kuzhikanam right with liberty to plant coconut trees thereon
The deed expressly reserved the right for the respondent to enjoy the fruit bearing trees then standing on the properties
and provided that after expiry of 12 years the appellant would on demand demolish and take away the building and surrender possession of the land on receipt of a certain amount and he agreed compensation for the coconut trees planted by him
The respondent instituted a suit for redemption of the property which was decreed
On appeals the decree was affirmed by the District Court and High Court
In appeal to this Court the appellant claimed fixity of tenure and protection from eviction on the ground that he was i a Kuzhikanamdar under section 257d and section 228 or alternativelyii the holder of a kudiyiruppu under section 257 h and section 226 of the Kerala Land Reforms Act
HELD i The deed did not grant Kuzhikanam rights to the appellant
Kuzhikanam as defined in section 228 means a transfer 1 of garden lands or of other lands or of both 2 with the fruit bearing trees if any standing thereon at the time of the  transfer 3 for the enjoyment of those trees and 4 for the purpose of planting such fruit bearing trees thereon
It does not include a usufructuary mortgage as de fined in the but it was not the case of the respondent that the deed created such a usufructuary mortgage
137 E F A transfer of land without the fruit bearing trees then standing on it and not carrying with it the right to enjoy those trees was not a kuzhikanam as defined in section 228
The force of the words if any in the definition of kuzhikanam in section 228 is that if there are any fruit bearing trees on the land at the time of the transfer the trees also must be transferred for their enjoyment by the transferee
137 H 138 B iiThe appellant was not the holder of Kudiyiruppu within the meaning of section 226 of the Act
There was no material on the record to show that the building on the land was a residential building
Moreover it did not appear that the land was necessary for the convenient enjoyment of the building
138 D