Case: Kochukunju Nair Vs. Koshy Alexander

on that point ad different times. In Vasudevan v. Sreemathi Amma, 1966 Kerala Law Times 594 a single judge took the view that the person who has joint ownership of the necessary extent of land is disentitled to the rights of Kudikidappukaran. Buta contrary view was adopted by a Division Bench in Pennamma v. St. Pauls Convent, 1972 Kerala Law Times 12. Another Division Bench has held in Vasistha Vadhyar v. Mohini Bai, 1975 Kerala Law Times 365 thus : "A member of a joint family has no ownership or possession exclusively on any portion of the property belonging to the joint family. Therefore, the fact that a person owns land with others as joint tenant cannot disentitle him from the protection extended under s. 2(25) of the Act. On the words of the section, this is the only conclusion that can be arrived at." Nonetheless, the Division Bench doubted whether the above principle can be extended to a tenant-in-common since possession of such a person is different from the possession of a co-parcener or member of a tarward. However, a single judge in Damodaran v. Vasukutty, 1978 Kerala Law Times 1 took the view that there is no distinction between a member of joint family and a tenant-in-common or a co-owner and that he too can claim to be a Kudikidappukarn. 8. We are not now considering the question whether a person who has right in a joint family property can be treated as one in possession of that land. But we do consider now whether a person who is a co-owner along with others can be treated as owner and whether he is in possession thereof. 9. Ownership imports three essential rights, namely, right to possession, right to enjoy and right to dispose. If an owner is wrongly deprived of possession of his property he has a right to be put in possession thereof. All the three essential are satisfied in the case of co-owner of a land. All co-owners have equal rights and co-ordinate interest in the property, though their shares may be either fixed or indeterminate. Every co-owner has a right to enjoyment and possession equal to that of the other co-owner or co-owners. Each co-owner has, in theory interest in every infinitesimal portion of the subject matter and each has the right, irrespective of the quantity of his interest, to be in possession of every part and parcel of the property, jointly with others. (vide Mitras Co-ownership and Partition, Seventh Edn.). 10. A three-Judge Bench of this Court has held in Sri Ram Pasricha v. Jagannath and ors., AIR 1976 SC 2335 that a co-owner owns every part of the composite property along with others. The following statement of law has been made by their Lordships : "Jurisprudentially it is not correct to say that a co-owner of a property is not its owner. He owns every part of the composite property along with others and it cannot be said that he is only a part-owner or a fractional owner of the property. The position will change only when partition takes place." 11. To hold that co-owner is not an owner and his possession is not the possession envisaged in Section 2(25) of the Act is in conflict with the correct legal position. If a co-owners wants to erect homestead on the land he is free to do so. When a division of the co-ownership property takes place the co-owner who put up the homestead can claim that the said portion may be allotted to his share. Courts would ordinarily grant such equitable relief when claimed. (vide Nuthebari Das v. Nanilal Das and ors., AIR 1937 PC 61 . If the other co-owner objects to the construction of a homestead he can get the co-ownership property divided by partition, and if the other party is not readily willing to that course it is open to him to get it partitioned through suit. These are various remedies available to the co-owner in respect of his land. Merely because he has to resort to such steps it cannot be said that a co-owner cannot erect a homestead on his land.12. The view adopted by the Full Bench of the Kerala High Court that once the claimant is a co-owner of whatever extent of land, he must be treated as a person who has no land on which he could erect a homestead, has preposterous legal implications. For example, a co-owner having 50 acres of land along with another co-owner claims right of Kudikidappu as against another person who has only a wee bit of land. If the Full Bench view gains acceptance the claimant must be declared entitled to Kudikidappu right. Such an order would be unjust and inequitable, if not ridiculous. The Full Bench of Kerala High Court has gone wrong in adopting such a view.13. Learned counsel for the appellant alternatively contended that even if this co-ownership land can be taken into account, the area of his land, after partition, would fall below 10 cents in extent. Ext. B-16 is a Partition Deed of the year 1952 executed by the appellant and his brother as per which 27 cents of land has been allotted to the appellant, his wife and son who was then a minor. "Person" is defined in Section 2(43) of the Act as including "a company, family, joint family, association or other body of individuals......". Section 2(14) of the Act defines "family" as consisting of "husband, wife and their unmarried minor children or such of them as exist."14. A combined reading of the above definitions leads to the only conclusion that appellant (with or without his wife and minor son) has 27 cents of land. There is no contention that the nature of the land is such that no homestead could be erected thereon. Even if the minor son would have claimed his share after attaining majority, appellant and his wife together will still have land much in excess of 10 cents.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]11. To hold that co-owner is not an owner and his possession is not the possession envisaged in Section 2(25) of the Act is in conflict with the correct legal position. If a co-owners wants to erect homestead on the land he is free to do so. When a division of the co-ownership property takes place the co-owner who put up the homestead can claim that the said portion may be allotted to his share. Courts would ordinarily grant such equitable relief when claimed. (vide Nuthebari Das v. Nanilal Das and ors., AIR 1937 PC 61 . If the other co-owner objects to the construction of a homestead he can get the co-ownership property divided by partition, and if the other party is not readily willing to that course it is open to him to get it partitioned through suit. These are various remedies available to the co-owner in respect of his land. Merely because he has to resort to such steps it cannot be said that a co-owner cannot erect a homestead on his land.12. The view adopted by the Full Bench of the Kerala High Court that once the claimant is a co-owner of whatever extent of land, he must be treated as a person who has no land on which he could erect a homestead, has preposterous legal implications. For example, a co-owner having 50 acres of land along with another co-owner claims right of Kudikidappu as against another person who has only a wee bit of land. If the Full Bench view gains acceptance the claimant must be declared entitled to Kudikidappu right. Such an order would be unjust and inequitable, if not ridiculous. The Full Bench of Kerala High Court has gone wrong in adopting such a view.13. Learned counsel for the appellant alternatively contended that even if this co-ownership land can be taken into account, the area of his land, after partition, would fall below 10 cents in extent. Ext. B-16 is a Partition Deed of the year 1952 executed by the appellant and his brother as per which 27 cents of land has been allotted to the appellant, his wife and son who was then a minor. "Person" is defined in Section 2(43) of the Act as including "a company, family, joint family, association or other body of individuals......". Section 2(14) of the Act defines "family" as consisting of "husband, wife and their unmarried minor children or such of them as exist."14. A combined reading of the above definitions leads to the only conclusion that appellant (with or without his wife and minor son) has 27 cents of land. There is no contention that the nature of the land is such that no homestead could be erected thereon. Even if the minor son would have claimed his share after attaining majority, appellant and his wife together will still have land much in excess of 10 cents.15. So looking from any angle, appellant has no right to claim that he is a Kudikidappukaran in respect of the building which is the subject matter of the suit.