Judgment Case ID: 2100

Judgment:
Appeal No. 225 of 1964. Appeal by special leave from the judgment and decree dated July 25	 1961 of the Kerala High Court in S.A. No. 852 of 1957. L/S5SCI 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 2(50) (i)(e) read with section 2(22) and section 2(50)(i)(j) read with section 2(21) 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 During the pendency of this appeal	 Act IV of 1961 was repealed and the Kerala Land Reforms Act	 1963 (Act 1 of 1964) came into force.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 2(57)(d) read with section 2(28)	 or alternatively	 the holder of a kudiyiruppu within the meaning of section 2(57)(h) read with section 2(26) 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 2(57) defines 'tenant '. By sections 2(57)(d) 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 2(57). 137 He	 however	 contends that he is a tenant as defined in section 2(57)(d) and section 2(57)(h). 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 2(28) 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 2(28). There is nothing in the context of section 2(57) and section 13	 which requires a different meaning for this expression. "Kuzhikanam" as defined in section 2(28) 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 2(28)	 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 L/S5SCI 11(a) 138 kuzhikanam as defined in section 2(28). 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 2(28) of Act 1 of 1964 is rejected. The appellant next contends that he is the holder of kudiyi ruppu. Section 2(26) 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 2(57)(d) and section 2(28)	 or alternatively.(ii) the holder of a kudiyiruppu under section 2(57) (h) and section 2(26) of the Kerala Land Reforms Act. HELD: (i) The deed did not grant Kuzhikanam rights to the appellant. "Kuzhikanam" as defined in section 2(28) 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 2(28). The force of the words "if any" in the definition of "kuzhikanam" in section 2(28) 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] (ii)The appellant was not the holder of Kudiyiruppu within the meaning of section 2(26) 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]