Parties in a partition suit must substantively plead claims related to kudikidappu rights to validly seek judicial determinations under the Kerala Land Reforms Act.

JUDGMENT

A suit for partition, was initially dismissed by the trial court against which the plaintiffs came up in appeal before the First Appellate Court. The First Appellate Court in turn set aside the decree and judgment of the trial court and passed an order of remand for the purpose of referring the question of entitlement of kudikidappu right under Section 125 of the Kerala Land Reforms Act , against which the defendants 2, 3 and 4 came up in appeal.

2. The order of remand is brought under challenge on the ground that there is no question of reference under Section 125 of the Kerala Land Reforms Act at the instance of the plaintiffs. The suit was instituted only for the purpose of partition. In fact, what is sought to be partitioned is the alleged kudikiddappu right held by the predecessor-in-interest and devolution of the same to the plaintiffs and the defendants. But, there is no adjudication with respect to the entitlement of kudikiddappu right and no such certificate of kudikidappu was issued in favour of any of the persons, the parties to the suit. In the suit, there is no substantial prayer for declaration of either the entitlement of kudikiddappu right or its devolution thereof. But, it is only a suit for partition without any substantial prayer. As such, the order of remand passed by the First Appellate Court for the purpose of a reference under of the will not stand. But, the learned counsel for the respondents fairly submitted that they are intending to file an amendment application for incorporating substantial prayer for a declaration and entitlement of kudikiddappu right and its successive devolution on the death of the original “kudikiddappukaran” and also regarding the validity of alienation alleged to have been made by one of the sharers, who had obtained Ext.A1 assignment of kudikiddappu from the land owner. The assignment of kudikiddappu by the land owner itself will not stand in the eye of law as no such right is vested with the land owner, except the jenmom right. At the most, Ext.A1 document would stand only with respect to the jenmom right held by the land owner. If it was obtained by one among the legal heirs of the original “kudikidappukaran”, under that status necessarily, Ext.A1 would stand enure to benefit of all the “kudikidappukaran” or the person who had obtained successive interest over the property, for which, there should be a suit with substantial prayer.

3. The litigation was started in the year

2013 and now almost nine years have elapsed. As such, it is not fit and proper to advise the party to go for another litigation. Hence, while confirming the order of remand, the parties are hereby permitted to amend their plaint and pleadings by incorporating substantial prayer with the liberty of the defendants to raise their pleading by way of an additional written statement. The parties are also at liberty to adduce additional evidence. On amendment raising the kudikiddappu right and incorporation of substantial prayer, the court below is at liberty to consider the question of reference under Section 125 of the Kerala Land Reforms Act . The parties shall appear before the trial court on

25.07.2022.

With that observation, the appeal is disposed of accordingly.