Eligibility criteria for claiming 'Kudikidappu' must be met, including income limitations and property ownership.

JUDGMENT

The original petition has been filed by the 2^nd defendant in a suit for redemption of mortgage and recovery of possession, challenging orders Exts.P8 and P9 whereby Exts.P4 and P6 applications have been rejected. Ext.P4 is an application praying to settle additional issues in respect of the pleadings contained in paragraph 18 of the written statement. In paragraph 18 of the written statement, the 2^nd defendant has stated that he has no dwelling house other than the one in the plaint schedule property, nor any other land in which he can erect a dwelling house, and that he is residing in the plaint schedule building with his family. Based on the above averment, it is submitted that the elements of “Kudikidappu” under Section 2 (25) of the Kerala Land Reforms Act is satisfied that the same should be raised as an additional issue, and that the matter should be referred to the Land Tribunal for the purpose of deciding the issue. Ext.P6 is an application for issuing a commission to ascertain the value of improvements in the property and the building. By Ext.P8, the Trial Court dismissed the application for raising additional issues, finding that the transaction between the parties is one of mortgage and that paragraph 18 of the written statement is not an answer to the averments in the plaint. It is also found that the only pleading is that he has no other dwelling house and that is not sufficient to claim ‘Kudikidappu’.

2. The counsel for the petitioner referred to Section 2 (25) of the Kerala Land Reforms Act to support his contentions. Explanation IV to (25) says about the situations wherein a mortgagee can be treated as a kudikidappukaran. Explanation IV to (25) reads thus:

“Explanation IV. - Where a mortgagee with possession erects for his residence a homestead, or resides in a hut already in existence, 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-

(a) 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 (b) his annual income does not exceed two thousand rupees”.

3. It can thus be seen that for raising a claim of ‘kudikidappu’ it is not sufficient that the mortgagee has constructed a residence on the land to which the mortgage relates but his annual income should also not exceed Rs.2,000/-. There is no averment in the petition regarding the annual income of the petitioner. All that is stated is that he is residing in the building. The plaintiff has a case that the building is a two storey building partially terraced. The petitioner does not have a case that he had constructed the building. His case is that he is residing in the building situated in the plaint schedule property. In the above circumstances, there is no material to find that the averments in paragraph 18 would constitute a ‘kudikidappu’. I do not find any reason to interefere with Ext.P8 order.

4. As far as Ext.P9 order is concerned, the reason stated for rejecting the application is that the mortgage deed has a clause which prohibits the making of improvements in the plaint schedule property, and that the application is vague, without any details of the improvements. The above reasons are not sufficient for rejecting the application for appointment of a commission to ascertain the improvements. The question regarding the prohibition for making improvements, is a matter which has to be gone into during the trial and a decision on the said issu