@JUDGMENTTAG-ORDER
Balagangaharan Nair, J.@mdashThe short point that falls to be decided in the revision is whether a mortgagee is entitled to maintain an application
for purchase of ""kudikidappu"" u/s 80B, Land Reforms Act, during the subsistence of the mortgage. It arises under the following brief facts: On 3rd
December 1968 the Petitioner possessorily mortgaged a piece of land measuring 4 1/2 � 4 koles to the Respondent for Rs. 250 under Ext. B-1
for a period of 3 years. It provided for the payment of compensation on redemption in case the Respondent constructed any building or made any
other improvements. The Respondent has admittedly constructed a residential building in the property. On 12th March 1976 he brought the
application u/s 80B claiming that he was a kudikidappukaran of the building and that he was entitled to an order for its purchase. The application
was resisted by the Petitioner contending that the Respondent was not a kudikidappukaran and that even if he was one his prayer was premature
as the mortgage was still subsisting and had not been redeemed. I am not referring to the other contentions between the parties which were alive
before the authorities below as they are now of no relevance.
2. The Tribunal allowed the application finding that the Respondent was a mortgagee with possession of the land, that he had erected a homestead
and has been residing therein, that he has no other kudikidappu or residential building or land, exceeding 10 cents or income exceeding Rs. 2,000
a year and that he was a kudikidappukaran. It held that Explanation IV to Section 2(25) of the Act supported the Petitioner''s claim. On appeal
preferred by the Petitioner the Appellate Authority (Land Reforms), Kozhikode confirmed the order of the Tribunal.
3. For the disposal of the revision the only provision that requires to be considered is Explanation IV to Section 2(25) which defines
kudikidappukaran"". The explanation reads:
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.
The Respondent is a mortgagee with possession and he has erected for his residence a homestead on the mortgage holding. However, he could be
deemed to be a kudikidappukaran in respect of the homestead if only at the time of the redemption when he ceases to be a mortgagee he
possesses the qualifications prescribed by Clauses (a) and (b). This is clear beyond doubt from the provisions of Explanation IV. It is also in
keeping with the definition of kudikidappukaran. Until redemption, when alone his right to be in possession of the mortgage holding ceases, he has
the homestead which he has erected. His right to the homestead would be determined only on redemption and the process of redemption requires
inter alia, the payment of compensation for the building. When that contingency happens Explanation IV comes into play and that would be the
relevant point of time when his claim to be a kudikidappukaran would require consideration and if he satisfies the conditions in Clauses (a) and (b)
of Explanation IV he shall be deemed to be a kudikidappukaran in respect of the homestead notwithstanding the redemption of the mortgage. The
Petitioner has not so far sought redemption of the mortgage and the occasion for determining the Respondent''s claim to be a kudikidappukaran
has not also arisen. As it is the application does not lie and has to fail on that count. Whether he would be deemed to be a kudikidappukaran at the
time of redemption would depend upon the circumstances existing at the time and it would be premature and out of place to pronounce upon
questions that have not arisen.
I reverse the orders of the authorities below and dismiss O.A. No. 2560 of 1976. Parties will bear their costs.