IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 18TH MARCH 2010 / 27TH PHALGUNA 1931 RSA.NO. 282 OF 2010() --------------------- AS.5/2007 OF THIRD ADDITIONAL. DISTRICT COURT, KOZHIKODE-III OS.155/2005 OF II ADDL.SUB COURT,KOZHIKODE .................... APPELLANT/APPELLANT/PLAINTIFF ------------------------------------------------- KADAPPAMANNIL EDAVALATH RATNAKARAN, S/O.KUNHIKANNAN @ SEKHARAN, KOTTOLI AMSOM, DESOM, KOZHIKODE TALUK. BY ADV. SRI.SAJU.S.A SRI.K.C.KIRAN RESPONDENT -RESPONDENTS – DEFENDANTS: --------------- 1. RAVEENDRAN,S/O.KADAPPAMANNIL EDAVALATH KUNHIKKANNAN @ SEKHARAN, CHEVAYUR AMSOM,DESOM, KOZHIKODE TALUK. 2. RAJAN,S/O.KADAPPAMANNIL EDAVALATH KUNHIKKANNAN @ SEKHARAN, CHEVAYUR AMSOM,DESOM, KOZHIKODE TALUK. 3. RATHEESAN,S/O.KADAPPAMANNIL EDAVALATH KUNHIKKANNAN @ SEKHARAN, CHEVAYUR AMSOM,DESOM, KOZHIKODE TALUK. 4. SHAJI,S/O.KADAPPAMANNIL EDAVALATH KUNHIKKANNAN @ SEKHARAN, CHEVAYUR AMSOM,DESOM, KOZHIKODE TALUK. 5. RAGHU,S/O.KADAPPAMANNIL EDAVALATH KANDANKUTTY,CHEVAYUR AMSOM,DESOM,KOZHIKODE TALUK. 6. RAMESAN,S/O.KADAPPAMANNIL EDAVALATH KANDANKUTTY,KOTTOOLI AMSOM,DESOM,KOZHIKODE TALUK. 7. ANEESHAN,S/O.KADAPPAMANNIL EDAVALATH KANDANKUTTY,KOTTOOLI AMSOM,DESOM,KOZHIKODE TALUK. 8. THAZHATHU VEETTIL SARALA,D/O.IMBICHI, KOTTOOLI AMSOM,DESOM,KOZHIKODE TALUK. 9. KANANGOTTU SARASU,D/O.IMBICHI, KOTTOOLI AMSOM,DESOM,KOZHIKODE TALUK. 10. ELEDATH AMMALUKUTTY @ DEVI, D/O.IMBICHI,PADINHATTUM MURI AMSOM,KARAYUR DESOM, KOZHIKODE TALUK. 11. SIVADASAN,S/O.CHANDRAMATHI, RESIDING AT VADAKKE KOLIPPURATH PARAMBIL,KOTTOOLI AMSOM, DESOM, KOZHIKODE TALUK. 12. KAMALA,D/O.THARAMMAL KUNHAPPAN,RESIDING AT THARAMMAL HOUSE,KOTTOOLI AMSOM, DESOM,KOZHIKODE TALUK. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 18/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. = = = = = = = = = = = = = = = = = = = = = = = = R.S.A. NO.282 of 2010 = = = = = = = = = = = = = = = = = = = = = = = = = Dated this the 18th day of March, 2010 J U D G M E N T --------------------- Second Appeal arises from judgment and decree of learned third Additional District Judge, Kozhikode in A.S. No.5 of 2007 confirming judgment and decree of learned Second Additional Sub Judge in O.S. No.155 of 2005. Suit properties originally belonged to the late Peravan who belonged to the Thiyya Community of Kozhikode Taluk and who was following Makkathayam law of succession. After his death properties were partitioned among his sons, Cherooty and Imbichi as per Ext.A1. Dispute concerned property allotted to the share of Imbichi. According to the plaintiff, Krishnan, son of Imbichi died issueless in the year 2001 and thereon properties reverted to Cherooty and plaintiff being one of the legal heirs of the said Cherooty is entitled to a share in the said property. According to the contesting defendants since death of Krishnan was in the year 2001 provisions of the Hindu Succession Act (for short, “the Act”) applied in the matter of succession and defendant Nos.8 to 11 who are the brothers and sisters of the late Krishnan are entitled to succeed to his estate. Defendant No.12 R.S.A. No.282 of 2010 -: 2 :- who claimed to be wife of Krishnan claimed that she is entitled to inherit the entire property which belonged to the late Krishnan and that defendant Nos.8 to 11 have no right in the suit property. Learned Munsiff found that defendant No.12 is the wife of the late Krishnan and hence property is inherited by D.W.12. Suit ended in a dismissal. Plaintiff challenged that judgment and decree in A.S. No.5 of 2007 while defendants Nos.8 to 11 filed A.S. No.52 of 2007. First appellate court has dismissed both the appeals. Dismissal of A.S. No.5 is under challenge in this Second Appeal urging by way of substantial question of law whether courts below are justified in holding that provisions of Makkathayam and Mithakshara law are applicable to succession of property left by the late Krishnan. Learned Senior Advocate appearing for appellant/plaintiff would contend that since the parties belonged to the Thiyya Community of Kozhikode Taluk following Makkathayam law of succession that law should prevail and hence on the death of Krishnan suit property reverted to Cherooty and plaintiff being one of the legal heirs of Cherooty is entitled to get partition and separate possession of his share. Learned counsel appearing for defendant No.12 would support the finding of the courts below and dismissal of the suit. 2. So far as entitlement of plaintiff is concerned it is not R.S.A. No.282 of 2010 -: 3 :- disputed that defendant Nos.8 to 11 are the brothers and sisters of the late Krishnan. It is also not disputed that death of Krishnan was in the year 2001 in which case provisions of the Act should apply as succession opened after that Act came into force. Courts below have taken note of that fact and held that plaintiff is not entitled to succeed to the estate of the late Krishnan. So far as the entitlement of defendant Nos.8 to 11 found against by the courts below is concerned that matter is not required to be gone into in this appeal. The inter se dispute between defendant Nos.8 to 11 and defendant No.12 does not in any way affect the claim of plaintiff. 3. So far as claim of plaintiff is concerned operation of the Act would seal his claim. Question of property reverting to Cherooty so that plaintiff being one of the legal heirs of Cherooty getting a share in the property did not arise. In the circumstances no substantial question of law is involved in this appeal. Hence the Second Appeal at the instance of appellant/plaintiff cannot be sustained. Second Appeal is dismissed in limine. THOMAS P.JOSEPH, JUDGE. vsv