IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 7TH DECEMBER 2009 / 16TH AGRAHAYANA 1931 RSA.No. 885 of 2005() --------------------- AS.92/2002 AND CROSS APPEAL IN AS NO.92/2002 of I ADDL.DISTRICT COURT, KOZHIKODE OS.832/1997 of ADDL.MUNSIFF COURT,KOZHIKODE-II .................... APPELLANT (S): APPELLANT/PLAINTIFF --------------------------------------- M.PADMAVATHI, W/O.LATE JANARDHANAN, METHOTH VEEDU, KALATHINKUNNU AMSOM DESOM, KOZHIKODU. BY ADV. SRI.P.B.SAHASRANAMAN SRI.K.JAGADEESH SRI.T.S.HARIKUMAR RESPONDENT(S)/RESPONDENTS/ DEFENDANTS ------------------------- 1. KOLANGAREDATH BHUVANADASAN, ARAPURAM PARAMBIL, CHEVAYOOR AMSOM DESOM, KOZHIKODE. 2. JAYADEVAN, ARAPURAM PARAMBIL, CHEVAYOOR AMSOM DESOM, KOZHIKODE. 3. SATHYADEVAN, ARAPURAM PARAMBIL, CHEVAYOOR AMSOM DESOM, KOZHIKODE. 4. JINADEVAN, ARAPURAM PARMBIL, CHEVAYOOR AMSOM DESOM, KOZHIKODE. 5. CHANDRAMATHI, W/O.ACTHUTHAN, THAZHEKULANGARA KURAVETTOOR AMSOM, PAYIMBRA DESOM, KOZHIKODE. 6. VASUMATHI, W/O.DEVADESAN, THALIYEDATH HOUSE, NADUVATTOM AMSOM DESOM, KOZHIKODE. 7. SATHYAVATHY, D/O.CHEROOTTY, ILLATH HOUSE, MARIKKUNNU, KOZHIKODE TALUK. RSA NO.885/2005 2 8. PRABHAVATHY (DIED), W/O.VALSARAJ, NANGARIYIL HOUSE, KURUVATTOOR AMSOM DESOM, KOZHIKODE TALUK. 9. AKHILESH, S/O. LATE PRABHAVATHY, NANGARIYIL HOUSE, KURUVATTOOR AMSOM DESOM, KOZHIKODE TALUK. 10. LOKESH, S/O.LATE PRABHAVATHY, NANGARIYIL HOUSE, KURUVATTOOR AMSOM DESOM, KOZHIKODE TALUK. ADV. SMT.PRABHA R.MENON FOR R1 TO 4 SRI.M.KRISHNAKUMAR FOR R1 TO 4 SRI.SALIL NARAYANAN FOR R5 SRI.SHAJI GEORGE FOR R6 THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 07/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- R.S.A.No.885 of 2005 -------------------------------------- Dated this the 7th day of December, 2009. JUDGMENT The Regular Second Appeal arises from judgment and decree of learned Additional District Judge-I, Kozhikode in A.S.No.92 of 2002 confirming judgment and decree of learned II Additional Munsiff, Kozhikode in O.S.No.832 of 1997. Appellant/plaintiff though prayed for partition and separate possession of 1/9th share in the suit property, had to be satisfied with 1/9th share in the 1/5th share of her father, Cherutty. Aggrieved, she preferred appeal but without result. Hence the Second Appeal. The following substantial question of law is framed for a decision: When the parents allot a share to the appellant, their female daughter through a registered partition deed allotting shares of the properties to other females and males of the same parents and thus appellant acquiring, possessing and enjoying the property thereafter as conferred under Section 14 of the Hindu Succession Act, 1956 whether the male children can subsequently plead that the appellant, the female child is not entitled for independent possession and enjoyment of that property because of the operation of the Hindu Mitakshara Law and thus the findings of the courts below in accepting the contention of respondent Nos.1 to 4 is legal? RSA No.885/2005 2 2. Short facts necessary for a decision of the above question are: Appellant and respondents are children of Cherutty and Janaki, both of whom are no more. It is not very much in dispute that suit property along with other items are ancestral properties belonging to the family of Cherutty and others and while so there was a partition as per Ext.B9 (Ext.A1 is its copy), document No.1474 of 1959 as per which the joint family was divided into two thavazhies, one headed by Cherutty and the other headed by his brother. At that point of time respondent No.7/defendant 7 had been sent in marriage and either because she was already sent in marriage and became a member of the family of her husband as contended by respondent Nos.1 to 4 or because she was not available to join the partition deed as appellant and respondent Nos.5 to 8 claimed, she had not joined Ext.A1. Cherutty, Janaki and their other children - appellant and respondent Nos.1 to 6 and 8 formed one thavazhi as per Ext.A1 and to that thavazhi item Nos.1 and 2 mentioned therein (suit properties) were allotted. Rest of the property was allotted to the thavazhi headed by the brother of Cherutty. Ammu, wife of Kunhikandan, another brother of Cherutty after death of her husband filed a suit with Cherutty and his children along with the members of other thavazhi as defendants claiming maintenance from the property. That suit was dismissed by the trial court holding that the properties are not joint family properties and hence Ammu is not entitled to get maintenance. She took up the matter in appeal. First appellate court as per RSA No.885/2005 3 Ext.B13, judgment held that properties are joint family properties and hence Ammu is entitled to get maintenance and granted a decree in her favour. That proceedings ended there. After the death of Cherutty, according to the appellant in the year 1978, she filed the suit for partition as first above stated arraying her brothers and sisters as defendants. Respondent Nos.5 to 8 filed statement supporting appellant and demanding their share by way of partition. Respondent Nos.1 to 4/defendant Nos.1 to 4, sons of Cherutty resisted the suit contending that they follow the Mitakshara Law in the matter of succession and follow Makkathayam Law of Succession under which daughters have no right in the property and on marriage they became members of the family of their respective husbands. Respondent Nos.1 to 4 contended that respondent No.7 had been sent in marriage even prior to the partition above stated and that appellant and respondent Nos.5, 6 and 8 had only a right of maintenance and residence upto their marriage. Since they were sent in marriage and have become members of the family of their respective husbands they are not entitled to claim any share in the suit property. Learned Munsiff accepted the contention of respondent Nos.1 to 4 and taking into account the death of Cherutty in the year 1978 as stated by the appellant, suit was decreed in part directing partition of the 1/5th share of Cherutty in the suit property among appellant and respondent Nos.1 to 8 in equal shares. That has been confirmed by the first appellate court. Hence the Second Appeal urging the above substantial RSA No.885/2005 4 question of law. It is contended by learned counsel for appellant that though the courts below found that there is not plea regarding any custom being followed by the parties in derogation of the normal law of succession (Mitakshara Law) there is sufficient evidence to show that parties were following such a custom and at any rate, in the light of the recitals in Ext.B9, partition deed it was not necessary to make any specific plea regarding custom. It is the contention of learned counsel that at any rate Sections 2 and 4 of the Hindu Succession Act (for short, “the Act”)applied and hence even if contention of respondent Nos.1 to 4 that appellant and respondent Nos.5 to 8 had only a limited interest in the property is accepted, that limited right blossomed into full right in view of Section 14 of the Act and hence appellant and respondent Nos.5 to 8 are entitled to partition as prayed for. Resisting the above contention, learned counsel for respondent Nos.1 to 4 would submit that the issue is no more debatable since it has been settled by the decision of the Full Bench of this Court in Rohini v. Sethumadhavan(1978 KLT 470) as to the law relating the succession being followed by Thiyyas of Calicut to which community appellant and respondents admittedly belonged . RSA No.885/2005 5 3. Ext.B9 is the partition deed relied on by both sides. I stated that as per that partition deed members of the family were divided into two thavazhies, one headed by Cherutty. In Ext.B9 there is reference to the appellant and respondent Nos.1 to 6 and 8 also. So far as respondent No.7 is concerned, it has come in evidence that she was sent in marriage even before Ext.B9. Therefore there is no reason to reject the contention of respondent Nos.1 to 4 that respondent No.7 did not joint Ext.A1 since she had already been sent in marriage. That, there was the custom in the community as per which married daughters became members of the family of their husbands is practically admitted by the appellant also when examined as PW1 though she contended that there is no such custom after 1956. She stated that by marriage, female members became the members of family of the husband. Therefore, even as per the version of appellant as PW1 there was such a custom prevalent in the community even prior to 1956. Article 210 of Mulla's Hindu Law also says that a joint hindu family consists of all persons lineally descended from a common ancestor and includes their wives and unmarried daughters but a daughter ceases to be a members of her father's family on marriage and becomes a member of her husband's family. Then the question is whether there was any change brought about by the Act so far as that custom is concerned. Learned counsel placed reliance on Sections 2 and 4 of the Act. Section 2 refers to the application of the Act and while Section 4 provides for overriding effect for the RSA No.885/2005 6 Act. According to the learned counsel for appellant Section 2 of the Act in its application does not exclude Thiyya community of Calicut to which the parties belonged and hence going by Section 4, the Act has overriding effect. Argument may sound attractive but cannot stand in the light of the decision of the Full Bench of this Court in Rohini's case (supra). There, it has been held, “The law applicable to the Thiyyas of Calicut is essentially customary law. The burden is on the party setting up any particular rule of custom to prove the same. In the absence of proof of custom the Hindu Mitakshara Law will be presumed to apply. Even assuming that polyandry was prevalant among the Thiyyas, we doubt whether, on that ground, we can exclude the applicability of the doctrine of pious obligation altogether, or merely hold that the identity of the father whose liability is sought to be fastened on the son, cannot be established, and that for that reason, the son cannot be made liable. Therefore the doctrine of pious obligation must be presumed to be applicable as the rule of Hindu Law in that absence of any proof of any custom to the contrary to the parties in this case” RSA No.885/2005 7 Learned counsel for appellant has a contention that it is not clear from the decision in Rohini's case (supra) when actually the suit was instituted in that case, whether it was prior to or after the commencement of the Act. Learned counsel submits that if institution of the suit in that case was prior to the commencement of the Act that would make a sea change and would not affect the application of Sections 2, 4 and 14 of the Act. True, the year of institution of the suit is not stated in Rohini's case (supra) but there is reference to sale of a portion of the property referred to therein as per Ext.B17 dated 26.3.1960. Hence, it is only reasonable to think that institution of the suit was in the year 1960 or thereafter, ie., after the commencement of the Act. When the Full Bench of this Court decided so at a time when the Act was in force, I am unable to think that the Full Bench was unaware of Sections 2, 4 and 14 of the Act. Therefore in the light of the decision of the Full Bench contention of learned counsel for appellant based on Sections 2, 4 and 14 of the Act cannot be sustained. 4. So far as application of Mitakshara Law is concerned, respondent Nos.1 to 4 have made a specific plea in that regard. In response, neither the appellant nor respondent Nos.5 to 8 have pleaded any customary law in derogation of the principles of Hindu Mitakshara Law applicable to the parties. It is the settled position of law that when a custom in derogation of the rules of RSA No.885/2005 8 succession is set up by any party, it is for him to plead and prove the same. That position has been upheld by the Full Bench in the decision referred supra which has been followed by a learned Single Judge of this Court in Padmakshy and others v. Madhavi and others (2009 (3) KHC 702) which also referred to the application of customary law among the thiyya community in south Malabar. I do not find any plea raised by the appellant or respondent Nos.5 to 8 in that regard. 5. So far as Ext.B9 is concerned the mere fact that names of appellants and respondent Nos.5, 6 and 8 are mentioned therein will not confer title to them over the property. Ext.B9 is a deed of partition. In the absence of antecedent title, a partition by itself cannot confer title to anybody. To have antecedent title for appellant and respondent Nos. 5 to 8 they should have pleaded and proved the customary law which they now urge. In the absence of that, mere mention of names of appellant and respondent Nos.5 to 8 in Ext.B9 cannot confer title on them. 6. Another item of evidence relied on by the appellant is Exts.A6 and A7, copy of judgment in land acquisition proceedings. It is not disputed that of items referred to in Ext.B9 an extent of 27 ½ cents was acquired by the Government in respect of which Exts.A6 and A7 proceedings were initiated. It is RSA No.885/2005 9 not disputed that compensation for the acquisition was shared all the children of Cherutty. That according to the appellant indicated that herself and respondent Nos.5, 6 and 8 had right in the property. It is the further contention that Exts.A6 and A7 would operate as res judicata or even as estoppal against the plea raised by respondent Nos.1 to 4. First appellate court has referred to the relevant decisions on the point to show that mere sharing of the compensation is not sufficient. It is true that there is no case that appellant or respondent Nos.5 to 8 are tenants of acquired portion so that they are to be compensated. So far as there was no dispute regarding right to receive compensation and such dispute was not heard and finally decided question of Exts.A6 and A7 operating as res judicata against respondent Nos.1 to 4 did not arise. Rule of estoppal also cannot apply since appellant and respondent Nos. 5 to 8 must be attributed with the knowledge about application of Mitakshara Law and their disentitlement to the family properties. Nor is there any evidence to show that believing the conduct if any of respondent Nos.1 to 4, appellant or respondent Nos.5 to 8 acted to their detriment. Therefore mere fact that a share of compensation of the land acquired was given to the appellant and respondent Nos.5 to 8 is not sufficient to show that the parties were following the customary law in derogation of the principles of Hindu Mitakshara Law. I stated that there is no plea raised by the appellant or respondent Nos.5, 6 and 8 in that regard. It is settled position of law that any amount of evidence in the RSA No.885/2005 10 absence of a plea cannot be looked into. On the other hand evidence of appellant as PW1 would indicate that herself and other daughters of Cherutty were given ornaments, utensils, etc. at the time of their marriage. I stated that evidence of PW1 would show that atleast till the year 1956 the law applicable in respect of succession was Mitakshara Law. I also stated that Sections 2 and 4 of the Act can have no application in the light of the decision of the Full Bench which I have referred above. If that be so, there is no question of mere right of maintenance for appellant and respondent Nos.5, 6 and 8 till their marriage blossoming into full right under Section 14 of the Act. Substantial question of law framed is answered accordingly. Resultantly, Second Appeal fails. It is dismissed. I.A.No.1713 of 2005 will stand dismissed. THOMAS P.JOSEPH, Judge. cks