IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR THURSDAY, THE 3RD JANUARY 2008 / 13TH POUSHA 1929 SA.No. 529 of 1994() --------------------------- AS.74/1986 of SUB COURT, OTTAPALAM OS.24/1985 of MUNI-MAGI.COURT,PATTAMBI .................... APPELLANTS: (PLAINTIFFS IN THE TRIAL COURT- RESPONDENTS 1 TO 4 ------------------ IN THE LOWER APPELLATE COURT). 1. AYYAPPAN, S/O. THAMI, MANGAT PADI, NAGALASSERI AMSOM, THEKKE VAVANNOOR DESOM, OTTAPALAM TALUK, PALGHAT DISTRICT 2. VELAYUDHAN, S/O. THAMI, DO. DO. 3. KOCHI, D/O. THAMI, CHALISSERI AMSOM AND DESOM, OTTAPALAM TALUK, PALGHAT DISTRICT. 4. KALI, D/O. THAMI, MALA AMSOM KOTTAPADAM DESOM, OTTAPALAM TALUK, PALGHAT DISTRICT. BY ADV. SMT.PREETHY KARUNAKARAN RESPONDENTS: (DEFENDANTS 1, 2 AND 4 TO 8 AND LEGAL REPRESENTATIVES ---------------------- OF DEFENDANT NO.3 - APPELLANTS AND RESPONDENTS 6 TO 14 IN THE LOWER APPELLATE COURT). 1. KORAN, S/O. MANGAT PADI CHATHAPPAN, NAGALASSERI AMSOM, THEKKE VAVANNOOR P.O., VIA KOOTTANAD, OTTAPALAM TALUK, PALGHAT DISTRICT 2. CHAKKI, D/O. MANGAT PADI CHATHAPPAN AND WIFE OF VILAKKUMADATHIL PADI, THAMI, MALA AMSOM, KOTTAPADAM DESOM, OTTAPALAM TALUK, PALGHAT DISTRICT. 3. KALLIANI, W/O. MANGAT PADI AYYAPPAN, POTTAKKAT HOUSE, P.O., NHANGATTIRI, VIA PATTAMBI, PALGHAT DISTRICT. 4. SUBRAMANIAN, S/O. MANGAT PADI AYYAPPAN, POTTAKKAT HOUSE, P.O., NHANGATTIRI, VIA PATTAMBI PALGHAT DISTRICT. SA. 529/1994 5. GIRIJA (NOW MAJOR), DAUGHTER OF DO. DO. 6. RADHA (NOW MAJOR), D/O. DO. DO. 7. LATHA (NOW MAJOR), D/O. DO. DO. 8. MULLA, W/O. MANGAT PADI CHEKKAN, KOOTHUPARAMBIL HOUSE, P.O. CHATHANOOR, VIA PERINGODE, OTTAPALAM TALUK, PALGHAT DISTRICT. 9. SREEDHARAN, S/O. MANGAT PADI CHAKKAN, DO. DO. 10. KAMALAM, D/O. DO. DO. 11. GEETHA, D/O. DO. DO. BY ADV. SRI.P.G.PARAMESWARA PANICKER (SR.) SRI.P.GOPAL THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 03/ 01 /22008 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ........................................... S.A.No. 529 OF 1994 ............................................ DATED THIS THE 3rd DAY OF JANUARY, 2008 JUDGMENT Plaintiffs in O.S.24 of 1985 on the file of Munsiff-Magistrate Court, Pattambi are the appellants. Defendants are the respondents. Suit was instituted seeking partition and allotment of one half-share of appellants. According to appellants, plaint schedule property originally belonged in jenmom to Erattayil Mana and under Ext.A1 registered patta chit of 1899 M.E, Kochi obtained the property on lease and she has been in possession of the property. Kochi had two sons and two daughters. Respondents 1 and 2 are the children of son Chathappan. Appellants claimed that they are the children, Thami the other son and daughter Kochi had a son Ayyappan and 4th respondent is his widow and respondents 5 to 8 are their children. It was also contended that other daughter Neeli had only one son, the 3rd respondent and they are following Makkathayam law under which only the sons are entitled to inherit properties of the mother and therefore on the death of Kochi, half right devolved on Thami and other half on Chathappan. Appellants claimed that they are entitled to the one half share due to Thami and SA 529/1994 2 respondents 1 and 2 are entitled to the remaining one half. Partition and separation of share was sought for. Respondents 1 and 2 together filed a written statement denying the plaint claim. It was contended that Kochi had only one son Chathappan and Thami, father of appellants is not the son of Kochi and Kochi had no daughters and on the death of Kochi, her right devolved only on Chathappan and thereafter on respondents 1 and 2 and appellants or other respondents are not entitled to claim any share. It was also contended that even if it is found that others have any right, it is lost by ouster and adverse possession as the properties have been in continuous exclusive possession of Chathappan and thereafter on respondents 1 and 2. Respondents 4 to 8 filed written statement admitting the relationship stated in the plaint and claiming that on the death of Kochi, her one-fourth share devolved on Kochi, the daughter and on her death on Ayyappan and on his death, on respondents 4 to 8 and they are entitled to get ¼ share. Third respondent did not contest the suit. 2. Learned Munsiff, on the evidence of Pws 1 and 2, Dws 1 and 2, Exts.A1 to A5 and B1 and B2, relying on the evidence of Pws 1 and 2 and Ext.A4 and A5, found that Thami, father of appellants was the son of Kochi and apart from Thami and SA 529/1994 3 Chathappan, she had two daughters, Kochi and Neeli. Learned Munsiff, finding that appellants are followers of Makkathayam Law, held that on the death of Kochi, her rights devolved only on her sons and only respondents 1 and 2 together and appellants together are entitled to one share each. A preliminary decree for partition was passed. 3. Respondents 1 and 2 challenged the judgment before Sub Court, Ottapalam. Learned Sub Judge, on reappreciation of evidence, following Mayne's Hindu Law and Usage, 12th Edition, found that self acquired property of the mother would devolve only on her daughters and not sons and therefore on the death of Kochi, sons will not inherit her right. Learned Sub Judge confirmed the findings of learned Munsiff that Thami, father of appellants is the son of Kochi. But finding that son is not entitled to a share, non-suited the plaintiff. Learned Sub Judge also found that defendants 4 to 8 who claim one-fourth share did not file an appeal and evidence show that 40 years back, daughter of Kochi died and thereafter respondents 1 and 2 and their father alone were in possession of property and therefore respondents 4 to 8 are also not entitled to a share. Appeal was allowed and the preliminary decree was set aside and the suit was dismissed. It is challenged in the second appeal. SA 529/1994 4 4. Second appeal was admitted formulating the following substantial questions of law. 1)Does the acquisition of a leasehold right by a female member constitute her sthreedhanam property. 2)When parties are governed by Makkathayam law of inheritance, whether first appellate court was justified in applying the principles of Mithakshara law. 5. Learned counsel appearing for appellant and respondents 1 and 2 were heard. On hearing the learned counsel, the following additional substantial question of law is formulated. Whether finding of courts below that Thami, father of appellants, is the son of Kochi is sustainable in the light of the evidence on record. 6. Appellants sought a share in the plaint schedule property contending that under Ext.A1, Kochi obtained the property and on her death the property devolved on her legal heirs, who are the followers of Makkathayam Law whereunder only sons will inherit to the estate of the mother. Learned Munsiff accepted the case of appellants that Thami and Chathappan are the two sons of Kochi and granted a preliminary decree. Learned Sub Judge, in the first appeal, found that SA 529/1994 5 Ext.A1 is not an acquisition for the family and it could only be an acquisition by Kochi and as provided under Hindu Meethakshara Law, that property could be inherited only by daughters, if there are daughters and only if there are no daughters, sons will get the property and set aside the preliminary decree. The argument of the learned counsel is that Ext.A1 acquisition cannot be treated as a Sthreedhanam property and therefore first appellate court was not justified in interfering with the preliminary decree following Meethakshara Law. Learned counsel argued that even if it is to be found that not only the sons but also daughters are entitled to a share, first appellate court should have granted a preliminary decree and should not have dismissed the suit. It was also argued by the learned counsel that when respondents 1 and 2 in the written statement had pleaded adverse possession only against plaintiffs, first appellate court applied it as against respondents 4 to 8 also who claimed share and it is illegal and cannot be sustained. Learned counsel argued that trial court and first appellate court found that Thami is the son of Kochi and that finding of fact cannot be challenged by respondents 1 and 2 in this appeal and as it is proved that property was acquired by Kochi and that Chathappan, Thami, Kochi and Neeli are her children, even if the SA 529/1994 6 inheritance is not only by the sons and daughters, all are also entitled to get a share, a decree should have been granted. Learned counsel appearing for respondents 1 and 2 argued that courts below did not properly consider the real dispute in the case. It was argued that in the written statement itself, it was categorically contended that Kochi had only one child, Chathappan and the others Thami, Kochi and Neeli are not the children of Kochi. It was pointed out that courts below found that Thami is the son of Kochi relying on Ext.A4 and A5 and though Ext.A4 voters list was marked through PW1, PW1 did not depose as to which entry in Ext.A4 appellants are relying and Ext.A4 by itself will not establish that Thami shown therein is the son of Kochi. It was also argued that Ext.A5, Savings Bank account book obtained by Thami only shows that he is son of Koran and it is also insufficient to prove the fact that Thami is the son of Kochi. Learned counsel also argued that though PW2 was examined to prove the relationship, he deposed that property belonged to Koran when even appellants have no such case and therefore the evidence of PW2 cannot be relied on to decide the paternity of Thami. It was argued that Ext.A4 and A5 did not establish the relationship of Thami with Kochi and in such circumstances, findings of courts below that Kochi had also SA 529/1994 7 a son by name Thami and Kochi and Neeli are daughters are not sustainable. Learned counsel also argued that allegation in the plaint is not that parties are Makkathayees but only to the effect that they are following Makkathayam Law and it was additionally contended that inheritance is only by sons and even PW1 did not give any evidence with regard to the practise prevailing in their community. It is therefore argued that neither trial court nor first appellate court was justified in deciding that question, in the absence of proper pleading and evidence. Learned counsel argued that in any case without further evidence, the dispute between the parties cannot be resolved. 7. There is force in the submission of the learned counsel appearing for respondents 1 and 2. Though it was contended by appellants in the plaint that parties are followers of Makkathayam Law, even PW1 did not depose anything on the custom practised by parties. So also PW2 did not depose anything. When trial court found that only sons will inherit, first appellate court finding that it is a Sthreedhanam property held that only daughters will inherit the property. In the absence of pleading and evidence on the law of inheritance followed by the parties, it is not possible to decide that question. In the interests of justice, it is necessary to grant an opportunity to the parties to SA 529/1994 8 adduce sufficient evidence in support of the inheritance claimed by appellants. 8. There is also force in the submission of learned counsel appearing for respondents 1 and 2 that even the question of paternity of Thami and whether Kochi had four children including two daughters and Thami, was not properly considered by the courts below. Trial court proceeded on the basis that the fact is proved by Ext.A4 and A5. Ext.A4 voters list was proved through PW1. As rightly pointed out by learned counsel appearing for respondents 1 and 2, PW1 did not depose which entry in Ext.A4 is relied on to prove the paternity. Trial court found that entry No.186 of Ext.A4 show that father of Thami was Koran. But PW1 did not depose that Thami shown as Mangattupadi Thami in Sl.No.186 is the father Thami or Koran referred to therein is the husband of Kochi. Therefore in the absence of evidence in support of that entry, it is not possible to uphold the findings of courts below relying on Ext.A4 that appellants are the children of Thami and that too, son of Kochi. Similarly Ext.A5 only shows that passbook was issued to Thami, son of Koran. Identity of Thami or Koran was not sought to be explained by PW1. In such circumstances, relying on Ext.A5 also it cannot be found that Thami, father of appellants is the son of SA 529/1994 9 Kochi. In the interests of justice, appellants are permitted to adduce further evidence in support of their claim. In the light of the said finding, it is necessary to remand the suit back to trial court for fresh disposal in accordance with law after setting aside the judgments of the courts below. 9. Appeal is allowed. Judgments in A.S.74 of 1986 and O.S.24 of 1985 on the file of Munsiff Court, Pattambi are set aside. O.S.24 of 1985 is remanded to Munsiff Court, Pattambi for fresh disposal in accordance with law. Parties are permitted to adduce further evidence. Parties are directed to appear before learned Munsiff on 19.2.2008. Learned Munsiff to dispose the suit expeditiously. M.SASIDHARAN NAMBIAR, JUDGE lgk/-