IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 28TH JANUARY 2011 / 8TH MAGHA 1932 SA.No. 625 of 1996() ------------------------- AS.20/1990 of DISTRICT COURT, PALAKKAD OS.176/1985 of ADDL.MUNSIFF COURT, PALAKKAD .................... APPELLANT(S):APPELLANTS/PLAINTIFFS ------------------------------------------------- 1. V. DEVAKI, D/O. PONNU 2. V. BABY, D/O. PONNU 3. SANTHA, D/O. PONNU ALL ARE RESIDING AT AKAMPADAM, POOTHANUR AMSOM, PALAKKAD TALUK. BY SRI.V.CHITAMBARESH (SENIOR ADVOCATE) ADV. SRI.T.C.SURESH MENON RESPONDENT(S):RESPONDENTS/DEFENDANTS 2 TO 4 --------------------------------------------------------------- *1. KANNAMMA, W/O. KESAVAN, RESIDING AT PANNIYAMPADAM, PUDUPPARIYARAM AMSOM, PALAKKAD TALUK.(DIED. LEGAL HEIRS IMPLEADED AS SUPPL. R4 & R5 ) 2. GRAISE PUSHPAM. W/O. LATE MUTHU, RESIDING AT AKAMPADAM. POOTHANUR AMSOM, PALAKKAD TALUK. 3. PRASANNA, D/O. LATE MUTHU, RESIDING AT POOTHANUR AMSOM, PALAKKAD TALUK. * SUPPLEMENTAL RESPONDENTS 4 & 5 IMPLEADED 4. KRISHNAN, S/O. DECEASED KANNAMMA, RESIDING AT PANNIYAMPADAM,PUDUPPARIYARAM AMSOM, PALAKKAD TALUK. 5. SAROJINI, DECEASED KANNAMMA, W/O. BALAKRISHNAN RESIDING AT MUTHUCHETTI KOLUMBU, THATHAMANGALAM P.O., PALAKKAD. * 1ST RESPONDENT DIED AND SUPPLEMENTAL RESPONDENTS 4 & 5 ARE IMPLEADED AS THE LEGAL HEIRS OF DECEASED 1ST RESPONDENT AS PER ORDER DATED 14/12/2010 IN I.A. NO.1894/2005. R2 & R3 BY ADVS. SMT.PRABHA R.MENON SRI.M.KRISHNAKUMAR THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 28/01/2011, ALONG WITH SA NO.730 OF 1996 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs P.BHAVADASAN, J. ---------------------------------- S.A.Nos.625 and 730 of 1996 ---------------------------------------- Dated this the 28th day of January, 2011 JUDGMENT Both these appeals are arise out of O.S.No.176/1985 before the Munsiff's Court, Palakkad. 2. The suit was one for partition. S.A.No.625/1996 is filed by the plaintiff in the suit and S.A.No.730/1996 is filed by the third and fourth defendants in the suit. During the pendency of the suit the first defendant died and her legal heirs were impleaded in the trial court as Supplemental defendants 3 and 4. 3. Item No.1 of the plaint schedule property originally belonged to Pazhaniyandi. On his death, the property devolved upon the only son Appu and then on his death, on the plaintiff, the first defendant and the second defendant. According to the plaintiff in the suit, item Nos. 2 to 4 of plaint A schedule were purchased by the first defendant in his name and in the name of his wife with the profits derived from Item No.1 of plaint schedule and selling the trees in Item No.1 of A schedule. Claiming 1/3 share over the suit properties, the suit was laid. 4. First defendant resisted the suit by pointing out the death of Appu, the father of plaintiff and defendants was before the commencement of the Hindu Succession Act and so, the devolution of S.A.Nos.625 and 730 of 1996 2 the interest over the properties and mode of inheritance is not governed by the provisions of the Hindu Succession Act, 1956. As per the Hindu Law, daughters are not members of the co-parcenary and as such they cannot claim any share over the ancestral property. It is also contended that item Nos. 2 to 4 were purchased by the defendant out of his own funds, a portion of which is raised by selling the gold ornaments of his wife. There was no income from Item No.1 which could be utilised for the acquisition of Item Nos.2 to 4. 5. Second defendant supported the first defendant. 6. Based on the above pleadings, necessary issues were raised by the trial court. The evidence consists of the testimony of PWs 1 and 2 and document marked as Ext.A1 from the side of the plaintiff. Contesting defendant was examined as DW1 and Exts.B1 to B13 were marked. Ext.C1 is the commissioner's report. 7. Item No.1 was found to be partible. It was found that Item Nos.2 to 4 were acquired by separate funds of first defendant and they were not available for partition. The trial court passed a preliminary decree as follows: 1. Plaintiff is entitled to 1/3rd share in item No.1 and B schedule property. 2. Plaintiff is entitled to 1/3rd share in the profits derived from item No.1 of the property. S.A.Nos.625 and 730 of 1996 3 3. Item Nos.2 to 4 of plaint schedule property are not liable to be partitioned, since they are self acquired properties of first and third defendants. 8. Parties are directed to suffer their respective costs. 9. Both the plaintiff as well as the defendants 3 and 4 carried the matter in appeal as A.S.Nos.20/1990 and 31/1990. Since the appellant in A.S.20/90 was found not entitled to any share of the plaint schedule items 2 to 4, A.S. 20/1990 was dismissed. A.S. 31/1990 was allowed in part by reducing the quantum of share as per the impugned judgment and decree to 1/6 and also refusing a decree for partition in respect of plaint B schedule movables. The preliminary decree was modified to that extent and the appeal filed by the plaintiffs was dismissed. 10. As far as the appeal filed by the plaintiffs is concerned, ie. S.A.No.625/1996, the lower appellate court has found that there is no evidence to show that the first defendant had acquired items 2 to 4 from the income derived from Item No.1. This is essentially a question of fact that does not call for any interference in the second appeal. 11. However, one aspect looms large. The Hindu Succession (Amendment) Act 1925 (39/1925) has amended Section 6 of the Hindu Succession Act incorporating a clause that the daughter of a co- parcerner shall, by birth, become a co-parcener in her own right in S.A.Nos.625 and 730 of 1996 4 the same manner as a son. The proviso states that the amendment shall not affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before 20.12.2004. Since the suit for partition is pending in this case, the proviso will not be available and that means the amendment applies. If that be so, two daughters are also placed on par with son of Appu, (D1). Therefore, the co-parceners consist of Pazhaniyandi's son of Appu, (D1) and two daughters of Appu. At the time of death of Appu which is well after 1956 his 1/4th share will devolved on the three persons, apart from ¼ each of them individually hold. If that be so, each of them got 1/3 share. Thus the trial court was right in coming to the conclusion that each of the parties are entitled to 1/3 share though for different reasons. To that extent the decree modified. That part of the decree of the first appellate court regarding the quantum of shares is set aside and that of the trial court is restored. There will be no order as to costs. P.BHAVADASAN, JUDGE. ln