IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE K. SURENDRA MOHAN MONDAY, THE 24TH AUGUST 2009 / 2ND BHADRA 1931 AFA.No. 79 of 1994() -------------------- (A.S. 318/1988 OF THIS COURT) OS.393/1981 of PRL.SUB COURT,THRISSUR APPELLANT/APPELLANT/PLAINTIFF: --------------------------------------- VILASINI, D/O. RAMAN EZHUTHASSAN, CHERPU DESOM, CHERPU VILLAGE, TRICHUR TALUK. BY ADV. SRI.S.V.BALAKRISHNA IYER RESPONDENT/RESPONDENT/DEFENDANT: ---------------------------------------------- VASU, S/O. KARATTUVALAPPIL RAMAN EZHUTHASSAN, KAINOOR DESOM, KAINOOR VILLAGE, TRICHUR TALUK. BY ADV. SRI.K.ARAVINDAKSHA MENON & ADV. SMT. PARVATHY A MENON THIS APPEAL FROM FIRST APPEAL HAVING BEEN FINALLY HEARD ON 24/08/2009, THE COURT ON THE SAME DAY, DELIVERED THE FOLLOWING: P.R. RAMAN & K. SURENDRA MOHAN, JJ. = = = = = = = = = = = = = = = = = = = A.F.A. NO. 79 OF 1994 = = = = = = = = = = = = = DATED THIS, THE 24TH DAY OF AUGUST, 2009. J U D G M E N T Raman, J. Appellant is the plaintiff in a suit for partition claiming half share in five items of plaint A schedule immovable properties and B schedule movable property. The suit was eventually dismissed against which an appeal was preferred. This Court allowed the appeal in part and decreed the suit for partition giving 1/2 share in Item No.3 and 1/4 share in Item No.5 of A schedule immovables, however, dismissed the appeal confirming the decree of the trial court as respect Item Nos. 1,2 and 4 as also plaint B schedule movables. It is against the said decision that the present appeal is preferred. 2. As respect items 1,2 and 4 of plaint A schedule immovables, those items were acquired by the grand father of the plaintiff and defendant by name Kunjan Ezhuthachan as per Ext.B1 dated 8.11.1922. Kunjan Ezhuthachan died prior to 1932 leaving his wife Narayani and son Raman. Raman died in 1123 M.E. (corresponding to 1948) leaving Narayani, his mother, Kalyani, his wife, and his minor two children. The plaintiff and AFA 79/1994 2 defendant are the children of Raman. The contention is that after the death of Raman, Kalyani was in possession of the property and so by virtue of Section 14 of the Hindu Succession Act, she became the absolute owner of the property. This contention was negatived by the learned Single Judge. 3. Hence the only point arises for consideration is whether on the death of Raman, Kallyani's possession was in her own right for maintenance so as to ratify the said possession into into one of absolute ownership by virtue of Section 14(1) of the Hindu Succession Act. 4. The learned Single Judge entered the following finding in Para 5 of the judgment: "The parties had no case before the court below nor before this Court that Kalyani Amma had obtained any vested right over the coparcenary property at any time prior to her death." 5. Therefore, the learned Single Judge proceeded on the basis that Kalyani had no right over plaint Schedule Item Nos. 1,2 and 4 except the right of maintenance. On the aforesaid finding, it can be seen that on the death of Raman, these items of property devolved on the parties by survivorship and the plaintiff daughter who was given away in marriage was not entitled for partition. In order to attract Section 14 of the Hindu AFA 79/1994 3 Succession Act, the Hindu female must not only be possessed of the property but she must have a pre-existing right which is a sine qua non for conferment of a full ownership under Section 14 of the Act. A mere right for maintenance without actual acquisition in any manner is not sufficient to attract Section 14 of the Act. In the absence of anything to show that the widow had got possession of share in the joint family property in lieu of maintenance or in arrears of maintenance or that there was a partition of the property and that in such partition, she had been given the property, the widow had no right at all which could fructify into full ownership under Section 14 of the Hindu Succession Act, as held by the Apex Court in the decision in Ram Vishal v. Jagan Nath (2004(9) SCC 302). In this case, at the time of death of Raman, both the plaintiff and defendant were minors. The property would devolve on the defendant by survivorship and he being a minor, the mother happened to be put in possession for and on behalf of the minor and not in any way on her own right. Before the death of Raman, it is not the case of the plaintiff that this property was allotted to her towards maintenance After the death of Raman, the question of allotting this property for maintenance also does not arise. In the absence of any case for the party that the property was allotted to her towards maintenance or in lieu of maintenance and that she was in any way in AFA 79/1994 4 possession of the property as a limited owner in exercise of a right to be maintained, the question of her becoming a full owner by virtue of Section 14 will not arise. In such circumstances, we find no errors of law in the judgment under appeal. We agree with the view expressed by the learned Single Judge. We find no merit in this appeal. Accordingly, it is dismissed. However, there will be no order as to costs. P.R. RAMAN, JUDGE K. SURENDRAMOHAN, JUDGE. KNC/- AFA 79/1994 5 P.R. RAMAN & K. SURENDRA MOHAN, JJ. A.F.A. 79 OF 1994 J U D G M E N T 24.8.2009.