IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR THURSDAY, THE 29TH JANUARY 2009 / 9TH MAGHA 1930 SA.No. 22 of 1998(C) -------------------- AS.22/1994 of ADDL. DISTRICT COURT-II, KOZHIKODE OS.469/1988 of ADDL.M.C.,KOZHIKODE-I .................... APPELLANT(S): 1. M.SIVADASAN, AGED 53 YEARS, SON OF GOPALAN RESIDING IN CHERUVANNOOR AMSOM, NALLALAM DESOM, KOZHIKODE DISTRICT. 2. M.RAMADASAN, AGED 52 YEARS, SON OF GOPALAN, RESIDING IN CHERUVANNUR AMSOM, NALLALAM DESOM, KOZHIKODE TALUK, KOZHIKODE DISTRICT. 3. M.VIVEKANANDAN, AGED 50 YEARS, SON OF GOPALAN, RESIDING AT DOOR NO.2/2837, VENGERI AMSOM, NEDUNGOTTUR DESOM, KOZHIKODE TALUK. 4. M.RAJAN, AGED 48 YEARS,SON OF GOPALAN, RESIDING AT CHERUVANNUR AMSOM, NALLALAM DESOM, KOZHIKODE TALUK, KOZHIKODE DISTRICT. 5. M.ARJUNAN AGED 44 YEARS, S/O.GOPALAN, RESIDING IN CHERUVANNUR AMSOM, NALLALAM DESOM, KOZHIKODE TALUK, KOZHIKODE DISTRICT. 6. M.RADHA, AGED 42 YEARS, DAUGHTER OF GOPALAN, RESIDING IN CHERUVANNUR AMSOM, NALLALAM DESOM, KOZHIKODE TALUK, KOZHIKODE DISTRICT. 7. M.KANANKAM, AGED 40 YEARS, RESIDING IN CHERUVANNUR AMSOM, NALLALAM DESOM, KOZHIKODE TALUK, KOZHIKODE DISTRICT. S.A.No.22 of 1998 2 8. M.RAMAKRISHNAN, AGED 36 YEARS, S/O.GOPALAN, RESIDING IN CHERUVANNUR AMSOM, NALLALAM DESOM, KOZHIKODE TALUK, KOZHIKODE DISTRICT. BY ADV. SRI.A.SUDHI VASUDEVAN RESPONDENT(S): 1. A.SOUDHAMINI, AGED 68 YEARS, D/O.DECEASED SWAMI VAIDYAR, RESIDING AT AMMANGOT HOUSE, PANNIANKARA AMSOM, KALLAI, KOZHIKODE TALUK, KOZHIKODE DISTRICT. 2. I.K.SANTHA, AGED 58 YEARS, W/O.DECEASED SUKUMARAN, RESIDING AT 2/2429, PUTHENPURAYIL HOUSE, VENGERI AMSOM, NEDUNGATTUR DESOM, KOZHIKODE DISTRICT. 3. JAYAMMA AGED 41 YEARS, D/O.M.SAMIKUTTY, RESIDING IN KOLATHARA AT DOOR NO.10/80 CHERUVANNUR AMSOM & DESOM, KOZHIKODE TALUK, KOZHIKODE DISTRICT. 4. I.K.PRAKASAN, AGED 39 YEARS, S/O.SUKUMARAN RESIDING AT PUTHEN PURAYIL HOUSE, VENGERI AMSOM, NEDUNGATTUR DESOM, KOZHIKODE DISTRICT. 5. ROJA AGED 37 YEARS, W/O.K.T.KRISHNAN, NEAR VENGALI RAILWAY GATE, ELATHUR AMSOM PUTHIYAANGADI DESOM, KOZHIKODE TALUK. 6. PREETHI AGED 35 YEARS, S.A.No.22 of 1998 3 W/O.CHANDRAN AND D/O.SUKUMARAN RESIDING AT THIRUVANNUR IN PANNIANKARA AMSOM, KALLAI, KOZHIKODE TALUK, KOZHIKODE DISTRICT. 7. I.G.SIVARATNAM AGED 33 YEARS, KOLANGARAKATH HOUSE, PANNIANKARA AMSOM, KALLAI, KOZHIKODE TALUK, KOZHIKODE DISTRICT. 8. I.K.SUNIL KUMAR, AGED 29 YEARS, S/O.SUKUMARAN RESIDING AT PUTHENPURAYIL HOUSE, VENGERI AMSOM, NEDUNGATTUR DESOM, KOZHIKODE DISTRICT. 9. K.P.VISHWANATHAN FATHER'S NAME NOT KNOWN, APPELLANTS RESIDING AT H.26/A 31, MALAPRAMBA HOUSING COLONY, CALICUT 9, KOZHIKODE TALUK. 10. POTTANGADI SIVANANDAN AGED 54 YEARS, S/O.DECEASED P.LAKSHMI, THIRUVANANNUR AMSOM, KOZHIKODE TALUK, KOZHIKODE DISTRICT. 11. POTTANGADI SATHLYAN AGED 50 YEARS, S/O.P.LAKSHMI, THIRUVANANN AMSOM, KOZHIKODE TALUK, KOZHIKODE DISTRICT. 12. CHEMBAYIL CHITTAKATTU VANAJA AGED 49 YEARS, D/O.P.LAKSHMI, NEDUNGOTTUR AMSOM, KOZHIKODE TALUK, DO. SUPPLEMENTARY RESPONDENTS 13. NECHOLI BABY JALAJA, W/O.LATE PORRANGADI SATHYAN, AGED 55 YEARS, THIRUVANNOOR AMSOM, KOZHIKODE TALUK, KOZHIKODE DISTRICT. S.A.No.22 of 1998 4 14. JESI, W/O.THANDAMADATHIL JAYAPRAKASH, AGED 32 YEARS, KUNDAITHODE, P.O.CHERUVANNUR, CALICUT. 15. SEEJA, W/O.SASIKUMAR KOYIPALLY, Y.M.R.C.ROAD, MEENCHANDA ARTS COLLEGE P.O.,CALICUT. R13 TO 15 WERE IMPLEADED AS SUPPLEMENTARY RESPONDENTS AS PER ORDER DATED 29.1.2009 IN I.A.NO.1404 OF 2007 ADV. SRI.A.P.CHANDRASEKHARAN (SR.) SMT.PRABHA R.MENON FOR 0 THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 29/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V. RAMKUMAR, J. = = = = = = = = = = = = = S.A.No.22 of 1998 = = = = = = = = = = = = = = Dated this the 29 th day of January 2009 JUDGMENT Plaintiffs 2 to 9 in O.S.No.469 of 1988 on the file of the Court of the Principal Munsiff, Kozhikode-I are the appellants in this second appeal. The said suit was one for partition and separate possession of plaintiffs' share over two items of properties admeasuring 33.5 cents and 42 cents respectively and described in the plaint A schedule after excluding plaint B Schedule which is a small portion of plaint A Schedule item No.1 with a building in the possession of the plaintiffs. Both the courts below dismissed the suit. Hence this second appeal. 2. The following are the questions of law formulated in the memorandum of second appeal:- a) Whether the appellants have the burden to prove that the plaint schedule properties were not agricultural land in the year 1942. b) Whether section 14(1) of the Hindu Succession Act will get attracted to a case where the widow is not found to be in actual possession of the property. S.A.No.22 of 1998 2 c) Whether section 14(1) of the Hindu Succession Act would get attracted in a case where the widow had a vestige of title and possession of the property. d) Whether Hindu Women's Right to property Act 1937 would apply to the plaint schedule properties. e) Whether the courts below can treat residential and non-residential buildings as agricultural lands. f) Whether the principles laid down by this Hon'ble Court in 1987 (2) KLT 748 can be adopted to decide the question as to whether the plaint schedule properties are agricultural lands or not. 3. The parties are admittedly Thiyyas of Calicut governed by the Hindu Mithakshara Law of Inheritance. The plaint A schedule properties belonged to the branch of one Sami Vaidyar. Plaint A Schedule Item No.1 has an extent of 33½ cents and Plaint A Schedule Item No.2 is admeasuring 42 cents. Sami Vaidyar referred to above died in the year 1942 leaving behind him his widow Choyichi who died on 17.6.1962 and 4 daughters S.A.No.22 of 1998 3 and a son. One Sarada who died on 18.11.1959, 1st plaintiff - Devaki, 1st defendant- Lakshmi and 2nd defendant Soudamini are the four daughters and one Sukumaran who died in the year 1976 was the son. Plaintiffs 2 to 9 are the children of Sarada referred to above. The 3rd defendant is the widow of Sukumaran referred to above and defendants 4 to 9 are his children. Defendants 11 to 13 are the heirs of the 1st defendant who died pending the suit. The 10th defendant is an alienee from the legal heirs of Sukumaran. The suit was filed on 1.9.88 by 1st plaintiff- (one of the daughters of Sami Vaidyar) and plaintiffs 2 to 9 who are the children of Sarada, the other daughter of Sami Vaidyar. 4. The suit was laid on the premise that item Nos.1 and 2 of the plaint A Schedule belonged to the branch of Sami Vaidyar and on his death in the year 1942, the suit properties devolved on his wife Choyichi, on whose death in the year 1962, (that is, after commencement of the Hindu Succession Act, 1956), succession opened and the plaintiffs are thus entitled to 2/5 shares in the plaint A Schedule Property. It was alleged that Sukumaran the son of Sami Vaidyar was entitled to 1/5 shares and defendants 1 and 2 were each entitled to 1/5 shares. S.A.No.22 of 1998 4 5. The 2nd defendant remained ex-parte. So also defendants 11 to 13 who are the legal representatives of the 1st defendant who died pending suit, also remained ex parte. Eventhough the 1st defendant entered appearance through counsel, he did not file any written statement. 6. The suit was resisted by defendants 3 to 9 who are the legal heirs of Sukumaran, the only son of Sami Vaidiar and Choyichi contending, inter alia, as follows:- The plaintiffs have no joint right or possession over the plaint A Schedule Properties. The plaint A schedule properties are agricultural lands which were set apart to Sami Vaidiar and his only son Sukumaran. On the death of Sami Vaidiar long prior to the commencement of the Hindu Succession Act, his half right over the plaint A schedule properties devolved on his only son Sukumaran who was in possession of the suit properties in his own right to the exclusion of his sisters and their children and the rights, if any, of the plaintiffs and the other defendants are lost by adverse possession and ouster. 7. On the side of the plaintiffs, the 4th plaintiff was examined as PW1and Exts.A1 to A12 were got marked. On the S.A.No.22 of 1998 5 side of the defendants the 9th defendant was examined as DW1 and Exts.B1 to B16 were got marked. 8. The learned Munsiff after trial, as per judgment and decree dated 3.2.93 dismissed the suit after repelling the contentions of the plaintiffs and holding that the succession opened in the year 1942 on the death of Sami Vaidiar after which date the property was exclusively dealt with by Sukumaran the only son of Sami Vaidiar until his death in the year 1976 as if it was his absolute property, that after the death of Sukumaran, the properties were dealt with by defendants 3 to 9 and that the rights, if any, of the plaintiffs were lost by adverse possession and ouster. The trial court also rejected the contention of the plaintiffs that on the death of Sami Vydiar his widow Choyichi who died in the year 1962 had a limited right both under the pristine Hindu Mithakshara Law as well as by virtue of the Hindu Women's Right to Property Act, 1937 and which limited right had ripened into a full right under Section 14(1) of the Hindu Succession Act, 1956. On appeal by the plaintiffs as A.S.No.22 of 1994 on the file of the District Court, Kozhikode, the learned District Judge as per judgment and S.A.No.22 of 1998 6 decree dated 18.6.1997 dismissed the appeal confirming the judgment and decree passed by the trial court. Hence this second appeal by the plaintiffs. 9. Reiterating the contentions of the plaintiffs, their learned counsel Sri.Sudhi Vasudevan made the following submissions before me in support of the appeal:- Ext.A7 is a Dhana Nischayam deed dated 16.11.1937 executed by the members of the Thavazhi of Chirukandan, the father of Sami Vaidyar Item Nos.1 and 2 of the present plaint A Schedule are respectively item Nos. 6 and 7 of Ext.A7 which contains an introductory recital that the arrangement thereunder is made for the enjoyment of Sami Vydiar and his family members including the wives of Sami Vydiar and his son Sukumaran. Eventhough the properties were given to Sami Vydiar and his son Sukumaran, since the properties under Ext.A7 were given for the enjoyment of their wives also, a vestige of title was conferred upon Choyichi the wife of Sami Vydiar for enjoyment. Subsequently, as per Ext.A3 Jenmam Assignment deed dated 11.07.1949 Choyichi had obtained an assignment of the Jenmam right over item No.2 of the plaint A Schedule with a S.A.No.22 of 1998 7 right to obtain possession from Sukumaran and his heirs after terminating the lease in their favour. Thus Choyichi had obtained a vestige of title both under Exts.A3 and A7 and the same ripened into a full right under Section 14(1) of the Hindu Succession Act, 1956 and on the death of Choyichi on 17.6.1962 her rights would devolve on her legal heirs in accordance with Class I of Schedule II to the Hindu Succession Act, 1956. The decisions in Masilamani Mudaliar and others v. Idol of Sri. Swaminathaswami Thirukoil and Others (1996)8 SCC 525C, Jose v. Ramakrishnan Nair 2003(3)KLT 999 and Santhosh & Ors v.Saraswathibai & Anr. AIR 2008 SC 500 will support the said view. The contention of defendants 3 to 9 that the plaint A Schedule Properties were agricultural lands in the year 1942 is also not correct. The entire property is having a total extent of 75.5 cents containing two buildings. Merely because there are 75 old coconut trees now seen in the property, it cannot be held that the property is an agricultural land, having regard to the tests laid down in M.D.Seminari v. P.J.John 1987 (2) KLT 748 and Sosamma Abraham v. State Bank of Travancore (2008 (2) KLT 965). Equally misconceived is the plaintiffs' contention S.A.No.22 of 1998 8 that since at the time of the death of Sami Vydiar he was already having a son, the opening a succession was not postponed or suspended. The said contention which has been accepted by the courts below is not sustainable in the light of the decisions in Daya Sigh v. Dhan Kur (AIR 1974 SC 665) and Kamalakshi v. Pankajakshan (ILR 1991(3) Kerala 500). In the last of the above rulings, the parties who were Thiyyas of Calicut and notwithstanding the fact that on the death of the father there was a son and the widow intervened, it was held that the succession remained suspended. 10. I am afraid that I cannot agree with the above submissions. Admittedly, the parties are Thiyyas of Kozhikode and they were governed by the Hindu Mithakshara law as modified by custom, if any. In the absence of any plea and proof of custom, the pristine Hindu Mithakshara Law would apply to the parties. The plaint A schedule properties were ancestral in character vis a vis the children of Sami Vaidyar. No custom has been pleaded or proved by the plaintiffs to the effect that widows and daughters are entitled to a share. Hence, applying the pristine Hindu Mithakshara Law ancestral properties would S.A.No.22 of 1998 9 devolve only upon the male children, and daughters would get only a right of maintenance till they are given away in marriage and the widow would be entitled to maintenance from the income from the property till her death or re-marriage. Eventhough, the introductory recitals in Ext.A7 would indicate that it was decided that executant Nos. 1 to 5 and their wives and children would jointly possess and take the income from the properties, items 6 & 7 therein which are items 1 and 2 of the plaint A Schedule properties have been specifically allotted to Sami Vydiar and his only son Sukumaran. Merely because after the death of Sami Vydiar his widow Choyichi had for a limited period paid the land revenue at a time when her son Sukumaran was a minor, will not confer on her any right over the properties. Ext.A3 as per which Choyichi obtained assignment of the Jenmam right (right of reversion) over item No.2 of Plaint A Schedule also specifically recites that as per Ext.A7, Dhana Nischayam deed the property was set apart to her husband Sami Vydiar and son Sukumaran, The possession column in Ext.A3 of the year 1949 shows that both before as well as at present Sukumaran is in possession. Thus, there is nothing in S.A.No.22 of 1998 10 Ext.A3 shows that Choyichi was in possession of any property in her capacity as the widow of Sami Vaidyar after the death of her husband. Under Ext.A2 she is given the right to evict Sukumaran, the tenant and to recover the property. Admittedly, until she died on 17.6.1962 Choyichi did not exercise her right to evict her son Sukumaran who was the tenant. Hence, the Jenmam assignment obtained by Choyichi under Ext.A3 did not in any way affect the right of Sukumaran who continued to be in possession as the tenant to the exclusion of all others including his mother. The contention of the plaintiffs that succession opened only in the year 1962 consequent on the death of Choyichi after the coming into force of Hindu Succession Act has been rightly repelled by the courts below. I am also not inclined to accept the theory of postponement of opening of succession advanced by the learned counsel for the appellants. Since the plaintiffs were given away in marriage, they had no right to inherit the property left behind by their father. When Choyichi was not in possession of the properties until her death in the year 1962 in recognition of her alleged right of maintenance, it cannot be said that she had any vestige of a right which would S.A.No.22 of 1998 11 ripen into a full right by virtue of Section 14(1) of the Hindu Succession Act. 11. Equally misconceived is the contention based on the Hindu Women's Right to Property Act, 1937. Both the courts below have concurrently held that the plaint A Schedule Properties were agricultural lands both in the year 1937 at the time of Ext.A7, Dhana Nischayam Deed as well as in the year 1942 when Sami Vydiar died. The existence of 75 coconut trees and the oral evidence of DW1 would go to show that the property was a coconut garden. Admittedly, the Hindu Women's Right to Property Act, 1937 had no application to agricultural lands. It was only by an amendment of the year 1946 that agricultural lands were also brought under the purview of the said Act so far as its application to the erstwhile Madras Presidency was considered. Thus in 1942 when Sami Vydiar died the said Act had no application to agricultural lands such as the plaint A Schedule Properties which were situated in the erstwhile Malabar area which was in the Madras Presidency. If so, there was no question of Choyichi acquiring any limited right under the said Act so as to get enlarged into an absolute right by virtue S.A.No.22 of 1998 12 of Section 14(1) of the Hindu Succession Act. Hence, the plaint A Schedule Properties cannot be treated as a widow's estate since no specific item of property was allotted to her in lieu of her claim of maintenance. There is no contention also that Choyichi got possession of the plaint A Schedule properties in recognition of any pre-existing right to maintenance. Her possession for a shortwhile after the death of her husband in the year 1942 was only for and on behalf of her minor son Sukumaran. But in the year 1949 itself we find in Ext.A3 document that it was her son Sukumaran who was in possession of property both before and after Ext.A3. Thus when succession opened immediately on the death of Sami Vaidyar in the year 1942 none of his female children were entitled to any share over the properties which were outstanding in the possession of her only son Sukumaran. Postponement of succession would have arisen only if Sukumaran had died without a male issue in which case alone the succession would open on the death of a limited owner. It is pertinent to note that the findings of the trial court that the rights, if any, of the plaintiffs have been lost by adverse possession and ouster does not appear to have been assailed S.A.No.22 of 1998 13 before the lower appellate court. The lower appellate court also did not interefere with the said finding. In the light of the foregoing discussion, I do not find any questions of law much less any substantial question of law arising for consideration in this second appeal. The questions of law formulated in the memorandum of appeal also do not arise for consideration in this second appeal which is accordingly dismissed in limine. Dated this the 29 th day of January, 2009. V. RAMKUMAR, JUDGE sj