IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR MONDAY, THE 12TH JANUARY 2009 / 22ND POUSHA 1930 SA.No. 394 of 1995(E) -------------------- AS.10/1990 of SUB COURT, TIRUR OS.94/1984 of MUNSIFF COURT, TIRUR .................... APPELLANTS: (APPELLANTS IN THE LOWER APPELLATE COURT - DEFENDANTS 1 TO 7 IN THE TRIAL COURT) ----------------------------------------------------------------------- 1. VAZHAKANNADI VELAYUDHAN'S CHILDREN SODHARAN. 2. MANI. 3. SASI. 4. JANAKI. 5. VASAN, NOW MAJOR, (WRONGLY SHOWN AS DASAN IN THE DECREE & JUDGMENT) 6. SURESH, NOW MAJOR, (WRONGLY SHOWN AS SURAN IN THE DECREE & JUDGMENT) 7. VAZHAKANNADI KUNHIMOL ALIAS KUNHIPENNU, W/O. VELAYUDHAN AND MOTHER OF APPELLANTS 1 TO 6. BY ADV. SRI.T.R.RAVI SRI.P.KUMAR DAS RESPONDENTS:- (RESPONDENTS IN THE LOWER APPELLATE COURT - PLAINTIFF AND DEFENDANTS 1 TO 14 IN THE TRIAL COURT) ------------------------------------------------------------------------------ 1. VAZHAKANNADI AYYAPPAN'S DAUGHTER KALLIANI. 2. VAZHAKANNADI MADHAVI'S CHILDREN MOOPIL MUKUNDAN. 3. MOOPPIL KALLIANI, W/O. BHARATHAN. 4. MOOPPIL SUBHADRA, W/O. VASU, S.A. No. 394/1995 : 2 : 5. MOOPPIL SOBHA, C/O. MUKUNDAN, MANGATTRI. 6. PALAPARAMBATH NARAYANAN. 7. MELATTIL ABDULLA'S DAUGHTER AYISUMMA. 8. PILAKKAL VEERANKUTTY'S SON MOIDEENKUTTY. (R3, R5, R7 AND R8 DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANTS AS PER ORDER DATED 11.06.2008 ON I.A.NO. 1213/2008 ADV. SMT.PREETHY KARUNAKARAN FOR R SRI.R.RAJESH KORMATH SMT.MEENA.A. SMT.M.R.MINI SRI.V.S.ROBIN THIS SECOND APPEAL HAVING COME UP FOR ADMISSION ON 12/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V. RAMKUMAR , J. ========================== R.S.A. No. 394 of 1995 ========================== Dated this the 12th day of January, 2009. JUDGMENT Defendants 1 to 7 in O.S. No. 94 of 1984 on the file of the Munsiff's Court, Tirur are the appellants in this Second Appeal. The said suit was one for partition and separate possession of two items of immovable properties. The suit was resisted by the appellant contending inter alia that the plaintiff who was a married daughter had not proved the custom set up by her and accordingly applying the pristine Hindu Mitakshara Law she would not be entitled to a share. The courts below, however, passed a preliminary decree for partition as prayed for after holding that the customary law set up by the plaintiff has been proved. Hence this Second Appeal. 2. The following are the questions of law formulated in the memorandum of Second Appeal:- 1. What is the law applicable to Thiyyas of Malabar with respect to succession before the commencement of Hindu Succession Act? 2. Are the courts below justified in relying on Ext.A1 alone and ignoring Exts. B2 to B7 and coming to the conclusion that according to the custom prevailing in the community in that area before the commencement of Hindu Succession Act daughter and wife are entitled to share in the properties of a deceased person? 3. Is the evidence adduced in this case is sufficient to prove the custom alleged by the plaintiff? 4. Are the court below justified in not applying Mitakshara law as customary law of the parties in the circumstances of this case? 5. Are the courts below justified in holding that defendants 1 to 7 have not proved ouster and adverse possession pleaded by them? 6. Will not the long and continuous possession of the properties by Velayudhan coupled with Exts. B2 to 7 constitute ouster? 7. Are the courts below justified in not inferring ouster pleaded by defendants 1 to 7, in the circumstances of this case? 8. Are not the judgment and decree of the court below vitiated for not applying the correct principles of law applicable in this matter? 9. Are not the judgment and decree of the court below vitiated for not properly appreciating the evidence available in this matter? 3. I heard the learned counsel appearing for the appellants. 4. The following are the facts either concurrently found, proved or admitted in the case:- The plaint schedule properties admittedly belonged to one Ayyappan who was a Hindu Thiyya of South Malabar. The said Ayyappan died sometime in the year 1942 or 1943. He was survived by his wife Kakki and two daughters and a son, Velayudhan. Madhavi and Kaliani are the two daughters of whom the plaintiff is the said Kaliani. Defendants 8 to 11 are the heirs of Madhavi and defendants 1 to 7 are the legal heirs of Velayudhan. The plaintiff contended that as per the customary law applicable to the parties, daughters were equally entitled to a share over the properties left behind by the father. Even though the appellants resisted the suit contending inter alia that there was no such customary law and therefore the Hindu law should be the law applicable to the parties and if so, the daughters would not be entitled to a share in the propert, Ext. A1 sale deed dated 21.07.1945 produced by the plaintiff showed that after the death of Ayyappan, his son Velayudhan assigned a portion of the property left behind by the father and at that time all the legal heirs of Ayyappan were joined in the said sale deed. Moreover, the recitals in the said sale deed also clearly showed that on the death of Ayyappan the executants namely the widow, two daughters and son of Ayyappan were entitled to the property by way of succession. This not only probilised but indispensably proved the contention of the plaintiff that as per the customary law applicable to the parties the female children were equally entitled to the property left behind by the father. The preliminary decree, therefore, does not call for any interference at the hands of this Court. No question of law, much less, any substantial question of law arises for consideration in this Second Appeal. The questions of law formulated in the memorandum of appeal also do not arise for determination in this Second Appeal which is accordingly dismissed in limine. Dated this the 12th day of January, 2009. V. RAMKUMAR, JUDGE. rv V. RAMKUMAR, J ------------------------------------ S.A. No. 394 of 1995 ---------------------------------------- 12th day of January, 2009. JUDGMENT