IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 22ND NOVEMBER 2010 / 1ST AGRAHAYANA 1932 AS.No. 233 of 1994() ------------------------- OS.100/1987 of SUB COURT, OTTAPALAM .................... APPELLANT(S)/(PLAINTIFF) --------------------------------- UNNIKRISHNAN, S/O. KUNHAN, NADUVILATHETHIL HOUSE, MANHAKAD, SHORANUR-1, PALGHAT DISTRICT. BY ADVS. SMT.PREETHY KARUNAKARAN SMT.JAYASREE.S. SRI.R.RAJESH KORMATH SMT.MEENA.A. SMT.M.R.MINI SMT.SANJANA R.NAIR SRI.JAYKAR.K.S. SRI.RAHUL VARMA SRI.V.S.ROBIN RESPONDENT(S):(DEFENDANTS) -------------------------------------- *1. AMBUJAKSHI, W/O.KUNNATH GOPALA DEV, SHORANUR-1, OTTAPALAM TALUK, PALGHAT DISTRICT. (DIED) LR'S RECORDED. * IT IS RECORDED THAT THE 1ST RESPONDENT DIED AND THAT THE RESPONDENTS 2 TO 10 ALREADY IN THE PARTY ARRAY ARE HER LEGAL REPRESENTATIVES VIDE ORDER DATED 16/08/2007 ON MEMO DTD. 03/07/2006 CF. 2457/2006 *2. VISWAMBARAN, S/O.KUNNATH GOPALA DEV, -DO- DIED LR'S IMPLEADED. 3. DAYANANDAN, S/O. -DO- -DO- *4. ASHOKAN, S/O. -DO- -DO- DIED LR'S IMPLEADED. 5. HARIDAS, S/O. -DO- -DO- 6. RADHA, D/O. -DO- -DO- 7. RAEENDRAN, S/O. -DO- -DO- ......2/-... ...2... 8. RAJAN, S/O. -DO- -DO- 9. SIVAPRASAD, S/O. -DO- -DO- 10. RAGHUPATHI, S/O. -DO- -DO- 11. N.K. SAROJINI, W/O. VASUDEVAN AND D/O. KRISHNAN VAIDYAR, PANTHAPILAVILA HOUSE, AYATHIL, VADAKKEVILA VILLAGE, QUILON. 12. N.K. SARASWATHY, C/O. N.K. BHASKARAN, THALAKKANATH HOUSE, P.O. THEKKEVILA, QUILON. 13. N.K. SAVITHRI, W/O. PURUSHOTHAMAN, 'LINES DALE', ERAVIPURAM VILLAGE, THEKKEVILA CHERIYIL THEKKUMBHAGATH THEKKETHIL, P.O. THEKKEVILA, QUILON. 14. N.K. BHASKARAN, S/O. KRISHNAN VAIDYAR, THALAKKANATH HOUSE, P.O.THEKKEVILA , QUILON. *15. N.K. BALAKRISHNAN, S/O. KRISHNAN VAIDYAR, PADMA NIVAS, MUNDAKKAL P.O., QUILON.DIED. 16. N.K. PRABHAKARAN, C/O. N.K. BALAKRISHNAN, -DO- -DO- 17. T. KESAVAN, PRESIDENT, SREE NARAYANA SAMAJAM, MUNDAMUKA AMSOM, NEDUNGOTTOOR DESOM, SHORANUR, OTTAPALAM TALUK, PALGHAT DISTRICT. ** ADDL. R18 TO R19 IMPLEADED 18. KOMALAM, W/O.K.G. VISWAMBARAN, KUNNATH HOUSE, MUNDUMUKA 'AMSOM, NEDUNGOTTOOR DESOM, MANJAKKAD, SHORANUR P.O., PALAKKAD DISTRICT-679 121. 19. RANJITH, S/O.K.G. VISWAMBARAN, KUNNATH HOUSE, MUNDUMUKA 'AMSOM, NEDUNGOTTOOR DESOM, MANJAKKAD, SHORANUR P.O., PALAKKAD DISTRICT-679 121. * ARE IMPLEADED THE LEGAL REPRESENTATIVES OF THE DECEASED R2 AS ADDL. R18 & R19 AS PER ORDER DATED 03/06/2010 IN I.A. 1758/2006. * ADDL. R20 TO R22 ARE IMPLEADED 20. RADHAMANI, W/O.K.G.ASOKAN,KUNNATH HOUSE, MUNDUMUKA 'AMSOM, NEDUNGOTTOOR DESOM, MANJAKKAD, SHORANUR P.O., PALAKKAD DISTRICT-679 121. 21. ANJU, D/O.K.G.ASOKAN,KUNNATH HOUSE, MUNDUMUKA 'AMSOM, NEDUNGOTTOOR DESOM, MANJAKKAD, SHORANUR P.O., PALAKKAD DISTRICT-679 121. ....3/-.. ...3... 22. ANU, S/O.K.G.ASOKAN,KUNNATH HOUSE, MUNDUMUKA 'AMSOM, NEDUNGOTTOOR DESOM, MANJAKKAD, SHORANUR P.O., PALAKKAD DISTRICT-679 121. * ARE IMPLEADED AS L.R.S OF THE DECEASED 4TH RESPONDENT ARE ADDL. R20 TO R22 AS PER ORDER DATED 03/06/2010 IN I.A. 1760/2006 * ADDL. R23 TO 26 ARE IMPLEADED 23. RAMA BALAKRISHNAN,W/O.N.K.BALAKRISHNAN, LAKSHMI PADMAM (THALAKKANATH), PANTHRANDU MURI NAGAR, THATTAMALA, KOLLAM. 24. SHYAM SUNDAR, S/O.N.K.BALAKRISHNAN, LAKSHMI PADMAM (THALAKKANATH), PANTHRANDU MURI NAGAR, THATTAMALA, KOLLAM. 25. BITHA, D/O.N.K.BALAKRISHNAN, LAKSHMI PADMAM (THALAKKANATH), PANTHRANDU MURI NAGAR, THATTAMALA, KOLLAM. 26. LATHA, D/O.N.K.BALAKRISHNAN, LAKSHMI PADMAM (THALAKKANATH), PANTHRANDU MURI NAGAR, THATTAMALA, KOLLAM. * ARE IMPLEADED AS THE LEGAL REPRESENTATIVES OF THE DECEASED 15TH RESPONDENT ARE IMPLEADED AS ADDL. R23 TO R26 AS PER ORDER DATED 03/06/2010 IN I.A. 1762/2006. R1 TO R10 BY ADV. SRI. T.R.RAVI R17 BY ADV. SRI.T.KRISHNANUNNI, R16 BY ADV. SRI.G.PRABHAKARAN R20,24 TO 26 BY ADV. SRI.G.PRABHAKARAN THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 22/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs/ ORDER ON I.A. NO. 3915/2006 IN A.S. NO. 233/1994 DISMISSED 22/11/2010 SD/- M.N. KRISHNAN, JUDGE /TRUE COPY/ P.A. TO JUDGE svs/ M.N. KRISHNAN, J. = = = = = = = = = = = = = = = A.S. NO. 233 OF 1994 = = = = = = = = = = = = = = = Dated this the 22nd day of November , 2010. J U D G M E N T This appeal is preferred against the judgment and decree passed by the Subordinate Judge, Ottapalam in O.S.100/87. The suit is one for partition. Now the brief facts which are necessary for the disposal of the appeal are stated as follows. The crux of the matter is that the property described in the plaint schedule was allotted to one Krishnan Vaidyar as per a partition deed of the year 1941. This Krishnan Vaidyar had executed a Will in favour of Gopaldev who is the predecessor in interest of defendants 1 to 10. Defendants 11 to 16 are the other legal representatives of Krishnan Vaidyar. This Gopaldev is the nephew of A.S. NO. 233 OF 1994 -2- Krishnan Vaidyar. The plaintiff is the purchaser of shares of D11 to D16. Now the contention is that the property was set apart to the share of Krishnan Vaidyar as per a family partition and therefore it becomes a coparcenery property in the hands of Krishnan Vaidyar when sons are born to him. When it is so, if sons are born prior to the coming into force of the Hindu Succession Act, it is contended that at the most that a Will that is executed by Krishnan Vaidyar in favour of Gopaldev can be only in respect of his share which he is entitled under the law. On the other hand the contesting defendants would submit that as per the custom followed by the community the right of the children of Krishnan Vaidyar arises only on his death and as Krishnan Vaidyar had executed a Will in favour of Gopaldev prior to his death the whole property A.S. NO. 233 OF 1994 -3- had devolved upon the legatee under the Will and so the plaintiff is not entitled to get any right over the property. 2. The questions to be decided are (1) what will be the impact of the decision of the Kerala High Court in the decision reported in 1992 (1) KLT 216 and (2) what is the law that has been followed by the community of the plaintiff and defendants whether it is the real Hindu Mithakshara law or the Mithakshara law as modified by custom. 3. It is fundamental that custom or usage outweighs the written texts of law. So if there is a concrete proof of a particular custom prevailing in a community then that will prevail and the devolution of the property has to be done accordingly. 4. Now let me first consider about Chittur Service Co-operative Bank Ltd. v. Kumaran (1992 (1) A.S. NO. 233 OF 1994 -4- KLT 216). It was a case where there was a division between father and sons and the property was set apart to the share of the father. It was considered whether that property will assume the characteristic of a coparcenery property whereby his children will get right by birth. After consideration of the various decisions this Court came to a conclusion that by virtue of S.8 of the Hindu Succession Act the modality of devolution has changed and when the property is set apart to an individual in a partition it will have the characteristic of the joint family property as per the provisions of S.8 of the Hindu Succession Act. It was a case where the devolution, the partition and everything had taken place after the coming into force of the Hindu Succession Act 1956. So under these circumstances the learned judge of this Court stated, by the purport of S.8 of the Hindu A.S. NO. 233 OF 1994 -5- Succession Act the person has got the property will have the absolute right over the property. 5. Now when coming to the facts of the present case it was Krishnan Vaidyar who got the property in the year 1941 by virtue of a partition. None of his children were parties to the partition deed. The property was set apart to Krishnan Vaidyar and the children of Krishnan Vaidyar were born prior to the coming into force of the Hindu Succession Act. Under the pristine Hindu Law when a father gets a property under a partition and subsequently a child is born to him then the father's right will be reduced for the reason that the son will acquire the right by birth or in other words by the birth of the son he becomes a member of the coparcenery which entitles him in law to get a right in the property. When it is so the Hindu Succession Act S.8 will not be applicable and it A.S. NO. 233 OF 1994 -6- will be only S.6 that will be applicable. When S.6 is made applicable and when there is a division by Krishnan Vaidyar or a coparcenery, the property in which the right which that person acquires have to be divided. So it is very clear that if it is a joint family property it has to be dealt with u/s 6 subject to the provisions in the proviso to the said section. 6. Now this Court in the decision reported above had referred to a decision of the Madras High Court reported in Addl. I.T. Commissioner v. P.L.K.Chettiar(AIR 1979 Madras 1). It was also a case where there was a partition between father and son and subsequently it was the father's property that has to be dealt with. Then the Court held that father and son had divided and so father's property becomes his property and therefore undoubtedly only S.8 will apply. But so far as this case is A.S. NO. 233 OF 1994 -7- concerned it is not so. Therefore the contention that 1992 (1) KLT 216 will govern the field in the facts and circumstances of the present case cannot be said to be correct. The Court has to examine whether proviso to S.6 has any relevance and if it is applicable then the Court may have to consider the impact of S.8 of the Hindu Succession Act as well. 7. Now the next question is regarding the custom. If really there is any custom followed by the parties then it would be applicable to them. According to the plaintiff by the custom the children also becomes member of the coparcenery thereby acquire the right by birth. On the contra the defendants would contend that the question of inheriting any right only arises after the death of the father and when it is so the father has got the power to dispose during his life time. So the A.S. NO. 233 OF 1994 -8- question of that also depends upon the evidence that has to be adduced before Court. It is a well settled proposition of law, unless there is a custom proved it will be the original Hindu Law or rather the pristine Hindu Law that will be made applicable. But this custom is a matter and both the parties have to prove before Court and when it is to be analysed most probably the issue of polyandry may also loom large for consideration. 8. In a polyandry system when a lady is married by more number of males the paternity is conferred according to the seniority of the individual and therefore in such cases there can be always a different custom rather than the way it is followed by the regular followers of pristine Hindu Law. Now the arguments are raised before me regarding the admissions made in the previous suits etc. Plea in the previous suit is constituted in A.S. NO. 233 OF 1994 -9- one direction, i.e., it is submitted that the children of Krishnan Vaidyar got the property only on his death. So it is argued that the parties have understood that by the law followed by them hitherto the child gets right only after the death of the father. That by itself alone may not be sufficient to hold that it was a particular custom prevailing in a particular community. It may be an instance of evidence which can throw some light on the subject but it cannot be taken as a conclusive proof to hold that it was the custom prevailing in the community. It has also to be stated admission is the best piece of evidence but an admission made in a previous proceedings can be conclusive and binding only when the person has failed to prove the circumstances under which he has made such an admission. So these are all grounds which requires factual consideration as well. So I feel the A.S. NO. 233 OF 1994 -10- matter has to go back and the parties be permitted to adduce evidence. Therefore in the light of the discussions made above the judgment and decree of the trial court are set aside and the matter is remitted back to the trial Court with the following directions. (1) The Court shall consider whether the properties are to be dealt with under S.6 of Hindu Succession Act including the proviso. If the proviso applies whether Sec.8 will have any bearing is also to be considered. (2) The parties be permitted to adduce evidence regarding custom and if the custom is proved then the question of deciding point No.1 may not arise at all. The evidence also may be permitted to be let in to prove the execution of the will. 9. For this purpose all the parties A.S. NO. 233 OF 1994 -11- concerned are permitted to produce both documentary as well as oral evidence in support of their respective contentions, then the matter be disposed of in accordance with law. Parties are directed to appear before the trial court on 22.12.10. M.N. KRISHNAN, JUDGE. ul/- A.S. NO. 233 OF 1994 -12- M.N. KRISHNAN, J. = = = = = = = = = = A.S. NO. 233 OF 1994 = = = = = = = = = = = J U D G M E N T 22nd November, 2010.