IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID THURSDAY, THE 25TH MARCH 2010 / 4TH CHAITHRA 1932 AS.No. 610 of 2000(C) --------------------- OS.1211/1995 of I ADDL.SUB COURT, THRISSUR .................... APPELLANT/PLAINTIFF: ------------------ AMMINI, W/O.KARUVAN APPU, (DIED) MARATHAKKARA VILLAGE AND DESOM, THRISSUR TALUK. ADDL.2. SIVARAMAN, S/O.APPU, MARATHAKKARA DESOM, TRISSUR TALUK, THRISSUR DISTRICT. BY ADV. SRI.N.P.SAMUEL RESPONDENT/DEFENDANT: ------------------- KUTTAN, S/O. KARUVAN AYYAPPAN, CHEMBUKKAVU DESOM, THRISSUR VILLAGE, CHEMBUKKAVU POST, THRISSUR DISTRICT. SRI C.K.ARAVINDAKSHA MENON SRI.K.C.CHARLES SRI.A.BALAGOPALAN SRI.A.RAJAGOPALAN PRAKASH.P.GEORGE THIS APPEAL SUIT HAVING BEEN FINALLY HEARD ON 25/03/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: JUDGMENT This appeal was taken up for hearing continuously from l2/3/2010 to today. On these days neither the counsel nor the appellant is present. Today also, there is no representation, when the case was called. Appeal is dismissed for default. 25th March, 2010 Sd/- Harun-Ul-Rashid, Judge. True Copy P.S. to Judge. HARUN-UL-RASHID, J. ------------------------ A.S.No.610 Of 2000 ---------------------- Dated this the 25th day of June, 2010. J U D G M E N T The plaintiff in O.S.No.1211 of 1995 on the file of the Sub Court, Thrissur is the appellant. Suit was filed for partition of the plaint schedule property and for allotment of one half share with mesne profits. Pending appeal, the original plaintiff died and her legal representative was impleaded as additional appellant. Parties are hereinafter referred to as the plaintiff and defendant as arrayed in the suit. 2. Plaint schedule property is 32 cents of land in survey No.417/4 of Thrissur village. Plaintiff is the sister of the defendant. According to the plaintiff, the property originally belonged to Sankaran, brother of her father, Ayyappan. Sankaran died as a bachelor and on his death the property devolved on plaintiff's father Ayyappan. On the death of her father, the property devolved upon the plaintiff and defendant equally. Therefore the suit for partition was filed. The suit was resisted by the defendant, brother, contending that they belong to Karuvan community and that Karuvans follow Hindu A.S.No.610 Of 2000 ::2:: Mitakshara Law and not Hindu Mitakshara law as modified by custom. Defendant also contended that since the plaintiff was given in marriage in kudivaippu form on payment of dowry which represents her share in the property, she is not entitled to any share in the property. 3. Admittedly, parties belongs to Karuvan community. The Hindu Mitakshara law is applicable to Malayala Kammalas community. Malayala Kammalas follow modified form of Hindu Mitakshara Law and not Hindu Mitakshara Law as modified by custom. This fact is not disputed by either side. The law relating to intestate succession of Malayala Kammalas was decided in the decision reported in Damodaran v. Palu (1986 KLT 1259). This Court held that the Malayala Kammalas follow modified form of Hindu Mitakshara Law and not Hindu Mitakshara Law as modified by custom. It was held that when the modified form of Hindu Mitakshara Law followed by them is not disputed and when it is recognised by judicial pronouncements it is only a question of considering whether under the modified law the plaintiff is entitled to the property. A.S.No.610 Of 2000 ::3:: 4. This Court further held as follows: “Among the Malayala kammalas, there are mainly two forms of marriage, Sambandam form and Kudivaippu form. Daughters will lose their right in the family of birth only if they are given away in marriage in the Kudivaippu form on payment of streedhanam. Otherwise they will not become members of the family of the husband and they will continue to have the right in the family of birth. It is only by the Kudivaippu form that they are inducted as members of the family of the husbands. That is after receiving what is due from the family of birth. When a marriage is conducted, there is no presumption of law that it is in any particular form or whether streedhanam was paid or not. These are all matters for proof. The crucial question is whether the female members were given streedhanam on marriage and thereby they lost right in the family of birth. If that is proved, there may arise the presumption that the marriage was in the Kudivaippu form and they became members of the family of the husbands. That the marriage was on payment of streedhanam has to be proved by the person who so contends.” The trial court examined the question on the basis of the legal provisions stated in the aforesaid decision. When the plaintiff was examined as PW1, she admitted that the marriage was A.S.No.610 Of 2000 ::4:: conducted in the kudivaippu form. The defendant and his witnesses also testified before the court that the marriage of the plaintiff was conducted in kudivaippu form. The defendant also gave evidence stating that at the time of marriage the plaintiff was given streedhanam. PW1 also admitted that at the time of marriage she was given gold ornaments. When the plaintiff herself admitted that marriage was conducted in kudivaippu form naturally, she became a member of her husband’s family and thus she ceases to be a member of her family and the presumption is that she was given streedhanam at the time of marriage. A decision can be taken in this case without much effort since plaintiff herself admitted that the marriage was conducted in kudivaippu form and also that she was given gold ornaments at the time of marriage. The defendant and his witnesses also tendered evidence which would go to show that she was given streedhanam at the time of marriage. The trial court also held that her admission itself shows that she lost her right in the family by birth. A.S.No.610 Of 2000 ::5:: 5. In view of the legal position and the facts adverted to by the court below in detail and discussed by me in nutshell I find that the plaintiff is not entitled to any relief claimed in the suit. I agree with the conclusions and reasonings arrived at by the trial court. In the result, the appeal fails and accordingly, dismissed. No order as to costs. HARUN-UL-RASHID, Judge. bkn/-