IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN THURSDAY, THE 17TH JULY 2008 / 26TH ASHADHA 1930 SA.No. 160 of 1995(B) ----------------------------------- AS.86/1989 of SUB COURT, TIRUR OS.129/1983 of MUNSIFF COURT, TIRUR .................... APPELLANT/APPELLANT/1ST DEFENDANT: THEROTTIL KARI @ KUMARAN'S SON CHOYI, UZHOOR P.O., AYYAYA, MALAPPURAM DIST. BY ADV. SRI.K.P.DANDAPANI (SR.) SMT.SUMATHY DANDAPANI (SR.) RESPONDENTS/RESPONDENTS/PLAINTIFFS-D 2 TO 11: 1. THEROTTIL KARI @ KUMARAN'S DAUGHTER KURUMBA @ AMMUKUTTY, KUPPAIPARAMBIL HOUSE, P.O. TANUR, MALAPPURAM DIST. 2. KUMARAN'S DECEASED DAUGHTER'S HUSBAND THONDALAKUNNATH THEYYAN, THONDALA KUNNATH HOUSE, P.O.UZHOOR, DO. 3. CHILDREN OF 2ND PLAINTIFF MUNDI, SARADA, DO. DO. 4. MANI, D/O MUNDI, DO. DO. 5. ANASOOYA, DO. DO. 6. MANCHUNADHAN, S/O MUNDI, DO. DO. 7. VALIYAVEETTIL MANI, W/O KUMARAN (DIED) (LRs RECORDED).* 8. UNNOOLI, D/O LATE MANI, KALERIKKAL HOUSE, P.O.KODAKALLU, VIA VENNUPARAMBU, MALAPPURAM DIST. 9. KALLIANI, D/O LATE MANI, OTHAVANCHERRY HOUSE, PANANGATTOOR P.O. DO. 10. MEENAKSHI, THEROTTIL HOUSE, P.O.UZHOOR, AYYAYA, DO. 11. THEROTTIL KARAPPU'S WIFE KUNHIPENNU, THEROTTIL HOUSE, DO. DO. (DIED) (LRs RECORDED)** 12. THEROTTIL KARAPPU'S WIFE KUNHIPENNU'S CHILDREN DEVAKI, DO. DO. 13. SAROJINI, D/O THEROTTIL KARAPPU, DO. DO. 14. KARTHIAYANI, DO. DO. 15. UNNIKRISHNAN, S/O KARAPPU, DO. DO. 16. SUDHAKARAN, DO. DO. *Respondents 8, 9 & 10 are recorded as the LRs of deceased R7 vide order dt. 7.2.06 in memo dt. 31.1.06. **Respondents 12 to 16 are recorded as the LRs of deceased R11 vide order dated 17.10.06 in memo dt. 20.9.06. BY ADV. SRI.K.RAMACHANDRAN SRI.M.P.ASHOK KUMAR FOR SRI.P.RAMACHANDRAN THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 17/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON C.M.P. 484/1995 IN S.A. 160/1995 B DISMISSED 17.7.2008 SD/-K.P.BALACHANDRAN, JUDGE /TRUE COPY/ K.P. Balachandran, J. --------------------------- S.A.No.160 of 1995 --------------------------- JUDGMENT The appellant is the first defendant in O.S.No. 129/83 on the file of the Munsiff's Court, Tirur. Respondents are the plaintiffs and defendants 2 to 11. The 7th respondent/second defendant passed away and her legal representatives are respondents 8 to 10. Similarly, 11th respondent/sixth defendant passed way and her legal representatives are respondents 12 to 16. 2. Respondents 1 to 6, as plaintiffs, filed O.S.No.129/83 aforesaid for a decree for partition of Item No.1 of plaint B schedule property into seven equal shares and partition of Item No.2 of plaint B schedule property into fourteen equal shares and allotment of two such shares each to them, inter alia, on the allegations that plaintiffs and defendants belong to Thiyya community and they follow Hindu Law and Customary Law; that Item No.1 of the plaint B schedule SA 160/95 2 property was originally owned by deceased Kari, who is the father of the first plaintiff and first defendant as also late Mundi; that the second plaintiff is the husband of deceased Mundi and plaintiffs 3 to 6 are their children; that the second defendant is the second wife of deceased Kari and defendants 3 to 5 are her children born to Kari; that the sixth defendant is the wife of deceased Karappu, who is the brother of Kari and defendants 7 to 11 are the children of deceased Karappu; that deceased Kari is also called Kumaran; that Kari owned and possessed Item No.1 of plaint B schedule property in Kudiyiruppu right as per document No.466/1942; that Item No.2 of plaint B schedule property was obtained by deceased Kari and his brother deceased Karappu as per Document No. 465/1942 and they were in joint possession thereof; that Kari died on 4.5.1957; that after the death of Onnooli, the first wife of deceased Kari, he married the second defendant; that Karappu, the brother of Kari, died in the year 1970 and his SA 160/95 3 legal representatives are defendants 6 to 11; that the scheduled properties are in possession by the defendants as co-owners along with the plaintiffs, but the plaintiffs are denied mesne profits from the property by the defendants for the last about two years; that thereupon, the plaintiffs demanded their share in the ancestral property from the defendants, but they were not amenable to effect partition and therefore, notice was issued through Lawyer to the defendants on 2.2.1982 demanding partition, but they have not consented to effect partition; that on the other hand, the first defendant issued a reply notice denying the claim advanced, wherein they stated that father of the first plaintiff and first defendant died on 4.5.1956 and not on 4.5.1957; that he is in exclusive ownership and possession of the suit property and he alone is having right to inherit the property that belonged to the father; that B schedule properties were orally partitioned between himself and Karappu and accordingly, the share of SA 160/95 4 the first defendant was set apart and he is in exclusive possession thereof and that he obtained jenm purchase certificate in relation to the suit property; that all the contentions so advanced by the first defendant in his reply notice are false; that if at all, he has got purchase certificate, that is by fraudulent means, with a view to defeat the rights of the plaintiffs; that in the locality, in which the plaintiffs and defendants are living, those who belong to Thiyya community are followers of Customary Law in the matter of inheritance; that as per Customary Law applicable to the parties, who belong to Thiyya community, both sons and daughters have equal shares in ancestral properties and the said custom of inheritance is followed for the last many years among the Thiyyas; that therefore, the first plaintiff and Mundi have equal rights in the properties owned by deceased Kari; that even though the plaintiffs are entitled to mesne profits, they are demanding only future mesne profits and that the defendants, who are in possession of plaint B SA 160/95 5 schedule properties, are liable to pay mesne profits to the plaintiffs. 3. Defendants resisted the suit and they filed written statements. In the separate written statement filed by the first defendant, he admits that deceased Kari obtained Item No.1 of plaint B schedule property as per Deed No.466/1942 and that Item No.2 of plaint B schedule property is the property purchased by deceased Kari and his brother deceased Karappu; that in Item No.2, plaintiffs have omitted to include one tak to the property; that plaintiffs and defendants are followers of Hindu Law and Hindu Mithakshara Law for effecting partition; that Kari died on 4.5.1956 before coming into force the Hindu Succession Act and during his life time he married away the first plaintiff and deceased daughter Mundi by giving gold ornaments and utensils by pledging the property owned by him; that plaintiffs or defendants 2 to 5 have no manner of right or possession over Item No.1 of plaint B schedule property; that deceased Kari mortgaged the SA 160/95 6 property obtained by him as per Document No.465/42 and Item No.1 of Plaint B schedule property to Cholakkal Velukkutty for an amount of Rs.300/- on 22.5.1954 in order to marry away deceased daughter Mundi; that the first defendant, who is the only son of Kari, released the said mortgage on 3.9.1962 paying back the amount obtained by deceased Kari from Velukkutty and got back the properties from him; that the jenm right over Item No.1 of plaint B schedule property was also obtained by the first defendant for adequate consideration in good faith by a registered document dated 29.8.1962 and he is in exclusive possession and ownership of the said property; that the first tak in Item No.2 of plaint B schedule property was sold to Cholakkal Velukkutty as per registered sale deed dated 18.1.1956 jointly by deceased Kari and Karappu and they did not retain any right over the third tak in Item No.2 of Plaint B schedule property; that the said property was subsequently purchased by the first defendant's wife from the said Velukkutty on SA 160/95 7 25.5.1966 and subsequently she sold the same to one Kunhipathumma; that after the death of Kari, the first defendant, on the basis of a mediation, had effected oral partition of Item No.2 of plaint B schedule property and thereby the property measuring about 22 x 9 and 12 x 8 in Item No.2 of plaint B schedule property was set apart to the share of the first defendant and remaining portion of the said property was set up to the share of deceased Karappu; that thereafter the first defendant renewed the kychit in favour of jenmi on 18.7.1967 and on 25.11.1974, as per a registered deed, purchased the jenm rights in relation to the property from the jenmi and the said property also exclusively belongs to the first defendant and plaintiffs have no manner of right over the property described as Item No.2 in plaint B schedule property; that the contention of the plaintiffs that inheritance in the ancestral property is in equal shares to sons and daughters is not correct; that there is no such Customary Law SA 160/95 8 among the Thiyyas in the locality concerned; that the case of the plaintiffs is that they are entitled to equal shares along with the first defendant is incorrect; that the first defendant has made improvements in the scheduled properties and constructed a residential house investing his own funds; that it is incorrect to say that purchase certificate was obtained by the first defendant without the knowledge of the plaintiffs and fraudulently; that the first defendant is having valid title over the suit property and rights, if any, of the plaintiffs is barred by ouster, adverse possession and limitation by continuous peaceable and open enjoyment of the suit property by the first defendant for the last twelve years as a matter of right and even in the event of the suit property being found partible, the improvements effected in the property may be reserved to the share of the first defendant; that the plaintiffs have no right to get mesne profits and that the suit is bad for non-joinder of SA 160/95 9 necessary parties and for want of cause of action and that the suit is to be dismissed. 4. In the joint written statement filed by defendants 6 to 11, their contentions are that they belong to Thiyya community and before coming into force of the Hindu Succession Act, the law that was applicable was the Hindu Mithakshara Law in the matter of inheritance; that Kari, the father of the plaintiff and the first defendant died on 4.5.1956; that the first plaintiff and Mundi were given away in marriage giving gold ornaments and utensils; that they have no manner of right over the property left behind by deceased Kari; that defendants 6 to 11 are the legal representatives of deceased Karappu, who is the brother of deceased Kari; that Item No.2 of plaint B schedule property was owned by deceased Kari and Karappu jointly; that after the death of Kari, the legal heirs of deceased Kari and Karappu jointly entered into an oral partition and on the basis thereof is first tak in Item No.2 of plaint B schedule property was set apart to the SA 160/95 10 share of deceased Karappu and he obtained jenm right over that property and is in possession of the same exclusively ever thereafter; that after the death of Kari, defendants 6 to 11, who are the legal representatives of deceased Karappu, obtained purchase certificate from Tanur Land Tribunal and they are in exclusive possession and enjoyment of the said property; that the plaintiffs have no manner of right therein; that the remaining portion of Item No.2 of plaint B schedule property was set apart to the share of the first defendant and the first defendant is the exclusive owner thereof; that it is incorrect to say that plaintiffs and defendants are in enjoyment of the property in co- ownership; that plaintiffs or defendants 1 to 5 have no manner of right over the property owned by defendants 6 to 11; that even if it is found that plaintiffs have any right over the property owned and possessed by these defendants by reason of long possession for the last more than twelve years openly and peaceably, the rights, if any, of the SA 160/95 11 plaintiffs and defendants 2 to 5 is barred by adverse possession and ouster; that the plaintiffs have no cause of action against defendants 6 to 11; that the properties described in the schedule are not partible; that the plaintiffs have no manner of right to get decree for partition as claimed and that the suit is to be dismissed. At the stage of trial, defendants 2 to 5 remained absent and were set ex parte. 5. On the above pleadings, the trial court raised necessary issues for trial and after trial and considering also the evidence adduced at trial, which consisted of oral evidence of PWs 1 and 2 and DWs 1 to 3 and documentary evidence Exhibits A1 to A8 and B1 to B70, decreed the suit and passed a preliminary decree for partition, partitioning Item No.1 of plaint B schedule property and second tak in Item No.2 of plaint B schedule property into seven equal shares and allotment of one such share to the plaintiffs and allowing mesne profits to the plaintiffs from the first defendant in proportion SA 160/95 12 to their shares, leaving open the quantum of mesne profits to be determined in the final decree proceedings, leaving open also the right of the first defendant to claim reservations and equities to be decided in the final decree proceedings and enabling the plaintiffs to apply for passing of the final decree and directing further that cost of the suit shall come out of the estate. 6. Aggrieved by the decree so passed, the first defendant filed A.S.No.86/89 before the first appellate court impleading plaintiffs 1 to 6 and defendants 2 to 11 as respondents. The said appeal was dismissed by the first appellate court concurring with the findings of the trial court and hence this second appeal by the first defendant assailing the concurrent verdicts. 7. The second appeal was admitted on the following substantial questions of law as formulated in the appeal memorandum by the counsel for the appellant: SA 160/95 13 “i. Since the case set up by the respondents is on the basis that Kari died after the Hindu Succession Act, 1956 and hence, all the daughters are entitled to get the share, a question contradictory to the same could be set right when Exhibit B10 document was produced to rebut the contention of the plaintiffs? ii. Whether any judicial notice could be taken note of, of Annexures-A4, A6 and A8 partition deeds which completely disprove the custom that was set by the respondents? iii. Since Kari died on 4.5.1956, whether Hindu Succession Act has any application to the legal descendants of Kari?” 8. At the time of arguments, both sides have freely admitted that Hindu Succession Act is not applicable as far as inheritance is concerned, as Kari died prior to coming into force of the Hindu Succession Act. 9. It is vehemently contended before me by the learned counsel for the appellant that there is no specific pleading as regards the custom, enabling SA 160/95 14 the plaintiffs, who are females, from claiming equal shares to that of males of equal status. In paragraph 1 of the plaint, plaintiffs have alleged that they and defendants belong to Thiyya community and are relatives and are followers of Hindu Law and Customary Law and further in paragraph 9 that in the locality, where the plaintiffs and defendants as also their ancestors were residing, as per the custom that was being followed by the community in that locality, sons and daughters are entitled to get equal shares in ancestral property left behind by their father and that therefore, the first plaintiff and deceased Mundi, who are the daughters of Kumaran @ Kari, are entitled to equal shares along with the first defendant in plaint B schedule properties. The contention of the counsel for the appellant is that apart from making such a statement in the plaint, what the custom is, has not been specifically pleaded and therefore, there is no sufficient pleading to set up a claim on the basis of custom and the decrees of the courts below SA 160/95 15 are, therefore, unsustainable. 10. I see no merit in the said contention. The custom pleaded is specified as one whereby both sons and daughters are entitled to inherit equally in the property left behind by their father. That is denied by the first defendant in his written statement and on the basis thereof Issue No.6 is also framed by the trial court, which is to the following effect: “Whether the custom set up by the plaintiffs is correct? Thus, it is a case where, both parties met at trial with the specific understanding as to what was the claim advanced by the plaintiffs and as to what is the evidence to be adduced in answer to Issue No.6 framed as aforesaid. Plaintiffs have also produced Exhibits A4, A6 and A8 partition deeds respectively of the years 1958, 1972 and 1976, wherein all, shares in ancestral properties are allotted to the SA 160/95 16 daughters as well along with the sons. 11. It is the further contention of the counsel for the appellant that daughters are not seen given equal shares along with the sons in those partition deeds. The reason for not giving equal shares is also stated in those partition deeds, the reason being that daughters were given gold ornaments and household utensils at the time of their marriage and the value thereof was to be set off against their due shares and such an arrangement was being made as stated in those partition deeds itself, on mediation. 12. Further, it is worthy to note that it is not the contention of the first defendant that married daughters are not entitled to equal shares along with the sons, but, that, daughters are not entitled to any share at all in ancestral property that devolves on the death of their father. It is one thing to say that daughters are not entitled to any share in the property left behind by their father and it is another thing to say that SA 160/95 17 daughters are not entitled to equal shares along with the sons. In the instant case, the contention of the first defendant is only that the custom that was prevalent in the community does not entitle a daughter to claim share in the ancestral property along with the sons on the death of their father. The said contention stands answered on the plaintiffs producing Exhibits A4, A6 and A8 partition deeds and the further argument that under those documents daughters were not given equal shares is not a contention that lies in the mouth of the first defendant at this stage, when he has resisted the claim in toto. 13. It is also found by the courts below that Exhibit A4 partition deed is one executed among the members of the family of the second defendant, who is the second wife of Kari and from the said deed, the second defendant was allotted one share in the property left behind by her deceased father. If at all there was no custom of daughters also sharing ancestral property along with the sons, the second SA 160/95 18 defendant would not have obtained a share in the properties left behind by her late father. 14. All the same, it is worthy to note that DW1, the contesting first defendant, himself has admitted that prior to 1956, they were following the custom of the community and the custom that was followed was very ancient. Thus, obviously, the community was following an ancient system in the matter of inheritance that has been accepted as a custom and the only question is what that custom is. It is for determination of that custom that plaintiffs produced Exhibits A4, A6 and A8 partition deeds. Therein, it is seen, as discussed above, that daughters are also given shares in the ancestral property left behind by their father along with the sons. Hence, the contentions raised on behalf of the appellant by the learned counsel are devoid of merit and deserve only to be repelled. Consequently, therefore, decree passed by the trial court awarding share to the plaintiffs and confirmed in appeal by the first appellate SA 160/95 19 court deserves only to be confirmed and the second appeal dismissed. In the result, confirming the correctness of the concurrent verdicts passed by the courts below, I dismiss this second appeal. 17th July, 2008 (K.P.Balachandran, Judge) tkv SA 160/95 20 K.P.Balachandran, J. --------------------- S.A.No. 160 of 1995 --------------------- JUDGMENT 17th July, 2008