Ambujam Sharma v. K.N. Subramania Iyer and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.HARIPRASAD** **MONDAY ,THE 18TH DAY OF FEBRUARY 2019 / 29TH MAGHA, 1940** **RP.No. 446 of 2018 IN AS. 570/2000** **AGAINST THE JUDGMENT DATED 06-02-2018 IN AS 570/2000 of HIGH COURT OF KERALA.** ## **REVIEW PETITIONER/APPELLANT :** **AMBUJAM SHARMA, W/O. SHARMA, AGED 87 YEARS, "ASHOKA", 200 SANKAR NAGAR NEERMANKARA, THIRUVANANTHAPURAM.** **BY ADV. SMT.VANAJA MADHAVAN** ## **RESPONDENT/RESPONDENTS :** - **1 K.N.SUBRAMANIA IYER, S/O. NEELAKANDA IYER, NEELAKANTA NIVAS, PETTAH, POONITHURA,TRIPUNITHURA, ERNAKULAM 682 301.** **2 K.N THANKAMMAL, W/O. K. VENKITESWARAN, 3/37,RATIVASI, CO-OPERATIVE SOCIETY, 268 GHANSYAM GUPTA ROAD, DOMBIVILLI WEST, MUMBAI 421 201.** **3 SARADA, W/O. KULATHU IYER, MANJANKAL MADOM, THODUPUZHA, ERNAKULAM DISTRICT- 685 584.** **4 K. NEELAKANTA IYER, S/O. KULATHU IYER, KNB SURVEYOR (P) LTD, DOOR NO. VI/99-A, MAJOR INDUSTRIAL ESTATE, KALAMASSERY P.O., ERNAKULAM 683 109.** R.P No.446 of 2018 in - 2 - A.S No.570 of 2000 ## **5 K. BALAKRISHNA IYER,** - **S/O. KULATHU IYER, MANAGER (FSA), SUDARSANA STONEWARES AND TILES STANDARD POTERY WORKS COMPLEX AND TILES STANDARD POTERY WORKS COMPLEX, ALUVA P.O, ERNAKULAM DISTRICT 683 103.** - **6 K. RAMACHANDRAN, S/O. KULATHU IYER, MAJANKAL MADOM, TEMPLE ROAD, THODUPUZHA, ERNAKULAM DISTRICT-685 584.** - **7 K. SUBRAMANIA IYER, S/O. KULATHU IYER, MAJANKAL MADOM, TEMPLE ROAD, THODUPUZHA, ERNAKULAM DISTRICT - 685 584.** - **8 VASANTHA KRISHNAN, D/O. KULATHU IYER, "DESIREE", FIRST MAIN CAMBRIDGE LAY OUT, VALSOOR, BANGALORE - 560 008.** - **9 RAMASWAMI, S/O. KRISHNA IYER, SREE SABARI,VISHA VAIDYA SALA ROAD, PERUMTHANNI, THIRUVANANTHAPURAM-695 008.** - **10 R.KRISHNASWAMY, S/O. K.RANGASWAMY, SREE SABARI, VISHA VAIDYA SALA ROAD, PERUMTHANNI,THIRUVANANTHAPURAM-695 008.** - **11 R. NEELAKANDA IYER, S/O. K. RAMASWAMY, 14/1024, RESECOTT LANE, VAZHUTHACAUD, THIRUVANANTHAPURAM-695 014.** - **12 CHANDRA SUBRAMANIAN, W/O. RAMASWAMY, A7 MAYURI APARTMENTS, MANORAMA COMPLEX, VASTRAPURI, AHAMEDABAD-380 015.** - **13 V. SHANTA, W/O. LATE S. GOPAL, 3/37, RATIVASI CO-OPERATIVE SOCIETY, 268, GHANSYAM GUPTA ROAD, DOMBIVILLI WEST, MUMBAI-421 201.** - **R1, R3, R4, R5, R6 & R8 BY ADV.SRI.S.V.BALAKRISHNA IYER (SR.)** - **R1, R4 & R5 BY SRI.P.B.KRISHNAN.** **THIS REVIEW PETITION HAVING COME UP FOR ADMISSION ON 18.02.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** R.P No.446 of 2018 in - 3 - A.S No.570 of 2000 ## A.HARIPRASAD, J. -------------------------------------- R.P No.446 of 2018 in A.S No.570 of 2000 -------------------------------------- Dated this the 18th day of February, 2019 ## O R D E R Heard the learned counsel for the review petitioner and the learned Senior counsel appearing for the contesting respondents. 2. Review petition is filed by the appellant in A.S No.570 of 2000, decided by a learned Single Judge of this Court on 06-02-2018. The appeal was filed against the judgment and decree passed by the Court of Sub Judge, Thodupuzha in O.S No.160 of 1996. The trial court dismissed the suit filed by the review petitioner, finding that she has no partible right in the property. The matter was taken up in appeal to this Court and as per the aforementioned judgment, the learned Single Judge R.P No.446 of 2018 in - 4 - A.S No.570 of 2000 confirmed the decree passed by the trial court and dismissed the appeal. 3. Short facts, relevant for the disposal of the petition, are as follows : Petitioner is the daughter of one Neelakanda Iyer, who acquired certain properties. Admittedly, the parties are Hindus, governed by Mitakshara Law. Neelakanda Iyer had a wife by name Parvathy Ammal and five children. His eldest son was Kulathu Iyer. He passed away and his wife is third defendant and children are defendants 4 to 8 in the suit. The first defendant is another son of deceased Neelakanda Iyer. Second defendant is a daughter of deceased Neelakanda Iyer. Plaintiff is the next daughter of deceased Neelakanda Iyer. Rajammal was another daughter of Neelakanda Iyer, who died subsequently and her husband and children are defendants 9 to 12 respectively. Admittedly, Neelakanda Iyer died in the year1945. Parvathi Ammal died in the year 1977. Kulathu Iyer died in the year 1995. The plaintiff claimed 1/5 th right over R.P No.446 of 2018 in - 5 - A.S No.570 of 2000 plaint A and B schedule properties, which belonged to deceased Neelakanda Iyer. 4. Learned Single Judge, in the judgment, sought to be reviewed, considered the rival contentions and held as follows : “ 4. The plaint schedule properties belonged to Neelakanta Iyer, which is not disputed. He died intestate in 1945. He was governed by Mitakshara Law. The plaint schedule properties were admittedly his self acquired properties. On his death his right in the properties devolved only on his sons, in whose hands they are ancestral properties. 5. The Hindu Women's Rights to Property Act came into force in 1937. After the coming into force of the 1937 Act, a widow got the limited right mentioned in Section 3 of the Act in her husband's properties. This limited interest was called the widow's estate. It goes to the next heirs R.P No.446 of 2018 in - 6 - A.S No.570 of 2000 of the husband on her death. But, 1937 Act was not applicable to Part B States as mentioned in Section 1(2) of the Act. So, Parvathi Ammal did not get any right under 1937 Act. But, she had right of maintenance in respect of her husband's properties. She could have inherited her husband's separate property only in the absence of his immediate heirs (See Mulla on Hindu Law, 22nd Edition, Page 117). Daughters of a coparcener were entitled to legitimate marriage expenses (See Mulla Hindu Law, 22nd Edition, Page 646 & 733). Daughters were entitled to be maintained till their marriage out of the estate of their father. All the daughters including the plaintiff of Neelakanta Iyer were married off. 6. The properties inherited by the first defendant and his brother Kulathu Iyer were ancestral properties in their hands. Section 7 of the Hindu Succession Act, 1956 applies only where the death of the person concerned took R.P No.446 of 2018 in - 7 - A.S No.570 of 2000 place before the Act came into force [See Eramma v. Veerupana AIR 1966 SC 1879]. 7. Section 14 of the Hindu Succession Act applies only if the widow gets possession of a share in the joint family property in lieu of maintenance or arrears of maintenance or at a partition [See Ram Vishal & Others v. Jagan Nath & Another (2004 9 SCC 302)]. Parvathi Ammal did not get possession of any property in lieu of her maintenance or arrears of maintenance or at a partition. 8. In 2005, Section 6 of the Hindu Succession Act was amended by the Hindu Succession Amendment Act, 2005. But, the Joint Hindu Family System was abolished in Kerala by Act 30 of 1976 which came into effect on 01.12.1976. 9. The sum and substance of the above discussion is this: The plaint schedule properties which belonged to Neelakanta Iyer became ancestral properties in the hands of his sons R.P No.446 of 2018 in - 8 - A.S No.570 of 2000 namely, the first defendant and Kulathu Iyer. They along with their sons formed a coparcenery. The widow of Neelakanta Iyer had no right under the Hindu Women's Rights to Property Act, 1937 or under Section 14 of the Hindu Succession Act. The plaintiff or the other daughters of Neelakanta Iyer did not obtain any right under Section 8 of the Hindu Succession Act. Thus, the plaintiff has no right in the plaint schedule properties. The suit for partition filed by her is not maintainable. It was rightly dismissed by the trial court. In the result, this appeal is dismissed. ” 5. Learned counsel for the review petitioner contended that there is an error apparent on the face of the judgment as this Court did not consider the implication of a decision rendered by the Supreme Court in Civil Appeal Nos.188 and 189 of 2018 dated 01-02-2018. 6. Learned counsel for the review petitioner further contended that this decision was not considered by the learned Single Judge, when R.P No.446 of 2018 in - 9 - A.S No.570 of 2000 he disposed of the case on 06-02-2018. Learned Senior counsel for the respondent opposed the contention of the review petitioner by arguing that the principles in the decision rendered by the Supreme Court is not applicable to the facts of this case. 7. The scenario prevailing in the State after commencement of Kerala Joint Hindu Family System (Abolition) Act, 1975, which came into force on 1.12.1976, has to be considered. By advent of the Act, Hindu Mitakshara Joint Families and Marumakkathayam Families, have been subjected to a statutory partition (notional partition) with effect from 01-12-1976. It is very clear from the statute that in this State, after 01-12-1976, no joint family is in existence. It is a fundamental fact which cannot be denied that a joint family is a creation of law. Parties residing together under one roof cannot create a joint family. At the most, they can only create a co-ownership or tenancy-in-common. This legal concept shall not be lost sight of, only because of the fact that R.P No.446 of 2018 in - 10 - A.S No.570 of 2000 the parties did not choose to severe their joint interest in the property. But in this case, it is clear that the succession opened much prior to this Act, that is on the death of Neelakanda Iyer in 1945. So the amendment to Section 6 of the Hindu Succession Act, 1956, qualifying the daughters of a co-parcenar as a member of the co-parcenary has no effect in the State of Kerala. The amendment came into force with effect from 09-09-2005. On that date, there is no coparcenary in existence in the State. For this sole reason, the contention of the review petitioner has to fail. 8. On a careful reading of the decision of the Supreme Court relied on by the learned counsel for the review petitioner, it can be seen that the question posed before the court is whether a daughter born in the year 2001 had any right in the property by virtue of the amendment to Section 6 of the Hindu Succession Act, 1956. That was answered in the affirmative by the Supreme Court finding that the qualification R.P No.446 of 2018 in - 11 - A.S No.570 of 2000 required is that the person claiming the right must be in existence on the date of commencement of the amendment. Therefore, this cannot be a reason to upset the judgment of the learned Single Judge in this case. 9. It is a settled proposition of law that pronouncement of a decision, subsequent to disposal of the case, will not give rise to any ground for review. Further, review cannot be attempted as an appeal in disguise. Bearing in mind all these principles, I find no merit in the review petition. Hence, it is dismissed. All pending interlocutory applications will stand dismissed. A. HARIPRASAD, JUDGE. amk R.P No.446 of 2018 in - 12 - A.S No.570 of 2000 ## A.HARIPRASAD, J. ---------------- R.P No.446 of 2018 in A.S No.570 of 2000 -------------------Dated 18-02-2019 O R D E R