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

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE K.ABRAHAM MATHEW** **TUESDAY, THE 6TH DAY OF FEBRUARY 2018 / 17TH MAGHA, 1939** **AS.No. 570 of 2000** **AGAINST THE DECREE & JUDGMENT IN OS 160/1996 OF SUB COURT, THODUPUZHA DATED 31-07-2000** ## **APPELLANT(S)/PLAINTIFF:** **AMBUJAM SHARMA, “ASHOKA” 200 SANKAR NAGAR, NEERMANKARA, THIRUVANANTHAPURAM** ## **BY ADV.SMT.VANAJA MADHAVAN** ## **RESPONDENT(S)/DEFENDANTS:** **1. K.N.SUBRAMANIA IYER, S/O NEELAKANDA IYER, NEELAKANTA NIVAS, PETTAH, POONITHURA, TRIPPUNITHURA** - **2. K.N.THANKAMMAL, W/O K.VENKITESWARAN,** _**(DIED) LRs IMPLEADED**_ **3/37 RATIVASI, CO-OPERATIVE SOCIETY 268 GHANSYAM GUPTA ROAD, DOMBIVILLI WEST, MUMBAI - 421201.** **3. SARADA, W/O KULATHU IYER, MANJANKAL MADOM, THODUPUZHA** **4. K.NEELAKANTA IYER, S/O KULATHU IYER, KNB SURVEYOR (P) LTD. DOOR NO.VI/99 A, MAJOR INDUSTRIAL ESTATE, KALAMASSERY P.O. 683109.** **5. K.BALAKRISHNA IYER, S/O KULATHU IYER, MANAGER (FSA), SUDARSANA STONEWARES AND TILES STANDARD POTTERY WORKS COMPLEX, ALUVA P.O.** **6. K.RAMACHANDRAN, S/O KULATHU IYER, MANJANKAL MADOM, TEMPLE ROAD, THODUPUZHA** **7. K.SUBRAMANIA IYER, S/O KULATHU IYER, MANJANKAL MADOM, TEMPLE ROAD, THODUPUZHA** **8. VASANTHA KRISHNAN, D/O KULATHU IYER, “DESIREE”, FIRST MAIN CAMBRIDGE LAY OUT, VALSOOR, BANGALORE.** **9. RAMASWAMI, S/O KRISHNA IYER, SREE SABARI, VISHA VAIDYA SALA ROAD, PERUMTHANNI, THIRUVANANTHAPURAM** **10. R.KRISHNASWAMY, S/O K.RAMASWAMY, SREE SABARI, VISHA VAIDYA SALA ROAD, PERUMTHANNI, THIRUVANANTHAPURAM** **11. R.NEELAKANDA IYER, S/O K.RAMASWAMY, 14/1024, ROSECOTT LANE, VAZHUTHACAUD, THIRUVANANTHAPURAM** **AS.No. 570 of 2000** - **------------------** ## **12. CHANDRA SUBRAMANIAN, W/O RAMASWAMY, A7 MAYURI APARTMENTS, MANORAMA COMPLEX, VASTRAPURI, AHAMEDABAD.** - **ADDL.R13. V.SHANTA, W/O LATE S.GOPAL, 3/37, RATIVASI CO-OPERATIVE SOCIETY, 268, GHANSYAM GUPTA ROAD, DOMBIVILLI WEST, MUMBAI - 421201** - _**THE LEGAL HEIR OF DECEASED 2ND RESPONDENT IS IMPLEADED AS ADDL.R13 VIDE ORDER DATED 28.10.2016 IN CMP NO.4713/2001.**_ **R1, R3, R4, R5, R6 & R8 BY ADV.SRI.S.V.BALAKRISHNA IYER (SR.) R1, R4 & R5 BY SRI.P.B.KRISHNAN** **THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 06-02-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **BKA/** ## **K. ABRAHAM MATHEW, J.** -------------------------------------------------- A.S. No. 570 of 2000 -------------------------------------------------Dated this the 6[th] day of February, 2018 ## **J U D G M E N T** This appeal arises from the judgment and the decree passed in OS No.160/1996 on the file of the Sub Judge, Thodupuzha, by which the suit was dismissed. The plaintiff is the appellant. The parties are referred to as they appear in the plaint. 2.The suit was for partition. The plaint schedule properties belonged to one Neelakanta Iyer, who was governed by Mitakshara Law. Parvathy Ammal was his wife. He died intestate in 1945. The first defendant is their son. They had another son by name Kulathu Iyer, who died and whose wife and and children are defendants 4 to 8. The plaintiff and the second defendant are the two daughters of Neelakanta Iyer and Parvathy Ammal. They had another daughter by name, Rajammal, who died and whose husband and children are defendants 9 to 12. Neelakanta Iyer's wife, Parvathy A.S. No. 570 of 2000 ..2.. Ammal, died intestate in 1977. In the plaint the plaintiff claimed that on the death of Neelakanta Iyer and his wife, Parvathy Ammal, the plaint schedule property belonging to Neelakanta Iyer devolved on their children equally. On the death of Kulathu Iyer, his 1/5 share devolved on defendants 4 to 8 and on the death of Rajammal, her 1/5 share devolved on defendants 9 to 12. The plaintiff prayed for partition of the properties and separation of her 1/5 share and realization of her share in the income from the properties. In the written statement filed by the first defendant it is stated that on the death of Neelakanta Iyer his daughters did not get any right in his properties. Parvathy Ammal gave of her properties to the first and fourth defendants by a Will. The suit is liable to be dismissed. The trial court, after trial, found that the plaintiff nor the second defendant nor defendants 9 to 12 have any right in the plaint schedule properties, and accordingly, it dismissed the suit. A.S. No. 570 of 2000 ..3.. - 3.Heard the learned counsel for the appellant and the learned senior counsel for the first respondent. - 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 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. A.S. No. 570 of 2000 ..4.. She could have inherited her husband's separate property only in the absence of his immediate heirs (See Mulla on Hindu Law, 22[nd] Edition, Page 117). Daughters of a coparcener were entitled to legitimate marriage expenses (See Mulla Hindu Law, 22[nd] 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 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 &** A.S. No. 570 of 2000 **==> picture [20 x 8] intentionally omitted <==** **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 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 A.S. No. 570 of 2000 **==> picture [20 x 8] intentionally omitted <==** 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. Sd/- **K. ABRAHAM MATHEW JUDGE** bka/