A.S.No.407 of 2002 (D)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN TUESDAY, THE 18TH DAY OF DECEMBER 2012/27TH AGRAHAYANA 1934 ## **A.S.No.407 of 2002 (D)** ---------------------------------------- [AGAINST THE DECREE AND JUDGMENT IN O.S.1572/1991 DATED 15.3.1999 OF THE COURT OF THE II ADDITIONAL SUBORDINATE JUDGE, THRISSUR]. ---------------------- **APPELLANT/** 2ND DEFENDANT:- ---------------------------------------------- * RAMAKRISHNAN KANJIRAMPARAMBIL HOUSE, PUNNA DESOM, MANATHALA AMSOM, CHAVAKKAD TALUK, TRICHUR DISTRICT (DIED - LEGAL HEIRS IMPLEADED). - ADDITIONAL APPELLANTS IMPLEADED: ADDL.APPELLANT 2. CHANDRAMATHY, AGED 60 YEARS, W/O.LATE RAMAKRISHNAN, KANJIRAMPARAMBIL HOUSE, PUNNA DESOM, MANATHALA AMSOM, CHAVAKKAD TALUK, TRICHUR DISTRICT. ADDL.APPELLANT 3. SAJITHAKUMARI.K.R., AGED 34 YEARS, D/O.LATE RAMAKRISHNAN, DO. DO. * THE LEGAL HEIRS OF DECEASED APPELLANT ARE IMPLEADED AS ADDITIONAL APPELLANTS 2 AND 3 AS PER ORDER DATED 24.10.2011 IN I.A.NO.1366/2010. ADDL.APPELLANTS 2 & 3 BY ADVS.SRI.N.N.SUGUNAPALAN (SENIOR ADVOCATE) SRI.BABU CHERUKARA SRI.BABY P. ANTONY SRI.MAHESH V.RAMAKRISHNAN. RESPONDENT(S)/PLAINTIFF/DEFENDANTS:: ------------------------------------ 1. MOHANDAS, KANJIRAPARAMBIL HOUSE, ALOOR P.O., ALOOR VILLAGE, MATTAM VIA., TRICHUR DIST. A.S.No.407 of 2002 -2 - 2. PRAVINKUMAR, AGED 32, S/O. BALAN, - KANJIRAPARAMBIL HOUSE, HOUSE NO.175, S.I.H.S. COLONY, AERODROME POST, COIMBATORE (T.N.). 3. RAJU, AGED 29, S/O. BALAN, - KANJIRAPARAMBIL HOUSE, HOUSE NO.175, S I H S COLONY, AERODROME POST, COIMBATORE, (T.N.) 4. MANOJ KUMAR, AGED 34, S/O. RAMAKRISHNAN, KANJIRAPARAMBIL HOUSE, PUNNA DESOM, MANATHALA AMSOM, CHAVAKAD TALUK, TRICHUR DISTRICT. 5. AJITHUKUMAR, AGED 31, S/O. RAMAKRISHNAN, KANJIRAPARAMBIL HOUSE, PUNNA DESOM, MANATHALA DESOM, CHAVAKAD TALUK, TRICHUR DISTRICT. 6. RAJEETHAKUMAR, AGED 29, S/O.RAMAKRISHNAN, - KANJIRAMPARAMBIL HOUSE, PUNNA DESOM, - MANATHALA AMSOM, CHAVAKKAD TALUK. 7. MEENAKSHI, W/O.LATE BALAN, - KANJIRAPARAMBIL HOUSE, S.I.H.S. COLONY, - H.NO.175, AERODROME POST, COIMBATORE. - R1 BY ADVS.SRI.P.VIJAYA BHANU (SENIOR ADVOCATE) SMT.M.M.DEEPA. R4 TO R6 BY ADV. SRI.P.JOSHY JOSE. THIS APPEAL SUIT HAVING BEEN FINALLY HEARD ON 18-12-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:- ## K. Vinod Chandran, J - - - - - - -- - - - - - - - - - - A.S.No.407 of 2002 - - - - - - -- - - - - - - - - - - Dated this the 18[th] day of December, 2012 ## JUDGMENT The plaintiff, before the Court below, sought partition of the property in the hands of his father's brother, the 2[nd] defendant. He claimed through his father, the 1[st] defendant, who released his rights to the 2[nd] defendant. Defendants 3 and 4 were his step brothers and defendants 5 to 7 were the sons of the 2[nd] defendant. 2. The brief facts as to how the plaint schedule property came into the hands of defendants 1 and 2 are as follows. Raman, Kanda and Kandu, who were brothers, obtained possession of the property by way of a registered lease deed. All the three died; but Kandu died issueless. Kunhikrishnan and Ayyappankutty were Raman's sons and Thami was Kanda's son. In the year 1972, by Exhibit A1 the plaint schedule properties were partitioned. Kandu having died issueless, the property was in the joint ownership and possession of Raman and Kanda; who were considered to have equal share. Kanda's share was set apart for his son Thami and Raman's share to Kunhikrishnan and Ayyappankutty, his sons. Ayyappankutty having passed away, A.S.No.407 of 2002 - 2 - his share devolved on the 1[st] defendant and the 2[nd] defendant. 1[st] defendant released his share in the property to the 2[nd] defendant by Exhibit B1. The suit was filed by the plaintiff, son of 1[st] defendant, claiming that 1[st] defendant had no alienable rights and that the male children of both 1[st] and 2[nd] defendants were entitled to share in the property, set apart to the share of deceased Ayyappankutty. 3. The suit was filed with the specific pleading that the parties are governed by Hindu Law, as modified by custom. The plaintiff sought for 1/8 share of the properties along with the 7 defendants, who, according to him, were entitled to one share each. The plaintiff also sought for mesne profits from defendants 1 and 2, since they were in possession and enjoyment of the properties. 4. Admittedly the parties were Thiyyas of Malabar. The defendants appeared and claimed that they do not follow the Mitakshara system of law. They claimed that only the male children, according to the custom prevailing in the locality, succeeded to the property of a deceased male member. The property in the hands of defendants 1 and 2 was contended as, A.S.No.407 of 2002 - 3 - not being joint family property; much less the property in the hands of the 2[nd] defendant after release from the 1[st] defendant. 5. The Court below framed issues with respect to the maintainability of the suit, partibility of the plaint schedule properties and also entitlement to mesne profits. The Court below noticed the contention of the plaintiff that the plaintiff and defendants are the followers of Hindu Law, modified by custom, and curiously found that this contention would mean that they are governed by Hindu Mitakshara Law. Strong reliance was placed on Exhibit A1, by which the division of properties between the four persons, as noticed above, was effected. The Court below found that in Exhibit A1 only the male members of the family were participated and admittedly both the generations had female children, for whom no share was set apart. The Court below relying on _**Rohini v. Sethumadhavan,**_ **1978 KLT 470 (FB),** found that in the absence of any proof regarding custom, the Hindu Mitakshara Law will be presumed to apply. The plaintiff having born on 21.05.1952, before the Hindu Succession Act, 1956 came into force, it was held that, by birth, he became a member of the co-parcenary family and was entitled to share in A.S.No.407 of 2002 - 4 - the property held by the family. The properties were held to be partible and the plaintiff's entitlement to 1/8 share was declared. The plaintiff was also found entitled to mesne profits for the past three years. 6. The learned counsel for the appellant/legal heirs of 2[nd] defendant, Sri.Mahesh V.Ramakrishnan, contended before me that the Court below proceeded on a misconception that the plaintiff's claim was based on Mitakshara Law. In fact, it was the plaintiff who claimed modification by custom, and in the context of there being no evidence adduced with regard to the said custom, the suit has to fail. 7. The learned counsel for the 1[st] respondent/plaintiff, Smt.Deepa.M.M., per contra, would contend that though it was pleaded that the parties are governed by pristine Hindu Law, modified by custom, the Court below has rightly found that the claim is based on Mitakshara Law. The fact that only male members were participated in Exhibit A1 would further indicate that the parties were governed by Mitakshara Law. 8. The entire controversy would turn on Exhibit A1 partition deed executed between the parties in the year 1972 and A.S.No.407 of 2002 - 5 - as to whether any inference can be drawn from the conduct of the parties as to the system or law of succession which they follow. It is the contention of the 1[st] respondent/plaintiff that the fact that female members were excluded would result in a presumption in favour of Mitakshara Law. It is also contended on the strength of _**Padmakshy & Others v. Madhavi & Others,**_ **2009 (3) KHC 702,** that in the absence of proof regarding custom, the parties; being Thiyyas of Chavakkad Taluk, formerly within Malabar, would be governed by the Hindu Mitakshara Law. The learned counsel for the appellants would alertly point out that there was absolutely no custom pleaded or established. He would also rely on _**Surendran v. Krishnan @ Krishnankutty,**_ **2003 (3) ILR Kerala 150,** in which though the presumption was noticed; on facts, the parties were held to be not governed by Hindu Mitakshara Law. 9. In the instant case, it was the plaintiff who pleaded modification by custom, but later latched on to the theory of Hindu Mitakshara Law. Both _**Surendran**_ and _**Padmakshy & Others**_ ( _supra_ ) noticed the Full Bench decision in _**Rohini**_ ( _supra_ ), as having held that the law applicable to the Thiyyas in A.S.No.407 of 2002 - 6 - Calicut is essentially customary law; but in the absence of proof regarding custom, parties are governed by Mitakshara Law. In _**Surendran**_ , on facts, the evidence adduced was held to be sufficient to prove that the parties are governed by customary law, while in _**Padmakshy**_ the parties were held to be governed by Mitakshara Law; in the absence of evidence of any custom. 10. The plaintiff here, bases his claim on the partition effected by Exhibit A1 and claims a share as of birth, being a co-parcener entitled to share in the family property as per Hindu Mitakshara Law. If that claim is upheld, then the property of Raman, Kanda and Kandu becomes family property in the hands of their sons and, of course, their sons too get a share by birth. Then the plaintiff could claim to a share in the property which devolved upon the sons of Raman and Kanda. He does not raise such a claim, though having been born in 1952. He claims a share only in the one-half of the half share of Raman set apart to the deceased Ayyappankutty's share. Hence, the plaintiff's claim is not succession under Mitakshara Law. He claims only one share in the property allotted to deceased Ayyappankutty and that is why he claimed modification by custom. But there was no A.S.No.407 of 2002 - 7 - pleading as to the particular custom governing the parties. Custom, of course, was not established and Mitakshara Law was just an after-thought. The Court below too, unknowingly stepped into the crevice left open by the misconception that the Full Bench ( _supra_ ) held that with respect to Thiyyas of Malabar, the Hindu Mitakshara Law would be presumed to apply. As noticed in _**Padmakshy & Others**_ ( _supra_ ), the Full Bench lays down that the law applicable to Thiyyas of Calicut is essentially a rule of customary law (para 11). 11. Exhibit A1 was entered into by Kunhikrishnan and Thami, who were the children of the original lessees along with defendants 1 and 2, who were the sons of another son. Effectively the partition was between the sons of Raman, Kanda and Kandu. Kandu, as noticed above, died issueless. Thami, being the only son of Kanda, was given one-half share of the total properties being the share of Kanda. The remaining brother Raman had two sons and his share was divided among the two sons Kunhikrishnan and Ayyappankutty. The share of the deceased son, Ayyappankutty, going to his sons; defendants 1 and 2. If the presumption was of co-parcenary property, then by A.S.No.407 of 2002 - 8 - birth every male member is entitled to share in the property. Exhibit A1 kept aside only the share of Ayyappankutty to his sons, viz., Balan and Ramakrishnan (defendants 1 and 2). If the parties were following Mitakshara Law, then Balan and Ramakrishnan as also their male children, by birth, would have acquired a share each in the property; in addition to their deceased father's share. They would then be entitled to share individually in Raman's property as also succeed to the share of their deceased father Ayyappankutty. The mere fact that they were contend with the share of their deceased father alone, would indicate that the parties were not governed by Mitakshara Law. Going by the partition effected by Exhibit A1, taking it as the custom established and followed by the parties, the plaintiff cannot lay any claims to the plaint schedule property during the lifetime of his father Balan. Balan (1[st] defendant) was alive at the time of filing of the suit and had released his share in the name of the 2[nd] defendant. In such circumstance, this Court is of the opinion that the Court below erred in granting partition of the properties and declaring the entitlement of the plaintiff to 1/8[th] share. A.S.No.407 of 2002 - 9 - On the strength of the above finding, the appeal stands allowed, the decree and judgment of the trial Court is set aside and the suit stands dismissed. The parties are directed to suffer their respective costs. Sd/K. Vinod Chandran, Judge vku/- - true copy -