Janardananan Pillai (deceased) v. Lalithamma

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR** **FRIDAY, THE 24[TH] DAY OF SEPTEMBER 2021 / 2ND ASWINA, 1943** ## **RSA NO. 191 OF 2009** [Against the judgment and decree dated 11.4.2008 passed by the District Court, Kollam in A.S.No.33/2007 arising from the judgment and decree dated 27.3.2006 in O.S.No.388/2002 of the Munsiff Court, Karunagappally] ## **APPELLANT/APPELLANT/DEFENDANT:** 1 JANARDANAN PILLAI (DIED), PLAKOTTU THUNDIL VEETTIL, KOTTAKKAKOM MURI, CHAVARA VILLAGE, KOLLAM DISTRICT. ADDITIONAL APPELLANT IMPLEADED 2 ADDL.A2 SREEKUMAR S/O. JANARDHANAN PILLAI, PLAKOTTU THUNDIL VEETIL, KOTTAKKAKOM MURI, CHAVARA VILLAGE, KOLLAM DISTRICT. ADDL. APPELLANT IS IMPLEADED BEING THE legal heir OF THE DECEASED APPELLANT VIDE ORDER DATED 2/09/2011 IN IA 1880/2011 BY ADVS. SRI.SHABU SREEDHARAN SRI.ABHILASH S.FRANCIS SRI.C.K.PRASAD ## **RESPONDENT/RESPONDENT/PLAINTIFF:** LALITHAMMA, AGED 51 YEARS, D/O.GOURI AMMA, THIRUVATHIRA, CHERUSSERI BHAGOM MURI, CHAVARA VILLAGE, KOLLAM DISTRICT. BY ADVS. SRI.S.ANANTHAKRISHNAN SRI.N.K.SUBRAHMANIAN **THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 15.09.2021, THE COURT ON 24.09.2021 DELIVERED THE FOLLOWING:** R.S.A.No.191 of 2009 ..2.. ## **J U D G M E N T** This appeal is directed against the judgment and decree dated 11.4.2008 passed by the District Court, Kollam (hereinafter referred to as 'the first appellate court') in A.S.No.33/2007 confirming the judgment and decree dated 27.3.2006 in O.S.No.388/2002 of the Munsiff Court, Karunagappally (hereinafter referred to as 'the trial court'). 2. The appellant herein was the defendant in the original suit and the respondent was the plaintiff therein. The suit was for declaration and injunction. For the sake of brevity, the parties shall be hereinafter referred to as referred in the original suit unless otherwise stated. 3. The case of the plaintiff is that the plaint schedule property was owned and possessed by the defendant as per gift deed No.3847 dated 14.10.1982. The defendant had transferred the plaint schedule property in favour of his wife Sreedevi Amma, reserving his right to take income from the property and also to reside in the house situated therein. Sreedevi Amma died on 1.4.1993. Her right over the plaint schedule property devolved upon her son Radhakrishna Pillai and her mother Gowri Amma. R.S.A.No.191 of 2009 ..3.. Radhakrishna Pillai died on 11.7.2001 and thereby, his right devolved upon the defendant, who is none other than his father. Gowri Amma transferred her right over the plaint schedule property in favour of the plaintiff, who is none other than the younger sister of deceased Sreedevi Amma. When the appellant made an attempt to destroy the house therein and also made an attempt to alienate the plaint schedule property to strangers, the plaintiff filed the present suit for declaration of the right of the plaintiff over the plaint schedule property to the extent of 50% and also for injunction restraining the defendant from committing waste or alienating the plaint schedule property. 4. The defendant had filed a written statement contending that the mother of Sreedevi Amma would not get any right over the plaint schedule property on the death of Sreedevi Amma and as such, Gowri Amma had no right to create sale deed in favour of the plaintiff. Therefore, it was contended that the plaintiff is not entitled to get a decree for declaration and injunction as prayed for in the suit. 5. The trial court framed necessary issues for trial. During the trial, plaintiff was examined as PW1 and marked R.S.A.No.191 of 2009 **==> picture [22 x 8] intentionally omitted <==** Exts.A1 and A2 on the side of the plaintiff. The defendant was examined as DW1 and marked Ext.B1. 6. On evaluation of the evidence, the trial court decreed the suit. Challenging the judgment and decree, the defendant carried the matter in appeal. The first appellate court dismissed the appeal confirming the judgment and decree of the trial court. Hence, the defendant has come up in second appeal. 7. Heard Mr.Shabu Sreedharan, the learned counsel for the appellant and Sri.N.K.Subrahmanyan, the learned counsel for the respondent. 8. The learned counsel for the appellant contended that the two courts below grossly erred in finding that the parties are governed by Section 17 of the Hindu Succession Act, 1956 for their inheritance after the death of a Hindu female. Since Sreedevi Amma died after the implementation of the Kerala Joint Hindu Family System (Abolition) Act,1975 (hereinafter referred to as 'the Joint Family Abolition Act'), Section 17 of the Hindu Succession Act, 1956 has no application in the case at hand. According to the learned counsel, what is applicable is Sections 15 and 16, by which the son and the husband of the deceased Hindu female are the only R.S.A.No.191 of 2009 ..5.. legal heirs and the mother is having nothing to do with inheritance in such a case. Therefore, it was contended that after the death of said Sreedevi Amma, the property covered by the gift deed came into the hands of the appellant being the husband and their son Radhakrishna Pillai. On the death of Radhakrishna Pillai, according to the learned counsel, the entire property covered by the gift deed devolved upon the appellant including the property, which stood in the name of the deceased Radhakrishna Pillai. The learned counsel further contended that the mother of Sreedevi Amma inherited half of the property covered by the gift deed, is a wrong finding. The sum and substance of the contention is that the mother was having no right or interest in the said property. 9. The learned counsel appearing for the respondent, on the other hand, contended that in view of the decision reported in **Chellamma Kamalamma** v. **Narayana Pillai** [1993 (1) KLT 174(FB)], it is clear that Section 17 of the Hindu Succession Act applies to the facts of the case irrespective of the date of death of Sreedevi Amma and the date of acquisition of property by her. It is argued that the parties are governed by the Travancore Nair Act, Regulation II of 1100(ME). If that be so, the learned counsel for R.S.A.No.191 of 2009 ..6.. the respondent submits that the case squarely falls under Section 17 of the Hindu Succession Act and on the death of Sreedevi Amma, half the share over the property devolves on her mother Gowri Amma, who was alive then. Radhakrishna Pillai, the son of Sreedevi Amma gets only half the share of the property left by Sreedevi Amma. According to the learned counsel for the respondent, the two courts below have correctly applied the law and no interference is called for. 10. This R.S.A was admitted by this Court on 07.09.2018 on the following substantial question of law:- “Are the findings of the courts below that deceased Sreedevi Amma was governed by Section 17 of the Hindu Succession Act, 1956, sustainable in law?” 11. Certain facts are admitted. The plaint schedule property, having an extent of 25 cents comprised in Re.Sy.No.383/5 of Chavara Village, originally belonged to the defendant by virtue of Ext.A1 gift deed dated 14.10.1982. The defendant gifted the property in favour of his wife Sreedevi Amma. Sreedevi Amma died on 1.4.1993. Her son Radhakrishna Pillai died on 11.7.2001. The defendant died during the pendency of this R.S.A.No.191 of 2009 ..7.. appeal. Hence, his son was impleaded as additional appellant in this appeal. 12. The fact that as per Ext.A1 document, Sreedevi Amma obtained entire right over the plaint schedule property, cannot be disputed. Out of abundance of caution, the defendant executed Ext.A1 gift deed reserving his right to take income from the property and to reside in the house in the plaint schedule property. When Sreedevi Amma obtained Ext.A1 Gift deed, her mother Gowri Amma and her son Radhakrishna Pillai were alive. 13. As noticed, the substantial question of law arises for consideration in this appeal is regarding the application of Section 15 or 17 of the Hindu Succession Act,1956. 14. The questions are, when did the succession open to the estate of Sreedevi Amma? ; was it on the date when she died? Going by the general principles of law relating to succession, it is settled that the succession opens on the date of death of the person concerned. Hence, the legal heirs of Sreedevi Amma on the date of her death are legally entitled to inherit her assets. Sreedevi Amma admittedly died after the Joint Family Abolition Act. Thus, on the date of death of Sreedevi Amma, The Travancore Nair Act, R.S.A.No.191 of 2009 ..8.. Regulation II of 1100(ME) was not in force. In this connection, it is necessary to consider the clauses of persons born on or after 1.12.1976 on which date the Joint Family Abolition Act came into force and who died later. So far as this category of persons, who were born on or after 1.12.1976, who died later, there was no right by birth, survivor-ship or practically any vestige of the Marumakkathayam law at their birth or death. In this case, admittedly, Sreedevi Amma was born before 1.12.1976. There is no case for the parties that Sreedevi Amma was born after 1.12.1976. She died in 1993. The principles applicable in this respect were considered by the Full Bench of this Court in **Chellamma Kamalamma** (supra) as follows:- _“50. We may finally summarise as follows :_ _(1) Section 17 of the Hindu Succession Act, 1956 will govern the law of succession on the death of males or females who were governed by the Marumakkathayam system if such persons were-_ _(i) living as on 18-6-1956 when the Hindu Succession Act, 1956 came into force and they died before 1-12-1976 when the Kerala Joint Hindu Family System (Abolition) Act, 1975 came into force,_ R.S.A.No.191 of 2009 ..9.. _(ii) living as on 18-6-1956 when the Hindu Succession Act, 1956 came into force and who died on or after 1-12-1976 when the Kerala Joint Hindu Family System (Abolition) Act, 1975 came into force,_ _(iii) born on or after 18-6-1956 when the Hindu Succession Act, 1956 came into force and who died before 1-12-1976 when the Kerala Joint Hindu Family System (Abolition) Act, 1975 came into force, and_ _(iv) born on or after 18-6-1956 when the Hindu Succession Act, 1956 came into force but before 1-12-1976 and who died on or after 1-121976 when the Kerala Joint Hindu Family System (Abolition) Act, 1975 came into force._ _(2) Section 17 of the Hindu Succession Act, 1956 will not, however, govern the law of succession of males or females if such persons were born on or after 1-12-1976 and died thereafter. Succession to them would be governed by the provisions of the Hindu Succession Act, 1956 other than the provisions applicable to those governed by the Marumakkathayam system._ _(3) We approve the decision of the learned single Judge in Madhavi Amma v. Kalliani Amma, [1988 (2) KLT 964] and of the Division Bench in Bhaskaran v. Kalliani [1990_ _(2) KLT 749]. We overrule the observations to the_ R.S.A.No.191 of 2009 **==> picture [28 x 9] intentionally omitted <==** _contrary in Saraswathy Amma v. Radhamma [1990 (2) KLT 183].”_ Even assuming that Sreedevi Amma was born after 18.6.1956 and even if her death was in 1993, she would fall within the fourth class referred to in **Chellama Kamalamma** (supra). On the date of death of Sreedevi Amma, her mother was alive. Hence, Gowri Amma, the mother of Sreedevi Amma gets half share of the property left behind by Sreedevi Amma. After the death of Sreedevi Amma, her mother Gowri Amma and her only son Radhakrishna Pillai stepped into the shoes of the deceased. After the death of Radhakrishna Pillai, half right devolved on the defendant. Thus, Gowri Amma is certainly competent to assign her rights in the property in favour of the plaintiff. The plaintiff, by virtue of Ext.A2 deed, gets half share over the plaint schedule property subject to the reservation contained in Ext.A1 in favour of the defendant. Accordingly, the trial court declared that the plaintiff has got half share over the plaint schedule property and the building therein. 15. Learned counsel for the appellant contended that Ext.A1 gift deed 14.10.1982 had not been executed by Janaradanan Pillai in favour of Sreedevi Amma. Learned counsel contended that R.S.A.No.191 of 2009 **==> picture [28 x 8] intentionally omitted <==** Ext.A1 gift deed was not proved in accordance with law. Going by the written statement, it is clear that the appellant/defendant admitted the execution of gift deed bearing No.3847 dtd. 14.10.1982 in favour of Sreedevi Amma. Hence, the appellant is not entitled to take up such a contention in this second appeal. 16. The substantial question of law has been answered as above. Resultantly, this R.S.A. is dismissed affirming the judgment and decree of the two courts below. Considering the fact that parties are close relatives, there will be no order as to costs. Pending applications, if any, stand disposed of. Sd/- **N.ANIL KUMAR, JUDGE** MBS/ R.S.A.No.191 of 2009 ..12.. ## **APPENDIX** ## **APPELLANT'S ANNEXURES :** **ANNEXURE - A1 : A TRUE COPY OF PLAINT IN O.S.NO.174/09 DATED 7.4.2009 BEFORE THE HON'BLE MUNSIFF COURT, KARUNAGAPPLLY** **ANNEXURE-A2 : TRUE COPY OF THE LAND TAX RECEIPT ISSUED ON PETITIONER'S NAME WITH RESPECT TO THE PLAINT SCHEDULE PROPERTY DATED 21.3.2009** **ANNEXURE-A3 : TRUE COPY OF THE BUILDING TAX RECEIPT ISSUED IN MY NAME WITH RESPECT TO THE BUILDING IN THE PLAINT SCHEDULE PROPERTY DATED 5.3.2009** **ANNEXURE-A4 : TRUE COPY OF THE RELEVANT PAGES OF THE PASSPORT NO.A9130747.**