# **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
# **PRESENT**
**THE HONOURABLE MR.JUSTICE C. JAYACHANDRAN**
**THURSDAY, THE 30[TH] DAY OF MARCH 2023 / 9TH CHAITHRA, 1945**
**AS NO. 62 OF 2003**
**AGAINST THE JUDGMENT IN OS 343/1994 OF PRINCIPAL SUB COURT,**
## **TRIVANDRUM**
## **APPELLANTS/DEFENDANTS 1 TO 4:**
1 MANMADHAN NAIR, AGED 50 YEARS, RETD. NAVY PETTY OFFICER, LEKSHMI KARODE MURI, VILAPPILSALA VILLAGE, NEYYATTINKARA. 2 NIRMALA DEVI AGED 40 YEARS W/O. MANMADHAN NAIR, -DO- -DO-. 3 RATHISH M. WRITTEN IN THE LOWER COURT RECORDS AS RETHEESH KUMAR, AGED 23 YEARS,, S/O. MANMADHAN NAIR, -DO- -DO-. 4 RAJANISH M. WRITTEN IN THE LOWER COURT RECORDS AS RAJESH KUMAR, AGED 20 YEARS,, S/O. MANMADHAN NAIR, -DO- -DO-.
BY ADVS. SRI.NAIR AJAY KRISHNAN SRI.NAGARAJ NARAYANAN SRI.R.T.PRADEEP
## **RESPONDENT/PLAINTIFF:**
1 PADMAVATHY AMMA ALSO KNOWN AS THANKAMMA, AGED 76 YEARS, D/O.GOURI AMMA,PADMAVILASOM BUNGLOW, KARODE MURI, VILAPPIL VILLAGE, NEYYATTINKARA TALUK (DIED, LR'S RECORDED)
[IT IS RECORDED THAT THE SOLE RESPONDENT IN RFA DIED AND THAT THE APPELLANTS 2 TO 4 (ALREADY IN PARTY ARRAY) ARE THE LEGAL REPRESENTATIVES OF THE DECEASED RESPONDENT AS PER ORDER DATED 28.02.2014 IN IA 133/2014]
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ADDL R2 RAJENDRAN NAIR, ARUN NIVAS, VILAPPILSALA P O, NEYYATTINKARA TALUK, THIRUVANANTHAPURAM 695 573 ADDL R3 MOHANAKUMARAN NAIR, AVITTOM, VILAPPILSALA P O, NEYYATTINKARA TALUK, THIRUVANANTHAPURAM 695 573
ADDL R4 RADHAKRISHNAN NAIR, PADMAVILASOM BUNGLOW, VILAPPILSALA P O, NEYYATTINKARA TALUK, THIRUVANANTHAPURAM 695 573
ADDL R5 C P USHA, AISHWARYA, KUNDAMOOZHI, VILAPPILSALA P O, NEYYATTINKARA TALUK, THIRUVANANTHAPURAM 695 573
[OTHER LEGAL REPRESENTATIVES OF DECEASED RESPONDENT ARE IMPLEADED AS ADDL.R2 TO R4 AS PER ORDER DATED 20.03.2014 IN I.A.132/2014]
BY ADVS. SRI.ABRAHAM MATHEW VETTOOR SRI.J.JOHNSON SMT.P.LATHA
THIS APPEAL SUITS HAVING COME UP FOR ADMISSION ON 30.03.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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**C.JAYACHANDRAN, J -------------------A.S.No.62 of 2003**
**----------------------Dated this the 30[th] day of March, 2023**
## **J U D G M E N T**
The interplay between Ss.15 and 17 of the Hindu Succession Act, 1956 is the issue involved in this appeal. One Vijayalekshmi passed away and her mother filed the suit O.S.No.343/1994 [from which this appeal arose] before the Principal Sub Court, Thiruvananthapuram seeking partition, with the husband and children of Smt.Vijayalekshmi as
defendants 1, 3 and 4. The second defendant is the another daughter of the plaintiff, the sister of deceased Vijayalekshmi. The mother claimed intestate succession under S.17 of the Succession Act, whereas the claim was resisted by defendants 1, 3 and 4 by resorting to S.15 of the Succession Act. The judgment
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impugned found that the parties were erstwhile marumakkathayees, liable to be governed by S.17 and decreed the suit as prayed for. One another contention which was pressed into service is based on S.11 of the Code of Civil Procedure, in view of an earlier suit, O.S.No.2492/1993, which was preferred by the second defendant against the plaintiff, admittedly seeking injunction from trespass into item nos.6 and 7 to the plaint herein. In as much as the said suit was decreed against the plaintiff herein, the claim for title espoused by the plaintiff herein stood negated, wherefore, the instant claim for partition is barred by principles of _res judicata,_ was the argument. This contention was also negated by the Sub Court finding that the judgment in a previous suit for injunction would not operate as _res judicata_ in a subsequent suit seeking partition.
**2.** Heard Sri.R.T.Pradeep, learned counsel for the appellant. Perused the records. Pending appeal, the
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respondent/plaintiff died on 03.11.2013 and her legal heirs were impleaded/recorded.
**3.** Ss.15 and 17 of the Hindu Succession Act are
extracted here below:
**'15. General rules of succession in the case of female Hindus** .- (1) The property of a female Hindu dying intestate shall devolve according to the rules set out in section 16,-
(a) firstly, upon the sons and daughters (including the children of any pre-deceased son or daughter) and the husband;
(b) xxxxx
(c) xxxxx (d) xxxxx (e) xxxxx
**17. Special provisions respecting persons governed by** _**marumakkattayam**_ **and** _**aliyasantana**_ **laws** .- The provisions of sections 8, 10, 15 and 23 shall have effect in relation to persons who would have been governed by the _marumakkattayam_ law or _aliyasantana_ law if this Act had not been passed as if -
(i) xxxxx
(ii) for clauses (a) to (e) of subsection (1) of section 15, the following had been substituted, namely:-
(a) firstly, upon the sons and daughters (including the children of any pre-deceased son or daughter) and the mother.
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(b) xxxxx (c) xxxxx (d) xxxxx (e) xxxxx '
(underlined by me for emphasis)
It could thus be seen that, for persons who would have been governed by the marumakkathayam and aliyasantanam laws, if Hindu Succession Act had not been passed, the husband as a class I heir is replaced by mother. The specific claim espoused in
the plaint in paragraph no.3 is based on S.17(a) of the Hindu Succession Act. It is admitted that the parties are Nairs, governed by the erstwhile
marumakkathayam law and for the purpose of S.17, they
would have been governed by the marumakkathayam law, but for the advent of Succession Act, 1956. S.17
carves out an exception to the general rule that, upon the death of a female Hindu, her husband, along with the sons and daughters, will succeed to her estate, by replacing the husband with the mother.
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This Court is therefore of the opinion that no interference, whatsoever, is required to the judgment impugned of the Sub Court, which decreed the suit in terms of S.17.
**4.** The contention of the appellant that by virtue of Article 254 of the Constitution, r/w S.4 of the Hindu Succession Act, the marumakkathayam law ceases to have any effect is only to be rejected. There is no room for any application of Article 254 of the Constitution. No doubt, S.4 of the Hindu Succession Act contemplates overriding effect to the same and any text, rule or interpretation of Hindu law or custom, which was in force before the commencement of 1956 Act, shall ceased to have effect with respect to any matter, for which, provision is made in the 1956 Act. The same is the situation with respect to any other law in force before the commencement of 1956 Act, in as much as it is inconsistent with the later Act. It requires to be noticed that by virtue of
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S.17, the pristine marumakkattayam law is not sought to be revived; instead, it only identifies a category amongst the Hindus, for which the legislature thought of giving a different treatment from the general rule contemplated in S.15 of the Succession Act. The legal position in this regard had been succinctly stated by a Full Bench of this Court in **Chellamma Kamalamma v. Narayana Pillai** [1995(1) KLT 74 (F.B)], wherein a challenge to S.17 of the Hindu Succession Act, in the context of the Hindu Joint Family Abolition Act, 1976 was repelled.
**5.** This Court also finds little merit in the
contention that the present suit is barred by the principles of _res judicata, s_ ince the earlier suit was admittedly one for injunction preferred by the second defendant against the plaintiff. The judgment in the said suit cannot operate as _res judicata_ in a subsequent suit by the plaintiff seeking partition. The matter in issue in both the suits differs
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substantially.
In the result, this appeal fails and the same is therefore dismissed, relegating the parties to bear their respective costs.
**Sd/-**
**C.JAYACHANDRAN**
**JUDGE**
Sbna/
