RSA No. 727 of 2019

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: A. M. Babu
Judgment Date: 2019-07-25
Court Decision / Holding: Dismissed.
Final Disposition: Second Appeal Dismissed

Parties to the Case

Appellants / Petitioners

KUMARAN
SASDHARAN

Respondents

UNNIKRISHNAN
GIREESH
AJITHA
BHANUMATHY
BABU
SURA
BALAN
PUSHKARAN
KUTTAN
VILASINI
SAROJINI
DEVAYANI
SIVADASAN
PRADEEP
MANI
ANANDAN
SOMAN
BABU
SURA @ SURESH
MANI

Legal Representation & Advocates

Counsels for Petitioners

• V. M. Krishnakumar

Case Synopsis & Summary

This Regular Second Appeal (RSA No. 727/2019) was heard by a single judge of the Kerala High Court at Ernakulam, Justice A. M. Babu, on 25 July 2019. The appeal arises from a partition suit (OS 416/2001) in the Munsiff Court, Chavakkad, and the AS 168/2007 of the I Additional District Court, Thrissur, involving properties of Ayyappankutty partitioned in 1959 under Ext A1, with the plaint schedule property allotted to the share of Velayudhan. Velayudhan had ten children (including defendants 1, 4, and 7–10); the plaintiffs and defendant 15 are heirs of Prabhakaran; defendants 11–14 are heirs of Kunjimon; defendants 2–3 are the sons of the first defendant. The trial court decreed partition and a preliminary decree fixed shares for each party; the first appellate court dismissed the appeal, and the appellants challenge the decree in this second appeal. The central issue is whether the Thiyya community of Malabar follows Mitakshara law of inheritance modified by custom, and whether there is a right in property by birth for male members. The respondents contend that Thiyyas follow Mitakshara law modified by custom, a fact supported by prior Kerala and Supreme Court authority. The court ultimately disposes of the appeal by dismissal, upholding the trial court’s partition framework.

Legal Doctrines & Maxims

Mitakshara law of inheritance modified by custom
Specific family custom pleaded in a case must be proved

Submissions & Arguments

Contentions of Appellants / Petitioners

The appellants/defendants 1 and 7 contend that they are not governed by the Mitakshara law of inheritance. They did not specify which system of inheritance applies to them and argued that the plea of no birth-right in the family property is not a valid custom. They emphasize that Ext A1 did not include the children of Velayudhan for partition and that excluding them cannot be read as an abandonment of birth-right. They maintained that a custom must be sufficiently pleaded and supported by evidence, and that there may be reasons for excluding certain co-sharers from partition. They submit that the evidence on record does not establish a Mitakshara-based right by birth for their family and that the case requires careful consideration of local custom rather than a blanket application of standard Hindu succession principles.

Contentions of Respondents

The respondents contend that the Thiyyas of Malabar follow the Mitakshara law of inheritance as modified by custom. They assert that every male member of a joint family has a right in the family property by birth, a position supported by established decisions. They argue that the specific family custom pleaded must be proved and that the record shows the community’s practice aligns with Mitakshara’s framework, modified by local custom, as recognized by Thankammal v. Madhavi Amma (1966 KLT 181). They rely on this principle to justify the partition shares declared in the preliminary decree and the necessity of treating the family property as a jointly inherited estate, subject to these customary modifications. They dispel claims that omissions in Ext A1 negate birth-right or create a new custom without proof.

Cited Precedents (2)

Case Name	Citation	Treatment	Explanation
Thankammal v. Madhavi Amma	(1966 KLT 181)	Positive	Cited as establishing that Thiyyas in Malabar follow Mitakshara law modified by custom.
Harihar Prasad Singh v. Balmiki Prasad Singh	(AIR 1975 SC 733)	Positive	Cited for the proposition that a specific family custom pleaded must be proved.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE A.M.BABU** **THURSDAY, THE 25TH DAY OF JULY 2019 / 3RD SRAVANA, 1941** ## **RSA.No.727 of 2019** **AS 168/2007 of I ADDITIONAL DISTRICT COURT, THRISSUR DATED 28-09-2013** **OS 416/2001 of MUNSIFF COURT,CHAVAKKAD DATED 15-03-2007** ## **APPELLANTS/APPELLANTS/DEFENDANTS 1 AND 7** - **1 KUMARAN AGED 81 YEARS** **S/O KAZHUNKIL VELAYUDHAN,VENKITANGU VILLAGE AND DESOM,CHAVAKKAD TALUK, THRISSUR DISTRICT.** ## **2 SASDHARAN,** **AGED 58 YEARS** **S/O. KAZHUNKIL VELAYUDHAN, VENKITANGU VILLAGE AND DESOM, CHAVAKKAD TALUK, REP. BY HIS POWER OF ATTORNEY, HOLDER K.V. KUMARAN, S/O. KAZHUNKIL VELAYUDHAN, VENKITANGU VILLAGE, CHAVAKKAD TALUK, THRISSUR DISTRICT.** ## **BY ADV. SRI.V.M.KRISHNAKUMAR** ## **RESPONDENTS/RESPONDENTS/PLAINTIFFS AND DEFENDANTS 2 TO 6 AND** **8 TO 15** **1 UNNIKRISHNAN** **S/O KAZHUNKIL PRABHAKARAN,KANNOTH DESOM, VENKITANGU VILLAGE,CHAVAKKAD TALUK,THRISSUR DISTRICT.** ## **2 GIREESH,** **AGED 48 YEARS** **S/O KAZHUNKIL PRABHAKARAN,KANNOTH DESOM, VENKITANGU VILLAGE,CHAVAKKAD TALUK,THRISSUR** **RSA 727/19** 2 ## **DISTRICT.** - **3 AJITHA,** **AGED 51 YEARS** **D/O KAZHUNKIL PRABHAKARAN,KANNOTH DESOM, VENKITANGU VILLAGE,CHAVAKKAD TALUK,THRISSUR DISTRICT.AND WO.KURIAKKOTTIL MOHANAN,KANNOTH DESOM,** **VENKITANGU VILLAGE,CHAVAKKAD TALUK,THRISSUR DISTRICT.** - **4 BHANUMATHY, AGED 77 YEARS** **W/O.KAZHUNKIL PRABHAKARAN,KANNOTH DESOM, VENKITANGU VILLAGE,CHAVAKKAD TALUK,THRISSUR DISTRICT.** - **5 BABU,** **AGED 51 YEARS** **S/O KAZHUNKIL KUMARAN,.KANNOTH DESOM, VENKITANGU VILLAGE,CHAVAKKAD TALUK,THRISSUR DISTRICT.** - **6 SURA,** **AGED 47 YEARS** **S/O KUZHUNKIL KUMARAN,VENKITANGU VILLAGE AND DESOM,CHAVAKKAD TALUK,THRISSUR DISTRICT.** - **7 BALAN, AGED 73 YEARS** **S/LO.KAZHUNKIL VELAYUDHAN,VENKITANGU VILLAGE AND DESOM,CHAVAKKAD TALUK, THRISSUR DISTRICT.** - **8 PUSHKARAN,** **AGED 77 YEARS** **S/O KAZHUNKIL VELAYUDHAN,KANNOTH DESOM, KANNOTH DESOM,** **VENKITANGU VILLAGE,CHAVAKKAD TALUK,THRISSUR DISTRICT.** - **9 KUTTAN, AGED 77 YEARS** **S/O VELAYUDHAN,K.V.KUTTAN,11/10,SURABHI,** **RSA 727/19** 3 ## **UMIRUNNO,CHITTUR,PALAKKAD-678101** ## **10 VILASINI,** **AGED 67 YEARS** **D/O KAZHUNKIL VELAYUDHAN AND W/O KARUMATHIL VASU,NENMINI DESOM,THAIKKAD AMSOM,CHAVAKKAD TALUK,THRISSUR DISTRICT.** - **11 SAROJINI,** - **AGED 62 YEARS** **D/O KAZHUNKIL VELAYUDHAN,AND W/O GOPALAN, SAROJINI GOPALAN,ROOM NO.19,BHANDRINATH NIVAS,GAMDEVI HILL,BHANDUP,MUMBAI-400078.** - **12 DEVAYANI, AGED 73 YEARS** - **W/O KAZHUNKIL KUNJUMON,ELAVALLY VILLAGE, CHITTATTUKARA DESOM,CHAVAKKAD TALUK, THRISSUR DISTRICT.** - **13 SIVADASAN, AGED 50 YEARS** - **S/O KAZHUNKIL KUNJUMON,ELAVALLY VILLAGE, CHITTATTUKARA DESOM,CHAVAKKAD TALUK, THRISSUR DISTRICT.** - **14 PRADEEP, AGED 46 YEARS** **S/O KAZHUNKIL KUNJUMON,ELAVALLY VILLAGE, CHITTATTUKARA DESOM,CHAVAKKAD TALUK, THRISSUR DISTRICT.** - **15 MANOHARAN, AGED 44 YEARS** **S/O KAZHUNKIL KUNJUMON,ELAVALLY VILLAGE, CHITTATTUKARA DESOM,CHAVAKKAD TALUK, THRISSUR DISTRICT.** ## **16 ANANDAN, AGED 54 YEARS** **S/O KAZHUNKIL PRABHAKARAN,VENKITANGU DESOM,VENKITANGU VILLAGE,CHAVAKKAD TALUK, THRISSUR DISTRICT.** **RSA 727/19** 4 ## **17 SOMAN, AGED 59 YEARS** **S/O CHULLIYIL PUSHPANGADHAN,POKULANGARA DESOM,ENGADIYUR VILLAGE,CHAVAKKAD TALUK, THRISSUR DISTRICT.** **18 BABU, AGED 49 YEARS** **S/O CHULLIYIL PUSHPANGADHAN,POKULANGARA AMSOM,ENGADIYUR VILLAGE,CHAVAKKAD TALUK, THRISSUR DISTRICT.** **19 SURA @ SURESH, AGED 45 YEARS** **S/O CHULLIYIL PUSHPANGADHAN,,POKULANGARA AMSOM,ENGADIYUR VILLAGE,CHAVAKKAD TALUK, THRISSUR DISTRICT.** ## **20 MANI,** **AGED 62 YEARS** **D/O CHULLIYIL PUSHPANGADHAN,,POKULANGARA AMSOM,ENGADIYUR VILLAGE,CHAVAKKAD TALUK, THRISSUR DISTRICT AND W/O.KARAPARAMBIL TILAKAN,P.O.KATTOOR,IRINJALAKUDA,THRISSUR DISTRICT.** **THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 25.07.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **RSA 727/19** 5 ## JUDGMENT 1. The suit was for partition. The trial court decreed the suit. A preliminary decree for partition was passed. Defendants - 1 and 7 filed appeal. The appeal was dismissed. Hence they are in second appeal. 2. The properties of Ayyappankutty were partitioned in 1959 under Ext A1 by his heirs. The plaint schedule property is the property allotted to the share of Velayudhan. Velayudhan had ten children, namely, defendant 1, defendants 4 to 10, Prabhakaran and Kunjimon. Plaintiffs and defendant 15 are the heirs of Prabhakaran. Defendants 11 to 14 are the heirs of Kunjimon. Defendants 2 and 3 are the sons of the first defendant. The parties belong to the thiyya community of Malabar. These are admitted facts. 3. The plaintiffs contended that the thiyyas of Malabar **RSA 727/19** 6 followed the mitakshara law of inheritance. It was also contended that every male member of the joint family acquired a right in the properties of the family by birth. The contesting defendants denied that they were governed by the mitakshara law of inheritance. According to them, there was no right in property by birth in their family. It was also contended that defendants 1, 4 and 6 to 10 assigned their undivided interest in the plaint schedule property to the seventh defendant. 4. PW1 was examined and Exts A1 to A3 were marked on the side of the plaintiffs. No oral evidence was adduced on the side of the contesting defendants. Exts B1 to B4 were marked on their side. The courts below accepted the contentions of the plaintiffs. The shares were declared in the preliminary decree as follows : (i) 576/3200 shares to plaintiffs jointly, (ii) 220/3200 shares to each of defendants 1 and 4 to 7, (iii) 200/3200 shares to each of defendants 2 and 3, (iv) 20/3200 shares to each of **RSA 727/19** 7 supplemental defendants 16 to 19 being the heirs of the deceased 8[th] defendant, (v) 20/3200 shares to each of defendants 9 and 10, (vi) 55/3200 shares to the 11[th] defendant, (vii) 255/3200 shares to each of defendants 12 and 14 and (viii) 244/3200 shares to the 15[th] defendant. It was directed to allot the shares of defendants 1, 4 and 6 to 10 to the 7[th] defendant. 5. Heard Sri.V.M.Krishnakumar, the learned counsel for the appellants/defendants 1 and 7. 6. The declaration of shares in the preliminary decree is correct if the contentions of the plaintiffs are correct. 7. Admittedly the parties belong to the thiyya community of Malabar. Thiyyas followed the mitakshara law of inheritance modified by custom. It was held so in Thankammal v. Madhavi Amma (1966 KLT 181) . This court in the said decision has held that communities such **RSA 727/19** 8 as the thiyyas and the ezhavas of Malabar were followers of the hindu mitakshara law modified by custom. The apex court holds in Harihar Prasad Singh v. Balmiki Prasad Singh (AIR 1975 SC 733) that the specific family custom pleaded in a particular case should be proved. 8. The contesting defendants contended that they were not governed by the mitakshara law of inheritance. They did not supplement the said denial by stating as to they were governed by which system of inheritance. The contention to the effect that there was no right in property by birth in their family is not a plea of custom. Even if it is a plea of custom, they did not choose to adduce oral evidence to prove the custom. What they argue is that in Ext A1 the children of Velayudhan were not made parties and were not allotted shares which should mean that the family members did not have a right in the family property by birth. This is not at all sufficient to take as evidence proving a custom which was not even sufficiently pleaded. **RSA 727/19** 9 There could be many reasons why a person entitled to a share in the property is excluded from partition. 9. After having considered the appeal, I do not find any question of law to be formulated. The fact finding courts have considered all issues in the right perspective and came to the right conclusion. In the absence of a substantial question of law, the second appeal cannot be admitted and entertained. It deserves only a dismissal. 10. Dismissed. Sd/- A.M.BABU Judge Mrcs/25.7.