Subramanian v. Ammini and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE HARUN-UL-RASHID MONDAY, THE 26TH DAY OF MARCH 2012/6TH CHAITHRA 1934 SA.No. 259 of 2002 ( ) ---------------------AS.168/1997 of II ADDL.DISTRICT COURT,ERNAKULAM OS.33/1994 of II ADDL.SUB COURT,ERNAKULAM APPELLANT(S)/APPELLANT/1ST DEFENDANT:: ------------------------------------- SUBRAMANIAN, S/O.LATE NARAYANAN, RESIDING AT MUTTEPARAMBIL HOUSE, EDAPPALLY AMSOM EDAPPALLY NORTH VILLAGE, KANAYANNUR TALUK. **(DIED)** ADDL. 2 **.** C.R.SARASU, W/O.LATE SUBRAMANIAN, MUTTEPARAMBIL HOUSE, EDAPPALLY NORTH VILLAGE. '' 3. JAYANTHI M.S., D/O. LATE SUBRAMANIAN, MUTTEPARAMBIL HOUSE, EDAPPALLY NORTH VILLAGE. '' 4. SHAJI M.S., S/O.LATE SUBRAMANIAN, MUTTEPARAMBIL HOUSE, EDAPPALLY NORTH VILLAGE. '' 5. MINI DARWIN,D/O. -DO-DO'' 6. RAJESH.M.S., S/O. -DO-DO'' 7. SANGEETHA PRATHEEPAN, D/O. -DO-DO- (ADDL. APPELLANTS 2 TO 7 ARE IMPLEADED AS THE L.RS. OF DECEASED SOLE APPELLANT AS PER ORDER DTD. 16/3/2006 IN I.A.NO.684/2006. BY ADVS.SRI.ASP.KURUP SMT.ANU BABU.T ## RESPONDENTS/RESPONDENTS/DEFENDANTS:: -------------------------------------- 1. SMT.AMMINI, W/O.RAJAN, RESIDING AT ILLIKKATTUPARAMBIL, MANAKKAPARAMBU ROAD EDAPPALLY DESOM, EDAPPALLY NORTH VILLAGE. 2. SATHY, W/O.BHARATHAN, RESIDING AT VELAMPARAMBIL HOUSE, EROOR SOUTH, TRIPUNITHURA. 3. JAYABALAN P.M., S/O. LATE JANAKY, PALLISSERY HOUSE, NARAKKAL P.O.-682 505. 4. SANTHA BALAN, D/O.LATE JANAKY, KANJIRAKKAD HOUSE, NARAKKAL, PIN-682 505. 5. KUMARI LENIN, D/O.LATE JANAKY, NIKARTHIL HOUSE, PULLOOR DESOM,PALLURUTHY P.O. -2- S.A.NO.259/2002 6. SHEELA THILAKAN, D/O.LATE JANAKY, PALAYIL HOUSE, PUTHUVAIPU P.O. - 682 505. 7. DANABALAN P.M., S/O. LATE JANAKY, PALASSERY HOUSE, NARAKKAL P.O.-682 505. BY ADV. SRI.T.B.THANKAPPAN BY ADV. SMT.K.DEEPA BY ADV. SMT.ASMI.V.A. THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 26-03-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: S.A.NO.259/2002 ORDER ON CMP.NO.745/2002 & I.A.NO.1943/2006 --------------- DISMISSED 26/3/2012 Sd/HARUN-UL-RASHID, JUDGE. True COPY P.S. TO JUDGE. ## **HARUN-UL-RASHID,J.** ## **-------------------------------** **S.A. NO. 259 OF 2002 ------------------------------DATED THIS THE 26TH DAY OF MARCH, 2012** ## **JUDGMENT** The substantial questions of law formulated in the appeal are as follows: _“a) When a kudikidappu right that existed in favour of the father got itself extinguished by the destruction of the house and later on when one of the sons obtains independent permission to put up a homestead at a different site and becomes a kudikidappukaran and obtain certificate of purchase, can the other children claim a partition of the kudikidappu right as co-owners over the newly acquired kudikidappu right?_ _b) Under the Ezhava Act where parties are makkathayees, can the female members who got married and separated from the family claim co-ownership right with respect to property that came into existence even prior to the commencement of the Hindu Succession Act?_ _c) With respect to makkathayee Ezhavas whose father died in 1953 prior to the coming into force of Hindu Succession Act, can the female members claim any right over the_ **-2-** ## **S.A.No.259/2002** _property_ o _f the father on account of their birth in the family?_ 2. First defendant is the appellant. The appeal is directed against the judgment and decree in A.S.No.168/97 on the file of the I Additional District Court, Ernakulam arising from the judgment and decree in O.S.No.33/1994 on the file of the II Additional Sub Court, Ernakulam. The suit was filed for partition claiming ¼ share. The trial court passed a preliminary decree for partition and separate possession by allotting ¼ share in the plaint schedule property to the plaintiff and allotted the house in the plaint schedule property to the lst defendant without any valuation. It was declared that the plaintiff is entitled to ¼ share of profits from the lst defendant from the date of the suit till recovery of possession. The appeal preferred by the lst defendant was dismissed confirming the findings of the trial court. The parties are hereinafter referred to as the plaintiff and defendants as arrayed in the suit. **-3-** ## **S.A.No.259/2002** 3. During the pendency of the second appeal the appellant/lst defendant died and his legal heirs are impleaded as additional appellants 2 to 7. The plaintiff and three defendants are the children of late Narayanan. It is not disputed that Narayanan died in 1953. According to the plaintiff, late Narayanan obtained permission from the landlord to occupy the plaint schedule property for the purpose of putting up his residence and late Narayanan and his wife put up a homestead in the property as kudikidappu. According to the plaintiff, after the death of the father and mother, the plaint schedule property devolved upon the parties to the suit equally. It is also alleged that after the coming into force of the Kerala Land Reforms Act, the lst defendant son obtained a purchase certificate in his name. The plaintiff sued for partition and separate possession of her ¼ share in the plaint schedule property. 4. The lst defendant filed written statement contending that the parties are Makkathjayee Ezhavas of Travancore and that **-4-** ## **S.A.No.259/2002** they are governed by the personal law and not by the Hindu Succession Act. According to the lst defendant, he alone is the kudikidappukaran in the property, that his father and mother had no kudikidappu right, that the residential building in the property was put up by him utilising his own funds, that the lst defendant is the only person entitled to the kudikidappu right and therefore, he obtained purchase certificate from the Land Tribunal. Alternatively it is also contended that the father got right over the property as kudikidappukaran. It is contended that since he died before coming into force of the Hindu Succession Act, the parties are governed by the personal law and not by the Hindu Succession Act. It is also contended that the parties are makkathyee Ezhavas of Travancore and therefore, male member is entitled to inherit the property. The trial court in fact did not consider the contentions raised by the appellant/lst defendant as to whether he is entitled to inherit the property as well. Accepting the contention that the parties being makkathayee Ezhavas only male members alone are **-5-** ## **S.A.No.259/2002** entitled to inherit the property left behind by their father. Learned counsel submits that DW1 has testified before the court that the law applicable is that the parties are governed by the Makkathayee System of Inheritance and supported by the evidence of PW2. He also pointed out that PW1 in her testimony did not deny the said fact. No issue regarding the applicability of customary law was framed by the trial court. The trial court decided the suit by relying on the provisions of the Hindu Succession Act. The trial court on evidence found that the parties' father late Narayanan originally occupied the kudikidappu property and that the said right hopefully continued till the Kerala Land Reforms Act came into force. The court also found that since the kudikidappu right was devolved on all the legal heirs of the deceased Narayanan, the purchase certificate obtained in the name of the lst defendant son will enure to the benefit of all the legal heirs. The trial court further observed that the case of the lst defendant to the effect that he is the person permitted to obtain as kudikidappukaran is a very weak case, that **-6-** ## **S.A.No.259/2002** the possibility of the lst defendant earning money to put up a house and being permitted to set up an independent house is very meagre and remote, and that the case set up by the lst defendant is against the probabilities. 5. The appellant/lst defendant challenged the findings of the trial court before the Lower Appellate Court. The Lower Appellate Court also more or less for the same reasons confirmed the findings of the trial court. Learned counsel for the appellant submits that the contention that late Narayanan was a makkathayee Ezhava has been very lightly brushed aside by the trial court stating that there is no satisfactory evidence. Learned counsel also pointed out that ground No.1 in the memorandum of first appeal is regarding the said contention, which was seriously agitated by him before the trial court. Ground No.1 in the memorandum of first appeal submitted before the first appellate court reads as follows: “ _The judgment and decree passed by the court below is opposed to the facts and circumstances of the_ **-7-** **S.A.No.259/2002** _case. A very strong contention was taken up by the appellant to the effect that late Narayana was a Makkathayee Ezhava, has been very lightly brushed aside by the court below by stating that there is no satisfactory evidence. In fact PW1 has not denied the fact that her father was a makkathaye Ezhava. On the other hand, DW1 and DW2 have categorically stated that late Narayanan and the appellant are makkathayee Ezhavas. In that view of the matter satisfactory evidence was available to hold that late Narayanan was a makkathayee Ezhava. If that be so, as the death occasioned prior to the coming into force of Hindu Succession Act, even if property was found to be the property of late Narayanan the plaintiff could not have been entitled to any share in the property. In not adverting to this aspect the court below has gone totally in error.”_ 6 _._ The Lower Appellate Court held that the residence of the lst defendant is in continuation of the residence of Narayana and Devaki, that he did not obtain any independent right to occupy any portion of the plaint schedule property and therefore he **-8-** ## **S.A.No.259/2002** continued to occupy the building as a legal heir of deceased Narayanan. The Appellate Court found that as per the provisions of the Hindu Succession Act, the property will devolve equally among class I heirs of the schedule of the Hindu Succession Act and that sons and and daughters will have equal shares as per the provisions of the Hindu Succession Act. The Appellate Court also held that the property will devolve upon the legal heirs according to the provisions of the Travancore Cochin Ezhava Act. The learned Judge quoted Section 16 of the said Act and held that the widow and children are entitled to inherit the property. 7. Learned counsel for the appellant submits that the statute referred to by the Lower Appellate Court may be Travancore Ezhava Act and that there is no Act as Travancore Cochin Ezhava Act referred to in the judgment. Learned counsel also pointed out that the section referred to may be Section 15 of the Travancore Ezhava Act. Learned counsel also pointed out that Travancore Ezhava Act is not applicable to Ezhava Hindus **-9-** ## **S.A.No.259/2002** following the Makkathayee System of Inheritance. What is applicable is only to Ezhavas other than those who followed Makkathayee as per Section 1(2) of the Travancore Ezhavas Act. The counsel further submits that occupying the property obtained by late Narayanan from the landlord is the right sought to be partitioned in the suit. According to the learned counsel, even if it is proved that the right to occupy the plaint schedule property was obtained by late Narayanan, since Narayanan died in 1953, devolution of the property will have to be determined as per the law existing at the time of his death. Nobody pointed out that the Hindu Succession Act came into force in 1956 and therefore the law applicable to the parties is the personal customary law. Learned counsel pointed out that since the parties are following Makkathayees System of Inheritance, male member alone is entitled to inherit the right legally behind by his father. The decision reported in **Kamalakshy and others v. Narayani (1967 KLT 1051)** was laid down in support of his contentions. This **-10-** ## **S.A.No.259/2002** Court in the said decision held that the law applicable to Makkathayee Ezhavas of Cochin was their customary law and that if the custom pleaded is not established, it is the principle of Hindu Mitakshara Law on the question that should apply both on the ground that it is a rule of Hindu Law and on the ground that it is only equitable and reasonable to apply that rule to Makkathayee Hindu Ezhavas as a rule of justice, equity and good conscience. The contention of the appellant that the provisions of Hindu Succession Act is not applicable in the present case, since Narayanan expired prior to the commencement of the said Act, is the main contention urged in the suit. The said contention was urged in the light of the facts pleaded to the effect that the parties are makkathayees governed by their personal customary law. It is true that if one of the legal heirs obtained a purchase certificate in respect of a property devolved on all the legal heirs, the purchase certificate will enure to the benefit of all the legal heirs. Here, the question raised is whether the property is inherited by all the **-11-** ## **S.A.No.259/2002** parties to the suit or by the appellant alone and the other important question raised is as to whether Makkathayees System of Inheritance is applicable to the parties at the time of the death of Narayanan. 8. On a perusal of the judgments of the trial court as well as the Appellate Court, it is seen that no issue was raised regarding the applicability of the customary law and that the appellant is entitled to inherit the entire property having regard to the personal law in operation at the time of the death of Narayanan. In these circumstances, this Court is of the view that the contention raised in the suit shall be re-agitated and reconsidered. In the result, the appeal is allowed. The judgments and decrees passed by the courts below are set aside. The case is remanded to the trial court for fresh consideration. There will be a direction to the trial court to consider the questions afresh and dispose of the suit in accordance with law. The parties are at **-12-** ## **S.A.No.259/2002** liberty to adduce further evidence, if any, if so advised. Parties shall appear before the trial court on 24/5/2012. The trial court shall dispose of the suit within a period of nine months from the date of appearance of the parties. If the parties are willing to settle the dispute by referring the matter to the mediation, the trial court shall refer the matter to the mediation immediately after the appearance of the parties. **HARUN-UL-RASHID, JUDGE.** **kcv.** **-13-** ## **S.A.No.259/2002** HARUN-UL-RASHID, J. -----------------------------------S.A.NO. 259 OF 2002 ------------------------------------ **JUDGMENT** 26th March, 2012