Thankamma and Others v Subramanian and Others (RSA No. 623/2015)

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE M.R.ANITHA** **THURSDAY, THE 27[TH] DAY OF OCTOBER 2022 / 5TH KARTHIKA, 1944 RSA NO. 623 OF 2015** **AGAINST THE JUDGMENT DATED 30.01.2015 IN AS 349/2009 OF III ADDITIONAL DISTRICT COURT, KOLLAM OS 50/1997 OF ADDITIONAL SUB COURT,KOLLAM** ## **APPELLANTS/PLAINTIFFS:** |1|THANKAMMA| |---|---| ||D/O.NANAN, VAYALIL VEEDU, SHASTRI JUNCTION,| ||ASHRAMAM CHERY, KOLLAM (DIED)| |2|VASUMATHY,(DIED) (LRS IMPLEADED)| ||AGED 73 YEARS| ||D/O.NANAN, LATHA BHAVAN, MAMPALLY, KUNNATHU| ||CHERY, MEENADU VILLAGE, CHATHANNOOR| |3|RAMANI| ||AGED 56 YEARS| ||D/O.PONNAMMA, PARVATHY BHAVAN, POONATHANNOOR| ||CHERY, CHIRAYAKEESHU VILLAGE, TRIVANDRUM, FROM| ||PALLIMONKARAN PURAYIDATHIL,MAMPALLY, KUNNATHU| ||CHERY, MEENADU VILLAGE, CHATHANNOOR| |4|GIRIJA| ||AGED 49 YEARS| ||D/O.PONNAMMA, RAJ VILASAM, MAYYANADU CHERY,| ||MAYYANADU VILLAGE, KOLLAM| |5|RADHAMONY| ||D/O.PONNAMMA, RAJ VILASAM, MAYYANADU CHERI,| ||MAYYANADU VILLAGE, KOLLAM| |6|PRASAD| ||AGED 47 YEARS| ||S/O.VENU KRISHNAN, GOVT.EMPLOYEE, VAYALIL VEEDU,| ||SHASTHRI JUNCTION, ASHRAMAM, KOLLAM| |7|KRISHANKUMARI.P| ||AGED 64 YEARS| ||D/O.LATE K.VASUMATHY,VIJAYAKRISHNA| ||VIHAR,MAMPALLIKUNNU,CHATHANNUR,KOLLAM-691 572.| R.S.A.No.623/2015 2 8 VIJAYAKUMAR.P.V. AGED 60 YEARS S/O.LATE K.VASUMATHY,V.L.NIVAS,MAMPALLIKUNNU,CHATHANNUR,KO LLAM-691 572. 9 USHAKUMARI.P AGED 57 YEARS D/O.LATE K.VASUMATHY,VANCHINEZHAKATHU VEEDU,SAKTHIKULANGARA,KOLLAM,PIN-691 581. 10 LATHA KUMARI.P.V AGED 49 YEARS D/O.LATE K.VASUMATHY,G.L.NIVAS,MAMPALLIKUNNU,CHATHANNUR,KO LLAM-691 572. (ARE IMPLEADED AS THE LEGAL REPRESENTATIVES OF THE DECEASED 2ND APPELLANT AS PER ORDER DATED 17.03.2022 IN IA.2/2021 IN RSA.623/2015.) BY ADVS. SRI.R.KRISHNA RAJ SRI.BIJITH S.KHAN E.S.SONI KUMARI SANGEETHA S.NAIR ## **RESPONDENTS/DEFENDANTS:** 1 SUBRAMANIAN (DIED) PALLIMANKARA PURAYIDOM, MAMPALLY KUNNATHUCHERY, CHATHANNOOR, MEENADU, KOLLAM 691001 2 REMANI AGED 62 YEARS W/O. SUBRAMANIAN, PALLIMANKARA PURAYIDOM, MAMPALLY KUNNATHUCHERY, MEENADU VILLAGE, CHATHANNOOR, KOLLAM 691001 3 AJITHA AGED 38 YEARS D/O. SUBRAMANIAN, PALLIMANKARA PURAYIDOM, MAMPALLY KUNNATHUCHERY, MEENADU VILLAGE, CHATHANNOOR, KOLLAM 691001 3 ## R.S.A.No.623/2015 4 ANITHA AGED 36 YEARS D/O. SUBRAMANIAN, PALLIMANKARA PURAYIDOM, MAMPALLY KUNNATHUCHERY, MEENADU VILLAGE, CHATHANNOOR, KOLLAM 691001 5 SUNITHA D/O. SUBRAMANINA, PALLIMANKARA PURAYIDOM, MAMPALLY KUNNATHUCHERY, MEENADU VILLAGE, CHATHANNOOR, KOLLAM 691001 BY ADV M.DINESH FOR R2 TO R5 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 27.09.2022, THE COURT ON 27.10.2022 DELIVERED THE FOLLOWING: R.S.A.No.623/2015 4 ## **M.R.ANITHA, J** ****************** R.S.A.No.623 of 2015 -----------------------------------------------Dated this the 27[th] day of October, 2022 ## **JUDGMENT** This regular second appeal has been directed against the judgment and decree in A.S.No.349/2009 on the file of III Additional District Court, Kollam, which in turn, arise out of the judgment and decree in O.S.No.50/1997 on the file of Additional Subordinate Judge's Court, Kollam. 2. Plaintiffs are the appellants. Suit was one for partition. (The parties would be referred as per their status before the trial court). 3. First defendant is the brother of plaintiffs 1 and 2. Plaintiffs 3 to 5 are the children of the deceased sister of plaintiffs by name Ponnamma. Parties belong to Hindu Vannan community. They are following Hindu Makkathayam Law by which parents R.S.A.No.623/2015 5 and sons and daughters are having equal right. The plaint schedule property having an extent of 49.5 cents originally belong to Chathavu, the grandfather of plaintiffs, deceased Ponnamma and also the first defendant. Chathavu obtained the property as per sale deed No.938/1102 of S.R.O, Chathannur. Father of plaintiffs, deceased Ponnamma and the first defendant is Chathan Nanan who married Myly first. Since no issues were born out of that wedlock, he married Bhagawati, sister of Myly. Appellants, the first defendant as well as Ponnamma were born to Chathan Nanan out of Bhagawati. Chathavu executed document No.1326/1106 in favour of Myly with respect to plaint schedule property by which the right, possession and enjoyment of plaint schedule property during her lifetime was given to her with a right to create encumbrance upto Rs.200/- over the said property. Accordingly, Myly was in enjoyment and possession of the plaint schedule property and was residing in the building therein till her death in the year 1978. After her death, plaint schedule property was devolved upon the plaintiffs and the first R.S.A.No.623/2015 6 defendant. Nanan died in the year 1948. His father Chathavu pre-deceased him. Bhagavati died in the year 1985. After the death of Myly, plaintiffs and first defendant were in possession and enjoyment of schedule property. The building in the plaint schedule property was lying vacant. In March, 1994, the son-inlaw of the first defendant by name Narayanan Kutty without the knowledge and consent of the plaintiffs started a Dental Mechanical Workshop in the building which was objected by the plaintiffs and they demanded partition of the schedule property. First defendant was not amenable for the same. Plaintiffs 1 and 2 are entitled to ¼ share each and plaintiffs 3 to 5 together are entitled to get ¼ share of late Ponnamma from the schedule property. First defendant is also entitled to get ¼ share. From March, 1994 onwards, first defendant is taking income from the plaint schedule property without giving share of income to the plaintiffs. So, they claim mesne profit from March 1994 onwards. 4. Original defendant filed written statement admitting the relationship between the parties. Actual name of the R.S.A.No.623/2015 7 grandfather is Sasthavu and not Chathavu. The marriage of Nanan initially with Myly and thereafter with Bhagavati is admitted. Even after the execution of document No.1326/1106 in favour of Myly, jenm right of property vests with the family of Sasthavu. The defendant has been residing with Myly from his childhood onwards. Sasthavu, his only son Nanan and his family members belong to Pandi Vannan community and they are members of Hindu undivided family following Mithakshara law. After the death of Sasthavu, the property devolved upon Nanan as his sole legal heir and he has been in possession of the plaint schedule property subject to the right of Myly as per document No.1326/1106. After the death of Nanan in 1948, plaint schedule property devolved upon first defendant as the sole male child and hence he is in possession of plaint schedule property and after the death of Myly, he got absolute right over the property. It is denied that plaintiffs inherited the property after the death of Myly. Even if the plaintiffs have any right over the plaint schedule property it was lost by adverse possession of the defendants from R.S.A.No.623/2015 8 22.02.1980, the date on which Myly died. So, the plaintiffs are not entitled to get any share from the plaint schedule property. 5. PW1 to PW3 were examined and Exts.A1 to A3 were marked from the side of the plaintiff. DW1 to DW4 were examined; Exts.B1 to B5 series were marked from the side of the defendants. Suit was dismissed originally as per the judgment dated 28.02.2004 against which the plaintiffs preferred A.S.No.172/2004 before the District Court, Kollam. Defendant died in the meanwhile and additional defendants 2 to 5 were impleaded as the legal representative of the original defendant. They filed statement adopting the contentions of the defendant. At the appellate stage, plaintiff filed amendment application for incorporating the claim based on Section 6 of The Hindu Succession (Amendment) Act, 2005. That was allowed and the judgment and decree was set aside and the case was remanded for fresh disposal. After remand, defendants filed additional written statement denying that they belongs to Vannan community following Makkathayam law of inheritance. No law R.S.A.No.623/2015 9 was in force by which male and female children have equal right in the family property and it is also contended that amendment to Section 6 of the Hindu Succession Act came into force in the year 2005 only and before that the disposition of the plaint schedule property in favour of the original first defendant occurred and hence the plaintiffs are not entitled for the benefits of the amended Section 6. No further evidence was adduced after remand. Thereafter, learned Sub Judge found that defendants case is more probable and the male children were having predominance in the family and that the plaintiffs failed to prove that they are co-owners of the plaint schedule property. It is also found that right, if any of the plaintiffs over the plaint schedule property, has been lost by long uninterrupted hostile possession of the property by the defendants. Accordingly, the suit was dismissed. Against which first appeal was filed. By the impugned judgment, first appellate court dismissed the appeal confirming the judgment and decree passed by the trial court by finding that the R.S.A.No.623/2015 10 disposition of plaint schedule property in favour of the original defendant occurred long before and hence Hindu Succession (Amendment) Act, 2005 has no application and hence the claim of the plaintiff based on Section 6 of Hindu Succession (Amendment) Act, 2005 is not sustainable. 7. Having lost in both forums, the plaintiffs approached this Court in this Regular Second Appeal. Pending this appeal, second plaintiff/second appellant died and legal heirs have been impleaded as additional appellants 7 to 10. 8. Notice was issued to the respondent and respondent appeared through Adv.M.Dinesh. Lower court records were called for. Both sides were heard. 9. According to the learned counsel for the appellants, the courts below failed to appreciate the question of law involved in a correct perspective. Though plaintiffs were originally alleging that they are governed by Makkathayam law of inheritance, at the time of argument, it was not in dispute that parties are governed by Hindu Mithakshara Law. Myly died in the year 1980. R.S.A.No.623/2015 11 According to the learned counsel for the appellant, as per Kerala Hindu Joint Family System (Abolition) Act, 1975 (Act 30 of 1976 as amended by Act 15 of 1978) coparcenary property will be deemed to be held as tenants in common and daughters will have equal right over the coparcenary property. So, the finding of the courts below that amendment to Section 6 of the Hindu Succession (Amendment) Act, 2005 is not applicable since the disposition of property had taken place in the year 1980 after the death of Myly, is unsustainable in law. The finding with respect to adverse possession is also not sustainable since mutation will not affect the rights of the parties and that the deceased/first defendant started construction in the plaint schedule property in the year 1994, and they filed the suit in the year 1997. So, the question of adverse possession also will not arise. 10. Learned counsel for the additional defendants, on the other hand, would contend that the parties are governed by Hindu Mithakshara Law and Sasthavu died before 1948, the year in which Nanan died. Sasthavu executed Ext.A2 in favour of Myly R.S.A.No.623/2015 12 giving life interest to her with a right to encumber the property upto Rs.200/-. On her death, it has been specified that the property will be devolved upon the family. The family, according to learned counsel, is the family then existing in the year 1948 on the death of Nanan. So,on the death of Myly in the year 1980 the property will revert back to the family as per the Mithakshara Law, on the deceased original defendant. He would also contend that Ext.A3/Ext.B1 Will No.12/1123 executed by late Nanan in favour of his children, that is the plaintiffs, the deceased Ponnamma as well as the 1[st] defendant with respect to his selfacquired properties would also show that the female children can alienate the property only with the concurrence of the male son, the original defendant. It is also stated therein that the female children are bound to sell the property to the original defendant if the demand is made by him. So, that, according to him, would show the predominance of the male members of the family. Since Myly died in the year 1980 before 2005 Amendment Act, the disposition to the deceased original defendant have taken R.S.A.No.623/2015 13 place prior to the amendment and hence the plaintiffs cannot claim any right over the plaint schedule property and there is no reason whatsoever to interfere with the concurrent findings arrived at by the courts below dismissing the suit. 11. Based on the above, following substantial question of law has been framed: i) Whether, on death of Myly in 1980, the plaintiffs and the deceased 1[st] defendant have become tenants in common with respect to plaint schedule property due to the advent of Kerala Hindu Joint family System (Abolition) Act, 1975? ii) Whether amendment to Section 6 of Hindu Succession Amendment Act, 2005 has any impact with respect to devolution of property of the plaintiffs and the first defendant in the present case? iii) Can the transfer of registry be considered as disposition as contemplated under Section 6 of the Hindu Succession Act? R.S.A.No.623/2015 14 ## Point 1: 12. Admittedly, the plaint schedule property originally belonged to Sasthavu @ Chathavu (hereinafter be referred as 'Sasthavu'), the grandfather of original plaintiffs 1 and 2 and the deceased/original defendant. Nanan, the father of the above plaintiffs, deceased Ponnamma and the first defendant is the only son of Sasthavu. Sasthavu purchased the plaint schedule property of 47.5 cents as per Ext.A1 sale deed in the year 1102. Ext.A2 is the settlement deed executed by Sasthavu in favour of Myly, the first wife of Nanan. 13. The interpretation of Ext.A2 and devolution of rights of the parties is very material for further determination of the rights of parties in view of the subsequent development of law. So, I would discuss the devolution of rights to the parties as per Ext.A2. Ext.A2 settlement deed executed by Sasthavu in favour of Myly would clearly show that Sasthavu have settled the property in favour of Myly stipulating her life interest plus the right to deal with the property upto a value of Rs.200/- with a R.S.A.No.623/2015 15 rider that she has right to create any document not amounting to the destruction of the jenm right. Value of Rs.200/- in the year 1106 M.E is quite imaginable. The extent of property is only 47.5 cents. So the right to encumber the property to a value upto Rs.200/- in the year 1106 can be taken as a valuable right. It is also specified that during her lifetime the property will be in her possession and enjoyment and the right to make improvements in the schedule property from the date of execution of the document has been given to Myly. It is also specified that after her death, the right of the property will be vested with the family. So, the courts below was of the view that the execution of Ext.A2 document by Sasthavu in favour of Myly with a condition to vest the property after the death of Myly with the family would indicate the system of inheritance followed is Mithakshara law and hence male children of Sasthavu alone would succeed to the family property and hence after the death of Nanan in the year 1948, the plaint schedule property will devolve upon the first respondent. With respect to the advent of Section 6(1) of Hindu R.S.A.No.623/2015 16 Succession (Amendment) Act, 2005, the finding of the first appellate court is that immediately after the death of Myly on 22/02/1980, original defendant mutated the property and he has exclusive possession and enjoyment of the property and hence the disposition of disputed property in favour of the 1[st] defendant occurred long before 09.09.2005 and hence Hindu Succession (Amendment) Act, 2005 has no application in this case. 14. On a close scrutiny of Ext.A2 settlement deed what is to be gathered is that Sasthavu, during his lifetime settled the property in favour of Myly, the first wife of Nanan, with a specific stipulation that the property would be vested with him during his lifetime and after his death, it should be possessed and enjoyed by her and also with a right to create any document not exceeding Rs.200/- and further that after her death, the property will be devolved upon the family. 15. Hence, the document expressly stipulates that after the death of Sasthavu, property would devolve on Myly with the specific right of enjoyment and only after her death, it will be R.S.A.No.623/2015 17 devolved upon the family. So, after the death of Sasthavu, as per Ext.A2, the property will be devolved upon Myly and only on her death, it will be reverted back to the family. It has come out as per Ext.B3 that Myly died on 22.02.1980. So, only on 22.02.1980 when Myly died, the property will be vested with the family. In the plaint, the plaintiff got a contention that they are governed by Makkathayam law of inheritance and hence male and female children would get equal right over the property of the deceased. 16. The defendants from the very beginning had contended that the parties are governed by Mithrakshara law of inheritance. However, at the time of argument before this Court, learned counsel for the plaintiffs/appellants also did not dispute that the parties are governed by Hindu Mithakshara law. That is the reason why he had claimed benefit of Section 4 of Hindu Joint family System (Abolition) Act, 1975 (in short 'Act 30 of 1976). It would be beneficial to extract Section 4 of the Act (Act 30 of 1976) in this context which reads thus: R.S.A.No.623/2015 18 _“All members of an undivided Hindu family governed by the Mitakshara law holding any coparcenary property on the day this Act comes into force shall, with effect from that day, be deemed to hold it as tenants-in-common as if a partition had taken place among all the members of that undivided Hindu family as respects such property and as if each one of them holding his or her share separately as full owner thereof."_ 17. So, once Act 30 of 1976 came into force, the properties of the joint family following Hindu Mithakshara Law will be held by the sharers as tenants in common. Even before the introduction of Section 6(1)(a) of the Hindu Succession (Amendment) Act, 2005, in Kerala, the properties held by joint family governed by Mithakshara law would be deemed as tenants in common from 17.08.1976 when Act 30 of 1976 came into force. 18. Learned counsel for the original defendant would bring to my attention **Appasaheb Peerappa Chandgade v Devendra Peerappa Chandgade : (2007) 1 SCC 521** wherein it has been held that there is no presumption of joint Hindu family and initial R.S.A.No.623/2015 19 burden is on the plaintiff to show that the entire property was a joint family property and he would contend that after the death of Myly as per the stipulations in Ext.A2 the property will devolve upon the family and Nanan died in the year 1948 and Sasthavu died even prior to that and hence the intention of Sasthavu was to vest the property with the family which is the Mithakshara family and being the son property has been vested with his son Nanan after the death of Sasthavu. When Nanan died in 1948 and the property vested with original defendant as per the Mithakshara law. But, while interpreting Ext.A2 document, I have already found that the property originally belonged to Sasthavu as per Ext.A1 and as per Ext.A2 Sasthavu settled the property in favour of Myly in the year 1106 with a specific stipulation that after his death the property will devolve upon her and subsequent to her death, it would devolve upon the family. So, according to the plaintiffs, the family as on the death of Myly in the year 1980 is the family envisaged after the commencement of Act 30 of 1976, that is upon the plaintiffs as R.S.A.No.623/2015 20 well as the defendants. Whereas according to the defendants, the family would denote the Mithakshara family as on the death of Nanan in the year 1948 which would involve only the male descendants that is the original defendant herein. 19. Section 4 of the Act 30 of 1976 expressly provides that all members of an undivided Hindu family governed by the Mitakshara law holding any coparcenary property on the day the Act came into force shall, with effect from that day, be deemed to hold it as tenants-in-common as if a partition had taken place among all the members of that undivided Hindu family. Ext.A2 settlement deed expressly provides that after the death of Myly, it would devolve upon the family, would indicate that the settler intended that the property to be devolved upon the family on her death. But, what is the family as on 22.02.1980, the date on which Myly dead, is the crucial question which emerges in this context since there is no joint family in Kerala as on 22.02.1980. As soon as the death of Myly occurred in the year 1980, the property would devolve upon the coparceners including the R.S.A.No.623/2015 21 females and they will be holding it as tenants in common as if a partition had taken place due to the advent of Section 4 of the Act 30 of 1976. 20. Learned counsel for the plaintiffs in this context placed reliance on **Anar Devi v Parmeshwari Devi : 2006 (8) SCC 656 : 2006 (7) Supreme 383** ; **Pravat Chandra Patnaik v. Sarat Chandra Patnaik 2008 0 Supreme (Ori) 125** ; **Ganduri Koteshwaramma v. Chakiri Yanadi : AIR 2012 SC 169** wherein the implication of Section 6 of Hindu Succession (Amendment) Act, 2005 which provides for parity of rights in the coparcenary property, among male and female members of a joint family on and from 09.09.2005 have been dealt with. 21. In **Babu v. Arunapriya : 2012 (4) KLT 487** while dealing with Section 6 of the Hindu Succession Act, 1956 it has been held that a Hindu female who could not have any entitlement to the coparcenary property before the commencement of the Act gets a claim under the proviso to Section 6 after the coming into force of Act 30 of 1956. It is also R.S.A.No.623/2015 22 held therein that the amended provisions of Section 6 would apply only to coparcenary property surviving as on the date of enactment of the amended provision of the Hindu Succession Act. It is also held therein that in State of Kerala after the enactment of Act 30 of 1976 the coparcenary property ceased to exist and all the members in the coparcenary who till then were joint tenants becomes tenants in common as if a statutory partition had taken place among all the coparceners. The implication of Section 4 of the Act which provides that all members of undivided Hindu family governed by Mithakshara law holding any coparcenary property on the day the Act came into force shall be deemed to hold it as tenants-in-common, as if a partition had taken place among all the members of that undivided Hindu family has also been discussed in paragraph No.18 and it is also held that as on the date on which Act 39 of 2005 came into force, there was no coparcenary property existed within the State of Kerala consequent to the passing of Act 30 of 1976. 22. The Apex Court in **Vineeta Sharma vs Rakesh** R.S.A.No.623/2015 23 **Sharma : AIR 2020 SC 3717 : AIR Online 2020 SC 676** made an elaborate discussion on the various provisions of Hindu Succession Act and the rights of daughters to inherit property exhaustively. While dealing with Hindu Succession Act (Act 30 of 1956) Section 6(1)(a) proviso Explanation I (as amended by Act 39 of 2005) and devolution of interest in coparcenary property it has been held that daughters who have born before the amendment can claim the rights from 09.09.2005 and it is also held that to form a coparcener it is not necessary that the predecessor coparcener should be alive and to claim the benefit under the amended provisions the daughters should be alive on 09.09.2005. In page 3728 it has been discussed while extracting the argument of Amicus curiae that 174[th] report of Law Commission of India recommended adoption of Kerala Model and amendments were effected in Kerala, Andra Pradesh, Karnataka and in several States giving coparcenary rights to daughters. So, the advent of the Act 30 of 1976 in Kerala has been taken note of by the Apex Court while laying the principles of law in **Vineeta** R.S.A.No.623/2015 24 **Sharma.** In paragraph 24 it has been made specific that the coparcenary property is one which is inherited by a Hindu from his father, grandfather or great grandfather and the property inherited from others is held in his rights and cannot be treated as forming part of coparcenery. The property in coparcenary is held as joint owners and coparcenary heir get right by birth. In paragraph 38 it is also provided that coparcenary property means the property which consists of ancestral property and coparcener means a person who shares equally with others in inheritance in the estate of common ancestors. 23. In paragraph 37 of the said judgment quoting N.R. Raghavachariar’s Hindu Law — Principles and Precedents, 8th Edn. (1987) at page 230 under the heading of rights of coparcener it is quoted thus: _“The following are the rights of coparcener – (1) Right by birth, (2) Right of survivorship, (3) Right to partition, (4) Right to joint possession and enjoyment, (5) Right to restrain unauthorised acts, (6) Right of alienation, (7) Right to accounts, and (8) Right to make self-acquisition."_ R.S.A.No.623/2015 25 24. So, in the present case, on the promulgation of the Act 30 of 1976 the members of Hindu family governed by Mithakshara Law holding coparcenary property be deemed to hold the property as tenants in common as if partition had taken place among all the members. So, it is subsequent to that Myly dies. Ext.A2 specifically stipulates that on the death of Myly, the property would devolve upon the family. The family as on 22.02.1980 would be a family after the commencement of the Act 35 of 1976 and the coparcener would be holding the property as tenants in common. So, the findings of the courts below that the family is following Hindu Mithakshara law and there is no evidence to show that female members have been given shares from the family property etc is not sustainable. 25. Hence contention of the defendants that the Amendment Act, 2005 came into force only on 09.09.2005 and before that Myly died and the property devolved as per the Mithakshara law upon the first defendant is not sustainable since even before the Amendment to Section 6 by the Amendment Act R.S.A.No.623/2015 26 of 2005 to Hindu Succession Act, in Kerala, Section 4 of the Act 30 of 1976 introduced rights to daughters in the coparcenary property. Hence plaintiffs are entitled for partition of plaint scheduled propertied as sought for in the plaint. 26. Ext.A3 is the Will executed by Nanan with respect to his self-acquired property having an extent of 90 cents in favour of his children including daughters and son. The first appellate court while analysing Ext.A3/B1 Will executed by Nanan in favour of the plaintiffs 1 and 2 as well as the deceased daughter Ponnamma and the first defendant had taken note of the recitals in Ext.A3 that the female children can alienate the property bequeathed to them with the concurrence of the male son, that is the original defendant. It is also taken note of the right of pre-emption given to the original defendant. 27. From the above, the first appellate court came to a conclusion that Ext.A3 would show the predominance of male members in the family. But, it is further stated in Ext.A3 that the property set apart to the minor daughters has to be given in R.S.A.No.623/2015 27 possession after their marriage to them and from that date onwards they can possess the property and enjoy the property as per the stipulations. So, the stipulations further made in Ext.A2 that the first defendant should also be a party while transferring or alienating the property and further prescribing the right of preemption to the first defendant are only insignificant once there is a direction as per the Will to give possession of the properties to the minor daughters after their marriage. It is to be noted that Ext.A3 Will has been executed prior to the commencement of Hindu Succession Act, 1956. That would indicate that Nanan was prepared to set apart properties to daughters along with the son even during that time. Nobody has any case that plaintiffs 1 and 2 and deceased Ponnamma were not given the property as stipulated in the Will, Ext.A3. 28. Learned counsel for the defendant would also contend about the claim of adverse possession perfecting title upon the defendants over the plaint schedule property after the death of Myly in the year 1980. In this context, learned counsel for the R.S.A.No.623/2015 28 plaintiff would contend that nobody was residing in the plaint schedule property and in March 1994 when the son-in-law of the original defendant started a dental mechanical workshop in the building without the knowledge and consent of the plaintiffs, they questioned the defendants and sought for partition. The suit was also filed in the year 1997. Further, he would contend that the plaintiffs also examined PW3 to prove that he used to pluck coconuts at the instance of plaintiffs. DW3 and DW4 claiming to be coconut climbers who used to pluck coconuts from the plaint schedule property at the instance of defendants. 29. However, learned counsel would contend that the tax receipts produced that is Exts.B5 to B5(h) are property tax receipts. (Out of which Exts.B5, B5(a) and B5(b) are dated 17.09.1980, 24.06.1981 and 28.06.1984 respectively prior to the institution of the suit) Ext.B5(i) building tax receipt of the year 2001, Ext.B5(j) building tax receipt of the year 2002 and Ext.B5(k) building tax receipt of the year 2003 are subsequent to the filing of the suit. He would also contend that mutation was R.S.A.No.623/2015 29 effected after the death of Myly in the name of first defendant and payment of tax will not confer any exclusive title upon the first defendant. Needless to state that revenue records will not confer title upon the property. Learned Sub Judge found that there is no evidence available to show that plaintiff had jointly possessed the plaint schedule property at any point of time. So, the rent deed Ext.B2 executed by the first defendant as well as the building tax receipts issued in favour of the first defendant coupled with the oral evidence of coconut climbers were relied on by the learned Sub Judge to find that the plaintiffs' right over the plaint schedule property is lost by uninterrupted open and hostile possession of the first defendant. The first appellate court did not enter into a finding with regard to the adverse possession of the first defendant over the schedule property. 30. Admittedly, plaintiffs 1 and 2 and the deceased Ponnamma were married away. So, the fact that the first defendant let out a building situated in the plaint schedule property to a tenant by itself will not efface the co ownership R.S.A.No.623/2015 30 right of the plaintiffs over the plaint schedule property. It has been held in **Karbalai Begum vs Mohd. Sayeed : 1980 (4) SCC 396** which has been quoted in **Md.Mohammad Ali v. Jagadish Kalita : 2003 (3) KLT Online 1239 SC** that mere non-participation in the rent and profits of the land of a co-sharer does not amount to an ouster so as to give title by adverse possession to the other co-sharer in possession. In **Dr.Mahesh** **Chand Sharma v. Smt.Raj Kumari Sharma and Others :** **1996 KHC 1089 (SC)** it has been held that a person pleading adverse possession has no equities in his favour and it is for him to plead and establish whole facts necessary to establish adverse possession. So also, in **Ram Nagina Rai and Another : Deo Kumar Rai (Deceased) :2019 KHC 7372** it has been held that person who possess title of adverse possession must show by clear and unequivocal evidence that possession was hostile to the real owner and it amounted to denial of title. 31. In paragraph 20 of the decision in **Nagabhushanammal v. Chandikeswaralingam : 2016(2)** R.S.A.No.623/2015 31 **KLT Online 2099 (SC) : JT 2016 (2) SC 465** , it has been held that the ouster is a weak defense in a suit for partition of family property and it is strong if the defense is able to establish consistent and open assertion of denial of title, long and uninterrupted possession and exercise of right of exclusive ownership openly and to the knowledge of other co-owner. In that decision, **Syed Shah Ghulam Ghouse Mohiuddin v. Syed Shah Ahmed Moriuddin Kamisul** : **1971 (1) SCC 597** has been quoted wherein it has been held that possession of one coowner is presumed to be on behalf of all co-owners unless it is established that the possession of the co-owner is in denial of title of co-owners and the possession is in hostility to co-owners by exclusion of them. It was further held that there has to be open denial of title to the parties who are entitled to it by excluding and ousting them. Paragraphs 22 and 23 of the said decision is relevant to extract which reads thus: _“A three Judge Bench of this Court in P Lakshmi Reddy v. R.Lakshmi Reddy ( AIR 1957 SC 1789), while examining the necessary conditions for applicability of_ R.S.A.No.623/2015 32 _doctrine of ouster to the shares of co-owners, held as follows:_ _“4. Now, the ordinary classical requirement of adverse possession is that it should be nec vi nec clam nec precario (See Secretary of State of India v. Debendra Lal Khan [(1993) LR 61 IA 78, 82]). The possession required must be adequate in continuity, in publicity and in extent to show that it is possession adverse to the competitor (See Radhamoni Debi v. Collector of Khulna [(1900) LR 27 IA 136, 140]). But this is well settled that in order to establish adverse possession of one co-heir as against another, it is not enough to show that one out of them is in sole possession and enjoyment of the profits of the properties. Ouster of the non-possessing co-heir by the co-heir in possession who claims his possession to be adverse, should be made out. The possession of one co-heir is considered, in law, as possession of all the co-heirs. When one co-heir is found to be in possession of the properties it is presumed to be on the basis of joint title. The co-heir in possession cannot render his possession adverse to the other co-heir not in possession merely by any secret hostile animous on his own part in derogation of the other co-heirs'_ R.S.A.No.623/2015 33 _title. (See Cores v. Appuhamy (1912) AC 230). It is the settled rule of law that as between co-heirs there must be evidence of open assertion of hostile title, coupled with exclusive possession and enjoyment by one of them to the knowledge of the other so as to constitute ouster. This does not necessarily mean that there must be an express demand by one and denial by the other.”_ _23. This Court in Vidya Devi v. Prem Prakash (1995) 4 SCC 496 held that;_ _“28. 'Ouster' does not mean actual driving out of the co-sharer from the property. It will, however, not be complete unless it is coupled with all other ingredients required to constitute adverse possession. Broadly speaking, three elements are necessary for establishing the plea of ouster in the case of co-owner. They are (i) declaration of hostile animus, (ii) long and uninterrupted possession of the person pleading ouster, and (iii) exercise of right of exclusive ownership openly and to the knowledge of other co-owner. Thus, a co-owner, can under law, claim title by adverse possession against another co-_ R.S.A.No.623/2015 34 _owner who can, of course, file appropriate suit including suit for joint possession within time prescribed by law.”_ 32. I have already discussed how the trial court arrived at a finding with regard to adverse possession and no finding as such with regard to adverse possession has been entered into by the first appellate court. 33. In the present case, plaintiffs as well as defendants examined coconut climbers to prove that the coconuts are being plucked at their instance. That is oath against oath and hence is not safe to be acted upon. The tax receipts pertaining to the building in the plaint schedule property produced relates to subsequent to the suit. Though property tax receipts have been produced for the period from 1980 onwards and mutation also seem to have been effected after the death of Myly in the name of the original defendant, that by itself will not prove or indicate any ouster or adverse possession of the defendants over the plaint schedule property. Admittedly, nobody is residing in the plaint schedule property also. In the said circumstances, finding R.S.A.No.623/2015 35 of adverse possession as against the plaintiffs is without any sufficient pleadings and materials and hence is not sustainable. 34. In the result, judgment and decree passed by the courts below are hereby set aside and suit decreed declaring ¼ share each of plaintiffs 1, 2 and plaintiffs 3 to 5 together (children of the deceased Ponnamma) as well as ¼ share of additional defendants 2 to 5 together as legal heirs of deceased original defendent over the plaint schedule property. The question of mesne profit is left open for determination in the final decree proceedings. 35. Learned Sub Judge is directed to comply the directions of the Apex Court in **Kattukandi Edathil Krishnan v. Kattukandi Edathil Valsan : 2022(3) KLT 924 SC : AIR 2022 SC 2841** in the matter of passing final decree. In the facts and circumstances and relationship between the parties in the case, they shall bear their respective costs. (sd/-) **M.R.ANITHA, JUDGE** jsr True Copy P.S to Judge