Kerala High Court
Pachi Krishnamma vs Kumaran Krishnan on 18 January, 1982
Equivalent citations: AIR 1982 KERALA 137
JUDGMENT P.C. Balakrishna Menon, J.
1. The 1st plaintiff is the appellant. The suit is for partition of two items of properties and for allotment of two out of three shares to the plaintiffs. The 1st plaintiff is the daughter and the defendant is the son of the 2nd plaintiff and her deceased husband Kumaran. The suit-properties are joint family properties obtained by Kumaran as per Ext. B1 partition of the year 1097. Kumaran died in 195s prior to the commencement of the Hindu Succession Act. The parties to the suit are of Pandivannan Community governed by the Hindu Mitakshara Law modified by custom. The plaintiffs pleaded a custom that an unmarried daughter is entitled to a share equal to that of a son in the joint family properties. The plaintiffs' claim two out of three shares on the basis that the two plaintiffs and the defendant are each entitled to 1/3 share in the joint family properties. The 2nd plaintiff died during the pendency of the suit. It is not disputed that she had executed a deed of gift dated 31-3-1969 in favour of the 1st plaintiff settling all her rights on the suit properties on her. The defendant denies the custom pleaded and also denies the plaintiffs' right to any share in the suit properties.
2. Both the courts below have concurrently found that the plaintiffs have failed to prove the custom under which an unmarried daughter is entitled to a share in the joint family properties. The courts below have also found that the 2nd plaintiff, the widow of Kumaran is not entitled to any share in the joint family properties,
3. On the concurrent findings of fact that the plaintiffs have failed to prove the custom as per which an unmarried daughter is entitled to a share in the joint family properties, the 1st plaintiff is not entitled to any share in her own right.
4. The only other question for consideration in this Second Appeal is as to whether the 2nd plaintiff is entitled to a share in the joint family properties. The argument of learned counsel for the appellant is that the 2nd plaintiff is entitled to a share on partition, and such share as she gets on partition is her absolute property on account of her preexisting right to maintenance enlarged to an absolute title to property by virtue of Sub-section (1) of Section 14 of the Hindu Succession Act. The right of a Hindu widow is only to be maintained from out of the income of the joint family properties. She will have a charge on the property itself. But that does not mean she has a right to possession of joint family property nor is she a coparcener entitled to claim joint possession along with the other members. Under Sub-section (1) of Section 1'4 of the Hindu Succession Act any property possessed by a female Hindu, whether acquired before or after the commencement of the Act shall be held by her as full owner and not as a limited owner. The 2nd plaintiff had no possession of joint family properties which would entitle her to claim full ownership under Sub-section (1) of Section 14 of the Act.
5. Learned counsel for the appellant relies on the decision of the Supreme Court in Vaddeboyina Tulasamma v. Vaddeboyina Sesha Reddi (dead) by L. Rs. (AIR 1977 SC 1944), in support of the argument that a widow's right to maintenance is a pre-existing right to property maturing to a full estate by virtue of the provisions of Sub-section (1) of Section 14 of the Hindu Succession Act. In the case before the Supreme Court, the widow was in possession of property allotted to her in lieu of her maintenance as per the terms of a compromise entered into between the parties at the stage of execution of a decree for maintenance. Even though the compromise provided for only a limited interest in the property in the possession of the widow, the Supreme Court held that Sub-section (2) of Section 14 has no application for the reason that the possession of property by the widow as a limited owner is in recognition of her pre-existing right to maintenance on the date on which the Hindu Succession Act came into force and it is Sub-section (1) of Section 14 of the Act that would apply conferring an absolute estate to the widow in respect of the property in her possession, especially in view of the explanation to Sub-section (1) of Section 14. In the present case the 2nd plaintiff had no possession of property in lieu of maintenance, and the decision in AIR 1977 SC 1944 has no application to the present case.
6. Sri Vyasan Poti, the learned counsel for the appellant submits that the 2nd plaintiff is entitled to a share equal to that of her son on partition of the assets of the joint family, and for that reason the appellant is entitled to a half share in the suit properties. He relies on the decision of this Court in Saraswathi Ammal v. Anantha Shenai (1965 Ker LT 141) : (AIR 1966 Ker 66), in support of this proposition. In this decision it is held that in the Travancore area, a widow on partition of the joint family properties among her sons is entitled to a share equal to that of a son. But this decision itself has quoted and followed a passage from Mulla's Hindu Law, 13th Edn., para 316, which reads as follows :
"A mother cannot compel a partition so long as the sons remain united. But if a partition takes places between the sons, she is entitled to a share equal to that of a son in the coparcenary property".
The Supreme Court in the decision in Lakshmi Chand Khajuria v. Smt. Ishroo Devi, (AIR 1977 SC 1694) has stated the law as to the right of a widow to claim a share on partition, in para 14 of its judgment thus :
"14.....The counsel for the appellant submitted that the appellate court was in error in determining the interest of the testator as one-half share in the two items of joint family property. He submitted that according to Mithakshara Law except in Madras when there is a partition between the son and his father, mother is entitled to a share equal to that of the son. In support of his contention the learned counsel referred to Mulla's Hindu Law, 14th Ed. p. 403, paragraph 315, where it is stated that while the wife cannot demand a partition, but if a partition does take place between her husband and his sons, she is entitled to receive a share equal to that of a son and to hold and enjoy that share separately even from her husband: To the same effect is the passage in Mayne's Hindu Law, 11th Ed. p. 534 paragraph 434, where it is stated "according to the Mithakshara Law, the mother or the grandmother is entitled to a share when sons or grandsons divide the family estate between themselves, but she cannot be recognised as the owner of such share until the division is actually made, as she has no pre-existing right in the estate except a right of maintenance". Reference was also made to the decisions reported in Dular Koeri v. Dwarkanath Misser, (1905) ILR 32 Cal 234 where it was held that under the Mithakshara law when partition of joint family property takes place during the father's lifetime at the instance of the son, the mother of the son is entitled to a share equal to that of her husband and her son, and she is entitled to have the share separately allotted, and to enjoy that share when so allotted. In Sumrun Thakoor v. Chunder Mun Misser, (1882) ILR 8 Cal 17 it was held that under the Mithakshara Law where a partition takes place between a father and a son, the wife of the father is entitled to a share. In Hosbanna Devanna Naik v. Devanna Sannappa, ILR 48 Bom 468 : (AIR 1924 Bom 444) it was held that a step-mother is entitled to a share on partition between the father and his sons. In Partap Singh v. Dalip Singh, ILR 52 All 596 : (AIR 1930 All 537) in a partition between a Hindu father and his son it was held that the wife of the father has a right to a share equal to that of the father or the sons. In Madras though Mithakshara Law is applicable it has been held that on a partition between the sons and the father, the mother is not entitled to any share. (Mulla's Hindu Law. 14th Ed. p. 403 -- "Madras State --in Southern India the practice of allotting shares upon partition to females has long since become obsolete."). So far as Jammu & Kashmir is concerned there is no decision regarding the interest of a male Hindu in coparcenary property." Prom these decisions it is clear that the 2nd plaintiff can have no right to demand a partition of the joint family properties. She had no pre-existing right except as regards the right to be maintained out of the income from the joint family properties.
7. According to the learned counsel for the respondents, the decision in 1963 Ker LT 141 : (AIR 1966 Ker 66) cannot be accepted as laying down the correct law in view of the decision of the Supreme Court in AIR 1977 SC 1694. As the 2nd plaintiff has no right to demand a partition the question as to whether in the Travancore area a widow is entitled to claim a share on partition of the joint family properties among the co-parceners does not arise for consideration in this Second Appeal. It is therefore unnecessary for me to consider the question whether the decision in 1965 Ker LT 141 : (AIR 1966 Ker 66) requires reconsideration in view of the decision of the Supreme Court referred to above.
8. The learned counsel for the appellants submits that the 2nd plaintiff in any event is entitled to claim past maintenance until the date of her death and the 1st plaintiff is also entitled to claim maintenance until the date of her marriage as well as the expenses for her marriage. It is admitted that the 1st plaintiff got married in the year 1955. No claim is made in the plaint for arrears of maintenance or for expenses of marriage. In her deposition, the 1st plaintiff has admitted that the expenses for her marriage were met by the defendant. Under these circumstances I do not find that the appellant is entitled to any relief in this Second Appeal. The Second Appeal fails and is dismissed. There will be no order as to costs.