Kerala High Court
Viswanathan Pillai vs K.Nallammal
Author: Harun-Ul-Rashid
Bench: Harun-Ul-Rashid
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE HARUN-UL-RASHID
THURSDAY, THE 2ND DAY OF FEBRUARY 2012/13TH MAGHA 1933
AS.No. 679 of 2001 ( )
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OS.324/1996 of ADDL.SUB COURT, PALAKKAD
APPELLANT/DEFENDANT:
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VISWANATHAN PILLAI, AGED 68 YEARS,
S/O.KRISHNA PILLAI, MANAKKADU, PADOOR P.O.,
KAZHANI AMSOM, ALATHUR TALUK,
PALAKKAD DISTRICT.
BY SR. ADV. SRI.P.N.K. ACHAN
SRI K.MOHANA KANNAN
RESPONDENT/PLAINTIFF:
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K.NALLAMMAL, AGED 64 YEARS,
W/O.VELLAYAPPAN PILLAI, KAYARAMKULAM,
THENKURUSSI, THENKURUSSI AMSOM,
ALATHUR TALUK, PALAKKAD DISTRICT.(DIED)
ADDL.2. PREMA @ VALSALA, D/O.LATE NALLAMMAL, KAYARAMKULAM,
THENKURUSSI, ALATHUR TALUK, PALAKKAD DISTRICT.
3. RAMACHANDRAN, S/O. LATE NALLAMMAL, -DO- -DO-
4. AMBILY, D/O. LATE NALLAMMAL, -DO--DO-
5. MANIKANDAN, S/O. LATE NALLAMMAL, DO- -DO-
6. LATHA, D/O. LATE -DO- -DO-
7. SATHI @ SREEDEVI, W/O. LATE SASI,
PUTHENPURACKAL HOUSE, THKKETHARA, PAZHAYANNOOR,
PALAKKAD DISTRICT.
8. SREEJITH, AGED 8 YEARS (MINOR), S/O.LATE SASI, -DO- -DO-
9. SAJITH, AGED 6 YEARS (MINOR), S/O. LATE SASI, -DO- -DO-
(MINORS SREEJITH & SAJITH ARE REPRESENTED BY THEIR MOTHER SATHI @
SREEDEVI)
(THE LEGAL HEIRS OF DECEASED SOLE RESPONDENT ARE IMPLEADED AS
ADDL. R2 TO R9, AS PER ORDER DTD. 26/9/2011 IN I.A.NO.3743/2006)
R,ADDL.R2 TO 7 BY SRI.T.C.SURESH MENON
THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 02-02-2012,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
A.S.NO.679/2001
ORDER ON I.A.NOS.2056/2003 & 656/2004 IN A.S.NO.679/2001
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DISMISSED
2/2/2012 Sd/-
HARUN-UL-RASHID, JUDGE.
True Copy
P.S.TO JUDGE
HARUN-UL-RASHID,J.
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A.S.NO. 679 OF 2001
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DATED THIS THE 2NDOF FEBRUARY, 2012
JUDGMENT
Defendant is the appellant. The appeal is directed against the judgment and decree dated 14/3/2001 in O.S.No.324/1996 on the file of the Sub Court, Palakkad. The suit is for partition and separate possession of one half share of the plaint schedule property. The suit was decreed and a preliminary decree for partition was passed directing division of one half share of the plaint schedule property. The parties are hereinafter referred to as the plaintiff and defendant as arrayed in the suit.
2. Plaintiff and defendants are the children of Krishna Pilla and Meenakshiamma. Plaint schedule property was purchased by Meenakshiamma as per Ext.A1 assignment deed dated 28/5/1928. The extent of property is 12 cents with a tiled house. According to the plaintiff, after the death of the mother-Meenakshiamma, the property was devolved upon the plaintiff and defendant and they are in joint -2- A.S.No.679/2001 possession and enjoyment of the same till 1992. Plaintiff claims partition and separate possession of one half share over the property.
3. The defendant-brother contended that the plaintiff is not the legal heir of the deceased Meenakshiamma, that Meenakshiamma died in the year 1950 and that their father died in the year 1966. According to the defendant, the building in the property was constructed by him in the year 1956 after availing loan from the Government and utilising his salary. It is also contended that since the mother of the parties died before the commencement of the of the Hindu Succession Act, 1956, the plaintiff is not entitled to get the share of the plaint schedule property and that she is not the legal heir and that the right of the plaintiff if any in the property has been lost by adverse possession and limitation.
4. The parties adduced oral and documentary evidence in support of their respective contentions. The evidence consists of oral evidence of PW1, DW1 and Exts.A1 to A3 and B1 to B6. -3- A.S.No.679/2001
5. Ext.A1 is the assignment deed executed in the name of Meenakshiamma. Ext.A1 is executed in the year 1928. Ext.B1 is the original assignment deed. According to the plaintiff, after the death of the father and mother, the property was devolved upon the plaintiff and defendant equally and therefore she is entitled to one half share over the plaint schedule property. It is an admitted fact that the mother died before the Hindu Succession Act came into force. The marriage of the plaintiff took place in the year 1955. The property was purchased by the mother Meenakshiamma in the year 1928 by utilising the amount she received as Stridhana money. The parties belong to Pillai community and they are governed by the provisions of the Hindu Mithakshara Law. The appellant/defendant contended before the court below that the property given at the time of marriage by the father is known as 'Sulka' property and as per the law of succession in force prior to the Hindu Succession Act, 1956, it will devolve upon firstly the brothers, secondly mother, thirdly father and forthly the father's legal heirs. According to the defendant, plaintiff is not the legal -4- A.S.No.679/2001 heir of the mother and she is not a co-owner of the property. Defendant obtained purchase certificate in his name from the Land Tribunal. The trial court considered the contentions of the respective parties. The trial court held that since the property was acquired by a female before 1956, it has to be considered as Stridhana property for which she has absolute right. The trial court also held that even though the claim of adverse possession and limitation was raised by the defendant, the said contention is not proved. In the facts and circumstances of the case, the trial court held that the plaintiff is entitled to get partition and separate possession of one half share and mesne profits.
6. Learned senior counsel for the appellant contended that the plaint schedule property is the Stridhana property of the mother, who died prior to 1956, that the heirs of the father of Meenakshmiamma are the Stridhana heirs and therefore, the defendant, being the lawful heir of Meenakshmiamma's father, the court below ought to have accepted the said contentions and should have dismissed the suit. Learned counsel also submits that -5- A.S.No.679/2001 the property was purchased in the year 1928 in the name of Meenakshiamma at the time of her marriage and the sale consideration was paid by the father as Stridhana. Therefore, the contention raised is that the property given at the time of marriage by the father is known as 'Sulka' property and as per the law of succession prior to the Hindu Succession Act, 1956 it will devolve upon (1) uterne brothers, (2) mother, (3) father and (4) father's heirs. The learned counsel submits that the plaintiff is not the legal heir of her mother and she is not a co-owner of the property and therefore the decree for partition passed by the trial court is unsustainable in law.
7. It is not disputed that the plaint schedule property was purchased by Meenakshiamma as per Ext.A1 assignment deed. Ext.A1 would go to show that Meeenakshiamma purchased the property by utilising the Stridhana amount obtained from her father. Mother died before the commencement of the Hindu Succession Act. Father also died subsequently. The issue to be decided in the suit is as to whether the plaintiff is entitled to claim -6- A.S.No.679/2001 one half share in the property? It is not disputed that the parties are governed by the provisions of Hindu Mithakshara Law. Ext.A1 reveals the fact that Meenakshiamma purchased the property in the year 1928 by utilising the Stridhana amount.
8. Learned counsel for the respondent/plaintiff contended that going by the law governing the subject the plaintiff has right to the entire plaint schedule property and that since the defendant is her brother, she is claiming only one half right over the property. For the purpose of deciding the nature of devolution of Stridhana property a reference to principles and precedents in the Hindu Law by N.R. Raghavachariar sixth edition is profitable. 'Stridhana' is described as property in the hands of a woman over which she has absolute powers of dispossession. Different types of Stridhana property is mentioned in page 822 under the head 'What is Stridhana'. At page 822 the principles regulating the devolution of Stridhana property are mentioned. It is stated that female issue is preferred to male issue, co-heirs take as tenants-in- common and not as joint tenants. The Mitakshara divides -7- A.S.No.679/2001 Stridhana property into (i) Maiden's property (ii) Sulka, and (iii) Other Stridhana. The order of succession to other Stridhana is as follows:
(i) Unmarried daughters.
(ii) Married daughters unprovided for.
(iii) Marride daughters provided for.
(iv) Daughter's daughters.
(v) Daughter's sons.
(vi) Sons,
(vii) Son's sons.
(viii) Husband.
(ix) Husband's sapindas.
(x) Blood relations like mother, father and their kinsmen.
(xi) The Crown.
9. Page 544 of Hindu Law (paragraph 480) by Raghavachariar 6th Edition deals with 'Sulka', which reads as follows:
"Among the Aryan communities as a whole we find the earliest traces of the separate property of a woman in the widely diffused ancient institution, known as the bride-price. Part of this -8- A.S.No.679/2001 price, which was paid by the bridegroom either at the wedding or the day after it, went to the bride's father as compensation for the patriarchal or family authority which was transferred to the husband but another part went to the bride herself, and was very generally enjoyed by her separately and kept apart from her husband's property."
Sulka differently defined as the present to induce the bride to go with her husband or as the amount paid as equivalent of the price of household utensils, ornaments, etc. went absolutely to the wife over which the husband had no control and may also be immovable property."
10. Page 547 of the Hindu Law (paragraph 489) enumerates the general principles governing 'Succession to Stridhana'. It is stated that "female issue are preferred to male issue. Thus a son is excluded by a daughter and the daughter's son is excluded by the daughter's daughter."
11. At page 555 in paragraph 498 'Sulka' is defined as follows:
"Sulka, defined as the property received by a woman as the value of household utensils, of beasts of burden, cattle, dress and ornaments -9- A.S.No.679/2001 follows the line of devolution mentioned in the Mitakshara."
12. The very same principles are stated in Mayne's Hindu Law & Usage 14th Edition. At page 982 in paragraph 658 Mithakshara law it is stated that if the mother is dead, daughters take her property in the first instance. Going by the definition of 'Stridhana' property and 'Sulka' property, it is clear that the property obtained by Meenakshiamma is not a 'Sulka' property. 'Sulka' property is known as bride-price paid by the bridegroom either at the wedding or the day after it, went to the bride's father as compensation for the patriarchal or family authority which was transferred to the husband but another part went to the bride herself, and was very generally enjoyed by her separately and kept apart from her husband's property. In this case the property obtained by Meenakshiamma is her Stridhana property. Being not a Sulka property, the appellant/defendant cannot claim absolute right over the plaint schedule property. The evidence on record would reveal that after the death of the mother and father, the defendant has been enjoying the property. The mother died during 1950 and father died in 1966. The suit was filed by the plaintiff- sister in the year 1996. The evidence reveals that the defendant constructed a house in the property in the year 1956. DW1 -10- A.S.No.679/2001 deposed that he constructed the house by availing loan from the Government and also utilising the amount from the salary amount. Subsequently, he repaid the loan amount. The building was constructed during the lifetime of the father. Though the defendant was cross-examined, nothing has been brought out to discredit his testimony. It is a fact that the defendant had constructed a house about 40 years before the filing of the suit and he was residing in the said building. The Plaintiff has no case that he had contributed money for the construction. Ext.B2 would go to show that the defendant had availed a loan on 21/3/1956 under the Rural Scheme and that the defendant had repaid the loan amount and Ext.A1 document was returned to him. Defendant produced Ext.B4 which would go to show that the defendant is shown as the owner of the building in the assessment register of the building maintained by the local authority. He also produced building tax receipts from 1973 to 1996 and basic tax tax receipts from 1974 to 2001. There is positive evidence to show that the building exclusively belongs to him and hence the defendant is entitled to get the portion of the property wherein the building situates and the plaintiff has no right to claim any share of the residential building. In the facts and circumstances stated above, this Court is not inclined to interfere with the judgment and decree passed by the trial court granting partition and separate possession of one half right except the -11- A.S.No.679/2001 modification regarding the residential building.
In the result, the appeal is allowed in part. The plaintiff is entitled to get one half share over the plaint schedule property excluding the residential building. To that extent, the decree passed by the trial court is modified. There will be no order as to costs.
Sd/-
HARUN-UL-RASHID, JUDGE.
kcv.