Kerala High Court
T.K. Madhavi Alias Narayani vs K.V. Savithri And Ors. on 5 October, 2007
Equivalent citations: 2007(3)KLJ686, AIR 2008 (NOC) 484 (KER.), 2008 (1) AJHAR (NOC) 316 (KER.) 2008 AIHC (NOC) 596 (KER.), 2008 AIHC (NOC) 596 (KER.), 2008 AIHC (NOC) 596 (KER.) 2008 (1) AJHAR (NOC) 316 (KER.), 2008 (1) AJHAR (NOC) 316 (KER.)
Author: Harun-Ul-Rashid
Bench: Harun-Ul-Rashid
JUDGMENT Harun-Ul-Rashid, J.
1. The appellant in this appeal is the second defendant in O.S. No. 51/1980 on the file of the Sub Court Kozhikode and the appellant in A.S. No. 193 of 1987 on the file of the District Court, Kozhikode. The suit O.S. No. 51/1980 is one for partition filed by the (1st respondent herein) as plaintiff claiming 1/3 share in the plaint schedule items 1 & 2. A preliminary decree for partition was passed. As per the decree, the plaint schedule properties shall be divided into two equal shares and one such share shall be allotted to the plaintiff and the other share shall be allotted to the 1st defendant who are the daughters of one Sri. Velayudhan who died in 1942. The 2nd defendant who is his wife was not allotted any share in the property. But it was held by the trial court that the 2nd defendant was entitled to get maintenance for her life from the plaint schedule properties. The preliminary judgment and decree passed by the trial court was confirmed in A.S. 193/1987 by the District Court. The 2nd defendant in the suit who is the wife of deceased Velayudhan being aggrieved by the non-allotment of share to her had filed this second appeal. The parties herein are referred to as named in the suit.
2. It is the common case of the parties that the plaint schedule items 1 & 2 are the self-acquired properties of deceased Velayudhan who is the father of the plaintiff and 1st defendant and the husband of the 2nd defendant who is the appellant herein. The appellant/2nd defendant in O.S. 51/1980, claimed 1/3 shares of the suit properties. The plaint also proceeds on the basis that all the three parties are entitled to 1/3 share each. According to plaintiff not only the two daughters but the appellant is also entitled to inherit the plaint schedule properties left behind by deceased Velayudhan since she is his wife.
3. In the written statement filed by the 1st defendant. It is contended that the 2nd defendant is not entitled to inherit the property left behind by deceased Velayudhan. According to her the custom which governs the parties to the suit the rights of the deceased Velayudhan will devolve only upon his daughters namely the plaintiff and the first defendant. According to the 1st defendant the 2nd defendant who is the wife of the deceased Velayudhan has only a right to get maintenance in the property.
4. The 2nd defendant who is the appellant herein also filed written statement contending interalia that after the death of Velayudhan the plaintiff and defendants are in joint possession of the property and that being a legal heir she is entitled to inherit the property left behind by the deceased Velayudhan. She is entitled to 1/3 share in the property and she prayed for her share to be separated in the allotment to be made by the court. The 1st defendant was examined as DW1. The two other parties to the suit have not adduced any oral or documentary evidence.
5. The trial court placing reliance on the evidence of DW1 held that the plaint schedule property is to be divided into two equal shares to the daughters of deceased Velayudhan and that the appellant/2nd defendant who is the wife of deceased Velayudhan is not entitled to inherit any share. But she is only entitled to claim maintenance for her life from the plaint schedule properties. The trial Court entered the finding on the basis of the oral evidence of DW1 and not on the basis of law governing succession. Thus the trial court passed a preliminary decree by dividing the properties into two equal shares and also further held that the 2nd defendant is entitled to get maintenance for her life from the plaint schedule properties. The 2nd defendant filed A.S. No. 193/1987. The appellate court held that prior to the coming into force of the Hindu Succession Act, 1956 a female Hindu had only a limited estate and therefore she had only the right to claim maintenance out of the property and thus confirmed the findings of the trial court and dismissed the appeal.
6. When the second appeal came up for admission on 1-11-1996, this Court ordered notice on the following substantial questions of law framed in the memorandum of second appeal.
(i) Whether the lower court was correct in deciding that among Thiyyas of Calicut the daughter excludes the widow of deceased person in inheriting his property.
(ii) Whether the lower courts was justified in overlooking the decisions reported in I.L.R. 19 Madras 1 and I.L.R. Madras 440 wherein it was held that widow is a sharer.
(iii) Whether the lower courts was correct in casting the burden of proof on the appellant (widow) to establish the customary law of Thiyyas of Calicut gives right to the widow of the deceased person to get a share in his properly.
(iv) Whether the lower courts was justified in not applying Mitakshai a Law in die absence of proof regarding the custom application to the community.
(v) Whether the lower appellate court not having considered the application for reception of additional documents before the disposal of the appeal has committed an error of law and has not exercised jurisdiction vested in it properly;
(vi) Whether the limited right of the widow conceded by the 1st defendant has not ripened into full ownership under Section 14 of the Hindu Succession Act, 1956;
(vii) Whether the lower court had committed an error of law in not exercising its jurisdiction to remand the case under Rule 23 A of Order XLI of the Code of Civil Procedure 1908 and give an opportunity to the parties to establish the custom prevailing among Thiyyas of Calicut.
7. The only contest in the suit is set up by the 1st defendant who contended that the wife of deceased Velayudhan is not entitled to any share in the property and the property has to be divided into two equal shares to be divided in between the two daughters.
8. I have gone through die pleadings in the written statement filed by the 1st defendant and her deposition. I do not find any pleadings in the written statement of the 1st defendant claiming that there is a custom by which daughters in her it the self-acquired property of their father in exclusion of me widow. I have gone through the oral evidence adduced by her. Nowhere it is stated about any custom that excludes widow from inheriting the property of her husband. In the absence of any special custom pleaded and proved Mitakshara law shall be treated as the customary law. Since the parties are Thiyyas of Kozhikode Taluk, the law governing them is custody law known as "Makkathayam". If there is any custom which is inconsistent with the law it is for the person who sets up such custom to prove the same by positive evidence.
9. Thiyyas of former Calicut Taluk are governed by the customary law known as makkathayam. In order to know the rule of law governing them on the question of succession one should know what is the rule of customary law followed by them in that matter. The question will have to be decided with reference to the pleadings and evidence of custom followed by the community. In the absence of satisfactory evidence to show what exactly is the rule of the customary law on any particular point, the rule of customary law to be applied is the Mitakshara Law. The makkathayam rule of inheritance as established by well settled decisions of courts in the facts of this case is that the widow and daughters (in the absence of son/sons) succeeded to the self-acquired property of the deceased. The contention of the 1st defendant that daughters alone inherit in exclusion of the widow is a special custom neither pleaded nor proved. According to the counsel for the appellant custom in question to the exent relevant to the facts of this case is well settled by judicial pronouncements and treatise in Hindu Law.
10. The Supreme Court in Kelukutty and Ors. v. Mammad and Ors. reported in 1972 KLT 725 following Imbichi Kandan and Ors. v. Imbichi Pennu and Ors. ILR 19 Madras 1 held that Thiyyas of former Calicut Taluk were governed by the customary law known as Makkathayam. As per the Makkathayam rule of inheritance an undivided brother of a deceased person succeeded to the self-acquired property of the deceased in preference to the wife and daughter of the deceased. It that is so the daughter's son who comes after them under the general Hindu Law cannot have a superior claim unless a custom to that effect is pleased and proved. In Imbichi Kandan and Ors. v. Imbichi Pennu and Ors. ILR 19 Madras 1 the Madras High Court have considered the question in which it held that on the death of a Thiyyan of South Malabar following the Makkathayam rule of inheritance, his mother, widow and daughter are entitled to succeed to his property (acquired by himself and his father) in preference to his father's divided brothers. The lower appellate court overlooking the law of succession that in the absence of proof of custom Mitakshara Law will be presumed to apply, and without correctly comprehending the judicial pronouncements held that widow is not entitled for any share. There was no attempt to establish any independent evidence by the 2nd respondent to show that widow is not entitled to a share under customary law. The interested testimony of D.W.I which runs counter to judicial precedents ought not have been relied as establishing the custom applicable to the Thiyyas of Calicut.
11. In Rohini v. Sethumadhavan 1978 K.L.T. 470 the Full Bench of this Court held that the law applicable to Thiyyas of Calicut is essentially customary law, that the burden is on the party setting up any particular rule of custom to prove the same, and that in the absence of proof of custom the Hindu Mithakshara Law will be presumed to apply. In Choyichi v. Raghavan 1988 (2) K.L.T. 67 this Court held that for the parties following Hindu Mitakshara Law the self acquired and separate properties will be taken by the heirs by inheritance as tenants-in-common. The properties involved in that suit are the self-acquired properties of the father and the heirs were his three sons.
12. The plaintiff pleaded that two daughters and mother are entitled to inherit the property of the deceased. The 1st defendant though contended that the widow is not entitled to any share, she did not discharge the burden of establishing that widow is excluded from inheritance and daughter is a preferential heir. In the absence of proof of custom to establish the exclusion of the widow by daughters from inheritance, on the death of a Thiyya of South Malabar following the Makkathayam rule of inheritance, his widow and daughters are entitled to succeed to his self-acquired properties.
13. In the result, the appeal stands allowed. The plaint schedule properties' shall be divided into 3 equal shares and one such share shall be allotted to the plaintiff and other shares to the defendants. The decretal portion of the preliminary decree passed by the trial court stand modified to the extent stated above.