Kerala High Court
Padmakshy vs Madhavi on 11 August, 2009
Author: V. Ramkumar
Bench: V.Ramkumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
AS.No. 530 of 1997(E)
1. PADMAKSHY
... Petitioner
Vs
1. MADHAVI
... Respondent
For Petitioner :SRI.N.SUBRAMANIAM
For Respondent :SRI.P.N.KRISHNANKUTTY ACHAN(SR.)
The Hon'ble MR. Justice V.RAMKUMAR
Dated :11/08/2009
O R D E R
"CR"
V. RAMKUMAR , J.
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A.S. No. 530 of 1997
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Dated this the 11th day of August, 2009.
JUDGMENT
The plaintiff in O.S. No. 52 of 1992 on the file of the Sub Court, Thrissur is the appellant in this appeal. The aforesaid suit instituted by the appellant was one for partition and separate possession of < share over 8 items of immovable properties altogether admesuring 2.85 acres scheduled to the plaint. The properties are situated in the Vadanappilly village of Chavakkad Taluk which was part of the erstwhile South Malabar area.
2. All the 8 items of plaint schedule properties belonged to one Paran as allotted to him under Ext.A1 partition deed dated 04.11.1941. The parties are admittedly thiyas of South Malabar. Paran died in May, 1963 leaving behind him his widow Madhavi who was the first defendant who also died pending this appeal on 22.04.1998 and two daughters and one son. The plaintiff Padmakshy and the 3rd defendant Santhakumari are the two A.S. No. 530 of 1997 : 2 : daughters of Paran and the 2nd defendant Ramakrishnan is the only son of Paran.
3. The case of the plaintiff can be summarised as follows:-
The plaint schedule properties originally belonged to deceased Paran, the husband of the 1st defendant and father of the plaintiff and defendants 2 and 3. The plaintiff and the defendants are the only legal heirs of deceased Paran. On the death of Paran, < right over the properties devolved upon the plaintiff and the defendants each and they are in joint possession of the properties. Defendants 1 and 2 are residing in the house in the plaint schedule property. To the demand made by the plaintiff, defendants 1 and 2 were avoiding the plaintiff which necessitated the plaintiff to send Ext.A2 lawyer notice dated 24.10.1991 demanding partition. The 2nd defendant has caused Ext.A3 reply raising untenable contentions and stating that the plaintiff is entitled to get only 1/8 share. The plaint schedule property will fetch an annual income of Rs.10,000/-. The plaintiff, therefore, prays for partition and separate possession of her < share with future profits.
A.S. No. 530 of 1997 : 3 :
4. The 3rd defendant remained ex parte. The suit was resisted by defendants 1 and 2 who filed a joint written statement contending inter alia as follows:-
5. The plaint schedule properties originally belonged to Paran, the common ancestor as per Ext.A1 partition. The plaint schedule properties were set apart to the share of Paran in the family partition. Deceased Paran and his legal heirs who are the plaintiffs and the defendants, belonged to the thiyya community of Vadanappilly village which was part of the erstwhile Malabar District of the State of Madras. The parties follow the Hindu Law of inheritance as per which the 2nd defendant has got a right by birth along with Paran over the suit properties which are ancestral properties and he therefore became a co-parcenar having = right over the suit properties. Paran died in the year 1963. The half right of Paran on his death devolved upon the plaintiff and the three defendants equally. Therefore, the plaintiff and defendants 1 to 3 are each entitled to 1/8 shares in the properties. The 2nd defendant is entitled to = share in his capacity as the co-parcenar and also 1/3 share of the other = A.S. No. 530 of 1997 : 4 : share of Paran who died in the year 1963. The allegation in the plaint that the plaintiff is in joint possession of the properties is false. Defendants 1 and 2 are residing in the house in the property. The plaintiff is residing with her husband after her marriage. The 2nd defendant has effected extensive improvements by spending large amounts out of his pocket. He has put up a house, cattle shed, well and a tank on the northern side of the family house. After the death of Paran, the 2nd defendant has also discharged the debts of Paran. The plaint allegation that the properties will fetch an annual income of Rs.10,000/- is not correct. The annual income from the properties would be only Rs.7000/-. The claim of the plaintiff is, therefore, not sustainable.
6. The court below framed the following issues for trial.
1. What is the share to which the plaintiff is entitled, <th or 1/8th ?
2. Is the plaintiff entitled to her separate share on a division of the plaint schedule properties by metes and bounds?
3. Reliefs and costs?
A.S. No. 530 of 1997 : 5 :
7. No oral evidence was adduced on either side. On the side of the plaintiff, Exts. A1 to A4 were got marked and on the side of the defendants Exts. B1 to B9 were got marked.
8. The learned Subordinate Judge after trial, as per judgment and decree dated 29.06.1996 passed a preliminary decree as follows:-
1. Plaint Schedule properties shall be divided into 8 equal shares.
2. Plaintiffs and D1 and D3 are entitled for one such share each and D2 is entitled for 5 such shares.
3. The claim of D2 for the value of improvements effected by him will be decided in the Final Decree.
4. D2 is made liable for the share in profits of other sharers the quantum of which will be decided in the Final Decree.
5. Costs of the parties will come out of the estate.
6. Any of the sharer is at liberty to apply for Final Decree.
9. It is dissatisfied with the preliminary decree passed by the court below refusing < share to the plaintiff that she has filed this appeal. Pending this appeal, the plaintiff died on 15.02.2000 and additional appellants 2 to 4 and the 4th respondent herein A.S. No. 530 of 1997 : 6 : were impleaded as her legal representatives.
10. I heard Adv. Shri. N. Subramaniam, the learned counsel appearing for the appellants and Senior Adv. Shri. P.N.K. Achan appearing for the 2nd defendant.
11. The learned counsel appearing for the appellant made the following submissions before me in support of the appeal:-
In the plaint itself, it is not stated or admitted anywhere that the parties are governed by the Hindu Mitakshara Law. What has been admitted before the court below was that the parties belong to Hindu thiyya community of Vadanappilly. There was no admission that the said community of Vadanappilly village was following Hindu Mitakshara Law of inheritance. In the written statement, defendants 1 and 2 had claimed that the parties are governed by the Hindu Mitakshara Law. But no evidence was left in by the defendants in support of the said claim. When there is no admission in the plaint, the burden of proof that the parties are governed by Hindu Mitakshara Law, is on the defendants who have set up such a case. There is no presumption in law that the thiyyas of erstwhile Malabar District A.S. No. 530 of 1997 : 7 : are all governed by Hindu Mitakshara Law. Defendants 1 and 2 have discharged the burden of proof cast on them. Hindu Law as such does not apply to thiyyas of South Malabar. Customary Law may apply provided there is requisite proof. The custom being a source of law, will bind the community of the locality. The decisions relied on by the court below only lay down the principles set out on the facts of those cases. The court below was wrong in placing reliance upon AIR 1978 Kerala 119 to hold that Hindu Mitakshara Law will be presumed to apply in the absence of a proof of custom. On the other hand, the said decision lays down that the law applicable to thiyyas of Calicut is essentially a rule of customary law. The court below should have noted that none of the parties had pleaded any custom and in the absence of a plea of custom the court below should not have ventured to hold that the plaintiff has failed to prove the custom alleged by her. When the law applicable to the parties is customary law, the court below should not have accepted the contention of the defendants that the Hindu Mitakshara Law of inheritance was applicable to the parties. In the decision A.S. No. 530 of 1997 : 8 : reported in Karuppan and others v. Chathu and others - Cochin Law Reports 226, the Full Bench of the Cochin High Court observed as follows:-
"Any property standing in the name of any member of an Exhava family cannot be presumed to be joint property. The sons of an Eshava cannot be regarded as entitled by birth to a share of their father's property during his life. To all intents and purposes the father owns it absolutely."
If so, the 2nd defendant was not entitled to claim any right by birth over the properties.
12. I am afraid that I cannot agree with the above submissions. As already adverted to above, Paran who died in May, 1963, was a Hindu thiyya of South Malabar. He died leaving behind his widow Madhavi, the 1st defendant and two daughters and a son. The plaintiff and the 3rd defendant are the daughters and 2nd defendant Ramakrishnan is the only son of Paran and Madhavi. Madhavi died pending this appeal on 22.04.1998. The plaintiff also died on 15.02.2000. Even though the plaintiff did not set up any custom in the plaint, by claiming a share equally to that of her brother, sister and mother, the A.S. No. 530 of 1997 : 9 : plaintiff was virtually setting up a claim in derogation to the Hindu Mitakshara Law. No doubt, the plaint did not plead that the parties are governed by Hindu Mitakshara Law. But it is admitted that the parties are Hindu thiyyas. The plaint schedule properties admittedly belonged to Paran to whom they were allotted in family partition as evidenced by Ext.A1 partition deed dated 04.11.1941. When the parties are admittedly Hindus and no specific custom in derogation to any of the rules of the pristine Hindu Law has been set up or proved, the presumption is that the parties are governed by the principles of Hindu Mitakshara Law which will be treated as the customary law applicable to such parties. In Rohini v. Sethumadhavan - 1978 KLT 470 (FB), a Full Bench of this Court while considering the applicability of the Hindu Law doctrine of pious obligation to thiyyas of Calicut, observed as follows:-
"In the absence of any satisfactory evidence to show what exactly is the rule of the customary law on any particular point, the rule of Hindu Law on that point must, we think, be presumed and adopted to be the rule of the customary law obtaining amongst the community on that point."
A.S. No. 530 of 1997 : 10 :
The Full Bench proceeded to state further :-
" The presumption is simply that the rule of Hindu Law is also a rule of the customary law obtaining amongst them, so that if any person alleges that the rule of the customary law on any particular point is something different the evidence that he adduces in support of his allegation ought not to be subjected to those well-known tests which are applied to the case of an alleged custom contrary to or in derogation of the law, but that should be viewed simply as evidence adduced to show what is the rule of the customary law itself. The presumption therefore will be useful and will hold good only if satisfactory evidence is not forthcoming as to what is the rule of the customary law."
To the same effect was the decision of the Travancore Cochin High Court in Kunjuraman v. Narayanan Namboori - 1949 KLT 1997 in the case of Ezhavas of Perumbavoor. In Kannan v. Lakshmi - 1970 KLT 731 V.R. Krishna Iyer, J held that in the case of Thiyyas of Quilandy, in the absence of proof of custom the Hindu Mitakshara Law applies qua custom.
13. In Kamalakshy v. Narayanan and others - ILR 1967 Kerala 268 in the case of Makkathayee Ezhavas of Mukundapuram Taluk of the erstwhile Cochin State it was held that the principles of justice and equity and good conscience A.S. No. 530 of 1997 : 11 : applicable to a number of such community was the rule of Hindu law on the point.
It was further observed:-
"Makkathayee Ezhavas of the whole of Cochin State and of South Malabar are governed by the same personal law."
14. Under the pristine Hindu Law, any property obtained by a person governed by the Hindu Mitakshara Law from his ancestors must be ancestral property in his hands and the sons born to him will have a right by birth to such property. [See Narayana Prabhu v. Janardhana Mallan - AIR 1974 Kerala 108 and Narendranath v. CWT (1969) 74 ITR 190 (SC)]. Reliance placed by the learned counsel for the appellants on the decision reported in Cochin Law Reports 226 is of no avail to the appellants because the proposition laid down therein is applicable only to the self acquired properties of the father over which the sons have no right by birth. In Surendran v. Krishnan @ Krishankutty (ILR 2003(3) Kerala 150) the question pointedly arose regarding the law governing Thiyyas of Chavakkad Taluk A.S. No. 530 of 1997 : 12 : which was formerly part of Kozhikode district. It was held that in the absence of proof regarding custom, the parties were governed by the Hindu Mitakshara Law. Such being the position the 2nd defendant, who is the only son got a right by birth over the properties under the Hindu Mitakshara Law along with his father the moment the properties were alloted to the father as per Ext.A1 family partition held on 4.11.1941. The fact that a son gets a right by birth in the ancestral or joint family property acquired by the father governed by the Hindu Mitakshara Law is well settled. Thus the court below was right in entertaining the suit for partition though not the claim for 1/4th share. The court below has allotted 5/8 shares to the 2nd defendant son and 1/8 shares each to the plaintiff, 1st defendant and 3rd defendant. Adjudication of the question regarding profits, value of improvements etc. claimed by the 2nd respondent has been relegated to the final decree proceedings. Thus, the preliminary decree passed by the court below does not call for any interference except to take note of the augmentation in the shares consequent on the death of the 1st defendant Madhavi on A.S. No. 530 of 1997 : 13 : 24.2.1998. On the death of the 1st defendant, the 2nd defendant will be entitled to his 5/8th share plus 1/3rd of the 1/8th share of the 1st defendant. The total of which will work out to 16/24 shares. Likewise, the plaintiff and the 3rd defendant shall each be entitled to 1/3rd of the 1/8th share of the 1st defendant besides their 1/8th share thus working out to 4/24 shares each. The preliminary decree shall accordingly stand modified entitling the plaintiff (additional appellants 2 to 4 and the 4th respondent jointly) to 4/24 shares, the 2nd defendant to 16/24 shares and the 3rd defendant to 4/24 shares over the properties.
In the result, except for the modification made as above in the shares, this appeal is dismissed. There shall however, be no order as to costs.
Dated this the 11th day of August, 2009.
V. RAMKUMAR, JUDGE.
rv A.S. No. 530 of 1997 : 14 : V. RAMKUMAR, J.
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A.S. No. 530 of 1997
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11th day of August, 2009.
JUDGMENT A.S. No. 530 of 1997 : 15 :