Geeri Kammathi v. Padmavathi — 1952 DIGILAW 19 (KER)

Judgment :- 1. The plaintiff is the appellant. The suit is for declaration of the plaintiff's title to the plaint property and for recovery of possession of the same with mesne profits after setting aside a claim order, or in the alternative for partition of plaintiff's one half share i the property. The plaint property is a leasehold interest in 6 cents of land in the Mattancheri street. The jenmi of the property is the Cochin Thirumala Devaswom. There are a street house and kayyalappura in the property. The leasehold interest originally belonged to one Narayanan who assigned it in favour of the plaintiff's mother Sathyabhama under Ext.1 on 23.11.1063. Sathyabhama attorned to the Devaswom and executed a fresh lease deed Ext. 11 on 17.12.1063. This lease deed was renewed by her on 2.1.1097. Ext. C is the lease deed executed by her on that date. The plaintiff's case is that on the death of his mother he became the absolute owner of the property and that in any case he is entitled to one half of the same. The plaintiff's father was one Guna Kammath. Guna Kammath and Sathyabhama had 4 children, the plaintiff being the eldest. The 2nd son was Ranga Kammath who died leaving a son Guna Kammath. Guna Kammath the junior also died leaving a minor son who is the 3rd defendant in the case. The 1st defendant is the sister of the plaintiff. He has another sister Kaveru by name who is not a party to this suit. D.W.1 is her husband. 2. On 30.1.1095 Sathyabhama and Ranga Kammath together executed a mortgage Ext. XIII in respect of the plaint property to one Kamala for Rs. 150. A suit was filed on that mortgage and a decree was obtained by the creditor. To discharge that liability Sathyabhama and Ranga Kammath executed a usufructuary mortgage Ext. IX in respect of the plaint property in favour of one Bikhari Shenoi for Rs. 275 on 13.1.1100. That mortgage right was purchased by Guna Kammath the junior on 12.1.1106 under Ext. XIV. On 28.1.1110 Rang Kammath and Guna Kammath the junior executed a usufructuary mortgage in respect of the property to one Jenmi for Rs. 200 and took the property back on lease. Exts. X and XI are the mortgage and lease. 275 on 13.1.1100. That mortgage right was purchased by Guna Kammath the junior on 12.1.1106 under Ext. XIV. On 28.1.1110 Rang Kammath and Guna Kammath the junior executed a usufructuary mortgage in respect of the property to one Jenmi for Rs. 200 and took the property back on lease. Exts. X and XI are the mortgage and lease. For a debt due from Guna Kammath one Jembla filed Small Cause Suit No. 426 of 1116 of the Cochin Munsiff's Court and obtained a decree against him. In execution of that decree the plaint property was attached and sold on 12.7.1119, and the 1st defendant purchased the same. Ext. XVI is the sale certificate in that case. The 1st defendant obtained delivery of possession of the property on 14.10.1119 under Ext. XV. On 27.10.1119 the plaintiff filed a petition for redelivery of the property alleging that he was in possession of the same and that the first defendant had no right to obtain delivery from him. That petition was rejected by the District Munsiff. Ext. J. is the copy of the order. The plaintiff seeks to set aside that order and to recover possession of the property. 3. Defendants 1 and 2 contested the suit. The 1st defendant denied the plaintiff's title to the plaint property. According to her the street house belonged to Sathyabhama and it was repaired by Ranga Kammath and the Kayyalappura was also put up by him. Sathyabhama and Ranga Kammath were in possession of the property, and after the death of Ranga Kammath his son Guna Kammath the junior executed a mortgage in favour of the 1st defendant in respect of the Kayyalappura. In 1119 she filed a suit upon that mortgage as O.S. No. 52 of 1119 of the Cochin Munsiff's Court impleading the present plaintiff and the 3rd defendant a parties to the suit, and obtained a decree. The plaintiff filed an appeal from that decree but the appeal also was dismissed. By purchase in the court sale in S.C. No. 426 of 1116 the first defendant acquired the mortgage right in the property that belonged to Guna Kammath. 4. It is further contended that the plaint property and the street house were the stridhanam property of Sathyabhama and that therefore after the death of Sathyabhama her daughters succeeded to the same to the exclusion of the sons. 4. It is further contended that the plaint property and the street house were the stridhanam property of Sathyabhama and that therefore after the death of Sathyabhama her daughters succeeded to the same to the exclusion of the sons. It was, therefore, contended that the plaintiff was not entitled to any relief in the suit. The first defendant executed a usufructuary mortgage in respect of the property in favour of the 2nd defendant for Rs. 600 in 1120 and the 2nd defendant is in possession of the property under that mortgage. The 2nd defendant contends that he is entitled to the amount under that mortgage as also the arrears of pattom paid by him to the Devaswom. 5. The court below found that the plaint property and the house were the stridhanom property of Sathyabhama and that the plaintiff was not entitled to any share therein. It was also found that the kayyalappura was constructed by Ranga Kammath and that the plaintiff had no right to the same. It was, therefore, held that the claim order in S.C. No. 426 of 1116 was not liable to be set aside and that the plaintiff was not entitled to get delivery of possession of the property or to get partition of one half share in the property. The suit was accordingly dismissed with costs. 6. The question to be decided in this appeal is whether the plaintiff is entitled to the plaint property and the buildings thereon as absolute owner of the same, and, if not, whether he is entitled to one half share as claimed by him. It is argued for the plaintiff that the leasehold interest was purchased in the name of his mother with money belonging to his father and that it was therefore a joint family property. But the plaintiff had no such case in the plaint. On the other hand the averments in paragraphs 1 and 8 of the plaint show that according to the plaintiff his mother was the owner of the leasehold interest. What is stated in paragraph 8 is that the plaintiff and his brother were alone entitled to share in the property that belonged to their mother. Nowhere is it stated in the plaint that Ext.1 was taken in the name of Sathyabhama with money that belonged to her husband. 7. What is stated in paragraph 8 is that the plaintiff and his brother were alone entitled to share in the property that belonged to their mother. Nowhere is it stated in the plaint that Ext.1 was taken in the name of Sathyabhama with money that belonged to her husband. 7. The plaintiff's learned advocate argued that under the Hindu law the presumption is that an acquisition in the name of a female member of a joint family is joint family property. But this presumption arises only when there is evidence with regard to the existence of a nucleus of family property (vide Mayne's Hindu Law, 10th Edn. P. 373.). The learned author says thus: "The burden of proving that any particular property is joint family property is in the first instance upon the person who claims it as co-parcenary property. Where the possession of a nucleus of joint family property is either admitted or proved an acquisition made by a member of the family is a presumed to be joint family property. But this is subject to the limitation that the joint family property must be such as with its aid the property in question could have been acquired. And it is only after the possession of an adequate nucleus is shown, the onus shifts on to the person who claims the property as self-acquisition affirmatively to make out that the property was acquired without any aid from the family estate." To the same effect are the decisions of the Cochin High Court in the following cases: Mouthayan Pillai v. Arokya Ammal 10 Cochin 371, Vasudevan Nambiar v. Raman Nambiar,13 Cochin 391; Odan Sanku v. Moorthi 23 Cochin 88; Nilakantan v. Nilakantan 29 Cochin 234; Vasudeva Prabhu v. Padmanabha Prabhu, 36 Cochin 779; Venkitarama Iyer v. Padmanabha Iyer, 36 Cochin 844. In 10 Cochin 371 and 36 Cochin 844 the acquisition was in the name of a female member. 8. There is no evidence in this case to show that the plaintiff's family had any nucleus with which the assignment of the leasehold interest could be taken in the name of Sathyabhama. The plaintiff swears as Pw.1. that his father had a property at Vypeen, that he sold it, and that it was with money realised by the sale of that property that Ext.1 assignment was taken. The plaintiff swears as Pw.1. that his father had a property at Vypeen, that he sold it, and that it was with money realised by the sale of that property that Ext.1 assignment was taken. The plaintiff was only a small boy on the date of Ext.1 and he admits that he has no direct knowledge as to who paid the consideration for Ext. 1, and why the assignment was taken in the name of his mother. Pw. 3, the only other witness who swears to this case, was not even born on the date of Ext. 1. It will thus be seen that there is no evidence in this case to prove either that the plaintiff's family had a nucleus of family property with the aid of which Ext.1 could be taken or that the consideration for Ext.1 was really paid by the plaintiff's father. Ext. II and Ext. C renewals of the lease were also executed by Sathyabhama. It is true that in Ext. IX and Ext. XIII Ranga Kammath also has joined as a co-executor. But that does not show that the property was joint family property. The senior male member of the family on the date of these documents was the plaintiff. It may be because Ranga Kammath was living in the property with his mother and had put up the kayyalappura and had repaired the street house that the mortgagees insisted on his joining in the execution of the documents, or it may be that they wanted to make him also personally liable for the amount. It is also not stated in these documents that the leasehold interest belonged to the joint family. On the other hand, it is stated that Sathyabhama was the lessee. It is significant that in Exts X and XI, mortgage and lease executed by Ranga Kammath and his son the plaintiff is an attestor. In Ext. X it is stated that the leasehold interest belonged to Sathyabhama. Under the circumstances there is no basis for the contention that the leasehold interest belonged to the joint family of the plaintiff. 9. With regard to the street house in the property, Ext.1 shows that there was a building in the property on the date of the document. Ext. II shows that Sathyabhama purchased that building from the Devaswom. Ext. Under the circumstances there is no basis for the contention that the leasehold interest belonged to the joint family of the plaintiff. 9. With regard to the street house in the property, Ext.1 shows that there was a building in the property on the date of the document. Ext. II shows that Sathyabhama purchased that building from the Devaswom. Ext. VI the judgment in A.S. No. 214 of 1120 of the Anjikaimal District Court which was filed by the present plaintiff from the decision in Ext. V case and Ext. VIII, the decree in that appeal show that the kayyalapura in the property has been put up by Rang Kammath. 10. The plaintiff has produced certain documents to show that he was in possession of the plaint property. Ext. G series are the demand notices and receipts in respect of property tax issued by the Mattancheri Municipality in favour of the plaintiff. Ext. A is a coolicharth executed by Pw. 4 and another in favour of the plaintiff. Ext. B is another coolicharth executed by Pw. 2. These are of the year 1117. In 1119 the plaintiff took another coolicharth, Ext. F, from one Kanaka. The plaintiff relies on these documents to show that he was in possession of the property. 11. It is in evidence that Ranga Kammath died about the year 1110. His only son Guna Kammath the junior was a consumption patient and he died in 1118 leaving his young widow and a baby who is the 3rd defendant in the case. The plaintiff seems to have assumed management of the affairs of Guna Kammath even during his life time. This must be the reason why Exts. A, B and F happened to be taken in the name of the plaintiff. As regards the demand notices and receipts it is not clear whether they relate to the house in the plaint property. In the plaint the number of the street house is given as 5/85 and it is also stated that the previous number was 5/73. Exts. A, B and F show that the number was 5/23 in 1117, 1118 and 1119. The number shown in Ext. G is 5/84 while that shown in G1 and G6 is 5/206. The receipts relating to the years 1117 to 1119 contain the number 5/85. During that period the plaintiff was managing the affairs of Guna Kammath as stated above. A, B and F show that the number was 5/23 in 1117, 1118 and 1119. The number shown in Ext. G is 5/84 while that shown in G1 and G6 is 5/206. The receipts relating to the years 1117 to 1119 contain the number 5/85. During that period the plaintiff was managing the affairs of Guna Kammath as stated above. In the circumstances much importance cannot be attached to the fact that these receipts were taken in the name of the plaintiff. In any view of the case there is nothing to show that the plaintiff has acquired title to the plaint property by adverse possession. It is thus clear that the leasehold interest in the plaint property belonged to the plaintiff's mother Sathyabhama, that the kayyalappura was put up by Ranga Kammath, and that the 1st defendant has acquired the rights of Ranga Kammath and his son Guna Kammath. 12. The only other question for consideration is whether the plaintiff is entitled to a share in the estate of his mother as her heir. It is argued for the appellant that the law applicable to the community to which the plaintiff belongs, namely, the Gowda Saraswath Brahmin community, is the Mayukha Law that prevail in North Konkan. It is submitted that the Gowda Saraswath Brahmins migrated to Travancore and Cochin from North Konkan and that they carried with them their personal law. Reference was made to Cochin Tribes and Castes by L.K. Ananthakrishna Iyer Vol. II P. 346 where the learned author deals with the history of this community. According to Mayukha Law both the sons and daughters are entitled to equal share in the Stridhanom property of their mother, while under the Mitakshara Law the daughters inherit the stridhanom property of their mother to the exclusion of the sons. The question whether the Mayukha system applies to the Gowda Saraswath Brahmin community settled in Cochin came up for consideration before the erstwhile Cochin High Court in 29 Cochin 729 Lexmi Bai v. Anantha Shenoi. In that case the history of the community was considered and it was held that the community migrated to Cochin and Travancore from South Konkan in the 16th century. The Mayukha law prevails in North Konkan and not in South Konkan. Moreover the Mayukha was compiled only in the 17th century, long after the community migrated to Malabar. In that case the history of the community was considered and it was held that the community migrated to Cochin and Travancore from South Konkan in the 16th century. The Mayukha law prevails in North Konkan and not in South Konkan. Moreover the Mayukha was compiled only in the 17th century, long after the community migrated to Malabar. In the circumstances it cannot be said that the personal law that applied to the community at the time of the migration was the Mayukha. It was, therefore, held that the Gowda Saraswath community in Cochin is governed by the mitakshara Law. The same view was taken by the Cochin High Court in 35 Cochin 796 Saraswaihi v. Lexmi. It was observed thus by Kunjunni Raja, J. in that case: "I do not wish to commit myself to say that the Gowda Saraswatha Brahmins domiciled in Cochin are governed by Mayukha School of Hindu Law prevailing in the Bombay Presidency without a fuller argument than we had at the bar. Considering the long period of domicile in Cochin of this community the Courts in the State have been applying the Mitakshara Law to this community and I am not prepared to say that it is wrong to have done so." It has to be noted that the decision in 29 Cochin 729 in which the question has been elaborately discussed was not brought to the notice of the learned judges who decided this case. 13. It was next argued for the appellant that even under the Mitakshara law the rule excluding sons from inheritance to stridhana property when there are daughters applies only to stridhana technically so called. According to the Smrithis. "It is only gifts obtained by a woman from her relations and her ornaments and apparel which constitute her stridhana and the only sort of gifts from strangers which come under that denomination are presents before the nuptial fire and those made at the bridal procession. But neither gifts obtained from strangers at any other time, nor her acquisitions by labour and skill constitute her stridhana." (Mulla's principles of Hindu Law 10th Edn. S.113). The commentators of the different schools have given their own interpretations to the definition of stridhana as given by the Smrithi writers. Vijnaneswara has given his own interpretation in Mitakshara to the text of Yajnavalkya. S.113). The commentators of the different schools have given their own interpretations to the definition of stridhana as given by the Smrithi writers. Vijnaneswara has given his own interpretation in Mitakshara to the text of Yajnavalkya. Yajnavalkya's text is this "What was given to a woman by the father, mother, her husband, or her brother or received by her at the nuptial fire or presented on her supersession (adhivedanika) and the like [adya] is denominated Stridhana. That which is given by the bandhus, Sulka, anvadheyaka, these her kinsmen [bandhavas] take if she die without issue," 14. Vijnaneswara explains the word "adya" i this text as including "property which a woman may have acquired by inheritance, purchase, partition, seizure and finding", and says that "the term 'woman's property' conforms in its import with its etymology and is not technical". It is argued for the appellant that this expansion of the definition of Stridhana by Vijnaneswara was not accepted by the Privy Council, and reference was made to the decisions in Tahkoor Deyhu v. Rai Baluk Ram, 11 Moores Indian Appeals 139, Sheo Shankar Lal v. Debi Sahai, 25 All. 468 and Debi Mangal Prasad Singh v. Mahadeo Prasad Singh, 34 All. 234. 15. We do not think that these decisions of the Privy Council have the effect of restricting the meaning of stridhana to what is called technical stridhara. What was held in 11 Moore's Indian Appeals 139 is that a widow has no power of alienating any immovable property which she has inherited from her husband and that on her death it will pass to the heirs of her husband. What was held in 25 All. 468 was that under the Hindu Law of the Benares school property which a woman has inherited from a female is not her stridhana in such a sense that on her death it passes to her stridhana heirs in the female line to the exclusion of males. With regard to Vijnaneswara's expansion of the definition of stridhana this is what Their Lordships say in that case. "The author of the Mitakshara and some other authors seem to apply the term broadly to every kind of property which a woman can possess, from whatever source it may be derived. Their Lordships do not propose to dwell upon this particular question. "The author of the Mitakshara and some other authors seem to apply the term broadly to every kind of property which a woman can possess, from whatever source it may be derived. Their Lordships do not propose to dwell upon this particular question. It may perhaps be regarded as one mainly of phraseology, not necessarily involving, however it be answered, much distinction in the substance of the law, for most of the old commentators recognise with regard to the property of a woman, whether called stridhana or by any other name, that there may be room for differences in its line of descent according to the mode of its acquisition. The question of substance is how the property descends in a case like the present. As to this the decision of the High Court was based upon the text of the Mitakshara, which seems to make all property taken by a woman by inheritance her Stridhana with all the incidents which belong to that kind of absolute property, and to make it descend as such, primarily to females, and in the special line prescribed for stridhana strictly so called. It cannot now be contended that the rule thus derived from the Mitakshara is law as to inherited property generally." Their Lordships held that the law is not the same under the Benares school. What was held in the third case is that under the Mitakshara law the share which a widow gets on partition of the joint family property devolves, on her death, upon the heirs of her husband. Their Lordships however, observed in that case: "That the members of a joint family effecting a partition may agree that a portion of the property shall be transferred to the widow by way of absolute gift, as part of her stridhana, so as to constitute a provision for her stridhana heirs." 16. In Mulla's Principles of Hindu Law S.123(3) it is stated that the effect of these decisions of the Privy Council is to "curtail the definition of stridhara as propounded by Vijnaneswara by excluding from it in effect the five additional sorts of stridhana enumerated by him." This view does not appear to be correct. The question is dealt with in Mayne's Hindu Law and Usage (10th Edn.), Paragraph 615A. Dealing with the Privy Council case in 34 All. The question is dealt with in Mayne's Hindu Law and Usage (10th Edn.), Paragraph 615A. Dealing with the Privy Council case in 34 All. 234 the learned author says thus: "The actual point decided in the above case was that there was no substantial difference in principle between woman's property acquired by inheritance and that acquired by partition. It has however been suggested that the decision of the Privy Council limits stridhana to the kinds enumerated in the Smrithi texts. This does not appear to be correct. On the other hand Their Lordships thought that the word "Adi" would include property acquired in any other manner ejusdem generis with the modes mentioned by Yajnavalkya. It is difficult to see any reason why the enumeration mentioned in the Smrithis should be taken as exhaustive and not as illustrative only which is uniform opinion of all the mitakshara authorities. Rules of Hindu Law are not so inelastic as to be incapable of application to any acquisitions which were not known when the Smrithi rules were first formulated. The Smrithi texts are in terms not restrictive and the very fact that one Smrithi adds to the list given in another shows that the subject of Stridhana was in a stage of development. None of the Smrithi texts can be held to cover modern conditions of life or to rule out as Stridhana, acquisitions which a woman might make for herself and over which she would have full powers of disposition." 17. With the exception of property inherited by a woman or allotted to her at a partition Vijnaneswara's view as to the other modes of acquisition has been accepted by the Courts. One such mode of acquisition is purchase by her (Vide Muthu Ramakrishna v. Narimuthu, 38 Madras 1036, Sajemma v. Lutchmana Reddi; 21 Madras 100; and Mumma v. Krishna, AIR 1933 Rang. 347). In Muthayan Pillai v. Arokya Ammal,10 Cochin 371, the Cochin Chief Court held that property acquired by a female by her own wit and labour is her stridhana called "ayautake" and that according to the Mitakshara school it goes to her daughter in preference to the son. We, therefore, hold that the property purchased by the plaintiff's mother under Ext.1 was her stridhana property and that under the Mitakshara law which applies to the parties the daughters inherit it to the exclusion of the sons. We, therefore, hold that the property purchased by the plaintiff's mother under Ext.1 was her stridhana property and that under the Mitakshara law which applies to the parties the daughters inherit it to the exclusion of the sons. The plaintiff is, therefore, not entitled to any share in the property. The suit was therefore rightly dismissed by the court below. We confirm the decree of the learned District Judge and dismiss the appeal with costs. Dismissed.