Research › Browse › Judgment

Kerala High Court · body

1954 DIGILAW 44 (KER)

Gopalan v. Paily Mappala

1954-03-02

KOSHI, M.S.MENON

body1954
Judgment :- 1. O.S. No. 100 of 1124 of the District Court of Anjikaimal from which this appeal arises was a suit for partition of the properties left behind by one Kunjan, a Marumakkathayee Ezhuva who died intestate subsequent to the passing of the Cochin Marumakkathayam Thiyya Act, VIII of 1107. The plaintiff is the appellant before us and the only question for consideration is his contention that Ikkali and Pappi, the half sisters of Kunjan's father, are entitled to a third share each in the estate of the deceased Kunjan. This contention has been repelled by the court below and hence this appeal. 2. For the purpose of deciding this case we need not go farther back than Thanthi who had two wives. By his first wife he had a son called Kuttan. By his second wife he had a son called Kesavan and the two daughters, Ikkali and Pappi, mentioned above. Kuttan married Lekshmi and Kunjan was their son. Lekshmi has a sister, Kali and she, Ikkali and Pappi were the only three persons who were alive at the time of Kunjan's death in 1109 and through whom shares are claimed in the present litigation. The plaintiff is an assignee of the rights of Ikkali and Pappi and the defendants of the rights of Kali. 3. It is admitted by the plaintiff that Kali, the sister of Kunjan's mother, Lekshmi, is entitled to a third share under the Act, and the only question in controversy is whether the half sisters of Kunjan, Ikkali and Pappi, are similarly entitled to a third share each in the estate of the deceased Kunjan. 4. S.17 of the Cochin Thiyya Act, VIII of 1107, provides that:-"For the purposes of succession there is no distinction, (a) between those who are related to a person deceased through his father, and those who are related to him through his mother, or (b) between those who are related to a person deceased by the full blood, and those who are related to him by the half blood, or (c) In the light of this Section, the definition of 'Kindred' in S. 4(ii) of the Act as: "The connection or relation of persons descended from the same stock or common ancestor". and the table of kindred by which under S.18 the degrees of kindred should be computed, Kali, Ikkali and Pappi will be entitled to share and share alike in the estate of the deceased. 5. According to 1953 KLT 216 at 229 = ILR 1953 TC 265 (284) Narayanan v. Raman: "The 'table of kindred' which forms a schedule to the Act shows son, grandson and the great grandson as the descendants and the father, grandfather, great grandfather and the great grandfather's father as the ascendants in the direct line and the collateral descendants in the male line of these ascendants within 7 degrees. No female is noted in the schedule of kindred. The essence of Marumakkathayam which is that the woman is the stock of descent, which is to be in the female line, is avoided by the Act". We do not understand the judgment as meaning that woman will not come within the category of kindred or that they have been excluded by the way in which the table of kindred in the schedule to the Act has been drafted. Male relatives alone are specified therein but in view of the provisions of the Act and S.11 of the Cochin General Clauses Act, III of 1079, which provides that unless there is anything repugnant in the subject or context, "words importing the masculine gender shall be taken to include females" there can be no doubt that female relatives who come within the degrees mentioned in the table are necessarily included in the category of kindred and are entitled to share under S. 34 of the Act. 6. According to Mr. K.P. Abraham, learned counsel for the respondent, the table of kindred is inapplicable to this case as the mother of Ikkali and Pappi (i.e., the second wife of Thanthi) died before the Act and there was no subsisting marriage between her and Thanthi on the date the Act came into force. In other words, his contention is that she cannot be considered as a wife of Thanthi whose children are entitled to inherit under the Act. The subsistence or otherwise of the marriage of the mother of Ikkali and Pappi is quite unnecessary for Ikkali and Pappi being the kindred of the deceased. In other words, his contention is that she cannot be considered as a wife of Thanthi whose children are entitled to inherit under the Act. The subsistence or otherwise of the marriage of the mother of Ikkali and Pappi is quite unnecessary for Ikkali and Pappi being the kindred of the deceased. The fact that they are the children of Thanthi born in lawful wedlock, a point which is not disputed, is all that is necessary for the purpose. 7. In the light of what is stated above, there can be no doubt that Kali, Ikkali and Pappi are entitled to equal shares in the estate of the deceased Kunjan and that this appeal should be allowed. We allow the appeal with costs. Allowed.