ADICHAN AYYAN v. KURUMPI — 1975 DIGILAW 40 (KER)

Judgment :- 1. Defendants 1, 3 and 5 are the appellants in this second appeal. The suit was for partition and separate possession of the plaintiffs' share in the plaint property. Ayyan Adichan, a Kurava, got registry of the plaint property and was in possession. He died more than 40 years ago. He had three daughters and one son. 1st defendant is his only son. 1st plaintiff, deceased Kali Kochayya (mother of plaintiffs 2 to 5) and deceased Kah Kali (mother of the 6th plaintiff and the 2nd defendant) are the daughters. The plaintiffs allege that they are followers of Makkathayam system of inheritance under which the sons and daughters inherit the property of their father in equal shares. The 1st defendant is in possession and enjoyment of the plaint property. He was giving the share of profits to the plaintiffs until 1964 but thereafter has refused to recognise the claim of the daughters. So, they claim a partition of 5/8th share in the property. The 1st defendant and defendants 3 and 5 who are his son and grandson dispute the claim of the daughters for a share. According to them, the system of inheritance followed by the Kuravas of Kottarakkara Taluk does not recognise the right of a daughter for a share if there is a son to the acquirer. The daughters were given in marriage by the acquirer and they have all become members of their husband's family after marriage. The acquirer had also given streedhanam to them and therefore they do not inherit any right from their father. Even if they had any right the same is lost by adverse possession and limitation. On these pleas they opposed the suit. The trial court relying on Ext.P2, a judgment in O.S. 5/57 passed by the Sub Court, Kottarakara, came to the conclusion that sons and daughters of the deceased are entitled to inherit his property. The trial court also found that there is no evidence to show that the daughters of the acquirer were given in marriage in the kudiveppu form on payment of streedhanam and therefore they have not lost their right in their father's property. But, the trial court dismissed the suit holding that the 1st defendant has prescribed title by adverse possession and limitation. But, the trial court dismissed the suit holding that the 1st defendant has prescribed title by adverse possession and limitation. On appeal the lower appellate court did not go into the question regarding the system of inheritance followed by the parties on the ground that there was no cross-objection against the finding of the trial court on this question and differing from the conclusion arrived at by the learned Munsiff on the question of adverse possession and limitation, decreed the suit for partition of 5/8th share to the plaintiffs. This second appeal is filed in these circumstances. 2. The appellate court is wrong in refusing to consider the question of the system of inheritance followed by the parties. The trial court's decree was in favour of the defendants and hence they can support that decree without filing a cross-objection. In view of this defect this Court has to go into that question to begin with. It is seen that this Kurava Community people do not follow a uniform system of inheritance. The reported decisions on this point notice the various systems followed by Kuravas who have settled down in different Taluks. The decision reported in Ayyan Aiyappan v. Kannan Sankaran' (1950 KLT 673) proceed on the basis that both systems of inheritance prevail among the members of this community. There is no final decision in that case regarding the law applicable to the community since the matter was only remanded for fresh trial. The next reported case is Cherampennu v. Neelan 1963 KLT 725). That case proceeds on the basis that Kuravas of Travancore follow Marumakkathayam law. It was held in that case that the division should be per stripes and not per capita. In Ayyappan v. Kurumpa Mema (1966 KLT 514) Madhavan Nair J, again noticed the different systems followed by Kuravas of Travancore. The learned judge recognised that among Kuravas the personal law of the family vary from place to place.. Some follow Marumakkathayam law, others Hindu Law and some follow Hindu Law as modified by custom. As both parties admitted that they follow Makkavazhi system of inheritance, the Hindu Law was applied for deciding that case. These three decisions do not help to decide the rights of parties in this case. Here the parties admit that they follow Makkavazhi system of inheritance. As both parties admitted that they follow Makkavazhi system of inheritance, the Hindu Law was applied for deciding that case. These three decisions do not help to decide the rights of parties in this case. Here the parties admit that they follow Makkavazhi system of inheritance. But, according to the plaintiffs, both the sons and daughters inherit whereas the defendants would contend that only the sons inherit in preference to daughters. The defendants have a further case that daughters married in the kudiveppu form have no right to claim a share in their father's property. The parties to this case reside in Thamarakkudi muri in Kottarakara Taluk. There are two unreported decisions of this Court relating to the system of inheritance followed by the Kuravas of the above Taluk. In S. A. No. 164 of 1957 Raghavan J. (as he then was) observed thus: "At this stage it is clear from Exx. A, E and F that the system of law followed by the Kuravas is not the strict Mithakshara Hindu Law under which the daughters have no share; but it is the customary Makkathayam law, whereunder the daughters are also entitled for shares equally with the sons." The learned judge also held that even if a daughter is given in marriage in the kudiveppu form she will not lose her right to a share in her family properties unless there is proof that she was paid streedhanam. There was an appeal to a Division Bench against this decision. The appellate judgment is very short and is in the following terms: "There is no acceptable evidence in this case either that the Kudiveppu form of marriage is prevalent among the Kuravas, or that, if prevalent, the females given in marriage in that form lost their rights of inheritance in the properties of their father. 2. No other question arises for consideration in this appeal " The next decision is the judgment in S.A. No. 1144 of 1964 rendered by Krishnamoorthy Iyer J. There also the parties belonged to Kottarakkara Taluk, and the case proceeded on the basis that the parties followed Makkathayam system of inheritance and that the sons and daughters are entitled to inherit the father's properties. The defence plea that if the daughters have been given in marriage in the kudiveppu form they lose their right in the father's properties was held to be not established on the evidence in the case. Ext. P2 is a judgment in O.S. No. 6/67 on the file of the Kottarakkara Sub Court. There it was found that the system of inheritance followed by the parties is Hindu Law modified by custom the modification being that females have also rights over the property of their father unless they are married in the kudiveppu form by paying streedhanam. These decisions constitute a judicial recognition of the custom of the system of inheritance followed by the Kuravas resident in this Taluk and therefore it can be held that the parties to this case are to be governed in the matter of inheritance by Hindu Law modified by custom the modification being that if the females are not given in marriage in the kudiveppu form on payment of streedhanam they will be entitled to a share in their father's property. 3. The next question for consideration is whether there is evidence regarding the payment of streedhanam and the form of marriage undergone by the 1st plaintiff and her two sisters. It is admitted that they were given in marriage even during the life time of Adichan, their father. Their father died more than 40 years ago. The community constitute the working class with little or no assets. Documentary evidence regarding the payment of streedhanam cannot be expected from these people unless an immovable property is conveyed as streedhanam. The 1st defendant has given evidence that all his sisters were married in the kudiveppu form on payment of streedhanam, streedhanam being cash and ornament which was in the capacity of the father to give. There is nothing improbable in this evidence, for, Adichan had only this property and he would not have been inclined to part with his homestead to give immovable property as streedhanam to his daughters. dw. 2, a member of the same community, has deposed that Adichan's daughters were given in marriage in the kudiveppu form. Kudiveppu form of marriage itself is a custom by which a female is adopted and recognised as a member of the husband's family. This is the general form of marriage followed by this community. dw. 2, a member of the same community, has deposed that Adichan's daughters were given in marriage in the kudiveppu form. Kudiveppu form of marriage itself is a custom by which a female is adopted and recognised as a member of the husband's family. This is the general form of marriage followed by this community. Even pw.1, the 6th plaintiff, admits that his marriage was in that form and his sister's marriage was also in that form. The 1st plaintiff knows the form of marriage which she had and can be presumed to know the form of marriage her sisters also had. But, she has not gone to the witness box. None of the relatives who can speak about the form of marriage undergone by the first plaintiff and her sisters is examined on behalf of the plaintiffs. If the 1st plaintiff and her sisters had not been given in marriage in.the kudiveppu form with streedhanam, they would not have kept quiet for the last 40 years to claim a share in their father's property. So, the circumstances in this case probabilises the version of the 1st defendant that his sisters were all given in marriage by the father in the kudiveppu form on payment of such streedhanam as the father could afford. Therefore, as per the law followed by this community the 1st plaintiff and her sisters are not entitled to any share in their father's property. 4. In the light of this it is really unnecessary to go into the further case of the defendants that the right, if any, of the plaintiffs is lost by adverse possession and limitation. Adichan died 40 years ago. There is absolutely no evidence to show that the 1st plaintiff and her sisters were given any share in the profits of the property. The 1st defendant, has been acting as if he alone is entitled to it. He alone was taking the yield of the property. It is in evidence that the 3rd defendant has put up a house in the property with some loan taken from the Government. This open and exclusive enjoyment of the property by the 1st defendant for a long number of years amounts to an ouster of the rights, if any, of his sisters also (see 1969 KLT 121). But, it is not necessary to rest my decision on adverse possession in view of my earlier conclusion. This open and exclusive enjoyment of the property by the 1st defendant for a long number of years amounts to an ouster of the rights, if any, of his sisters also (see 1969 KLT 121). But, it is not necessary to rest my decision on adverse possession in view of my earlier conclusion. Therefore, I leave it at that. 5. In the result, I allow this second appeal, set aside the judgment and decree of the lower appellate court and restore for my own reasons the decree passed by the learned Munsiff dismissing the suit. In the circumstances of this case the patties shall bear their costs throughout. Allowed.