Judgment :- 1. The substantial question of law on which notice was issued in this second appeal is whether S.14 of the Hindu Succession Act, 1956 can apply to a case where a widow has assigned her interest in the husband's property prior to the commencement of the Act. 2. defendants 1, 2, 6, 7 and 10 are the appellants. The suit was filed by two plaintiffs for partition and recovery of their 1/4 share in B schedule property. The trial court granted a preliminary decree and the appellate court confirmed the same with slight modifications. 3. B schedule property belonged to Kunhipennu and her sons Raman, Koman and Kuttippayi. Koman died in 1943. Admittedly, he had 1/4 share. He left his widow Ammalu and two daughters Paru and Narayani. Kunhipennu died in 1948 and Narayani died in 1957. Paru is the 1st plaintiff. Second plaintiff Leela is daughter of Narayani. Raman died leaving defendants 1 to 7 as bis heirs. Right of Kuttippayi was assigns d in favour of the 8th defendant. Ammalu, the mother of the first plaintiff and widow of Koman, died in 1962. These facts are not disputed. 4. As the heirs of Koman, plaintiffs claimed 1/4th share. During her life time, Ammalu assigned her right to her husband's brother Raman as if she was the sole heir of Koman and the full owner of his 1/4th share. The case of the plaintiffs is that she was only a limited owner and therefore she could have conveyed only her limited estate. But the appellants contended that she was the full owner and Raman got the full right. The case of the plaintiffs is that after the death of Ammalu, they got the share of Koman as reversioners but the appellants would contend that even if Ammalu is only a limited owner, when the Hindu Succession Act came into force in 1956, her right got matured into full right under S.14. On this basis they contended that under the principle of estoppel feeding title as embodied in S.43 of the Transfer of Property Act her assignment operates on the full right at the option of the transferee so that there is nothing for the plaintiffs to inherit. On this basis they contended that under the principle of estoppel feeding title as embodied in S.43 of the Transfer of Property Act her assignment operates on the full right at the option of the transferee so that there is nothing for the plaintiffs to inherit. They have also another contention that the parties are followers of modified form of Hindu Mitakshara Law by which daughters given away in marriage on payment of streedhsnam are not entitled to inherit the properties of the father. In that view also they contended that the plaintiffs have no right because admittedly 1st plaintiff and the mother of the second plaintiff were married away even during the life time of Koman. 5. There is no dispute between the parties that Ammalu had only a limited interest in the estate of her husband which was liable to terminate on her death. So also it is not disputed that sons and daughters are the heirs to the exclusion of the widow. Ammalu executed Ext. BI assignment on 8-1-1950 assigning her right to her husband's brother Raman as if she was the sole heir of Koman and full owner of 1/4th share. She died only in 1962 after the Hindu Succession Act came into force. S.14 of that Act says that any property possessed by a female Hindu, whether acquired before or after the commencement of the Act, shall be held by her as full owner thereof and not as a limited owner. The object of the section is to extinguish the estate whether "limited estate" or "widow's estate" in Hindu Law and to make a Hindu woman, who under the old law would have been only a limited owner, a full owner of the property with all powers of disposition and to make the estate heritable by her own heirs and not revertible to the heirs of the last male holder. But it did not in any way confer a title on the female Hindu where she did cot in fact possess any vestige of title. The expression "possessed" appearing in the initial part of S.14 appears to have been deliberately used. But it did not in any way confer a title on the female Hindu where she did cot in fact possess any vestige of title. The expression "possessed" appearing in the initial part of S.14 appears to have been deliberately used. The change intended to be made in the limited connotation of widow's estate or limited estate and the clear deviation from the old law indicates that it is intended to be converted into absolute ownership only where it existed when the Hindu Succession Act came into force. The change in the incidents of the woman's property was intended not merely in respect of property that may be acquired in future but also in respect of property already acquired by her in the past and possessed by her. That is to say the operation of law has been given retrospective effect. The section so far as it deals with property acquired before the commencement of the Act declares the law only in respect of, property "possessed" by a female Hindu and does not refer to property of which the female holder was the limited owner and which property had ceased to be her property or possessed by her. The section does not purport to enlarge an estate which was already determined before the commencement of the Act or to enlarge an estate conveyed to alienees by the limited owner before the date of coming into operation of the Act in 1956. To hold that even in such cases the reversioner has no locus standi and that the rights of the reversioner were wholly abrogated may not be correct. In order to come within the purview of the section the property must be in the possession of the female when the Act came into force. The possession could be either actual or constructive or in any form recognised by law. The object of the Act was to improve the legal status of Hindu women provided they were in possession of the property when the Act came into force. The section was not intended to benefit alienees who with open eyes purchased property from owners without justifying necessity before the Act came into force at a time when the vendors had only limited interest of Hindu women. 6. It is true that possession used in the section is in the widest sense. It need not be actual physical possession. The section was not intended to benefit alienees who with open eyes purchased property from owners without justifying necessity before the Act came into force at a time when the vendors had only limited interest of Hindu women. 6. It is true that possession used in the section is in the widest sense. It need not be actual physical possession. The state of owning or having any hand or power is sufficient. It need only be possession in the eye of law. Possession of a licensee, lessee or mortgagee from the female owner could be considered her possession for the purpose of the section. She must not have parted with her rights and she must be capable of obtaining possession of the property if she wants. So far as this case is concerned, by the execution of Ext. BI Ammalu parted with her entire rights. She sold the property as if she was the full owner. That was in the year 1950, six years prior to the commencement of the Hindu Succession Act. The possession of the alienee was independent of her even though the alienation was liable to be challenged by the reversioners. Ammalu had no right to get back the property and her limited estate was determined in 1950. When the Hindu Succession Act came into force, she was not possessed of the property. Therefore S.14 would not have come to her rescue to enlarge her limited right. Raman or his heirs, defendants 1 to 6, cannot therefore seek shelter under S.43 of the Transfer of Property Act to claim the benefit under S.14 of the Hindu Succession Act on the basis of Ext. B1. 7. That leads us to the next question whether the plaintiffs are entitled to claim the share of Roman as reversioners. The contention is that the first plaintiff and the mother of the 2nd plaintiff were married away on payment of streedhanam and hence they have no right to get the properties of Koman. If Ammalu does not get full right under S.14 of the Hindu Succession Act and if her limited right extinguished even before the Hindu Succession Act came into force, there cannot be any dispute that the rights of the reversioners are not affected and they are entitled to challenge the alienations of the limited owner and claim share. Even though pleas to limitation, adverse possession etc. Even though pleas to limitation, adverse possession etc. were raised, those pleas were found against and notice in second appeal was not issued on any such legal questions. Those contentions are therefore concluded. 8. There was no dispute regarding the fact that the parties are Malayala Kammalas, who follow modified form of Hindu Mitakshara Law and not Hindu Mitakshara law as modified by custom. In the latter case, it may become necessary for those who claim right to prove the custom under which they claim. When the modified form of Hindu Mitakshara Law followed by them is not disputed and when it is recognised by judicial pronouncements it is only a question of considering whether under the modified law the plaintiffs are entitled to the property. What is applicable to Pandy Kammalas is pure Hindu Law as applicable to Hindus in South India, but to Malayala Kammalas the modified form of Hindu Law is applicable. Among them, daughters are entitled to inherit the properties of the father equally along with the sons to the exclusion of the widow who is having only a limited estate. Among them, there are mainly two forms of marriage, Sambandam form and Kudivaippu form. Daughters will lose their right in the family of birth only if they are given away in marriage in the Kudivaippu form on payment of streedhanam. Otherwise they will not become members of the family of the husband and they will continue to have the right in the family of birth. It is only by the Kudivaippu that they are inducted as members of the family of the husbands. That is after receiving what is due from the family of birth. 9. When a marriage is conducted, there is no presumption of law that it is in any particular form or whether streedhanam was paid or not. These are all matters for proof. In this case there is no such proof. It was argued for the appellants that even before the death of Koman the daughters were given away in marriage and at the time when Koman died they had no right. Therefore it was contended that the burden was on the plaintiffs to establish that the daughters were not given away in marriage in the Kudivaippu form on payment of streedhanam. Therefore it was contended that the burden was on the plaintiffs to establish that the daughters were not given away in marriage in the Kudivaippu form on payment of streedhanam. Burden of proof mainly depends on the answer to the question as to who will lose it no evidence is adduced. When there was a right to start with, the presumption of law must be in favour of continuance of that right unless it is shown that the right was lost under some contingency. When daughters are otherwise entitled to share and their right is contended to be lost on the happening of a particular event, it is for the person who alleges that the right is lost to prove it by positive evidence and not to insist on the opposite side to adduce negative evidence to show that the right is not lost by the happening of that contingency. Even the counsel for the appellants agreed that if the happening of the contingency taking away the right was after succession opens on the death of the father, the burden would have been on them to establish that the right is lost by marriage. I do pot think that there could be such a difference. The form in which the matter is pleaded or presented before court or the way in which the issues are framed cannot alter the onus of proof. The crucial question is whether the female members were given streedhanam on marriage and thereby they lost right in the family of birth. If that is proved, there may arise the presumption that the marriage was in Kudivaippu form and they became members of the family of the husbands. That the marriage was on payment of streedhanam has to be proved by the person who so contends. 10. In Kittu Eacharan and another v. Ouseph Ouspeh (1948 ILR 734), the Travancore High Court held: "In this community the daughters have equal rights with sons in the family properties unless they have been married in the Kudivaippu form on payment of Stridhanom. The crucial test in all these cases is whether, on marriage, the female members were given any Stridhanom. If they have been, they must be held to have been married in the Kudivaippu form entailing loss of right in the family. The crucial test in all these cases is whether, on marriage, the female members were given any Stridhanom. If they have been, they must be held to have been married in the Kudivaippu form entailing loss of right in the family. Otherwise they must be held to have been married in the Sambandhom form in which case they will retain their rights in their own family." A similar question came up for consideration before the Kerala High Court in Parameswaran Asari Sanku Asari v. Kochu Mathevi Lekshmi (1957 KLT.1020). It was observed therein: "Among Malayala Kammalans married daughters except those married in the Kudivaippu form are entitled to shares in their father's properties. They are following the Hindu Law as modified by custom. As the plaintiffs alleged that married daughters also were entitled to shares and the only defence was that they were not, it is for the defendant to prove that the marriage was in such a form as would destroy their rights." So also in Thankammal v. Madhavi Amma (1966 KLT 181) the law laid down was: "There is distinction between a custom in derogation of an established principle of pure Hindu Mitakshara Law and a system of Hindu Mithakshara Law modified by custom. Both are different. In the first the system of law applicable is Hindu Mitakshara Law; and the party pleading a custom is pleading an exception to that. That is, he is pleading a custom in derogation of the settled law. In that case he must naturally establish that the custom he pleads satisfied the test of antiquity, continuity, invariability, etc. In the second case the law applicable is a modified form of Hindu Mitakshara Law and not Hindu Mitakshara Law as such. In fact, the law applicable in such a case is customary law, which is a modified form of Hindu Mitakshara Law. Therefore, the quest in such a case must be for finding out that system of Modified Hindu Mitakshara Law or customary law. The enquiry should not be directed to see whether the custom pleaded satisfies the tests of antiquity, continuity, invariability, etc, so as to displace or dethrone the settled system of pure Hindu Mitakshara Law. Therefore, the quest in such a case must be for finding out that system of Modified Hindu Mitakshara Law or customary law. The enquiry should not be directed to see whether the custom pleaded satisfies the tests of antiquity, continuity, invariability, etc, so as to displace or dethrone the settled system of pure Hindu Mitakshara Law. Communities such as the Thiyas and the Ezhavas of Malabar, the Makkathayam Ezhavas of Cochin and Travancore, the Kammalas, the Velans etc., who are followers of Hindu Mitakshara Law modified by custom, are really followers of customary law. They are not followers of pure Hindu Mitakshara Law. The principle of pure Hindu Mithakshara Law is to be applied to such communities only on any question where there is no evidence of custom available." 11. In this case it is admitted that what is applicable is not Hindu Law modified by custom in derogation of the settled law, but the modified form of Hindu Mitakshara Law recognised by judicial pronouncements. The question therefore is to rind out what that modified customary law is. The established standards of proving custom are therefore not applicable. There is no evidence regarding the form is which the 1st plaintiff or the mother of the 2nd plaintiff were married or whether they were given Sthreedhanam or not. If so, it is not possible to find out that they lost their right. The appellants are therefore not entitled to succeed. The decree and judgment of the appellate court are not liable to be interfered with. The second appeal is therefore dismissed with costs.