JUDGMENT 1. Plaintiff in a suit for partition is the appellant. The appellant contended that the plaint A schedule property was allotted to the appellant, respondent, their deceased sister Lalitha and their parents in a partition of 1948. Their father Korappan died in 1956 and their mother Madhavi died in 1984. Lalitha had predeceased Madhavi and according to the appellant herself and the respondent are the only sharers. Plaint 'B' schedule are the moveable properties which belonged to the father" Korappan and mother Madhavi. During the lifetime of Madhavi she executed a giftdeed in favour of the respondent and this gift was obtained by deceitful means. Madhavi later knew about the fraud played on her and she cancelled the giftdeed. The appellant sued for 1/2 of the plaint schedule property. The respondent contended that the parties are 'Makkathayi Thiyyas' of Kozhikode governed by customary Law, which is Mithakshara law as amended by statute. Respondent contended that 'A' schedule property belonged to Pandarakkandy lyyappadi tarwad and there was a partition in 1948 and only the male members of each branch had right in the properties and the family members had only the right of maintenance. No other right was conferred as per the document of 1948. The daughters had no pre-existing interest in the joint family property. Even though the appellant plaintiff is a member of the family, she is not entitled to any property, Korappan died in 1956 prior to the commencement of the Hindu Succession Act. Widow Madhavi surrendered her 1/2 right in the property. This she acquired as per the provisions of the Hindu Women's Right to Property Act. In 1973 Madhavi had borrowed Rs. 1,900 from the respondent by executing a registered mortgage deed. In 1980 Madhavi executed a surrender deed in favour of the respondent. Madhavi filed indigent O.P. 1/81 for cancellation of the surrender deed. That was later converted into O.S. 336/81. Pending this suit Madhavi died. The appellant was a party to that suit, but failed to take further steps in the matter by transposing herself as the plaintiff. 2. On the side of the plaintiff Exts. A-1 and A-2 were marked and Exts. B-1 to B-24 were marked on the side of the defendant. Ext. X-1 also was got marked, which is copies of oral evidence given before the R.D.O., Kozhikode. 2. On the side of the plaintiff Exts. A-1 and A-2 were marked and Exts. B-1 to B-24 were marked on the side of the defendant. Ext. X-1 also was got marked, which is copies of oral evidence given before the R.D.O., Kozhikode. Originally the suit was decreed granting 1/4 share to the plaintiff in respect of 'A' schedule item. Respondent filed A.S. 96/84 before this Court and the matter was remanded for fresh disposal. After the remand the plaintiff filed I.A. 1508/84 claiming 6/15 share. This interlocutory application was dismissed and the plaintiff filed C.R.P. 72/87 before this Court. The civil revision petition was dismissed along with A.S. 96/85. Subsequent to the remand the respondent filed additional written statement, wherein it was stated that there was a settlement deed between Theyyan, the grandfather of the appellant and respondent, and Korappan. The present 'A' schedule property was set apart to executants 1 to 11 therein and the male members born to them and the 'B' schedule therein was set apart to the executants 12 to 15 and the male members born to them. This property was later dealt with in 1948 partition and it was specifically mentioned that apart from the maintenance till marriage the female members may not have any right. The respondent also contended that as per the custom of community the female members have no right or share in the property. 3. The appellant filed rejoinder and denied all the averments in the additional written statement. She also contended that on the death of Korappan alias Sami in 1956 succession did not open by the intervention of the limited ownership of the widow, Madhavi. Madhavi died in 1984 and then only the succession opened. Plain 'A' schedule property was a separate property of appellant's father Korappan. Therefore the succession would take place only in accordance with the provisions of the Hindu Succession Act. Lalitha died in 1972 and she had been residing with her husband till her death. But the surrender deed executed by Madhavi did not confer any right on the respondent. 4. After the remand the trial court held that the parties are followers of Mitakshara law and the succession opened on the death of father Korappan and at the time of death of Madhavi she had no subsisting right in the property as she had executed Ext. 4. After the remand the trial court held that the parties are followers of Mitakshara law and the succession opened on the death of father Korappan and at the time of death of Madhavi she had no subsisting right in the property as she had executed Ext. B-3 surrender deed in favour of the respondent. It was further held that the plaintiff - appellant had only a right of residence till her marriage and her marriage took place on 8th April 1953 and therefore she was not entitled to any share. Aggrieved by this finding the present appeal is filed. 5. The main dispute between the parties is whether the appellant is entitled to inherit the property obtained under Ext. A-1 partition. The appellant's contention is that Ext. A-1 partition of 1948 was to the various members of the thavazhy including the appellant, respondent, their sister Lalitha and their parents. The respondent would contend that the parties are Thiyyas of erstwhile Malabar area and they are followers of Mithakshara Law as modified by custom and, therefore, the appellant being a female member, has no right to inherit the coparcenary property. Ext. A-1 property originally belonged to Uniecham Veedu. Ext. A-1 partition deed was entered into between 24 persons and executant No. 1 there is the father of the present appellant and respondent. Executants 2 to 5 in Ext. A1 are Madhavi, Lalitha, appellant and respondent respectively. The main recitals in Ext. A-1 are extracted in Para.17 of the lower court's judgment. It is contended on behalf of the appellant that (sharers) referred to in clause (6) of Ext. A-1 refers to appellant, respondent, their sister Lalitha and their parents. A plain reading of Ext. A-1 would clearly show that the daughters have got only the right of maintenance till their marriage. Ext. A-1 recitals are in accordance with the system of Mithakshara Law. Learned counsel for the appellant further contended that executants 1 to 5 of Ext. A-1 joined in Ext. B-11 Verumpattom assignment deed and this indicated that the daughters also had right in the property. This contention cannot be accepted. Ext. B-11 is dated 17th February 1953. That by itself is not sufficient to hold that the daughters had a pre-existing right in the property. A-1 joined in Ext. B-11 Verumpattom assignment deed and this indicated that the daughters also had right in the property. This contention cannot be accepted. Ext. B-11 is dated 17th February 1953. That by itself is not sufficient to hold that the daughters had a pre-existing right in the property. It may be remembered that by virtue of the provisions of Hindu Women's Right to Property Act, 1937 the wife of Korappan acquired a statutory right to get share equal to that of the share due to the son. Ext. B-11 was made for the purpose of raising funds for the marriage of appellant and her sister Lalitha. Anyway, the execution of Ext. B-11 does not indicate that the daughters had any right in the coparcenary property. 6. It may be noted that the Supreme Court in Kelukutty and others v. Mammad and others ( (1973) 1 SCR 757 ) held that the Thiyyas of former Calicut Taluk are governed by customary law known as Makkathayam Rule of Inheritance and that the daughters have no right of inheritance. In Thankammal v. Madhavi Amma and others this Court held that the Thiyyas and Ezhavas of Malabar are followers of Hindu Mithakshara Law modified by custom. In the instant case, the appellant did not adduce any evidence to show that there was any customary law by which daughters inherited the property. Therefore, the lower court was fully justified in holding that on the death of Korappan @ Sami in 1953 the respondent son and his mother Madhavi alone had right in the property. 7. Another contention raised by the appellant's counsel is that by virtue of the provisions of Hindu Women's Right to Property Act, 1937 duly supplemented by Act 26/47 the widow Madhavi acquired right in the property. Prior to this enactment the widow of a Hindu was no heir to the property left by her husband. The Act made her a heir along with the sons. It was observed in Satrughan v. Sabujpari (AIR 1967 SC 232) that the interest of the widow arose not by inheritance nor by survivorship but by statutory substitution. The widow by reason of her introduction into the coparcenary could not be held to have become a coparcener. The Act made her a heir along with the sons. It was observed in Satrughan v. Sabujpari (AIR 1967 SC 232) that the interest of the widow arose not by inheritance nor by survivorship but by statutory substitution. The widow by reason of her introduction into the coparcenary could not be held to have become a coparcener. But being clothed with all the rights and concomitants of coparcener's interest, the interest which the widow takes in is an alienable right and the alienee can ask for partition and possession of his share. In this case relying on the decision reported in Daya Singh v. Dhan Kaur ( AIR 1974 SC 665 ) it was contended that succession would open only on the death of Madhavi. In the above decision the Court held that the accepted position under Hindu Law is that where a limited owner succeeds to an estate the succession to the estate on her death will have to be decided on the basis that the last full owner died on that day. It was also pointed out that the enforceable law is that it is only the law in force at the time of the death of the limited owner and not the law in force at the time of the last full owner's death that would govern the case. However, in the present case, it is important to note that Korappan died in 1956 and his property devolved on his son the respondent and to his widow Madhavi in equal shares. Thereafter Madhavi executed Ext. B-3 surrender deed by which she surrendered all her rights to the respondent. As the fights acquired as per the provisions of the Hindu Women's Right to Property Act, 1937 is and alienable right the widow can assign the same to anybody. The genuineness of Ext. B-3 document is challenged by the appellant. The widow herself had filed indigent O.P. 1 of 1981. It was later converted into O.S. 336 of 1981. During the pendency of that suit Madhavi died and the suit was not prosecuted by the present appellant as the legal heir of deceased Madhavi. Because of the execution of Ext. B-3 surrender deed it cannot be said that Madhavi died intestate. Moreover, succession had already opened on the death of Korappan who was the last male member. During the pendency of that suit Madhavi died and the suit was not prosecuted by the present appellant as the legal heir of deceased Madhavi. Because of the execution of Ext. B-3 surrender deed it cannot be said that Madhavi died intestate. Moreover, succession had already opened on the death of Korappan who was the last male member. This portion of law has been made clear in an earlier decision of the Privy Council reported in Moniram Kolita v. Kerry Kolitani ((1880) ILR 5 Calcutta 776 at 789). It was held: "According to the Hindu law, a widow who succeeds to the estate of her husband in default of male issue, whether she succeeds by inheritance or survivorship as to which see the Shivagunga case (9 Moore's I.A. 604) does not take a mere life-estate in the property. The whole estate is for the time vested in her absolutely for some purposes, though in some respects for only a qualified interest. Her estate is an anomalous one, and has been compared to that of a tenant in-tail. It would perhaps be more correct to say that she holds an estate of inheritance to herself and the heirs of her husband. But whatever her estate is, it is clear that, until the termination of it, it is impossible to say who are the persons who will be entitled to succeed as heirs to her husband. The succession does not open to the heirs of the husband until the termination of the widow's estate. Upon the termination of that estate the property descends to those who would have been the heirs of the husband if he had lived up to and died at the moment of her death." From the dictum it is clear that in the absence of any male issue the widow inherits the whole property and the succession would open only on the death of the widow who had got limited right over the property. Then, naturally, the property would be inherited by the heirs of the deceased husband and the succession will open only on the death of that limited estate holder, namely, the widow. In the instant case, the succession already opened and the present respondent was holding equal shares with the widow Madhavi. Moreover, Madhavi surrendered her right to the respondent as per Ext. B-3 surrender deed. In the instant case, the succession already opened and the present respondent was holding equal shares with the widow Madhavi. Moreover, Madhavi surrendered her right to the respondent as per Ext. B-3 surrender deed. So, the decision reported in Daya Singh v. Dhan Kaur ( AIR 1974 SC 665 ) has no application. The appellant was already given maintenance till her marriage which had taken place on 8th April 1953. She is not entitled to inherit the property as per the system of inheritance followed by Thiyyas of erstwhile Malabar. The lower court was fully justified in holding that the appellant has no right over the property. There is no merit in the appeal and the same is dismissed, however, without costs.