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2003 DIGILAW 195 (KER)

Surendran v. Krishnan @ Krishnankutty

2003-03-14

A.LEKSHMIKUTTY

body2003
Judgment :- Against the judgment and decree in O.S.No.593/1983 on the file of the Sub Court, Trichur, this appeal is preferred by the plaintiff. During the pendency of the appeal, the first respondent died. Respondents 2 to 4 were recorded and additional respondents 5 and 6 were impleaded as the legal representatives of the 1st respondent. The plaintiff filed the suit for partition and separate possession of his ¼ share over the plaint schedule property by metes and bounds. Plaintiff and defendants 2 and 3 ate the children of deceased first defendant and 4th defendant. The property originally belonged to late Koru, father of late Kirshnan, Kumaran, Balan and Prabhakaran, The first defendant and his brothers entered into a partition in the year 1956 and as per partition deed plaint A schedule property was allotted to the share of first defendant Krishnan. The plaintiff and defendants were in joint possession and enjoyment of the said properties. While so the first defendant has alienated some portions of A schedule property for meeting the marriage expenses of the sisters of the plaintiff. The remaining portion is scheduled in the plaint. The plaintiff and the defendants were born in Chavakkad Taluk in Malabar and they are governed by the Hindu Law. The male members in the family will get right by birth in the ancestral properties. It was the system prevalent among their community. The sisters of the plaintiff were given in marriage after giving them ornaments and amount for purchasing vessels. They have no manner of right over the plaint schedule properties. The plaintiff is entitled to get 1/4th share in the plaint schedule properties which are ancestral properties. Hence the suit. 2. Defendants 1 to 3 filed a joint written statement. According to them, the parties are governed by customary law and not by Hindu Mitakshara law as claimed by the plaintiff. Nobody had any right by birth over the property. The first defendant is the absolute owner in possession of the plaint schedule property. The plaintiff and other defendants have no manner of right or possession over the same. The plaintiff was given education by spending huge amount and he was also given properties and amounts for construction of a new building. The first defendant is the absolute owner in possession of the plaint schedule property. The plaintiff and other defendants have no manner of right or possession over the same. The plaintiff was given education by spending huge amount and he was also given properties and amounts for construction of a new building. The mother of the plaintiff has executed a sale deed in favour of the wife of the plaintiff for a property worth more than Rs.One lakh receiving only Rs.500 as consideration. No ornaments or amount were given to the other daughters of the first defendant at their marriage. The other daughters of the first defendant are also necessary parties in the suit. The plaintiff is not entitled to get a decree for partition. 3. The 4th defendant filed a written statement supporting the contention of the other defendants. 4. On the basis of the pleadings, the court below framed seven issues. The evidence in this case consists of oral testimony of PWs.1 and 2, DW1 and documents Exts.A1 to A13 and B1 to B5. The court below after appreciation of the evidence dismissed the suit. Aggrieved by the said decree and judgment, this appeal is preferred by the plaintiff. 5. Admittedly the plaint schedule properties originally belonged to Koru, father of the first defendant and his brothers, Kumaran, Krishnan, Balan and Prabhakaran. It is admitted case of the parties that the properties were partitioned among the legal representative of deceased Koru as per Ext.A1 in the year 1956. The case of the plaintiff is that they are governed by Mitakshara law of inheritance and as such he is entitled to get a share by birth. He along with defendants 1 to 3 are the co-owners of the property. The allegation that the parties are governed by Mistakshara Law of inheritance is denied by the defendants. According to them, they are governed by customary law and Mitakshara law has no application. The averments in the plaint shows that the first defendant was allotted A schedule in Ext.A1 and he had allenated portions of the property to strangers. So the only question to be considered is whether the parties are governed by customary law of inheritance as contended by the defendants or Hindu Mitakshara law as claimed by the plaintiff. 6. Both sides adduced evidence. The parties are Thiyyas in Chavakkad Taluk in erstwhile Malabar. So the only question to be considered is whether the parties are governed by customary law of inheritance as contended by the defendants or Hindu Mitakshara law as claimed by the plaintiff. 6. Both sides adduced evidence. The parties are Thiyyas in Chavakkad Taluk in erstwhile Malabar. As per the plaintiff, since it is the ancestral property, plaintiff and defendants 1 to 3 alone are entitled to the properties and plaintiff has got ¼ right. Ext.A1 partition deed would show that the properties were divided into 4 and A schedule property was allotted to Krishnan, the deceased first defendant. It is stated therein that he properties originally belonged to Koru and after his death the parties are in joint possession and enjoyment. It is further stated in the partition deed that the parties shall be the absolute owners of the properties and they are entitled to alienate the property as they like. If actually the parties are governed by Mitakshara law, male children also would have been made parties to Ext.A1 partition deed. 7. In order to substantiate the case of the plaintiff, the plaintiff examined PW2, an independent witness, who belongs to the same community. He has produced Ext.A12 and A13 documents to prove that the parties are governed by the Mitakshara law of inheritance. Ext.A12 is in the year 1980 and Ext.A13 is in the year 1974. Ext.A13 would not show that the parties are governed by Mitakshara law of inheritance. Ext.A13 is a partition deed executed by the children of one Karappan and their mother Narayani. It would only show that the property originally belonged to one Velu and Karappan. After the death of Velu, Karappan became the sole heir of the property and after his death, the property has been partitioned among the legal heirs of Karappan. It would further show that after the death of Karappan, his right devolved on his widow and children and they are in joint possession of the said property. Mother was also given a hare in the property. If actually the parties are governed by Mitakshara law of inheritance, then that would have been stated in the document itself. Ext.A12 is executed in 1980 after the coming into force of the Joint Hindu Family Abolition Act. So this document would not help the plaintiff to show that the parties are governed by Mitakshara law of inheritance. If actually the parties are governed by Mitakshara law of inheritance, then that would have been stated in the document itself. Ext.A12 is executed in 1980 after the coming into force of the Joint Hindu Family Abolition Act. So this document would not help the plaintiff to show that the parties are governed by Mitakshara law of inheritance. At the time of cross-examination, PW2 admitted that it is not stated in Ext.A12 that the properties are ancestral properties. It is further admitted by PW2 that Ext.A13 partition deed has been effected after the death of their father. During cross examination, he has stated that he is not sure whether all the male member shall be included in the partition deed while their father was alive. So the evidence of PW2 and Ext.A12 and A13 would not help the plaintiff to prove that the parties are governed by Mitakshara law. Ext.B1 is the sale deed executed by first defendant in favour of one Pathumma. Plaintiff admits that the first defendant had alienated some properties to strangers for family necessities, i.e. for meeting the expenses of the marriage of their sisters. Ext.B1 would not show that the alienation was made for meeting the expenses of the marriage of his daughter. Ext.B2 is another document executed by the first defendant in favour of Ahammadunni. As per Ext.B2, first defendant had alienated 2.24 Ares of property. The recital in the document would not show that this document also has been executed for any family necessity and it was executed on behalf of his son also. Exts.B1 and B2 would clearly show that the first defendant was treating the property as his absolute property and he was having absolute right over the same. Ext.B3 is the sale deed executed by Balan, the brother of the first defendant in favour of one Parukutty, which he got as per Ext.A1 partition deed. There also, it has been stated that the executant Balan obtained the property as per Ext.A1 partition deed and he is having absolute right over the same. Ext.B4 is a gift deed executed by the first defendant in favour of his minor son Sudilan. The said document was in favour of the mother of Sudilan as guardian of the minor. The said property has been subsequently purchased by the wife of the plaintiff is admitted by him. Ext.B4 is a gift deed executed by the first defendant in favour of his minor son Sudilan. The said document was in favour of the mother of Sudilan as guardian of the minor. The said property has been subsequently purchased by the wife of the plaintiff is admitted by him. Other documents produced by the defendants also would show that the deceased first defendant was dealing with the property as his absolute property. There is nothing on record to show that the said property was possessed by deceased first defendant for and on behalf of the plaintiff and others. If the plaintiff and his brothers have any right by birth, their name also would have been shown in the partition deed. So the documentary evidence produced by the defendants would clearly show that the parties are not governed by Mitakshara law of inheritance as claimed by the plaintiff. The plaintiff has no case that on the date of Ext.A1, he was not born. The age shown in the plaint shows that plaintiff and defendants 2 and 3 were born long prior to the execution of Ext.A1. If actually the male children had any right over the property of their grandfather by birth, necessarily they would have been allotted share at the time of partition. The case of the plaintiff is that the first defendant had alienated the properties for family necessity for and on behalf of his son is belied by Exts.B1 to B3. 8. The parties are thiyyas belong to Chavakkad Taluk in the erstwhile Malabar area. As per the defendants, they are governed by customary law of inheritance. In the absence of proof of custom, they are governed by Hindu Mitakshara law. As held in Rohini v. Sethumadhavan 1978 KLT 470(F.B.) that the law applicable to the thiyyas in Calicut is essentially customary law. There is no evidence to prove that they are governed by Mitakshara law of inheritance. In the absence of custom, Hindu Mitakshara law is applicable to the parties. The evidence adduced in this case would clearly show that the parties are governed by customary law of inheritance. Exts.A12 and A13 would not show that parties are following Hindu Mitakshara Law. The other brothers of the deceased first defendant also have alienated their property to the exclusion of their sons. The evidence adduced in this case would clearly show that the parties are governed by customary law of inheritance. Exts.A12 and A13 would not show that parties are following Hindu Mitakshara Law. The other brothers of the deceased first defendant also have alienated their property to the exclusion of their sons. The plaintiff has miserably failed to prove that he is having any right over the property by birth. The conduct of the parties would lead to the irresistible conclusion that the plaintiff has no right by birth in the properties of Koru, his grandfather. After the death Koru, his wife and children alone are entitled to the property. Ext.A1 would not show that the property was allotted to the sakha of the first defendant. Ext.A12 would not show that the properties are ancestral property. PW2 admitted during examination that on the date of execution of Ext.A12, there were other male members in the family. His evidence further shows that he had not seen any document wherein the sons were also made parties in the sale deed executed by their father. The third defendant gave evidence in accordance with their contention. Further a joint written statement filed by defendants 1 to 3 contending that they are following customary law of inheritance and not Hindu Mitakshara law as contended by the plaintiff. The circumstances also shows that the parties are governed by customary law and not Hindu Mitakshara Law. 9. In such circumstance the court below has rightly found that the parties are not governed by Hindu Mitakshara law and they are governed by customary law of inheritance. On evaluating of the entire evidence, I find that the court below has rightly appreciated the evidence and dismissed by the suit. The decree and judgment of the court below or confirmed and this appeal Suit is dismissed. In the circumstances of the case the parties are directed to bear their respective costs.