Judgment :- The four plaintiffs in O.S.123/1990 on the file of the Sub Court, Tirur are the appellants in this appeal. The said suit was one for partition of three items of immovable properties with a house each in items 1 and 3. 2. The case of the plaintiffs can be summarized as follows: The plaintiffs and defendants belong to Perumkollan (blacksmith) community and are governed by Customary Law and Hindu Law. The plaint schedule properties belonged to Valli, the mother of the first plaintiff and grandmother of plaintiffs 2 to 4 and defendants 1 to 17. Valli died in the year 1940 leaving behind her three sons Kunhan, Ayyapan and Apputty and two daughters Unniechi and Ammalukutty. The first plaintiff is Unniechi the said daughter. Plaintiffs 2 to 4 are the children of Apputty. Defendants 1 to7 are the children of Kunhan. Defendants 8 and 9 are the daughters of Ayyappan. Defendants 10 to 17 are the children of Ammalukutty. Kunhan expired in the year 1984 or 1985. Ammalukutty died in the year 1986 or 1987 and Ayyappan died in the year 1988. Apputty died in the year 1945. All the children of Valli had equal rights over the properties and accordingly the plaintiffs are jointly entitled to 2/5 shares, and each of the groups consisting of defendants 1 to 7, 8 and 9 and 10 to 17 are entitled to 1/5 shares. The plaintiffs and defendants are in joint possession of the properties. Although after their marriage the 1st plaintiff and Ammalukutty have been residing in their matrimonial houses they frequently come and reside in the ancestral home. After the death of Apputty, plaintiffs 2 to 4 who are his children were residing in the suit properties and their marriages were also conducted in the suit properties. After the death of Valli, Kunhan and Ayyappan were in possession and enjoyment of the plaint schedule properties for and on behalf of the other legal heirs of Valli. Upon the death of Ayyappan, defendants 1 to 3 are in possession and enjoyment of the properties in and on behalf of the surviving legal heirs of deceased Valli. Kunhan and Ayyappan were sharing the income from the plaint schedule properties with the plaintiffs until their death. Defendants 1 to 3 were also sharing the income with the plaintiffs until 2 years before the institution of the suit. Kunhan and Ayyappan were sharing the income from the plaint schedule properties with the plaintiffs until their death. Defendants 1 to 3 were also sharing the income with the plaintiffs until 2 years before the institution of the suit. The first plaintiff on several occasion and finally as per Ext.A2 lawyer notice dated 30-8-1990 had requested the first defendant to partition the properties and allot her share. In response to the said notice the 2nd defendant had approached the first plaintiff offering Rs.500/- towards the value of her share and requested her to be content with the same. But the first plaintiff was not amenable to accede to the request of 2nd defendant. After the return of the 2nd defendant the first defendant caused Ext. A3 reply notice to be sent stating that the first plaintiff was not a co-sharer of the plaint schedule properties and that the properties were not available for partition. The other statements in the said reply are untenable. The plaint schedule properties will fetch an annual income of Rs.6,000/-. Hence the plaint schedule properties may be ordered to be partitioned and the plaintiffs may be given possession of their 2 out of five shares with mesne profits. 3. Defendants 1 to 7 filed a joint written statement contending inter alia as follows: The suit is not maintainable either in law or on facts. The plaint schedule properties belonged to Valli who expired on 2nd Karkkidakam 1118 M.E. corresponding to 1942. Apputty predeceased his mother in the year 1938. Hence plaintiffs 2 to 4 are not entitled to inherit the properties left behind by Valli. Kunhan expired in the year 1977 and Ammalukutty died in the year 1986. Ayyappan died in the year 1985. It is not correct to say that plaintiffs and defendants are co-owners in respect of the plaint schedule properties. Valli had not obtained certificate of purchase in respect of the properties. After the death of Valli, her sons Ayyappan and Kunhan had partitioned the properties as per Ext.B1 registered partition deed dated 6-5-1933 whereunder items 1 to 3 thereof was allotted to the share of Kunhan and item No.4 thereof were allotted to the share of Ayyappan. The above partition was effected under the bona fide belief that Kunhan and Ayyappan alone were legal heirs of deceased Valli. The above partition was effected under the bona fide belief that Kunhan and Ayyappan alone were legal heirs of deceased Valli. While Kunhan was in possession and enjoyment of the property Ayyappan filed a suit O.S.122/68 challenging Ext.B1 partition deed. The said suit was dismissed and the appeal there from filed as A.S.63/1970 was also dismissed. Subsequently, Kunhan obtained certificate of purchase in respect of the portion allotted to him in the year 1977. Kunhan and defendants 1 to 7 have been in continuous, uninterrupted, open and hostile possession of the plaint schedule properties from the year 1953 onwards against the entire world including the plaintiffs. Hence the rights, if any, of the plaintiffs over the plaint schedule properties, are lost by adverse possession, limitation and ouster. The suit filed without a prayer for recovery of possession is not maintainable. These defendants have improved the properties by effecting permanent improvements including the building in the plaint schedule property. In the event of partition these defendants are entitled to equity and reservation. Hence the suit may be dismissed upholding the contentions of these defendants. 4. Defendants 8 and 9 filed a joint written statement separately in tune with the written statement of defendants 1 to 7. They raised the following additional contentions:- The plaintiffs are not entitled to inherit the suit properties as per the customary law prevailing among the community. Even before the death of Valli who owned the suit properties the first plaintiff and Ammalukutty the mother of defendants 10 to 17 had been given away in marriage in accordance with the customary rights by giving them ornaments, utensils and dowry. Apputty, the mother of plaintiffs 2 to 4 had died even before the death of Valli. Both according to law as well as the customary rights of the parties, on the death of Valli her properties devolved on her sons Kunhan and Ayyappan exclusively by succession. Both the first plaintiff and her sister Ammalukkutty as also their children were aware of this. The properties were partitioned in the year 1953 between Kunhan and Ayyappan. Ayyappan had gifted the plaint schedule properties in favour of these defendants in the year 1964 as per registered documents. These defendants had also improved the land with valuable improvements, the value of which they are entitled to in the event of a partition. The properties were partitioned in the year 1953 between Kunhan and Ayyappan. Ayyappan had gifted the plaint schedule properties in favour of these defendants in the year 1964 as per registered documents. These defendants had also improved the land with valuable improvements, the value of which they are entitled to in the event of a partition. They are also entitled to reservation and equity in case the properties are held partible. The rights, if any, of the plaintiffs and defendants 10 to 17 have been lost by adverse possession and limitation as well as ouster since these defendants and their predecessors have been in open continuous, uninterrupted and hostile possession of the portion of the plaint schedule property from the year 1953 onwards against the entire world including the true owner. The plaintiffs are therefore not entitled to the reliefs as prayed for. Hence the suit may be dismissed. 5. The court below framed 9 issue for trial. On the side of the plaintiffs, two witnesses were examined as PWs.1 and 2 of whom PW.1 is the first plaintiff herself. Three documents were marked as Exts. A1 to A3. On the side of the defendants 3 witnesses were examined as D.Ws.1 to 3 of whom D.W.1 is the 3rd defendant. 10 documents were marked as Exts.B1 to 10. 6. The learned Sub Judge after trial, as per judgment and decree dt. 20.11.1992 dismissed the suit but without costs. It is the said decree which is assailed in this appeal by the plaintiffs. 7. I heard Adv. Sri. K.T. Sankaran, the learned counsel appearing for the appellants and Adv. Sri. Krishnan Unni, the learned counsel appearing for respondents 1 to 9 who are respectively defendants 1 to 9 and Advocate Sri. N. Anil Kumar, the learned counsel appearing for respondents 11 and 13 who are defendants 11 to 13 respectively. The other respondents have remained ex parte. 8. Adv. Sri. Krishnan Unni, the learned counsel appearing for the contesting respondents made the following submissions before me supporting the judgment under appeal:- The first plaintiff being a daughter of Valli will have to prove that she is entitled to a share over the properties left behind by Valli. Admittedly, Valli died long before the commencement of the Hindu Succession Act. The first plaintiff was admittedly married away much before the death of Valli when the succession opened. Admittedly, Valli died long before the commencement of the Hindu Succession Act. The first plaintiff was admittedly married away much before the death of Valli when the succession opened. If the plaint schedule properties do not constitute streedhana properties, then in the absence of a custom pleaded and proved in modification or substitution of the Hindu Mithakshara Law, it has to be presumed that it is the Hindu Mithakshara Law which is applicable to the parties who belonging to Malayal Kammalas, their community being the Perumkollan (blacksmith) community, Under the Hindu Mithyakshara law, married daughters are not entitled to a share over such properties. There is no custom to the contrary either set up or proved. The plaint does not say that the properties constitute streedhana properties of Valli. So it should be presumed that they are not streedhana properties. The only thing which has been pleaded in paragraph 1 and 3 of the plaint is that as per the customary law of the community and the Hindu Law all the children of Valli are the heirs of Valli and all of them have equal rights and they are in joint possession. There is no plea in the plaint that both the daughters of Valli were not given away in marriage in Kudivaipu form by giving them dowry and other properties and therefore they are entitled to a share over the properties. On the contrary, in the written statement of defendants 8 and 9 they have specifically pleaded that the daughters of Valli were given away in marriage by giving them ornaments, utensils and dowry. If so, it was for the plaintiffs to prove that the marriage of the daughters of Valli was not in Kudivaippu form. Towards the close of her cross-examination, the first plaintiff examined as PW1, has admitted that she did not make any enquiries as to who all will get rights on the death of a female belonging to Perumkollan community and that she merely guessed that on the death of the mother all her children will be entitled a share. The 4th plaintiff who is the daughter of Apputty examined as PW2 also did not state in her evidence about any custom. In the decision of the apex court reported in Kochan Kani Kunjuraman Kani v. Mathevan Kani Sankaran Kani 1971 K.L.T. 458 the requirements for accepting a valid custom have been elucidated. The 4th plaintiff who is the daughter of Apputty examined as PW2 also did not state in her evidence about any custom. In the decision of the apex court reported in Kochan Kani Kunjuraman Kani v. Mathevan Kani Sankaran Kani 1971 K.L.T. 458 the requirements for accepting a valid custom have been elucidated. The plea in that regard should be so specific and clear that the opposite party is not taken by surprise. Valli died at Ramanattukara in the erstwhile Malabar area where the decisions of the Madras High Court alone are binding. The decisions of the erstwhile Travancore Cochin cannot be applied to the parties in question. Even if a custom modifying the pristine Hindu Law entitling the married daughters to a share in the properties has been judicially recognized, what has to be pleaded is the existence of such a judicially approved custom. No such custom has been pleaded in the plaint. If it is the Hindu Mithakshara Law which governs the parties then the first plaintiff who is the surviving daughter of Valli and defendants 10 to 17 who are the children of Ammalukutty, the other daughter of Valli, cannot get any share over the properties. It is true that plaintiffs 2 to 4 are the children of Apputty who was one of the sons of Valli. But then the case of the plaintiff that Apputty died after the death of Valli, has been denied by the contesting defendants according to whom Apputty had predeceased his mother Valli. No doubt, the evidence on either side in this regard is not very happy or helpful. It is true that going by the evidence of DW2 it could be inferred that Apputty died after his mother’s death. But then the plaintiffs cannot take advantage of the weakness of the defence evidence to contend for the position that Apputty died after the death of Valli. When the case pleaded in the plait that Apputty died subsequent to the death of his mother has been specifically denied in the written statement and if no evidence were to be adduced on either side, it is the plaintiffs who would fail. This should be the criterion for deciding whether the plaintiffs have proved whether Apputty died after the death of his mother. This should be the criterion for deciding whether the plaintiffs have proved whether Apputty died after the death of his mother. Even assuming that the plaintiffs and defendants 10 to 17 had any right over the suit properties, their rights have been lost by adverse possession and ouster which has been specifically pleaded by defendants 1 to 9. This is a case in which a suit is filed for partition 50 years after succession opened consequent on the death of Valli in the year 1940. Persons who claim share over the properties and their immediate predecessors had never claimed any share for the post 50 years. Ext.B1 partition deed dated 6-5-1953 shows that Kunhan @ Pangan and Ayyappan @ Chayachan who were the surviving sons of Valli had partitioned the properties as if the properties belonged to them exclusively. If it was a joint family property over which the daughters of Valli also had rights, there was no reason why the two daughters of Valli were excluded from partition in Ext.B1. Exts.B2 to B4 are the litigations between Ayyappan and Kunhan over the properties partitioned under Ext.B1. Exts.B5, B6 and B10 are the purchase certificates issued by the competent Land Tribunal over portions of the properties in favour of the alottees or their donees under Ext.B1 partition. This shows that they were dealing with the properties as their own constructing building. Even assuming that the plaintiffs and defendants 10 to 17 were co-owners, the open and exclusive possession by the contesting defendants and their predecessors is a strong circumstance from which an inference of ouster can be drawn. The contesting defendants rely on the following decisions in support of the plea of adverse possessions and ouster:- Sooppi v. Moosa – 1969 K.L.T.121 Adichan Ayyan & Others v. Kurumpi & Others 1975 K.L.T.292 P.K. Madhavi Amma v. M.M. Appu Nair – ILR 1986 (1) Kerala 391 Sainaba Umma and another v. Moideenkutty and others ILR 1988 (1) Kerala 207 Amrendra Pratap Singh v. Tej Bahadur Prajapati & Ors – 2004 SAR (Civil) 9 (SC) Alternatively, since the suit properties were acquired by Valli as per Ext.A1 “Panayam Theeradharam� during coverture the same could be treated as her streedhana properties as opined by N.R. Raghavachariyar on Hindu Law at Page 530 of the 7th Edn. of his commentary. of his commentary. In that case, the daughter of Valli alone would be entitled to the suit properties and since they were excluded from possession by their brothers for more than 50 years of the death of Valli their rights, if any, are lost by adverse possession and limitation. If the properties are to be treated as streedhana properties then the suit is only to be dismissed in limine since a suit for partition will lie only against a co-owner in joint possession in view of Sec.37 of the Kerala Court Fees and Suits Valuation Act, 1959. Defendants 1 to 9, in such a case would be strangers in possession of the properties and the suit as against them without a prayer for recovery of the same under section 30 of the Court Fees Act will not lie in view of the decision reported in Sarojini Amma and another v. Papi Amma and Others – 1973 KLJ 393. NO doubt, a suit for partition as well as a suit for recovery could be combined in one by paying court fee both under Sec.30 as well as Sec. 37 of the Court Fees Act. But in the plaint the plaintiffs have paid fixed court fee only under Section 37 (2) of the Court Fees Act and there is no prayer for recovery of possession nor payment of court fee under Sec. 30 of the Court Fees Act. Hence, whatever be the character of the property left behind by Valli the suit is only to be dismissed. This appeal is also for the same reason, liable to be dismissed. 9. I am afraid that I cannot agree with the above submissions. Since the court below found that the suit properties are the streedhana properties of deceased Valli, the common ancestress, and there is also a dispute as to whether Apputty the son of Valli died before or after the death of Valli, at three main issues will have to be considered this appeal. Firstly it will have to be decided whether the suit properties are the streedhana or non-stereedhana properties of deceased Valli. Secondly, it will have to be considered whether Apputty the son of Valli had predeceased his mother or died only after the death of Valli. Firstly it will have to be decided whether the suit properties are the streedhana or non-stereedhana properties of deceased Valli. Secondly, it will have to be considered whether Apputty the son of Valli had predeceased his mother or died only after the death of Valli. Thirdly, even if properties are streedhana or non-streedhana properties, whether the rights of the plaintiffs and defendants 10 to 17 have been lost by adverse possession and ouster. 10. Before going into the merits of the case it may be relevant to consider the genealogy of the parties. 11. If it is held that the suit properties are the streedhana properties of Valli then there is no dispute that the two daughters of Valli viz. the first plaintiff Unnichi and deceased Ammalukutty alone would be entitled to inherit the property to the exclusion of the three sons of Valli. In other words, if the properties are found to be streedhana properties then the first plaintiff and the defendants 10 to 17 alone will be entitled to inherit the properties then the first plaintiff and the defendants 10 to 17 alone will be entitled to inherit the properties with the first plaintiff taking half share and defendants 10 to 17 together taking half share and defendants 10 to 17 together taking the remaining half. In that even plaintiffs 2 to 4 who are the children of Apputty, the deceased son of Valli an defendants 1 to 7 who are the children of deceased Kunhan and defendants 8 and 9 who are the daughters of deceased Ayyappan will not be entitled to any share over the properties. If the suit properties were to be held to be streedhana properties left behind by Valli, the plaintiffs have one more hurdle viz, the suit being bad for want of a prayer for recovery of possession of the properties from defendants. 1 to 9 who are strangers to the process of succession. Unless and until the suit properties are recovered and brought into the common hotchpot from the possession of defendants 1 to 9 who are admittedly holding the suit properties, the plaintiffs are liable to be non suited in view of the decision reported in Sarojini Amma and Another vs. Pappi Amma and Others – 1973 KLJ 393. Unless and until the suit properties are recovered and brought into the common hotchpot from the possession of defendants 1 to 9 who are admittedly holding the suit properties, the plaintiffs are liable to be non suited in view of the decision reported in Sarojini Amma and Another vs. Pappi Amma and Others – 1973 KLJ 393. If the properties are non-streedhana properties of Valli, then all the male and female children of Valli will be entitled to a share each in which case the first plaintiff will be entitled to 1/5 share, plaintiffs 2 to 4 will be jointly entitled to 1/5 share, defendants 1 to 5 will be jointly entitled to 1/5 share, defendants 8 and 9 will be together entitled to 1/5 share and defendants 10 to 17 will be together entitled to 1/5 share. But if Apputty had predeceased Valli then has children viz. plaintiffs 2 to 4 will not get any right over the properties. In that event, the share of the parties would be ¼ for the first plaintiff, ¼ for defendants 1 to 7 together, ¼ for defendants 8 and 9 together and ¼ to defendants 1 to 7 jointly. There will be some difference in the legal requirement of the plea of adverse possession also depending on the nature of the properties. If the properties are held to be streedhana properties left behind by Valli then plaintiffs 2 to 4 and defendants 1 to 9 who are the children of the three sons of Valli are strangers to the process of succession and in that contingency defendants 1 to 9 not being co-owners along with the first plaintiff and defendants 10 to 17, need not prove ouster but need only prove adverse possession. If on the other hand, the properties are held to be non-streedhana properties, then defendants 1 to 9 will be co-owners along with the first plaintiff and defendants 10 to 17, and in that event defendants 1 to 9 will have to prove ouster in addition to adverse possession. 12. Streedhana i.e. a woman’s peculium is a property. If on the other hand, the properties are held to be non-streedhana properties, then defendants 1 to 9 will be co-owners along with the first plaintiff and defendants 10 to 17, and in that event defendants 1 to 9 will have to prove ouster in addition to adverse possession. 12. Streedhana i.e. a woman’s peculium is a property. i) given to a woman before the nuptial fire (andhyagni) ii) given at the bridal procession (adhyavahanika) iii) given in token of the love (dattam pritikarmini) and iv) that is received from a brother, mother, or father or husband at the nuptial fire or presented on her supersession (adhivedanika) and the like (adi). Vigneswara expanded the term (adi) to include the property which a woman may acquire by in heritance, purchase, partition, seizure and finding. The expansion of the definition of “Streedhana� by Vigneswara was not accepted by the Privy Council in Sheo Shankar Lal v. Debi Sahai XIII MLJ 330 and Debi Mangal Prosad Singh v. Mahadeo Prasad Singh ILR 34 Allahabad 234. However, the disapproval by the privy Council of Vigneswara’s expansion of “Streedhana� is confined to the Bengal or Dayabhaga and Banaras Schools. Vigneswara’s expanded definition of Streedhana has generally been accepted by the Madras High Court. 13. I will first consider whether the suit properties are the streedhana properties of deceased Valli. In the first place, neither the plaint nor the written statement of any of the defendants pleads that the properties acquired by deceased Valli under Ext.A1 “Panayam theeradharam� dated, 18-6-1928 constitute her streedhyana properties. Hence, this Court is not bound to consider whether the properties are streedhana properties or not. There is no evidence in this case as to the nature of funds with which Valli acquired the suit properties under Ext.A1 sale deed. Both the parties proceeded as if Ext.A1 is the self acquisition of Valli with her own funds. Even though Valli forms the stock of descent is respect of the suit properties, I do not think that the suit properties should be termed as streedhana i.e. a woman’s peculium in the strict sense of the term known to the pristine Hindu Law. The question whether a particular property is streedhana property or not will depend upon the school to which the woman concerned belongs, her status at the time of acquisition of the property and the source of such acquisition. The question whether a particular property is streedhana property or not will depend upon the school to which the woman concerned belongs, her status at the time of acquisition of the property and the source of such acquisition. In the absence of any plea or issue, much less, any evidence in this regard, to indicate that the suit properties were the streedhana properties of Valli, it must be presumed that the suit properties were non-streedhana properties of Valli and all her children living at the time of her death had equal rights over the properties which can safely be treated as family properties or parental estate. 14. The parties are admittedly members of the perumkollan (blacksmith) community. The plaint proceeds on the footing that all the five children except the 1st plaintiff (who is alive) died after the death of Valli. Going by the case of both parties, Valli died in the year 1940 or 1942 and her husband died some time in the year 1954 or so. Kunhan, Ayyappan and ammalukutty admittedly died after the coming into force of the Kerala Joint Hindu Family System Abolition Act 1975 (Act 30/1975). There is, however, a dispute between the parties as to whether Apputty, the other son of Valli, died after her death or had predeceased her. 15. According to the plaintiffs, as per the customary as well as Hindu Law applicable to the parties, all the children of Valli were equally to the plaint schedule properties. There is no dispute that both the 1st plaintiff as well as Ammalukutty who are the daughters of Valli had been given away in marriage even during the lifetime of Valli. It is admitted that being members of the Perumkollan community, the parties are Malayala Kammalas. In the absence of a proved custom in modification of the Hindu Mitakshara Law, governing blacksmiths belonging to kammalas is the Hindu Mitakshara Law. (Vide Nilakantan Nair Velayudhan Nair v. Chirutha Amma Gouwri Amma – 1953 KLT 603 and Nanu v. Nani – AIR 1957 TC 289). Even otherwise, once it is shown that the parties are Hindus, then unless it is pleaded and proved that there is a custom modifying Hindu Law, it I the rules of Hindu Law that have to be applied. (Vide Anthonyswamy v. M.R. Chinaswamy Koundan (died) by L.Rs. Even otherwise, once it is shown that the parties are Hindus, then unless it is pleaded and proved that there is a custom modifying Hindu Law, it I the rules of Hindu Law that have to be applied. (Vide Anthonyswamy v. M.R. Chinaswamy Koundan (died) by L.Rs. and Others – AIR 1970 SC 223, Narayani Amma vs. Sankara Pillai – 1960 KLT 1195 Full Bench). In Thankammal v. Madhavi Amma – 1966 KLT 181 it has been held that the Hindu Mithakshara Law as modified by custom is the customary law applicable to communities such as the Thiyas and the Ezhavas of Malabar, the Amakkathayam “Ezhavas of Cochin and Travancore, the Kammalas and the Velans etc. and that the principles of pure Hindu Mithakshara Law can be applied to such communities only on any question where there I no evidence of such customary law available. It is well settled that in the matter of custom a party has to plead in specific terms as to what the custom he is relying on and must prove the same with all its incidence of antiquity, continuity and notoriety to the required degree of proof. (See Kochan Kani Kunjuraman Kani v. Mathevan Kani Sankaran Kani – 1971 K.L.T. 458). It is also equally well established that where a custom applicable to a particular community has been judicially recognized, it can be followed as the customary law applicable to such community without the necessity of proof in a subsequent case where the very same custom arises for determination. (See Sri Raja Rao VenkataMahipati Gangadara Rama Rao Bhadur vs. Raja of Pittapur AIR 1918 P.C. 81; Valliyamma v. Velu and Others 1983 KLJ 186 and The Indian Molasses Co. (P) Ltd. v. The Commissioner of Income Tax, West Bengal – AIR 1959 S.C. 1049 and Raman v. Visalakshi – 1990 (1) KLT (SN) 4). 16. Then the further question is as to whether under the pristine Hindu Mitakshara Law, married daughters are entitled to a share in the properties. There also the settled and admitted position is that married daughters are not entitled to a share if their marriage was in Kudivaippu form after payment of Stereedhanza. The reason is obvious. A woman who is given away in marriage after payment of Streedhana is virtually transplanted from her parental home to her matrimonial home where she acquires and indefeasible hold. The reason is obvious. A woman who is given away in marriage after payment of Streedhana is virtually transplanted from her parental home to her matrimonial home where she acquires and indefeasible hold. But if the marriage was in Sambandam form, without payment of streedhana, the legal position is that even a married daughter is entitle to a share. This is presumably because such a woman is in constant peril of being forsaken by her husband who may cut her adrift at any time. She should be entitled to share in her parental estate. In Parameswaran Asari Sanku Asari v. Kochu Mathevi Lakshmi 1957 KLT, 1020 it was observed as follows:- “Among Malayala Kammalans married daughters except those married in the Kudivaippu form are entitled to shares to 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.� (Emphasis supplied). Following the said decision a Single Judge of this Court in a case arising from the erstwhile Malabar area involving Malayala Kammalans in Damodaran v. Palu – 1986 KLT 1259 observed as follows: “Among the Malayala Kammalas, 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 the husbands. That is after receiving what is due from the family of birth. 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. 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 the Kudivaippu form and they became members of the family of he husbands. That the marriage was on payment of streedhanam has to be proved by the person who so contends.� (emphasis supplied). That the marriage was on payment of streedhanam has to be proved by the person who so contends.� (emphasis supplied). Thus it is for those who contend that the marriage was in Kudivaippu form disentitling the married daughter to the rights claimed in common, to plead and prove the same. As already noticed earlier, defendants 1 to 7 did not even plead that the marriage of the two daughters of Valli was in Kudivaippu form. Defendants 8 and 9 also did not specifically plead that the marriage of the first plaintiff and Ammalukutty were in Kudivaippu form. Defendants 8 and 9, however, in their written statement had contended that both the daughters of Valli had been given away in marriage after giving them ornaments, utensils and dowry. But the said plea remains only in the realm of pleadings without any proof forthcoming from defendants 8 and 9. The 3rd defendant examined as DW1 who claimed that it was he who gave the instructions for preparing the written statement confessed that he does not know as to why it was not incorporated in the written statement that daughters are not entitled to a share. Even in his chief examination what he stated was only that as per the custom in their community married daughters are not entitled to a share. He did not say that the marriage of both the daughters of Valli was in Kudivaippu form. Even if he had come out with such a case, the same could not have been considered for want of a plea in his written statement since it is well settled that no amount of evidence can be looked into without a plea in the written statement. The 9th defendant examined as DW3 merely stated in her chief examination that the married daughters are not entitled to a share. There is not a whisper in her testimony about any dowry, ornaments or utensils having been given to the daughters of Valli at the time of their marriage or that the marriage was in Kudivaippu form. In cross-examination she confessed that she does not know as to who all have got shares over the property of a woman as per the customary law applicable to them. In cross-examination she confessed that she does not know as to who all have got shares over the property of a woman as per the customary law applicable to them. Thus, except pleading that the daughters were given in marriage after paying dowry, there is no iota of evidence adduced by defendants 8 and 9 or any of the defence witnesses to show the form in which the first plaintiff and Ammlukutty were given away in marriage, much less, that it was in Kudivaippu form disentitling them to a share in the properties. To sum up, in the absence of a plea or evidence that the marriage of the first plaintiff and Ammalukutty was in Kudivaippu form, it has to be presumed that their marriage was in Sambndham form and these two daughters of Valli have not become disentitled to their share in the suit properties. If so, both the first plaintiff and defendants 10 to 17 (who are the children of Ammalukutty) will be entitled to their legitimate share in the suit properties. Even otherwise, the principles of justice, equity and good conscience have always been recognized as an additional sources of Hindu Law in the absence of any express provision or principle of Hindu Law. (See paragraph 54 at page 62 of the 13th Edition of Mayne’s Hindu Law and Usage). In the absence of proof of any custom set up in modification of the Hindu Law, courts while considering the competing claims of sons an daughters over ancestral assets, have always learned towards gender equality to hold that such equality is the only equity to be recognized while applying the principles of justice, equity and good conscience. (Vide the decisions of the Full Bench of the cochin High Court in Kochi v. Raman – 21 Cochin 1 and Lakshmi v. Kunhikutty – 25 Cochin 584 adverted to in 1983 KLJ 186 supra and paragraph 11 in Rohini v. Sethumadhavan – 1978 KLT 470 – Full Bench) 17. What is to be considered next is the question as to whether Apputty, the son of Valli died after the death of Valli or had predeceased her? There is no dispute that if Apputty had predeceased Valli as pleaded by the contesting defendants, then plaintiffs 2 to 4 who are the children of Apputty will not be entitled to a share. There is no dispute that if Apputty had predeceased Valli as pleaded by the contesting defendants, then plaintiffs 2 to 4 who are the children of Apputty will not be entitled to a share. If on the other hand, Apputty died after the death of Valli then plaintiffs 2 to 4 will also be entitled to a share. Undoubtedly, it is for the plaintiffs who contend that Apputty died after the death of Valli, to prove the same. As per the plaint allegation Valli died in the year 1940 and Apputty died in the year 1945. According to the plea of the contesting defendants Valli died in the year 1942 where as Apputty died in the year 1938. The first plaintiff examined as PW1 is admittedly the sole surviving daughter of Valli. She was aged 80 when she was examined in 1992. She has categorically stated that at the time of the death of Valli all the five children of Valli were alive. This means that Apputty was also alive. Her evidence even in cross-examination is that Valli died fifty two years prior to her examination in Court which means Valli died in 1940. Similarly, her statement in court that Apputty died 45 years prior to her examination takes us to 1945. This means that Apputty died five years after the death of Valli. No doubt, there are some contradictions in the evidence of PW1. But it should not be forgotten that she was giving evidence at the age of 80 and some allowance has to be given to her age and state of health. DW2 who was 76 years old while giving evidence before Court, is a person who resides four compounds away from the plaint schedule properties and he knows both the plaintiffs as well as the defendants. He was examined by the defence for the specific purpose of proving that Apputtty had predeceased Valli. He claims to have seen Apputty two or three times at Madras where Apputty was allegedly employed. Even though in chief examination he stated that Apputty died five years before the death of Valli, in cross-examination this witness stated that it was in the year 1945 that he went to Madras for the first time and that he used to go to Madras every year thereafter and he had seen Apputty twice or thrice while at Madras. Even though in chief examination he stated that Apputty died five years before the death of Valli, in cross-examination this witness stated that it was in the year 1945 that he went to Madras for the first time and that he used to go to Madras every year thereafter and he had seen Apputty twice or thrice while at Madras. If this witness had gone to Madras only in 1945 and had seen Apputty two or three time thereafter the irresistible conclusion is that Apputty was very much alive and kicking even after the death of his mother Valli. There is no dispute that Valli died in the year 1940 or 1942. The court below eschewed the evidence of DW2 on the ground that he has given inconsistent versions. That is hardly ground to disbelieve a witness. The credibility of a witness when tested by cross-examination may surface in the form of contradiction. Instead of gracefully admitting the discomfiture of their own witness, the attempt of the contesting defendants has been to disclaim the inconvenient answers give by their own witness. The truth was really coming out of this mouth when DW2 confessed that he saw Apputty in Madras two or three time after his first visit to Madras in the year 1945. He even corrected the year of his first visit from 1945 to 1949 which makes the position still worse for the contesting defendants. The 9th defendant examined as DW2 did not give the year of the death of Apputty. She also stated that Apputty died four years prior to the death of Valli. But during cross examination she confessed that she had not seen either Valli or Apputty. She has not also revealed the source of her information about the death of Valli of Apputty. The 3rd defendant examined as DW1 also had to confess during his cross-examination that he does not remember the date of death of Apputty and that his statement in the written statement that Apputty died in the year 1938 was as told by his father. DW1 was aged only 46 years in the year 1992, when he was examined as a witness. DWs 1 and 2 who are far elder to him have kept themselves out of the witness box. DW1 was aged only 46 years in the year 1992, when he was examined as a witness. DWs 1 and 2 who are far elder to him have kept themselves out of the witness box. In the face of this evidence, I see no reason to disbelieve PW1 who is the sole surviving daughter of Valli and also DW2 who is an unrelated and disinterested witness, to hold that Apputty died long after the death of his mother Valli. If so, plaintiffs 2 to 4 are also entitled to their legitimate share in the property of Valli through their father Apputty. 18. What now survives for consideration is the plea of adverse possession and ouster. In the light of the findings already entered above, the suit properties left behind by Valli had devolved equally on all her five children. In other words, both the plaintiffs and defendants are co-owners in respect of suit properties. In view of this position, defendants 1 to 9 can succeed in non-suiting the plaintiffs and defendants 10 to 17 only if they establish that the rights of the plaintiffs and defendants 10 to 17 are lost by ouster in addition to adverse possession. 19. The concept of adverse possession has been Pitahily stated in a recent decision of the apex court in Amarendra Pratap Singh vs. Thej Bahadure Prajapati and Others – 2004 SAR (Civil) 9 as follows:- “What is adverse possession? Every possession is not, in law, adverse possession. Under Article 65 of the Limitation Act, 1963, a suit for possession of immovable property or any interest therein based on title can be instituted within a period of 12 years calculated from the date when the possession of the defendant becomes adverse to the plaintiff. By virtue of Sec.27 of the Limitation Act, at the determination of the period limited by the Act to any person for instituting a suit for possession of an property, his right to such property stands extinguished. The process of acquisition of title by adverse possession springs into action essentially by default or inaction of the owner. By virtue of Sec.27 of the Limitation Act, at the determination of the period limited by the Act to any person for instituting a suit for possession of an property, his right to such property stands extinguished. The process of acquisition of title by adverse possession springs into action essentially by default or inaction of the owner. A person, though having no right to enter into possession of the property of someone else, does so and continues in possession setting up title in himself and adversely to the title of the owner, commences prescribing title into himself and such prescription having continued for a period of 12 years, he acquires title not on his own but on account of the default or inaction on part of the real owner which stretched over a period of 12 years results into extinguishing of the latter’s title. It is that extinguished title of the real owner which comes to vest in the wrongdoer. The law does not intend to confer any premium on the wrong doing of a person in wrongful possession; it pronounces the penalty of extinction of title on the person who though entitled to assert his right and remove the wrong doer and re-enter into possession, has defaulted and remained inactive for a period of 12 years, which the law considers reasonable for attracting the said penalty. Inaction for a period of 12 years is treated by the Doctrine of Adverse Possession as evidence of the loss of desire on the part of the rightful owner to assert his ownership and reclaim possession. 21. The nature of the property, the nature of title vesting in the rightful owner, the kind of possession which the adverse possessor is exercising, are all relevant factors which enter into consideration for attracting the applicability of the Doctrine of Adverse Possession. The right in the property ought to be one which is alienable and is capable of being acquired by the competitor. Adverse possession operates on an alienable right. The right stands alienated by operation of law, for it was capable of being alienated voluntarily and is sought to be recognized by doctrine of adverse possession as having been alienated involuntarily, by default and inaction on the part of the rightful claimant, who knows actually or constructively of the wrongful acts of the competitor and yet sits idle. The right stands alienated by operation of law, for it was capable of being alienated voluntarily and is sought to be recognized by doctrine of adverse possession as having been alienated involuntarily, by default and inaction on the part of the rightful claimant, who knows actually or constructively of the wrongful acts of the competitor and yet sits idle. Such inaction or default in taking care of one’s own rights over property is also capable of being called a manner of ‘dealing’ with one’s property which results in extinguishing one’s title in property and vesting the same in the wrong doer in possession of property and thus amounts to ‘transfer of immovable property’ in the wider sense assignable in the context of social welfare legislation enacted with the object of protecting a weaker section.� (underlining is mine). Thus, unlike in the case of other rights where the remedy by way of recourse through court alone is taken away and not the rights as such, by the provisions of the Limitation Act which is a statute of repose, adverse possession is a rare species where not merely the remedy but even the right i.e., title, is extinguished. Therefore, courts are more cautious in allowing the title of the true owner to be lost by the acts of a wrongdoer, unless the rigid rules of nec vi, nec clam and nec precario (peaceful, open and continuous possession adverse to the true owner) are clearly held to have been established. The position of a co-owner or a co-sharer is on a still higher pedestal. In law, the possession of one co-owner is presumed to be on behalf of the other co-owners. Because of this presumption, if a co-owner in possession is to extinguish the rights of a co-owner not in possession, the law insists on the overt act of houster besides the requirement of adverse possession. Hence it is not enough to establish to the co-owner has been in exclusive possession and enjoyment of the properties. It should also be established that the co-owner has been openly repudiating or denying the title of the non-possessing co-owner and to his knowledge. (See P. Lakshmi Reddy v. L. Lekshmi AIR 1957(1) Kerala 391). Unlike in the case of adverse possession, ouster has to be to the knowledge of the other co-owners whose rights are sought to be extinguished. It should also be established that the co-owner has been openly repudiating or denying the title of the non-possessing co-owner and to his knowledge. (See P. Lakshmi Reddy v. L. Lekshmi AIR 1957(1) Kerala 391). Unlike in the case of adverse possession, ouster has to be to the knowledge of the other co-owners whose rights are sought to be extinguished. (Vide Deva v. Sajjan Kumar – 2003 (7) SCC 481, Naziruddin v. Hajirambee – 2004 (1) KLT 896 and Kunji Parvathi Amma v. Mariyamma – 2004 (3) K.L.T. SN. Page 11). The law of adverse possession between co-owners is more rigorous than in the case of others because one co-owner is rather in the position of a fiduciary capacity akin to that of a trustee vis-à -vis. The other co-owners are concerned. Complete possession of the co-ownership property by a co-owner to the exclusion of other co-owners or absence of sharing of rents and profits with the other co-owners even for a long period may not by themselves be sufficient to establish ouster. This is because until a partition of the co-ownership property is effected, a co-owner in possession will be deemed in law to be in possession for and on behalf of the other co-owners also. Hence the co-owner in possession cannot render his possession adverse to the co-owners not in possession merely on the strength of any secret, hostile animus on his part in derogation to the joint title of the other co-owners (See Karattil Ammed Koya v. Karattil Ayammad 1990 (2) KLJ 802 & Shambhu Prasad v. Phool Kumari – AIR 1971 SC 1337 – Para 17). Mere non-participation of income by itself, in the absence of any other circumstance, will not be sufficient to imply ouster Kunhunni v. Kesavan Namboodiri 1990 (2) KLT 854). Possession by a co-owner howsoever long it may be, does not constitute adverse possession unless and until such possession is hostile, continuous, uninterrupted and in open denial of the rights of the other co-owners for more than the statutory period. 20. Ext.B1 partition between the two sons of Valli namely, Kunhan and Ayyappan and the subsequent litigation between the two brothers or their decedents without either the plaintiff or defendants 10 to 17 being parties to the same, do not constitute ouster. 20. Ext.B1 partition between the two sons of Valli namely, Kunhan and Ayyappan and the subsequent litigation between the two brothers or their decedents without either the plaintiff or defendants 10 to 17 being parties to the same, do not constitute ouster. It has been held that even transfer of common property by one of the co-owners in assertion of exclusive right in himself followed by possession to transferee for more than 12 years without the knowledge or ouster of the other co-owners cannot operate as a bar against the rights of the other co-owners. Likewise, merely by reason of the registration of a document, knowledge, merely by reason of the registration of a document, knowledge of the transaction or the recitals therein cannot be imputed to the other co-owners so as to set the limitation running against them. (See Ramachandran Nair and others v. Gouri Pillai and Others 1975 KLT 269). In the present case, it cannot be forgotten that the parties were not even aware about the nature of their rights over the properties left behind by Valli. It is in evidence that after the death of Valli, her husband was residing in the same house in the suit properties along with the children and DW3 would say that the husband of Valli died only in 1129 M.E. corresponding to the year 1954. If so, the residence of the husband along with the children of Valli in the suit properties acquired by Valli under Ext.A1 was not traceable to any right under the personal law but only as relatives of Valli. The parties and even their counsels were not sure whether the properties were streedhana properties or non-streedhana properties. What is pleaded in paragraph 6 of the written statement of defendants 1 to 7 is that Ayyappan and Kunhan were under the bona fide belief that they alone were entitled to the property. So, if their belief was not true then there was no animus possidendi. Except stating that they are in continuous possession, the 3rd defendant examined as DW1 did not even whisper about a hostile animus exercised by any of the contesting defendants or the starting point of any such hostile animus. Defendants 1 to 9 are not strangers but persons claiming under the very same common ancestress under which the plaintiffs and defendants 10 to 17 also claim. Defendants 1 to 9 are not strangers but persons claiming under the very same common ancestress under which the plaintiffs and defendants 10 to 17 also claim. All these factors cannot be forgotten while appreciating the plea of adverse possession raised by defendants 1 to 9 and the animus possidendi, if any, which all or any of them had entertained. When to start with, their possession of the properties was lawful, it is not known as to when the same become unlawful, particularly when they were gropping in the dark regarding the nature of rights which they had over the properties. If the properties were to be held as streedhana properties of Valli, then all her descendants other than the first plaintiff and Ammalukkuty (mother of defendants 10 to 17) would have no right over the properties but still they were holding the properties presumable with no intention to oust their own kith and kin. Their continuance after the death of Valli would become hostile only if plaintiffs were at any time asked to vacate from the properties. There is no proof forthcoming in that direction. Under these circumstances, I do not agree with the court below that merely because Kunhan and Ayyappan and defendants 1 to 9 were in possession of the properties without any concealment, it would amount to ouster of the other co-owners. In reversal of the said finding it is held that the rights of the plaintiffs and defendants 10 to 17 are not lost by adverse possession or ouster. 21. The result of the forgoing discussion is that the judgment and decree under appeal cannot be sustained and are accordingly set aside. A preliminary decree is accordingly passed directing the division of the plaint schedule properties by meets and bounds and allotting 1/5 share therein to the first plaintiff, 1/5 share to plaintiffs 2 to 4 jointly. Any of the other sharers can apply for separation and allotment of their share on payment of the requisite court fees. The suit will stand adjourned sine die. The equities and reservation claimed are disallowed for want of any acceptable evidence in support of the same. Any of the sharers may apply for the passing of a final decree. The plaintiffs shall be entitled to mesne profits the quantum of which shall be determined in the final decree proceedings. The suit will stand adjourned sine die. The equities and reservation claimed are disallowed for want of any acceptable evidence in support of the same. Any of the sharers may apply for the passing of a final decree. The plaintiffs shall be entitled to mesne profits the quantum of which shall be determined in the final decree proceedings. Such mesne profits shall be payable by defendants 1 to 9 from the date of suit till delivery. The plaintiffs shall also be entitled to their costs in this appeal which shall come out of the estate. The appeal is allowed as above.