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2011 DIGILAW 278 (KER)

Lathika Karthikeyan v. G. S. Leela

2011-03-14

S.S.SATHEESACHANDRAN

body2011
Judgment : These three appeals arise from the common judgment rendered by the learned District Judge, Thrissur in two appeals, A.S.Nos.415 and 502 of 1999, which in turn arise from the judgment and decree rendered by the Learned Principal Munsiff, Thrissur in O.S.No.471 of 1984, a suit for partition. 2. The appeal, R.S.A.No.415 of 2003 is filed by defendants 9 to 11 in the suit, who are the widow and children of the 1st defendant, who had passed away pending the suit. The other two appeals, R.S.A.Nos.517 and 588 of 2003, both of them are filed by defendants 2, 3, 4, 7 and 8 in the suit jointly. They have filed the above appeals separately as against the common judgment rendered by the lower appellate court in A.S.Nos.415 and 502 of 1999. One second appeal alone would have been sufficient as the two first appeals arose from the decision rendered in a single suit, but, these appellants have chosen to file two separate appeals. 3. Plaintiff and defendants 1 to 8, who alone were present in the party array when the suit was laid, are the children of one Sankunni Vaidiar, and they belong to Hindu Perumannan Community. Sankunni Vaidiar, their father, died on 16.3.1954, and their mother, Kunhikutty passed away on 19.5.1982. Suit properties originally belonged to the father of Sankunni Vaidiar, namely, Kuttan Vaidiar. Kuttan Vaidiar had executed a Will, by which, the properties were bequeathed in favour of his two sons, Sankunni Vaidiar and Govindhan Vaidiar. After the death of Sankunni Vaidiar, according to the plaintiff, whatever rights he had over the property devolved upon his wife and children. Kunhikutty, the mother of the parties having passed away, it was alleged, her right over the properties also devolved equally upon the children, the parties to the suit. Setting forth a case that there was a partition of the properties as between the legal heirs of Sankunni Vaidiar and Govindhan Vaidiar, his brother, and the property described in the suit had been set apart towards the share of the wife and children of Sankunni Vaidiar, and claiming to be in joint possession of such properties with the other co-owners, the plaintiff sought for division of her 1/9th share and separate possession in the suit. 4. 4. The defendants 1 to 4 and 6 to 8 filed a joint written statement, in which, denying the allegations imputed to claim partition, they disputed the right of the plaintiff to seek division of the suit properties. According to these defendants, after the death of Sankunni Vaidiar, their father, the properties, which were bequeathed to Sankunni Vaidiar and Govindhan Vaidiar by late Kuttan Vaidiar, were divided under a partition deed (Ext.B1) dated 17.7.1954. Under that partition deed, the 1st defendant, the only son of Sankunni Vaidiar obtained the entire property, which was due as the share of his father. Kunhikutty, the wife of Sankunni Vaidiar, and the mother of the parties to the suit, never inherited any property, was their case. She had only a right to reside in the building situated in one of the items of the properties as per the terms of the partition deed. She had represented the 1st defendant, who then was a minor, when the deed was executed with Govindhan Vaidiar, the brother of Sankunni Vaidiar. Plaintiff was educated and her marriage was conducted with the income derived from the properties and she has no right or possession over such properties, and Kunhikutty also had no right, which was capable of devolving upon her children by way of inheritance, according to these defendants. Alternatively, it was also contended that the right of the plaintiff, if any, over the suit properties has been lost by ouster and adverse possession of the 1st defendant, who all along continued to be in possession asserting his claim as owner of the properties. 5. The defendants 9 to 11 in the suit adopted the contentions raised by the above defendants, and the 5th defendant after appearance, did not file any statement. 6. The evidence, at the initial stage, consisted of PWs.1 to 3 and Ext.A1 to A5 series for the plaintiff and DWs.1 to 3 and Exts.B1 to B3 for the defendants. The learned Munsiff, on the materials placed, concluding that the plaintiff has not established any right over the suit property, dismissed the suit negativing the claim for partition. Plaintiff referred an appeal as A.S.No.10 of 1992 challenging the decree of dismissal of the suit. The learned Munsiff, on the materials placed, concluding that the plaintiff has not established any right over the suit property, dismissed the suit negativing the claim for partition. Plaintiff referred an appeal as A.S.No.10 of 1992 challenging the decree of dismissal of the suit. Setting aside the dismissal of the suit and allowing the appeal, the case was remitted to the trial court with directions to consider whether Kunhikutty, the widow of Sankunni Vaidiar and mother of the parties to the suit, whose right to maintenance was held as recognized under Ext.B1 partition deed, got any vested right over the suit properties on the coming into force of Section 14(1) of the Hindu Succession Act, for short the ‘Act’, and also with reference to Section 3 of the Hindu Women’s (Right to Property) Act. The appellants in the present appeal, R.S.A.No.415 of 2003, who are the widow and children of the 1st defendant in the suit, challenged the remand order filing an appeal as C.M.A.No.224 of 1998 before this Court. That appeal was disposed confirming the remand order, but with the direction to the trial court to dispose the suit untrammeled by the observations made in the remand order passed by the learned District judge. After remand, no oral evidence was tendered by the plaintiff, and Ext.A6 series, revenue receipts evidencing payment of charges over the properties, alone were exhibited. The contesting defendants examined two more witnesses as DWs.4 and 5. The learned Munsiff, after examining the materials produced in the case, holding that the plaintiff has failed to establish that the suit properties are available for partition, dismissed the suit. As against the decree of dismissal rendered the second time, two appeals were preferred, A.S.No.415 of 1999 by the plaintiff and the other A.S.No.502 of 1999 by the 5th defendant. The learned District Judge, after re-appreciating the materials, reversed the dismissal of the suit and passed a preliminary decree for partition declaring that the plaint items are available for partition among plaintiff and defendants 1 and 5. A further declaration was also made that plaintiff and 5th defendant are entitled to 1/9th share each and rest of the property to be left as the undivided share of the 1st defendant. A further declaration was also made that plaintiff and 5th defendant are entitled to 1/9th share each and rest of the property to be left as the undivided share of the 1st defendant. The lower appellate court has granted a decree to the plaintiff, as indicated above, forming a conclusion that Kunhikutty, the widow of Sankunni Vaidiar and mother of the parties to whom the right of maintenance was reserved under Ext.B1 partition deed, on the commencement of Section 14(1) of the Act, got a vested right of ownership over such properties. As against the decision so rendered by the learned District judge, these three appeals have been preferred, one by the legal heirs of the deceased 1st defendant, and the other two by some other defendants, as already indicated. 7. Substantial questions of law raised in R.S.A.No.415 of 2003, the appeal preferred by the widow and children of the contesting 1st defendant in the suit are thus: (i) Sankunni Vaidiar having died on 16.3.1954 before the commencement of the Hindu Succession Act, did not the property of Sankunni Vaidiar inherited by him from his father Kuttan Vaidiar vest in his only son absolutely even before the commencement of the Hindu Succession Act? .(ii) Has not the lower appellate court gone wrong in thinking that Section 14 of the Hindu Succession Act would apply to the instant case in the absence of any pre-existing right the maintenance over any specific item of property having been created by the partition deed of 1954? (iii) Did not the lower appellate court go wrong in the excluding item Nos.7 to 10 of the plaint schedule properties since those properties were not included in the partition deed of 1954 on the basis of which the right of maintenance of the plaintiff’s mother has now been found? 8. (iii) Did not the lower appellate court go wrong in the excluding item Nos.7 to 10 of the plaint schedule properties since those properties were not included in the partition deed of 1954 on the basis of which the right of maintenance of the plaintiff’s mother has now been found? 8. In the other two appeals, both of them preferred by defendants 2, 3, 4, 7 and 8 jointly, the substantial questions of law formulated relate to the non-providing of separate shares to those defendants as well where the claim of the plaintiff, and that of the 5th defendant, who did not contest, was recognized declaring their right to have 1/9th share each in the suit properties by the lower appellate court, which held that the right of maintenance reserved to Kunhikutty, the mother, in the suit properties had blossomed into her full ownership rights on the commencement of Section 14(1) of the Act. Where the claim of the plaintiff and 5th defendant, two daughters of Kunhikutty, has been upheld on the above conclusion drawn by the lower appellate court, the right of the other daughters, the common appellants in these appeals (defendants 2, 3, 4, 7 and 8) to have 1/9th share each in the suit properties should have been upheld, in short, is the challenge in these two appeals, for modification of the decree with such declaration and allotment of share in the properties. 9. I heard the counsel on both sides. At the outset, the entertainability of the two appeals preferred by defendants 2, 3, 4, 7 and 8 (R.S.A.Nos.517 and 588 of 2003) has to be considered at the threshold. These defendants (defendants 2, 3, 4, 7 and 8) along with the 1st and 6th defendants had filed a joint written statement resisting the suit claim for partition contending that, by inheritance, the properties of Sankunni Vaidiar, their father, devolved only upon his only son, the 1st defendant, and their mother Kunhikutty never inherited any right over such property as a legal heir of her husband. They have preferred these appeals, presumably for the reason that the claim of the plaintiff, and, even without a claim canvassed, the right of the 5th defendant, who did not file a written statement in the suit nor challenge the decree of dismissal passed in the suit by way of an appeal, had been upheld by the lower appellate court declaring their 1/9th right over the suit properties, as per the judgment rendered by that court in the appeals. These appellants cannot, at this stage, turn around and set up a case conflicting with the case presented by them in the suit. Resisting the claim of the plaintiff they have contended in unequivocal terms that they or their mother Kunhikutty have not obtained any right over the properties of Sankunni Vaidiar by inheritance, and it devolved entirely upon the 1st defendant, and that he is the absolute owner of such properties. Even assuming that the claim of partition of the suit properties of the plaintiff and the 5th defendant as upheld by the lower appellate court, is found sustainable, then also it would not assist these defendants in setting forth a claim over the suit properties when they have asserted that the 1st defendant is the sole owner of the suit properties and none other including themselves has got any right over the same by way of inheritance or otherwise. They cannot approbate and reprobate setting forth a claim militating and repugnant to the case pleaded in the written statement jointly filed with the 1st defendant for the sole reason that the claim of some others, the plaintiff and the 5th defendant for partition to the suit properties had been upheld by the lower appellate court reversing the decree of dismissal of the suit. In the context, it is also to be taken note of the suit for partition filed in 1984, after trial, was dismissed at the first instance on 20.8.1990. Challenge against the dismissal holding that the suit property is not partible, was raised only by the plaintiff and not by any of these appellants irrespective of the question whether they could have raised any such appeal in view of the joint written statement filed by them with the 1st defendant in the suit, conceding that they have no right over the property and the suit properties are not partible. The aforesaid dismissal by the trial court was reversed in A.S.No.10 of 1992 and the case was remitted by judgment dated 17.6.1997. That remand order challenged as C.M.A.No.224 of 1998 by the legal heirs of the 1st defendant, was disposed by this Court upholding the remand of the case, by judgment dated 18.3.1999. After such remission, the trial court dismissed the suit by judgment dated 20.7.1999. As against that dismissal, the plaintiff and the 5th defendant preferred appeals before the lower appellate court giving rise to the common judgment dated 10.10.2002, impugned in these appeals. At no stage of the case, the appellants (defendants 2, 3, 4, 7 and 8 in the suit) in the two appeals, A.S.Nos.517 and 588 of 2003 have raised any claim for partition, and even now the pleadings, as borne out by the joint written statement filed by them with the 1st defendant continue as such, contradictory to the case canvassed in their appeals. Even assuming they had any partible rights over the suit properties, which was not their case, not only they have abandoned it long ago, but, have asserted and declared that they do not have any right whatsoever, and, the 1st defendant, their brother alone, is the absolute owner with none others having any right over the property. So much so, it is only to be stated that the appeals preferred by these defendants (defendants, 2, 3, 4, 7 and 8) are not at all entertainable, and liable to be dismissed. 10. For the sake of convenience, the parties are hereinafter referred to as they were ranked before the trial court, to consider the merits of the challenge raised in R.S.A.No.415 of 2003 impeaching the correctness of the decree passed by the lower appellate court declaring 1/9th share in the suit properties in favour of the plaintiff and 5th defendant and directing partition and separate possession of such share in the final decree proceedings, reversing the decree of dismissal rendered by the trial court. Before examining the challenges, I may take note of the submissions made by the learned senior counsel for the plaintiff, who fairly conceded that in respect of item Nos.6 to 10 scheduled in the plaint, which are not covered by Ext.A1, no partible right was substantiated by any documentary material or worth mentioning evidence. Before examining the challenges, I may take note of the submissions made by the learned senior counsel for the plaintiff, who fairly conceded that in respect of item Nos.6 to 10 scheduled in the plaint, which are not covered by Ext.A1, no partible right was substantiated by any documentary material or worth mentioning evidence. Declaration of partition granted with respect to item Nos.6 to 10 as under the decree passed by the lower appellate court, it is submitted, may not be sustainable. The learned counsel for the plaintiff also submitted that the claim of the plaintiff for partition in the suit is by way of inheritance as one among the legal heirs of Kunhikutty, her mother, on the footing that the right of maintenance reserved to the aforesaid Kunhikutty in the properties allotted under Ext.A1 deed had blossomed into full ownership right by virtue of Section 14(1) of the Act. Kunhikutty could claim only equal right with the 1st defendant, her son. Kunhikutty and 1st defendant were the second and third parties in Ext.A1 deed, each of them obtained one half right in the properties allotted as the share of their predecessor, Sankunni Vaidiar. On the allotment and division so made only the share of Kunhikutty would devolve upon her legal heirs, the plaintiff and defendants in the suit. A division on such basis over the properties left behind by Kunhikutty being given effect it would confer only 1/18th share each to the plaintiff and the 5th defendant, who have been granted a decree of partition by the lower appellate court, and not 1/9th share in the properties scheduled, as decreed by that court, and it has to be confined to Item Nos.1 to 5 alone. To the extent indicated as above, the decree impugned may require modification is fairly conceded to by the learned senior counsel for the plaintiff. 11. The above concessions made by the learned senior counsel may arise for consideration, if only the decree granted by the lower appellate court holding that the plaintiff and the 5th defendant have partible right, which is impeached in the appeal, is found sustainable, and not otherwise. 11. The above concessions made by the learned senior counsel may arise for consideration, if only the decree granted by the lower appellate court holding that the plaintiff and the 5th defendant have partible right, which is impeached in the appeal, is found sustainable, and not otherwise. The learned counsel for the defendants 9 to 11 (appellants) referring to the allegations in the plaint, more particularly, paragraph 4, contended that the plaintiff had no case that Kunhikutty, the widow of Sankunni Vaidiar and the mother of the parties had obtained any benefit under Section 14 of the Act as if her right to maintenance over the properties of Sankunni Vaidiar was set apart as a separate claim in any of the properties divided under Ext.A1 deed. Specific case put up by the plaintiff to claim partition of 1/9th share in the suit properties was that after the death of Sankunni Vaidiar, a partition was effected between Govindan Vaidiar, brother of Sankunni Vaidiar, and the widow and children of the aforesaid Sankunni Vaidiar, and the widow and children of the aforesaid Sankunni Vaidiar, by which, she is entitled to separate share as claimed. She is in joint possession and enjoyment of the properties with the other sharers after the division of the properties under Ext.A1 deed, was her case. Ext.A1 would clearly demonstrate that no share was allotted to the widow or any children of Sankunni Vaidiar other than the 1st defendant, his only son, and the materials on record also establish unerringly that ever since attaining majority, the 1st defendant continued to be the full owner of the properties, according to the counsel. The lower appellate court, it is submitted, went wrong in determining the claim of partition canvassed by the plaintiff as if the right of maintenance reserved to Kunhikutty, the mother of the parties had blossomed into a full right under Section 14(1) of the Act, and, thus, she had become a co-owner along with the 1st defendant in the properties allotted under Ext.A1 towards the share of Sankunni Vaidiar in the family properties. Such an exercise taken by the court below was uncalled for as no such case was pleaded, nor could it be canvassed for, according to the counsel, on the terms covered by Ext.A1 deed. Such an exercise taken by the court below was uncalled for as no such case was pleaded, nor could it be canvassed for, according to the counsel, on the terms covered by Ext.A1 deed. The allotment to the 1st defendant under Ext.A1 recognizing him as a sole legal heir of Sankunni Vaidiar, but, with the reservation that his mother Kunhikutty has a claim of maintenance from the income from such properties would not invite, or be amenable to, the provisions covered by Section 14 of the Act, as no property was allotted to her towards her claim of maintenance under the deed, is the submission of the counsel contending that the decree of dismissal rendered by the trial court was just and proper and it has to be restored annulling the decree of the lower appellate court. 12. The learned counsel for the plaintiff adverting to Ext.A1 partition deed, contended that when partition was effected over the estate left behind by Kuttan Vaidiar as between Govindan Vaidiar and the successors of his brother Sankunni Vaidiar, Kunhikutty, his widow and the 1st defendant minor son, the right of maintenance in the property due to Sankunni Vaidiar available to Kunhikutty, his widow, was reserved in the property earmarked and assigned to her minor son. By virtue of Section 14(1) of the Act, the right of maintenance so preserved, on the advent of that Act, had blossomed into her full right, and all the legal heirs of Kunhikutty are entitled to inherit such right, which had vested with Kunhikutty, on her demise. Relying on a number of authorities rendered by this Court and also the Apex Court, namely, Saraswathi Ammal v. Anantha Shenai and others (AIR 1966 Kerala 66), Vaddeboyina Tulasamma v. Vaddeboyina Sesha Reddi (AIR 1977 SC 1944), Bai Vajia (dead) by Lrs. v. Thakorbhai Chelabhai and Others (AIR 1979 SC 993), Vankamamidi Venkata Subba Rao v. Chatlapalli Seetharamaratna Ranga-nayakamma (AIR 1997 SC 3082), Sadhu Singh v. Gurdwara Sahib Narike and others (2006 (8) SCC 75), Sharad Subramanyan v. Soumi Mazumdar and Others (2006 (8) SCC 91), Chandrika Singh (dead) by Lrs. v. Thakorbhai Chelabhai and Others (AIR 1979 SC 993), Vankamamidi Venkata Subba Rao v. Chatlapalli Seetharamaratna Ranga-nayakamma (AIR 1997 SC 3082), Sadhu Singh v. Gurdwara Sahib Narike and others (2006 (8) SCC 75), Sharad Subramanyan v. Soumi Mazumdar and Others (2006 (8) SCC 91), Chandrika Singh (dead) by Lrs. and another v. Sarjug Singh and another (2006 (12) SCC 49), Santosh and others v. Saraswathibai and another (2008 (1) SCC 465) and Subhan Rao and others v. Parvathi Bai and others (2010 (6) Supreme 505), the learned counsel contended that the conclusion formed by the lower appellate court that the right of maintenance of Kunhikutty, which was reserved under Ext.A1 deed in the properties assigned to the 1st defendant after the commencement under Section 14 of the Act, had become an absolute right, and as such, the plaintiff and other legal heirs of Kunhikutty are entitled to division of the property in terms of the shares due to them, according to the counsel, does not at all warrant any interference, but deserve only to be confirmed. 13. In the given facts of the case, the disputed questions involved deserve to be appreciated with reference to the pleadings of the parties and the reliefs canvassed in the suit having due regard to the contents of Ext.A1 partition deed, which is, now, the basis of the claim to seek partition and allotment of the suit properties. Before having a look at the contents of Ext.A1 partition deed, the case of the plaintiff as pleaded in the plaint for the relief of partition canvassed, necessarily, has to be taken note of as rightly contended by the learned counsel for the appellants. The only case on which partition was claimed as could be seen from the allegations raised in the plaint, is that on the death of Sankunni Vaidiar, his properties devolved upon his wife and children. Sankunni Vaidiar died on 16.3.1954 and his wife Kunhikutty on 19.5.1982. On the death of Kunhikutty, whatever rights she had, devolved equally upon her children. Stating as above, in paragraph 4 of the plaint it is alleged that there was a division of the properties left behind by Kuttan Vaidiar by Sankunni Vaidiar and Govindan Vaidiar, his two sons, and the suit properties had been set apart to the share of the wife and children of Sankunni Vaidiar. Stating as above, in paragraph 4 of the plaint it is alleged that there was a division of the properties left behind by Kuttan Vaidiar by Sankunni Vaidiar and Govindan Vaidiar, his two sons, and the suit properties had been set apart to the share of the wife and children of Sankunni Vaidiar. Apparently, the allegation set up in paragraph 4 of the plaint, which remains as such even now was a misstatement since the division took place after the death of Sankunni Vaidiar. Evidently, the plaintiff meant that after the death of Sankunni Vaidiar, a division was effected over the properties of Kuttan Vaidiar, his father, and the suit properties were allotted to Kunhikutty, the widow, and the children of Sankunni Vaidiar. Whatever that be, the most pertinent aspect to be taken note of on the allegations raised in the plaint is that there was no claim for partition setting up a case that the right of maintenance available to Kunhikutty, the widow of Sankunni Vaidiar, had been reserved when division was effected over the properties of Kuttan Vaidiar, after the death of her husband Sankunni Vaidiar, and by virtue of Section 14(1) of the Act, her right of maintenance so reserved, after the commencement of the above Act, had blossomed into a full right, and, thus, the plaintiff and other children of Kunhikutty obtained right and title over the suit properties on the death of Kunhikutty. That was not the case that was pleaded in the plaint, but only that in the division effected over the properties left behind by Kuttan Vaidiar, after the death of Sankunni Vaidiar, his wife and children were allotted the suit properties as their share, and that alone. It is also interesting to note Ext.A1 partition deed, on the basis of which the claim for partition was later developed as if the right of maintenance of Kunhikutty reserved under that deed had blossomed into a full right after coming into force of the Act, was not even produced when the suit was instituted. A handwritten copy of the testament executed by late Kuttan Vaidiar with copy of a notice issued by the plaintiff and reply notice received from the 1st defendant was alone produced with the plaint when the suit was laid before the court. A handwritten copy of the testament executed by late Kuttan Vaidiar with copy of a notice issued by the plaintiff and reply notice received from the 1st defendant was alone produced with the plaint when the suit was laid before the court. However, when the claim for partition was resisted by the predecessor of the appellants (1st defendant) with some among the other defendants, all of them filing a joint written statement contending that after the death of Sankunni Vaidiar, a division of the estate of Kuttan Vaidiar was effected under Ext.A1 partition deed and the rights of Sankunni Vaidiar entirely devolved upon the 1st defendant, and, he, being a minor, was represented in that deed by his mother Kunhikutty, it is seen, the claim for partition was modulated as if the right of maintenance reserved under that deed in favour of Kunhikutty had matured into a full right by virtue of the provision under sub section (1) of Section 14 of the Act, and, thus, all her children, on her death, are entitled to have shares in the suit properties. It is interesting to note, after perusal of the records, such a case was developed for the first time when the decree of dismissal of the suit at the first instance, was challenged by the plaintiff before the District Court. Without even taking notice of the pleadings of the parties that no such case was set up in the plaint, but a contradictory and conflicting case that there was an allotment under the division effected over the estate left behind by Kuttan Vaidiar, after the death of Sankunni Vaidiar, in favour of Kunhikutty and her children, the new case canvassed in appeal, as indicated above, was found appealing to the first appellate court at that stage, which resulted in reversal of the decree of dismissal and remission of the case for fresh disposal. While passing such remand order, the first appellate court had made some observations with reference to Ext.A1 partition deed holding that Kunhikutty had obtained some vested right over the properties by virtue of the applicability of the Section 14(1) of the Act. While passing such remand order, the first appellate court had made some observations with reference to Ext.A1 partition deed holding that Kunhikutty had obtained some vested right over the properties by virtue of the applicability of the Section 14(1) of the Act. In the appeal preferred against that remand order, C.M.A.No.224 of 1998, while confirming the remand, this Court had directed the trial court to dispose the suit untrammeled by any of the observations in such order after giving opportunity to both parties to lead further evidence. The trial court thereafter recording further evidence rendering a decree of dismissal non-suited the plaintiff. In the appeal preferred against such decree, the lower appellate court again drawing a conclusion that a right of maintenance reserved in favour of Kunhikutty under Ext.A1 partition deed had blossomed into a full right under Section 14(1) of the Act reversed the dismissal of the suit and passed a preliminary decree declaring that the plaint properties are partible among the plaintiff and defendants, and ordering division among them as indicated. The lower appellate court has not looked into the pleadings of the parties, whatever be the evidence let in the case, when it had unsettled the decree of dismissal to pass a decree as aforesaid. When the plaintiff has not set up any case in the plaint that the suit properties had been possessed by Kunhikutty in her own right in lieu of maintenance from the estate of her husband, and, after the advent of the Act, her right to maintenance enlarged into full ownership right over such properties, the finding entered by the lower appellate court, holding so, was clearly impermissible. The Apex court in Gulabrao Balwantrao Shinde and Others v. Chhabubai Balwantrao Shinde and Others (2003 (1) SCC 212), in which also a claim raised under Section 14(1) of the Act was considered, has held a finding on an issue as to the properties being given in lieu of maintenance and later it getting enlarged into full ownership right cannot be recorded in the absence of pleadings and evidence to sustain such a case. Whatever be the amount of evidence let in or the persuasive arguments advanced, if the essential foundation is not made out in the pleadings to bolster and sustain a claim under Section 14(1) of the Act, the court will not be justified in entering a finding on that issue. Whatever be the amount of evidence let in or the persuasive arguments advanced, if the essential foundation is not made out in the pleadings to bolster and sustain a claim under Section 14(1) of the Act, the court will not be justified in entering a finding on that issue. The lower appellate court clearly fell in error in entering a finding that the right of maintenance reserved to Kunhikutty in Ext.A1 partition deed had blossomed into a full absolute right on the coming into force of Section 14(1) of the Act. 14. On merits also, going through Ext.A1 partition deed, I find the conclusion drawn by the lower appellate court that Kunhikutty had obtained absolute right over the suit properties by virtue of the operation of Section 4(1) of the Act is patently erroneous. Ext.A1 partition deed was entered into, after the death of Sankunni Vaidiar, by his brother Govindan Vaidiar, Kunhikutty and Karthikeyan (1st defendant). Kunhikutty, as already stated, was the widow and Karthikeyan, only son of Sankunni Vaidiar. Karthikeyan, who was aged four years, then, a minor was represented by his mother Kunhikutty in that deed. Subject matter of the partition was the properties left behind by Kuttan Vaidiar, the father of Sankunni Vaidiar and Govindan Vaidiar, which were covered by his registered testament. Custom following in the community of the parties, who belonged to Hindu Perumannan Community governed by Hindu Mithakshara Law modified by custom in the matter of inheritance, that family children married away are not entitled to any right in the family properties, after being taken into account, the partition deed stipulated that the third party in that deed, Karthikeyan (1st defendant) had the responsibility to marry away his unmarried sisters. One of his sisters, the eldest alone, had already been married away, and the other sisters, defendants 2 to 8, then, remained to be married. His guardian and mother, the second party, Kunhikutty, under the deed was authorized to avail loan of Rs.500/-each for meeting the marriage expenses of the unmarried sisters of the third party, who included the present plaintiff as well, by mortgaging the property in the share of the third party showing the said purpose, in the event of their marriage taking place before he became a major. It was also made clear that Kunhikutty had been made as a party in the deed (second party) since she has right to maintenance in the estate of her husband and to represent the third party (Karthikeyan) as his guardian. After stating as aforesaid, the deed spells out thus: “The first party has separated into one branch and the second and third parties have separated into another branch. Properties, movable and immovable valued at Rs.58,250/- and liabilities amounting to Rs.8,250/- are sharable among us. Of the same, properties worth Rs.33,250/- and liabilities amounting to Rs.8,250/- have been assigned to the first party herein as per Schedule A. The second party herein shall have right of maintenance in the property belonging to the father of the third party. The said right is included in the share apportioned and assigned to the third party in this partition deed. Accordingly, the properties worth Rs.25,000/- in Schedule B, free of any charge or encumbrance, has been apportioned and assigned to the third party. The parties herein have taken into their individual possession the properties apportioned and assigned to them, thus releasing all the claim and joint rights they have in the said properties.” The total assets, both movable and immovable, were valued at Rs.58,250/- and the first party Govindan Vaidiar under the deed inclusive of the liabilities of Rs.8,250/-, obtained properties worth Rs.33,250/-, and the third party (Karthikeyan), the properties worth Rs.25,000/-, in which, the right to claim maintenance in favour of the second party, Kunhikutty, his mother was preserved. A close reading of the deed makes it abundantly clear what is the nature of the possession taken by the second party mother, who represented the minor third party, when B schedule property was allotted to that minor. The deed, further reads thus: “The second and third party herein shall take into possession the Schedule B properties, receive income and maintain the said properties, pay the taxes and ‘michavaram’ (landlord’s rent after deducting the interest on money lent or advanced by the tenant), and the members of the branch of the second and third parties shall meet their expenses from the remaining income. If any loan is to be obtained for the benefit and protection of the third party herein and for the marriage of the sister of the third party, the guardian shall have power to obtain loans giving as security the Schedule B properties, and the third party shall pay off such debts. It has also been decided that, on attaining majority, the third party shall have right to enjoy, with full liberty and the right to alienate, the properties in Schedule B. The first party shall have right to get the assessment for Government tax and assessment for municipal tax relating to the Schedule A properties mutated in his name, and the third party herein shall have right to chance such assessments pertaining to the Schedule B properties in his name.” The deed also then takes care of the right of the third party over a structure, a building with tiled roof and ceiling, which has been constructed after filling a part of the field in Schedule B (field yielding 10 paras approximately) and other improvements made therein clarifying that the said buildings, improvements made thereon and the articles in use therein shall belong to the third party. 15. No property was allotted under the deed to the second party Kunhikutty nor any independent possession given to her over any item of property in lieu of her maintenance from the estate of her husband Sankunny Vaidiar. What could be seen is that in the property allotted to her son described as Schedule B, her pre-existing right to claim maintenance from the estate of her husband was preserved, and charged upon. Possession of the property allotted to the third party was taken by her does not indicate that it was so done in any way adverse to the interest of that minor, whom she represented as the guardian in that deed as his mother. Possession of the property allotted to the third party was taken by her does not indicate that it was so done in any way adverse to the interest of that minor, whom she represented as the guardian in that deed as his mother. The fiduciary character with which she obtained possession as the guardian of the minor with no allotment over any specified item of property made in her favour in lieu of maintenance when a division over the estate was effected, but, only a charge on such claim in the allotment to her son, clearly demonstrate that, at best, she had only a charge over the property allotted to her minor son and it was not a case of gaining possession conferred with any legal right to hold possession independently in lieu of maintenance, which was capable of blossoming into an absolute full right by virtue of the operation of Section 14(1) of the Act. When such be the case, there was no question of the right of maintenance charged on the property allotted to the third party (Karthikeyan) conferring on Kunhikutty his mother, any absolute right of ownership over the same. 16. The object of Section 14 of the Act is to extinguish the estate called limited estate or widow’s estate in Hindu Law, and to make a Hindu woman, who continued only as a limited owner, as a full owner of the property with all powers of dispossession. Section 14(1) of the Act contemplates that a Hindu female who would have been a limited owner of the property under the old Law, will become a full owner by the operation of the above section. A clarification is made under sub section (2) of the section, which does not relate to the incidents of woman’s property, to which, no dilation is called for in the present case. But one thing, the most significant aspect that has to be noted in the applicability of sub section (1) of Section 14 of the Act of the Act is that it does not in any way confer a title on the female Hindu where she did not possess any vestige of title (See Earamma v. Veerupanna (AIR 1966 SC 1879). But one thing, the most significant aspect that has to be noted in the applicability of sub section (1) of Section 14 of the Act of the Act is that it does not in any way confer a title on the female Hindu where she did not possess any vestige of title (See Earamma v. Veerupanna (AIR 1966 SC 1879). The property possessed by the female to which she could claim absolute right by operation of the above sub section of the Act must be clearly some property over which she has acquired some kind of title before or after the commencement of the Act. Was there any acquisition of property by Kunhikutty as a limited owner when she had taken possession with the third party in the deed, a minor, represented by her as his guardian, in whose favour alone B schedule was allotted with a charge created over the claim of maintenance of his mother in such property is the crucial question to be considered to examine whether Section 14(1) of the Act has any application to the facts of the case. A female owner, who claims the right under Section 14(1) of the Act must be in possession of the property as a limited owner. Possession taken by Kunhikutty in the present case, whom she represented as guardian and to whom alone B schedule property was allotted, was, undoubtedly, only on behalf of the minor; and, at best, what she obtained under the deed is recognition of her pre-existing right of maintenance being made a charge in the property allotted to her son and she was put in possession. She had not taken possession in her right as a limited owner. She had no independent right of possession of the property whatever be the charge created on her claim of maintenance in such property when she represented the minor as his guardian, to whom alone B schedule was allotted and on whose behalf she had taken possession of the property on division of the joint property under the deed. It would be preposterous and even militating against good sense, equity and conscience, to hold that the possession of B schedule under Ext.A1 deed taken by her on behalf of the minor son, who was represented by her as his guardian in the deed, would confer on her an independent legal right of possession. It would be preposterous and even militating against good sense, equity and conscience, to hold that the possession of B schedule under Ext.A1 deed taken by her on behalf of the minor son, who was represented by her as his guardian in the deed, would confer on her an independent legal right of possession. Her right to maintenance charged over the property allotted to her minor son, is incapable to confer her the status of limited owner, which was capable of blossoming into a right of a full owner by operation of Section 14(1) of the Act, and, thereby, to claim one half right over B schedule property allotted to her son. 17. The decisions relied by the learned senior counsel for the plaintiff has no application to the present case, where the right to maintenance of the widow from the property allotted to her son alone is provided, and no share in the property at least as a limited owner with possession in lieu of maintenance is provided under Ext.A1 deed. In Saraswathi Ammal’s case (cited supra), the operation of Section 14(1) of the Act over a share acquired by a Hindu widow, with possession, in lieu of her maintenance, under a preliminary decree for partition of joint family property was considered, and it was held that the case came within the sweep of that section. In Vaddeboyina Tulasamma’s case (cited supra), the widow was in possession of property allotted towards her maintenance under a compromise decree, which was entered into by the parties when a decree for maintenance was executed. In Bai Vajia’s case (cited supra), the widow, who, under a decree for partition of joint family property was entitled to maintenance amount fixed, and charged on the property allotted to others, with default clause providing for taking possession, on such default being made, took out execution, obtained possession and continued in enjoyment of the land, as and when Section 14 (1) of the Act came into force. In the above decision, the Apex Court has held that limited ownership in the concerned female is sine qua non for the applicability of sub section (1) of Section 14 of the Act. In the above decision, the Apex Court has held that limited ownership in the concerned female is sine qua non for the applicability of sub section (1) of Section 14 of the Act. Ownership vis-à-vis limited ownership has been explained in the decision thus: “Ownership is the fullest sense is a sum total of all the rights which may possibly flow from title to property, while limited ownership in its very nature must be a bundle of rights constituting in their totality not full ownership but something less.” In Vankamamidi Venkata Subba Rao’s case (cited supra), the issue involved was different from the present case. Whether sub section (i) of (2) of Section 14 of the Act applied in the case of property obtained by a widow in joint family property, under a compromise decree, who had acknowledged later what she got was only a limited right with the provision that the property would revert to her son, and in that context, it was held that sub section (2) of Section 14 of the Act was applicable. That decision has no bearing to the present case. In Sadhu Singh’s case (cited supra), whether life estate given to wife by the husband under a testament in respect of his self acquired property was capable of maturing into a full right under Section 14(1) of the Act was considered, and it was held to be inapplicable. In that decision also, it has been cautioned that mere possession of the property is not enough, but the nature of right acquired is important, to consider the applicability of Section 14(1) of the Act. In Sharad Subramanyan’s case (cited supra), what has been stated in Vaddeboyina Tulasamma’s case, referred to above, has been reiterated, pointing out that sub section (2) is in the nature of a proviso to sub section (1) of Section 14 of the Act. That decision has also no application to the present case. In Chandrika Singh’s case (cited supra), facts are distinct and different from the present case, where the widow possessed of share in the land was a limited owner, and, thus, attracted sub section (1) of Section 14 of the Act enabling her to become an absolute owner of the property. That decision has also no application to the present case. In Chandrika Singh’s case (cited supra), facts are distinct and different from the present case, where the widow possessed of share in the land was a limited owner, and, thus, attracted sub section (1) of Section 14 of the Act enabling her to become an absolute owner of the property. In Santosh and other’s case (cited supra) also, the applicability of Section 14 (1) of the Act in relation to a property given to a widow under a compromise decree in lieu of maintenance, and possessed by her, with condition of its continuance till her death, was involved, and it was held that her possession as a limited owner became absolute ownership in terms of Section 14(1) of the Act. In Subhan Rao and other’s case (cited supra), also dealt with a case where possession of property was given to a female in lieu of maintenance, and it was held such limited right get enlarged into full ownership right, by the applicability of Section 14(1) of the Act. In the present case under Ext.A1 deed no property was given to Kunhikutty, mother of parties, but her right to maintenance was made a charge in B schedule property, which was allotted to her minor son absolutely, subject to terms which have been stated supra. Kunhikutty, the second party in the deed, who represented the minor, her son, third party, obtained possession of B schedule on his behalf acknowledging him as full owner of the property. 18. Kunhikutty, did not set up any claim during her life time as to having obtained any ownership over the property of her son (third party in the deed) is also a circumstance eloquently demonstrating that the claim of partition by the plaintiff, which was modulated as different from the case set up in the plaint during the course of the case as if Kunhikutty had obtained absolute right with her son over the B Schedule property covered by Ext.A1 partition deed, is devoid of any merit. There was no allotment of any property in lieu of maintenance to Kunhikutty under Ext.A1 partition deed, but, only of recognizing her right to claim maintenance with a charge made over the properties allotted to her son, third party, B schedule, and she took possession of the properties allotted to her minor son, whom she represented as the guardian. There was no allotment of any property in lieu of maintenance to Kunhikutty under Ext.A1 partition deed, but, only of recognizing her right to claim maintenance with a charge made over the properties allotted to her son, third party, B schedule, and she took possession of the properties allotted to her minor son, whom she represented as the guardian. To sustain a claim under Section 14(1) of the Act leaving apart whether it has been proved with particulars thereof, it must be shown that possession in lieu of maintenance over a specified property was given to a female, and, no doubt, such possession over the property should be on her independent right passed on the right of maintenance and it cannot be something held as a guardian in a fiduciary capacity over the property allotted to a minor ward. The right of maintenance is charged on the properties allotted to the minor does not postulate that possession taken by the guardian mother was done in assertion of her right of maintenance adverse to the interest of and detrimental to the interest of the minor disputing and challenging his title over the allotment made in his favour. The decree passed by the lower appellate court holding that by virtue of Section 14(1) of the Act, Kunhikutty, the mother of the plaintiff and defendants had obtained equal right with the 1st defendant, her son over plaint B schedule properties covered by Ext.A1 partition deed, is clearly unsustainable under law and facts. Reversing that decree, the dismissal of the suit rendered by the trial court has to be restored and it is ordered accordingly. O.S.No.471 of 1984 on the file of the Munsiff’s Court, Thrissur, shall stand dismissed. R.S.A.No.415 of 2003 is allowed and R.S.A.Nos.517 and 588 of 2003 are dismissed, directing the parties in all the appeals to suffer their respective costs.