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Monday, September 8, 2014

partition suit - barred by limitation - property belongs to mother - mother died before commencement of Hindu succession Act - as per customary law the daughters only entitled for share in the property of mother - but sons took possession and got partitioned among themselves and perfected their title by adverse possession - after 50 years of partition, the survived daughter and legal heirs of another deceased daughter filed suit for partition - the trial court dismissed the suit as barred by limitation - High court rightly held that the property the daughters alone entitled for share but not sons as per customary law - but negatived the adverse possession also and decreed the suit - Apex court held that the property as held by High court is the property of mother and as such daughters alone entitled for share but not sons as per customary rights - and further held that the sons who have no right in the property occupied and have been enjoying the same for past 50 years so the suit is barred by limitation and set aside the High court order = CIVIL APPEAL NO.352 OF 2009 PANGU ALIAS APPUTTY (DEAD) THROUGH L.Rs.& ORS. … APPELLANTS Versus NARAYANI & ORS. … RESPONDENTS = 2014 - Aug. Part - http://judis.nic.in/supremecourt/filename=41870

   partition suit - barred by limitation -  property belongs to mother - mother died before commencement of Hindu succession Act - as per customary law the daughters only entitled for share in the property of mother - but sons took possession and got partitioned among themselves and perfected their title by adverse possession - after 50 years of partition, the survived daughter and legal heirs of another deceased daughter filed suit for partition - the trial court dismissed the suit as barred by limitation - High court rightly held that the property the daughters alone entitled for share but not sons as per customary law - but negatived the adverse possession also and decreed the suit - Apex court held that the property as held by High court is the property of mother and as such daughters alone entitled for share but not sons as per customary rights - and further held that the sons who have no right in the property occupied and have been enjoying the same for past 50 years so the suit is barred by limitation and set aside the High court order =

Whether the plaintiff No.1 and Defendant Nos. 10-17  have  proved  that  the
suit schedule properties  of  Valli  are  Stridhan  properties  in  view  of
Ex.–A1, “Panayam Theeradharam” which properties were  acquired  by  her,  as
per the said document?
The suit schedule properties are Streedhana properties  of  deceased  Valli,
as per the documentary evidence on record Ex.-A1 (Panayam  Theeradharam)  as
opined by N.R. Raghavachariyar on Hindu  Law,  under  Section  468,  Chapter
XIII, at Page 530 of the 7th Edn. of his  Commentary.,  which  is  extracted
below :-

“S.468.Definition of Stridhana- During the  voluminous  discussions  ancient
and modern, which have arisen with regard to the separate property of  woman
under Hindu Law, its qualities, its kinds  and  its  line  of  descent,  the
question has  constantly  been  found  in  the  forefront,  what          is
Stridhana?   Vijnaneswara’s   expanded   definition    of    Stridhana    in
    the Mitakshara, was accepted by           the Benares(Viramitrodaya,V-1-
2)and Mayukha Schools (iv-10-2 and 26) and  generally  by  the  Madras  High
Court, but was not adopted by the Mithila and  the  Dayabhaga  Schools.  The
Bengal School of lawyers have always limited  the use of the term  narrowly,
applying it exclusively or nearly  exclusively,  to  the  kinds  of  women’s
property enumerated in the primitive sacred texts  the Smritis.  The  author
of the Mitakshara and some other authors apply the  term  broadly  to  every
kind of property which a woman can possess from whatever source  it  may  be
derived. The Privy Council in Sheo  Shankar  v.  Debi  Sahai,  confined  the
Stridhana proper to property classified as such by Manu  and  Katyayana  and
disapproved the extension given by Yajnavalkya. Stridhana must  be  confined
to such property of a woman over which she possesses an unfettered power  of
disposal. This power depends upon the  School  to  which  she  belongs,  her
status at the time of acquisition and the source of such acquisition.

469. Source of acquisition.- The source of  acquisition  of  property  in  a
woman’s possession are the following:-

Gifts before marriage,
Wedding gifts,
Gifts subsequent to marriage
Self-acquisitions
Inheritance
Purchase
Partition
Adverse possession
Maintenance claim
10.Other sources”


Definition of Streedhana is adverted to by the High Court at para 12 of  the
impugned judgment which reads as under:-

“12. Streedhana i.e., a woman’s peculium is a property :-

given to a woman before the nuptial fire (adhyagni)

given at the bridal procession (adhyavahanika)

given in token of the love (dattam pritikarmini) and

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)”


(i)-Whether the plaintiff No. 1 and defendant Nos. 10  to  17  are  entitled
for partition of the suit schedule properties as  they  have  been  excluded
from the possession of the properties by ouster  by  the  sons  of  deceased
Valli namely, Kunhan and Ayyappan for more than 50 years from  the  date  of
her death and 
(ii) whether they have lost their right by adverse  possession
of the defendant Nos. 1 to  9  by  ouster  and  their  claim  is  barred  by
limitation?
The High Court referred to Vigneswara’s  expansion  of  the  term  “adi”
which  includes  all  those  properties  that  a  woman   may   acquire   by
inheritance, purchase, partition and seizure. 
The said  expanded  definition
of “Streedhana” by Vigneswara was not accepted by the Privy Council in  Sheo
Shankar Lal v. Debi Sahai[3] and Debi Mangal Prosad Singh v. Mahadeo  Prasad
Singh[4]. 
The disapproval by the Privy Council of Vigneswara’s expansion  of
“Streedhana” is confined to the Bengal or  Dayabhaga  and  Banaras  Schools.
The said expanded definition of “Streedhana” has generally been accepted  by
the Madras High Court. 
It is thus evident from the  pleadings  and  evidence
on record that the properties of Valli  are  Streedhana  properties  in  the
absence of any other concrete documentary proof produced by  defendant  Nos.
1 to 9 before the Trial  Court  which  would  have  generally  entitled  her
daughters to have exclusive right over the suit schedule properties.  
Having
said so, the learned Judge of the High Court did not record a  finding  that
the Streedhana properties of Valli exclusively belong to her  daughters  and
they have been out of possession from the said properties for more  than  50
years which is evident from Exs.-B1 to B6. 
The undisputed fact is  that  the
original suit was filed by the plaintiffs for partition in  the  year  1990.
The concurrent finding recorded by the courts below  is  that  the  year  of
death of Valli, the mother  of  the  plaintiff  No.  1  and  grandmother  of
plaintiff Nos. 2 to 4, was 1942. 
Undisputedly, the possession  of  the  suit
schedule properties has been with  the  deceased  sons  namely,  Kunhan  and
Ayyappan during their life and thereafter defendant Nos. 1  to  9  for  more
than 50 years, therefore, their plea that they have  perfected  their  title
to the suit schedule properties by adverse possession as they are  strangers
to the properties in question for the reason that they are not entitled  for
a share of the Streedhana  properties  of  Valli  is  valid  and  legal  and
therefore, the finding of fact recorded by the High  Court  is  correct. 
 In
view of the said finding of fact recorded by the High  Court  the  defendant
Nos. 1 to 9 will not succeed to the properties  as  they  are  not  the  co-
owners of the properties along with the plaintiff No. 1 and  defendant  Nos.
10 to 17. 
Their continuous possession of the  suit  schedule  properties  is
adverse possession by ouster of them is proved  by  them  on  the  basis  of
admitted facts and evidence on record. 
This finding of fact is  recorded  by
the Trial Court on the relevant contentious issue  No.  4  but  the  reasons
assigned by it on the said contentious issue are different from the  reasons
assigned by us, the same has  not  been  accepted  by  the  High  Court  and
reversed the said finding by recording its own reasons at paragraph Nos.  11
and 13 of the impugned judgment which are not  only  erroneous  in  law  but
suffers from error in law. 
Therefore, we have to answer  the  point  Nos.  1
and 2 in favour of the defendant Nos. 1 to 9 and against the  plaintiff  No.
1 and defendant Nos. 10 to 17.

In the absence of averments in the plaint regarding custom followed  in  the
marriage of the daughters of Valli  and  that  their  marriage  was  not  in
Kudivaippu form therefore, can  their  rights  be  excluded  upon  the  suit
schedule properties of Valli as per customs  prevalent  in  their  community
under the Hindu Law?
In view of the pleadings and evidences of defendant Nos. 1 to  9  on  record
regarding custom of marriage  prevalent  and  practiced  in  the  family  of
plaintiff No. 1 and mother of defendant  Nos.  10  to  17,  
the  High  Court
recorded the finding of fact holding that the marriage of the two  daughters
of Valli were not celebrated in the Kudivaippu form and  therefore,  it  has
rightly held that the plaintiff  No.1  and  defendant  Nos.  10  to  17  are
entitled to their share in the suit schedule properties, which  is  left  by
Valli as the same were her Streedhana properties.

37. The High Court has come to the right conclusion by shifting  the  burden
of proof on the defendant Nos. 1 to 9 to prove  the  fact  of  the  type  of
marriage of the deceased plaintiff No.  1  and  Ammalukutty.  
The  defendant
Nos. 1 to 9 did not produce evidence to prove the fact that the marriage  of
the daughters of deceased Valli was performed by following  Kudivaippu  form
but not in Sambandam form, to disentitle their claim upon the suit  schedule
properties of Valli and therefore, they are not  sharers  of  the  same.  
In
view of the pleadings and evidence on record of defendant Nos. 1  to  9,  we
have to record the finding  of  fact  that  the  marriage  of  daughters  of
deceased Valli was not in Kudivaippu form and therefore,  the  daughters  of
deceased Valli alone are entitled to succeed  to  her  intestate  properties
who are her legal heirs. 
This finding we have recorded in this  judgment  on
the basis of the judgments of  Privy  Council  and  the  Madras  High  Court
(supra) referred to in the impugned judgment by the High Court.
Whether the partition deed (Ex.-B1) in the year 1953 is binding between  the
deceased Kunhan and Ayyappan in view of the litigation between them  as  per
documents (B-2 to B-4) in respect to the suit schedule properties of Valli?
The reliance has been placed by the legal  representatives  of  Kunhan
and  Ayyappan  i.e.  defendant  Nos.  1  to  9  on  the  basis  of  purchase
certificate-Exs.-B5 and B6 as they have obtained purchase  certificate  from
the competent Land Tribunal in respect of the partitioned properties,  which
have been in their possession as per Ex.-B1, partition deed  and  therefore,
they have claimed  that  they  are  either  cultivating  tenants  or  deemed
tenants in possession of the  land  in  question  under  the  provisions  of
Section 4A of the Kerala Land Reforms Act,  1963.  The  said  stand  of  the
defendant Nos. 1 to 9 is wholly untenable in law for the reason  that  their
fathers were not the tenants of the suit  schedule  properties  under  their
mother, in this regard there is no evidence adduced  by  them.  Though  they
obtained purchase certificate from the Land Tribunal on the  claim  made  by
their fathers that they were either cultivating tenants  or  deemed  tenants
as defined under Section 2(8)  or  under  Section  4A  (a)  of  Kerala  Land
Reforms Act, respectively  and  therefore,  the  application  filed  by  the
deceased Kunhan and Ayyappan for grant of purchase  certificate  before  the
Land Tribunal on the basis of their claim as aforesaid is  not  maintainable
in law.

42.    The  plea  urged  by  the  above  said   persons   that   they   were
cultivating/deemed  tenants  of  the  suit  schedule  properties  is  wholly
misconceived for the reason that provisions of Sections 2 to 71, 73  to  82,
84, 99 to 108 and 110 to 132 of Kerala Land Reforms  Act,  1963,  came  into
force with effect from 01.04.1964 i.e. after the death of Valli in the  year
1942. Section 72 of  the  Kerala  Land  Reforms  Act  regarding  vesting  of
landlord’s rights upon the tenanted agricultural  lands  in  the  State  was
substituted  by  Act  35  of  1969,  published   in   the   Kerala   Gazette
Extraordinary dated  17.12.1969  and  came  into  force  w.e.f.  01.01.1970.
Section 4A of the said Kerala Land Reforms Act speaks of certain  mortgagees
and lessees of mortgagees to be deemed tenants. The aforesaid provisions  of
this Act have no application, to the claim of the deceased  fathers  of  the
defendant Nos. 1 to 9, as they could not  have  been  deemed  tenants  under
their deceased mother as  the  Act  came  into  force  from  01.04.1964  and
certain other provisions of Section 4A of the Kerala Land Reforms  Act  were
substituted  w.e.f.  17.12.1969  and  came  into  force  w.e.f.  01.01.1970.
Therefore, the aforesaid provisions have no application to the claim of  the
deceased fathers of defendant Nos. 1 to 9 in respect of  the  suit  schedule
properties. Therefore, the defendant Nos. 1 to 9 placing reliance  upon  the
purchase  certificates  Exs.-B5  and  B6  have  no  relevance  to  the  fact
situation. Therefore, the plea urged  by  them  in  this  regard  is  wholly
untenable in law for the reason that they are  neither  cultivating  tenants
nor deemed tenants of the suit schedule properties  as there is no  evidence
produced by them in  this  regard  in  the  Original  Suit.  Therefore,  the
purchase certificates which were obtained by  their  deceased  fathers  from
the Land Tribunal have no relevance to the facts of the case.

43.   We have already answered the point No. 3 in favour  of  the  defendant
Nos. 1 to 9 by recording our reasons on the undisputed  facts  and  evidence
on record that  they  have  perfected  their  title  to  the  suit  schedule
properties by  adverse  possession  from  1953  onwards  by  ouster  of  the
daughters of Valli after her death.

Whether the plaintiff Nos. 2 to 4 are entitled for their share in  the  suit
properties?
 Since we have answered point Nos. 3 and 4 in favour of defendant  Nos.
1  to  9  and  we  hold  that  the  plaintiff  Nos.  2  to  4,   the   legal
representatives of deceased Apputty (son of Valli),  are  not  entitled  for
the share in the suit schedule properties by  way  of  partition.

  2014 - Aug. Part - http://judis.nic.in/supremecourt/filename=41870
                                                         NON-REPORTABLE


                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

                         CIVIL APPEAL NO.352 OF 2009



PANGU ALIAS APPUTTY (DEAD)
THROUGH L.Rs.& ORS.                      … APPELLANTS

                             Versus

NARAYANI & ORS.                         … RESPONDENTS






                               J U D G M E N T




V. GOPALA GOWDA, J.



    This appeal is filed by the appellants against the  final  judgment  and
order dated 02.02.2005 passed in A.S. No. 678 of 1993(C) by the  High  Court
of Kerala at Ernakulam, whereby the High Court has set  aside  the  judgment
and decree passed in the Original Suit No. 123 of 1990 on 26.11.1992 by  the
Subordinate Court Judge, Tirur, holding that the judgment and  decree  under
the appeal cannot be sustained and passed  a  preliminary  decree  directing
the division of the suit schedule properties.

2.    The relevant facts, in brief, are stated hereunder. For  the  sake  of
brevity and convenience  the  parties  are  referred  to  as  per  the  rank
assigned to them in the original suit proceedings.

3.  The defendant Nos. 1 to 9 in the Court of the Subordinate Judge are  the
appellants herein and the plaintiffs and defendant Nos. 10  to  17  are  the
respondents herein who belong to the Perumkollam (blacksmith) community  and
are governed by customary law and Hindu law.  As per the original suit,  the
suit schedule properties belonged to Valli, the mother of the plaintiff  No.
1 and grandmother of plaintiff Nos. 2 to 4 and the defendant Nos. 1  to  17.
Valli died in the year 1942 leaving behind her three  sons  namely,  Kunhan,
Ayyappan and Apputty and two daughters, namely,  Unniechi  and  Ammalukutty.
The plaintiff No. 1 is Unniechi, the daughter of Valli, plaintiff  Nos.2  to
4 are the children of deceased Apputty, defendants  Nos.  1  to  7  are  the
children of the deceased Kunhan, defendant Nos. 8 and 9  are  the  daughters
of deceased Ayyappan and defendant  Nos.  10  to  17  are  the  children  of
deceased Ammalukutty. Kunhan expired in the year 1984  or  1985.  Ammalkutty
died in the year 1986 or 1987 and Ayyappan died in the year  1984  or  1985.
Apputty died in the year 1945.

4. According to the case pleaded by  the  plaintiffs,  after  the  death  of
Valli, her two sons, namely, Kunhan and  Ayyappan  were  in  possession  and
enjoyment of the suit schedule properties for and on  behalf  of  the  other
legal heirs. Kunhan and Ayyappan were giving the  income  derived  from  the
suit schedule properties to the shares of the plaintiffs upto  their  death.

         It is also stated by the plaintiff No. 1, Unniechi and  Ammalukutty
that the daughters of the deceased Valli were residing in their  matrimonial
home and frequently used to come and reside in their ancestral  home.  That,
after the death of Apputty, plaintiff Nos. 2 to 4 were also residing in  the
suit properties and their marriages were also conducted there.

5.  The plaintiff No. 1 (Unniechi d/o Valli) requested the defendant  No.  1
on several occasions and finally as  per  the  notice  dated  30.08.1990  to
allot the share of plaintiff No. 1 by dividing the suit schedule  properties
by meets and bounds.

6.  The defendant No. 2 approached the plaintiff No.  1,  offering  Rs.500/-
towards the value of her share and requested her  to  be  content  with  the
same. But she did not accede to the request made by him.
Thereafter, defendant No. 1 sent a reply notice  stating  therein  that  the
plaintiff No. 1 was not a co-sharer of  the  suit  schedule  properties  and
that the properties were not available for partition as  prayed  by  her  in
the original suit.

7.    On the other hand, it is stated by defendant Nos. 1 to  9  that  after
the death of Valli, the suit schedule properties  were  partitioned  between
Kunhan and Ayyappan by a registered partition deed of the year 1953, as  per
Ex-B1, considering that they are co-owners of the  said  properties.  During
their life time, they were in continuous, uninterrupted,  open  and  hostile
possession of the suit schedule properties from  1953  onwards  against  the
entire world including the plaintiffs and defendant Nos. 10 to 17 and  after
their death, their children, defendant Nos. 1 to 9 have been  in  continuous
uninterrupted possession of the suit schedule properties.

8.  It is stated by the defendant Nos. 1 to 9  that  they  have  constructed
building and made permanent  valuable  improvements  in  the  suit  schedule
properties. The said defendants prayed for the value  of  improvements  made
upon the suit schedule properties which is valued  around  Rs.3,50,000/-  in
the event, if a decree of partition of the properties is passed, along  with
the entitlement of their share on equity basis. It is also  stated  by  them
that the rights of the plaintiffs, if any, on the suit  schedule  properties
have been lost by them on account of adverse possession  of  the  properties
by defendant Nos. 1 to 9 as the same is  barred  by  limitation  and  ouster
from the properties. Further, it is pleaded  that  the  suit  filed  by  the
plaintiffs without any prayer for recovery of possession of properties  from
defendant Nos. 1 to 9 is also not maintainable in law. It is further  stated
by the defendants that the plaintiffs are not entitled to inherit  the  suit
schedule properties as per the customary law prevailing in the community.

9.    It is  also  stated  by  the  defendant  Nos.  1  to  9  that  Apputty
predeceased his mother in the year 1938, hence, plaintiff Nos. 2  to  4  are
not entitled to inherit the properties left behind by Valli.  The  defendant
Nos. 8 and  9  (daughters  of  deceased  Ayyappan)  filed  a  joint  written
statement separately before the Trial Court on the similar lines of  defence
taken by the defendant Nos. 1 to 7 in their written statement.

10.   It is further stated by the above  defendants  that  even  before  the
death of Valli, her daughter Unniechi, the plaintiff No.  1  and  the  other
daughter namely, Ammalukutty (the mother of the defendant  Nos.  10  to  17)
were given ornaments, utensils and dowry in  their  marriage  as  Streedhana
which  is  in  accordance  with  the  customary  rights  recognised  in  the
community. According to them as per the customary rights of the parties  and
law, on the death of Valli, the suit schedule properties  were  devolved  on
her surviving sons, namely, Kunhan and Ayyappan exclusively  by  succession.
Both the plaintiff No. 1 and her sister, Ammalukutty were aware of this.

11.   The defendant Nos. 10 to 17 had filed their written statements  before
the Trial Court supporting the plaint averments and they have  also  claimed
allotment of their separate share by dividing the suit  schedule  properties
by metes and bounds and put  them  in  possession  of  their  share  of  the
properties, that would  be  allotted  by  the  Court  in  the  final  decree
proceedings that will be drawn.

12.   The Trial Court has framed 9 issues on  the  basis  of  pleadings  and
conducted the trial.  On  behalf  of  the  plaintiffs,  two  witnesses  were
examined as PW-1 and PW-2 and their documents were marked as Exs. A-1 to  A-
3 and on behalf of the defendants, three witnesses  as  DW-1  to  DW-3  were
examined and marked their documents as Exs.B-1  to  B-10  to  justify  their
respective cases in the original suit proceeding.

13.   The Trial Court on the basis of pleadings and on appreciation of  both
oral and documentary evidence on record has answered the contentious  issues
against the plaintiffs and in favour of  the  defendant  Nos.  1  to  9  and
consequently, held that the plaintiffs and defendant Nos. 10 to 17  are  not
entitled for partition  vide its  judgment  and  decree.  Consequently,  the
suit was dismissed with no costs.

14.   Aggrieved  by  the  judgment  and  decree  of  the  Trial  Court,  the
plaintiffs filed Appeal Suit No. 678 of 1993(C) before  the  High  Court  of
Kerala. During the  pendency of the appeal, the plaintiff  No.  1  died  and
additional  appellant  Nos.  5  to  16   were   impleaded   as   the   legal
representatives of the plaintiff No. 1 vide order dated 10.8.2004 passed  in
C.M. Application No. 895, I.A.  Nos. 2202, 2203  and  2004.  The  plaintiffs
have questioned the correctness of the findings recorded on the  contentious
issues framed by the Trial Court  urging  various  legal  contentions  inter
alia contending that Valli died long before the commencement  of  the  Hindu
Succession Act, 1956 and also stated that the suit  schedule  properties  in
question are “Streedhana” properties and the  Trial  Court  has  misdirected
itself to hold that  the  plaintiffs  are  not  entitled  for  a  decree  of
partition of the properties. The averments made in the plaint  are  that  as
per the customary law of the community and Hindu Law, all  the  children  of
Valli are the heirs of Valli and all of them have equal shares  and  are  in
joint possession of the suit schedule properties.  In  the  absence  of  the
plea in the plaint that both the daughters of  Valli  namely,  Unniechi  and
Ammalukutty were not given the dowry and other properties  at  the  time  of
their marriage and their marriage was not performed in Kudivaippu form,  and
therefore, they are entitled to their share over the properties.

15.   The plaintiffs have pleaded that Apputty died subsequent to the  death
of Valli.  No doubt, the said plea is denied by  the  contesting  defendants
as no concrete evidence was adduced on either side of  the  parties.  It  is
urged on behalf of the plaintiffs before the High Court that so far  as  the
findings recorded by the Trial Court on  the  contentious  issue  No.  4  in
favour of the defendant Nos. 1 to 9 is concerned,  by  placing  reliance  on
Ex.-B1, the partition deed dated 06.05.1953  between  Kunhan  and  Ayyappan,
who had partitioned the suit schedule properties,  as  the  same  belong  to
them exclusively, and Ex.-B9, the gift deed made  in  favour  of  defendants
Nos. 8 and 9, by their father is not only erroneous but  also  suffers  from
law.

16.  On the contrary, the defendant Nos. 1 to 9  have  specifically  pleaded
that the marriage of daughters of Valli was  performed  in  Kudivaippu  form
but they have not proved the same by producing  cogent  evidence.  They  had
pleaded that the daughters of Valli had been given ornaments,  utensils  and
dowry at the time of their marriage. However, it  was  urged  on  behalf  of
them that it was upto the plaintiffs to prove that their  marriage  was  not
performed by following the Kudivaippu form  of  marriage  prevalent  in  the
community but  their  marriage  was  performed  by  following  Sambandam  to
justify their claim upon the suit schedule properties. In support  of  their
case, they placed reliance upon the judgment in Kochan Kani Kunjaraman  Kani
v. Mathevan Kani Sankaran Kani[1], wherein the Kerala High  Court  has  laid
down the law with regard to the requirements for accepting  a  valid  custom
in the community. The plea in that regard should be so  specific  and  clear
that the  opposite  parties  are  not  taken  by  surprise.  Valli  died  at
Ramanattukara in the erstwhile Malabar area,  therefore,  the  decisions  of
the Madras High Court alone are binding between the parties in  relation  to
the  suit  schedule  properties,  hence  the  decisions  of  the   erstwhile
Travancore & Cochin cannot be applied to the fact situation of the  case  on
hand. Further, it is stated that a custom modifying the pristine  Hindu  Law
entitles the married daughters to their share in  the  properties  of  their
deceased mother which has also been  judicially  recognized.  No  doubt,  no
such custom has been pleaded in the plaint by the plaintiffs. Even then,  if
it is the  Hindu  Mithakshara  Law  which  governs  the  parties,  then  the
plaintiff No. 1 who was the surviving daughter of Valli and  defendant  Nos.
10 to 17 who  are  the  children  of  Ammalukutty,  the  other  daughter  of
deceased Valli, cannot get any share over the properties.

17.  Further, the alternative submission made on behalf of  plaintiffs  that
since the suit schedule properties were acquired  by  Valli  as  per  Ex.-A1
“Panayam Theeradharam”  during  coverture,  therefore,  the  same  could  be
treated as her Streedhana properties of deceased Valli  as  opined  by  N.R.
Raghavachariyar on Hindu Law, under Section 468, Chapter XIII, at  Page  530
of the 7th Edn. of his Commentary. Therefore, the daughters of  Valli  alone
would be entitled to the  suit  schedule  properties  and  since  they  were
excluded from possession of the properties by their brothers for  more  than
50 years after the death of  Valli,  their  rights,  if  any,  are  lost  by
adverse possession and barred by limitation. Therefore, suit  filed  by  the
plaintiffs is  liable  to  be  dismissed  in  limine,  since  the  suit  for
partition will lie only against co-owners in joint  possession  in  view  of
Section 37 of the Kerala Court Fees and Suits Valuation Act, 1959 (in  short
“the Act”).  The defendant Nos. 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 possession of the  suit  schedule  properties  as
provided under  Section  30  of  the  Court  Fees  Act  will  not  lie.  The
plaintiffs have paid court fee only under Section 37(2) of  the  Court  Fees
Act and there is neither a prayer for recovery of  possession  of  the  suit
schedule properties nor payment of court fee paid under Section  30  of  the
Court Fees Act. Therefore, the original suit  filed  by  the  plaintiffs  is
liable to be dismissed as the same is not maintainable in law.

18.  The High Court has held that as per the custom of the  Hindu  Law,  the
suit schedule properties of the deceased Valli are not Streedhana and  after
her  death,  her  daughters  and  sons  have  inherited  the  suit  schedule
properties. Therefore, there was no reason for the Trial Court to hold  that
the daughters of Valli were excluded from partition  of  the  suit  schedule
properties which are not binding on the plaintiffs and defendant Nos. 10  to
17. Therefore, claiming share by them after 50 years of death of Valli  upon
the  suit  schedule  properties  cannot  be  a  ground  for  the  contesting
defendant Nos. 1 to 9 to take the plea that they have perfected their  title
to the  suit  schedule  properties  by  adverse  possession  and  ouster  as
specifically pleaded by them, which plea is accepted by the Trial Court  and
the findings recorded by it on the contentious  issue  No.  4  is  not  only
erroneous but also suffer from error in law. The High Court  has  held  that
the defendant Nos. 1 to 9 have not proved the fact that Apputty (3rd son  of
Valli) has predeceased his mother Valli to deny the rights  claimed  by  the
plaintiff Nos. 2 to 4 who are  his  heirs.  On  the  other  hand,  from  the
evidence of DW-2, it could be certainly inferred  that  Apputty  died  after
the death of his mother.

19.   It is further observed by the High  Court  in  the  impugned  judgment
that with reference to the findings recorded in the judgment  of  the  Trial
Court that even assuming that the plaintiffs and defendant  Nos.  10  to  17
were co-owners, the open and  exclusive  possession  of  the  suit  schedule
properties by the  contesting  defendant  Nos.  1  to  9  to  their  hostile
interest is a strong circumstance to draw an inference of their ouster  from
the suit schedule properties and findings recorded in  this  regard  by  the
Trial Court by  accepting their case on the  basis  of  facts  pleaded   and
evidence on record and the decisions of this Court in Amrendra Pratap  Singh
v. Tej Bahadur Prajapati & Ors.[2]  is not only erroneous in  law  but  also
suffer from error in law and therefore it has  set  aside  the  finding  and
reasons recorded in the impugned judgment.

20.   The contentions urged on behalf of the contesting defendant Nos. 1  to
9 contending that the Trial Court being a  fact  finding  court,  on  proper
appreciation of pleadings, documentary and oral evidence on record has  held
that Valli died during the life time of the fathers of the defendant Nos.  1
to 9 and they have been  in  possession  and  enjoyment  of  the  properties
exclusively as the owners. Therefore, they have  perfected  their  title  to
the suit schedule  properties  by  adverse  possession  and  ouster  of  the
plaintiffs and hence, the same could not have been interfered  with  by  the
High Court in exercise of its appellate jurisdiction and granted decree  for
partition in favour of the plaintiffs and defendant Nos. 1  to  9,  is  also
not sustainable in law.

21.   The High Court has passed the impugned judgment  dated  02.02.2005  in
A.S.  No.  678  of  1993(C)  by  reversing  the  findings  recorded  on  the
contentious issues framed by the Trial  Court  against  the  plaintiffs  and
defendant Nos. 10 to 17 and directed the division  of  the  plaint  schedule
properties by meets and bounds by allotting the plaintiffs 1/5 share to  the
first plaintiff, 1/5 share to plaintiff Nos. 2 to 4 jointly. The High  Court
further held that any of the other sharers  can  apply  for  separation  and
allotment of their share on payment of  the  requisite  court  fees.  It  is
further held by the High Court that any of the other sharers can  apply  for
separation and allotment of their share on payment of  the  requisite  court
fees. The High Court further held that the plaintiffs shall be  entitled  to
mesne profits, the quantum of which shall be determined in the final  decree
proceeding. Such mesne profits shall be payable by defendant  Nos.  1  to  9
from the date of suit till delivery of their respective share properties  to
the plaintiffs. Further, the  High  Court  has  awarded  the  costs  of  the
Appeal.
    The correctness of the said judgment  is  challenged  by  the  defendant
Nos. 1 to 9 before this Court by filing this Civil  Appeal  and  by  raising
certain substantial questions of law and urged grounds  in  support  of  the
same.

22.   It is contented by the learned counsel on  behalf  of  the  appellant-
defendant Nos. 1 to 9 that the custom of the parties  is  at  variance  with
the Mitakshara Law, regarding succession to the properties  and  it  is  for
the parties who have  pleaded  the  custom  to  prove  it  affirmatively  by
adducing evidence on record in order to secure a  decree  for  partition  of
the suit schedule properties.

23.   It is further contented that the  High  Court  erred  by  placing  the
burden of proof on the  defendants   to  prove  that  the  marriage  of  the
plaintiff No. 1 and Ammalukutty took place in the Kudivaippu  form  and  not
Sambandam form.

24.   The further contention urged on behalf of the defendant Nos.  1  to  9
was that the High Court erred by not considering the  fact  that  plaintiffs
have not established all the ingredients necessary for the type of  marriage
celebrated by the daughters of deceased Valli by producing  cogent  evidence
to get a decree of partition of the suit schedule properties and the  burden
was on them to plead and establish the form of marriage of the daughters.

25.   It is further contended by the learned counsel on behalf of  defendant
Nos. 1 to 9 that the High Court has erred in exercising its jurisdiction  by
reversing the findings of fact recorded by the Trial Court on  the  relevant
issues on the basis of the pleadings and evidence on record. Therefore,  the
findings recorded by the High Court  in  the  judgment  on  the  contentious
points that arose for its consideration are not only erroneous  in  law  but
also suffer from error in law.

26.   It is further contended that the Hindu Mitakshara law applies  to  the
family of Valli in the absence  of  any  proven  customs  practiced  in  the
community, thus the High Court should have held that under  the  Hindu  law,
daughters are not entitled to  any  share  in  the  properties  of  deceased
Valli. Therefore, it is urged by the learned counsel  that  the  High  Court
erred in holding that the daughters of deceased Valli are also  entitled  to
share in the estate of the deceased and  has  committed  a  grave  error  in
reversing the judgment of the Trial Court. Therefore, the impugned  judgment
is vitiated in law and liable to be set aside.

27.   Further, it is contended that the question  of  law  raised  regarding
adverse possession of the defendant Nos. 1 to 9  would  certainly  arise  in
this appeal for the reason that the High Court has erroneously reversed  the
finding of fact recorded  by  the  Trial  Court  on  the  issue  of  adverse
possession of the suit schedule properties of  defendant  Nos.  1  to  9  by
ouster, which is contrary to the admitted pleadings and finding of  fact  in
the instant case regarding their possession. Therefore the defendant Nos.  1
to 9 have prayed to allow the appeal.

28.   On the basis of the above said rival legal contentions, the  following
points would arise for our consideration: -

Whether the plaintiff No.1 and Defendant Nos. 10-17  have  proved  that  the
suit schedule properties  of  Valli  are  Stridhan  properties  in  view  of
Ex.–A1, “Panayam Theeradharam” which properties were  acquired  by  her,  as
per the said document?

(i)-Whether the plaintiff No. 1 and defendant Nos. 10  to  17  are  entitled
for partition of the suit schedule properties as  they  have  been  excluded
from the possession of the properties by ouster  by  the  sons  of  deceased
Valli namely, Kunhan and Ayyappan for more than 50 years from  the  date  of
her death and (ii) whether they have lost their right by adverse  possession
of the defendant Nos. 1 to  9  by  ouster  and  their  claim  is  barred  by
limitation?

In the absence of averments in the plaint regarding custom followed  in  the
marriage of the daughters of Valli  and  that  their  marriage  was  not  in
Kudivaippu form therefore, can  their  rights  be  excluded  upon  the  suit
schedule properties of Valli as per customs  prevalent  in  their  community
under the Hindu Law?

Whether the partition deed (Ex.-B1) in the year 1953 is binding between  the
deceased Kunhan and Ayyappan in view of the litigation between them  as  per
documents (B-2 to B-4) in respect to the suit schedule properties of Valli?

Whether the plaintiff Nos. 2 to 4 are entitled for their share in  the  suit
properties?

What relief the parties are entitled to?

29.   To answer the aforesaid points, it would be convenient for us to  give
the genealogy of Valli and  her  family  for  proper  understanding  of  the
claims of the parties, which is extracted as  below :-

        VALLI                                        =          HUSBAND
(Died 1940 per plaintiffs)                        (Died 1954 per DW-3)
(Died 1942 per D-1)
                           |
      |-----------------|----------------|------------------ |--------------
----------|
      |                    |                     |                         |
                           |
Unniechi             Kunhan @          Ayyappan  @         Ammalukutty  died
    Apputy
P-1                     Pangan died      Chayichan died       1986  or  1987
             died 1945
      |                   1984 or 85  per       1984  or  1985             |
                        per plaintiff
Ittichira       Janaki            Plaintiffs      1977                     |
     |                              1938 per D-1
                                Per       D-1                              |
      |                                   |
                                  |                           |------------|
    |                                   |
                           |                Valli       Cherumalu          |
                                                     |----------|----------|

                               |                     D-8                  D9
  |           Narayani  Chinna  Lakshmi
                                                                           |
      |                P-2            P-3          P-4
                                                                           |
      |
                          |            Sanku   Chayachan Apputty  Velayudhan
 Perutty  Krishnan Chinna  Lakshmi
                          |                |-------|------|-------|---------
|-------|-------|-------|
                          |             D-10    D-11    D-12    D-13    D-14
D-15    D-16     D-17
                          |
|------------------|------------------|----------|-----------|--------|-----
---------|
Pangu   @         Krishanan   @         Chundan       Kalliani         Valli
Ittichira      Ammunni
Apputty         Appukuttan               D-3            D-4              D-5
  D-6               D-7
D-1                  D-2



Answer to Point Nos. 1 & 2

30.   The point Nos. 1 & 2 are to be answered against the  plaintiff  No.  1
and defendant Nos. 10 to 17 by assigning the following reasons.
The suit schedule properties are Streedhana properties  of  deceased  Valli,
as per the documentary evidence on record Ex.-A1 (Panayam  Theeradharam)  as
opined by N.R. Raghavachariyar on Hindu  Law,  under  Section  468,  Chapter
XIII, at Page 530 of the 7th Edn. of his  Commentary.,  which  is  extracted
below :-

“S.468.Definition of Stridhana- During the  voluminous  discussions  ancient
and modern, which have arisen with regard to the separate property of  woman
under Hindu Law, its qualities, its kinds  and  its  line  of  descent,  the
question has  constantly  been  found  in  the  forefront,  what          is
Stridhana?   Vijnaneswara’s   expanded   definition    of    Stridhana    in
    the Mitakshara, was accepted by           the Benares(Viramitrodaya,V-1-
2)and Mayukha Schools (iv-10-2 and 26) and  generally  by  the  Madras  High
Court, but was not adopted by the Mithila and  the  Dayabhaga  Schools.  The
Bengal School of lawyers have always limited  the use of the term  narrowly,
applying it exclusively or nearly  exclusively,  to  the  kinds  of  women’s
property enumerated in the primitive sacred texts  the Smritis.  The  author
of the Mitakshara and some other authors apply the  term  broadly  to  every
kind of property which a woman can possess from whatever source  it  may  be
derived. The Privy Council in Sheo  Shankar  v.  Debi  Sahai,  confined  the
Stridhana proper to property classified as such by Manu  and  Katyayana  and
disapproved the extension given by Yajnavalkya. Stridhana must  be  confined
to such property of a woman over which she possesses an unfettered power  of
disposal. This power depends upon the  School  to  which  she  belongs,  her
status at the time of acquisition and the source of such acquisition.

469. Source of acquisition.- The source of  acquisition  of  property  in  a
woman’s possession are the following:-

Gifts before marriage,
Wedding gifts,
Gifts subsequent to marriage
Self-acquisitions
Inheritance
Purchase
Partition
Adverse possession
Maintenance claim
10.Other sources”


Definition of Streedhana is adverted to by the High Court at para 12 of  the
impugned judgment which reads as under:-

“12. Streedhana i.e., a woman’s peculium is a property :-

given to a woman before the nuptial fire (adhyagni)

given at the bridal procession (adhyavahanika)

given in token of the love (dattam pritikarmini) and

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)”

31. The High Court referred to Vigneswara’s  expansion  of  the  term  “adi”
which  includes  all  those  properties  that  a  woman   may   acquire   by
inheritance, purchase, partition and seizure. The said  expanded  definition
of “Streedhana” by Vigneswara was not accepted by the Privy Council in  Sheo
Shankar Lal v. Debi Sahai[3] and Debi Mangal Prosad Singh v. Mahadeo  Prasad
Singh[4]. The disapproval by the Privy Council of Vigneswara’s expansion  of
“Streedhana” is confined to the Bengal or  Dayabhaga  and  Banaras  Schools.
The said expanded definition of “Streedhana” has generally been accepted  by
the Madras High Court. It is thus evident from the  pleadings  and  evidence
on record that the properties of Valli  are  Streedhana  properties  in  the
absence of any other concrete documentary proof produced by  defendant  Nos.
1 to 9 before the Trial  Court  which  would  have  generally  entitled  her
daughters to have exclusive right over the suit schedule properties.  Having
said so, the learned Judge of the High Court did not record a  finding  that
the Streedhana properties of Valli exclusively belong to her  daughters  and
they have been out of possession from the said properties for more  than  50
years which is evident from Exs.-B1 to B6. The undisputed fact is  that  the
original suit was filed by the plaintiffs for partition in  the  year  1990.
The concurrent finding recorded by the courts below  is  that  the  year  of
death of Valli, the mother  of  the  plaintiff  No.  1  and  grandmother  of
plaintiff Nos. 2 to 4, was 1942. Undisputedly, the possession  of  the  suit
schedule properties has been with  the  deceased  sons  namely,  Kunhan  and
Ayyappan during their life and thereafter defendant Nos. 1  to  9  for  more
than 50 years, therefore, their plea that they have  perfected  their  title
to the suit schedule properties by adverse possession as they are  strangers
to the properties in question for the reason that they are not entitled  for
a share of the Streedhana  properties  of  Valli  is  valid  and  legal  and
therefore, the finding of fact recorded by the High  Court  is  correct.  In
view of the said finding of fact recorded by the High  Court  the  defendant
Nos. 1 to 9 will not succeed to the properties  as  they  are  not  the  co-
owners of the properties along with the plaintiff No. 1 and  defendant  Nos.
10 to 17. Their continuous possession of the  suit  schedule  properties  is
adverse possession by ouster of them is proved  by  them  on  the  basis  of
admitted facts and evidence on record. This finding of fact is  recorded  by
the Trial Court on the relevant contentious issue  No.  4  but  the  reasons
assigned by it on the said contentious issue are different from the  reasons
assigned by us, the same has  not  been  accepted  by  the  High  Court  and
reversed the said finding by recording its own reasons at paragraph Nos.  11
and 13 of the impugned judgment which are not  only  erroneous  in  law  but
suffers from error in law. Therefore, we have to answer  the  point  Nos.  1
and 2 in favour of the defendant Nos. 1 to 9 and against the  plaintiff  No.
1 and defendant Nos. 10 to 17.

32.   The High Court has referred to the Ex.-A1 but did not record  positive
finding on this aspect of the case holding that the daughters of  Valli  are
exclusively entitled to the suit schedule properties as the said  properties
are her Streedhana properties.  The  same  has  been  referred  to  for  the
purpose of considering the  adverse  possession  of  ouster  as  pleaded  by
defendant Nos. 1 to 9 in their written statement.  On  this  aspect  of  the
case the  finding  is  recorded  by  the  High  Court  against  them,  after
referring to the provisions of the Kerala Court Fee Act. Further,  there  is
neither any prayer made by the plaintiffs for recovery of possession of  the
suit schedule properties nor payment of court fee paid  by  them  under  the
provisions of the Act. The said submission made on behalf of  the  defendant
Nos. 1 to 9 was not accepted  by  the  High  Court  by  recording  untenable
reason at para 9 of the impugned judgment.

33.   The Trial Court being a fact finding court, on proper appreciation  of
pleadings, documentary and oral evidence on record, has rightly come to  the
conclusion and held that Valli  died  during  life  time  of  her  children.
Thereafter fathers of defendant Nos. 1 to 9 were  in  possession  and  after
their death they have been in possession and enjoyment of the suit  schedule
properties exclusively as the owners. Therefore, they have  perfected  their
title to the suit schedule properties by adverse possession  and  ouster  of
the plaintiff No. 1 and defendant Nos. 10  to  17.  Hence,  the  High  Court
should not have interfered with the finding of fact recorded  by  the  Trial
Court on the relevant contentious issue No. 4 based  on  legal  evidence  on
record, the said finding has been erroneously set aside by  the  High  Court
in exercise of  its  appellate  jurisdiction  and  therefore,  the  impugned
judgment is liable to be set aside.

34.   The learned counsel for the defendant Nos. 1 to 9 have rightly  relied
upon the judgment of this Court in support of their contention in  the  case
of Amrendra Pratap Singh v. Tej  Bahadur  Prajapati[5]  wherein  this  Court
held as under :-
“What is adverse possession?
22. 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
twelve years calculated from the date when the possession of  the  defendant
becomes adverse to the plaintiff. By virtue of Section 27 of the  Limitation
Act, on the [pic]determination of the period  limited  by  the  Act  to  any
person for instituting a suit for possession of any 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 on to himself and such prescription having  continued  for
a period of twelve years, he acquires title not on his own  but  on  account
of the default or inaction on the part of the real  owner,  which  stretched
over a period of twelve years, results  in  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
wrongdoing 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 wrongdoer and re-enter into  possession,  has  defaulted  and
remained inactive for a period of twelve  years,  which  the  law  considers
reasonable for attracting the said penalty. Inaction for a period of  twelve
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.

23. 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
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  recognised  by  the
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 wrongdoer 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.”

Further, he  relied  upon  the  judgment  in  the  case  of  Sunder  Das  v.
Gajananrao[6], wherein it was held by this Court as under :-
“The evidence of Defendant 1 when read in  its  correct  perspective  showed
that he was informed by one Ganpati that the property belonged to  King  and
the  King  of  Datia  had  given  it  to  the  ancestor  of  the  plaintiffs
[pic]Mukundrao to stay therein and accordingly he thought that  Defendant  6
would not be having title to the property. It must be kept in view that  the
plaintiffs’ ancestor  Mukundrao  had  died  60  years  prior  to  the  suit.
Therefore, even if originally the property might have belonged to  the  King
it was  being  occupied  by  the  plaintiffs’  ancestor  Mukundrao  and  his
descendants since generations as owners thereof  and  even  by  doctrine  of
adverse possession they would have perfected their title.  It  may  also  be
kept in view that there was nothing on the record to suggest that  the  King
of Datia had ever attempted to put forward any claim of ownership  over  the
suit property. Even that apart  it  was  not  the  case  of  the  plaintiffs
themselves that the suit property did not belong to their  father  or  their
ancestors. On the contrary their case is that the suit house did  belong  to
their father jointly with them. Therefore, it is too late  in  the  day  for
the learned counsel for the plaintiffs to submit that  suit  house  did  not
belong to the plaintiffs and, their father or that at the time of  the  sale
plaintiffs’ father had no right, title or interest in  the  suit  house.  In
our view the evidence on record  clearly  establishes  that  the  defendants
made all permissible efforts to find out the legal necessity which  prompted
Defendant 6 to enter into the said transaction in their favour.”


Therefore, based on  the  above  mentioned  cases,  it  is  clear  that  the
plaintiff No. 1 and defendant Nos. 10 to 17 have lost  their  title  to  the
suit schedule properties essentially because of their default and  inaction,
which has stretched over a period of more than 50 years. Thus, their  rights
were lost by operation of law and doctrine of adverse possession.

35. The High Court held that the daughters of Valli alone would be  entitled
to the suit properties but  the  Trial  Court  has  held  on  the  basis  of
evidence on  record  that  they  were  excluded  from  possession  by  their
brothers for more than 50 years from the date  of  death  of  Valli.  Hence,
their rights, if any, are lost by  adverse  possession  and  by  ouster  and
their claim is barred by limitation.


Answer to Point No. 3

36.   The deceased plaintiff No.1 and defendant         Nos. 10 to  17  have
not pleaded the custom which was prevalent in their  community  under  which
the  daughters  of  deceased  Valli  were  governed,  for  performing  their
marriage.  They have also not pleaded that  they  were  not  given  away  in
marriage in Kudivaippu form after payment of Streedhana to  disentitle  them
from their share upon the intestate properties of deceased Valli.  The  High
Court has gravely erred in not  adverting  to  the  aforesaid  fact  in  its
judgment. Therefore, the reliance placed  upon  the  decision  of  the  High
Court in Kochan Kani Kunjurama Kani (supra) has been judiciously  recognized
which applies to the said principle regarding the valid custom prevalent  in
the community of Valli modifying  pristine  Hindu  Law  which  entitles  the
married daughters share in  the  properties  of  their  mother’s  Streedhana
properties.

     The prevalence of such approved custom of Kudivaippu in  the  community
is accepted by the defendant Nos. 1 to 9, as they have taken that  stand  in
their written statement contending that  the  daughters  of  deceased  Valli
were given Streedhana money at the time of  their  marriage  and  therefore,
they are not entitled for share in the suit schedule properties  by  way  of
partition which is an erroneous and untenable contention for want  of  legal
evidence produced by them on record before the Trial Court.

In view of the pleadings and evidences of defendant Nos. 1 to  9  on  record
regarding custom of marriage  prevalent  and  practiced  in  the  family  of
plaintiff No. 1 and mother of defendant  Nos.  10  to  17,  the  High  Court
recorded the finding of fact holding that the marriage of the two  daughters
of Valli were not celebrated in the Kudivaippu form and  therefore,  it  has
rightly held that the plaintiff  No.1  and  defendant  Nos.  10  to  17  are
entitled to their share in the suit schedule properties, which  is  left  by
Valli as the same were her Streedhana properties.

37. The High Court has come to the right conclusion by shifting  the  burden
of proof on the defendant Nos. 1 to 9 to prove  the  fact  of  the  type  of
marriage of the deceased plaintiff No.  1  and  Ammalukutty.  The  defendant
Nos. 1 to 9 did not produce evidence to prove the fact that the marriage  of
the daughters of deceased Valli was performed by following  Kudivaippu  form
but not in Sambandam form, to disentitle their claim upon the suit  schedule
properties of Valli and therefore, they are not  sharers  of  the  same.  In
view of the pleadings and evidence on record of defendant Nos. 1  to  9,  we
have to record the finding  of  fact  that  the  marriage  of  daughters  of
deceased Valli was not in Kudivaippu form and therefore,  the  daughters  of
deceased Valli alone are entitled to succeed  to  her  intestate  properties
who are her legal heirs. This finding we have recorded in this  judgment  on
the basis of the judgments of  Privy  Council  and  the  Madras  High  Court
(supra) referred to in the impugned judgment by the High Court.

38.  Further, under the pristine Hindu Law, it is the settled  and  admitted
position of law that married daughters are not entitled to a share if  their
marriage was in Kudivaippu form after payment of Streedhana to them  at  the
time of their marriage. It has  been  established  from  the  pleadings  and
evidence on record that the marriage of daughters of deceased Valli was  not
in the Kudivaippu form  as the defendant Nos. 1 to 9 have  failed  to  prove
otherwise.

39.  The plaintiff No.1 and defendant Nos. 10 to 17 have however, failed  to
establish other necessary aspects for getting the decree  for  partition  of
the suit schedule properties, as claimed by them in  view  of  the  findings
and reasons recorded by us on the contentious point No. 2 framed  by  us  in
this case. In the absence of evidence on record to show that they  were  not
ousted from possession from the suit schedule properties and that they  have
been in joint possession of the same with  their  deceased  brothers  during
their life time and thereafter with their legal representatives as  the  co-
sharers, the finding of fact recorded by the Trial Court on this  aspect  of
the case cannot be disputed with. The defendant Nos.  1  to  9  have  stated
that the daughters of deceased Valli were married in  the  Kudivaippu  form.
However, they have failed to prove the same. However, the  Trial  Court  has
recorded its finding on the  contentious  issue  No.  4  in  favour  of  the
defendant Nos. 1 to 9 on the basis  of  undisputed  facts  and  evidence  on
record, it has rightly held that the above defendants have  perfected  their
title to the suit schedule  properties  by  way  of  adverse  possession  by
ouster of the plaintiff No. 1 and defendant Nos. 10  to  17  from  the  said
properties, which finding of fact is accepted by us  by  recording  our  own
reasons in this judgment. Therefore, we have to hold that the  daughters  of
Valli are excluded from their rights upon the suit  schedule  properties  of
Valli and are not entitled for the share as claimed by them in their suit.

       Accordingly,  we  answer  the  point  No.  3  against   the
plaintiff No.1 and defendant Nos. 10 to 17.

Answer to point No. 4

40.   This point is also required to be answered  in   favour  of  defendant
Nos. 1 to 9 for the following reasons :-

It is an undisputed fact that after the death  of  Valli  partition  of  the
suit schedule properties  was made between  the  fathers  of  the  defendant
Nos. 1 to 9, they have been in continuous  possession  of  their  respective
shares  in terms of the partition deed  by ouster of the deceased  plaintiff
No. 1 and mother of defendant Nos. 10 to 17  thereby   they  have  perfected
their title to the properties as owners. There was  litigation  between  the
fathers of the defendant Nos. 1 to 9 in relation to the said  partition,  no
doubt, the father of the defendant Nos. 8 and  9  failed  in  the  aforesaid
civil litigation as per the documentary evidence-Exs.-B2 to  B4.  Therefore,
the same is binding on the father of defendant Nos. 8 and  9.   Accordingly,
we answer the point No. 4 in favour of defendant Nos. 1 to 7.


Answer to Point Nos. 5 and 6

41.   The reliance has been placed by the legal  representatives  of  Kunhan
and  Ayyappan  i.e.  defendant  Nos.  1  to  9  on  the  basis  of  purchase
certificate-Exs.-B5 and B6 as they have obtained purchase  certificate  from
the competent Land Tribunal in respect of the partitioned properties,  which
have been in their possession as per Ex.-B1, partition deed  and  therefore,
they have claimed  that  they  are  either  cultivating  tenants  or  deemed
tenants in possession of the  land  in  question  under  the  provisions  of
Section 4A of the Kerala Land Reforms Act,  1963.  The  said  stand  of  the
defendant Nos. 1 to 9 is wholly untenable in law for the reason  that  their
fathers were not the tenants of the suit  schedule  properties  under  their
mother, in this regard there is no evidence adduced  by  them.  Though  they
obtained purchase certificate from the Land Tribunal on the  claim  made  by
their fathers that they were either cultivating tenants  or  deemed  tenants
as defined under Section 2(8)  or  under  Section  4A  (a)  of  Kerala  Land
Reforms Act, respectively  and  therefore,  the  application  filed  by  the
deceased Kunhan and Ayyappan for grant of purchase  certificate  before  the
Land Tribunal on the basis of their claim as aforesaid is  not  maintainable
in law.

42.    The  plea  urged  by  the  above  said   persons   that   they   were
cultivating/deemed  tenants  of  the  suit  schedule  properties  is  wholly
misconceived for the reason that provisions of Sections 2 to 71, 73  to  82,
84, 99 to 108 and 110 to 132 of Kerala Land Reforms  Act,  1963,  came  into
force with effect from 01.04.1964 i.e. after the death of Valli in the  year
1942. Section 72 of  the  Kerala  Land  Reforms  Act  regarding  vesting  of
landlord’s rights upon the tenanted agricultural  lands  in  the  State  was
substituted  by  Act  35  of  1969,  published   in   the   Kerala   Gazette
Extraordinary dated  17.12.1969  and  came  into  force  w.e.f.  01.01.1970.
Section 4A of the said Kerala Land Reforms Act speaks of certain  mortgagees
and lessees of mortgagees to be deemed tenants. The aforesaid provisions  of
this Act have no application, to the claim of the deceased  fathers  of  the
defendant Nos. 1 to 9, as they could not  have  been  deemed  tenants  under
their deceased mother as  the  Act  came  into  force  from  01.04.1964  and
certain other provisions of Section 4A of the Kerala Land Reforms  Act  were
substituted  w.e.f.  17.12.1969  and  came  into  force  w.e.f.  01.01.1970.
Therefore, the aforesaid provisions have no application to the claim of  the
deceased fathers of defendant Nos. 1 to 9 in respect of  the  suit  schedule
properties. Therefore, the defendant Nos. 1 to 9 placing reliance  upon  the
purchase  certificates  Exs.-B5  and  B6  have  no  relevance  to  the  fact
situation. Therefore, the plea urged  by  them  in  this  regard  is  wholly
untenable in law for the reason that they are  neither  cultivating  tenants
nor deemed tenants of the suit schedule properties  as there is no  evidence
produced by them in  this  regard  in  the  Original  Suit.  Therefore,  the
purchase certificates which were obtained by  their  deceased  fathers  from
the Land Tribunal have no relevance to the facts of the case.

43.   We have already answered the point No. 3 in favour  of  the  defendant
Nos. 1 to 9 by recording our reasons on the undisputed  facts  and  evidence
on record that  they  have  perfected  their  title  to  the  suit  schedule
properties by  adverse  possession  from  1953  onwards  by  ouster  of  the
daughters of Valli after her death.

44.   Since we have answered point Nos. 3 and 4 in favour of defendant  Nos.
1  to  9  and  we  hold  that  the  plaintiff  Nos.  2  to  4,   the   legal
representatives of deceased Apputty (son of Valli),  are  not  entitled  for
the share in the suit schedule properties by  way  of  partition.  The  suit
schedule properties are Streedhana properties of Valli and after  the  death
of Valli, the said properties have come into  the  possession  of  her  sons
namely, Kunhan and Ayyappan  vide  partition  deed-Ex.-B1  executed  between
them. Therefore, we have to answer the aforesaid point against them as  they
are not  entitled  to  the  shares  in  the  suit  schedule  properties  and
therefore, they  are  not  entitled  for  partition  of  the  suit  schedule
properties. Since, we have answered the  point  Nos.  1  to  4  against  the
plaintiff No. 1 and in favour of the defendant Nos. 1  to  9,  the  impugned
judgment is liable to be set aside and we restore the judgment of the  Trial
Court, but for the reasons stated by us on the point  No.  2  framed  by  us
regarding adverse possession of the suit schedule  properties  of  defendant
Nos. 1 to 9. They have perfected their title upon  their  respective  extent
of the suit schedule properties. The plaintiffs and defendant Nos. 10 to  17
are not entitled for the relief as prayed by them for the  reasons  assigned
above on the contentious points.

45.   For the foregoing reasons, we allow the appeal of the  defendant  Nos.
1 to 9 and set aside the impugned judgment and decree of the High Court  and
restore the judgment and decree passed by the  Trial  Court.  But  no  costs
awarded.




                                …………………………………………………J.
                                          [DIPAK MISRA]




                             …………………………………………………J.
                             [V. GOPALA GOWDA]

New Delhi,                                         August 28, 2014

                           -----------------------
[1]     1971 K.L.T. 609
[2]     (2004) 10 SCC 65
[3]     (1903) ILR 25 ALL
[4]     (1912)  14 BOMLR 220
[5]    (2004) 10 SCC 65
[6]    (1997) 9 SCC 701

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