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)”
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?
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
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 excludedfrom 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.
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.
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
