RAMACHANDRAN Vs. K RADHAKRISHNAN

JUDGEMENT

(1.) Appellant is the second defendant in O.S.No. 527/2000 on the file of Principal Munsiff Court, Kozhikode, a suit for partition instituted by the Choyikutty, the deceased plaintiff. The plaint schedule properties admittedly originally belonged to Chetukuttikomath Kelu and his brother Kunhikoru @ Appukuttan under registered partition deed 1601/1930. Kelu admittedly died prior to 1956. Kunhikoru died in 1978. Defendants 1,2 Rugmini and Karthiayani are the children of Kelu. His wife also died. Third defendant is the only son and legal heir of Rugmini who died in 1985. Plaintiff is the husband of Karthiayani. Karthiayani died on 18.3.2000. On the death of first defendant, fourth defendant his wife was impleaded. It is also the admitted case that on the death of Kelu, his one half right in the plaint schedule properties devolved only on his sons, defendants 1 and 2 as they are Thiyyas of Kozhikode and are governed by Makathayam Law of inheritance. The wife of Kunhikoru admittedly predeceased Kunhikoru. As Kunhikoru died subsequent to the commencement of The Kerala Joint Hindu Family System (Abolition) Act, 1975, his rights devolved on his legal heirs. According to the plaintiff, on the death of Kunhikoru, his rights devolved on defendants 1, 2. Rugmini and Karthiayani, the children of his deceased brother Kelu and on the death of Karthiayani, who died issue less, her right devolved only on her husband, the plaintiff. Plaintiff sought partition and separation of his share.

(2.) Defendants 3 and 4 remained absent and were set ex parte. Appellant in his written statement admitted that plaint schedule properties belonged to Kelu and Kunhikoru as per partition deed No. 1601/1930 and they were in joint possession and on the death of Kelu, his rights devolved on defendants 1 and 2 as they are members of Thiyya community of Malabar and only male children will inherit and daughters will not inherit to the estate. It was contended that Karthiayani and Rugmini are not members of the family of Kelu but members of their husband's family and wife of KunhiKoru predeceased him. It was contended that when Kunhikoru died issue less, as per the custom prevailing among the Thiyya community the one half share due to Kunhikoru under Ext.Al in the plaint schedule properties devolved on defendants 1 and 2 alone and Karthiayani and Rugmini did not inherit the properties and therefore the plaintiff is not entitled to claim any share. It was also contended that in any event husband of Karthiayani is not entitled to claim the share. It was further contended that O.S. 668/1991 was filed for partition of the plaint schedule properties before Sub Court, Kozhikode and a preliminary decree was passed on 13.11.1995 allotting equal shares to defendants 1 and 2 a,id a final decree was also passed on 28.10.1998 and plaintiff and third defendant are not entitled to any share and the suit is only to be dismissed.

(3.) Learned Munsiff on the evidence of PW 1, DWI, Exts.Al to A3, and BI to B3 dismissed the suit holding that parties are governed by Mitakshara law and plaint schedule properties are admittedly ancestral property and under S. I5(2)(a) of Hindu Succession Act, on the death of a female Hindu dying issue less, the property will devolve only on the relatives of her father and as Karthiayani and Rugmini were not members of the family of Kelu, they are not entitled to any share.