KAMALAKSHI Vs. PANKAJAKSHAN

JUDGEMENT

(1.) Plaintiff in a suit for partition is the appellant. The appellant contended that the plaint A schedule property was allotted to the appellant, respondent, their deceased sister Lalitha and their parents in a partition of 1948. Their father Korappan died in 1956 and their mother Madhavi died in 1984. Lalitha had predeceased Madhavi and according to the appellant herself and the respondent are the only sharers. Plaint 'B' schedule are the moveable properties which belonged to the father" Korappan and mother Madhavi. During the lifetime of Madhavi she executed a giftdeed in favour of the respondent and this gift was obtained by deceitful means. Madhavi later knew about the fraud played on her and she cancelled the giftdeed. The appellant sued for 1/2 of the plaint schedule property. The respondent contended that the parties are 'Makkathayi Thiyyas' of Kozhikode governed by customary Law, which is Mithakshara law as amended by statute. Respondent contended that 'A' schedule property belonged to Pandarakkandy lyyappadi tarwad and there was a partition in 1948 and only the male members of each branch had right in the properties and the family members had only the right of maintenance. No other right was conferred as per the document of 1948. The daughters had no pre-existing interest in the joint family property. Even though the appellant plaintiff is a member of the family, she is not entitled to any property, Korappan died in 1956 prior to the commencement of the Hindu Succession Act. Widow Madhavi surrendered her 1/2 right in the property. This she acquired as per the provisions of the Hindu Women's Right to Property Act. In 1973 Madhavi had borrowed Rs. 1,900 from the respondent by executing a registered mortgage deed. In 1980 Madhavi executed a surrender deed in favour of the respondent. Madhavi filed indigent O.P. 1/81 for cancellation of the surrender deed. That was later converted into O.S. 336/81. Pending this suit Madhavi died. The appellant was a party to that suit, but failed to take further steps in the matter by transposing herself as the plaintiff.

(2.) On the side of the plaintiff Exts. A1 and A2 were marked and Exts. B1 to B24 were marked on the side of the defendant. Ext. X1 also was got marked, which is copies of oral evidence given before the R.D.O., Kozhikode. Originally the suit was decreed granting 1/4 share to the plaintiff in respect of 'A' schedule item. Respondent filed A.S. 96/84 before this Court and the matter was remanded for fresh disposal. After the remand the plaintiff filed I.A. 1508/84 claiming 6/15 share. This interlocutory application was dismissed and the plaintiff filed C.R.P. 72/87 before this Court. The civil revision petition was dismissed along with A.S. 96/85. Subsequent to the remand the respondent filed additional written statement, wherein it was stated that there was a settlement deed between Theyyan, the grandfather of the appellant and respondent, and Korappan. The present 'A' schedule property was set apart to executants 1 to 11 therein and the male members born to them and the 'B' schedule therein was set apart to the executants 12 to 15 and the male members born to them. This property was later dealt with in 1948 partition and it was specifically mentioned that apart from the maintenance till marriage the female members may not have any right. The respondent also contended that as per the custom of community the female members have no right or share in the property.

(3.) The appellant filed rejoinder and denied all the averments in the additional written statement. She also contended that on the death of Korappan alias Sami in 1956 succession did not open by the intervention of the limited ownership of the widow, Madhavi. Madhavi died in 1984 and then only the succession opened. Plain 'A' schedule property was a separate property of appellant's father Korappan. Therefore the succession would take place only in accordance with the provisions of the Hindu Succession Act. Lalitha died in 1972 and she had been residing with her husband till her death. But the surrender deed executed by Madhavi did not confer any right on the respondent.