PACHU Vs. CHIRUTHA

JUDGEMENT

(1.) Defendants 1, 4, 6,10, 11, 32 and 33 are the appellants. The suit is for partition. The plaint schedule properties originally belonged to Koran @ Cherooty and on his death the properties devolved upon his three sons, Pachu, Kandan and Kuttayi. Plaintiff is the daughter of Pachu. Defendants 17 to 24 and 25 and 26 are the children of two other daughters of Pachu. The suit for partition was resisted on the basis of Ext. B - 1 which was executed on 24th February, 1953 between the legal heirs of Kandan and Kuttayi. Under that document, the rights of Imbichi Manikyam, the wife of Pachu, for maintenance by taking the income from certain trees was recognised. According to the defendants, the plaintiff is not entitled to claim any right for partition as Pachu died before the Hindu Succession Act came into force and his right survived to the other two brothers. The Trial Court found that Pachu died before the commencement of the Hindu Womens Right to Property Act and therefore the suit was dismissed. In appeal, the lower appellate court has reserved the same and granted a decree declaring that Imbichi Manikyam had a right of maintenance over the joint property and that right is enlarged to a full right under S.14(1) of the Hindu Succession Act.

(2.) The following questions of law are raised in the Second Appeal.

(3.) The learned Counsel for the appellant pointed out that under the provisions of Ext. B - 1, there is a right to Imbichi Manikyam to take the usufructs from eight coconut trees and one jack tree and therefore she had no possession of the property by virtue of that document. A decision of this Court in Pachi Krishnamma v. Kumaran Krishnan ( AIR 1982 Ker. 137 ) is also relied on by the Counsel for the appellant. It is stated in that judgment that the right of a Hindu widow is only to be maintained from out of the income of the joint family properties and that it is a charge on that property itself. But that does not mean that she has a right to possession of joint family property as she is not a coparcener entitled to claim its possession along with other members. It is further stated that the plaintiff can have no right to demand partition of the joint family properties under S.14(1) of the Hindu Succession Act.