VALLIYAMMA Vs. VELU

JUDGEMENT

(1.) HAS a daughter born in the Thiyya community of Trichur Taluk,a share in her patrimony prior to 1115 M.E.?,is the question which arises in the second appeal.The courts below have answered it in divergent ways,the Trial Court answering it in the affirmative and the lower appellate court in the negative.The second appeal at the instance of the plaintiff worsted in her litigation challenges the correctness of the view taken by the court below.

(2.) THE facts are simple.Ayyappan,father of the plaintiff,who acquired the plaint schedule properties by virtue of the partition deed Ext,A4 dated 24 -19 -1097 and the assignment Ext.A3 dated 7 -1 -1103,died in 1108 M.E.He had four daughters - Paru,Kunchi,Sarada and the plaintiff - and one son.the defendant.Paru and Kunchi executed Ext.A5 dated 25 -6 -1109 releasing:rights in respect of the assets of their father after having received a sum of Rs.100/ - towards their share.Under Ext.A6 dated 7 -5 -1965 Sarada assigned her rights in respect of the plaint schedule for a consideration of Rs.300;the document recites that Paru,Kunchi and the plaintiff were the sisters of the defendant and that they and the 1st defendant were the daughters and son born to Ayyappan.A reference is also made to Ext.A5 in the assignment deed Ext.A6.Claiming that the plaintiff remained in joint possession of the properties,she sent a lawyer's notice Ext.A1 on 28 -6 -1971 demanding a share in the property.The claim was repudiated by the reply Ext.dated 8 -7 -1971.The suit was,thereafter instituted on 5 -8 -1971.

(3.) THE Trial Court decreed the plaintiff's claim on the basis of the Hindu Succession Act,for,obviously succession opened long prior to the coming into force of that enactment,even prior to the Cochin Makkathayam Thiyya Act of 1115.The law applicable is the law as it stood prior to 1115,when the latter enactment(Cochin Marumakkathayam Thiyya Act of 1115)came into force,which made -for the first time the statutory provision conferring rights on the daughters in the family.