CHAKKI AMMA Vs. SUNDARA IYER

JUDGEMENT

(1.) The question that arises in this Second Appeal is whether before the Cochin Makkathayam Thiyya Act (Act XVII of 1115) became law the unmarried daughters of a Thiyya (Ezhava) male dying intestate, leaving no sons, excluded the married daughters from succeeding to his estate. One Kunjan who belonged to the Talappilly Taluk died in 1100 leaving a widow and 4 daughters. The two elder daughters were already married at that time. The plaint schedule property was the only asset left behind by Kunjan on his death. There was a simple mortgage over it in favour of the father of defendant 1. On his father's death defendant 1 put the mortgage in suit in O.S. 120 of 1102 on the file of the Vadakancherry District Munsiff's Court and in execution of the decree passed therein the mortgaged property was brought to sale and defendant 1 himself purchased it. The widow and the two unmarried daughters were alone made parties to the suit. Persuant to the sale certificate issued in his favour defendant 1 obtained possession of the property through court on 16.7.1118. Soon afterwards on 27.7.1118 the present plaintiffs applied for redelivery. Plaintiff 1 is Kunjan's 2nd daughter and plaintiff 2 is the eldest daughter's only daughter. The eldest daughter had died by the time of the delivery of the property to defendant 1. The court dismissed the redelivery application on the ground that the petitioners thereto were not shown to have possession of the property. This was on 16.11.1120 and within one year thereof, to be exact, on 15.11.1121 the suit giving rise to the present Second Appeal was brought by them for cancellation of the order dismissing the application for redelivery and for recovery of possession of the property together with mesne profits.

(2.) Their case was that on Kunjan's death all his daughters became equally entitled to the property, each of them taking a one fourth share. According to them after Kunjan's death his four daughters were in joint possession of the property and as the two elder daughters were not parties to the decree, the decree and the execution sale persuant thereto did not bind the daughters so omitted. Their further case was that as coowners they were entitled to retain possession of the entire property notwithstanding the execution sale and that the only right defendant 1 had as the purchaser of the rights of some coowners was to bring a suit for partition and delivery of their share to him.

(3.) It is well settled by a series of decisions of the Cochin High Court that before the enactment of the Cochin Thiyya Act, the Makkathayam Thiyyas (commonly known in the State as Eazhuvas) were governed by custom or usage and not by the strict principles of Hindu Mithakshara Law. If custom was not proved in a particular case courts used to decide questions of inheritance etc. arising in the case of such parties, according to principles of justice, equity and good conscience. Practically all the decisions bearing on the point are referred to in 1124 (XL) Cochin 179 at 189 (F.B.). In the present case the Trial Court found that the plaintiffs had not succeeded in proving that according to the customary law governing them in the absence of sons, the married and the unmarried daughters of an Ezhuva male dying intestate took equal shares in his properties. All the same time applying the principles of justice, equity and good conscience the learned District Munsiff held that the married and the unmarried daughters must be held to have equal shares in their father's estate and that as the two elder daughters were not parties to the mortgagee's suit, the decree and the execution sale cannot bind them or their heirs, as the case may be. It was further held that as only the shares of some among the coowners and passed to the decree holder purchaser his remedy was to bring a suit for partition. Accordingly the plaintiffs were given a decree substantially in terms of their plaint. The order refusing redelivery was cancelled and the property was directed to be redelivered to the plaintiffs together with mesne profits at the rate claimed in the plaint viz., Rs. 20/- per year.