KANDATHY Vs. KUTTYMAMMI

JUDGEMENT

(1.) Law regulates life and the problems of the law are really problems of life. I am therefore baffled when called upon to declare the law of inheritance to property of Pulaya Harijans prevailing half a century ago when they were themselves often de facto owned as the property of others and annexed, as it were, to their lands rather than owning lands as their property to be inherited by others. Today their economic lot has improved, at snail's pace though, and the law of succession is now in no doubt, thanks to the Hindu Succession Act, 1956. The case, however, relates to one who died at the turn of the century, having acquired and left behind a plot of land. His tiny estate has bred litigation among his descendants.

(2.) The few facts necessary to appreciate the controversy involved in this appeal, may now be briefly stated. One Theyyon - quite an adventurous man, judging by the fact that he had acquired a property as early as 1892 when the community to which he belonged was 'untouchable' and 'unapproachable' to landed property, and was being bought and sold as chattel had died leaving neither wife nor children but a sister called Korumbi. She was the only object of his affection and sole heir to his estate, according to both parties. On Korumbi's death, her children, Aryan, Kandathi and Veluthiru, took as heirs together with Kandathi's children, defendants 2, 3 and 4 - according to the present case of the plaintiff. Succession, Marumakkathayam fashion, is put forward as the correct rule, by the contesting defendants. If Korumbi was governed by the Makathayam system, the plaintiff's case will be vindicated, while if she was governed by the Marumakathayam system, the contention of the defendants appellants will stand substantiated. Thus, the bone of contention between the parties is as to which system regulates Korumbi's inheritance.

(3.) The plaintiff a non harijan, bad shrewdly taken of course, for cash consideration, as counsel for the respondent reminded me assignments under Ext. A2 and A3 from both groups. There was an earlier suit, O. S. No. 716 of 1960 whereunder one Onakkan and two others claimed partition of the suit property on the basis that the estate of Korumbi devolved on her Marumakkathayam heirs. That suit was contested by the present defendants on the footing that the propositus was governed by the Makkathayam system of inheritance. Meanwhile, came the plaintiff on the scene and took an assignment the rights of the plaintiffs in O. S. No. 716 of 1960 and some others who would have had a share if the Marumakkathayam system applied to the case. With commercial prudence he also took an assignment from two out of the three possible Makkathayam heirs under Exs. A2 and A3, as earlier mentioned. Probably, as counsel for the respondent explained, these assignments were taken by him as a result of a broad understanding among the parties to the first suit, because it is seen that, as a sequel, O. S. No. 716 of 1960 was not pressed and was dismissed. However, in life there is many a slip between the lip and the cup and the assignee has had to face a litigation before getting the benefit of his purchases because his suit for a partition of the 2/3rd share (there were 3 children for Korumbi and Exs. A2 and A3 vested 2/3 share in the plaintiff) is being resisted by the third child and daughter, 1st defendant, and her children, defendants, 2, 3 and 4 who would be entitled to 1/3 out of the estate if the Makkathayam system applied to Korumbi and to more otherwise. Although the plaint when originally filed did not clarify whether the plaintiff sought relief on the basis of Makkathayam or Marumakkathayam, now he has staked his case on the Makkathayam basis and the suit and appeal have proceeded on the footing that the plaintiff's case has to be judged by the applicability or otherwise of the Makkathayam system to Korumbi. I mention this pointedly because counsel for the respondent has requested that if this appeal were to result in a remand and a fresh trial of the suit, he should be given an opportunity to rely, alternatively, on his right under Ext. A4 which is a surrender of the rights of Onakkan and 7 others who will be heirs of Korumbi in the Marumakkathayam line. He would, of course, be entitled to augment his rights under Exs. A2 and A3 even on the basis of Marumakkathayam because Aryan and Veluthura, the children of Korumbi, would be heirs under either system.