AMMU Vs. JANU

JUDGEMENT

(1.) Defendants 3 to 8 are the appellants. Plaintiffs (respondents 1 to 4) filed the suit for partition claiming 5/12 shares in the plaint B schedule property. Defendants 3 to 8 contended that since 1st plaintiffs husband Choyikutty died in 1949 without male issues his right over the property reverted to the coparcenary consisting of Thamaran alias Pachu, Ganapathy alias Appu and his male children who are defendants 4 to 7 and that the plaintiffs are not entitled to any share in the property.

(2.) It is not disputed that the parties are governed by Hindu Mitakshara Law. Choyikutty, father of plaintiffs 2 to 4 and husband of 1st plaintiff died before the commencement of the Hindu Succession Act. Contention of the plaintiffs is that by virtue of S.14(1) of the Hindu Succession Act (for short the Act) the right which devolved on the 1st plaintiff after death of her husband has blossomed into full right and so the plaintiffs cannot to denied of their share. On the other hand, it is contended by the defendants that the first plaintiff had no possession in the property and so S.14(1) has no application.

(3.) Both the Courts below held that the first plaintiff was having constructive possession of the property. The lower appellate Court held that though the first plaintiff has not exercised any act of possession either independently or jointly with others the fact that she has been in constructive possession cannot be disputed in view of her statement that she was paid money by the other members of the family and the further fact that the expenses in connection with the marriage of her daughters were met by her husband's father. That apart, there is no evidence on the side of the contesting defendants to show that the first plaintiff was kept out of possession or that there was ouster.