UMARAPARVATHY Vs. BHAGVATHY AMMA

JUDGEMENT

(1.) THE plaintiff is the appellant. She was the first wife of one Thanamalayan Pillai. The first defendant is the second wife of the said Thanamalayan Pillai. The first defendant is the second wife of the said Thanamalayan Pillai. Defendants 2 to 7 are the children of Thanumalayan Pillai through the second wife. The plaintiff has no child. She has filed this suit for partition of the suit properties, claiming a half share in them, and for possession. She claims that as per the custom prevailing in krishnavaka Community to which the parties to the suit belong, she is entitled to claim one half of the suit properties. The defendants, though did not dispute the custom as such, claimed that that custom did not enable a female member to claim the status of an heir along with the sons and that therefore the plaintiff was not entitled to any relief. The trial court dismissed the claim of the plaintiff to a half share in the suit properties, but held that she would be entitled to a 1/56th share in items 2 to 4 of the plaint schedule, under the Hindu Succession Act of 1956. The appeal filed by the plaintiff was also dismissed, confirming the decree of the trial court, though a partial relief was granted as to the properties that were liable for partition. It may be mentioned that the trial court disallowed the claim of the plaintiff that items 1 and 7 of the plaint schedule belonged to the joint family. In the appeal filed by the plaintiff, the lower appellate court has allowed the claim of the plaintiff so far as item 1 of the plaint schedule is concerned and rejected her claim relating to item 7 of the plaint schedule.

(2.) IT is alleged in paragraph 4 of the plaint that there is a custom recognised by and prevalent in Krishnavaka community known as patnibhagam. The custom pleaded by the plaintiff has received judicial recognition in a number of decided cases. But what exactly this patnibhagam custom claimed by the plaintiff connotes is the real issue in this second appeal. While the learned counsel for the appellant would contend that even in cases where one of the wives did not have any children, she would be entitled to a half share, the learned counsel appearing for the respondents-defendants would content that the plaintiff would not be entitled to any share under that custom. The principle is stated in "hindu Law" by N. R. Raghavachariar, 6th Edn. at page 409 as follows:

(3.) THE term 'patnibhagam' is explained by Sirkar Sastri in his treatise on Hindu law thus:-" the division by number of sons is called putrabhaga, but there exists a custom, in some parts of India, called patnibhag by which the division is according to the number of wives and the sons by each wife constitute a unit. " in Bangaru Pillai Saraswathiamma v. Thanu Pillai,. 1944 Trav LR 710, it has been held that Krishnavakakars are governed by the Hindu Law with only a few points of divergence from it one such divergence being the custom known as patnibhagam. The custom serves to import only the idea that division of family property among sons of a member of that community must be according to the number of his wives instead of the division being among all his sons equally. This peculiar mode of division known as patnibhagam is distinct from the general mode of division of putrabhagam recognised by Hindu Law.