Hindu Succession Act, 1956 – Ss. 8, 15(2)(a) & 16 – Kerala Joint Hindu Family System (Abolition) Act, 1975 – Interpretation of Statutes – When sub section 2(a) makes it clear and gives no room for doubt that only the property inherited by the Hindu female from her father and mother is covered by the exception provided thereunder, it is not possible to widen the ambit of the section by substituting the words father’s side or mother’s side. It would amount to legislating which is impermissible in law.
2011 (3) KLT 741 : 2011 (3) KLJ 683 : ILR 2011 (3) Ker. 879 : 2011 (3) KHC 537
IN THE HIGH COURT OF KERALA
M. SASIDHARAN NAMBIAR, J.
Dated this the 25th day of July, 2011
R.S.A. No. 508 of 2011
For Appellant : V.V. Surendran; P.A. Harish
J U D G M E N T
Appellant is the second defendant in O.S.No.527/2000 on the file of Principal Munsiff Court, Kozhikode, a suit for partition instituted by the Choyikutty, the deceased plaintiff. The plaint schedule properties admittedly originally belonged to Cherukuttikomath Kelu and his brother Kunhikoru @ Appukuttan under registered partition deed 1601/1930. Kelu admittedly died prior to 1956. Kunhikoru died in 1978. Defendants 1, 2 Rugmini and Karthiayani are the children of Kelu. His wife also died. Third defendant is the only son and legal heir of Rugmini who died in 1985. Plaintiff is the husband of Karthiayani. Karthiayani died on 18.3.2000. On the death of first defendant, fourth defendant his wife was impleaded. It is also the admitted case that on the death of Kelu, his one half right in the plaint schedule properties devolved only on his sons, defendants 1 and 2 as they are Thiyyas of Kozhikode and are governed by Makathayam Law of inheritance. The wife of Kunhikoru admittedly predeceased Kunhikoru. As Kunhikoru died subsequent to the commencement of
The Kerala Joint Hindu Family System (Abolition) Act, 1975
his rights devolved on his legal heirs. According to the plaintiff, on the death of Kunhikoru, his rights devolved on defendants 1, 2, Rugmini and Karthiayani, the children of his deceased brother Kelu and on the death of Karthiayani, who died issueless, her right devolved only on her husband, the plaintiff. Plaintiff sought partition and separation of his share.
2. Defendants 3 and 4 remained absent and were set ex parte. Appellant in his written statement admitted that plaint schedule properties belonged to Kelu and Kunhikoru as per partition deed No. 1601/1930 and they were in joint possession and on the death of Kelu, his rights devolved on defendants 1 and 2 as they are members of Thiyya community of Malabar and only male children will inherit and daughters will not inherit to the estate. It was contended that Karthiayani and Rugmini are not members of the family of Kelu but members of their husband’s family and wife of Kunhikoru pre-deceased him. It was contended that when Kunhikoru died issueless, as per the custom prevailing among the Thiyya community the one half share due to Kunhikoru under Ext.A1 in the plaint schedule properties devolved on defendants 1 and 2 alone and Karthiayani and Rugmini did not inherit the properties and therefore the plaintiff is not entitled to claim any share. It was also contended that in any event husband of Karthiayani is not entitled to claim the share. It was further contended that O.S.668/1991 was filed for partition of the plaint schedule properties before Sub Court, Kozhikode and a preliminary decree was passed on 13.11.1995 allotting equal shares to defendants 1 and 2 and a final decree was also passed on 28.10.1998 and plaintiff and third defendant are not entitled to any share and the suit is only to be dismissed.
3. Learned Munsiff on the evidence of PW1, DW1, Exts.A1 to A3, and B1 to B3 dismissed the suit holding that parties are governed by Mitakshara law and plaint schedule properties are admittedly ancestral property and under
Section 15(2)(a) of Hindu Succession Act
on the death of a female Hindu dying issueless, the property will devolve only on the relatives of her father and as Karthiayani and Rugmini were not members of the family of Kelu, they are not entitled to any share.
4. Plaintiff challenged the judgment before Additional District Court, Kozhikode in A.S.41/2006. On the death of the original plaintiff, respondents 1 to 9 being his legal heirs were impleaded. In the first appeal son of the second defendant filed an application contending that the second respondent is insane and therefore he is to be appointed the guardian. He was appointed the guardian. Learned Additional District Judge on reappreciation of the evidence found that Kunhikoru died subsequent to the commencement of Kerala Joint Hindu Family System (Abolition) Act, 1975 and hence on his death, his rights devolved on all his legal heirs as provided under the Hindu Succession Act, including the daughters of Kelu namely Karthiayani and Rugmini and on the death of Karthiayani, her right devolved on plaintiff her husband and section 15 (2)(a) of Hindu Succession Act has no application. A preliminary decree was passed. It is challenged in the second appeal.
5. Learned counsel appearing for the appellant was heard.
6. The argument of Mr. P.A. Harish learned counsel is that plaint schedule properties are properties jointly obtained by Cherukutty Komath Kunhi Kelu and his brother Kunhikoru and on the death of Kelu before 1956, his rights devolved only on his sons and his daughters, Karthiayani and Rugmini did not inherit the right. It was argued that though Kunhikoru died after 1975 and on his death his one half right devolved on his legal heirs including Karthiayani, in view of Section 15 (2) (a), on her death her right would devolve not on her husband but on the heirs of her father namely defendants 1 and 2 and therefore plaintiff is not entitled to a share. Learned counsel relying on the decision of the Honourable Supreme Court in
State of Punjab v. Balwant Singh and other (1992 Supp (3) SCC 108
V. Dandapani Chettiar v. Balasubramaian Chettiar (2003) 6 SCC 633