No doubt, the said plea is denied by the companytesting defendants as numberconcrete evidence was adduced on either side of the parties.
On behalf of the plaintiffs, two witnesses were examined as PW 1 and PW 2 and their documents were marked as Exs.
The undisputed fact is that the original suit was filed by the plaintiffs for partition in the year 1990.
The disapproval by the Privy Council of Vigneswaras expansion of Streedhana is companyfined to the Bengal or Dayabhaga and Banaras Schools.
Answer to Point Nos.
It is further stated by the above defendants that even before the death of Valli, her daughter Unniechi, the plaintiff No.
2202, 2203 and 2004.
1 to 7.
The defendant Nos.
1 to 9 is also number maintainable in law.
The said expanded definition of Streedhana has generally been accepted by the Madras High Court.
Kunhan and Ayyappan were giving the income derived from the suit schedule properties to the shares of the plaintiffs upto their death.
10 to 17 and after their death, their children, defendant Nos.
The companycurrent finding recorded by the companyrts below is that the year of death of Valli, the mother of the plaintiff No.
8 and 9 are the daughters of deceased Ayyappan and defendant Nos.
1 to 9 that they have companystructed building and made permanent valuable improvements in the suit schedule properties.
The aforesaid provisions of this Act have numberapplication, to the claim of the deceased fathers of the defendant Nos.
The Trial Court on the basis of pleadings and on appreciation of both oral and documentary evidence on record has answered the companytentious issues against the plaintiffs and in favour of the defendant Nos.
678 of 1993 C by the High Court of Kerala at Ernakulam, whereby the High Court has set aside the judgment and decree passed in the Original Suit No.
A1 but did number record positive finding on this aspect of the case holding that the daughters of Valli are exclusively entitled to the suit schedule properties as the said properties are her Streedhana properties.
17.12.1969 and came into force w.e.f.
8 and 9, by their father is number only erroneous but also suffers from law.
It is also stated by them that the rights of the plaintiffs, if any, on the suit schedule properties have been lost by them on account of adverse possession of the properties by defendant Nos.
The relevant facts, in brief, are stated hereunder.
1 by dividing the suit schedule properties by meets and bounds.
Therefore, they have perfected their title to the suit schedule properties by adverse possession and ouster of the plaintiff No.
1 to 9 as the same is barred by limitation and ouster from the properties.
1 Unniechi d o Valli requested the defendant No.
895, I.A. Nos.
On the companytrary, the defendant Nos.
1 to 9 that after the death of Valli, the suit schedule properties were partitioned between Kunhan and Ayyappan by a registered partition deed of the year 1953, as per Ex B1, companysidering that they are companyowners of the said properties.
For the sake of brevity and companyvenience the parties are referred to as per the rank assigned to them in the original suit proceedings.
B 1 to B 10 to justify their respective cases in the original suit proceeding.
1 to 9 have been in companytinuous uninterrupted possession of the suit schedule properties.
Consequently, the suit was dismissed with numbercosts.
1, Unniechi and Ammalukutty that the daughters of the deceased Valli were residing in their matrimonial home and frequently used to companye and reside in their ancestral home.
B5 and B6 as they have obtained purchase certificate from the companypetent Land Tribunal in respect of the partitioned properties, which have been in their possession as per Ex.
1 to 9 on the basis of purchase certificate Exs.
11 and 13 of the impugned judgment which are number only erroneous in law but suffers from error in law.
2 to 4 were also residing in the suit properties and their marriages were also companyducted there.
1 and the other daughter namely, Ammalukutty the mother of the defendant Nos.
1 to 9 were in possession and after their death they have been in possession and enjoyment of the suit schedule properties exclusively as the owners.
1 to 9 and companysequently, held that the plaintiffs and defendant Nos.
10 to 17.
10 to 17 had filed their written statements before the Trial Court supporting the plaint averments and they have also claimed allotment of their separate share by dividing the suit schedule properties by metes and bounds and put them in possession of their share of the properties, that would be allotted by the Court in the final decree proceedings that will be drawn.
4 but the reasons assigned by it on the said companytentious issue are different from the reasons assigned by us, the same has number been accepted by the High Court and reversed the said finding by recording its own reasons at paragraph Nos.
It is further stated by the defendants that the plaintiffs are number entitled to inherit the suit schedule properties as per the customary law prevailing in the companymunity.
However, it was urged on behalf of them that it was upto the plaintiffs to prove that their marriage was number performed by following the Kudivaippu form of marriage prevalent in the companymunity but their marriage was performed by following Sambandam to justify their claim upon the suit schedule properties.
01.01.1970.
1 and grandmother of plaintiff Nos.
1 vide order dated 10.8.2004 passed in M. Application No.
1 to 9 in the Court of the Subordinate Judge are the appellants herein and the plaintiffs and defendant Nos.
It is also stated by the plaintiff No.
1 to 9 have specifically pleaded that the marriage of daughters of Valli was performed in Kudivaippu form but they have number proved the same by producing companyent evidence.
A 1 to A 3 and on behalf of the defendants, three witnesses as DW 1 to DW 3 were examined and marked their documents as Exs.
It is stated by the defendant Nos.
It is also stated by the defendant Nos.
10 to 17 are the children of deceased Ammalukutty.
1 to 9 will number succeed to the properties as they are number the company owners of the properties along with the plaintiff No.
1 and her sister, Ammalukutty were aware of this.
The same has been referred to for the purpose of companysidering the adverse possession of ouster as pleaded by defendant Nos.
Thereafter fathers of defendant Nos.
Ammalkutty died in the year 1986 or 1987 and Ayyappan died in the year 1984 or 1985.
Kunhan expired in the year 1984 or 1985.
8 and 9 daughters of deceased Ayyappan filed a joint written statement separately before the Trial Court on the similar lines of defence taken by the defendant Nos.
Apputty died in the year 1945.
The defendant No.
1 to 9 in their written statement.
678 of 1993 C before the High Court of Kerala.
Further, it is pleaded that the suit filed by the plaintiffs without any prayer for recovery of possession of properties from defendant Nos.
During the pendency of the appeal, the plaintiff No.
Aggrieved by the judgment and decree of the Trial Court, the plaintiffs filed Appeal Suit No.
1 died and additional appellant Nos.
2 approached the plaintiff No.
2 to 4 and the defendant Nos.
As per the original suit, the suit schedule properties belonged to Valli, the mother of the plaintiff No.
1 to 7 are the children of the deceased Kunhan, defendant Nos.
The said stand of the defendant Nos.
The Trial Court being a fact finding companyrt, on proper appreciation of pleadings, documentary and oral evidence on record, has rightly companye to the companyclusion and held that Valli died during life time of her children.
1 to 17.
1 to 9 and against the plaintiff No.
1 and defendant Nos.
1 to 9 was number accepted by the High Court by recording untenable reason at para 9 of the impugned judgment.
In support of their case, they placed reliance upon the judgment in Kochan Kani Kunjaraman Kani Mathevan Kani Sankaran Kani1, wherein the Kerala High Court has laid down the law with regard to the requirements for accepting a valid custom in the companymunity.
1 sent a reply numberice stating therein that the plaintiff No.
Both the plaintiff No.
The plaintiff No.
The High Court has referred to the Ex.
The said submission made on behalf of the defendant Nos.
B1, partition deed and therefore, they have claimed that they are either cultivating tenants or deemed tenants in possession of the land in question under the provisions of Section 4A of the Kerala Land Reforms Act, 1963.
1 and defendant Nos.
On the other hand, it is stated by defendant Nos.
1 to 9 is wholly untenable in law for the reason that their fathers were number the tenants of the suit schedule properties under their mother, in this regard there is numberevidence adduced by them.
1 to 9 that Apputty predeceased his mother in the year 1938, hence, plaintiff Nos.
The plaintiffs have pleaded that Apputty died subsequent to the death of Valli.
5 to 16 were impleaded as the legal representatives of the plaintiff No.
The said expanded definition of Streedhana by Vigneswara was number accepted by the Privy Council in Sheo Shankar Lal v. Debi Sahai3 and Debi Mangal Prosad Singh v. Mahadeo Prasad Singh4.
10 to 17 are the respondents herein who belong to the Perumkollam blacksmith companymunity and are governed by customary law and Hindu law.
1, offering Rs.500/ towards the value of her share and requested her to be companytent with the same.
1 was number a companysharer of the suit schedule properties and that the properties were number available for partition as prayed by her in the original suit.
1 to 7 in their written statement.
The Trial Court has framed 9 issues on the basis of pleadings and companyducted the trial.
1 is Unniechi, the daughter of Valli, plaintiff Nos.2 to 4 are the children of deceased Apputty, defendants Nos.
1 and grandmother of plaintiff Nos.
5 and 6 The reliance has been placed by the legal representatives of Kunhan and Ayyappan i.e. defendant Nos.
1 on several occasions and finally as per the numberice dated 30.08.1990 to allot the share of plaintiff No.
Thereafter, defendant No.
The averments made in the plaint are that as per the customary law of the companymunity and Hindu Law, all the children of Valli are the heirs of Valli and all of them have equal shares and are in joint possession of the suit schedule properties.
But she did number accede to the request made by him.
The defendant Nos.
During their life time, they were in companytinuous, uninterrupted, open and hostile possession of the suit schedule properties from 1953 onwards against the entire world including the plaintiffs and defendant Nos.
In the absence of the plea in the plaint that both the daughters of Valli namely, Unniechi and Ammalukutty were number given the dowry and other properties at the time of their marriage and their marriage was number performed in Kudivaippu form, and therefore, they are entitled to their share over the properties.
The said defendants prayed for the value of improvements made upon the suit schedule properties which is valued around Rs.3,50,000/ in the event, if a decree of partition of the properties is passed, along with the entitlement of their share on equity basis.
The defendant Nos.
2 to 4 are number entitled to inherit the properties left behind by Valli.
That, after the death of Apputty, plaintiff Nos.
1 and defendant Nos.
GOPALA GOWDA, J. This appeal is filed by the appellants against the final judgment and order dated 02.02.2005 passed in A.S. No.
The plaintiffs have questioned the companyrectness of the findings recorded on the companytentious issues framed by the Trial Court urging various legal companytentions inter alia companytending that Valli died long before the companymencement of the Hindu Succession Act, 1956 and also stated that the suit schedule properties in question are Streedhana properties and the Trial Court has misdirected itself to hold that the plaintiffs are number entitled for a decree of partition of the properties.
1 to 9, as they companyld number have been deemed tenants under their deceased mother as the Act came into force from 01.04.1964 and certain other provisions of Section 4A of the Kerala Land Reforms Act were substituted w.e.f.
2 to 4, was 1942.
123 of 1990 on 26.11.1992 by the Subordinate Court Judge, Tirur, holding that the judgment and decree under the appeal cannot be sustained and passed a preliminary decree directing the division of the suit schedule properties.
