TaxTMI 
TaxTMI 
2014 (8) TMI 1220
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....rein who belong to the Perumkollam (blacksmith) community and are governed by customary law and Hindu law. As per the original suit, the suit schedule properties belonged to Valli, the mother of the plaintiff No. 1 and grandmother of plaintiff Nos. 2 to 4 and the defendant Nos. 1 to 17. Valli died in the year 1942 leaving behind her three sons namely, Kunhan, Ayyappan and Apputty and two daughters, namely, Unniechi and Ammalukutty. The plaintiff No. 1 is Unniechi, the daughter of Valli, plaintiff Nos.2 to 4 are the children of deceased Apputty, defendants Nos. 1 to 7 are the children of the deceased Kunhan, defendant Nos. 8 and 9 are the daughters of deceased Ayyappan and defendant Nos. 10 to 17 are the children of deceased Ammalukutty. Kunhan expired in the year 1984 or 1985. Ammalkutty died in the year 1986 or 1987 and Ayyappan died in the year 1984 or 1985. Apputty died in the year 1945. 4. According to the case pleaded by the plaintiffs, after the death of Valli, her two sons, namely, Kunhan and Ayyappan were in possession and enjoyment of the suit schedule properties for and on behalf of the other legal heirs. Kunhan and Ayyappan were giving the income derived from the suit....
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....ame is barred by limitation and ouster from the properties. Further, it is pleaded that the suit filed by the plaintiffs without any prayer for recovery of possession of properties from defendant Nos. 1 to 9 is also not maintainable in law. It is further stated by the defendants that the plaintiffs are not entitled to inherit the suit schedule properties as per the customary law prevailing in the community. 9. It is also stated by the defendant Nos. 1 to 9 that Apputty predeceased his mother in the year 1938, hence, plaintiff Nos. 2 to 4 are not entitled to inherit the properties left behind by Valli. The defendant Nos. 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. 1 to 7 in their written statement. 10. It is further stated by the above defendants that even before the death of Valli, her daughter Unniechi, the plaintiff No. 1 and the other daughter namely, Ammalukutty (the mother of the defendant Nos. 10 to 17) were given ornaments, utensils and dowry in their marriage as Streedhana which is in accordance with the customary rights recognised in the communit....
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....nts made in the plaint are that as per the customary law of the community 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. In the absence of the plea in the plaint that both the daughters of Valli namely, Unniechi and Ammalukutty were not given the dowry and other properties at the time of their marriage and their marriage was not performed in Kudivaippu form, and therefore, they are entitled to their share over the properties. 15. The plaintiffs have pleaded that Apputty died subsequent to the death of Valli. No doubt, the said plea is denied by the contesting defendants as no concrete evidence was adduced on either side of the parties. It is urged on behalf of the plaintiffs before the High Court that so far as the findings recorded by the Trial Court on the contentious issue No. 4 in favour of the defendant Nos. 1 to 9 is concerned, by placing reliance on Ex.-B1, the partition deed dated 06.05.1953 between Kunhan and Ayyappan, who had partitioned the suit schedule properties, as the same belong to them exclusively, and Ex.-B9, the gift deed made in favour of defendant....
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.... of Valli alone would be entitled to the suit schedule properties and since they were excluded from possession of the properties by their brothers for more than 50 years after the death of Valli, their rights, if any, are lost by adverse possession and barred by limitation. Therefore, suit filed by the plaintiffs is liable to be dismissed in limine, since the suit for partition will lie only against co-owners in joint possession in view of Section 37 of the Kerala Court Fees and Suits Valuation Act, 1959 (in short "the Act"). The defendant Nos. 1 to 9, in such a case would be strangers in possession of the properties and the suit as against them without a prayer for recovery of the possession of the suit schedule properties as provided under Section 30 of the Court Fees Act will not lie. The plaintiffs have paid court fee only under Section 37(2) of the Court Fees Act and there is neither a prayer for recovery of possession of the suit schedule properties nor payment of court fee paid under Section 30 of the Court Fees Act. Therefore, the original suit filed by the plaintiffs is liable to be dismissed as the same is not maintainable in law. 18. The High Court has held that as pe....
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....ey have been in possession and enjoyment of the properties exclusively as the owners. Therefore, they have perfected their title to the suit schedule properties by adverse possession and ouster of the plaintiffs and hence, the same could not have been interfered with by the High Court in exercise of its appellate jurisdiction and granted decree for partition in favour of the plaintiffs and defendant Nos. 1 to 9, is also not sustainable in law. 21. The High Court has passed the impugned judgment dated 02.02.2005 in A.S. No. 678 of 1993(C) by reversing the findings recorded on the contentious issues framed by the Trial Court against the plaintiffs and defendant Nos. 10 to 17 and directed the division of the plaint schedule properties by meets and bounds by allotting the plaintiffs 1/5 share to the first plaintiff, 1/5 share to plaintiff Nos. 2 to 4 jointly. The High Court further held that any of the other sharers can apply for separation and allotment of their share on payment of the requisite court fees. It is further held by the High Court that any of the other sharers can apply for separation and allotment of their share on payment of the requisite court fees. The High Court f....
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....perties of deceased Valli. Therefore, it is urged by the learned counsel that the High Court erred in holding that the daughters of deceased Valli are also entitled to share in the estate of the deceased and has committed a grave error in reversing the judgment of the Trial Court. Therefore, the impugned judgment is vitiated in law and liable to be set aside. 27. Further, it is contended that the question of law raised regarding adverse possession of the defendant Nos. 1 to 9 would certainly arise in this appeal for the reason that the High Court has erroneously reversed the finding of fact recorded by the Trial Court on the issue of adverse possession of the suit schedule properties of defendant Nos. 1 to 9 by ouster, which is contrary to the admitted pleadings and finding of fact in the instant case regarding their possession. Therefore the defendant Nos. 1 to 9 have prayed to allow the appeal. 28. On the basis of the above said rival legal contentions, the following points would arise for our consideration: - Whether the plaintiff No.1 and Defendant Nos. 10-17 have proved that the suit schedule properties of Valli are Stridhan properties in view of Ex.-A1, "Panayam Thee....
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....a and the Dayabhaga Schools. The Bengal School of lawyers have always limited the use of the term narrowly, applying it exclusively or nearly exclusively, to the kinds of women's property enumerated in the primitive sacred texts the Smritis. The author of the Mitakshara and some other authors apply the term broadly to every kind of property which a woman can possess from whatever source it may be derived. The Privy Council in Sheo Shankar v. Debi Sahai, confined the Stridhana proper to property classified as such by Manu and Katyayana and disapproved the extension given by Yajnavalkya. Stridhana must be confined to such property of a woman over which she possesses an unfettered power of disposal. This power depends upon the School to which she belongs, her status at the time of acquisition and the source of such acquisition. 469. Source of acquisition.- The source of acquisition of property in a woman's possession are the following:- Gifts before marriage, Wedding gifts, Gifts subsequent to marriage Self-acquisitions Inheritance Purchase Partition Adverse possession Maintenance claim 10.Other sources" Definition of Streedhana is adverted to by the High Court at para 12 of ....
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....ties of Valli is valid and legal and therefore, the finding of fact recorded by the High Court is correct. In view of the said finding of fact recorded by the High Court the defendant Nos. 1 to 9 will not succeed to the properties as they are not the co- owners of the properties along with the plaintiff No. 1 and defendant Nos. 10 to 17. Their continuous possession of the suit schedule properties is adverse possession by ouster of them is proved by them on the basis of admitted facts and evidence on record. This finding of fact is recorded by the Trial Court on the relevant contentious issue No. 4 but the reasons assigned by it on the said contentious issue are different from the reasons assigned by us, the same has not been accepted by the High Court and reversed the said finding by recording its own reasons at paragraph Nos. 11 and 13 of the impugned judgment which are not only erroneous in law but suffers from error in law. Therefore, we have to answer the point Nos. 1 and 2 in favour of the defendant Nos. 1 to 9 and against the plaintiff No. 32. The High Court has referred to the Ex.-A1 but did not record positive finding on this aspect of the case holding that the daughters....
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.... period limited by the Act to any person for instituting a suit for possession of any property, his right to such property stands extinguished. The process of acquisition of title by adverse possession springs into action essentially by default or inaction of the owner. A person, though having no right to enter into possession of the property of someone else, does so and continues in possession setting up title in himself and adversely to the title of the owner, commences prescribing title on to himself and such prescription having continued for a period of twelve years, he acquires title not on his own but on account of the default or inaction on the part of the real owner, which stretched over a period of twelve years, results in extinguishing of the latter's title. It is that extinguished title of the real owner which comes to vest in the wrongdoer. The law does not intend to confer any premium on the wrongdoing of a person in wrongful possession; it pronounces the penalty of extinction of title on the person who though entitled to assert his right and remove the wrongdoer and re-enter into possession, has defaulted and remained inactive for a period of twelve years, which the l....
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....that there was nothing on the record to suggest that the King of Datia had ever attempted to put forward any claim of ownership over the suit property. Even that apart it was not the case of the plaintiffs themselves that the suit property did not belong to their father or their ancestors. On the contrary their case is that the suit house did belong to their father jointly with them. Therefore, it is too late in the day for the learned counsel for the plaintiffs to submit that suit house did not belong to the plaintiffs and, their father or that at the time of the sale plaintiffs' father had no right, title or interest in the suit house. In our view the evidence on record clearly establishes that the defendants made all permissible efforts to find out the legal necessity which prompted Defendant 6 to enter into the said transaction in their favour." Therefore, based on the above mentioned cases, it is clear that the plaintiff No. 1 and defendant Nos. 10 to 17 have lost their title to the suit schedule properties essentially because of their default and inaction, which has stretched over a period of more than 50 years. Thus, their rights were lost by operation of law and doctrine of....
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....t has come to the right conclusion by shifting the burden of proof on the defendant Nos. 1 to 9 to prove the fact of the type of marriage of the deceased plaintiff No. 1 and Ammalukutty. The defendant Nos. 1 to 9 did not produce evidence to prove the fact that the marriage of the daughters of deceased Valli was performed by following Kudivaippu form but not in Sambandam form, to disentitle their claim upon the suit schedule properties of Valli and therefore, they are not sharers of the same. In view of the pleadings and evidence on record of defendant Nos. 1 to 9, we have to record the finding of fact that the marriage of daughters of deceased Valli was not in Kudivaippu form and therefore, the daughters of deceased Valli alone are entitled to succeed to her intestate properties who are her legal heirs. This finding we have recorded in this judgment on the basis of the judgments of Privy Council and the Madras High Court (supra) referred to in the impugned judgment by the High Court. 38. Further, under the pristine Hindu Law, it is the settled and admitted position of law that married daughters are not entitled to a share if their marriage was in Kudivaippu form after payment of....
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....e perfected their title to the properties as owners. There was litigation between the fathers of the defendant Nos. 1 to 9 in relation to the said partition, no doubt, the father of the defendant Nos. 8 and 9 failed in the aforesaid civil litigation as per the documentary evidence-Exs.-B2 to B4. Therefore, the same is binding on the father of defendant Nos. 8 and 9. Accordingly, we answer the point No. 4 in favour of defendant Nos. 1 to 7. Answer to Point Nos. 5 and 6 41. The reliance has been placed by the legal representatives of Kunhan and Ayyappan i.e. defendant Nos. 1 to 9 on the basis of purchase certificate-Exs.-B5 and B6 as they have obtained purchase certificate from the competent Land Tribunal in respect of the partitioned properties, which have been in their possession as per Ex.-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. The said stand of the defendant Nos. 1 to 9 is wholly untenable in law for the reason that their fathers were not the tenants of the suit schedule properties under their ....
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....ered the point No. 3 in favour of the defendant Nos. 1 to 9 by recording our reasons on the undisputed facts and evidence on record that they have perfected their title to the suit schedule properties by adverse possession from 1953 onwards by ouster of the daughters of Valli after her death. 44. Since we have answered point Nos. 3 and 4 in favour of defendant Nos. 1 to 9 and we hold that the plaintiff Nos. 2 to 4, the legal representatives of deceased Apputty (son of Valli), are not entitled for the share in the suit schedule properties by way of partition. The suit schedule properties are Streedhana properties of Valli and after the death of Valli, the said properties have come into the possession of her sons namely, Kunhan and Ayyappan vide partition deed-Ex.-B1 executed between them. Therefore, we have to answer the aforesaid point against them as they are not entitled to the shares in the suit schedule properties and therefore, they are not entitled for partition of the suit schedule properties. Since, we have answered the point Nos. 1 to 4 against the plaintiff No. 1 and in favour of the defendant Nos. 1 to 9, the impugned judgment is liable to be set aside and we restore ....