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2023 Supreme(SC) 803
SUPREME COURT OF INDIA
C.T. RAVIKUMAR, SUDHANSHU DHULIA, JJ.
M. Sivadasan (Dead) Through LRs. & Ors. – Appellants
Versus
A. Soudamini (Dead) Through LRs. & ORS. – Respondents
Civil Appeal No. 254 of 2010
Decided On : 28-08-2023
For the Appellant(s) : Mr. Sudhivasudevan, Sr. Adv. Mr. Jishnu M L, Adv. Mr. Priyanka Prakash, Adv. Mr. Beena Prakash, Adv. Mr. Anoop R, Adv. Mr. G. Prakash, AOR Mr. Sudhi Vasudevan, Sr. Adv. Mr. P.N. Raveendran, Sr. Adv. Ms. Shilpa Sathish, Adv. Ms. Aswathi M.K., AOR
For the Respondent(s): Mr. A. Raghunath, AOR Dr. P. George Giri, AOR Ms. Jasmin Kurian Giri, Adv. Mr. Ginesh P., Adv. Mr. Shaji Sebastian, Adv. Mr. Saratendu Kumar Boss, Adv. Mr. Abhay Singh, Adv.
IMPORTANT POINT
Suit for partition and mesne profit – Possession is a prerequisite to sustain a claim under sub-section (1) of Section 14 of Hindu Succession Act, 1956.
Headnote:
Hindu Succession Act, 1956 – Section 14 – Suit for partition and mesne profit – Overwhelming evidence which has been duly appreciated by three Courts below clearly prove that land was indeed an agricultural land – Plaintiff was never in possession of property – Possession was always that of defendant and Section 14 sub-section (1) would not be applicable – Possession is a prerequisite to sustain a claim under sub-section (1) of Section 14 of 1956 Act – Defendants have all along been in possession of property – Finding of adverse possession in favour of defendants by Trial Court, was never challenged by plaintiffs/appellants before First Appellate Court – Judgment of Trial Court and First Appellate Court, affirmed by High Court in second appeal, upheld – Order granting status quo vacated. (Paras 4, 7, 9 and 11)
Facts of the case:
Trial Court dismissed suit of plaintiffs/appellants for partition and mesne profit vide its Order and Judgment dated 03.02.1993 on the ground that land along with house sought to be partitioned is an agricultural land on which plaintiffs/appellants, cannot claim any right. This finding of Trial Court was upheld by First Appellate Court, and finally by High Court of Kerala by impugned Judgment dated 29.01.2009 in second appeal. Present appellants have lost from all Courts below.
Findings of Court:
Concurrent findings on facts by the Trial Court and First Appellate Court have been reaffirmed in second appeal by the High Court, yet by and large entire submissions of the appellants is nothing but a persuasion before this Court for reappraisal of the case on facts.
Result : Appeal dismissed.
JUDGMENT
1. The appellants had filed a suit for partition and mesne profit way back in the year 1988, before the Court of Principal Munsif, KozhikodeI, Kerala, claiming ancestral rights over the property comprising of Items 1 & 2 in Plaint Schedule A; property admeasuring 33 ½ cents and 42 cents respectively. The Trial Court dismissed the suit of the plaintiffs/appellants vide its Order and Judgment dated 03.02.1993 on the ground that the land along with the house sought to be partitioned is an agricultural land on which the plaintiffs/appellants, cannot claim any right. This finding of the Trial Court was upheld by the First Appellate Court, and finally by the High Court of Kerela by the impugned Judgment dated 29.01.2009 in second appeal. In short, the present appellants have lost from all the Courts below.
2. The contesting parties before this Court belong to “Thiyyas” community of Kozhikode, Kerala who were governed by Hindu Mitakshara law. The admitted position is that amongst “Thiyyas” of Kozhikode, ancestral property devolves only on the male children; daughters, have a right of maintenance till the time of their marriage. We are speaking here of the rights, including possession as it existed prior to the Hindu Succession Act, 1956. The plaintiff/appellant had filed a civil suit before the court of Munsif for partition of the property which has a total area of 75 ½ cents. Built on the land is the ancestral residential house of the parties. The suit of partition was dismissed by the trial court holding that Hindu Women’s Right to Property Act, 1937 was not applicable to agricultural land, till its amendment in the year 1946 and the succession to the said property had opened in the year 1942 itself which precedes the date of amendment.
3. The property originally belonged to Sami Vaidyar. On his death in the year 1942, it devolved on his male successor son Sukumaran. Rights on the property are being claimed presently by the progenies or daughters of Sami Vaidyar through their mother Choyichi, who was the widow of Sami Vaidyar. The claim of the plaintiff was that Choyichi (who died in the year 1962) had a right, though a limited right under the Hindu Mitakshara law as well as by virtue of Hindu Women’s Right to Property Act, 1937 which blossomed into fullfledged right under Section 14 subsection (1) of Hindu Succession Act, 1956 which is reproduced below:
14. Property of a female Hindu to be her absolute property.—(1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner.
4. This argument of the plaintiff was rejected by the Trial Court and the same was upheld by the First Appellate Court as well as by the Second Appellate Court on the reasoning that after the death of Sami Vaidyar, his son Sukumaran succeeded in the property in year 1942 itself. Thereafter, Sukumaran and later the children succeeding Sukumaran had the right over the property which undisputedly remained in their possession. Section 14 sub-Section (1) had no application in this case. The essential ingredient of Section 14 subSection (1) is possession over the property. Admittedly the plaintiff was never in possession of the property. The possession was always that of the defendant and therefore Section 14 subSection (1) would not be applicable. In Ram Vishal (dead) by lrs. and Ors. v. Jagan Nath & Another. reported in (2004) 9 SCC 302 the position of possession being a prerequisite to sustain a claim under subsection (1) of Section 14 of the 1956 Act was confirmed in Para 16 which is quoted below:
‘16. In our view, the authority in Raghubar Singh case [(1998) 6 SCC 314] can be of no assistance to the respondent. As has been held by this Court, a preexisting right is a sine qua non for conferment of a full ownership under Section 14 of the Hindu Succession Act. The Hindu female must not only be possessed of the property but she must have acq
