The main legal point established in the judgment is the overriding effect of S. 4(1)(a) of the Hindu Succession Act on any custom or usage as part of Hindu law, and the application of S. 6 to the devolution of property, emphasizing the statutory provisions over customary law.

BHAT, J. :- Defendants 1, 3 and 5 in OS No. 370 of 1980 on the file of the Subordinate Judge's Court. Kozhikode are the appellants herein.

2. Plaintiff is daughter and first defendant is son of Korappan who died in 1960. His wife died in 1954. Fifth defendant is wife of the first defendant and defendants 2 to 4 are their children. Defendants 6 and 7 are said to be persons in possession of a portion of the suit property by virtue of alienations effected by first defendant. Sixth defendant died pending suit and defendants 8 to 14 are his legal representatives. Admittedly parties belong to Thiyya community of Kozhikode district.

3. There is no dispute that suit properties were ancestral properties in the hands of Korappan and the latter was the kartha of the family. According to the plaintiff, on Korappan's death in 1960, according to the provisions of the Hindu Succession Act, 1956, his interest, namely, half right devolved on plaintiff and first defendant as co-owners and, therefore, plaintiff has one-fourth share and the remaining three-fourth right belongs to first defendant. On these averments plaintiff sued for partition. Defendants 1, 3 and 5 contended, inter alia, that Korappan's interest did not devolve on plaintiff and first defendant under the provisions of the Hindu Succession Act, but devolved on the first defendant by survivorship and, therefore, plaintiff has no share, that the provisions of the Hindu Succession Act do not apply to the instant case and plaintiff's suit is barred by adverse possession and limitation.

4. The trial court held that whatever be the custom governing the parties belonging to Thiyya community of Kozhikode district in relation to inheritance and succession, it is over-ridden by S. 4(1)(a) of the Hindu Succession Act, 1956 and Korappan's share devolved by inheritance u/S. 6 of the Act and plaintiff is entitled to one-fourth share in the property. The trial court also overruled the plea of adverse possession and limitation and passed a preliminary decree for partition.

5. Learned counsel for the appellants has urged two contentions before us namely, that parties are governed by customary law according to which interest of a coparcenar in coparcenary property devolves by survivorship on the remaining members of the coparcenary (in this case the first defendant) and this custom is not abrogated by S. 4(1)(a) of the Hindu Succession Act and, therefore, the provisions in S. 6 of the Act are not attracted and that in any event, plaintiff's claim is barred by adverse possession.

6. There is no dispute that the suit properties are ancestral properties of the family of which Korappan was the kartha. S. 6 of the Hindu Succession Act states that 'when a male Hindu dies after the commencement of this Act, having at the time of his death an interest in a Mitakshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this Act'. The proviso states, inter alia, that if the deceased had left him surviving a female relative specified in Class I of the Schedule or a male relative, who claims through such female relative, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship. Admittedly, Korappan left behind him a female relative specified in Class II of the Schedule, that is, daughter. Therefore, the proviso is attracted and that being so the interest of Korappan in coparcenary property must devolve by intestate succession. under the provisions of the Act preferential heirs are sons and daughters. In the absence of anything more plaintiff's claim for one-fourth share would be justified.

7. According to learned counsel for the appellants, parties belong to Thiyya community of Kozhikode district governed by custom by which the Mitakshara rule of survivorship was adopted by the commu