N.K. Balakrishnan, J.

1. The following substantial questions of law arise for consideration in this Second Appeal filed by the defendants in a suit for partition:-

i) Did the courts below go wrong in interpreting the words "any property possessed by a female Hindu" occurring in Sec.14 (1) of the Hindu Succession Act, 1956 ?

ii) Were the plaint schedule properties or any one of those items or any part of any of the items possessed by Radha the daughter of Kelu in lieu of maintenance ?

iii) Was any custom contrary to the Hindu Mitakshara Law proved by the appellants ?

2. Admittedly the properties in respect of which a preliminary decree was passed by the trial Court and which was confirmed by the appellate Court belonged to deceased Kelu. Kelu died in the year 1945. He left behind his widow Chiruthakutty and his two children, Radha and respondent (Sreenivsan) who were then minors. In the plaint the entire property covered by Ext.A1 were not included. But in the written statement filed by the defendant a schedule showing all properties covered by Ext.A1 was incorporated. Plaintiff contended that the remaining property shown in Ext. A1 was excluded from claiming partition since that property was an agricultural land and as such it was entitled to be exempted. But the courts below found that there is absolutely no evidence to show that the excluded portion was an agricultural land. The courts below have given cogent and convincing reason to hold that the property which was sought to be excluded from partition was not an agricultural land. No evidence whatsoever was adduced by the plaintiff to show that it was an agricultural land so as to get exclusion from partition. That finding is not very much in dispute now.

3. The fact that the entire properties in respect of which preliminary decree was passed are available for partition is not in dispute now. The main thrust of the argument advanced by Sri. R. Sudheesh, the learned counsel appearing for the appellants is that the courts below went wrong in interpreting Sec.14 (1) of the Hindu Succession Act. Admittedly, the plaintiff and defendants are Thiyyas of North Malabar following Hindu Mitakshara Law of Inheritance. Kelu died in the year 1945 after the commencement of the Hindu Women's Right to Property Act, 1937.

4. Section 14 of the Hindu Succession Act uses the expression "female Hindu" and no distinction has been drawn between a "widow" and a "daughter". The Hon'ble Supreme Court in the decision in Vidhya v. Nandaram - (2001) 10 SCC 747, while considering the expression "female Hindu" held as follows:

"The submission that the third wife would have no right to claim maintenance hence S. 14 (1) will not apply, has no merit. The language of Sec. 14 (1) in this respect is very clear. Sub-S. (1) of Se. 14 refers to 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 and not as a limited owner. Smt. Durga is a female Hindu, who acquired her right in lieu of maintenance, under the Will dated 30-09-1932 executed by her husband Khimi Ram. The Explanation clarifies that property referred to in sub-s. (1) of S. 14 includes a property held by her in lieu of maintenance. If that be so, right of such female Hindu would be covered by sub-s. (1) making her the absolute owner. The submission for the appellant is against the very language of this sub-section. To read differently what is referred to is contrary to all canons of interpretation. To read "female Hindu" as only "wife" is totally misconceived. Both sub-s.(1) and the Explanation refer significantly to the words "female Hindu" and not "wife". It would not only be too limited an interpretation but an interpretation against the plain language of this sub-s.(1). The interpretation is totally misconceived".

5. The aforesaid decision was followed by a Division Bench of this Court in Jose v. Ramakrishnan Nair - 2003 (3) KLT 999. The learned counsel for the a