Point of Law: As per Hindu law or Mitakshara law pure and simple, law of succession is in male line and that daughters have no right in father's property and that a daughter would inherit property of her father only in event of father dying without a son or grandson or great grandson or widow.

JUDGMENT :

C.S.Sudha, J.

What is the law of inheritance or succession that is applicable to Kammalas domiciled in Cochin? Before the formation of the United State of Travancore and Cochin by virtue of the Covenant dated the 29th May, 1949, entered into between the Rulers of Travancore and Cochin, was the personal law applicable to Kammalas domiciled in Travancore and Cochin the same? Before the State Reorganization Act, 1956 came into being, was the personal law applicable to Kammalas domiciled in Malabar, a Part A State, being part of Madras, the same as that in Cochin and Travancore? Is there any classification of Kammalas of Cochin as pandi kammalas, malayala kammalas and ordinary kammalas? Are they governed by the same personal law or different personal law? Let us examine.

2. These second appeals are before us based on a reference order dated 13/04/2007 of a learned single Judge, according to whom, there are conflicting views regarding the personal law applicable to kammalas of Cochin and also their form of marriage. In the opinion of the learned Judge, important questions of law are involved, namely, the personal law applicable to kammalas of Cochin; whether there is a sub division of kammalas into malayala kammalas and ordinary kammalas ; what is their form of marriage ; whether the form of marriage alone or payment of 'sthreedhanam' in addition to the form of marriage would take away the right of the daughters to a share in the family property, which aspects are required to be decided by a Division Bench. Thus, the matter has come up before us.

3. The aforesaid two appeals arise from a preliminary decree and judgment in O.S.No.462/1985 on the file of the Sub-ordinate Judge's court, Ernakulam, by which a preliminary decree for partition of the plaint schedule property has been granted. The appellants in S.A.No.659/1996 are defendants 2, 3, 9, 12 and the heirs of the tenth defendant. The 11th defendant in the suit is the appellant in S.A.No.751/1996.

4. The plaint averments in brief are: -The two plaintiffs; defendants 10 to 13; Krishnan, the father of defendants 1 to 8 and husband of the ninth defendant and late Dakshayani, the mother of defendants 14 to 18 are the children of late Kochukuttan @ Kittu (hereinafter referred to as Kittu). The parties are malayala kammalas, governed by Hindu Mitakshara law modified by custom. Kittu had a brother named Sankunni. Kittu was married to Ooli and Sankunni to Lakshmi. Kittu passed away in the year 1938 and his brother Sankunni in the year 1952. Lakshmi died in the year 1971 and Ooli died in the year 1974. The brothers had purchased 30 cents of land as per Ext.A1 sale deed dated 13/01/1109. Out of the 30 cents, about one cent was surrendered for widening the Mullasseri canal. The remaining 29 cents of land is the plaint schedule property. According to the plaintiffs, as per the custom prevailing among the malayala kammalas, the sons and daughters have equal right in the family property, unless the daughters are given away in marriage in the kudivaippu form on payment of sthreedhanam. The widow has no right in the family property. When a male member dies without any issues, the heirs of the male member inherit the property left by the deceased to the exclusion of the widow. The custom among the community is antique, continuous and invariable. The plaintiffs; late Dakshayani and the 13th defendant Devaki were not married off in the kudivaippu form of marriage.

4.1. Sankunni died in the year 1952 without any issues. Therefore, the plaint schedule property devolved on the children of his brother, Kittu. Late Dakshayani and the 13th defendant Devaki were married off during the life-time of Kittu. The plaintiffs were married off after the death of Kittu. None of the daughters were given sthreedhanam and their marriage was solemnized in the 'Sambandham form'. At the time of marriage, it wa