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2023 Supreme(Ker) 329
IN THE HIGH COURT OF KERALA AT ERNAKULAM
K. BABU, J.
Arumughom Achari Ranganathan Achari (Died) – Appellant
Versus
Rajamma Sarojam – Respondent
R.S.A. No. 770 of 2011
Decided On : 29-05-2023
Advocate Appeared:
For the Appellants : Vadakara V.V.N. Menon, N.S. Gopakumar.
For the Respondent: K.B. Pradeep.
Point of Law: Where the impleaded representatives sufficiently represent the estate of the deceased and the decision with them on record will bind the entire estate including those legal representatives not brought on record in absence of fraud or collusion or circumstances indicating that there has not been a fair or real trial or that against the absent heir, there was a special case which was not and could not be tried in proceeding.
Headnote:
Civil Procedure Code, 1908 - Order 22 Rule 3 - Hindu Succession Act - Section 4, 8 - Second Appeal - legal representatives - Over-riding effect of Act - Whether a custom, as pleaded by contesting defendants, existed in their community or not was also considered by the First Appellate Court, which held that the defendants failed to plead and prove the existence of the custom - Whether the non-bringing of one of the legal representatives of plaintiff No. 1 (appellant No. 1 in First Appellate Court) resulted in the abatement of the appeal as a Whole - There is no abatement of the suit or appeal, where impleaded legal representatives sufficiently represent the estate of deceased, and that a decision obtained with them on record will bind not merely those impleaded but the entire estate, including those not brought on record.
Findings of the Court:
All other co-owners of plaintiff No. 1 represented the share of plaintiff No. 1 in the estate in the suit. It is also important to note that being co-owners, one co-owner is treated as having right in every part and parcel of the joint property. Husband of plaintiff No. 1, who was omitted to be impleaded as her legal representative in the First Appellate stage, had died, and the additional appellants 3 to 5 before the First Appellate Court are sole legal representatives. Therefore, the non-impleadment of husband of plaintiff No. 1 in the First Appellate Court has no consequence.
Result: Second Appeal dismissed.
JUDGMENT :
K. BABU, J.
1. This Regular Second Appeal arises from the judgment and decree dated 15.11.2008 passed by the Subordinate Judge’s Court, Neyyattinkara, in A.S. No. 138 of 2000, which arose from O.S. No. 784 of 1998 on the file of the Principal Munsiff’s Court, Neyyattinkara. The defendants are the appellants. The plaintiffs are the respondents.
2. The Original Suit was instituted for partition and separate possession. The plaint schedule property originally belonged to Sri. Arumughom Achari, the father of the parties in the Original Suit. Sri. Arumughom Achari died on 19.5.1975. He acquired right and title over the plaint schedule property by virtue of Exts.A1 and A2 title deeds. Ext.A1 is a sale deed dated 23.7.1115 (M.E.) and Ext.A2 is dated 6.8.1121 (M.E.). After the death of Sri. Arumughom Achari, his widow and children, were enjoying the property. The mother of the parties in the Original Suit died on 20.4.1996. The plaintiffs and the defendants were the surviving legal heirs.
3. The plaintiffs pleaded that as per the Hindu Succession Act, 1956, the plaintiffs and defendants are entitled to equal share over the plaint schedule property, including a building.
4. The defendants challenged the claim of the plaintiffs. According to the defendants, the plaintiffs are not entitled to share over the plaint schedule property. The defendants claimed that as the plaintiffs belong to Hindu Malayala Kammala community and as the plaintiffs were given in marriage in the customary ‘kudivaippu’ form after giving sthreedhanam, they are not entitled to any share. The defendants raised a further contention that the property belonged to Sri. Arumughom Achari was the coparcenary property of the family, wherein the female heirs had no right.
5. The trial Court framed issues and proceeded with the trial.
6. On the side of the plaintiffs PW-1 was examined, and Exts.A1 & A2 were marked. DWs. 1 and 2 were examined on the side of the defendants.
7. The trial Court held that as the plaintiffs were given sthreedhanam and were given in marriage in kudivaippu form they are not entitled to claim right over their parental property.
8. The plaintiffs challenged the decree and judgment of the trial Court before the First Appellate Court in A.S. No. 138/2000. The First Appellate Court reversed the findings of the trial Court and decreed the suit, holding that the plaintiffs are also entitled to share in the plaint schedule property. The First Appellate Court passed a preliminary decree directing the partition of the plaint schedule property. The decree and judgment of the First Appellate Court are under challenge at the instance of the defendants in this Regular Second Appeal. During this proceedings, appellant Nos. 1 and 2 died, and their legal representatives were impleaded.
9. After hearing both sides, this Court reformulated the substantial questions of law as follows:
1. Would not any custom governing intestate succession in respect of the self acquired property of a Hindu inconsistent with the provisions of the Hindu Succession Act be treated as abrogated and destroyed immediately on coming into force of the Act by virtue of Section 4(1).
2. Whether non-bringing of one of the LRs of plaintiff No. 1 (appellant No. 1 in the First Appellate Court) resulted in the abatement of the appeal as a whole.
10. Heard both sides.
11. It is not in dispute that Sri. Arumughom Achari died intestate. He had three daughters (the original plaintiffs and defendant No. 6) and five sons (original defendants 1 to 5).
12. The plaintiffs claimed that they are entitled to share in the plaint schedule property as succession to the estate of the late Sri. Arumughom Achari is governed by Section 8 of the Hindu Succession Act.
13. The contesting defendants pleaded that being members of the Hindu Malayala Kammala caste, they are governed by Mithakshara law and as the daughters of Sri. Arumughom Achari were given in marriage in the customary ‘kudivaippu’ form after giving sthreedhanam, th
