Under Mitakshara law, self-acquired property of a male who died before 1956 devolves solely upon male heirs; female heirs succeed only in absence of male descendants.

JUDGMENT :

P.Krishna Kumar, J.

The appellants are the plaintiffs in a partition suit filed before the Additional Subordinate Judge’s Court, Irinjalakuda. By the judgment impugned in this appeal, the suit was dismissed by the trial court, finding that the property in question is not partible.

2. For the sake of convenience, the parties will be hereinafter referred to according to their status in the trial court. An extent of 2.15 acres of land (the plaint scheduled property) in Kodungallur Village belonged to one Rama Pai as per Ext. A1. It was his self-acquired property. Rama Pai had one female child, namely Yasodamma, and one male child, Hari Pai. In the year 1965, the plaint scheduled property was sold to defendant Nos. 1 to 3, a firm and its partners, by Hari Pai together with his wife and children, through a registered sale deed (Ext. A2). Rama Pai and his family were governed by the Mitakshara law in the matter of succession.

3. As the above 2.15 acres of land was the self-acquired property of Rama Pai, it was contended by the plaintiffs that, on his death, the rule of survivorship in the Mitakshara coparcenary law was not applicable for the devolution of interest, and hence the property would devolve upon Yasodamma and Hari Pai jointly. Being the legal heirs of Yasodamma, the plaintiffs and defendant No. 4 would get a half share over the said property, and defendant Nos. 1 to 3 would represent the remaining half share of Hari Pai. Accordingly, the property was claimed to be partible. It was further contended by the plaintiffs that, as Rama Pai died after 1956, the property had to be partitioned as per Section 6 of the HINDU SUCCESSION ACT , 1956 (“the Act, 1956”, for short), as amended in 2005.

4. Defendant Nos. 1 to 3 contended that Rama Pai had died before 1956, and thus the separate property owned by him devolved solely upon his male heir Hari Pai, in accordance with the pristine Hindu law applicable under the Mitakshara law of inheritance. The sale deed executed by Hari Pai, together with his wife and children, was therefore contended to be perfectly valid. Hence, the property was stated to be not partible.

5. We have heard Sri. Sreekumar G. (Chelur), the learned counsel appearing for the plaintiffs, and Sri. K. I. Mayankutty Mather, the learned senior counsel, as instructed by Smt. Uthara Asokan, the learned counsel appearing for defendant Nos. 1 to 3.

6. Though it was pleaded in the plaint that Rama Pai died after 1956, no evidence was adduced by either side in that respect, except the oral testimony of DW1, wherein it was stated that Rama Pai had died in the year 1950. The said statement remained unchallenged. Referring to the circumstance that Hari Pai executed Ext. B1 mortgage deed in favour of a Bank in 1954, a conclusion was drawn by the trial court that Rama Pai had died before 1956; otherwise, Hari Pai would have had no occasion to execute the said deed. During the course of hearing, the said finding was not challenged by the learned counsel appearing for the plaintiffs. Hence, we are also persuaded to accept that he died before 17.06.1956, i.e., the appointed day for the commencement of the Act.

7. Proceeding on the inference that Rama Pai had died prior to 1956, the precise question that arises for consideration is upon whom the separate property of a person governed by the Mitakshara law of inheritance would devolve, prior to the commencement of the Act.

8. It was submitted by Sri. Sreekumar G. (Chelur), the learned counsel appearing for the plaintiffs, that by virtue of the provisions of the Hindu Law of Inheritance (Amendment) Act, 1929, the separate property of a Mitakshara follower would devolve equally upon his male and