Female heirs cannot inherit ancestral property if the predecessor died before the Hindu Succession Act, 1956, affirming the need for existing legal frameworks in succession claims.

JUDGMENT :

EASWARAN S., J.

The appellants are the legal heirs of the plaintiffs in a suit for partition. They have been non suited concurrently by the courts below, but, interestingly, the findings are divergent.

2. Brief facts necessary for the disposal of the appeal are as follows:

The plaint ‘A’ schedule property originally belonged to one Kandan and Sankaran jointly. Kandan had three daughters with his wife, Unniyeyi. Kandan died in the year 1925 and thereafter, his wife Unniyeyi married Sankaran and had two sons. It is pointed out that Sankaran died in the year 1944, whereas Unniyeyi died in the year 1946. The parties are governed by Makkathayam law since they are Thiyyas from Kozhikode District. The male children of Sankaran partitioned the plaint schedule property in the year 1963 and thereafter, were in absolute possession of the properties and they had dealt as though the properties were theirs. It has come out that there was an inter se partition suit between the sons of Raghavan and legal heirs of Raghavan bought certain extent of property in pursuance to the judgment and decree in a suit for partition. Be that as it may, the plaintiffs, who are grandchildren of Unniyeyi, through the female heirs, claimed that the plaint schedule property must be divided into half. The suit was resisted by the defendants by contending that the daughters of Kandan will not get any right over the property and the right, if any, has been lost by ouster because of the inter se partition in the year 1963 and the failure of the daughters of Kandan to raise an objection to the said partition. The trial court dismissed the suit finding that the plaintiffs cannot plead ignorance of the inter se partition as well as the suit filed by the legal heirs of Raghavan for getting separate possession. Accordingly, dismissed the suit. Aggrieved, the plaintiffs preferred A.S.No.162 of 2012. Before the appellate stage, the appellants tried to raise a new plea by seeking a prayer to amend the plaint by filing I.A.No.517 of 2016, wherein it was contended that after the death of Sankaran, his wife Unniyeyi will get equal share over the property. No further pleadings were sought to be incorporated except to the extent above. The First Appellate Court by judgment dated 29.03.2016 confirmed the judgment of the trial court and dismissed the application for amendment on the ground that the sufficient cause has not been shown for allowing the application.Aggrieved, the present appeal is preferred.

3. Heard Sri.V.T.Madhavanunni, learned counsel appearing for the appellants, Sri.Pramod Kumar.M for respondents 1 to 6, 14 to 17, Sri.P.A.Harish, learned counsel appearing for respondents 10 to 12 and Sri.C.Varghese Kuriakose, learned counsel appearing for respondents 7 to 9.

4. Sri.V.T.Madhavanunni, the learned counsel appearing for the appellants contended that the 1^st appellate court was not justified in dismissing the application for amendment. When a plea was raised that the wife of Sankaran, late Unniyeyi, was also entitled for a share, the appellate court ought to have allowed the application and remanded the matter back to the trial court for fresh consideration and in not doing so, the court has committed illegality and not afforded a fair trial to the case projected by the appellants. As regards the plaint for partition in respect of the property, the learned counsel for the appellants submits that, at present, the plaint will be confined to the validity of the amendment being disallowed by the courts below.

5. Per contra, Sri.P.A Harish, learned counsel appearing for respondents 10 to 12 contended that even assuming that the amendment is allowed and the matter is remanded for a fresh trial, the plaintiffs cannot succeed in the light of the