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2023(2) CCC 393 (Ker.)
KERALA HIGH COURT
K. Babu, J.
Arumughom Achari Ranganathan Achari and Ors. – Appellants
versus
Rajamma Sarojam and Ors. – Respondents
RSA No.770 of 2011
Decided on 29.5.2023
For the Appellants:Vadakara V.V.N. Menon and N.S. Gopakumar, Advocates
For the Respondents:Sri. K.B. Pradeep, Advocate
IMPORTANT POINTS
(1) Hindu Succession Act, 1956 – Section 4(1) – Customary rights vis-à-vis rights under Succession Act – Whatever custom, if any, existed in community governing intestate succession would be treated as abrogated and destroyed in view of Section 4, in respect of self-acquired property.
(2) Abatement of appeal – Non-impleadment of legal representatives –There is no abatement of suit or appeal, where impleaded legal representatives sufficiently represent estate of deceased, and that decision obtained with them on record will bind not merely those impleaded but entire estate, including those not brought on record.
Headnote:
(1) Hindu Succession Act, 1956 – Section 4 (1) – Partition– Self acquired property – Rights of Hindu female – Overriding effect– Customary rights vis-à-vis rights under Act – Hindu Succession Act came into force on 1956 – Original Suit was instituted on 1998 – Marriages of plaintiffs were conducted after coming into force of Hindu Succession Act – Even if it is assumed that custom governing intestate succession, as pleaded by defendants, existed in their community, same would be treated as abrogated and destroyed in view of Section 4, in respect of self-acquired property – Custom is not in modern world very important ‘source’ of law – It is usually subordinate one, in sense that legislature may by statute deprive customary rule of legal status – Position would have been different if property in question was ancestral property in which case provisions of Section 6 of Hindu Succession Act would come into play –Whatever custom, if any, existed in community governing intestate succession would be treated as abrogated and destroyed. [Paras 18, 19]
(2) Code of Civil Procedure, 1908 – Order 22 Rule 3 – Abatement of appeal – Non-impleadment of legal representatives – There is no abatement of suit or appeal, where impleaded legal representatives sufficiently represent estate of deceased, and that decision obtained with them on record will bind not merely those impleaded but entire estate, including those not brought on record in absence of fraud or collusion or circumstances indicating that there has not been fair or real trial or that against absent heir, there was special case which was not and could not be tried in proceeding – All co-owners of plaintiff No.1 represented share of plaintiff No.1 in estate in suit – Being co-owners, one co-owner is treated as having right in every part and parcel of joint property – Husband of plaintiff No.1, who was omitted to be impleaded as her legal representative in First Appellate stage, had died – Non-impleadment of husband of plaintiff No.1 in First Appellate Court has no consequence. [Paras 22, 23]
Result: Appeal dismissed.
JUDGMENT
K. Babu, J.—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 PW1 was examined, and Exts.A1 & A2 were marked. DWs1 & 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, they a
