IMPORTANT POINT
Succession of ancestral property – Self-acquired property of a Hindu male upon his death after commencement of Hindu Succession Act, 1956 coming into hands of his son as a Class I heir is held by him in his individual capacity and not as a coparcenary along with his children.

JUDGMENT

Additional Defendants 4 to 6 in a suit for partition, OS No.585/2007 on the files of the Additional Sub Court-II, Ernakulam, are in this second appeal against the decree of partition.

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

One Venkitan Embranthiri acquired an extent of One (1) Acre 26 Cents by a sale deed in the year 1101 ME. Venkitan Embranthiri had six sons and two daughters. The plaintiff and the defendants claim under one of the sons, T.V Ramachandra Rao. On the death of Venkitan Embranthiri, six sons and two daughters came together to execute a partition deed on 1.2.1967, wherein 37 cents was allotted to T.V. Ramachandra Rao, father of the plaintiff and defendants 2 to 6. Later, one daughter of Venkitan Embranthiri, namely, Radhamma @ Radha released her share over 9 cents of the land allotted to her on 2.2.1967. Thus, T.V. Ramachandra Rao came into absolute right title and interest over 46 cents of land. On 15.4.1978, Ramachandra Rao gifted 46 cents to his wife. Later, the mother of the plaintiff and defendants 2 to 6 had mortgaged the property for the purpose of availing credit facility for a hotel business run by the plaintiff during the year 1992 and that mortgage was subsequently discharged. Ramachandra Rao died in the year 1986, and during the lifetime and thereafter, his wife continued to hold the property. Later, the wife of Ramachandra Rao executed a registered Will in favour of the defendants 2 to 6 bequeathing the entire 46 cents of land in their favour. The plaintiff claimed right by birth, because at the time when the Hindu Succession Act, 1956 came into effect, he was in the womb of his mother and thus was entitled to right by birth over 46 cents of land in the name of Ramachandra Rao. In the suit, the mother as well as the other brothers, who did not have a right by birth, were made as parties and the appellants were not impleaded as defendants. The mother of the appellants resisted the suit by contending that the property absolutely belongs to her and that the plaintiff does not have any right over the property nor is he entitled to claim any right by birth, since the property is not a coparcenary property in the hands of T.V. Ramachandra Rao. During the pendency of the suit, the mother of the appellants and defendants 2 & 3 and the plaintiff expired, and thereafter the appellants were impleaded as additional defendants and they contested the suit. The trial court basically considered two issues; (1) Whether the parties are governed by the Nambudiri Act or by the Mitakshara Law, and (2) Whether the property is a coparcenary property at the hands of the plaintiff and his father T.V. Ramachandra Rao. Answering these two questions, the trial court held that the parties were governed by the Mitakshara Law because they are Tulu Brahmins, who migrated into the State of Kerala, and further, the property at the hands of T.V. Ramachadra Rao and the plaintiff was a coparcenary property and therefore, the plaintiff is entitled to claim right by birth. However, the gift deed in favour of the mother was upheld to the extent of transferring the share of the father of the plaintiff, and hence, the Will executed by the mother was also upheld. Accordingly, the suit was decreed and a preliminary decree for partition was passed. Aggrieved, the defendants 4 to 6 (appellants herein) filed an appeal and the plaintiff filed a cross objection questioning the upholding of the Will. Both the appeal and the cross objection were dismissed by the Additional District Court-III, Ernakulam by judgment dated 17.9.2015 and hence, the present second appeal.

3. On 29.3.2016, this Court issued notice to the respondents on the substantial questions of law framed in the appeal, which read as under:

“A. Whether the self acquired property of a Hindu male upon his death after the commencement of the Hindu Succession Act, 1956 coming into the hands of his son as a class I heir is held by him in his ind