JUDGMENT

Sathish Ninan, J.

The preliminary decree in a suit for partition is under challenge by the plaintiffs.

2. The plaintiffs are the daughters and the defendant is the son of late Ramakumaran @ Ramkumar. Ramkumar died intestate on 05/12/2015. His wife predeceased him. The plaint schedule consists of 7 items of properties. Plaint item Nos.1 to 4 belonged to Ramkumar as per Ext.A1 Partition Deed of the year 1960. Plaint item Nos.5 and 6 belonged to him under Ext.A2 Partition Deed of the year 2014. Plaint item No.7 is acquired in the name of the defendant by late Ramkumar in the year 1969, under Ext.A3 Sale Deed. At that point of time, the defendant was a minor aged 2½ years. The property infact belonged to Ramkumar. On these allegations the plaintiffs sought for partition and separate possession of 1/5 shares each, of the plaint schedule properties.

3. The defendant contended that the plaint item No.7 belongs exclusively to him. As regards item Nos.1 to 6, it was contended that, the parties belong to Hindu Dheevara (Araya) Community in the Valappad Village of Chavakkad Taluk and are governed by the Hindu Mitakshara Law. The properties were obtained by the father Ramkumar, on a family partition. They are coparcenary properties, over which the son got a right by birth, and the plaintiffs - daughters, do not have any right.

4. The trial court negatived the defendant's plea with regard to plaint item No.7 and held that it belonged to Ramkumar. The Court further proceeded to hold that, the parties are governed by the Hindu Mithakshara Law, that the properties are coparcenary properties and that the defendant got one-half right over the property by birth. A preliminary decree for partition was passed with regard to the half share of Ramkumar over the properties.

5. As against the finding regarding partibility of plaint item No.7, there is no appeal or cross objection by the defendant. Hence the said finding has become final and does not arise for consideration in this appeal.

6. We have heard Sri.P.Martin Jose, the learned counsel for the appellants/plaintiffs and Sri.K.S.Bharathan, the learned counsel for the respondent/defendant.

7. The points that arise for determination are:

(i) Is the finding of the trial court that the parties are governed by the Hindu Mithakshara Law sustainable?

(ii) Does the decree and judgment of the trial court warrant any modification?

8. To find that the parties are governed by the Hindu Mithakshara Law, the trial court relied upon the judgments in Rohini v Sethumadhavan [1978 KHC 119] and Surendran v Krishnan [2003 KHC 537]. The said judgments declared that, the Thiyyas of Calicut are, in the absence of proof of any custom, are governed by the Mitakshara Law. The parties herein are not Thiyyas. They belong to the Dheevara Community of Malabar region. There is no material to find that, such community is governed by the Hindu Mithakshara Law. On the contrary, it is seen from Exts.A1 and A2 Partition Deeds that, the female members in the family are parties to the partition. So also, Ext.A1 recites that the parties are governed by the Hindu Succession Act. Therefore, it can only be held that the parties are governed by the Hindu Succession Act. The finding of the trial court to the contrary is only to be set aside and we do so. Point no.(i) is answered accordingly.

9. Since the parties are governed by the Hindu Succession Act, the plaintiffs and the defendant are entitled for 1/5 shares each. The declaration of shares by the trial court is liable to be modified accordingly. Point no. (ii) is answered accordingly.

10. In the Written Statement, at paragraph 9, the defendant has raised a plea for equitable allotment with regard to the building situated in plaint item No.7. It is the contention that, such building was put up in item No.7 with the permission of the father and utilising the defendant’s money. The plea of equitable allotment could be considered in the final decree proceedings and is left open.

In the resu