A coparcener's birthright in property under joint Hindu law allows for partition claims even after familial releases, confirming the continuous nature of ownership rights.

JUDGMENT

(Dated this the 28th day of November2023)

The appellant was the 3rd defendant in O.S. No.179 of 2011 on the files of the Sub Judge-V, Kochi. The 1st respondent was the plaintiff and respondent Nos.2 to 16 were defendants 4 to 17 and 19 therein. The suit was filed for partition.

(The parties are referred to as they appeared in the trial court).

2. The brief facts of the suit are as follows: The plaintiff is the great grand son of one Anantha Shiva Shetty, who belongs to Vysya Vaanika community and the family was following the Joint Hindu Family System and governed by uncodified Hindu Mithakshara Law for the purpose of intestate succession. Anantha Shiva Shetty have 5 sons, one Govinda Shetty, Girivasa Shetty, Bruhaspathi Shetty, Uddhava Shetty and Bruhu Shetty. On the death of Anantha Shiva Shetty in 1902, the sons of Anantha Siva Shetty partitioned the property as per registered partition deed No.326/1078 ME of S.R.O., Kochi. Except 2nd item of A-schedule, all other properties were partitioned by metes and bounds and separate possession was taken by the respective sharers. Plaint schedule property is having an extent of 15 cents and a two storied building apart from a padippura with two shop rooms on the ground floor and a hall upstairs. As per the recitals in the partition deed No.326/1078 ME, this property was also partitioned into five shares along with the remaining properties, but separate possession was not taken by means and bounds. They opted to hold the same as tenants in common. Thus, the joint family status of the five sons of Anantha Shiva Shetty had come to an end as per this deed and changed over to tenancy in common in respect of the plaint schedule property. Out of the five sharers, Bruhaspathi Shetty and Bruhu Shetty died as unmarried and issueless. Therefore, their shares devolved upon the three remaining sharers, namely, Govinda Shetty, Girivasa Shetty and Uddhava Shetty. On partition, the share of each branch has become separate property of that branch. Uddhava Shetty had three sons Venkateswara Shetty, Anantha Sivan and Vasudev. Vasudev died as an unmarried and issueless. On the death of Uddhava Shetty, the 1/3rd right over the property devolved upon Venkateswara Shetty and Anantha Sivan. On the death of Venkateswara Shetty in 1963, the 1/6th share obtained by him in the plaint schedule property devolved upon his wife Sarojini and daughter Vishi. They released their right in favour of Godavari, Prabhakar Rao, Vamana Shetty and Anantha Sivan as per release deed No.1980/1963. The recipients, thereafter, mortgaged the whole plaint schedule property to one Surendranath as per document No.1986/1963 of SRO, Kochi, for raising fund of Rs.1,500/- to pay the consideration to Sarojini and Vishi. Anantha Sivan, the father of the plaintiff was not able to procure Rs.375/-, i.e., his share to redeem the mortgage, to redeem the mortgage from Surendranath. Therefore, Anantha Sivan released his right in the portion of the shares of Sarojini and Vishi, i.e., 1/24th share in the plaint schedule property, which were released to him along with the other three acquirers as per release deed No.586/1975 of SRO, Kochi, in favour of Bhaskar Rao, who is the predecessor in interest of defendant Nos.1 to 6. By retaining the 1/6th original share in the plaint schedule property obtained along with Venkateshwara Shetty. Bhaskar Rao redeemed the plaint schedule property from the mortgagee, Surendranath. The plaintiff is the son of Anantha Sivan, who took birth in the family of Anantha Sivan in 1966 and thus became a coparcener in the family having 4/24th share in the property. On 01.12.1976, when the Kerala Joint Hindu Family System (Abolition) Act, 1975 came i