Female heirs retain property rights under Mitakshara Law despite marriage before the Hindu Succession Act, if supported by partition deeds.

JUDGMENT

The defendants 1 and 2 in a suit for partition has come up before this Court, aggrieved by the concurrent findings of the Principal Munsiff Court-II, Kozhikode in O.S No.1078/2009 as well as the II Additional District Court, Kozhikode in A.S No.163/2011.

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

The property described in item No.2 of the plaint schedule was set apart to the joint share of the mother of the plaintiffs late Sarojini, defendants 1 and 2 and their mother Janaki by virtue of a registered partition deed No.1993/1953 of SRO Chevayoor. Janaki died in October 2004 and Sarojini died on 20.02.2009. The parties are Thiyyas from malabar area, governed by Mitakshara Law. One Choyi obtained rights over the property by virtue of a lease deed. He had two children Kandan and Kuttappu. The plaintiffs and the defendants are the descendants of Kandan. On 07.08.1963, Ext.A1 partition deed was executed. Kandan had also one daughter named Damayanthi, who was neither made party to the partition deed nor was allotted any share. In 1963, the widow of Kandan, Janaki purchased the jenmam right along with defendants 1 and 2. In the year 1990, Janaki released her right over the plaint schedule property in favour of defendants 1 and 2 and accordingly defendants 1 and 2 had partitioned the property in the year 2002, between themselves. On 08.05.1955, the Sarojini was married off and for the purpose of the marriage, a mortgage was executed on 04.05.1955 and out of the mortgage, she was married off. Therefore, the plaintiffs contended that since the parties have themselves understood the true purport of the partition deed dated 07.08.1953, late Sarojini was certainly entitled for a separate possession of the property of her share. The defendants resisted the plea contending that since the jenmam right was obtained by late Janaki, she had absolute right title and interest over the property. It was further contended that since Sarojini had only a limited interest over the property and that she was married off prior to 07.06.1956, when the Hindu Succession Act , 1956, came into force, she thereafter cannot claim right title and interest over the plaint schedule property. On behalf of the plaintiffs, Ext.A1 was produced and PW1 was examined. On behalf of the defendants, Exts.B1 to B3 were produced and DW1 was examined Ext.B4 was also produced by defendants 1 and 2 before the First Appellate Court. The trial court on appreciation of the pleadings framed the following issues:-

1. Whether the plaintiff has co-ownership right over the plaint schedule property?

2. If so, what is the quantum of shares to which parties are entitled?

3. Relief and cost?

3. On appreciation of oral and documentary evidence, the trial court held that, since late Sarojini had a specific share in the plaint schedule property by virtue of Ext.A1 partition deed dated 07.08.1953, her rights are not lost. Accordingly, the suit was decreed. Aggrieved, the defendants preferred A.S No.163/2011 and by judgment dated 07.02.2014, the appeal was dismissed, confirming the judgment and decree of the trial court.

Hence the present appeal.

4. Heard Shri.S.V.Balakrishna Iyyer, the learned Senior Counsel, assisted by Shri.P.B.Subramanyan, learned counsel, appearing for the appellants and Shri.T.Sethumadhavan, the learned Senior Counsel, assisted by Smt.Preethi P.V., the learned counsel, appearing for the respondents.

5. Shri.S.V.Balakrishna Iyyer, the learned Senior Counsel pointed out that, since the property was ancestral property in the possession and ownership of Kandan, the father of the defendants and the plaintiffs mother, Sarojini, the daughter does not have