Pangu Alias Apputty (dead) Throu L.R.Ors Vs Narayani and Ors.

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C.A. No. 352 of 2009 1

NON-REPORTABLE

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.352 OF 2009

PANGU ALIAS APPUTTY (DEAD) THROUGH L.Rs.& ORS. … APPELLANTS

Versus NARAYANI & ORS. … RESPONDENTS

J U D G M E N T

V. GOPALA GOWDA, J.

This appeal is filed by the appellants against

the final judgment and order dated 02.02.2005 passed

in A.S. No. 678 of 1993(C) by the High Court of

Kerala at Ernakulam, whereby the High Court has set

aside the judgment and decree passed in the Original

Suit No. 123 of 1990 on 26.11.1992 by the

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C.A. No. 352 of 2009 2

Subordinate Court Judge, Tirur, holding that the

judgment and decree under the appeal cannot be

sustained and passed a preliminary decree directing

the division of the suit schedule properties.

2. The relevant facts, in brief, are stated

hereunder. For the sake of brevity and convenience

the parties are referred to as per the rank assigned

to them in the original suit proceedings.

3. The defendant Nos. 1 to 9 in the Court of the

Subordinate Judge are the appellants herein and the

plaintiffs and defendant Nos. 10 to 17 are the

respondents herein who belong to the Perumkollam

(blacksmith) community and are governed by customary

law and Hindu law. As per the original suit, the

suit schedule properties belonged to Valli, the

mother of the plaintiff No. 1 and grandmother of

plaintiff Nos. 2 to 4 and the defendant Nos. 1 to 17.

Valli died in the year 1942 leaving behind her three

sons namely, Kunhan, Ayyappan and Apputty and two

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C.A. No. 352 of 2009 3

daughters, namely, Unniechi and Ammalukutty. The

plaintiff No. 1 is Unniechi, the daughter of Valli,

plaintiff Nos.2 to 4 are the children of deceased

Apputty, defendants Nos. 1 to 7 are the children of

the deceased Kunhan, defendant Nos. 8 and 9 are the

daughters of deceased Ayyappan and defendant Nos. 10

to 17 are the children of deceased Ammalukutty.

Kunhan expired in the year 1984 or 1985. Ammalkutty

died in the year 1986 or 1987 and Ayyappan died in

the year 1984 or 1985. Apputty died in the year 1945.

4. According to the case pleaded by the plaintiffs,

after the death of Valli, her two sons, namely,

Kunhan and Ayyappan were in possession and enjoyment

of the suit schedule properties for and on behalf of

the other legal heirs. Kunhan and Ayyappan were

giving the income derived from the suit schedule

properties to the shares of the plaintiffs upto their

death.

It is also stated by the plaintiff No. 1,

Unniechi and Ammalukutty that the daughters of the

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C.A. No. 352 of 2009 4

deceased Valli were residing in their matrimonial

home and frequently used to come and reside in their

ancestral home. That, after the death of Apputty,

plaintiff Nos. 2 to 4 were also residing in the suit

properties and their marriages were also conducted

there.

5. The plaintiff No. 1 (Unniechi d/o Valli)

requested the defendant No. 1 on several occasions

and finally as per the notice dated 30.08.1990 to

allot the share of plaintiff No. 1 by dividing the

suit schedule properties by meets and bounds.

6. The defendant No. 2 approached the plaintiff No.

1, offering Rs.500/- towards the value of her share

and requested her to be content with the same. But

she did not accede to the request made by him.

Thereafter, defendant No. 1 sent a reply notice

stating therein that the plaintiff No. 1 was not a

co-sharer of the suit schedule properties and that

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C.A. No. 352 of 2009 5

the properties were not available for partition as

prayed by her in the original suit.

7. On the other hand, it is stated by defendant

Nos. 1 to 9 that after the death of Valli, the suit

schedule properties were partitioned between Kunhan

and Ayyappan by a registered partition deed of the

year 1953, as per Ex-B1, considering that they are

co-owners of the said properties. During their life

time, they were in continuous, uninterrupted, open

and hostile possession of the suit schedule

properties from 1953 onwards against the entire world

including the plaintiffs and defendant Nos. 10 to 17

and after their death, their children, defendant Nos.

1 to 9 have been in continuous uninterrupted

possession of the suit schedule properties.

8. It is stated by the defendant Nos. 1 to 9 that

they have constructed building and made permanent

valuable improvements in the suit schedule

properties. The said defendants prayed for the value

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C.A. No. 352 of 2009 6

of improvements made upon the suit schedule

properties which is valued around Rs.3,50,000/- in

the event, if a decree of partition of the properties

is passed, along with the entitlement of their share

on equity basis. It is also stated by them that the

rights of the plaintiffs, if any, on the suit

schedule properties have been lost by them on account

of adverse possession of the properties by defendant

Nos. 1 to 9 as the same is barred by limitation and

ouster from the properties. Further, it is pleaded

that the suit filed by the plaintiffs without any

prayer for recovery of possession of properties from

defendant Nos. 1 to 9 is also not maintainable in

law. It is further stated by the defendants that the

plaintiffs are not entitled to inherit the suit

schedule properties as per the customary law

prevailing in the community.

9. It is also stated by the defendant Nos. 1 to 9

that Apputty predeceased his mother in the year 1938,

hence, plaintiff Nos. 2 to 4 are not entitled to

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C.A. No. 352 of 2009 7

inherit the properties left behind by Valli. The

defendant Nos. 8 and 9 (daughters of deceased

Ayyappan) filed a joint written statement separately

before the Trial Court on the similar lines of

defence taken by the defendant Nos. 1 to 7 in their

written statement.

10. It is further stated by the above defendants

that even before the death of Valli, her daughter

Unniechi, the plaintiff No. 1 and the other daughter

namely, Ammalukutty (the mother of the defendant Nos.

10 to 17) were given ornaments, utensils and dowry in

their marriage as Streedhana which is in accordance

with the customary rights recognised in the

community. According to them as per the customary

rights of the parties and law, on the death of Valli,

the suit schedule properties were devolved on her

surviving sons, namely, Kunhan and Ayyappan

exclusively by succession. Both the plaintiff No. 1

and her sister, Ammalukutty were aware of this.

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C.A. No. 352 of 2009 8

11. The defendant Nos. 10 to 17 had filed their

written statements before the Trial Court supporting

the plaint averments and they have also claimed

allotment of their separate share by dividing the

suit schedule properties by metes and bounds and put

them in possession of their share of the properties,

that would be allotted by the Court in the final

decree proceedings that will be drawn.

12. The Trial Court has framed 9 issues on the

basis of pleadings and conducted the trial. On behalf

of the plaintiffs, two witnesses were examined as PW-

1 and PW-2 and their documents were marked as Exs. A-

1 to A-3 and on behalf of the defendants, three

witnesses as DW-1 to DW-3 were examined and marked

their documents as Exs.B-1 to B-10 to justify their

respective cases in the original suit proceeding.

13. The Trial Court on the basis of pleadings and

on appreciation of both oral and documentary evidence

on record has answered the contentious issues against

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C.A. No. 352 of 2009 9

the plaintiffs and in favour of the defendant Nos. 1

to 9 and consequently, held that the plaintiffs and

defendant Nos. 10 to 17 are not entitled for

partition vide its judgment and decree.

Consequently, the suit was dismissed with no costs.

14. Aggrieved by the judgment and decree of the

Trial Court, the plaintiffs filed Appeal Suit No. 678

of 1993(C) before the High Court of Kerala. During

the pendency of the appeal, the plaintiff No. 1 died

and additional appellant Nos. 5 to 16 were impleaded

as the legal representatives of the plaintiff No. 1

vide order dated 10.8.2004 passed in C.M. Application

No. 895, I.A. Nos. 2202, 2203 and 2004. The

plaintiffs have questioned the correctness of the

findings recorded on the contentious issues framed by

the Trial Court urging various legal contentions

inter alia contending that Valli died long before the

commencement of the Hindu Succession Act, 1956 and

also stated that the suit schedule properties in

question are “Streedhana” properties and the Trial

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C.A. No. 352 of 2009 10

Court has misdirected itself to hold that the

plaintiffs are not entitled for a decree of partition

of the properties. The averments made in the plaint

are that as per the customary law of the community

and Hindu Law, all the children of Valli are the

heirs of Valli and all of them have equal shares and

are in joint possession of the suit schedule

properties. In the absence of the plea in the plaint

that both the daughters of Valli namely, Unniechi and

Ammalukutty were not given the dowry and other

properties at the time of their marriage and their

marriage was not performed in Kudivaippu form, and

therefore, they are entitled to their share over the

properties.

15. The plaintiffs have pleaded that Apputty died

subsequent to the death of Valli. No doubt, the said

plea is denied by the contesting defendants as no

concrete evidence was adduced on either side of the

parties. It is urged on behalf of the plaintiffs

before the High Court that so far as the findings

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C.A. No. 352 of 2009 11

recorded by the Trial Court on the contentious issue

No. 4 in favour of the defendant Nos. 1 to 9 is concerned, by placing reliance on Ex.-B1, the

partition deed dated 06.05.1953 between Kunhan and

Ayyappan, who had partitioned the suit schedule

properties, as the same belong to them exclusively,

and Ex.-B9, the gift deed made in favour of

defendants Nos. 8 and 9, by their father is not only

erroneous but also suffers from law.

16. On the contrary, the defendant Nos. 1 to 9 have

specifically pleaded that the marriage of daughters

of Valli was performed in Kudivaippu form but they

have not proved the same by producing cogent

evidence. They had pleaded that the daughters of

Valli had been given ornaments, utensils and dowry at

the time of their marriage. However, it was urged on

behalf of them that it was upto the plaintiffs to

prove that their marriage was not performed by

following the Kudivaippu form of marriage prevalent

in the community but their marriage was performed by

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C.A. No. 352 of 2009 12

following Sambandam to justify their claim upon the

suit schedule properties. In support of their case,

they placed reliance upon the judgment in Kochan

Kani Kunjaraman Kani v. Mathevan Kani Sankaran Kani1,

wherein the Kerala High Court has laid down the law

with regard to the requirements for accepting a valid

custom in the community. The plea in that regard

should be so specific and clear that the opposite

parties are not taken by surprise. Valli died at

Ramanattukara in the erstwhile Malabar area,

therefore, the decisions of the Madras High Court

alone are binding between the parties in relation to

the suit schedule properties, hence the decisions of

the erstwhile Travancore & Cochin cannot be applied

to the fact situation of the case on hand. Further,

it is stated that a custom modifying the pristine

Hindu Law entitles the married daughters to their

share in the properties of their deceased mother

which has also been judicially recognized. No doubt,

no such custom has been pleaded in the plaint by the 1 1971 K.L.T. 609

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C.A. No. 352 of 2009 13

plaintiffs. Even then, if it is the Hindu Mithakshara

Law which governs the parties, then the plaintiff No.

1 who was the surviving daughter of Valli and

defendant Nos. 10 to 17 who are the children of

Ammalukutty, the other daughter of deceased Valli,

cannot get any share over the properties.

17. Further, the alternative submission made on

behalf of plaintiffs that since the suit schedule

properties were acquired by Valli as per Ex.-A1

“Panayam Theeradharam” during coverture, therefore,

the same could be treated as her Streedhana

properties of deceased Valli as opined by N.R. Raghavachariyar on Hindu Law, under Section 468, Chapter XIII, at Page 530 of the 7th Edn. of his Commentary. Therefore, the daughters of Valli alone would be entitled to the suit schedule properties and

since they were excluded from possession of the

properties by their brothers for more than 50 years

after the death of Valli, their rights, if any, are

lost by adverse possession and barred by limitation.

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Therefore, suit filed by the plaintiffs is liable to

be dismissed in limine, since the suit for partition

will lie only against co-owners in joint possession

in view of Section 37 of the Kerala Court Fees and

Suits Valuation Act, 1959 (in short “the Act”). The

defendant Nos. 1 to 9, in such a case would be

strangers in possession of the properties and the

suit as against them without a prayer for recovery of

the possession of the suit schedule properties as

provided under Section 30 of the Court Fees Act will

not lie. The plaintiffs have paid court fee only

under Section 37(2) of the Court Fees Act and there

is neither a prayer for recovery of possession of the

suit schedule properties nor payment of court fee

paid under Section 30 of the Court Fees Act.

Therefore, the original suit filed by the plaintiffs

is liable to be dismissed as the same is not

maintainable in law.

18. The High Court has held that as per the custom

of the Hindu Law, the suit schedule properties of the

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C.A. No. 352 of 2009 15

deceased Valli are not Streedhana and after her

death, her daughters and sons have inherited the suit

schedule properties. Therefore, there was no reason

for the Trial Court to hold that the daughters of

Valli were excluded from partition of the suit

schedule properties which are not binding on the

plaintiffs and defendant Nos. 10 to 17. Therefore,

claiming share by them after 50 years of death of

Valli upon the suit schedule properties cannot be a

ground for the contesting defendant Nos. 1 to 9 to

take the plea that they have perfected their title to

the suit schedule properties by adverse possession

and ouster as specifically pleaded by them, which

plea is accepted by the Trial Court and the findings

recorded by it on the contentious issue No. 4 is not

only erroneous but also suffer from error in law.

The High Court has held that the defendant Nos. 1

to 9 have not proved the fact that Apputty (3rd son

of Valli) has predeceased his mother Valli to deny

the rights claimed by the plaintiff Nos. 2 to 4 who

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are his heirs. On the other hand, from the evidence

of DW-2, it could be certainly inferred that Apputty

died after the death of his mother.

19. It is further observed by the High Court in the

impugned judgment that with reference to the findings

recorded in the judgment of the Trial Court that even

assuming that the plaintiffs and defendant Nos. 10 to

17 were co-owners, the open and exclusive possession

of the suit schedule properties by the contesting

defendant Nos. 1 to 9 to their hostile interest is a

strong circumstance to draw an inference of their

ouster from the suit schedule properties and findings

recorded in this regard by the Trial Court by

accepting their case on the basis of facts pleaded

and evidence on record and the decisions of this

Court in Amrendra Pratap Singh v. Tej Bahadur

Prajapati & Ors.2 is not only erroneous in law but

also suffer from error in law and therefore it has

2 (2004) 10 SCC 65

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set aside the finding and reasons recorded in the

impugned judgment.

20. The contentions urged on behalf of the

contesting defendant Nos. 1 to 9 contending that the

Trial Court being a fact finding court, on proper

appreciation of pleadings, documentary and oral

evidence on record has held that Valli died during

the life time of the fathers of the defendant Nos. 1

to 9 and they have been in possession and enjoyment

of the properties exclusively as the owners.

Therefore, they have perfected their title to the

suit schedule properties by adverse possession and

ouster of the plaintiffs and hence, the same could

not have been interfered with by the High Court in

exercise of its appellate jurisdiction and granted

decree for partition in favour of the plaintiffs and

defendant Nos. 1 to 9, is also not sustainable in

law.

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21. The High Court has passed the impugned judgment

dated 02.02.2005 in A.S. No. 678 of 1993(C) by

reversing the findings recorded on the contentious

issues framed by the Trial Court against the

plaintiffs and defendant Nos. 10 to 17 and directed

the division of the plaint schedule properties by

meets and bounds by allotting the plaintiffs 1/5

share to the first plaintiff, 1/5 share to plaintiff

Nos. 2 to 4 jointly. The High Court further held that

any of the other sharers can apply for separation and

allotment of their share on payment of the requisite

court fees. It is further held by the High Court that

any of the other sharers can apply for separation and

allotment of their share on payment of the requisite

court fees. The High Court further held that the

plaintiffs shall be entitled to mesne profits, the

quantum of which shall be determined in the final

decree proceeding. Such mesne profits shall be

payable by defendant Nos. 1 to 9 from the date of

suit till delivery of their respective share

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properties to the plaintiffs. Further, the High Court

has awarded the costs of the Appeal.

The correctness of the said judgment is

challenged by the defendant Nos. 1 to 9 before this

Court by filing this Civil Appeal and by raising

certain substantial questions of law and urged

grounds in support of the same.

22. It is contented by the learned counsel on

behalf of the appellant-defendant Nos. 1 to 9 that

the custom of the parties is at variance with the

Mitakshara Law, regarding succession to the

properties and it is for the parties who have pleaded

the custom to prove it affirmatively by adducing

evidence on record in order to secure a decree for

partition of the suit schedule properties.

23. It is further contented that the High Court

erred by placing the burden of proof on the

defendants to prove that the marriage of the

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C.A. No. 352 of 2009 20

plaintiff No. 1 and Ammalukutty took place in the

Kudivaippu form and not Sambandam form.

24. The further contention urged on behalf of the

defendant Nos. 1 to 9 was that the High Court erred

by not considering the fact that plaintiffs have not

established all the ingredients necessary for the

type of marriage celebrated by the daughters of

deceased Valli by producing cogent evidence to get a

decree of partition of the suit schedule properties

and the burden was on them to plead and establish the

form of marriage of the daughters.

25. It is further contended by the learned counsel

on behalf of defendant Nos. 1 to 9 that the High

Court has erred in exercising its jurisdiction by

reversing the findings of fact recorded by the Trial

Court on the relevant issues on the basis of the

pleadings and evidence on record. Therefore, the

findings recorded by the High Court in the judgment

on the contentious points that arose for its

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C.A. No. 352 of 2009 21

consideration are not only erroneous in law but also

suffer from error in law.

26. It is further contended that the Hindu

Mitakshara law applies to the family of Valli in the

absence of any proven customs practiced in the

community, thus the High Court should have held that

under the Hindu law, daughters are not entitled to

any share in the properties of deceased Valli.

Therefore, it is urged by the learned counsel that

the High Court erred in holding that the daughters of

deceased Valli are also entitled to share in the

estate of the deceased and has committed a grave

error in reversing the judgment of the Trial Court.

Therefore, the impugned judgment is vitiated in law

and liable to be set aside.

27. Further, it is contended that the question of

law raised regarding adverse possession of the

defendant Nos. 1 to 9 would certainly arise in this

appeal for the reason that the High Court has

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erroneously reversed the finding of fact recorded by

the Trial Court on the issue of adverse possession of

the suit schedule properties of defendant Nos. 1 to 9

by ouster, which is contrary to the admitted

pleadings and finding of fact in the instant case

regarding their possession. Therefore the defendant

Nos. 1 to 9 have prayed to allow the appeal.

28. On the basis of the above said rival legal

contentions, the following points would arise for our

consideration: -

(1) Whether the plaintiff No.1 and Defendant Nos. 10-17 have proved that the suit schedule properties of Valli are Stridhan properties in view of Ex.–A1, “Panayam Theeradharam” which properties were acquired by her, as per the said document?

(2) (i)-Whether the plaintiff No. 1 and defendant Nos. 10 to 17 are entitled for partition of the suit schedule properties as they have been excluded from the possession of the properties by ouster by

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the sons of deceased Valli namely, Kunhan and Ayyappan for more than 50 years from the date of her death and (ii) whether they have lost their right by adverse possession of the defendant Nos. 1 to 9 by ouster and their claim is barred by limitation?

(3) In the absence of averments in the plaint regarding custom followed in the marriage of the daughters of Valli and that their marriage was not in Kudivaippu form therefore, can their rights be excluded upon the suit schedule properties of Valli as per customs prevalent in their community under the Hindu Law?

(4) Whether the partition deed (Ex.-B1) in the year 1953 is binding between the deceased Kunhan and Ayyappan in view of the litigation between them as per documents (B-2 to B-4) in respect to the suit schedule properties of Valli?

(5) Whether the plaintiff Nos. 2 to 4 are entitled for their share in the suit properties?

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(6) What relief the parties are entitled to?

29. To answer the aforesaid points, it would be

convenient for us to give the genealogy of Valli and

her family for proper understanding of the claims of

the parties, which is extracted as below :-

VALLI = HUSBAND (Died 1940 per plaintiffs) (Died 1954 per DW-3) (Died 1942 per D-1)

| |-----------------|----------------|------------------ |------------------------| | | | | | Unniechi Kunhan @ Ayyappan @ Ammalukutty died Apputy P-1 Pangan died Chayichan died 1986 or 1987 died 1945 | 1984 or 85 per 1984 or 1985 | per plaintiff

| |------------| | | | Valli Cherumalu | |----------|----------| | D-8 D9 | Narayani Chinna Lakshmi | | P-2 P-3 P-4 | | | Sanku Chayachan Apputty Velayudhan Perutty Krishnan Chinna Lakshmi | |-------|------|-------|---------|-------|-------|-------| | D-10 D-11 D-12 D-13 D-14 D-15 D-16 D-17 | |------------------|------------------|----------|-----------|--------|--------------| Pangu @ Krishanan @ Chundan Kalliani Valli Ittichira Ammunni Apputty Appukuttan D-3 D-4 D-5 D-6 D-7 D-1 D-2

Answer to Point Nos. 1 & 2

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30. The point Nos. 1 & 2 are to be answered against

the plaintiff No. 1 and defendant Nos. 10 to 17 by

assigning the following reasons.

The suit schedule properties are Streedhana

properties of deceased Valli, as per the documentary

evidence on record Ex.-A1 (Panayam Theeradharam) as

opined by N.R. Raghavachariyar on Hindu Law, under Section 468, Chapter XIII, at Page 530 of the 7th

Edn. of his Commentary., which is extracted below :-

“S.468.Definition of Stridhana- During the voluminous discussions ancient and modern, which have arisen with regard to the separate property of woman under Hindu Law, its qualities, its kinds and its line of descent, the question has constantly been found in the forefront, what is Stridhana? Vijnaneswara’s expanded definition of Stridhana in the Mitakshara, was accepted by the Benares(Viramitrodaya,V-1-2)and Mayukha Schools (iv-10-2 and 26) and generally by the Madras High Court, but was not adopted by the Mithila and the Dayabhaga Schools. The Bengal School of lawyers have always limited the use of the term narrowly, applying it exclusively or nearly exclusively, to the kinds of women’s property enumerated

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in the primitive sacred texts the Smritis. The author of the Mitakshara and some other authors apply the term broadly to every kind of property which a woman can possess from whatever source it may be derived. The Privy Council in Sheo Shankar v. Debi Sahai, confined the Stridhana proper to property classified as such by Manu and Katyayana and disapproved the extension given by Yajnavalkya. Stridhana must be confined to such property of a woman over which she possesses an unfettered power of disposal. This power depends upon the School to which she belongs, her status at the time of acquisition and the source of such acquisition.

469. Source of acquisition.- The source of acquisition of property in a woman’s possession are the following:-

1.Gifts before marriage, 2.Wedding gifts, 3.Gifts subsequent to marriage 4.Self-acquisitions 5.Inheritance 6.Purchase 7.Partition 8.Adverse possession 9.Maintenance claim 10.Other sources”

Definition of Streedhana is adverted to by the

High Court at para 12 of the impugned judgment which

reads as under:-

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“12. Streedhana i.e., a woman’s peculium is a property :-

(i) given to a woman before the nuptial fire (adhyagni)

(ii) given at the bridal procession (adhyavahanika)

(iii) given in token of the love (dattam pritikarmini) and

(iv)that is received from a brother, mother, or father or husband at the nuptial fire or presented on her supersession (adhivedanika) and the like (adi)”

31. The High Court referred to Vigneswara’s expansion

of the term “adi” which includes all those properties

that a woman may acquire by inheritance, purchase,

partition and seizure. The said expanded definition

of “Streedhana” by Vigneswara was not accepted by the

Privy Council in Sheo Shankar Lal v. Debi Sahai3 and

Debi Mangal Prosad Singh v. Mahadeo Prasad Singh4.

The disapproval by the Privy Council of Vigneswara’s

expansion of “Streedhana” is confined to the Bengal

or Dayabhaga and Banaras Schools. The said expanded

3 (1903) ILR 25 ALL 4 (1912) 14 BOMLR 220

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definition of “Streedhana” has generally been

accepted by the Madras High Court. It is thus evident

from the pleadings and evidence on record that the

properties of Valli are Streedhana properties in the

absence of any other concrete documentary proof

produced by defendant Nos. 1 to 9 before the Trial

Court which would have generally entitled her

daughters to have exclusive right over the suit

schedule properties. Having said so, the learned

Judge of the High Court did not record a finding that

the Streedhana properties of Valli exclusively belong

to her daughters and they have been out of possession

from the said properties for more than 50 years which

is evident from Exs.-B1 to B6. The undisputed fact is

that the original suit was filed by the plaintiffs

for partition in the year 1990. The concurrent

finding recorded by the courts below is that the year

of death of Valli, the mother of the plaintiff No. 1

and grandmother of plaintiff Nos. 2 to 4, was 1942.

Undisputedly, the possession of the suit schedule

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properties has been with the deceased sons namely,

Kunhan and Ayyappan during their life and thereafter

defendant Nos. 1 to 9 for more than 50 years,

therefore, their plea that they have perfected their

title to the suit schedule properties by adverse

possession as they are strangers to the properties in

question for the reason that they are not entitled

for a share of the Streedhana properties of Valli is

valid and legal and therefore, the finding of fact

recorded by the High Court is correct. In view of the

said finding of fact recorded by the High Court the

defendant Nos. 1 to 9 will not succeed to the

properties as they are not the co-owners of the

properties along with the plaintiff No. 1 and

defendant Nos. 10 to 17. Their continuous possession

of the suit schedule properties is adverse possession

by ouster of them is proved by them on the basis of

admitted facts and evidence on record. This finding

of fact is recorded by the Trial Court on the

relevant contentious issue No. 4 but the reasons

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assigned by it on the said contentious issue are

different from the reasons assigned by us, the same

has not been accepted by the High Court and reversed

the said finding by recording its own reasons at

paragraph Nos. 11 and 13 of the impugned judgment

which are not only erroneous in law but suffers from

error in law. Therefore, we have to answer the point

Nos. 1 and 2 in favour of the defendant Nos. 1 to 9

and against the plaintiff No. 1 and defendant Nos. 10

to 17.

32. The High Court has referred to the Ex.-A1 but

did not record positive finding on this aspect of the

case holding that the daughters of Valli are

exclusively entitled to the suit schedule properties

as the said properties are her Streedhana properties.

The same has been referred to for the purpose of

considering the adverse possession of ouster as

pleaded by defendant Nos. 1 to 9 in their written

statement. On this aspect of the case the finding is

recorded by the High Court against them, after

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referring to the provisions of the Kerala Court Fee

Act. Further, there is neither any prayer made by the

plaintiffs for recovery of possession of the suit

schedule properties nor payment of court fee paid by

them under the provisions of the Act. The said

submission made on behalf of the defendant Nos. 1 to

9 was not accepted by the High Court by recording

untenable reason at para 9 of the impugned judgment.

33. The Trial Court being a fact finding court, on

proper appreciation of pleadings, documentary and

oral evidence on record, has rightly come to the

conclusion and held that Valli died during life time

of her children. Thereafter fathers of defendant Nos.

1 to 9 were in possession and after their death they

have been in possession and enjoyment of the suit

schedule properties exclusively as the owners.

Therefore, they have perfected their title to the

suit schedule properties by adverse possession and

ouster of the plaintiff No. 1 and defendant Nos. 10

to 17. Hence, the High Court should not have

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C.A. No. 352 of 2009 32

interfered with the finding of fact recorded by the

Trial Court on the relevant contentious issue No. 4

based on legal evidence on record, the said finding

has been erroneously set aside by the High Court in

exercise of its appellate jurisdiction and therefore,

the impugned judgment is liable to be set aside.

34. The learned counsel for the defendant Nos. 1 to

9 have rightly relied upon the judgment of this Court

in support of their contention in the case of

Amrendra Pratap Singh v. Tej Bahadur Prajapati5

wherein this Court held as under :-

“What is adverse possession? 22. Every possession is not, in law, adverse possession. Under Article 65 of the Limitation Act, 1963, a suit for possession of immovable property or any interest therein based on title can be instituted within a period of twelve years calculated from the date when the possession of the defendant becomes adverse to the plaintiff. By virtue of Section 27 of the Limitation Act, on the determination of the period limited by the Act to any person for instituting a suit for possession of any property, his right to such property stands extinguished. The

5 (2004) 10 SCC 65

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C.A. No. 352 of 2009 33

process of acquisition of title by adverse possession springs into action essentially by default or inaction of the owner. A person, though having no right to enter into possession of the property of someone else, does so and continues in possession setting up title in himself and adversely to the title of the owner, commences prescribing title on to himself and such prescription having continued for a period of twelve years, he acquires title not on his own but on account of the default or inaction on the part of the real owner, which stretched over a period of twelve years, results in extinguishing of the latter’s title. It is that extinguished title of the real owner which comes to vest in the wrongdoer. The law does not intend to confer any premium on the wrongdoing of a person in wrongful possession; it pronounces the penalty of extinction of title on the person who though entitled to assert his right and remove the wrongdoer and re-enter into possession, has defaulted and remained inactive for a period of twelve years, which the law considers reasonable for attracting the said penalty. Inaction for a period of twelve years is treated by the doctrine of adverse possession as evidence of the loss of desire on the part of the rightful owner to assert his ownership and reclaim possession.

23. The nature of the property, the nature of title vesting in the rightful owner, the kind of possession which the adverse possessor is exercising, are all relevant factors which enter into consideration for attracting applicability of the doctrine

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C.A. No. 352 of 2009 34

of adverse possession. The right in the property ought to be one which is alienable and is capable of being acquired by the competitor. Adverse possession operates on an alienable right. The right stands alienated by operation of law, for it was capable of being alienated voluntarily and is sought to be recognised by the doctrine of adverse possession as having been alienated involuntarily, by default and inaction on the part of the rightful claimant, who knows actually or constructively of the wrongful acts of the competitor and yet sits idle. Such inaction or default in taking care of one’s own rights over property is also capable of being called a manner of “dealing” with one’s property which results in extinguishing one’s title in property and vesting the same in the wrongdoer in possession of property and thus amounts to “transfer of immovable property” in the wider sense assignable in the context of social welfare legislation enacted with the object of protecting a weaker section.”

Further, he relied upon the judgment in the case of

Sunder Das v. Gajananrao6, wherein it was held by

this Court as under :-

“The evidence of Defendant 1 when read in its correct perspective showed that he was informed by one Ganpati that the property belonged to King and the King of Datia had given it to the ancestor of the plaintiffs Mukundrao to stay therein and accordingly

6 (1997) 9 SCC 701

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C.A. No. 352 of 2009 35

he thought that Defendant 6 would not be having title to the property. It must be kept in view that the plaintiffs’ ancestor Mukundrao had died 60 years prior to the suit. Therefore, even if originally the property might have belonged to the King it was being occupied by the plaintiffs’ ancestor Mukundrao and his descendants since generations as owners thereof and even by doctrine of adverse possession they would have perfected their title. It may also be kept in view that there was nothing on the record to suggest that the King of Datia had ever attempted to put forward any claim of ownership over the suit property. Even that apart it was not the case of the plaintiffs themselves that the suit property did not belong to their father or their ancestors. On the contrary their case is that the suit house did belong to their father jointly with them. Therefore, it is too late in the day for the learned counsel for the plaintiffs to submit that suit house did not belong to the plaintiffs and, their father or that at the time of the sale plaintiffs’ father had no right, title or interest in the suit house. In our view the evidence on record clearly establishes that the defendants made all permissible efforts to find out the legal necessity which prompted Defendant 6 to enter into the said transaction in their favour.”

Therefore, based on the above mentioned cases, it is

clear that the plaintiff No. 1 and defendant Nos. 10

to 17 have lost their title to the suit schedule

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C.A. No. 352 of 2009 36

properties essentially because of their default and

inaction, which has stretched over a period of more

than 50 years. Thus, their rights were lost by

operation of law and doctrine of adverse possession.

35. The High Court held that the daughters of Valli

alone would be entitled to the suit properties but

the Trial Court has held on the basis of evidence on

record that they were excluded from possession by

their brothers for more than 50 years from the date

of death of Valli. Hence, their rights, if any, are

lost by adverse possession and by ouster and their

claim is barred by limitation.

Answer to Point No. 3

36. The deceased plaintiff No.1 and defendant

Nos. 10 to 17 have not pleaded the custom which was

prevalent in their community under which the

daughters of deceased Valli were governed, for

performing their marriage. They have also not

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C.A. No. 352 of 2009 37

pleaded that they were not given away in marriage in

Kudivaippu form after payment of Streedhana to

disentitle them from their share upon the intestate

properties of deceased Valli. The High Court has

gravely erred in not adverting to the aforesaid fact

in its judgment. Therefore, the reliance placed upon

the decision of the High Court in Kochan Kani

Kunjurama Kani (supra) has been judiciously

recognized which applies to the said principle

regarding the valid custom prevalent in the community

of Valli modifying pristine Hindu Law which entitles

the married daughters share in the properties of

their mother’s Streedhana properties.

The prevalence of such approved custom of

Kudivaippu in the community is accepted by the

defendant Nos. 1 to 9, as they have taken that stand

in their written statement contending that the

daughters of deceased Valli were given Streedhana

money at the time of their marriage and therefore,

they are not entitled for share in the suit schedule

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C.A. No. 352 of 2009 38

properties by way of partition which is an erroneous

and untenable contention for want of legal evidence

produced by them on record before the Trial Court.

In view of the pleadings and evidences of

defendant Nos. 1 to 9 on record regarding custom of

marriage prevalent and practiced in the family of

plaintiff No. 1 and mother of defendant Nos. 10 to

17, the High Court recorded the finding of fact

holding that the marriage of the two daughters of

Valli were not celebrated in the Kudivaippu form and

therefore, it has rightly held that the plaintiff

No.1 and defendant Nos. 10 to 17 are entitled to

their share in the suit schedule properties, which is

left by Valli as the same were her Streedhana

properties.

37. The High Court has come to the right conclusion

by shifting the burden of proof on the defendant Nos.

1 to 9 to prove the fact of the type of marriage of

the deceased plaintiff No. 1 and Ammalukutty. The

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C.A. No. 352 of 2009 39

defendant Nos. 1 to 9 did not produce evidence to

prove the fact that the marriage of the daughters of

deceased Valli was performed by following Kudivaippu

form but not in Sambandam form, to disentitle their

claim upon the suit schedule properties of Valli and

therefore, they are not sharers of the same. In view

of the pleadings and evidence on record of defendant

Nos. 1 to 9, we have to record the finding of fact

that the marriage of daughters of deceased Valli was

not in Kudivaippu form and therefore, the daughters

of deceased Valli alone are entitled to succeed to

her intestate properties who are her legal heirs.

This finding we have recorded in this judgment on the

basis of the judgments of Privy Council and the

Madras High Court (supra) referred to in the impugned

judgment by the High Court.

38. Further, under the pristine Hindu Law, it is the

settled and admitted position of law that married

daughters are not entitled to a share if their

marriage was in Kudivaippu form after payment of

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C.A. No. 352 of 2009 40

Streedhana to them at the time of their marriage. It

has been established from the pleadings and evidence

on record that the marriage of daughters of deceased

Valli was not in the Kudivaippu form as the

defendant Nos. 1 to 9 have failed to prove otherwise.

39. The plaintiff No.1 and defendant Nos. 10 to 17

have however, failed to establish other necessary

aspects for getting the decree for partition of the

suit schedule properties, as claimed by them in view

of the findings and reasons recorded by us on the

contentious point No. 2 framed by us in this case. In

the absence of evidence on record to show that they

were not ousted from possession from the suit

schedule properties and that they have been in joint

possession of the same with their deceased brothers

during their life time and thereafter with their

legal representatives as the co-sharers, the finding

of fact recorded by the Trial Court on this aspect of

the case cannot be disputed with. The defendant Nos.

1 to 9 have stated that the daughters of deceased

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C.A. No. 352 of 2009 41

Valli were married in the Kudivaippu form. However,

they have failed to prove the same. However, the

Trial Court has recorded its finding on the

contentious issue No. 4 in favour of the defendant

Nos. 1 to 9 on the basis of undisputed facts and

evidence on record, it has rightly held that the

above defendants have perfected their title to the

suit schedule properties by way of adverse possession

by ouster of the plaintiff No. 1 and defendant Nos.

10 to 17 from the said properties, which finding of

fact is accepted by us by recording our own reasons

in this judgment. Therefore, we have to hold that the

daughters of Valli are excluded from their rights

upon the suit schedule properties of Valli and are

not entitled for the share as claimed by them in

their suit.

Accordingly, we answer the point No. 3

against the plaintiff No.1 and defendant Nos. 10 to

17.

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C.A. No. 352 of 2009 42

Answer to point No. 4

40. This point is also required to be answered in

favour of defendant Nos. 1 to 9 for the following

reasons :-

It is an undisputed fact that after the death of

Valli partition of the suit schedule properties was

made between the fathers of the defendant Nos. 1 to

9, they have been in continuous possession of their

respective shares in terms of the partition deed by

ouster of the deceased plaintiff No. 1 and mother of

defendant Nos. 10 to 17 thereby they have perfected

their title to the properties as owners. There was

litigation between the fathers of the defendant Nos.

1 to 9 in relation to the said partition, no doubt,

the father of the defendant Nos. 8 and 9 failed in

the aforesaid civil litigation as per the documentary

evidence-Exs.-B2 to B4. Therefore, the same is

binding on the father of defendant Nos. 8 and 9.

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C.A. No. 352 of 2009 43

Accordingly, we answer the point No. 4 in favour of

defendant Nos. 1 to 7.

Answer to Point Nos. 5 and 6

41. The reliance has been placed by the legal

representatives of Kunhan and Ayyappan i.e. defendant

Nos. 1 to 9 on the basis of purchase certificate-

Exs.-B5 and B6 as they have obtained purchase

certificate from the competent Land Tribunal in

respect of the partitioned properties, which have

been in their possession as per Ex.-B1, partition

deed and therefore, they have claimed that they are

either cultivating tenants or deemed tenants in

possession of the land in question under the

provisions of Section 4A of the Kerala Land Reforms

Act, 1963. The said stand of the defendant Nos. 1 to

9 is wholly untenable in law for the reason that

their fathers were not the tenants of the suit

schedule properties under their mother, in this

regard there is no evidence adduced by them. Though

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C.A. No. 352 of 2009 44

they obtained purchase certificate from the Land

Tribunal on the claim made by their fathers that they

were either cultivating tenants or deemed tenants as

defined under Section 2(8) or under Section 4A (a) of

Kerala Land Reforms Act, respectively and therefore,

the application filed by the deceased Kunhan and

Ayyappan for grant of purchase certificate before the

Land Tribunal on the basis of their claim as

aforesaid is not maintainable in law.

42. The plea urged by the above said persons that

they were cultivating/deemed tenants of the suit

schedule properties is wholly misconceived for the

reason that provisions of Sections 2 to 71, 73 to 82,

84, 99 to 108 and 110 to 132 of Kerala Land Reforms

Act, 1963, came into force with effect from

01.04.1964 i.e. after the death of Valli in the year

1942. Section 72 of the Kerala Land Reforms Act

regarding vesting of landlord’s rights upon the

tenanted agricultural lands in the State was

substituted by Act 35 of 1969, published in the

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C.A. No. 352 of 2009 45

Kerala Gazette Extraordinary dated 17.12.1969 and

came into force w.e.f. 01.01.1970. Section 4A of the

said Kerala Land Reforms Act speaks of certain

mortgagees and lessees of mortgagees to be deemed

tenants. The aforesaid provisions of this Act have no

application, to the claim of the deceased fathers of

the defendant Nos. 1 to 9, as they could not have

been deemed tenants under their deceased mother as

the Act came into force from 01.04.1964 and certain

other provisions of Section 4A of the Kerala Land

Reforms Act were substituted w.e.f. 17.12.1969 and

came into force w.e.f. 01.01.1970. Therefore, the

aforesaid provisions have no application to the claim

of the deceased fathers of defendant Nos. 1 to 9 in

respect of the suit schedule properties. Therefore,

the defendant Nos. 1 to 9 placing reliance upon the

purchase certificates Exs.-B5 and B6 have no

relevance to the fact situation. Therefore, the plea

urged by them in this regard is wholly untenable in

law for the reason that they are neither cultivating

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C.A. No. 352 of 2009 46

tenants nor deemed tenants of the suit schedule

properties as there is no evidence produced by them

in this regard in the Original Suit. Therefore, the

purchase certificates which were obtained by their

deceased fathers from the Land Tribunal have no

relevance to the facts of the case.

43. We have already answered the point No. 3 in

favour of the defendant Nos. 1 to 9 by recording our

reasons on the undisputed facts and evidence on

record that they have perfected their title to the

suit schedule properties by adverse possession from

1953 onwards by ouster of the daughters of Valli

after her death.

44. Since we have answered point Nos. 3 and 4 in

favour of defendant Nos. 1 to 9 and we hold that the

plaintiff Nos. 2 to 4, the legal representatives of

deceased Apputty (son of Valli), are not entitled for

the share in the suit schedule properties by way of

partition. The suit schedule properties are

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C.A. No. 352 of 2009 47

Streedhana properties of Valli and after the death of

Valli, the said properties have come into the

possession of her sons namely, Kunhan and Ayyappan

vide partition deed-Ex.-B1 executed between them.

Therefore, we have to answer the aforesaid point

against them as they are not entitled to the shares

in the suit schedule properties and therefore, they

are not entitled for partition of the suit schedule

properties. Since, we have answered the point Nos. 1

to 4 against the plaintiff No. 1 and in favour of the

defendant Nos. 1 to 9, the impugned judgment is

liable to be set aside and we restore the judgment of

the Trial Court, but for the reasons stated by us on

the point No. 2 framed by us regarding adverse

possession of the suit schedule properties of

defendant Nos. 1 to 9. They have perfected their

title upon their respective extent of the suit

schedule properties. The plaintiffs and defendant

Nos. 10 to 17 are not entitled for the relief as

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C.A. No. 352 of 2009 48

prayed by them for the reasons assigned above on the

contentious points.

45. For the foregoing reasons, we allow the appeal

of the defendant Nos. 1 to 9 and set aside the

impugned judgment and decree of the High Court and

restore the judgment and decree passed by the Trial

Court. But no costs awarded.

…………………………………………………J.

[DIPAK MISRA]

…………………………………………………J. [V. GOPALA GOWDA]

New Delhi, August 28, 2014