Sudhanshu Dhulia JUDGMENT
1. The Appellants had filed a suit for partition and mesne profit way back in the year 1988, before the Court of Principal Munsif, Kozhikode-I, Kerala, claiming ancestral rights over the property comprising of Items 1 & 2 in Plaint Schedule A; property admeasuring 33 ½ cents and 42 cents respectively. The Trial Court dismissed the suit of the Plaintiffs/Appellants vide its Order and judgment dated 03.02.1993 on the ground that the land along with the house sought to be partitioned is an agricultural land on which the Plaintiffs/Appellants, cannot claim any right. This finding of the Trial Court was upheld by the First Appellate Court, and finally by the High Court of Kerela by the impugned judgment dated 29.01.2009 in second appeal. In short, the present Appellants have lost from all the Courts below.
2. The contesting parties before this Court belong to "Thiyyas" community of Kozhikode, Kerala who were governed by Hindu Mitakshara law. The admitted position is that amongst "Thiyyas" of Kozhikode, ancestral property devolves only on the male children; daughters, have a right of maintenance till the time of their marriage. We are speaking here of the rights, including possession as it existed prior to the Hindu Succession Act, 1956. The Plaintiff/Appellant had filed a civil suit before the court of Munsif for partition of the property which has a total area of 75 ½ cents. Built on the land is the ancestral residential house of the parties. The suit of partition was dismissed by the trial court holding that Hindu Women's Right to Property Act, 1937 was not applicable to agricultural land, till its amendment in the year 1946 and the succession to the said property had opened in the year 1942 itself which precedes the date of amendment.
3. The property originally belonged to Sami Vaidyar. On his death in the year 1942, it devolved on his male successor son Sukumaran. Rights on the property are being claimed presently by the progenies or daughters of Sami Vaidyar through their mother Choyichi, who was the widow of Sami Vaidyar. The claim of the Plaintiff was that Choyichi (who died in the year 1962) had a right, though a limited right under the Hindu Mitakshara law as well as by virtue of Hindu Women's Right to Property Act, 1937 which blossomed into full-fledged right Under Section 14 Sub-section (1) of Hindu Succession Act, 1956 which is reproduced below:
14. Property of a female Hindu to be her absolute property.-(1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner
4. This argument of the Plaintiff was rejected by the Trial Court and the same was upheld by the First Appellate Court as well as by the Second Appellate Court on the reasoning that after the death of Sami Vaidyar, his son Sukumaran succeeded in the property in year 1942 itself. Thereafter, Sukumaran and later the children succeeding Sukumaran had the right over the property which undisputedly remained in their possession. Section 14 Sub-section (1) had no application in this case. The essential ingredient of Section 14 Sub-section (........