Allowed

Navuthiyankandi Puthiapurayil v. Charalot Yesoda

Kerala HC27 Jan 2016RSA/1010/2011

Case brief

AI extract

What is this about?

The High Court allowed the second appeal, holding that the appellate court erred in non-suiting the plaintiffs. While the deceased belonged to the Thiyya community making the husband ineligible for succession under Section 17 of the Hindu Succession Act, the sons inherited rights the plaintiffs acquired from one such son.

What did the court decide?

The appeal is allowed, the impugned decision set aside, and a preliminary decree passed declaring the plaintiffs' one-third right over the suit property.

Navuthiyankandi Puthiapurayil Vs Charalot Yesoda — Succession and Inheritance | Kerala HC (2016)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR

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WEDNESDAY, THE 27TH DAY OF JANUARY 2016/7TH MAGHA, 1937

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RSA.No. 1010 of 2011-C

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----------------------------------AGAINST THE JUDGMENT IN A.S.NO.151/2008 OF ADDITIONAL SUB COURT, THALASSERY

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AGAINST THE JUDGMENT IN O.S.NO.117/2000 OF PRINCIPAL MUNSIFF COURT, KANNUR

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APPELLANT(S)/RESPONDENTS/PLAINTIFFS :

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1. NAVUTHIYANKANDI PUTHIAPURAYIL HAMZA HAJI, AGED 66 YEARS, S/O.ABDULLA HAJI, RESIDING IN KUTTIATTOOR AMSOM, PAVANOOR DESOM, TALIPARAMBA TALUK.

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2. KAIPUKANDI ABOOBACKER, AGED 51 YEARS, S/O.MOIDEEN, RESIDING IN KUTTIATTOOR AMSOM, PAVANOOR DESOM, TALIPARAMBA TALUK.

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BY ADV. SRI.N.M.MADHU

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ADV. SMT.DEVIKA RANI KAIMAL

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RESPONDENT(S)/APPELLANTS/DEFENDANTS :

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1. CHARALOT YESODA, AGED 56 YEARS, W/O.NARAYANAN, RESIDING IN CHATHOTH HOUSE, KUTTIATTOOR AMSOM, PAVANOOR DESOM, P.O.PAVANOOR MOTTA, TALIPARAMBA TALUK-670 602.

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2. CHEMBOCHERI NARAYANAN, AGED 66 YEARS, S/O.KUNHIRAMAN, RESIDING AT CHATHOTH HOUSE KUTTIATTOOR AMSOM, PAVANOOR DESOM, P.O.PAVANOOR MOTTA, TALIPARAMBA TALUK-670 602.

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BY ADVS. SRI.N.NAGARESH

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SRI.K.BABU

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THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 27-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Msd.

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P.B.SURESH KUMAR, J.

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R.S.A. No.1010 of 2011

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Dated 27^th January, 2016.

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J U D G M E N T

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The plaintiffs in a suit for partition are the appellants. The suit property belonged to one Madhavi who died in the year 1990. Madhavi had three sons. On the death of Madhavi, the husband of Madhavi and one of her sons assigned their undivided rights over the suit property to the plaintiffs. Later, the remaining sons of Madhavi had assigned their undivided rights over the suit property to the first defendant. According to the plaintiffs, on the death of Madhavi, the suit property devolved on her husband and three sons and that therefore, the plaintiffs have acquired 2/4 share in the suit property and the suit is filed for partition of the said rights of the plaintiffs. The defendants resisted the suit. The main contention raised by the defendants was that Madhavi belonged to Thiyya community following the Marumakkathayam law prior to the introduction of

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RSA No.1010 of 2011

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the Hindu Succession Act and that therefore, the intestate succession as far as Madhavi is concerned is governed by Section 17 of the Hindu Succession Act. According to them, going by the provisions contained in Section 17 of the said Act, on the death of Madhavi, the suit property devolved exclusively on her sons and that the plaintiffs are therefore, entitled to only 1/3 share in the suit property. Initially, the trial court decreed the suit as prayed for. The defendants took up the matter in appeal. The appellate court, however, remitted the suit for fresh disposal. Even thereafter, the suit was decreed as prayed for by the trial court holding that the defendants have not established that Madhavi belonged to Thiyya community. The defendants took up the matter again in appeal. In the appellate court, an additional document, viz., the extract of the school admission register of one of the sons of Madhavi was produced and marked as Ext.B3. On the basis of Ext.B3, the appellate court found that Madhavi belonged to Thiyya community and that therefore, in the light of the provisions contained in Section 17 of the Hindu Succession Act, the husband of

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RSA No.1010 of 2011

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Madhavi has not acquired any right in the suit property on her death. However, under a mistaken impression that Ext.A1 document in favour of the plaintiffs was executed exclusively by the husband of Madhavi, the appellate court dismissed the suit. The fact that one of the sons of Madhavi was also a party

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to the said document was omitted to be noted. The plaintiffs, who are aggrieved by the said decision of the appellate court, have thus come up in this second appeal.

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Heard the learned counsel for the appellants.

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The learned counsel for the appellants contended that even if it is found that the intestate succession of Madhavi

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is governed by Section 17 of the Hindu Succession Act, the plaintiffs are entitled to a decree for partition of the one third undivided right of one of the sons of Madhavi who transferred his undivided right in favour of the plaintiffs.

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In the light of the submission made by the learned counsel for the appellants, the following question is formulated for decision in this second appeal :

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Was the appellate court justified in non-suiting the

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RSA No.1010 of 2011

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plaintiffs solely for the reason that intestate succession of Madhavi is governed by Section 17 of the Hindu Succession Act?

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The fact that Madhavi belonged to Thiyya community following the Marumakkathayam law prior to the introduction of the Hindu Succession Act is not seriously disputed by the appellants. As such, the view taken by the appellate court that the husband of Madhavi will not get any right over the property on her death, in the light of the provisions contained in Section 17 of the Hindu Succession Act is to be accepted as correct. However, in so far as one of the sons of Madhavi was also a party to Ext.A1 document relied on by the plaintiffs, even going by its finding that Section 17 of the Hindu Succession Act governs the intestate succession of Madhavi, the plaintiffs are entitled to partition of the right which they acquired from one of the sons of Madhavi. As such, the appellate court was not justified in non-suiting the plaintiffs. The impugned decision, in the circumstances, is liable to be set aside. The question of law formulated for decision in the

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RSA No.1010 of 2011

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second appeal is thus answered in favour of the appellants.

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In the result, the appeal is allowed, the impugned

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decision of the appellate court is set aside and a preliminary decree is passed declaring the one third right of the plaintiffs over the suit property. The plaintiffs are free to apply for passing of the final decree.

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Sd/-

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P.B.SURESH KUMAR, JUDGE.

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tgs

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(true copy)

Navuthiyankandi Puthiapurayil v. Charalot Yesoda

Case brief

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Navuthiyankandi Puthiapurayil v. Charalot Yesoda

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