High Court Kerala High Court

Ammini vs Kuttan on 25 June, 2010

Kerala High Court
Ammini vs Kuttan on 25 June, 2010
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

AS.No. 610 of 2000(C)



1. AMMINI
                      ...  Petitioner

                        Vs

1. KUTTAN
                       ...       Respondent

                For Petitioner  :SRI.N.P.SAMUEL

                For Respondent  : No Appearance

The Hon'ble MR. Justice HARUN-UL-RASHID

 Dated :25/06/2010

 O R D E R
                       HARUN-UL-RASHID, J.
                       ------------------------
                        A.S.No.610 Of 2000
                        ----------------------
              Dated this the 25th day of June, 2010.

                          J U D G M E N T

The plaintiff in O.S.No.1211 of 1995 on the file of the Sub

Court, Thrissur is the appellant. Suit was filed for partition of the

plaint schedule property and for allotment of one half share with

mesne profits. Pending appeal, the original plaintiff died and her

legal representative was impleaded as additional appellant.

Parties are hereinafter referred to as the plaintiff and defendant

as arrayed in the suit.

2. Plaint schedule property is 32 cents of land in survey

No.417/4 of Thrissur village. Plaintiff is the sister of the

defendant. According to the plaintiff, the property originally

belonged to Sankaran, brother of her father, Ayyappan.

Sankaran died as a bachelor and on his death the property

devolved on plaintiff’s father Ayyappan. On the death of her

father, the property devolved upon the plaintiff and defendant

equally. Therefore the suit for partition was filed. The suit was

resisted by the defendant, brother, contending that they belong

to Karuvan community and that Karuvans follow Hindu

A.S.No.610 Of 2000

::2::

Mitakshara Law and not Hindu Mitakshara law as modified by

custom. Defendant also contended that since the plaintiff was

given in marriage in kudivaippu form on payment of dowry which

represents her share in the property, she is not entitled to any

share in the property.

3. Admittedly, parties belongs to Karuvan community.

The Hindu Mitakshara law is applicable to Malayala Kammalas

community. Malayala Kammalas follow modified form of Hindu

Mitakshara Law and not Hindu Mitakshara Law as modified by

custom. This fact is not disputed by either side. The law relating

to intestate succession of Malayala Kammalas was decided in the

decision reported in Damodaran v. Palu (1986 KLT 1259). This

Court held that the Malayala Kammalas follow modified form of

Hindu Mitakshara Law and not Hindu Mitakshara Law as modified

by custom. It was held that when the modified form of Hindu

Mitakshara Law followed by them is not disputed and when it is

recognised by judicial pronouncements it is only a question of

considering whether under the modified law the plaintiff is

entitled to the property.

A.S.No.610 Of 2000

::3::

4. This Court further held as follows:

“Among the Malayala kammalas, there are mainly

two forms of marriage, Sambandam form and

Kudivaippu form. Daughters will lose their right in the

family of birth only if they are given away in marriage in

the Kudivaippu form on payment of streedhanam.

Otherwise they will not become members of the family

of the husband and they will continue to have the right

in the family of birth. It is only by the Kudivaippu form

that they are inducted as members of the family of the

husbands. That is after receiving what is due from the

family of birth. When a marriage is conducted, there is

no presumption of law that it is in any particular form or

whether streedhanam was paid or not. These are all

matters for proof. The crucial question is whether the

female members were given streedhanam on marriage

and thereby they lost right in the family of birth. If that

is proved, there may arise the presumption that the

marriage was in the Kudivaippu form and they became

members of the family of the husbands. That the

marriage was on payment of streedhanam has to be

proved by the person who so contends.”

The trial court examined the question on the basis of the legal

provisions stated in the aforesaid decision. When the plaintiff

was examined as PW1, she admitted that the marriage was

A.S.No.610 Of 2000

::4::

conducted in the kudivaippu form. The defendant and his

witnesses also testified before the court that the marriage of the

plaintiff was conducted in kudivaippu form. The defendant also

gave evidence stating that at the time of marriage the plaintiff

was given streedhanam. PW1 also admitted that at the time of

marriage she was given gold ornaments. When the plaintiff

herself admitted that marriage was conducted in kudivaippu form

naturally, she became a member of her husband’s family and

thus she ceases to be a member of her family and the

presumption is that she was given streedhanam at the time of

marriage. A decision can be taken in this case without much

effort since plaintiff herself admitted that the marriage was

conducted in kudivaippu form and also that she was given gold

ornaments at the time of marriage. The defendant and his

witnesses also tendered evidence which would go to show that

she was given streedhanam at the time of marriage. The trial

court also held that her admission itself shows that she lost her

right in the family by birth.

A.S.No.610 Of 2000

::5::

5. In view of the legal position and the facts adverted to

by the court below in detail and discussed by me in nutshell I find

that the plaintiff is not entitled to any relief claimed in the suit. I

agree with the conclusions and reasonings arrived at by the trial

court.

In the result, the appeal fails and accordingly, dismissed.

No order as to costs.

HARUN-UL-RASHID,
Judge.

bkn/-