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.
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A.S.No.610 Of 2000
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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
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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.
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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
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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
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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/-