Hindu Married Daughters Of Malayala Kammala Community Entitled To Share In Self-Acquired Property Irrespective Of Customs: Kerala HC

"In the present case, as it has come out that the property involved was a self-acquired property of Arumughom Achari there is no doubt that whatever custom, if any, existed in the community governing intestate succession would be treated as abrogated and destroyed", observed Justice K. Babu.

In the present matter, the Original Suit was instituted for partition and separate possession, where the original owner was Arumughom Achari, and after his death his widow, and children, enjoyed the property.

Subsequently, after the death of the mother, the plaintiffs and the defendants were the surviving legal heirs.

The plaintiffs, therefore, pleaded that as per the Hindu Succession Act, 1956, the plaintiffs and defendants are entitled to equal share over the plaint schedule property, including a building.

However, the defendants claimed they are governed by Mithakshara law, and that the plaintiffs are not entitled to share the plaint schedule property as the plaintiffs belonged to the Hindu Malayala Kammala community and as the plaintiffs were given in marriage in the customary `kudivaippu’ form after giving sthreedhanam, they are not entitled to any share.

The defendants further raised a contention that the property belonged to Arumughom Achari, who was the coparcenary property of the family, wherein the female heirs had no right.

On approaching the Trial Court, it held that as the plaintiffs were given sthreedhanam and were given in marriage in kudivaippu form they are not entitled to claim right over their parental property.

On appeal, the First Appellate Court reversed the findings of the trial Court and decreed the suit, holding that the plaintiffs are also entitled to share in the plaint schedule property.

The decree and judgment of the First Appellate Court therefore, were under challenge at the instance of the defendants. During the proceedings of the matter, appellant no. 1 and 2 died, and their legal representatives were impleaded.

Therefore, the first question to be adjudicated upon by the Court was:

1. Would not any custom governing intestate succession in respect of the self acquired property of a Hindu inconsistent with the provisions of the Hindu Succession Act be treated as abrogated and destroyed immediately on coming into force of the Act by virtue of Section 4(1).

While referring to Section 4 of the Hindu Succession Act, the bench observed, "Even if it is assumed that a custom governing intestate succession, as pleaded by the defendants, existed in their community, the same would be treated as abrogated and destroyed in view of Section 4, in respect of a self-acquired property. Custom is not in the modern world a very important ‘source’ of law. It is usually a subordinate one, in the sense that the legislature may by statute deprive a customary rule of legal status. [vide: The Concept of Law, Third Edition by H.L.A.Hart, Oxford (Pages 44-45)]. I have not come across any precedents which militate against this proposition. The position would have been different if the property in question was ancestral property in which case provisions of Section 6 of the Hindu Succession Act would come into play".

2. Whether non-bringing of one of the LRs of plaintiff No.1 (appellant No.1 in the First Appellate Court) resulted in the abatement of the appeal as a whole

In the matter, it was alleged by the defendant that as the plaintiffs impleaded only the children of of the deceased wide alone as the legal representatives of plaintiff No.1 and omitted to implead the husband therefore, the appeal as a whole stood abated due to the non-impleadment.

The Court however relying on Order 22 Rule 3 CPC which refers to legal representatives, and Daya Ram and Others v. Shyam Sundari and Others, AIR 1965 SC 1049 and Hameed v. Sumithra & Others (1987 (1) KLT 308) observed,

“…where the impleaded representatives sufficiently represent the estate of the deceased and the decision with them on record will bind the entire estate including those legal representatives not brought on record in the absence of fraud or collusion or circumstances indicating that there has not been a fair or real trial or that against the absent heir, there was a special case which was not and could not be tried in the proceeding”.

Cause Title: Arumughom Achari Ranganathan Achari & Ors v. Rajamma Sarojam & Ors.

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