Married Daughter Of Hindu Malayala Kammala Given Stridhan Also Entitled To Share In Self-Acquired Property Of Parent: Kerala High Court

The Kerala High Court recently held that married daughters belonging to the Hindu Malayala Kammala caste would also be entitled to a share in the self-acquired property of their parent. 

The Court in this case was dealing with a case in which it was contended that the females would not be entitled to a share in the property, since as per the custom of the community, they were given in marriage in the customary Kudivaippu form, after giving streedhanam.

It held that any custom governing intestate succession in respect of the self acquired property of a Hindu that was inconsistent with the provisions of the Hindu Succession Act, 1956 (hereinafter, 'Act, 1956'), would be abrogated immediately on coming into force of the statute, by virtue of Section 4. 

Section 4 of the Act, 1956 provides for 'Overriding Effect of the Act'. Section 4(1) stipulates that "save as otherwise expressly provided in this Act, (a) any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act; (b) any other law in force immediately before the commencement of this Act shall cease to apply to Hindus in so far as it is inconsistent with any of the provisions contained in this Act". 

Justice K. Babu 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". 

The Court went on to add, 

"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. In the present case, as it has come out that the property involved was a self-acquired property of Sri.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". 

The case pertains to partition and separate possession of a property belonging to one Arumughom Achari, the father of the parties in the Original Suit, who died in the year 1975. He acquired right and title over the property by virtue of title deeds. It is noted that after his death, the property was enjoyed by his widow and children. 

It is the case of the plaintiffs (the respondents herein, and the daughters of the deceased), that as per the Hindu Succession Act, 1956, themselves and the defendants (appellants herein, and the sons of the deceased), are entitled to equal share over the property. The defendants on the other hand claimed that since the plaintiffs belonged to the Hindu Malayala Kammala community and were given in marriage in the customary `kudivaippu’ form after giving sthreedhanam, they would not be entitled to any share. The defendants further stated that the female heirs would have no right over the property, since it belonged to the coparcenary property of the family. 

The trial Court held that since the plaintiffs were given sthreedhanam and were given in marriage in kudivaippu form they would not be entitled to claim right over their parental property. The Sub Court, Neyyattinkara, which was the First Appellate Court, reversed these findings, and held that the plaintiffs would also be entitled to a share in the property. It thereby passed a preliminary decree directing the partition of the property, which has been challenged in the present case. 

Findings of the Court

I. Whether a custom governing intestate succession in respect of the self acquired property of a Hindu inconsistent with the provisions of the Hindu Succession Act could be treated as abrogated and destroyed immediately on coming into force of the Act by virtue of Section 4(1).

The Court noted that it had been settled by the First Appellate Court that the property in question was the self-acquired property of the deceased. The Court took note of the argument raised by the defendants that since the parties belonged to the Hindu Malayala Kammala caste, as per their custom, females would not be entitled to a share in their parental property, having been given in marriage in the Kudivaippu form and given streedhanam. On the other hand, The counsels for the plaintiffs/respondents contended that in view of the overriding effect of Section 4 of the Hindu Succession Act, whatever custom existed in the community stood abrogated with the coming into force of the Act, 1956.

The Court perused Section 4 of the Act, 1956, and answered the first question framed by it in the affirmative. 

II. Whether the non-bringing of one of the legal representatives of the first plaintiff would result in the abatement of the suit 

It is noted that the plaintiffs in this case had impleaded only the children of the deceased 1st plaintiff/daughter of the deceased, as her legal representatives, and had omitted to implead her husband. It was thus contended by the counsels for the defendants/appellants that the suit would abate due to such non-impleadment. 

The Court thus perused Order 22 Rule 3 that provides for 'Procedure in case of death of one of several plaintiffs or of sole plaintiff'. The Court took note of the Apex Court decision in Daya Ram & Ors. v. Shyam Sundari & Ors (1965), wherein it was held that there would be no abatement of the suit or appeal, where the impleaded legal representatives sufficiently represent the estate of the deceased, and that a decision obtained with them on record would bind not only those impleaded but the entire estate, including those not brought on record.

"In the instant case, all other co-owners of plaintiff No.1 represented the share of plaintiff No.1 in the estate in the suit. It is also important to note that being co-owners, one co-owner is treated as having right in every part and parcel of the joint property....The aforesaid principle of law would be applicable in the appeal also," the Court observed. 

It further noted that since the husband of the 1st plaintiff had died, his non-impleadment would not be of any consequence, and answered the question before it in the negative. 

The appeal was thus dismissed on these grounds. 

The appellants/defendants were represented by Advocates Vadakara V.V.N. Menon and N.S. Gopakumar. Advocate K.B. Pradeep appeared on behalf of the respondents/plaintiffs. 

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

Citation: 2023 LiveLaw (Ker) 256

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