THOMAYAR Vs. MARY
LAWS(KER)-2003-3-121
HIGH COURT OF KERALA
Decided on March 18,2003

THOMAYAR Appellant
VERSUS
MARY Respondents

JUDGEMENT

- (1.) All these appeals arise out of a common Judgment in O.S.No. 88 of 1985 of the Sub Court, Palghat. A.S. No. 380 of 1989 is preferred by defendants 1 to 8. A.S.No.477 of 1989 is by 9th defendant and A.S.No.387 of 1989 is by 10th defendant.
(2.) Suit was instituted for partition of plaint B schedule properties and allotment of one-fourth share with appropriate mesne profits. The case of the plaintiff is as follows: Defendants 1 and 10 are the children of Anthoni Ammal. Ninth defendant is the sister of Anthoni Amma and they are the daughters of Ponnan alias Muthappan who is the son of Anthony Muthu. Anthony Muthu had two more children by name Nayakam and Alphonse. First defendant is the son of Nayakam. Nayakam had a daughter by name Anthoni Ammal. Defendants 2 to 8 are the children of the first defendant Eleventh defendant is the son of 7th defendant. Plaint B schedule property originally belonged to Ponnan alias Muthappan. Plaintiffs mother died in 1947. Ninth defendant is the maternal uncle of the plaintiff and the 10th defendant. Ponnan alias Muthappan predeceased his wife Nakshtrammal in the year 1955. First defendant was residing with Nakshtrammal and was helping her in conducting the agricultural operations of the property. Plaint B Schedule devolved upon the defendants 9 and 10 and on the plaintiff. First defendant purchased the share of the 9th defendant in the plaint B schedule properties near about the year 1959. Nakshtrammal cultivated the property with the help of defendants 1 and 10 and she used to pay the share of profits of the plaintiff during her lifetime. Nakshtrammal died in the year 1984. Subsequent to that, first defendant assumed control of the agricultural operations in the property and stopped payment of share of mesne profits to the plaintiff. Plaintiff issued notice dated 24th January 1985 to the first defendant demanding her share from the plaint schedule properties. According to the plaintiff, law applicable for the purpose of inheritance and succession is Indian Succession Act. According to the plaintiff, plaintiff and defendants are entitled to get one-fourth share each from the properties of deceased grandfather. Other half share devolved upon the 9th defendant. Defendants 1 to 8 are entitled to get only the right of the 9th defendant to the plaint schedule properties. Thus the plaintiff and the 10th defendant are entitled to get one-fourth share each and defendants 1 to 9 are entitled to one half share from the plaint schedule properties. Plaintiff claimed partition of the plaint schedule properties and for allotting her separate one fourth share with past and future mesne profits.
(3.) Written statement was filed by defendants 1 to 8. It was contended that plaintiff and defendants are Vaniya Christians of Chittur Taluk and are following the Hindu Mithakshara Law for the purpose of inheritance and succession. The joint family of Muthappan and Nayakam owned plaint B schedule item No.1 property in Swastham right. Plaint schedule items 2 and 3 properties were taken on lease by the first defendant from one late Anantharama Gounder about 40 years with a stipulation to pay annual rent of 825 paras of paddy and Rs.165 per year. Muthappan had no right over the plaint B schedule item Nos. 2 and 3 properties. Half share of Nayakam in the plaint B schedule item No.1 property devolved on the first defendant subsequent to the death of Nayakam. Muthappan died in 1955. So the half share of Muthappan in the plaint B schedule item No.1 property devolved upon the first defendant by survivorship. First defendant was in cultivation of items 2 and 3 properties even during the lifetime of Muthappan. It is contended that Vaniya Christians are not governed by the Indian Succession Act.;


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