CHELLAMMA Vs. NARAYANA FB

JUDGEMENT

(1.) The question referred to this Larger Bench is one of great importance in respect of the rights of inheritance to females governed by the Marumakkathayam law in Kerala. The question is whether S.17 of the Hindu Succession Act, 1956 which deals with succession to females continues to be in force and operative notwithstanding the commencement of the Kerala Joint Hindu Family System (Abolition) Act, 1975 (hereinafter referred to as 'the Joint Family Abolition Act, 1975). A learned single Judge of this Court in Madhavi Amma v. Kalliani Amma ( 1988 (2) KLT 964 ) and a Division Bench of this Court in Bhaskaran v. Kalliani ( 1990 (2) KLT 749 ) have taken the view that the above said S.17 of the Hindu Succession Act, 1956 continues to be in force notwithstanding the Joint Family Abolition Act, 1975. It is the correctness of the said decisions that falls for consideration before us.

(2.) The basic facts are not in dispute and are as follows: The property in question belongs to one Lakshmikutty Amma, who belonged to a Nair family and who died on 18-2-1982 leaving behind her, her husband (plaintiff) and her mother, one Chellamma. The dispute is in regard to the succession to the property held by Lakshmikutty Amma on the date of her death on 18-2-1982. Her husband is claiming as legal heir under S.15 of the Hindu Succession Act, 1956 on the basis that the effect of the Join Family Abolition Act, 1975 was to make S.17 of the Hindu Succession Act,1956 in operative. The contest on the other side is raised by defendants 1 to 8 who are the legal heirs of Lakshmikutty Amma's mother, Chellamma, the said Chellamma having died on 8-9-1982 subsequent to Lakshmikutty Amma's death. Defendants 1 to 8 claim that their mother, Chellamma became the legal heir to the property of her daughter by virtue of S.17 of the Hindu Succession Act, 1956. They contend that S.17 continues to be operative even after the passing of the Joint Family Abolition Act, 1975. There is no dispute that the plaintiff married Lakshmikutty Amma in April, 1973 and that defendants 1 to 8 are the brothers and sisters of Lakshmikutty Amma and children of Chellamma. 9th defendant is the paternal uncle of Late Lakshmikutty Amma.

(3.) The suit was filed for a declaration of title by the plaintiff over plaint A schedule properties 'except in regard to the building in item 4 of plaint A schedule and plaint B schedule amounts deposited in Bank by Lakshmikutty Amma. Admittedly, items 1, 2, 3 and 5 of plaint A schedule belong to said Lakshmikutty Amma while plaint B schedule were deposits in her name. Item 4 in the plaint A schedule is a building in item 3 alleged to have been put up by defendants subsequent to the death of Lakshmikutty Amma while item 2 is a building in item 1 of plaint A schedule. According to the plaintiff, item 1, 3 and 5 were acquired by deceased Lakshmikutty Amma with the funds supplied by him and the amounts mentioned in plaint B schedule are deposited by him in the State Bank of India, Changanacherry branch in the name of the deceased and that on her death, defendants 1 to 8 have trespassed into the plaint A schedule properties. It may be noted that Chellamma had filed O.P.71 of 1982 before the Sub Court, Kottayam for grant of a succession certificate in respect of plaint B schedule amounts. The plaintiff got himself impleaded therein and opposed the said application and the said O.P. was dismissed. Chellamma having subsequently died, defendants 1 to 8 got themselves impleaded as additional petitioners in the said application While the O.P. was pending, the present suit had been filed by the plaintiff and it was because of the filing of the present suit that the O.P. was dismissed declaring that the said dismissal will be subject to the result of the suit Though an appeal was filed before the Sub Court against the judgment in the O.P., that was also dismissed reserving the rights of the parties to be governed by the judgment in the suit. As already stated, the plaintiff relied on S.15 of the Hindu Succession Act, 1956 while the defendants relied upon S.17 of the Hindu Succession Act, 1956.