M.Sivadasan (Dead) Through Lrs. vs A.Soudamini (D) Through Lrs And Others

IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO.254 OF 2010

M. SIVADASAN (DEAD) THROUGH LRs. & ORS …APPELLANTS

Versus

A. SOUDAMINI (DEAD) THROUGH LRs. & ORS. …RESPONDENTS

JUDGMENT

1. The appellants had filed a suit for partition and mesne

profit way back in the year 1988, before the Court of

Principal Munsif, Kozhikode­I, Kerala, claiming ancestral

rights over the property comprising of Items 1 & 2 in Plaint

Schedule A; property admeasuring 33 ½ cents and 42

cents respectively. The Trial Court dismissed the suit of

the plaintiffs/appellants vide its Order and Judgment

dated 03.02.1993 on the ground that the land along with

the house sought to be partitioned is an agricultural land

on which the plaintiffs/appellants, cannot claim any right. Signature Not Verified Digitally signed by Vijay Kumar Date: 2023.08.28 16:14:37 IST Reason:

This finding of the Trial Court was upheld by the First

Appellate Court, and finally by the High Court of Kerela by 2

the impugned Judgment dated 29.01.2009 in second

appeal. In short, the present appellants have lost from all

the Courts below.

2. The contesting parties before this Court belong to

“Thiyyas” community of Kozhikode, Kerala who were

governed by Hindu Mitakshara law. The admitted position

is that amongst “Thiyyas” of Kozhikode, ancestral property

devolves only on the male children; daughters, have a right

of maintenance till the time of their marriage. We are

speaking here of the rights, including possession as it

existed prior to the Hindu Succession Act, 1956. The

plaintiff/appellant had filed a civil suit before the court of

Munsif for partition of the property which has a total area

of 75 ½ cents. Built on the land is the ancestral residential

house of the parties. The suit of partition was dismissed

by the trial court holding that Hindu Women’s Right to

Property Act, 1937 was not applicable to agricultural land,

till its amendment in the year 1946 and the succession to

the said property had opened in the year 1942 itself which

precedes the date of amendment.

3

3. The property originally belonged to Sami Vaidyar. On his

death in the year 1942, it devolved on his male successor

son Sukumaran. Rights on the property are being claimed

presently by the progenies or daughters of Sami Vaidyar

through their mother Choyichi, who was the widow of Sami

Vaidyar. The claim of the plaintiff was that Choyichi (who

died in the year 1962) had a right, though a limited right

under the Hindu Mitakshara law as well as by virtue of

Hindu Women’s Right to Property Act, 1937 which

blossomed into full­fledged right under Section 14 sub­

section (1) of Hindu Succession Act, 1956 which is

reproduced below:

14. Property of a female Hindu to be her absolute property.—(1) Any property possessed by a female Hindu, whether acquired before or after the commencement of this Act, shall be held by her as full owner thereof and not as a limited owner

4. This argument of the plaintiff was rejected by the Trial

Court and the same was upheld by the First Appellate Court

as well as by the Second Appellate Court on the reasoning 4

that after the death of Sami Vaidyar, his son Sukumaran

succeeded in the property in year 1942 itself. Thereafter,

Sukumaran and later the children succeeding Sukumaran

had the right over the property which undisputedly

remained in their possession. Section 14 sub­Section (1)

had no application in this case. The essential ingredient of

Section 14 sub­Section (1) is possession over the property.

Admittedly the plaintiff was never in possession of the

property. The possession was always that of the defendant

and therefore Section 14 sub­Section (1) would not be

applicable. In Ram Vishal (dead) by lrs. and Ors. v.

Jagan Nath & Another. reported in (2004) 9 SCC 302 the

position of possession being a pre­requisite to sustain a

claim under sub­section (1) of Section 14 of the 1956 Act

was confirmed in Para 16 which is quoted below:

‘16. In our view, the authority in Raghubar Singh case [(1998) 6 SCC 314] can be of no assistance to the respondent.

As has been held by this Court, a pre­existing right is a sine qua non for conferment of a full ownership under Section 14 of the Hindu Succession Act. The Hindu female must not only be 5

possessed of the property but she must have acquired the property. Such acquisition must be either by way of inheritance or devise, or at a partition or “in lieu of maintenance or arrears of maintenance” or by gift or by her own skill or exertion, or by purchase or by prescription…’ [Emphasis Supplied]

5. As per the law as it existed at their relevant time the

property which was an agricultural property would devolve

upon the male child and daughters would get only a

limited right to maintenance till, they were married and the

widow would be entitled to maintenance from the income

from the property till her death or remarriage. As per the

family Settlement Deed dated 12.03.1938 which was relied

upon by both the parties, the property in dispute was

specifically allotted to Sami Vaidyar and his only son

Sukumaran. Therefore, the widow of Sami Vaidyar i.e.,

Choyichi will not have any right over the property. The

findings of all the courts below were that Choyichi was

never in possession of the property and therefore she 6

would not get the right, as claimed by her under Section

14(1) of the Hindu Succession Act, 1956.

6. We have heard at length Mr. P.N. Raveendran and Mr.

Sudhivasudevan, learned senior counsel appearing on

behalf of the appellants and Mr. V. Chitambaresh, learned

senior counsel, for the respondents/defendants. The effort

of the learned senior counsel for the appellants here was to

persuade us to reappreciate the entire case on facts, on

which three Courts have given the same findings. The

learned Counsel would argue that the determination of the

land in question as an agricultural land has been wrongly

done by all the three Courts. The argument which has

been put forward by the learned senior counsel before us is

on the reasoning that merely because the land has a few

coconut trees, that will not make it an agricultural land, as

in Kerela, coconut trees are found everywhere even in the

urban residential properties and their presence itself will

not make the land an agricultural land.

7. The land in question undoubtedly has coconut trees on it,

most of them are very old but fruit bearing, and moreover

in revenue records, the land is described as “theaattam” 7

i.e., “garden”. This would mean that the land in question

may be put for agricultural use. Theoretically, it is

possible that a land which is recorded as “theaattam” may

not be actually put for agricultural use. All the same, in

the present case, the overwhelming evidence which has

been duly appreciated by the three Courts below clearly

prove that the land was indeed an agricultural land. We

therefore find no reason to take a different view at this

stage.

8. We must state here that this case is here before us in a

Special Leave Petition filed under Article 136 of the

Constitution of India. It is true that leave has been granted

in this case. Nevertheless, the settled legal position

remains that even after leave is granted and appeal is

admitted, the appellants must show that exceptional and

special circumstances exist to reverse the findings, or grave

injustice will be done if the decision under challenge is not

interfered with. We do not find any special circumstances

here which may warrant our interference. [See Pritam

Singh v. State, AIR (1950) SC 169: (1950) SCR 453, Hem

Raj v. State of Ajmer AIR (1954) SC 462: (1954) SCR 8

1133, Bengal Chemical & Pharmaceutical Works Ltd.

v. Employees, AIR (1959) SC 633: 1959 Supp (2) SCR 136:

(1959) 1 LLJ 413, Municipal Board, Pratabgarh and

Anr. v. Mahendra Singh Chawla and Ors. (1982) 3 SCC

331: (1983) SCC (L&S) 19, Taherakhatoon (dead) by LRs

v. Salambin Mohammad (1999) 2 SCC 635].

9. There is another aspect of the matter. Admittedly the

defendants have all along been in possession of the

property. The finding of adverse possession in favour of the

defendants by the Trial Court, was never challenged by the

plaintiffs/appellants before the First Appellate Court. We

refer here the observations of the High Court which are as

under:

“10…It is pertinent to note that the findings of the trial court that the rights, if any, of the plaintiffs have been lost by adverse possession and ouster does not appear to have been assailed before the lower appellate court. The lower appellate court also did not interfere with the said finding…” 9

Consequently, even if we keep nature of the land aside for

a while, the present appeal is liable to be dismissed on this

ground alone.

10. The concurrent findings on facts by the Trial Court and the

First Appellate Court have been reaffirmed in second

appeal by the High Court, yet by and large the entire

submissions of the appellants is nothing but a persuasion

before this Court for reappraisal of the case on facts.

11. In view of the above discussion, the judgment of the Trial

Court and First Appellate Court, affirmed by the High

Court in second appeal on 29.01.2009 is upheld and the

present appeal is hereby dismissed. The order granting

status quo by this Court dated 06.01.2010 stands vacated.

No order as to costs.

…………………………..J. [C.T. RAVIKUMAR]

…………………………..J. [SUDHANSHU DHULIA]

AUGUST 28, 2023.

NEW DELHI