A division bench of Kerala High Court has set aside the judgment of a single bench which had held that brothers of the deceased will inherit self-acquired property in preference of daughters of the deceased in Makkathayam law. The division bench held that daughters have the right to succeed to the estate, in exclusion of the brothers.
The dispute is with respect to apportionment of compensation by the claimants of three deceased brothers for the extent of 115 sqft of land acquired by the government. The extent of 115 sqft forms part of the 1 acre land was purchased by the three brothers who were also Thiyyas of former Calicut. One of the brothers had only daughters as descendants. After the death of the three brothers, the living sons of the other two brothers executed a partition deed allotting the aforesaid 115 sqft to one of the sons. This land was acquired by the government, and when the issue of apportionment of compensation arose, the sub-judge held that the amount had to be divided equally amongst the legal heirs of all three brothers. The partition deed executed by the sons of two brothers was ignored by the sub-judge, and daughters of the remaining brother were also held to be entitled to one-third share.
This was challenged in the high court. The single bench set aside the judgment of the sub judge, and held that the partition deed was valid. The single bench held that the property belonged to the joint family of the three brothers over which the sons alone have right as coparceners. This was challenged before the division bench by the daughters of the third brother.
The division bench found that there was neither pleading nor any proof that the income from an ancestral property formed the source by which the three brothers acquired the property in the first place. It was found that there was no joint tenancy or family business or any other tharwad property to indicate that the three brothers were part of a joint Hindu family as was contended. Rather it was found that the property was purchased by pooling in the independent incomes of the three brothers.
The judgment authored by Justice V Chitambaresh, on sharing bench with Justice Satish Ninan, distinguished the dictum in Kelukutty and Others v. Mammad and Others [1972 KLT 725(SC)]. In Kelukutty, it was held that as per the Makkathayam rule of inheritance, an undivided brother of a deceased person succeeded to the self acquired property of the deceased in preference to the wife and daughter of the deceased.
The above decision may have relevance only if Kelu remained as an undivided brother of the thavazhi which had tharwad property whereas the indications are otherwise that Kelu was a divided brother. We reiterate that there was no community of interest or joint status between Kelu and his brothers and therefore the share of Kelu should devolve on his daughters who are Claimant Nos.7 to 10, held the judgment.
Having found that there was no community of interest or joint status between the brothers, the division bench set aside the judgment of the learned single judge and declared equal share over the compensation amount for the three brothers to be inherited by their respective heirs, including daughters.