V.K. Mohanan, J.
1. The defendants in a suit i.e., O.S. No. 316/1982 in the Court of the Subordinate Judge, Thiruvananthapuram are the appellants herein. In this appeal, the challenge is against the judgment dated 5-3-1998 of this Court in A.S. No. 121 of 1994. The prayer of the appellants herein is to set aside the above mentioned judgment dated 5-3-1998 and to restore the revised preliminary judgment and decree dated 30-1-1993 in O.S. No. 316 of 1982. According to the appellants, the judgment of this Court in A.S. No. 121 of 1994 is illegal, arbitrary and perverse since the above judgment of this. Court was passed without jurisdiction as the same was against the judgment of this Court in A.S. No. 273 of 1984 whereby the case was remanded to the trial court for a revised judgment in the light of the observations and findings entered into by this Court in that judgment. According to the appellants, the revised preliminary judgment and decree passed by the trial court is fully in terms of the remand order passed by this Court in A.S. No. 273 of 1984 and hence the revised preliminary judgment and decree passed by the trial court has to be restored and the judgment of the learned Single Judge in A.S. No. 121 of 1994 is to be set aside.
2. The suit is for partition filed by the respondents herein. At the time of filing the suit, originally there was only one defendant who is the first appellant herein. The second appellant herein was impleaded as the second defendant in the suit on the strength of the judgment of this Court in A.S. No. 273 of 1984.
3. The plaint averments are as follows:
The plaintiff and the first defendant are the children of late Madhavan Pillai and the plaint schedule property belonged to him as per the partition deed of 1119 M.E. After his death, the plaintiffs and the first defendant are entitled to the plaint schedule property in equal shares as they are legal heirs of deceased Madhavan Pillai. According to the plaintiffs, the parties are Hindu Vellalas formerly governed by the Nanjinad Vellala Act and are at present governed by the Hindu Succession Act in the matter of inheritance and succession. So, according to the plaintiffs, they are entitled to 2/3 share and the first defendant is entitled to 1/3 share in the property. It is their further case that in spite of repeated demands and issuing lawyer notice finally to the first defendant to effect partition and settle the matter amicably, the first defendant was not prepared for the same and hence the suit was filed for partition and separate possession of 1/3 share each in the schedule property.
4. The first defendant had filed a detailed written statement raising the following contentions:
The deceased Madhavan Pillai had another son by name Sankaralingam Pillai who died on 11-9-1976. The schedule property was the ancestral property in the Hands of Madhavan Pillai, to which the said Madhavan Pillai and his two sons alone are entitled to. The deceased Madhavan Pillai had got 1/3 right only in the schedule property and the first defendant and his deceased brother Sankaralingam Pillai got 1/3 right each. It is also averred that the deceased Sankaranligam Pillai left behind his daughter Smt. Meena and she is entitled to get 1/3 share to which her father was entitled to. The mother of the plaintiffs, the first defendant and the deceased Sankaralingam Pillai owned and possessed 1 acre of land in Mannanthala in Trivandrum. According to the first defendant, there was an oral agreement in the year 1964 that in case that property in Mannanthala having an extent of 1 acre is given to the plaintiffs, they will not claim any right over the plaint schedule property and according to such settlement, the plaintiffs were given that 1 acre of property which belonged to the mother of the plaintiffs, the first defendant and the deceased Sankaralingam Pillai and hence, according to the first defendant, plaintiffs are estopped from claiming any share in the plaint schedule property. It is also averred that the suit is bad for non joinder of parties as one of the sharers, Smt. Meena is not impleaded in the suit. It is also denied that the plaintiffs have requested for partition and further stated that they have already sent a reply to the lawyer notice sent by the plaintiffs.
5. Based upon the rival pleadings, the trial court initially framed seven issues and during the trial, evidences were adduced and the plaintiffs' evidence is only the oral testimony of PW1 and there was no documentary evidence from the side of the plaintiffs. From the side of defendants, DWs. 1 to 3 were examined and they have produced Exts.B1 to B3 documents. Ext.XI is also marked as the document produced by the witnesses. While answering issue No. 3, the trial court has found that the plaint schedule property which was in the hands of late Madhavan Pillai is an ancestral property. Finally by judgment dated 31-3-1984, the trial court had found that at the time of death of Madhavan Pillai, he had 2/3 share in the plaint schedule property and since Madhavan Pillai had died subsequent to the commencement of the Hindu Succession Act, as per Section 8 of the said Act, both the plaintiffs and the first defendant would get the said 2/3 share of late Madhavan Pillai in the plaint schedule property in equal shares and thus the court below found that each of the plaintiffs is entitled to get 1/3 of 2/3 share in the schedule property. Accordingly, a preliminary decree was passed declaring that each of the plaintiffs is entitled to 1/3 of 2/3 share in the plaint schedule property and the plaintiffs would apply for a commission to effect partition in the final decree.
6. Challenging the above finding and allotment of share, the first appellant, who is the sole defendant at that time, preferred A.S. No. 273 of 1984 before this Court. Suffice to say, the plaintiffs therein who are the respondents herein did not file any appeal or cross objection against the finding of the trial court. Going by the judgment of this Court in A.S. No. 273 of 1984, dated 17-3-1992 it can be seen that the only point which was materially raised before this Court was the paternity or legitimacy of Smt. Meena who is the second appellant herein. No other point was canvassed for the consideration of this Court and as such, all other findings arrived on by the trial court in its judgment dated 31-3-1984 became final. In the appeal also, this Court found that admittedly, the plaint schedule property was the ancestral property of the family. By the same judgment, it was further found that the second appellant herein who was not a party to the suit is the legitimate daughter of late Sankaralingam Pillai who was none other than the son of late Madhavan Pillai- the father of the plaintiffs and the first defendant. This Court had also found that Smt. Meena was not made as a necessary party to the suit in spite of objection raised by the first defendant- the first appellant herein and therefore, this Court found that the suit was bad for non joinder of necessary parties. Thus, this Court remanded the suit to the lower court so as to enable the plaintiffs to implead Smt. Meena also as a party to the suit. Thus, it can be seen that in appeal, this Court had found that the second appellant herein is a necessary party to the suit as she is also entitled to get share of the property and for such adjudication, the matter was remanded. The finding of this Court that the plaint schedule property was an ancestral property of the family has also become final as against the plaintiffs as the said finding is not challenged before any higher forum and that finding became final not only for the above reason, but for the reason that the trial court had also found that the property in question was the ancestral property of the family and that finding was not challenged by the plaintiffs.
7. Thus, on the basis of the remand order, i.e., judgment dated 17-3-1992 in A.S. No. 273 of 1984, the suit was again taken for consideration and in terms of the above judgment dated 17-3-1992, the second appellant herein had been impleaded therein as the second defendant as per order dated 27-7-1992 in I.A. No. 2581 of 1992. Finally, by judgment dated 30-1-1993 in O.S. No. 316 of 1982, the trial court disposed of the suit giving a decree for partition and separate possession whereby it was held that each of the plaintiffs is entitled to get 1/12 share of the suit property and both the defendants are allowed to take 5/12 share each in the suit property. Further, as per the trial court judgment, the equitable relief claimed by the defendants would be considered in the final decree proceedings at the time of actual division.
8. Aggrieved by the trial court judgment dated 30-1-1993 in O.S. No. 316of 1982, the plaintiffs who are respondents herein preferred A.S. No. 121 of 1994 before this Court. This Court by judgment dated 5th March, 1998 found that the suit property originally belonged to Mrs. Kolamma Ammal, mother of late Madhavan Pillai and not an ancestral property in his hands. On the basis of such finding, this Court further held that on Madhavan Pillai's death, his four children, who are two plaintiffs, first defendant and late Sankaralingam Pillai take 1/4 share each and late Sankaralingam Pillai's share devolved on the second appellant/second defendant. Thus, accordingly, the appeal was allowed and the revised preliminary decree passed by the trial court is modified declaring that the plaintiffs are entitled to 1/2 share, first defendant is entitled to 1/4 share so also the second defendant is entitled to 1/4 share in the property. The above finding and allotment of shares are challenged in this appeal. We have heard learned Senior counsel appearing for the appellants Sri. R.D. Shenoi and Mr. G.S. Reghunath, learned Counsel appearing for the respondents.
9. In his persuasive argument, Mr. R.D. Shenoi, the Senior Counsel submits that the ancestral property of late Madhavan Pillai belongs to the plaintiffs, the first defendant who are the children of late Madhavan Pillai and Smt. Meena, daughter of late Sankaralingam Pillai. According to counsel, the property in question originally belonged to one late Sankaralingam Pillai (Senior), the father of late Madhavan Pillai and late Madhavan Pillai got the property as per Ext.B1 partition deed dated 13-7-1119. From Ext.B1, it is crystal clear that the property originally belonged to late Sankaralingam Pillai (Senior) who purchased the same with his own funds. The learned Senior counsel submits that the specific case put forward by the defendants is that the property in question was the ancestral property in the hands of late Madhavan Pillai which was inherited from his father late Sankaralingam Pillai (Senior) and therefore, according to the defendants, late Madhavan Pillai and deceased Sankaralingam Pillai have got right by birth in the property even during the life time of their father. Thus, it is submitted that the share due to the brother deceased Sankaralingam Pillai will be vested on his daughter Smt. Meena who is the additional second defendant. The learned Counsel further argued that the trial court had held that the suit property is the ancestral property in the hands of late Madhavan Pillai, but it was found that the second appellant/second defendant was not a legitimate issue of the deceased Sankaralingam Pillai who is the brother of the first defendant/the first appellant herein. It is also pointed out by counsel that as per the earlier finding of the trial court, each of the plaintiffs is entitled to claim 1/3 out of 2/ 3 share and the first defendant is entitled to get 1/3 share. According to the learned Counsel, those findings of the trial court are final as far as the plaintiffs are concerned as they did not challenge those findings. Counsel further pointed out that it is the first appellant who challenged the judgment of the court below to the extent to which it was held that each of the plaintiffs is entitled to claim 1/3 out of 2/3 share of the property and the first defendant is entitled to the only remaining 1/3 share and there was no share to the illegitimate daughter of the deceased Sankaralingam Pillai. So, according to counsel,. the finding of the trial court that the property in question was in ancestral property of the family became final.
10. It is further argued by the learned Senior counsel that the above findings of the trial court are not challenged in appeal by the plaintiffs, and those contra contentions were not taken even at the time of hearing of the appeal which was preferred by the first defendant i.e. A.S. No. 273 of 1984. By judgment dated 17-3-1992 in A.S. No. 273 of 1984, this Court had found that the property in question is an ancestral property and also found that the second appellant herein who was not impleaded as necessary party to the suit is entitled to get share in the property and for that purpose and for the proper allotment of share to the second appellant, the suit was remanded with a direction for impleading the second appellant as additional defendant in the suit. On the basis of the above materials, the learned Counsel for the appellants fervently submits that the finding arrived on by both the trial court as well as this Court in appeal, that the property in question is an ancestral property in the hands of late Madhavan Pillai became final and the said finding is not disturbed in any appeal or other proceedings in any other higher forum. Therefore, according to the learned Counsel, the finding arrived by this Court as per the impugned judgment is not correct and beyond its appellate jurisdiction. Another point advanced by the learned Counsel for the appellants is that the finding of the trial court as well as this Court regarding the legitimacy of the second appellant/second defendant Smt. Meena is also not challenged by the plaintiffs and therefore, the second appellant/second defendant is also entitled to get share in the plaint schedule property and the only point to be determined is the extent of share to be allotted to the parties in the suit and how the same shall be allotted.
11. Per contra, Mr. G.S. Raghnunath, learned Counsel appearing for the respondents, supporting the finding arrived on by this Court in A.S. No. 121 of 1994 submits that the property in question is not an ancestral property, but it is a self acquired property of late Sankaralingam Pillai (Senior), the grandfather of the plaintiffs and the first defendant. According to learned Counsel for the respondents, by judgment dated 17-3-1992 in A.S. No. 273 of 1984, this Court had remanded the matter for fresh disposal and it was an open remand and hence, fresh issues can be raised. It is also submitted by counsel that the findings of the trial court initially were wrong and based upon the remand order, the matter was considered again and therefore, they can challenge all the wrong findings arrived on by the court below initially. According to counsel, the real position is clear from Ext.B1 document that the property was purchased by late Sankaralingam Pillai (Senior) by using the dowry amount and hence it cannot be said that it is an ancestral property, but on the other hand the wife of late Sankaralingam Pillai (Senior) has also right over the property. Thus, supporting the judgment of the learned Single Judge, the learned Counsel for the respondents submits that there is no ground to interfere by this Court in appeal, against the finding arrived on by the learned Single Judge. We have anxiously considered the rival contentions and also perused the materials and the evidence available on record. We have carefully perused the judgments of the trial court and also the judgments of the learned Single Judge of this Court.
12. As mentioned earlier, while answering to issue No. 3 in para 8 of the trial court judgment dated 31-3-1984, the trial court had held that so by birth, the first defendant and his brother late Sankaralingam Pillai got right in the schedule property, which was in the hands of late Madhavan Pillai as ancestral property as per Ext.B1. It was also found that late Madhavan Pillai had only 1/3 right. Since Smt. Meena, the second appellant/second defendant was found to be the illegitimate child of late Sankaralingam Pillai by the trial court, on his death, his 1/3 right in the schedule property devolved on late Madhavan Pillai as his legal heir. So according to the trial court, at the time of death of Madhavan Pillai, he had 2/3 share in the schedule property and since Madhavan Pillai died subsequent to the Hindu Succession Act, both the plaintiffs and the first defendant would get the said 2/3 share of Madhavan Pillai in the schedule property in equal shares. So, according to the trial court, the property in question is an ancestral property of late Madhavan Pillai and the first defendant is entitled to 1/3 share of the plaint schedule property. Though the trial court found that the property in question was an ancestral property, allotment was made in such a manner only on the finding and footing that Smt. Meena is not a legitimate child of the deceased Sankaramangalam Pillai. Since the plaintiffs did not challenge the above finding or in the absence of any cross objection in the appeal suit preferred by the plaintiffs in A.S. No. 273 of 1984, the above finding of the trial court has become final and the plaintiffs are estopped from re-agitating the issue.
13. It is equally important to note that the trial court during the trial, after the remand, confined to the points as discussed and directed by this Court at the time of disposing of the appeal and therefore, there is no illegality committed by the trial court while disposing of the suit. But, on the other hand, this Court at the time of disposing of A.S. No. 121 of 1994 under the guise of appeal went beyond the scope of the remand order and such exercise of the powers virtually barred by the principles of res judicata. The operative portion of the order of remand reads as follows:
The court below shall dispose of the suit having regard to the finding of this Court that Meena is the legitimate daughter of Sankaralingam Pillai and the court shall re-allot the shares to the parties in accordance with law.
From the above order of remand, it is crystal clear that the task given to the trial court is to re-allot the shares to the parties in the light of the finding of this Court in appeal that Smt. Meena who is the second appellant herein/additional second defendant is the legitimate daughter of late Sankaralingam Pillai. The other issue whether the property is an ancestral property, has already been settled as per the finding of the trial court as per its preliminary judgment and as per the finding of this Court in appeal at the first time. As stated earlier, the above findings of the trial court as well as this Court became final since the respondents herein who are the plaintiffs did not challenge the above finding of this Court, in appeal or in any other forum and also due to the failure of the plaintiffs in challenging the finding of the trial court by filing an appeal or by filing a cross objection in A.S. No. 273 of 1984. In the above circumstances, the trial court has rightly confined to the points for which the case was remanded and hence in appeal, this Court ought not have reopened the issue regarding the nature of the property and such an interference will amount to indirect interference with the remand order and such interference is impermissible. Even otherwise, the same is barred by the principles of res judicata.
14. In this respect, it is relevant to refer to a decision of this Court in Saraswathy Amma v. Karhiyani Pillai 2008(1) KLT 784. In the said decision, this Court had held in para 4 as follows:
Had the Appellate Court dismissed the appeal in toto the aggrieved party could have maintained a Second Appeal. Of course that can only be in accordance with the provisions contained in Section 100 of Civil Procedure Code. The appellant in that Second Appeal is not entitled to agitate questions of fact. It is to be noted that if the order of remand is in the nature of an interlocutory order the parties are not aggrieved. But if the Appellate Court decides any point and remands the case for reconsideration of other point, the aggrieved party must challenge those findings by filing a Miscellaneous Appeal before this Court. If he fails to challenge the point decided by the Appellate Court on its merits he will be precluded from challenging the correctness of that finding at a subsequent stage. So the aggrieved party is entitled to challenge all concluded findings of the lower Appellate Court in a remand order. But that challenge can only be in accordance with the provisions contained in Section 100 of Civil Procedure Code. The party cannot challenge a finding of fact on the ground that the appeal is against an order of remand. So an aggrieved party can challenge concluded findings in an order of remand provided substantial questions of law arise. If the contention of the respondents is accepted, the aggrieved party will be left without any remedy. He will not be in a position to challenge the points decided by the lower Appellate Court by filing a C.M.A. He will not be in a position to challenge the correctness of that finding in a regular appeal to be filed against the decree passed after remand as the same is barred by res judicata.
In another decision in Neelakanta Pillai v. Madhava Kurup 2007(2) KLT 340, a learned Judge of this Court had held that the appellate court had confirmed the findings of the trial court that the plaintiffs are not entitled to get a permanent prohibitory injunction and that they are not entitled to get a decree for fixation of boundary. It was also held that the remand was made only for the limited purpose of claiming the reliefs of recovery of possession based on title and for incorporating a relief for declaration of title. It was also held that the plaintiffs are, therefore, not entitled to circumvent the remand order and get nullified the findings therein under the guise of instituting a fresh suit after withdrawing from the suit. Rule 1(3) of Order XXIII is not intended for such a course being adopted. On examining the facts and circumstances involved in the present case in the light of the above decision, it can be seen that the attempt of the plaintiffs, who were the respondents herein, is to circumvent the findings in the remand order indirectly without filing an appeal against the earlier remand order. As stated earlier, the question regarding the nature of the property as to whether it is an ancestral property or not had become final as per the preliminary judgment of the trial court as well as the finding of this Court in A.S. No. 273 of 1984 and especially in the absence of any contra finding by a higher forum or a superior court against the finding of the learned Single Judge and on failure on the part of the plaintiff to challenge the finding of the trial court or at least filing a cross objection when the defendants preferred the appeal which culminated in the judgment dated 17-3-1992 in A.S. No. 273 of 1984. Thus, the final judgment of the trial court is fully justified as it is confined to the point for which the case was remanded by this Court. In view of the bar contained under Section 11 of the Code of Civil Procedure, no such settled issue can be reopened under the guise of appeal and the divergent finding arrived on by the learned single Judge as per the judgment in A.S. No. 121 of 1994 is incorrect and unwarranted. Therefore, the judgment of the learned Single Judge in A.S. No. 121 of 1994 is liable to be set aside.
15. It is also pertinent to note that while disposing of A.S. No. 273 of 1984, His Lordship Mr. Justice K.G. Balakrishnan (as he then was) found that the second appellant/second defendant is the legitimate daughter of late Sankaralingam Pillai (Jr.) and therefore, the suit was bad for nonjoinder of parties as one of the sharers Smt. Meena is not impleaded in the case and the suit was remanded for the limited purpose of impleading her as necessary party to the suit and for re-alloting the share to the parties in accordance with law. From the discussions and observations contained in the above judgment and from the order of remand, it is crystal clear that this Court, while maintaining the finding of the trial court that the property in question was an ancestral property, reiterated the same by stating as seen in para 6 of the judgment that 'admittedly, plaint schedule property was the ancestral property of the family'. It appears that no argument was advanced before this Court while hearing the above appeal, to canvass that the property in question was not an ancestral property. As stated earlier, neither any appeal nor any cross objection was filed by the plaintiffs against the finding of the trial court regarding the nature of the property. It is also not in dispute that no further appeal was filed by the plaintiffs/respondents herein against the above finding of this Court regarding the nature of property as per judgment in A.S. No. 273 of 1984. So, the finding of both the trial court as well as the learned single Judge that the property in question is an ancestral property has become final. It is, in the light of the above discussion and direction, the trial court passed the subsequent judgment alloting shares to both the appellants and defendants and especially, on the legal finding that the property in question is an ancestral property. Therefore, we are of the view that as long as the finding of the trial court as well as this Court in appeal regarding the nature of the property became final and undisturbed, this Court committed a grave mistake in reopening the issue during the second round and in coming into a divergent conclusion that the property in question is not an ancestral property. Hence, we are of the opinion that on that count alone, the judgment of the learned single Judge dated 5-3-1998 in A.S. No. 121 of 1984 is liable to be set aside.
16. In this juncture, it is pertinent to note that the questions as to whether the second appellant/second defendants is entitled to any share and what is the extent of such share, if any, depend upon two answers to the questions as to whether the property in question is an ancestral property and whether the second appellant/additional second defendant is the legitimate daughter of the deceased Sankaralingam Pillai. If the answers are positive, certainly Smt. Meena is entitled to get 5/12 share of the plaint schedule property.
17. In the light of our discussion and observation made above, we have already found that the finding of the learned single Judge as per the impugned judgment that the property in question is not an ancestral property is factually and legally incorrect and in that connection, we have to uphold the finding arrived on by the trial court as well as this Court by judgment dated 17-3-1992 in A.S. No. 273 of 1984. With respect to the question regarding the paternity and legitimacy of the second appellant/second defendant, that finding is also not disturbed by the impugned judgment. Therefore, the only question remained to be answered, in case we are reopening is an ancestral property. As a matter of fact and settled position of law, the learned Judge was not correct in reopening the issue which became final as per the earlier judgment of this Court and as per the judgment of the trial court and especially when there is no challenge against the judgment of the learned single Judge in A.S. No. 273 of 1984. Still then, since the learned Counsel appearing for the respondents has strenuously argued that the property in question is not an ancestral property and therefore, the plaintiffs are entitled to 1/2 share and defendants 1 and 2 are entitled to get 1/4 share each, we are inclined to consider the above question for the purpose of completion.
18. Mr. Raghunath, learned Counsel appearing for the respondents submits that as per the recital contained in Ext.B1, it can be seen that the property in question is a stridhana property belonging to Kolamma Ammal who is the mother of late Madhavan Pillai. Thus, strongly supporting the impugned judgment, the learned Counsel submits that it is not an ancestral property in the hands of late Madhavan Pillai and therefore, the finding of the trial court has to be held as incorrect and illegal as done by the learned single Judge. In support of the above submission, the learned Counsel placed reliance on a decision of the Privy Council in Sellamani Ammal v. Thillai Ammal wherein it was held that the separate property inherited from mothers's side is separate property and there was no blending with joint family property and testamentary disposition was valid. The learned Counsel also placed reliance on the decision reported in Narinjan Das v. Krishan Lal AIR 1941 Lahore 31. In the above decision it was held that absolute devise to the widow would not be avoided by the adoption. It was also held that the property was self-acquired in the hands of the widow as it came to her by will from her husband. It was also held that similarly, the property was self-acquired in the hands of her adopted son as it came to her by will by her adoptive mother. On the strength of the decision reported in Vijaya College Trust v. Kumta Co-op. Arecanut Sales Society Ltd. AIR 1995 Karnataka 35, Mr. Raghunath, the learned Counsel appearing for the respondents further submits that in order to come with the definition of ancestral property, the property must have been inherited by a male Hindu from his father's father etc. and property inherited from female cannot be treated as an ancestral property. On the death of mother, widow the property is being devolved upon the sons and therefore, the same cannot be treated as an ancestral property.
19. Per contra, Mr. R.D. Shenoi, the learned Senior Counsel submits that the very recital contained in Ext.B1 partition deed to which the later Madhavan Pillai is a party shows that the property was acquired by the father of late madhavan Pillai, late Sankaralingam Pillai (Senior) benami in the name of his wife late Kolamma Ammal and he himself had settled the mode of devolution of the property after his death. It is also submitted that late Madhavan Pillai and other children of late Sankaralingam Pillai (Senior) treated the property as ancestral only and hence, the daughters of late Madhavan Pillai cannot now placed to the contrary. The learned Counsel further argued that though the property was acquired in the name of Kolamma Ammal by her husband with his own funds, there are no other facts or transaction to show that the acquisition was intended for her exclusive benefit only. Thus, according to the counsel, in such circumstances it has to be held that it is the property of late Sankaralingam Pillai (Sr.) alone and it is an ancestral property in the hands of late Madhavan Pillai as per the partition deed Ext.B1. In support of the above plea, the learned Counsel very much placed reliance on the decision of the Privy Council in Sura Lakshmiah Chetty and Ors. v. Kothandarama Pillai (1925) I.A. 286 (48 Madras 605. It is also argued by the learned Counsel that the learned Single Judge failed to note that there is no claim from the daughters of Kolamma Ammal who are otherwise entitled to get share in the property, and therefore, it has to be treated as the property of late Sankaralingam Pillai (Sr.) and hence the property was dealt with by his sons alone as ancestral property only.
20. The learned Counsel further submits that the learned Single Judge was not correct in arriving at a conclusion that the property is a stridhana property and the same is unfounded, with reference to the pleadings as well as the reference to the evidence available on record. It is the definite case of the learned Counsel that the plaintiffs never claimed the property as stridhana property of their grand mother. On the strength of Ext. B1 partition deed, the counsel submits that at the most, what can be seen is that late Sankaralingam Pillai (Sr.) had created only life estate in favour of his wife Kolamma Ammal and nothing more. On a close perusal of Ext.B1 deed, it can be seen that the property in question is an ancestral property in the hands of late Madhavan Pillai which he inherited from his father late Sankaralingam Pillai (Sr.). Nothing is discernible from Ext.B1 to show as to how Smt. Kolamma Ammal got the property to consider it as a stridhana property of Kolamma Amal.
21. Page 530 of Raghavacharia's Hindu Law 7th Edition contained Chapter XIII, Stridhana and Section 468 deals with definition of Stridhana and Section 469 deals with sources of acquisition. Section 472 deal with gifts subsequent to marriage which runs as follows:
472. Gifts subsequent to marriage.- Properties given to a woman subsequent to her marriage might have been given to her either by her husband or by others. When a husband gives inter vivos or by will it is a question of construction of the deed of gift or will, whether the husband intended her to take the property absolutely as her stridhana property or only for a qualified interest. The later judicial view seems to be that in the absence of words in the deed indicating the contrary intention, the presumption is that the donee takes the property as an absolute owner and this view seems to be more in consonance with the present-day sentiment of the Hindus which, owing, to the influence of western civilisation and culture, abhors any distinction being created in the legal rights of parties, merely because of sex. Properties given or bequeathed to a woman by her relations or strangers during coverture or widowhood are her Stridhana except that under the Dayabhaga and the Mithila Schools, property given by a stranger during coverture is subject to her husband's dominion and becomes her absolute property only after his death.
(underline supplied)
From the above underlined portion of the above quoted passage, it can be seen that there must be sufficient evidence either documentary or oral to show that whether the husband had intended the wife to take the property absolutely as her stridhana property or only for a qualified interest. In the present case, there is no evidence to show that absolute right was given to Kolamma Ammal. But Ext.B1 would show that what Sankaralingam Pillai (Sr.) intended was to give a life estate to his wife Kolamma Ammal. It is also clear as to how the property would devolve upon his son on his death. It is also vivid that no share was intended to give the daughters. The facts and circumstances also show that the daughters of late Sankaralingam Pillai (Sr.) have never demanded for share in the above property. The admitted case of the plaintiffs is also to the effect that the property in question belongs to late Madhavan Pillai and therefore, the real and deserving claimants are only plaintiffs and first appellant who is the first defendant in the suit.
22. The 16th Edition of Hindu Law by Mulla is also an authoritative text on the subject. Chapter X of the same deals with women's property part I about Stridhana. In the above text, Section 113 deals with stridhana, according to the Smritis, that is, the sacred writings of Rishis or sages of antiquity. Manu enumerates six kinds of stridhana which reads as follows:
1. Gifts made before the nuptial fire, explained by Katyayana to mean gifts made at the time of marriage before the fire which is the witness of the nuptial (adhyagani).
2. Gifts made at the bridal procession, that is, says Katyayana, while the bride is being led from the residence of her parents to that of her husband (adhyavahanika). Reference may be made to the undermentioned case (Vinod Kumar v. State of Punjab (1982) 84 Punj.LR.337 (KB.) (dowry articles and traditional presents given at the wedding)].
3. Gifts made in taken of love, that is says Katyayana, those made though affection by her father-in-law and mother-in-law (pritidatta), and those made at the time of her making obeisance at the feet of elders (padavandanika)
4. Gifts made father.
5. Gifts made by her mother.
6. Gifts made by the brother (Manu, ix, 294)
In page 163 of Mulla's Hindu Law under Section 125 deals with sources of woman's property which reads are follows:
125. Sources of woman's property.- A Hindu female may acquire property from diverse source. Several descriptions of property that may be lawfully acquired by a Hindu female are:
(1) Gifts and bequests from relations (s 126).
(2) Gifts and bequests from strangers (s 127).
(3) Property obtained on partition (s 128)
(4) Property given in lieu of maintenance (s 129).
(5) Property acquired by inheritance (s 130)
(6) Property acquired by mechanical arts (s 131)
(7) Property obtained by compromise (s 132)
(8) Property acquired by adverse possession (s 133)
(9) Property purchased with stridhana or with savings of income of stridhana (s 134)
(10) Property acquired from sources other than those mentioned above (s 135)
Bequests stand on the same footing as gifts (Judoo Nath Bussunt Coonar (1873)19 W.R.264)
Among the above lists, item No. 9 is shown as property purchased with stridhana or with savings of stridhana. In the light of the terms contained in the above quoted passage from the Mulla's Hindu Law, it has to be established by the respondents-plaintiffs that the property in question was purchased with the stridhana in order to come into a different conclusion that the property in question is not an ancestral property.
23. The learned Single Judge casually observed that the property belonged to Kolamma Ammal and her mother Kali Ammal and that they acquired the property with the funds given by late Sankaralingam Pillai (Sr.). But, the learned Single Judge did not discuss and enter any finding regarding the source of fund before holding that the property belongs to Kolamma Ammal and her mother Kali Ammal. While making the above observation, the learned single Judge failed to note the recital contained in Ext.B1 that the property belongs to the father of parties to Ext.B1. If that be so, the property is an ancestral property at the hand of late Madhavan Pillai and to take a different view, the court has to come into a definite finding as to how Kolamma Ammal and her mother Kali Ammal got the fund so as to name them as owners of the properties. The learned Judge stated that 'it is therefore clear that the properties belonged to late Madhavan Pillai's mother Kolamma Ammal. It was acquired in her name, may be with the funds provided by her husband' (emphasis supplied). The above underlined portion of the observation of the learned Judge assumes much importance. It is crystal clear from the above words that the property was acquired by using the self acquired funds of the late Sankaralingam Pillai (Sr.) and therefore, late Madhavan Pillai has got right as an ancestral property. There is no evidence to show that the property in question was acquired by using the stridhana fund of late Kolamma Ammal. The specific recital contained in Ext.B1 regarding the right of Kolamma Ammal is only life estate which would further confirm that she has no absolute right over the property and the modes of devolution of the property among the sons are also finding a place in Ext.B1 and that is also another factor unerringly and conclusively establishes that it is an ancestral property. The daughters of late Sankaralingam Pillai have not made parties to Ext.B1 and they did not raise any claim with respect to the property of late Sankaralingam Pillai (Senior) and hence it can safely be concluded that the property in question at the hands of late Madhavan Pillai is an ancestral property.
24. In Sura Lakshmiah Chetty's case (cited supra), on appeal from the High Court at Madras, the Privy Council held that 'when it alleged that a purchase of property in India by an Indian out of his own money, but in the name of his wife, was made in pursuance of an ante-nupital agreement, and that consequently it is not to be regarded as a benami transaction, the alleged anti-nupital agreement, if oral, must be proved by the clearest and most satisfactory evidence of credible witnesses; it would be unwise to act upon oral evidence, unless there was contemporaneous written evidence to corroborate it'. In the present case, the proved facts and circumstances mentioned above are sufficient to hold that the property in question is an ancestral property and there is absolutely no evidence to show that the property was purchased by using the stridhana property of late Kolamma Ammal. Ext.B1 contained no indication or recital to that effect. No other documentary evidence was adduced by the plaintiffs to establish such claim. Absolutely there is no oral evidence in this regard.
25. We have no doubt about the position of law settled through the decisions namely, Sellamani Ammal v. Thillai Ammal , Narinjan Das v. Krishan Lal AIR 1941 Lahore 31 and The Vrjaya College Trust v. The Kumta Cooperative Arecanut Sales Society Ltd. AIR 1955 Karnataka 35, relied on by Mr. Raghunath, learned Counsel for the respondents. In the absence of necessary pleadings and concrete evidence to show that the property in question belongs to the grandmother of parties, namely Kolamma Ammal as her stridhana property, the above contentions fail. Therefore, on applying the principles laid down by the Privy Council and in the light of the authorities mentioned above, it can be seen that there is no specific pleading or evidence from the side of the plaintiffs to show that the property in question is purchased by using the stridhana property of late Kolamma Ammal. But, on the other hand, all the available evidence including the documentary evidence and the conduct of the parties unerringly established that the property in question is an ancestral property in the hands of late Madhavan Pillai.
26. The observation and finding arrived on by the learned single Judge in para 9 appears to be not correct. Under the above circumstances, the finding of the learned single Judge is absolutely unfounded and not at all warranted and hence the judgment of the learned single Judge is liable to be set aside. In the result, we allow this appeal and the judgment dated 5-3-1998 in A.S. No. 121 of 1994 is set aside, restoring the finding of the trial court and we further direct the trial court to dispose of O.S. No. 316 of 1982 in accordance with law and in the light of the revised preliminary judgment and decree passed by it as per the judgment dated 30-1-1993 in O.S. No. 316 of 1982. Parties are directed to bear their respective costs.