Bhat, J.
1. Defendants 1, 3 and 5 in OS No. 370 of 1980 on the file of the Subordinate Judge's Court. Kozhikode are the appellants herein.
2. Plaintiff is daughter and first defendant is son of Korappan who died in 1960. His wife died in 1934. Fifth defendant is wife of the first defendant and defendants 2 to 4 are their children. Defendants 6 and 7 are said to be persons in possession of a portion of the suit property by virtue of alienations effected by first defendant. Sixth defendant died pending suit and defendants 8 to 14 are his legal representatives. Admittedly parties belong to Thiyya community of Kozhikode district.
3. There is no dispute that suit properties were ancestral properties in the hands of Korappan and the latter was the kartha of the family. According to the plaintiff, on Korappan's death in 1960, according to the provisions of the Hindu Succession Act, 1956, his interest, namely, half right devolved on plaintiff and firs! defendant as co-owners and, therefore, plaintiff has one-fourth share and the remaining three-fourth right belongs to first defendant. On these averments plaintiff sued for partition. Defendants 1, 3 and 5 contended, inter alia, that Korappan's interest did not devolve on plaintiff and first defendant under the provisions of the Hindu Succession Act, but devolved on the first defendant by survivorship and, therefore, plaintiff has no share, that the provisions of the Hindu Succession Act do not apply to the instant case and plaintiffs suit is barred by adverse possession and limitation.
4. The trial court held that whatever be the custom governing the parties belonging to Thiyya community of Kozhikodc district in relation to inheritance and succession, it is over-ridden by Section 4(1)(a) of the Hindu Succession Act, 1956 and Korappan's share devolved by inheritance Under Section 6 of the Act and plaintiff is entitled to one-fourth share in the property. The trial court also overruled the plea of adverse possession and limitation and passed a preliminary decree for partition.
5. Learned counsel for the appellants has urged two contentions before us namely, that parties are governed by customary law according to which interest of a coparcenar in coparcenary property devolves by survivorship on the remaining members of the coparcenary (in this case the first defendant) and this custom is not abrogated by Section 4(1)(a) of the Hindu Succession Act and, therefore, the provisions in Section 6 of the Act are not attracted and that in any event, plaintiffs claim is barred by adverse possession.
6. There is no dispute that the suit properties are ancestral properties of the family of which Korappan was the kartha. Section 6 of the Hindu Succession Act states that 'when a male Hindu dies after the commencement of this Act, having at the time of his death an interest in a Milakshara coparcenary property, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with this Act'. The proviso states, inter alia, that if the deceased had left him surviving a female relative specified in Class I of the Schedule or a male relative, who claims through such female relative, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession, as the case may be, under this Act and not by survivorship. Admittedly, Korappan left behind him a female relative specified in Class IT of the Schedule, that is, daughter. Therefore, the proviso is attracted and that being so the interest of Korappan in coparcenary property must devolve by intestate succession. Under the provisions of the Act preferential heirs arc sons and daughters. In the absence of anything more plaintiffs claim for one-fourth share would be justified.
7. According to learned counsel for the appellants, parties belong to Thiyya community of Kozhikode district governed by custom by which the Mitakshara rule of survivorship was adopted by the community is not over-ridden by the provisions of the Act by virtue of Section 4(1)(a) of the Act. If this argument is to be accepted, it must follow that neither Section 6 nor the proviso thereof can affect the rights of parties. There is no dispute that in the community to which parties belong, rule of survivorship on the death of male coparcener obtained. The question is whether this rule is over-ridden by virtue of Section 4(1)(a) of the Act.
8. Section 4(1)(a) of the Act provides that save as otherwise expressly provided in this Act, any text, rule or interpretation of Hindu law or any costom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act.
9. What exactly is the nature and source of the rule applicable to persons of Thiyya community in Kozhikode district? We may mention at this stage that this area was part of Madras Presidency before the re-organisation of States in 1956. The leading case on the point is the one in Pattukkayal Chakutti v. Kothembra Chandukutti (AIR 1927 Madras 877) in which a Division Bench of the Madras High Court after considering practically all the prior decisions held (at page 879) :
'In the absence of any satisfactory evidence to show what exactly is the rule of the customary law on any particular point, the rule of Hindu law on that point must, we think, be presumed and adopted to be the rule of the customary law obtaining amongst the community on that point. The presumption is not that the Hindu law as such is the law governing them in all matters; if that be the presumption a person who alleges a rule of customary law at variance with it will have to prove it as a custom in derogation of the law. The presumption is simply that the rule of the Hindu law is also the rule of the customary law obtaining amongst them, so that if any person alleges that the rule of the customary law on any particular point is something different, the evidence that he adduces in support of his allegation ought not to be subjected to those well known tests which are applied to the case of an alleged custom contrary to or in derogation of the law, but should be viewed simply as evidence adduced to show what is the rule of the customary law itself.'
This decision has been followed by this Court in Dharmodayam Company v. Balakrishnan (1962 KLT 712) and Rohini v. Sethumadhavan (1978 KLT 470) : AIR 1978 Kerala 119 and approved by the Supreme Court in Kelukutty v. Mammad (AIR 1972 SC 2403).
10. Sources of Hindu law discussed in Chapter II in Mulla's Principles of Hindu law. At page 73 of the 16th edition it is stated that 'main sources of Hindu dharma or law are (i) Sruti, (ii) Smriti, and (iii) Custom and a practical division of the sources of Hindu law would be (1) Original texts of the Dharma-shastras (2) Commemaries and Digests and (3) Customs'. At page 77 it is stated that 'custom is one of the three sources of Hindu law and when there is a conflict between a custom and a text of the Smrities, the custom overrides the text'. It is in this light that we have to analyse the provision in Section 4(1)(a) of the Hindu Succession Act, 1956. According to this provision, any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act. We are now concerned only with those rules of Hindu law or custom which govern the subject matter of the Hindu Succession Act, namely, succession and inheritance. That the community concerned in this case is governed by the Mitakshara principle of survivorship in relation to coparcenary property on the death of a coparcener admits of no doubt. In our opinion, first part of Clause (a) of Sub-section (1) of Section 4 relating to any text, rule or interpretation of Hindu law will apply in this case. Even if that be held not to apply there is no reason why second part 'any custom or usage as part of that law' should not apply. Undoubtedly Thiyyas of Kozhikode district are Hindus to whom the Act applies. Section 2(1) of the Act states : 'this Act applies to any person, who is a Hindu by religion in any of its forms or developments....', Parties are Hindus by religion and the Act, therefore, applies. Necessarily they are governed by Hindu law of which custom is one of the sources. The custom in this case squarely falls within Section 4(1)(a) of the Act. That being so, it is overridden by the Act.
11. At page 917 of Mulla's Principles of Hindu Law (Fifteenth edition), referring to Section 4(1) it is stated :
'This section gives overriding application to the provisions of the Act and in effect lays down that in respect of any of the matters dealt with in the Act it seeks to repeal all existing laws, whether in the shape of enactments or otherwise, which are inconsistent with this Act..... the Act brings about some fundamental and radical changes in the law of succession and the result is that immediately on the coming into operation of the Act the law of succession hitherto applicable to Hindu whether by virtue of any text, rule or interpretation of Hindu law or any custom or usage having the force of law ceases to have effect with respect to all matters expressly dealt with by the Act'.
See also Badri Nath v. Punna (AIR 1979 SC 1314) and Sundari v. Laxmi (AIR 1980 SC 198). We, therefore, uphold the finding of the trial court that plaintiff has inherited one fourth share in the property.
12. The next contention urged by learned counsel for the appellants is that plaintiff's claim for share in the property is barred by adverse possession and limitation. Parties are in the position of co-owners. It is axiomatic that in the case of co-owners plea of adverse possession can succeed only if ouster is alleged and proved. Plaint does not set up a plea of Ouster. It contains only a general plea of adverse possession and limitation. Even if we take that plea as adequate, the question is whether ouster has been made out. There is no evidence adduced on behalf of the contesting defendants about ouster otherwise than by asserting exclusive right by way of alienation in 1980. Exts. B2 to B5 are purchase certificates obtained by first defendant in 1976-1977 from the Land Tribunal concerned in regard to landlord's right with reference to some of the items included in the plaint. When a co-owner obtains purchase certificate, without anything more, it can only be presumed to be by virtue of his status as a co-owner and ordinarily he must hold the property for the benefit of other co-owners. Even if we are to accept the extreme position that the conduct of the first defendant in obtaining purchase certificates is an assertion of hostile title to the knowledge of other co-owners, period of twelve years has not passed since the date of the purchase certificate before filing the suit and hence ouster is not made out.
13. Plaintiff has specific case that till some time before the filing of the suit she was being given share of income. This has been denied in the written statement. Plaintiff's son examined as P.W. 1 and the first defendant as D.W. 1 have spoken to their respective cases. Even if it is accepted that plaintiff was not paid share of income by the first defendant for a long period, it will only amount to non-participation. There is no case for the first defendant that prior to the statutory period plaintiff claimed income and that was denied by him on the basis of denial of her right. Mere non-participation, without anything more, cannot be the foundation for a plea of ouster. Hence the trial court was justified in rejecting the plea of adverse possession and limitation.
The appeal is accordingly dismissed with costs.