Summary
The property in the suit originally belonged to one Bhag- avathi Parameswaram who created an otti in favour of one Krishnan Marthandam for 3500 fanams (about Rs. 500/-).
Subsequently the latter created a chittoti, Bhagavathi Parameswaram some years later (in 1163 M.E.) made a gift of the property to his wife Bhagavathi Valli. Bhagavathi Valli died in 1105 M.E. She bad an only son Sivaraman who was mar- ried to Parvathi Meenakshi and had a son named Vasudevan.Sivaraman left Travancore in 1096 M.E. Both sides are agreed that he died thereafter. But there is no aggreement as to the date of his death. &ad Vasudevan claiming 635to be the heirs jointly sold the jenmom rights in 1123 M.E. to the present appellant. The appellant brought a suit for the redemption of the otti and recovery of possession of the property from the defendant (present respondent No. 1).The defendant denied that Bhagawathi Valli ever got the jenmom right. He claimed to have obtained both the jenmom right as well as other rights. According to him on Bhagavathi Valli's death her sister B. Narayani and Narayani's daughter Gouri were heirs through whom he traced his title. He further contended that even if Meenakshi and Vasudevan got any jenmom right they lost it by the auction sale in O.S. No. 36 of 1100 M. E. For these reasons it was contended that the plaintiff had no title to sue. It is admitted by both parties that the case is governed by the Travancore Ezhava Act, 1100.The trial court and the first appellate court decreed the suit but the High Court reversed the decision of the courts below holding that the plaintiff had not obtained a valid title to the equity of redemption by the sale deed in his favour and was not entitled to redeem the property. The plaintiff thereupon appealed to this Court on a certificate granted by the High Court.A preliminary objection was raised by the respondent about the competency of the certificate granted by the High Court.It was contended that since the suit was valued at 3500 fanams (Rs. 500/-) this valuation governed the suit for the purpose of the certificate and this value being below the prescribed minimum under Art. 133 of the Constitution the certificate was not competent. It was alternatively contended that if the valuation was more than Rs. 10,000 the trial court had no jurisdiction to try the suit.It was contended on behalf of the appellant that the ordi- nary rule of law was that property was impartable and that s., 32 of the Act made a departure and imposed partibility on the Makkothayam property and the expression 'contrary intention' contemplated in s. 32 was an intention contrary to partibility and such an intention could not be spelled out from Ex. III the gift deed. It was contended that if the property was shared by Bhagavathi Valli with Sivaraman and Vasudevan, then Vasudevan would have the right to redeem the Otti as a person interested and so would the appellant, a transferee from him. Alternatively if the property became that of Bhagavathi Valli alone then Vasudevan would be entitled to succeed to the property left by Bhagavathi Valli by virtue of ss. 18 636and 19 of the Act provided Bhagavathi Valli was not exempted from the operation of the Act under s. 33. It was further contended that since the question of exemption was not pleaded by the defendant (respondent) in his written statement and since no issue was framed the High Court ought not to have considered the notification put in by the respondent in his evidence purporting to prove that Bhagavathi Valli was exempted. Finally it was urged that the notification does not in fact prove that she was so exempted since her identity is not established by the notification.Held that for the certificate to be competent the appeal must satisfy two tests of valuation. The amount or value of the subject matter of the suit in the court of first instance and the amount or value of the subject matter in dispute on appeal to this Court must both be above the mark.There are however cases in which the decree or final order directly or indirectly involves some claims or question to or respecting property above the mark. Such cases are also appealable. The word indirectly' in such cases coven the real value of the claims which is required to be determined quite apart from the valuation given in the plaint if the property was not required to be valued for the purposes of the suit on the market value. In the present case the High Court found the value to be Rs. 42,000/- and Rs. 80,000/- at the material times. The plaintiff was not required to value his plaint on the real or market value of the property but on the price for redemption. He had asked for possession of the property after redemption and the property as the High Court has found is well above the mark in value. The certificate is competent. The suit as valued was properly laid in the court of first instance and in any case such an objection cannot be raised for the first time in this Court.The working of s. 32 does not justify the contention that by reason of the expression 'contrary intention' only impartibility could be imposed. What the law did was to define the rights on partition of makkathayam property and laid down that on partition the shares should be equal unless a contrary Intention was expressed. The gift deed Ex. III in the present case shows that the properties given to the donees are to be taken by each -exclusively.Reading ss. 18 and 19 it follows that whether Sivaraman survived Valli or died before her Vasudevan would succeed as an issue within the expression 'how-low-so-ever' of the Explanation to s. 19 at least to a fractional interest in the property.637 But this can only be if Bhagavathi Valli was not exempted from the operation of Part IV of the Act.The parties went to trial, fully understanding the central fact whether the succession as laid down in the Ezhava Act applied to Bhagavathi Valli or not. The absence of an issue, therefore, did not lead to a material sufficient to vitiate the decision. The plea was hardly needed in view of the fact that the plaintiff stated in his replication that the "suit property was obtained as makkathayam property, by Bhagavathi Valli under the Ezhava Act". The subject of exemption from Part TV of the Ezhava Act, was properly raised in the trial Court and was rightly considered by the High Court.The High Court was right in holding that the identity of Bhagavathi Valli had been established and that Bhagavathi Valli was exempted from the operation of the Ezhava Act (Part IV).The present appellant. is not entitled to redeem the otti having never enjoyed the jenmom rights.See the full content of this document
Extract
Kunju Kesavan VS. M. M. Philip I. C. S. And Ors.
PETITIONER: KUNJU KESAVAN Vs.RESPONDENT: M. M. PHILIP I. C. S. AND ORS.DATE OF JUDGMENT: 08/05/1963BENCH: HIDAYATULLAH, M.BENCH: HIDAYATULLAH, M.SARKAR, A.K.SHAH, J.C.CITATION: 1964 AIR 164 1964 SCR (3) 634CITATOR INFO : R 1968 SC1165 (27)D 1971 SC2171 (7)D 1978 SC1362 (25)F 1989 SC1530 (18)ACT: Travancore Ezhava Act-Makkathayam property-Nature and incidents-Partibility-The meaning of the expression 'con- trary intention' in s. 32 of the Act-The rights of issues'when there is exemption under s. 33 of the Act-Question of exemption not raised in written statement -No issue framed- But evidence led-Not objected by plaintiffs-Whether vitiate the trial-Valuation of the suit below twenty thousand- Certificate granted by the High Court under Art. 133 of the Constitution valid-Constitution of India, Art. 133- Travancore Ezhava Act, 1100 (Act, III of 1100), ss. 2, 18,19,32,33.JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1 of 1962.Appeal from the judgment and decree dated September 10, 1957, of the Kerala High Court in Second Appeal No. 42 of 1954 (I.T.)T. S. Venkataraman and V. A. Seyid Muhammad, for the appellant.A. V. Viswanatha Sastri, G. B. Pai, Shakuntala Sharm and K. P. Gupta for respondent No. 1.1963. May 8. The judgment of the Court was delivered byHIDAYATULLAH J.-This is ...
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