IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 10TH NOVEMBER 2011 / 19TH KARTHIKA 1933 AS.No. 593 of 2000() & CROSS OBJECTION ------------------------------------------------------------- OS.214/1985, of ADDL.SUB COURT, PALAKKAD .................... APPELLANT(S): 4TH DEFENDANT ----------------------------------------------- *C.J.JACOB, S/O. LATE CHATHAMAKAL JOSEPH, RESIDING AT CHATHAMAKKAL HOUSE, GURUVAYOOR, P.O.TRICHUR DISTRICT. (DIED) *ADDL. P2 TO P6 IMPLEADED 2. ABU TAHIR, AED 22 , S/O. MOHAMMED , IDAGKODAN HOUSE, THACHAPARA VILLAGE, MANNARKAD TALUK, PALAKKAD. 3. RADHAKRISHNAN, AGED 37, S/O. MANI, MUTHUKKURISSI, DO. DO. 4. RAJENDRA MEHTHA AGED 45, D/O. UMAITHMMAL MEHTHA, 53/49, PONNU RANGAM ROAD, COIMBATHORE. 5. KANTHA MEHTHA, AGED 43, W/O.MAHENDRA CHAND MEHTHA, 39-15/48, RANGE STREET, COIMBATHORE. 6. MAHENDRA CHAND MEHTHA, AGED 45, S/O. BILLAN CHAND MEHTHA, 711, OPPANAKKARA STREET, COIMBATHORE. *SUPPELMENTAL APPELLANTS 2 TO 6 ARE IMPLEADED AS PURCHASERS FROM THE DECEASED SOLE APPELLANT AS PER ORDER IN IA. 3112/10 DTD. 31.8.10. BY ADV. SRI.N.SUKUMARAN SRI.S.SHYAM SRI.BOBBYMATHEW KOOTHATTUKULAM tss A.S. NO.593/2000 RESPONDENT(S): ------------------------- 1. ANTONY SELVARAJ, AGED 45 YEARS, S/O. GNANAMRITHAM PILLAI, CIRCLE INSPECTOR OF POLICE, OOTTY, TAMILNADU. 2. XAVIER PAUL @ PAUL RAJ, S/O. GNANAMRITHAM PILLAI, DEPUTY TAHASILDAR, COIMBATORE DISTRICT. 3. MARIA CHARLES, S/O. GNANAMRITHAM PILLAI, C T.C. BUS BRANCH MANAGER COIMBATORE. 4. JAMES, S/O.GNANAMRITHAM PILLAI, PUBLIC RELATIONS OFFICER, COIMBATORE, TAMILNADU. *5. GNANAMRITHAM PILLAI, S/O. MARIA SOWRI PILLAI, NO.19 SWAMIYAR NEW STREET, COIMBATORE, TAMILNADU.(DIED) *6. MARY LILLY, W/O. GNANAMRITHAM PILLAI, PARISAKKAL, VADAKARAPATHY VILLAGE, CHITTUR THALUK, PALAKKAD. (DIED) 7. THOMAS RATNA RAJ, S/O. GNANAMRITHAM PILLAI, RESIDING AT DO. DO. 8. THOMAS, S/O.PULIKKOT KURIYAKKU, RESIDING AT CHOWGHAT VILLAGE, CHAWGHAT THALUK TRICHUR DISTRICT. 9. KUMARI KALA, D/O. THAMBI GEORGE, RESIDING AT NEDUYULATHIL, POOTHOL ROAD, TRICHUR TOWN, TRICHUR. 10. RAYMOND, S/O. CHAKKRAMANGAL FRANCIS, RESIDING AT CHAWGHAT VILLAGE, CHAWGHAT THALUK, TRICHUR. *IT IS RECORDED THAT R5 AND R6 DIED AND R1,R2,R3,R4 AND R7 ARE THEIR LEGAL REPRESENTATIVES AS PER ORDER DTD. 20.2.08 IN IA. 748/08 BY SRI.P.N.K.ACHAN , SENIOR ADVOCATE R3 BY ADV. SRI.K.MOHANAKANNAN THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 24/10/2011, ALONG WITH RFA NO. 445 OF 2004 RFA NO. 444 OF 2004 THE COURT ON 10/11/2011 DELIVERED THE FOLLOWING: tss P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - A.S. Nos. 593 of 2000 & Cross Objection & R.F.A. Nos. 444 & 445 of 2004 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 10th day of November, 2011. JUDGMENT Three suits, namely, O.S.214 of 1985, O.S.324 of 1989 and O.S. 50 of 1991 were jointly tried and disposed of by a common judgment by Sub Court, Palakkad. By the said judgment O.S. 214 of 1985 was decreed and the other two suits were dismissed. A.S.593 of 2000 arises from the judgment and decree in O.S.214 of 1985, R.F.A. 444 of 2004 arises from the judgment and decree in O.S. 324 of 1989 and R.F.A. 445 of 2004 arises from O.S.50 of 1991. Infact A.S.444 and 445 of 2004 were filed before the District Court, Palakkad and withdrawn to this court for being heard along with A.S.593 of 2000. 2. O.S.214 of 1985 was a suit for partition, whereas O.S.324 of 1989 and 50 of 1991 were suits for injunction. The plaintiffs in O.S.214 of 1985 had filed A.S.593/2000 & con.cases. 2 O.S.324 of 1989 and defendants 4, 5 and 6 in O.S.214 of 1985 have filed O.S.50 of 1991. O.S.214 of 1985 was treated as the leading case and evidence was adduced in the said case. Hence parties and facts are referred to as they are available in the said case. 3. Fortunately in these appeals, there is no dispute regarding the facts. The facts are admitted. A pure question of law relating to the personal law applicable to the parties is the only question that is to be determined in these appeals. The main appeal that arises for consideration is A.S.593 of 2000, and the decision of which will determine the fate of the other two appeals. 4. The parties are admittedly Tamil Vellala Christians of Chittur Taluk in Kerala State. The question is whether the parties are governed by Mitakshara Law as modified by the custom or the Indian Succession Act. As already noticed, the parties belong to Tamil Vellala community. Plaintiffs and defendants 1 to 3 belong to Vellala Christian community in Chittur Taluk. Plaintiffs and third A.S.593/2000 & con.cases. 3 defendant are the children of defendants 1 and 2. Shorn off unnecessary details, it is established that the properties are family properties. Defendants 4 and 5 are assignees from the first defendant. The plaintiffs assert that since the parties are governed by Hindu Mithakshara Law as modified by custom, the first defendant had no right to assign his undivided share in the joint family property and therefore the documents so executed by him are not binding on them. They do not wish to continue the joint status and they have sued for partition. 5. Defendants 4 and 5, who obtained the property by virtue of Exts.B11 and B12 resisted the suit. They pointed out that eversince Exts.B11 and B12 dated 4.7.1985 they have been in absolute possession and enjoyment of the property. Plaintiffs and defendants 1 to 3 have no right or possession over the suit property. Allegations to the contrary are denied. In the proceedings before the Taluk Land Board, it was represented by the plaintiffs as well as defendants 1 to 3 that they are governed by Indian A.S.593/2000 & con.cases. 4 Succession Act and that was confirmed in C.R.P. 751 of 1977 by this court. Therein, it was held that the plaintiffs and defendants 1 to 3 are governed by the Indian Succession Act and therefore the said decision act as res judicata and estoppel. The plaintiffs have no right to assail Exts.B11 and B12. Accordingly, they prayed that the suit be dismissed. 6. The sixth defendant supported the plaintiff. 7. The facts in the other suits are not very relevant because the fate of those suits will depend upon the fate of O.S.214 of 1985. 8. On the above pleadings, issues were raised and evidence was adduced in O.S.214 of 1985. The evidence consists of the testimony of P.Ws.1 to 3 and documents marked as Exts.A1 to A7 from the side of the plaintiffs. The contesting defendants had D.W.1 examined and Exts.B1 to B32 marked. Ext. X1 is the third party exhibit. 9. The trial court, based on the appreciation of the evidence, took the view that the parties are governed by A.S.593/2000 & con.cases. 5 Hindu Mithakshara Law as modified by custom and accordingly a preliminary decree was passed as follows: “O.S.214/85 is decreed and a preliminary decree for partition is passed as follows: a. The plaint schedule properties shall be divided into 24 equal shares and allot 2 shares each to plaintiffs 1, 2 and 4. Third plaintiff shall be allotted 9/24 shares. Third defendant is entitled to get 2/24 shares and separate allotment shall be made on payment of court fee. Defendants 4 and 5 together are entitled to get 7/24 shares and separate allotment shall be made on payment of requisite court fee. b. The quantum of mesne profits shall be decided at the final decree stage. Plaintiffs are entitled to get proportionate share of mesne profits from defendants 4 and 5. The question regarding equity is relegated to the stage of final decree.” 10. Aggrieved by the judgment and decree, the fourth defendant has come up in appeal as A.S. 593 of 2000. The first plaintiff in O.S.50 of 1991 is the appellant in A.S.593/2000 & con.cases. 6 R.F.A.445 of 2004 and the second defendant in O.S.324 of 1989 is the defendant in R.F.A.444 of 2004. 11. The only question that arises for consideration, as already mentioned, is the personal law that is applicable to the parties. While the plaintiffs and defendants 1 to 3 would canvass for the position that the parties are governed by Hindu Mithakshara Law modified by custom, the appellant in A.S.593 of 2000 would contend that they are governed by Indian Succession Act. 12. The lower court relied on the decision reported in Chinna Swamy Koundan v. Anthony Swamy (1960 K.L.T. 848) as approved by the Apex Court in the decision reported in AIR 1970 SC 223 wherein it was held that Vanniya Tamil Christians of Chittur Taluk in Kerala State are governed by Mithakshara Law of succession. It also relied on an unreported decision of the Division Bench of this court in C.R.P. 728 of 1961, wherein it was held that Tamil Christians of Chittur Taluk are governed by Hindu Law. Therefore, applying the said principle, the lower court came A.S.593/2000 & con.cases. 7 to the conclusion that since the parties are residents of Chittur Taluk of Palakkad District, they are governed by Hindu Succession Act and passed a preliminary decree as already mentioned. 13. The question is whether the above finding is correct. 14. If as a matter of fact it is found that the parties are governed by Hindu Mithakshara Law, the appeal is only to be dismissed. But, if on the other hand, it is held that the parties are governed by Indian Succession Act, necessarily the appeal will have to be allowed and the matter will have to be remanded to the trial court for redetermination of shares and passing of a preliminary decree for partition. 15. Learned counsel appearing for the appellants in A.S. 593 of 2000 contended that the court below has not adverted to the material aspects in the case and has simply accepted Ext.A6, which is the certified copy of the judgment in C.R.P. 728 of 1961, wherein it is held that Tamil Christians A.S.593/2000 & con.cases. 8 of Chittur Taluk are governed by Hindu Mithakshara Law. According to learned counsel, it is only a general statement and cannot be applied to the present case. That case related to Tamil Vaniya Christians and is not applicable to Tamil Vellala Christians. These are two different and distinct communities having different sets of law. It could be said, according to learned counsel, that as far as Vaniya Christians are concerned, the law is settled. But that is not sufficient for the plaintiffs in O.S.214 of 1986 to succeed. They have to go further and show that Vellala and Vaniya are one and the same or that they follow identical custom. In the case on hand, the plaintiffs are bound to prove the custom and establish the same. It is not a matter for presumption. Further, learned counsel drew the attention of this court to the fact that in the proceedings before the Taluk Land Board relating to ceiling case of the family, the stand taken by the family was that they are governed by the Indian Succession Act and that was accepted. They disputed that they were governed by the Hindu Mithakshara Law. A.S.593/2000 & con.cases. 9 Plaintiffs and defendants 1 to 3 were parties before the Taluk Land Board. When the finding of the Taluk Land Board was challenged before this court by the first defendant in C.R.P. 751 of 1977, it was held that the parties are governed by Indian Succession Act. The petitioner before this court in C.R.P.751 of 1977 had taken the definite stand that they are governed by the Indian Succession Act and that sisters are also entitled to shares in the property. That was accepted by this court. Having held themselves out as persons covered by the Indian Succession Act, learned counsel pointed out that now they cannot turn round and say that they are governed by Hindu Mithakshara Law, so as to suit their convenience. Accordingly, it is contended that the finding of the court below that the parties are governed by Hindu Mithakshara Law cannot be sustained. 16. Learned counsel appearing for the contesting respondents on the other hand pointed out that in view of the decision evidenced by Ext.A6, the parties are governed by Hindu Mithakshara Law and the order in C.R.P.751 of A.S.593/2000 & con.cases. 10 1977 is of no consequence. It was pointed out that the decision of the Division Bench of this court evidenced by Ext.A6 was not brought to the notice of the court below while considering C.R.P. 751 of 1977 and therefore the latter can be treated as per incuriam. It was also contended that the plaintiffs and defendants 1 to 3 are not parties in C.R.P. 751 of 1977 and therefore the decision cannot be binding on them. It was also very vehemently contended before this court that there is nothing to show that individual notices were served on plaintiffs and third defendant in the Land Board proceedings and if that be so, it could not be said that the same is binding on them. In support of his contention learned counsel relied on the decisions reported in State of Kerala v. Ambika (2001(3) K.L.T. SN 101) and George v. State of Kerala (1987(1) K.L.T. SN 50). 17. Learned counsel for the contesting respondents placed reliance on the decisions reported in Anthonyswamy v. M.R.Chinaswamy Koundan (AIR 1970 SC 223), Chinaswamy Koundan v. Anthonyswamy A.S.593/2000 & con.cases. 11 (1960 K.L.T. 848), and Thomayar v. Mary (2004(1) K.L.T. 863) to contend for the position that the parties are governed by Hindu Mithakshara Law. 18. Reliance was also placed on the decision reported in Rukaiya Beegum v. Fazalur Rahman (AIR 1998 Patna 1), Dhuma Khan v. Commissioner of Consolidation (1997 AIHC 3048) and Mohammed Ibrahim v. Syed Muhammad Abbubakker (AIR 1976 Madras 84) for the proposition that even though the community in which the parties may belong as such is not governed by law relating to joint family system, still, it may be possible to apply the law in certain circumstances. 19. It was therefore contended that even assuming that Ext.A6 does not bind parties, there is enough and convincing evidence to show that the family was a joint family and enjoying a joint status and therefore the law applied by the lower court appears to be correct. 20. The first question that arises for consideration is whether the law laid down with reference to the Tamil A.S.593/2000 & con.cases. 12 Vaniya Christians residing in Chittur Taluk in Palakkad can be applied to Tamil Vellala community residing in the same Taluk. Neither side was able to bring any literature or decision to the notice of this court which would indicate that the law applicable to the two categories of Christians is one and the same. In all the decisions, except the decision referred to in Ext.A6 relating to Tamil Christian community, there is no reference to the Vellala community at all. In Ext.A6, it is seen stated that the Tamil Christians of Chittur Taluk are governed by the customary law, i.e., Hindu Mithakshara Law and not the Indian Succession Act. The question is whether the said principle can be applied to the facts of the present case. 21. Inspite of the best efforts made by me, I was not able to lay may hands to any precedents or literature which would indicate that the Tamil Vaniya and Vellala are either one and the same or they follow the same custom and practice. Counsel on either side were not able to bring anything to the notice of this court to establish the above A.S.593/2000 & con.cases. 13 fact. As far as the Tamil Vaniya Christians are concerned, probably it could be said that their law of succession stands determined and that is the Hindu Mithakshara Law. 22. In Castes and Tribes of Southern India by Edgar Thurston and K. Rangachari. Vol.VII at page 321 Vanniyan is described as follows: “Vanniyan.- A synonym of Palli. The name further occurs as a sub-division of Ambalakaran and Valaiyan. Some Maravans also are known as Vanniyan or Vannikutti. Ten (honey) Vanniyan is the name adopted by some Irulas in the South Arcot district.” In the same Book, at page 361 reference is seen made to Vellala community also. 23. The main thrust of the argument of the learned counsel for the appellant was that the plaintiffs as well as defendants 1 to 3 have held themselves out to be governed by Indian Succession Act and they derived benefits by doing so. A.S.593/2000 & con.cases. 14 24. Ext.X1 is the file of the Taluk Land Board relating to the ceiling case of the family consisting of the plaintiffs and defendants 1 to 3. It is seen from a perusal of Ext.X1 that notices were served on the plaintiffs as well as defendants 1 to 3 and the stand taken at the relevant time was that they were governed by the Indian Succession Act and not by the Hindu Mithakshara Law and therefore they are not liable to surrender any excess area. It may be noticed here that as per the draft statement served on the parties, they have to surrender 4 and odd acres of land. 25. It is true that in the decision reported in State of Kerala v. Ambika (2001(3) K.L.T. SN 101) it was held as follows: “R.129(ii) of the Land Reforms Ceiling Rules provides that where the draft statement relates to a family, notice in Form No.3 inviting objections to the draft statement ha to be served on the husband and wife or such of them as exists. As on the date on which the Taluk Land Board issued notice pursuant to the draft statement, the husband and wife were both alive and in view of A.S.593/2000 & con.cases. 15 the above provision notice was required to be served on both of them. Admittedly no notice was served on the present first respondent, though notice had been issued to the declarant Bharathan Nair. It is with reference to the said argument that the Apex court held in its order dt.26.10.1993 that she was entitled to be given notice. the court also took note of the fact that the order re-opening the case had become final. It is hence no longer open to the Sate now to contend that he re-opening of the case pursuant to the application filed under s.85(8) is not valid in the circumstances. It is one thing to challenge the order re-opening the case and yet another to challenge the final order pursuant to the re-opening. The present revision is filed against the latter order and not against the former. In the circumstances and in view of the purport of the order of the Apex Court, I am of the view that it is no longer open to the State to challenge the aspect of re-opening of the case under S.85(8) of the KLR Act. The contentions considered by he Taluk Land Board in the impugned order were based on objections to the draft statement filed by the first respondent on 31.8.1981. As already A.S.593/2000 & con.cases. 16 mentioned, she had a right to raise contentions based on the notice served on her and she is not bound by the claim statement given by her husband. If follows that she is entitled to raise contentions with regard to exemptions under various heads.” 26. In the decision reported in George v. State of Kerala (1987(1) K.L.T. SN 50) it was held as follows: “A purchase certificate is not conclusive as against a person to whom individual notice has not been issued before passing such order directing issuance of the purchase certificate.” A reference to the ceiling rules will be appropriate at this stage. Rule 12 reads as follows: “12. Service of draft statement on persons interested.-(1) The draft statement prepared under Rule 10, together with a notice in Form No.3 inviting objections to the draft statement, shall be served:- (i) where the draft statement relates to an adult unmarried person, on such person or, where such person is a lunatic, idiot a person subject to any like disability, on the guardian, manager or A.S.593/2000 & con.cases. 17 other persons in charge of such person or of the property of such person; (ii) where the draft statement relates to a family, on the husband and wife or such of them as exists or, where the family, consists of only minors or where both the husband and wife are lunatics or idiots or persons subject to any like disability, on the guardian, manager or other person in charge of such minor or such husband and wife or their property' (iii) where the draft statement relates to any other person, on the person competent to file a statement under sub-section (2) of Section 85 or under sub-section (2) of Section 85A on behalf of that other person. (2) The draft statement together with the notice referred to in sub-rule 91) shall also be served on all other persons, so far as may be known, who have or are likely to have any claim to, or interest in the ownership or possession or both of the lands indicated in such draft statement as lands to be surrendered. (3) Where in any case Taluk Land Board is of opinion that service of notice under sub-rule (2) is not sufficient or effective or that that it is not A.S.593/2000 & con.cases. 18 practicable to give notice under that sub-rule, it may cause to be published a public notice in Form No.4 in two daily newspapers having wide circulation in the area in which the lands to which the draft statement referred to in sub-rule (1) relates are situate.” 27. There can be no dispute regarding the fact that individual notices will have to be served on the persons against whom proceedings are sought to be taken. It was ultimately contended on behalf of the respondents in these appeals that even assuming that the first defendant was a party to the Taluk Land Board proceedings, there is no notice as far as the plaintiffs are concerned and therefore any order passed by the Taluk Land Board or this court in C.R.P. cannot bind them. 28. The question that is to be determined is whether the plaintiffs and defendants 1 to 3 were parties to the Taluk Land Board proceedings. A perusal of Ext.X1 file show that the plaintiffs and defendants 1 to 3 were parties A.S.593/2000 & con.cases. 19 to the proceedings. It is seen from the file that initially the notice could not be served on all the interested persons. But in the order dated 30.9.1976 at page 53 of Ext.X1 file, it is clearly stated that notice has been served on all the interested persons. A reference to the said order is sufficient to show that the parties are not governed by the Hindu Mithakshara Law. 29. A perusal of the proceedings before the Taluk Land Board would show that the plaintiffs, the first defendant and the brother of the first defendant were parties to the proceedings as could be seen from page 35 of Ext.X1 file. Draft statement was served on them and notice was served on all the interested persons. As per the draft statement, excluding the two sisters of the first defendant, on the basis that the family can have only 19 and odd acres, family was directed to surrender 4 and odd acres. 30. It is interesting to note that objections were filed before the Taluk Land Board by the first defendant and his brother. Others interested in the proceedings, that is, A.S.593/2000 & con.cases. 20 the plaintiffs and defendants 2 and 3 in the present suit, though served with notice, did not choose to file an objection. Page 43 of Ext.X1 file contains the objection filed by the first defendant and his brother. In the objection filed by them, it is clearly stated that they are governed by the Indian Succession Act and the two sisters of defendant No. 1 are entitled to shares in the property. If that be so, according to them, since