IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH WEDNESDAY, THE 9TH SEPTEMBER 2009 / 18TH BHADRA 1931 SA.No. 704 of 1995() -------------------- AS.83/1989 of I ADDL. DISTRICT COURT, KOLLAM OS.167/1985 of PRINCIPAL MUNSIFF COURT, KOLLAM .................... APPELLANT(S)/APPELLANT/PLAINTIFF: -------------- M.MOHANAN PILLAI, S/O.MADHAVAN PILLAI, RESIDING AT M.P.MANDIRAM, KALAKKODU CHERRY, POOTHAKULAM VILLAGE, KOLLAM. BY ADV. SRI.B.SURESH KUMAR RESPONDENT(S)/RESPONDENTS/DEFENDANTS: --------------- 1. SMT. SUMATHY AMMA, D/O.KUNJI PILLAI AMMA, ANANDAVILASATHU VEEDU, ADICHANALLOOR CHERRY, ADICHANALLOOR VILLAGE, KOLLAM. 2. B.SANTHAMMA AMMA, D/O.BHAVANI AMMA,RESIDING AT LETHIKAVILASOM VEEDU FROM PLAVILA VEEDU, KUNDUMON CHERRY, ADICHANALLOOR VILLAGE. (*)3. K.NARAYANA PILLAI, NEPHEW OF KRISHNA PILLAI, RESIDING AT PLAVILA VEEDU, OF -DO- -DO- (DIED AND LRS RECORDED) 4. SMT.BHAVANI AMMA W/O.NARAYANA PILLAI OF -DO- -DO- 5. K.KUTTAN PILLAI, S/O.KESAVAN PILLAI OF -DO- -DO- 6. K.RAJEEVAN PILLAI, S/O.KUTTAN PILLAI OF -DO- 7. K.SURESH BABU S/O.KUTTAN PILLAI OF -DO- (*)RESPONDENTS 1, 2 AND 4 TO 7 ARE RECORDED AS THE LEGAL HEIRS OF THE DECEASED THIRD RESPONDENT AS PER SEPARATE ORDER DATED 15.11.2005 (ON MEMO DATED 9.11.2005) ADV. SRI.P.G.PARAMESWARA PANICKER, SENIOR ADVOCATE FOR R4, R5 AND R6 ADV. SHRI P.GOPAL THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 09/09/2009, ALONG WITH SA NO. 847 OF 1997 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- S.A.Nos.704 of 1995 and 847 of 1997 -------------------------------------- Dated this the 9th day of September, 2009. JUDGMENT The substantial question of law framed for a decision in these appeals is whether the customary law applicable to succession to the property of a female Hindu who was governed by the Travancore Nair Act (Regulation II of 1100) and domiciled in the erstwhile Travancore area is Makkathayam system or Marumakkathayam system so that, it is Section 15 or Section 17 of the Hindu Succession Act, 1956 (for short, “the Act”) that would apply. These Second Appeals arise from separate judgments of the first appellate court against separate judgments of the trial court but as the same are between the same parties and as the question of law framed in both the appeals is the same, these appeals are being disposed of by this common judgment. 2. Short facts necessary for the question of law framed are: Lathika, daughter of plaintiff in O.S.No.357 of 1985 (in S.A.No.847 of 1995) married Mohanan Pillai on 16.9.1979. During the time of their wedlock, herself and Mohanan Pillai acquired in their joint names 10.75 cents and a building in Sy.No.3852 of Poothakulam Village as per Ext.B1, assignment deed dated 4.1.1982 (copy of which is marked as Ext.A1). Lathika died on 3.10.1982 without issues and intestate. It is not disputed that after the death of Lathika, Mohanan SA Nos.704/1995 & 847/1997 2 Pillai married Defendant No.2 in O.S.No.357 of 1985. Defendant Nos.3 to 5 in that suit are the sons of the plaintiff. Plaintiff claimed that the entire suit property was acquired by Lathika though in the joint names of herself and her husband, Mohanan Pillai utilizing the funds raised by sale of certain items of properties belonging to her, her gold ornaments and a sum of Rs.4,000/- given to her by her parents. Plaintiff claimed that on the death of Lathika, entire suit property devolved on her (mother), by virtue of Section 17 of the Act. She therefore prayed for a declaration of title in her favour and recovery of possession of the suit property with mesne profits. Mohanan Pillai (defendant No.1) and his second wife (defendant No.2) resisted the suit contending that the properties were acquired with the funds of defendant No.1 and hence it absolutely belonged to him. Further contention is that at any rate, half share of Lathika, his deceased wife devolved on him by virtue of Section 15 of the Act. Learned Munsiff found that the parties have not proved their respective contention as to the source of funds for purchase of property and hence by virtue of Section 45 (2) of the Transfer of Property Act it must be taken as joint acquisition by Lathika and her husband (defendant No.1, Mohanan Pillai). It was also found that it is not Section 15 but Section 17 of the Act that applied and hence half share of Lathika devolved on plaintiff, her mother. Accordingly she was given a preliminary decree for partition of the suit properties with a reservation that so SA Nos.704/1995 & 847/1997 3 far possible the house situated in the property will be given to defendant No.1 wherein admittedly he is residing. Defendant Nos.1 and 2 preferred appeal as A.S.No.76 of 1992 while plaintiff, aggrieved by the finding regarding manner of acquisition of the property preferred a cross objection. Learned Additional District Judge concurred with the findings entered by learned Munsiff in all respects and dismissed the appeal and cross objection. S.A.No.704 of 1995 is brought from the judgment and decree of learned District Judge in A.S.No.83 of 1989 confirming judgment and decree in O.S.No.167 of 1985. That was a suit filed by Mohanan Pillai (defendant No.1 in O.S.No.357 of 1985) against the mother of Lathika (plaintiff in O.S.No.357 of 1985) and others for declaration of his title over the suit property, 42 cents and for recovery of possession with mesne profits. There was also a prayer for declaration that the documents executed by the mother of Lathika and others in favour of defendant No.7 in that case are void. There also Mohanan Pillai, plaintiff therein claimed that the property belonged to Lathika and that on the death of Lathika he succeeded to the property by virtue of Section 15 of the Act. Learned Munsiff negatived that contention and found that Section 17 of the Act applied and hence defendant No.2(in O.S.NO.167 of 1985), mother of Lathika is the absolute owner in possession of the property. Consequently that suit was dismissed. Learned Additional District Judge concurred with the dismissal of the suit. That judgment SA Nos.704/1995 & 847/1997 4 and decree are under challenge in S.A.No.704 of 1995. 3. So far as finding in O.S.No.357 of 1985 concerning the manner of acquisition of the suit property therein as per Ext.B1 by Lathika and her husband (defendant No.1, Mohanan Pillai) is concerned, courts below found that there is no acceptable evidence to support the contention of either as to the source of consideration and hence Section 45(2) of the Transfer of Property Act should apply. Though mother of Lathika had filed cross objection against that finding in A.S.No.76 of 1992 and that cross objection has been dismissed, there is no further challenge to that finding at her instance. No argument is advanced before me by learned counsel for defendant No.1, Mohanan Pillai so far as the finding against him is concerned that half of the sale consideration flowed from his wife, Lathika. The finding regarding joint acquisition is entered by the courts below on a proper appreciation of evidence on record. No substantial question of law is involved in that regard. 4. What remained for consideration is only whether it is Section 15 or Section 17 of the Act that should apply in the matter of succession to the estate of Lathika who died intestate. Learned counsel for defendant No.1 (in O.S.No.357 of 1985) Mohanan Pillai contended that the general rules of succession under Section 15 of the Act should apply as per which Mohanan Pillai (defendant No.1), husband of Lathika is the only class-I heir (as they had SA Nos.704/1995 & 847/1997 5 no issues) and he is entitled to succeed to the property of deceased Lathika. Learned counsel contended that in view of the Joint Hindu Family System (Abolition) Act (for short, “the Abolition Act”) question of application of Section 17 of the Act after the enactment of the Abolition Act did not arise. Further contention is that apart from pleading that the parties are Nairs domiciled in Kollam District (erstwhile Travancore area) and following Marumakkathayam law of succession plaintiff in O.S.No.357 of 1985 has not adduced any evidence that the parties had been following Marumakkathayam law of succession. There cannot be any rule that Nairs domiciled in the erstwhile Travancore area follow Marumakkathayam law of succession and hence Section 17 of the Act would apply. Learned counsel has placed reliance on the decision of the Supreme Court in Narayanan Rajendran v. Lekshmy Sarojini [(2009) 5 SCC 264]. Learned counsel contended that trial court as well as first appellate court proceeded on the assumption that the parties being Nairs domiciled in the erstwhile Travancore area it is not necessary that there should be proof that they followed Marumakkathayam law of succession. In response it is contended by learned senior counsel for plaintiff in O.S.No.357 of 1985 and the defendants in O.S.No.167 of 1985 that the law on the point is settled by the decision of the Full Bench of this Court in C.Kamalamma v. Narayana Pillai [1993 (1) SA Nos.704/1995 & 847/1997 6 KLT 174]. Though, the Travancore Nair Act (Regulation II of 1100) has been repealed by the Abolition Act, that Act has not repealed Section 17 of the Act. According to the learned senior counsel unlike in the case of Ezhavas governed by the Travancore Ezhava Act (Regulation III of 1100) who may or may not be following the Makkathayam law of succession. Nairs domiciled in the erstwhile Travancore area follow marumakkathayam law of succession. Learned senior counsel contends that Nairs who were governed by the Travancore Nair Act, squarely came under Section 17 of the Act in view of Section 3(h) of that Act. 5. The Supreme Court in Narayanan Rajendran's case referred supra held that the mere fact of domicile at a particular place shall not govern the application of customary law of succession. The customary law applicable cannot be decided merely based on the yardstick of place of domicile, it was held. In that case trial court as well as first appellate court concurrently found that plaintiffs had failed to prove that property was sub tharwad property or that parties are governed by the customary Marumakkatham law and therefore, held that defendant No.1 had exclusive right and possession over the suit property. High Court in Second Appeal re-appreciated the evidence, reversed the concurrent finding of the courts below and held that since parties were residing in Kollam District and the suit property is also situated in that district, it was sub tharwad property and parties were governed by Ezhava Marumakkathayam SA Nos.704/1995 & 847/1997 7 customary law. That finding was reversed by the Supreme Court holding that the finding of the High Court is without any basis and is unsustainable in law since the customary laws cannot be applied on the yardstick of place of residence alone. 6. A precedent has to be understood on the facts and circumstances on which it was laid down. A case is authority for what it actually decides. The Supreme Court held in Ambica Quarry Works v. State of Gujarat [(1987) 1 SCC 213], “………………… the ratio or any decision must be understood in the background of the facts of that case. It has been said long time ago that a case is only an authority for what it actually decides, and not what logically follows from it........................” Again in Bhavnagar University v. Palitana Sugal Mills (P) [(2003) 2 SCC 111] the Supreme Court said that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision. Per Lord Denning (as quoted in Bank of India v. K.Mohan Das - [(2009) 5 SCC 313], “Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect. In deciding such cases, one should avoid the temptation to decide cases (as said SA Nos.704/1995 & 847/1997 8 by Cardozo) by matching the colour of one case against the colour of another. To decide, therefore, on which side of the line a case falls, the broad resemblances to another case is not at all decisive.” Before applying the decision in Narayanan Rajendran's case the factual situation in the case has to be understood. The appeal before the Supreme Court arose from Lekshmy Sarojini v. Narayani Lekshmi [2000 (2) KLT 732] where the question raised was whether parties who admittedly were governed by the Travancore Ezhava Act (Regulation III of 1100) were following Makkathayam or Marumakkathayam law of succession. Learned Single Judge of this Court held that since parties were domiciled in Kollam district (in erstwhile Travancore area) they should be taken as following Marumakkathayam law of succession which the Supreme Court found against. To understand that contention it is necessary to refer to the provisions of the Travancore Ezhava Act (Regulation III of 1100). Sub-section (2) of Section 1 of the Travancore Ezhava Act states, “It shall apply to all Ezhavas domiciled in Travancore other than those who follow Makkathayam, and shall also apply to such Ezhavas, whether domiciled or not, as have or shall have marital relation with Ezhavas domiciled in Travancore.” (emphasis supplied) That provision contemplated or recognized Ezhavas domiciled in Travancore SA Nos.704/1995 & 847/1997 9 area or other places referred to therein following Makkathayam or Marumakkathayam law of succession. Hence mere place of residence could not govern the customary law of succession - whether it is Makkathayam or Marumakkathayam that applied to the person concerned. Unlike Section 1(2) of the Travancore Ezhava Act quoted above, Section 2(1) of the Travancore Nair Act (Regulation II of 1100) reads, “It shall apply to all Nayars domiciled in Travancore, and to such Nayars not so domiciled and non-Nayars, whether so domiciled or not, as have, or shall have, marital relation with Nayars domiciled in Travancore.” (emphasis supplied) Section 2(1) of the Travancore Nair Act does not contemplate or recognize a Nair domiciled in the erstwhile Travancore area following any customary law other than Marumakkathayam law in the matter of succession. Therefore there is no scope for a contention that Nairs domiciled in the said area follow any other customary law in the matter of succession. Hence the decision in Narayanan Rajendran's case cannot be applied to the facts of these cases. 7. Section 15 of the Act reads, “General rules of succession in the case of female Hindus.- (1) The property of a female Hindu dying intestate shall devolve according to the rules set out in section 16,- SA Nos.704/1995 & 847/1997 10 (a) firstly, upon the sons and daughters (including the children of any pre-deceased son or daughter) and the husband; (b) secondly, upon the heirs of the husband; (c) thirdly, upon the mother and father; (d) fourthly, upon the heirs of the father; and (e) lastly, upon the heirs of the mother. (2) Notwithstanding anything contained in sub- section (1),- (a) any property inherited by a female Hindu from her father or mother shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre-deceased son or daughter) not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of the father; and (b) any property inherited by a female Hindu from her husband or from her father-in-law shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre-deceased son or daughter) not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of the husband.” The above is the general rule of succession in the case of a female Hindu. Section 17 of the Act provides special provisions respecting persons governed by marumakkathayam and aliyasantana laws. It reads, SA Nos.704/1995 & 847/1997 11 “The provisions of sections 8, 10, 15 and 23 shall have effect in relation to persons who would have been governed by the marumakkattayam law or aliyasantana law if this Act had not been passed as if- (i) for sub-clauses (c) and (d) of section 8, the following had been substituted, namely:- “(c) thirdly, if there is no heir of any of the two classes, then upon his relatives, whether agnates or cognates.”, (ii) for clauses (a) to (e) of sub-section (1) of section 15, the following had been substituted, namely:- “(a) firstly, upon the sons and daughters (including the children of any predeceased son or daughter) and the mother; (b) secondly, upon the father and the husband; (c) thirdly, upon the heirs of the mother; (d) fourthly, upon the heirs of the father; and (e) lastly, upon the heirs of the husband.”, (iii) clause (a) of sub-section (2) of section 15 had been omitted; (iv) section 23 had been omitted.” It is not disputed by the contesting defendant No.1 in O.S.No.357 of 1985 also that the parties are governed by the Travancore Nair Act (Regulation II of 1100). His only contention is that there is no rule that such persons should follow only Marumakkathayam law of succession which, with reference to Section 1(2) of the said Act, I am unable to accept. Section 3(h) of the Act (Hindu Succession Act) SA Nos.704/1995 & 847/1997 12 defines “Marumakkathayam law” as the system of law applicable to persons - “who, if this Act had not been passed, would have been governed by the Madras Marumakkattayam Act, 1932 (Madras Act XXII of 1933); the Travancore Nayar Act (II of 1100K); the Travancore Ezhava Act (III of 1100K); the (VII of 1108K) Travancore Nanjinad Vellala Act (IV of 1101K); the Travancore Kshatriya Act (VII of 1108K); the Travancore Krishnanvaka Marumakkathayee Act (VII of 1115K); the Cochin Marumakkathayam Act (XXXIII of 1113K); or the Cochin Nayar Act (XXIX of 1113K); with respect to the matters for which provision is made in this Act.” Thus, as per that definition those who were governed by the Travancore Nair Act (Regulation II of 1100) come under the definition of Section 3(h) of the Act and hence it is the special provision under Section 17 and not Section 15 of the Act that would apply in the matter of succession. Section 7 of the Abolition Act does not interfere with the mode of succession stated in Section 17 of the Act. The Full Bench of this Court in Chellamma Kamalamma's case (1993(1) KLT 174) has held that the Abolition Act does not make Section 17 of the Act inoperative notwithstanding repeal of the Travancore Nair Act. At page 178 of the decision the category of persons to whom Section 17 of the Act applied has been enumerated. Clause (iv) refers to persons “born on or after 18.6.1956 when the Hindu SA Nos.704/1995 & 847/1997 13 Succession Act, 1956 came into force but before 1.12.1976 and who died on or after 1.12.1976 when the Kerala Joint Hindu Family System (Abolition) Act, 1975 came into force.” In Ext.A1 dated 04.01.1982 (in O.S.No.357 of 1985) the age of Lathika is stated as 22 years in which case she must have been born in the year 1960. In Ext.A2 dated 04.10.1979 (in O.S.No.167 of 1985) her age is given as 22 years. Even then, she must have been born in the year 1957. It is not disputed that Lathika died after 1.12.1976. Therefore Clause (iv) enumerated in page 178 of the above decision should apply if other circumstances agreed with. 8. Learned counsel for defendant No.1 in O.S.No.357 of 1985 has brought to my notice the affidavit filed by the plaintiff in that suit in support of an application dated 01.05.1985 where, while describing herself the word “makkavazhi” is used. According to the learned counsel that description would indicate that the parties were governed by the Makkathayam law. From that stray statement in the description in the affidavit I am unable to accept that contention in the light of Section 1(2) of the Tranvancore Nair Act (Regulation II of 1100)which I have stated above. 9. Learned counsel made a request that the cases be remitted to the trial court for further evidence in the matter of customary law of succession that was being followed by the parties. Learned counsel submitted that documents SA Nos.704/1995 & 847/1997 14 which would clinchingly show that the parties were following Makkathayam law of succession were produced by defendant No.1 in O.S.No.357 of 1985 in the first appellate court but those documents are not even referred to. In answer to a querry by me, learned counsel was fair enough to concede that those documents were not produced along with an application under Order XLI Rule 27 of the Code of Civil Procedure (for short, “the Code”). Mere production of documents without an application under Order XLI Rule 27 of the Code does not require the appellate court either to look into the documents or to receive the same as additional evidence. Therefore, there is nothing illegal in the appellate court refusing to consider those documents. 10. Then the next question is whether remand as requested by the learned counsel for defendant No.1 in O.S.No.357 of 1985 is warranted for proving customary law of succession parties according to learned counsel, were following. I referred to Section 1(2) of the Travancore Nair Act (Regulation II of 1100) which dealt with the law applicable to the parties hereto, unlike Section 1 (2) of the Travancore Ezhava Act (Regulation III of 1100) where the provision recongnized or contemplated Ezhavas following Makkathayam or Marumakkatyayam law of succession. That apart learned senior counsel for plaintiff in O.S.No.357 of 1985 has referred to me the copy of documents of partition produced by defendant No.1 in the first appellate court where also SA Nos.704/1995 & 847/1997 15 there is reference to partition being effected as per the law as it stood then. Learned senior counsel with reference to the copy of partition deed No.2270 of 1102 produced by the plaintiff in O.S.No.167 of 1985 (defendant No.1 in O.S.No.357 of 1985) that it is stated therein that the properties belonging to the tharawad were being partitioned in accordance with the law in force then which according to the learned senior counsel refers to the Travancore Nair Act which came into force in 1100 (document being of the year 1102). Learned senior counsel has also argued from yet another partition deed (document No.3091 of 1110 produced in O.S.No.167 of 1985) where it is stated that partition is being effected as per provisions of the Nair Regulation which according to the learned counsel is the Travancore Nair Act (Regulation II of 1100). In the circumstances a remand as requested by learned counsel for defendant No.1 in O.S.No.357 of 1985 (plaintiff in O.S.No.167 of 1985) is not called for. 11. The discussion made above leads me to the conclusion that the customary law applicable to succession to the property of a female Hindu who was governed by the Travancore Nair Act (Regulation II of 1100) and who was domiciled in the erstwhile Travancore area is Marumakkathayam system and hence the special mode of succession prescribed under Section 17 of the High Succession Act, 1956 would apply. The substantial question of law framed is answered accordingly. It follows that mother of Lathika has inherited the suit SA Nos.704/1995 & 847/1997 16 property in O.S.No.167 of 1985 and the half share of Lathika in the suit property in O.S.No.357 of 1985. As such the judgments and decrees under challenge call for no interference. Second Appeals fail and are accordingly dismissed. No costs. THOMAS P.JOSEPH, Judge. cks SA Nos.704/1995 & 847/1997 17 Thomas P.Joseph, J. S.A.Nos.704 of 1995 & 847 of 1995 JUDGMENT 9th September, 2009.