Case: Kunju Kesavan Vs. M.M. Philip &amp; Others

clear and there was doubt whether this Bhagavathi Valli, was exempted or not. 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 mis-trial sufficient to vitiate the decision. The plea was hardly needed in view of the fact that the plaintiff made the following plea in the replication :"The suit property was obtained as makkathayam property, by Bhagavathi Valli, under the Ezhava Act. And as per the provisions in the said Act, the said property was obtained exclusively by Vasudevan, subsequent to the death of the said Bhagavathi Valli and Sivaraman".and the notification was field to controvert his allegation. In our opinion, the subject of exemption was properly raised between the parties and considered in the High Court and the courts below. The High Court differed from the District Court with regard to the notification and held that Bhagavathi Valli was exempted from the operation of part IV of the Ezhava Act. We shall now consider whether the finding on this part of the case given by the District Judge or that given by the High Court is correct.18. Exh. II is a notification issued in 1102 M. E. It reads :"Whereas the undermentioned persons have applied to the Government, under Section 33 (1) (i) of the Travancore Ezhava Regulation, Act 3 of 1100 M. E., praying to exempt them from the provisions of Part IV of the said regulation, and whereas the Government have become convinced of the truth of their application, on making enquiries.The Government have exempted each of the following persons, from the provisions of Part IV of the Travancore Ezhava Regulation, Act 3 of 1100 M. E.Huzur, Trivandrum (By order)8th January 1927 K. GeorgeChief Secretary to Government.""S. No. Full name of the person. Address.170. Bhagavathi Valli belonging to the branch of Bhagavathi of Pinarummoottu tarwad Thottuvarambu Bungalow,Katakampalli Pakuthi, Trivandrum Taluk.171. Bhagavathi Narayani of-do- -do-172. Narayani Gouri of -do- -do-".... ..."83. Narayanan Lakshmanan of Pinarummoctu Vanchiyoor Pakuthi, Trivandrum".... ... ..."185. Bhagavathi Valli of -do- -do-186. Bhagavathi Narayani -do-."... ... ...It was contended by the answering respondent that Bhagavathi Valli at No. 170 is this Bhagavathi Valli. His witness, Mathen Kuruvila, an advocate, deposed that Bhagavathi Valli shown at No. 170 was Bhagavathi Valliamma and Bhagavathi Narrayani at No. 171 was her sister and Narayani Gouri at No. 172 was Narayanis daughter. The plaintiff admitted that he had seen Bhagavathi Narayani on several occasions, that their house was called Thottuvarambu that Pinnarummoottu Veedu was the name of the tarwad house, that Thottuvarambu Veedu is in Katakam Palli Pakuthi, and that he did not know whether Gouri was also residing in Thottuvarambu Veedu. Dr. Seyid Muhammed refers to a number of documents in which the address of Bhagavathi Valli was shown as Pinarummoottu Veedu in Vanchiyoor Pathirikari Muri. These documents were of the years 1928 to 1938. They are exhibits C, D, K, L, M, Q, and R. He contends that in all these documents except one (exh. Q), the address of Bhagavathi Valli or of her sister was shown as Pinarummoottu Veedu in Vanchiyoor Pathirikari Muri which is not the address shown in exh. II, and that Bhagavathi Valli at No. 170 was not this Bhagavathi Valli. In exh. Q, however, Bhagavathi Narayani, deposing in an earlier suit in 1110 M. E. (1935), gave her address as "Pinarummoottu Veedu in Vanchiyoor Pathirikari Muri and now in Thottuvaramba Bungalow in Katakampulli Pakuthi." And stated that she had an elder sister by name Bhagavathi Valli who was residing in the Veedu. It is, therefore, clear that the tarwad had two places of residence, one Veedu in Vanchiyoor Pathirikari Muri, and the other, a bungalow called Thottuvaramba in Katakampalli Pakuthi. One of these addresses is given in Exh. II. It would, therefore, follow that the address as given in Exh. II does not show that this was some other Bhagavathi Valli, Indeed, the points which identify the suit Bhagavathi Valli with the Bhagavathi Valli mentioned at No. 170 are numerous. The name is correctly described. It is also a fact that she belonged to the Bhagavathi Bhagavathi Branch. Further she was of Pinarummoottu tarwad. Then follow two other names, namely, Bhagavathi Narayani and Narayani Gouri who also belonged to the same branch and tarwad and who could be none other than her sister and her niece. Even the address is correct. It is, therefore, quite clear that the High Court was right in holding that the identity had been established. The observation of the learned District Judge that there were many Bhagavathi Vallis in the list is not borne out on the record of this case, because the only other Bhagavathi Valli mentioned at No. 185 may or may not be the same Bhagavathi Valli whose name is mentioned in conjunction with one Narayanan Lakshmanan of Pinarummootu, Vanchiyoor Pakuthi. Trivandrum. In the other notification, under which exemption from Part VII of the Act was notified, the branch of Bhagavathi Bhagavathi of Pinarummoottial tarwad was again shown to be at Thottuvaramba Bungalow in Katakampalli Pakuthi in Trivamdrum Taluk, while Pinarummoottil tarwad was shown as at Pathirikari Muri in Vanchiyoor Pakuthi in Trivandrum. This again proves that the tarwad had two houses which were occupied by different branches.19. We are satisfied that the exemption under the Act has been duly proved in this case. Since Bhagavathi Valli was not subject to Part IV of the Ezhava Act, it is obvious that under the pure Marumakkathayam law, Meenakshi and Vasudevan were not her heirs, but Bhagavathi Narayani and her daughter Gouri. Of these, Gouri Narayani joined in executing the document R in favour of the answering respondent, which was executed by the legal representatives of the original mortgagee. In our opinion, therefore, the High Court was right in holding that the present appellant was not entitled to redeem the otti, having never enjoyed the jenmom rights.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]17. We do not think that the plaintiff in the case was taken by surprise. The notification must have been filed with the written statement, because there is nothing to show that it was tendered subsequently after obtaining the orders of the court. The plaintiff was also cross-examined with respect to the address of Bhagavathi Valli, and the only witness examined on the side of the defendant deposed about the notification and was not cross-examined on this point. The plaintiff did not seek the permission of the court to lead evidence on this point. Nor did he object to the reception of this evidence. Even before the District Judge, the contention was not that the evidence was wrongly received without a proper plea and issue but that the notification was not clear and there was doubt whether this Bhagavathi Valli, was exempted or not. 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 mis-trial sufficient to vitiate thewas contended by the answering respondent that Bhagavathi Valli at No. 170 is this Bhagavathi Valli. His witness, Mathen Kuruvila, an advocate, deposed that Bhagavathi Valli shown at No. 170 was Bhagavathi Valliamma and Bhagavathi Narrayani at No. 171 was her sister and Narayani Gouri at No. 172 was Narayanis daughter. The plaintiff admitted that he had seen Bhagavathi Narayani on several occasions, that their house was called Thottuvarambu that Pinnarummoottu Veedu was the name of the tarwad house, that Thottuvarambu Veedu is in Katakam Palli Pakuthi, and that he did not know whether Gouri was also residing in Thottuvarambu Veedu. Dr. Seyid Muhammed refers to a number of documents in which the address of Bhagavathi Valli was shown as Pinarummoottu Veedu in Vanchiyoor Pathirikari Muri. These documents were of the years 1928 to 1938. They are exhibits C, D, K, L, M, Q, and R. He contends that in all these documents except one (exh. Q), the address of Bhagavathi Valli or of her sister was shown as Pinarummoottu Veedu in Vanchiyoor Pathirikari Muri which is not the address shown in exh. II, and that Bhagavathi Valli at No. 170 was not this Bhagavathi Valli. In exh. Q, however, Bhagavathi Narayani, deposing in an earlier suit in 1110 M. E. (1935), gave her address as "Pinarummoottu Veedu in Vanchiyoor Pathirikari Muri and now in Thottuvaramba Bungalow in Katakampulli Pakuthi." And stated that she had an elder sister by name Bhagavathi Valli who was residing in the Veedu. It is, therefore, clear that the tarwad had two places of residence, one Veedu in Vanchiyoor Pathirikari Muri, and the other, a bungalow called Thottuvaramba in Katakampalli Pakuthi. One of these addresses is given in Exh. II. It would, therefore, follow that the address as given in Exh. II does not show that this was some other Bhagavathi Valli, Indeed, the points which identify the suit Bhagavathi Valli with the Bhagavathi Valli mentioned at No. 170 are numerous. The name is correctly described. It is also a fact that she belonged to the Bhagavathi Bhagavathi Branch. Further she was of Pinarummoottu tarwad. Then follow two other names, namely, Bhagavathi Narayani and Narayani Gouri who also belonged to the same branch and tarwad and who could be none other than her sister and her niece. Even the address is correct. It is, therefore, quite clear that the High Court was right in holding that the identity had been established. The observation of the learned District Judge that there were many Bhagavathi Vallis in the list is not borne out on the record of this case, because the only other Bhagavathi Valli mentioned at No. 185 may or may not be the same Bhagavathi Valli whose name is mentioned in conjunction with one Narayanan Lakshmanan of Pinarummootu, Vanchiyoor Pakuthi. Trivandrum. In the other notification, under which exemption from Part VII of the Act was notified, the branch of Bhagavathi Bhagavathi of Pinarummoottial tarwad was again shown to be at Thottuvaramba Bungalow in Katakampalli Pakuthi in Trivamdrum Taluk, while Pinarummoottil tarwad was shown as at Pathirikari Muri in Vanchiyoor Pakuthi in Trivandrum. This again proves that the tarwad had two houses which were occupied by different branches.19. We are satisfied that the exemption under the Act has been duly proved in this case. Since Bhagavathi Valli was not subject to Part IV of the Ezhava Act, it is obvious that under the pure Marumakkathayam law, Meenakshi and Vasudevan were not her heirs, but Bhagavathi Narayani and her daughter Gouri. Of these, Gouri Narayani joined in executing the document R in favour of the answering respondent, which was executed by the legal representatives of the original mortgagee. In our opinion, therefore, the High Court was right in holding that the present appellant was not entitled to redeem the otti, having never enjoyed the jenmom rights.