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

1. This is an appeal on a certificate by the High Court of Kerala against its judgment and decree dated September 10, 1957. The suit out of which this appeal arises, was filed by the appellant Kunju Kesavan to redeem an otti created by one Bhagavathi Parameswaran in favour of one Krishnan Marthandan on 5-5-1091 M. E., for 3500 fanams. Subsequently, Krishnan Marthandan created some chittoti. Bhagavathi Parameswaran made a gift of the property to his wife Bhagavathi Valliyamma on 9-3-1103 M. E., by Exh. III. Bhagavathi Valli died on 4-11-1105 M. E. She had an only son Parameswaran Sivaraman who was married to Paravathi Meenakshi and had a son named Vasudevan. Sivaraman, according to the plaintiff, left Travancorre in 1096 M. E., and both sides have taken it for granted that he died thereafter. Meenakshi and Vasudevan, claiming to be the heirs, jointly sold the jenmom rights on 12-4-1123 M. E., to the appellant Kunju Kesavan, and he brought the present suit for redemption of the otti, offering to pay 3500 fanams in equivalent money and for improvements, if any, as determined by the Court. The suit was valued at 3500 fanams (about Rs. 500/-) which was the amount of the otti and the claim was for redemption of the otti and possession of the fields from the defendants who were in possession. The suit was resisted by the first defendant (respondent No. 1). Defendants 2 and 3 (respondents 2 and 3) filed a written statement, but do not appear to have taken much interest thereafter.2. The first respondent admitted some of these facts. He, however, averred that the document executed by Bhagavathi Parameswaran was not meant to be acted upon and Bhagavathi Valli and others never obtained any rights in the jenmom by Exh. III. He also contended that if Bhagavathi Valli got any rights, they were subject to a prior charge of the decree of the District Court, Trivandrum in O. S. No. 36 of 1100 M. E., and that in an auction-sale held on 3-4-1114 M. E., the jenmom rights were purchased by the decree-holders, who were the heirs of Krishnan Marthandan and from whom the first respondent obtained the sale-deed. He claimed to have thus obtained the jenmom rights as also the otti rights. The first respondent admitted that Sivaraman had left India in 1096 M. E., but denied the allegation that letters were received from him till 1100 M. E., or that till 1108 M. E., some information was being received about him. He asserted that right from 1096 M. E., none heard from him or of him, and submitted that Sivaraman must have died in 1096 M. E., or was not alive on 9-3-1103 M. E., the date of the gift to Bhagavathi Valli. According to him, on Bhagavathi Vallis death, her sister B. Narayani and Narayanis daughter Gouri were heirs and Meenakshi and Vasudevan were not her heirs and thus they never got the jenmom rights. Alternatively, he contended that even if they did obtain any jenmom rights, they lost them by the auction-sale in O. S. No. 36 of 1100 M. E., to the auction-purchaser. The first respondent, therefore, submitted that the transaction by sale in favour of the present appellant gave him no rights; on the other hand as the auction-purchasers were allowed to continue in possession as full owners with the consent express or implied or the acquiescence of Vasudevan and Meenakshi, full title resulted to him.3. The parties are Ezhavas, and in the absence of a special exemption under the Act, they would be governed by the Travancore Ezhava Act, 1100 (Act III of 1100) in the matter of succession and partition. One of the contentions tried in the case relates to this exemption, it being contended that Bhagavathi Valli had applied for exemption from part IV of the Act, and was thus governed not by its terms but by the general Marumakkathayam law.4. The two Courts below decreed the suit. The Temporary District Munsiff of Trivandrum held that the plaintiff was entitled to redeem the otti and valued the improvements at Rs. 1367-13-4. An appeal was filed by the present first respondent, and the other side cross-objected. The appeal and the cross-objection were dismissed. On further appeal by the first defendant, the High Court reversed the decision of the two 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 has now appealed to this Court on a certificate by the High Court.5. A preliminary objection has been raised about the competency of the certificate granted by the High Court. It is contended that the suit was valued at 3500 fanams, and this valuation governs the suit for the purpose of the certificate, and the amount or value being below the mark, the certificate was wrongly issued by the High Court and ought to be cancelled. Alternatively, it is contended that if the valuation was more than Rs. 10,000, the trial Court had no jurisdiction to try the suit.6. The present appeal is against the judgment of the High Court which reversed the decision of the Court below, and if the valuation was above the mark, the certificate was properly granted by the High Court since an appeal as of right would lie.

Reasoning: 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.