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Second Appeal
S.A. No. 481 of 1996 - Govindan Nair Vs. Ramachandran Nair, 2013 (2) KLT SN 84 : 2013 (2) KHC 229
(2013) 293 KLR 176 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT:
THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN FRIDAY, THE 15TH DAY OF FEBRUARY 2013/26TH MAGHA 1934 SA.No. 481 of 1996 (G) ---------------------- AS.55/1993 of SUB COURT, QUILANDY OS.214/1990 of MUNSIFF COURT, KOYILANDY -------------- APPELLANT(S)/RESPONDENTS/DEFENDANTS 1, 2 AND 3 :- ----------------------------------------------------
1. C.M.GOVINDAN NAIR, S/O.CHATHU NAMBIAR, PENSIONER, RESIDING AT NARIKKOTT HOUSE, IRRINAGANNUR AMSOM DESOM, VATAKARA TALUK. (DIED. ONE OF THE LEGAL REPRESENTATIVE RECORDED).
2. M.RAJEEVAN, MEDICAL REPREENTATIVE, S/O.ADIYODI, RESIDING AT NARIKKOTT HOUSE, IRRINAGANNUR AMSOM DESOM, VATAKARA TALUK.
3. N.INDIRA, W/O.M.RAJEEVAN, RESIDING AT NARIKKOTT HOUSE, IRRINAGANNUR AMSOM DESOM, VATAKARA TALUK. 1ST APPELLANT DIED AND 3RD APPELLANT IS RECORDED AS ONE OF THE LEGAL REPRESENTATIVE OF DECEASED 1ST APPELLANT AS PER ORDER DTD.18.9.2009 IN MEMO BEARING C.F.5844/2009 DTD.18.9.2009.
BY ADVS.SRI.T.A.RAMADASAN (EXPIRED) SRI.A.K.ALEX SRI.CIBI THOMAS
RESPONDENT(S)/APPELLANTS/PLAINTIFFS. DEFENDANTS 4 AND 5 :- ------------------------------------------------------------- 1. M.RAMACHANDRAN NAIR, S/O.SANKARAN ADIYODI, RESIDING AT ORERI HOUSE, VIYYOOR AMSOM, MARALUR DESOM, QUILANDY TALUK.
2. M.PRABHAKARAN NAIR, S/O.SANKARAN ADIYODI, ADVOCATE, VATAKARA. (DIED) LR's IMPLEADED AS ADDL.R4 TO R7
3. M.SREEDHARAN NAIR, S/O.SANKARAN ADIYODI, PROFESSOR, CHELLANNUR COLLEGE, KOZHIKODE.
ADDL.4. C.KALLIANIKUTTY, W/O.LATE PRABHAKARAN NAIR, PRATHEEKSHA HOUSE, NEAR GOVERNMENT HOSPITAL, VADAKARA, KOZHIKODE.
ADDL.5. RAJITH, S/O.LATE PRABHAKARAN NAIR, PRATHEEKSHA HOUSE, NEAR GOVERNMENT HOSPITAL, VADAKARA, KOZHIKODE.
ADDL.6. SAJITH, S/O.LATE PRABHAKARAN NAIR, PRATHEEKSHA HOUSE, NEAR GOVERNMENT HOSPITAL, VADAKARA, KOZHIKODE.
ADDL.7. AJITH, S/O.LATE PRABHAKARAN NAIR, PRATHEEKSHA HOUSE, NEAR GOVERNMENT HOSPITAL, VADAKARA, KOZHIKODE.
ADDL. RESPONDENTS 4 TO 7 ARE IMPLEADED AS THE LEGAL HEIRS OF THE DECEASED 2ND RESPONDENT SUBJECT TO THE CONTENTIONS OF ADDITIONAL RESPONDENTS THAT R2 HAS ALREADY DISPOSED OF THE SUBJET MATTER OF THE SUIT IN FAVOUR OF R1 AS PER ORDER DT.18.9.2009 IN I.A.658/2007.
ADDL.8. RADHAMMA, W/O.GOVINDAN, NARIKOTTA HOUSE, IRINGANNUR P.O., THUNERI, KOZHIKODE DISTRICT - 673 516. (DIED. LRs RECORDED)
ADDL.9. MURALEEDHARAN, S/O.GOVINDAN, NARIKOTTA HOUSE, IRINGANNUR P.O., THUNERI, KOZHIKODE DISTRICT - 673 516.
ADDL.10. RAVIDAS, S/O.GOVINDAN, NARIKOTTA HOUSE, IRINGANNUR P.O., THUNERI, KOZHIKODE DISTRICT - 673 516.
ADDL.11. KRISHNADAS, S/O.GOVINDAN, NARIKOTTA HOUSE, IRINGANNUR P.O., THUNERI, KOZHIKODE DISTRICT - 673 516.
ADDL.12. USHA KUMARI, D/O.GOVINDAN, NARIKOTTA HOUSE, IRINGANNUR P.O., THUNERI, KOZHIKODE DISTRICT - 673 516.
ADDL.13. HARIDAS, S/O.GOVINDAN, "HARITHA" (CHEMATHOR), THOONERI P.O., NADAPURAM VIA, KOZHIKODE.
ADDL.RESPONDENTS 8 TO 13 ARE IMPLEADED AS PER ORDER IN I.A.NO.2198/2009 DTD.11.2.2013. ADDL.8TH RESPONDENT DIED AND APPELLANT NO.3 AND RESPONDENTS 9 TO 13 ARE RECORDED AS THE LEGAL REPRESENTATIVES OF DECEASED ADDL.8TH RESPONDENT AS PER ORDER DTD.11.2.2013 VIDE MEMO C.F.773/2013 DTD.29.1.2013.
BY ADV. SRI.N.L.KRISHNAMOORTHY SRI.K.LAKSHMINARAYANAN R9 TO 13 BY ADV. SRI.K.PRAVEEN KUMAR
THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 15-02-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: jvt
N.K.BALAKRISHNAN, J. -------------------------------- S. A. No.481 of 1996 ------------------------------ Dated this the 15th day of February 2013 Head Note:- Hindu Succession Act, 1956 – Section 22 - Claim for pre-emption - Once the share has been transferred to a stranger, the right of the other co-sharer under Sec.22 of the Act is lost, is palpably unsound. That would enable a sharer to clandestinely or secretly or with dubious design transfer his undivided share to a stranger and if that is permitted the very object of Sec.22 of the Act would get frustrated. J U D G M E N T This Second Appeal was filed by defendants 1 to 3. The first defendant died during the pendency of this appeal. 3rd appellant and respondents 8 to 13 are the legal representatives of the deceased first defendant. 8th respondent died subsequently. 3rd appellant and respondents 9 to 13 are the legal representatives of deceased 8th respondent. 2. The suit for declaration of right of pre-emption filed by the plaintiff was dismissed by the learned Munsiff. In the appeal, the learned Sub Judge reversed the finding entered by the trial court and granted a decree as prayed for by the plaintiff. 3. The gist of the plaintiff's case can be stated thus :- The plaint schedule property belonged to deceased Lakshmi Amma. She died. The plaintiff, D2, D4 and D5 are the legal representatives of deceased Lakshmi Amma. It was contended by both sides before the courts below that the husband of Lakshmi Amma is also one of the legal representatives. However, Sankaran Adiyodi, the father of the plaintiff and defendants 2, 4 and 5 died subsequently and as such it is not disputed that the plaint schedule property belonged to the plaintiff and defendants 2, 4 and 5 and as such, each of them had < share in the property. According to the plaintiff, all the other co-sharers had agreed to sell their respective undivided shares to the plaintiff. The 2nd defendant executed Ext.B1 sale deed in favour of D1. D1 is the father of the 3rd defendant. 3rd defendant is the wife of the 2nd defendant. The plaintiff contended that since he was one of the co-sharers and since the property was jointly held by the plaintiff and defendants 2, 4 and 5, the plaintiff was having a preferential right to get assignment of the share of the 2nd defendant by virtue of the provision contained in Sec.22 of the Hindu Succession Act. Hence, the suit was filed for enforcement of that right. 4. Defendants 1 to 3 filed joint written statement admitting the fact that the right over the property devolved upon four persons; the plaintiff and defendants 2, 4 and 5. It was admitted that Sankaran Adiyodi, the father of the plaintiff in fact wanted other sharers to sell their share to the 2nd defendant, who was the youngest son. The allegation made in the plaint that the 2nd defendant had given Rs.5,000/- out of Rs.10,000/-, which was fixed as value of his share was denied. The right of pre-emption claimed by the plaintiff was also denied. It was contended that the first defendant had effected repairs to the house spending more than Rs.15,000/-. The allegation that there was an agreement to sell the share was also denied. 5. Ext.B1 was marked before the trial court. No other evidence was adduced by the parties. The trial court found that the plaintiff did not mount the witness box to give evidence in support of the claim made in the plaint. It was also found that Sec.22 of the Hindu Succession Act is not applicable to the case on hand and thus the suit was dismissed. 6. The appellate court reversed the finding and concluded that the plaintiff is entitled to get a right of pre- emption and so, the plaintiff was directed to deposit Rs.12,000/- before the trial court and the 2nd defendant was directed to execute the sale deed within two months from the date of judgment. This Second Appeal is filed by defendants 2, 4 and 5 contending that the property in question is an agricultural land and so, Sec.22 of the Hindu Succession Act has no application. It is also contended that the plaintiff is not entitled to get any preferential right since Ext.B1 was already executed. Unless the said document is declared void and inoperative and unless the 2nd defendant is also directed to execute a deed of conveyance, no decree as granted by the lower appellate court can be sustained, it is further contended. 7. The substantial questions of law framed for consideration are :- (a) Whether the lower appellate court is justified in holding that the plaint schedule property is not an agricultural land ? (b) Has not the lower appellate court gone wrong in allowing the preferential claim put forward by the plaintiff under Sec.22 of the Hindu Succession Act ? (c) Was the lower appellate court justified in directing the 2nd defendant to execute the sale deed in favour of the plaintiff ? 8. Heard both sides. 9. It is vehemently argued by the learned counsel for the appellants that the lower appellate court failed to consider the fact that the plaint schedule property is only an agricultural land and so, Sec.22 of the Hindu Succession Act has no application. But the learned counsel for the respondent/plaintiff would point out the description of the plaint schedule property in the plaint that it is a residential compound. That is not properly controverted by the appellant. There is no evidence to hold that the property in question is an agricultural land. Therefore, the contention that the plaint schedule property is an agricultural land and so, Sec.22 has no application is devoid of any merit. 10. Admittedly after the death of Lakshmi Amma and Sankaran Adiyodi, the property devolved upon four persons; the plaintiff and defendants 2, 4 and 5, each having < share in the said property. It is also not disputed that as per Ext.B1 sale deed dated 12.9.1990, the 2nd defendant assigned his undivided < share to the first defendant. The consideration shown therein is Rs.12,000/-. 11. Learned counsel for the appellant submits that it is notorious that the sale deed does not often reflect the actual value/consideration paid by the vendee to the vendor and as such, the fact that in Ext.B1 the total consideration shown is Rs.12,000/- should not persuade the court to hold that the consideration for the said property at the relevant time was only Rs.12,000/-. 12. Learned counsel for the appellant would submit that a reading of the plaint would make it clear that the case actually projected by the plaintiff was to enforce the agreement entered into between the plaintiff and the 2nd defendant. It was stated in the plaint that the 2nd defendant had agreed to sell his share for Rs.10,000/- and that a sum of Rs.5,000/- was given as consideration on 26.8.1990. 13. It was contended that after the death of the plaintiff's father the first defendant who is the father-in-law of the second defendant persuaded the second defendant and thus got the deed of assignment in respect of the share of the second defendant assigned in favour of the Ist defendant on 12-09-1990 and that it was done with intent to defeat the right of the plaintiff. It is further contended that the plaintiff had sold his house believing the representation made by the defendants and other co-heirs that they will relinguish their right over their share in the plaint schedule property . It is also contended that none of the defendants are residing in the house situated in the plaint schedule property . 14. According to the defendants the attempt of the plaintiff is to oust the second defendant. The contention that the brothers of the second defendant had decided to release their shares to the plaintiff was denied. The contention that the plaintiff had paid Rs. 5,000/- to the second defendant for the purpose of assigning his share in favour plaintiff was also denied. 15. It is vehemently argued by the learned counsel for the appellant that the case that was projected by the plaintiff before the court below was that the 2nd defendant had agreed to sell his share of property to the plaintiff for a consideration of Rs. 10,000/- and that a sum of Rs. 5,000/- was already paid and that he was ready to pay the balance sum of Rs. 5,000/-. According to the appellant actually the case of the plaintiff was to get a decree for specific performance of the oral agreement but since that plea could not be substantiated the plaintiff came forward with a new case that he is entitled to get preferential right under Sec. 22 of the Hindu Succession Act. The contention that the claim made by the plaintiff was for specific performance of the agreement and that it was not the preferential claim under Sec. 22 that was projected is devoid of any merit. A reading of the entire plaint would make it clear that the plaintiff offered a sum of Rs. 10,000/- to the second defendant to sell his share of property because the plaintiff was entitled to pre-emption, to purchase the undivided 1/4 share of the second defendant. In other words, the contention that the preferential claim available to the plaintiff under Sec. 22 of the Act was not pressed into service before the trial Court is palpably unsound. 16. Now the crucial question that arises for consideration whether the plaintiff is entitled to sustain his claim for pre-emption and whether Ext.B1 executed by the second defendant in favour of the first defendant is to be treated as null and void and whether the first defendant has to be directed to execute the sale deed in respect of the plaint schedule property in favour of the plaintiff after receiving the valuable consideration. 17. Sri. Lakshmi Narayan, the learned counsel appearing for the plaintiff/respondent submits that the main object of Sec. 22 of the Hindu Succession Act is to prevent the heirs other than the transferor from being compelled to be in joint enjoyment of the property with stranger or other persons with whom they do not wish to associate themselves. Section 22 of the Act envisages the right of pre-emption of those cases where partition of the property is not complete. Such a right cannot be claimed where the property had already been partitioned. Here admittedly, the property was not partitioned. It is the undivided 1/4 share that was sold by the second defendant to his father- in-law the first defendant. If the parties had already entered into a partition the respective parties would have the authority to hold the respective shares independently and absolutely as their separate properties and so once partition takes place the application of Sec. 22 of the Act may not be available but so far as the case on hand is concerned the property remained in co-ownership and it is only one of the co-owners (the second defendant) who assigned his share to the first defendant 18. Sec.22 of the Hindu Succession Act, 1956 reads :- "Preferential right to acquire property in certain cases - (1) Where, after the commencement of this Act, an interest in any immovable property of an intestate, or in any business carried on by him or her, whether solely or in conjunction with others, devolves upon two or more heirs specified in class I of the Schedule, and any one of such heirs proposes to transfer his or her interest in the property or business, the other heirs shall have a preferential right to acquire the interest proposed to be transferred. (2) The consideration for which any interest in the property of the deceased may be transferred under this section shall, in the absence of any agreement between the parties, be determined by the court on application being made to if in this behalf, and if any person proposing to acquire the interest is not willing to acquire it for the consideration so determined, such person shall be liable to pay all costs of or incident to the application. (3) If there are two or more heirs specified in class I of the Schedule proposing to acquire any interest under this section, that heir who offers the highest consideration for the transfer shall be preferred. Explanation - In this section, "court" means the court within the limits of whose jurisdiction the immovable property is situate or the business is carried on, and includes any other court which the State government may, by notification in the Official Gazette, specify in this behalf." 19. The fact that Lakshmi Amma died intestate is not in dispute. It is also not disputed that the plaintiff and defendants 2, 4 and 5 are the heirs specified in class I of the Schedule to the Hindu Succession Act. It is the admitted case that 2nd defendant transferred his undivided share to his father-in-law (D1) as per Ext.B1 sale deed. One contention that was advanced by the learned counsel for the appellants is that before effecting transfer of the property by the 2nd defendant in favour of first defendant, the plaintiff should have filed a petition or suit before the court expressing his intention to purchase the share of the 2nd defendant. Once the share has been transferred to a stranger, the other co-sharers cannot exercise their preferential rights under Sec.22 of the Act, the learned counsel for the appellants submits. Unlike other pre- emption laws, Sec.22 of the Hindu Succession Act does not say when the preferential right or right of pre-emption can be exercised; whether, before the transfer of the shares or whether that right can be exercised after the transfer of the shares also, it is pointed out by the learned counsel. The plea that once the share has been transferred to a stranger, the right of the other co-sharer under Sec.22 of the Act is lost, is palpably unsound. That would enable a sharer to clandestinely or secretly or with dubious design transfer his undivided share to a stranger and if that is permitted the very object of Sec.22 of the Act would get frustrated. 20. The other contention that was vehemently advanced by the learned counsel for the appellants is that Ext.B1, the document executed by the 2nd defendant in favour of first defendant should have been got set aside, but no such prayer is there in the plaint. I cannot agree with that submission. The suit was filed for a declaration that Ext.B1 assignment deed dated 12.9.2000 executed by the 2nd defendant in favour of the first defendant is void and inoperative in view of the right of pre-emption available to the plaintiff. The consequential relief claimed seeking a direction to the 2nd defendant to execute a deed of conveyance to the plaintiff for a consideration as may be determined by the court and in case of his refusal such an assignment deed should be executed by the court in favour of the plaintiff would negative the plea raised by the appellants. What have been mentioned above would make it clear that the suit was properly laid and that there is a prayer to declare Ext.B1 null and void. Plaintiff's father died on 29.8.1990. Ext.B1 was executed within a few months from the date of death of plaintiff's father. That would also depict the dubious design of D2 in assigning his share in favour of his father-in-law, that too, under the pretext of salvaging the property as the 2nd defendant was stated to have incurred some debts. So far as the sharers to the property are concerned, the first defendant is a stranger. The very object of Sec.22 of the Act would be stultified if the first defendant is allowed to exercise his right over the property got assigned as per Ext.B1. There is evidence to show and is not seriously controverted also that the plaintiff is residing in the house situated in the plaint schedule property. There is also evidence to show that the plaintiff had shifted his residence to the house situated in the plaint schedule property after selling his another property. 21. It is submitted by the learned counsel for the appellants that the Apex Court in the decision in Radhakishan Laxminarayan Toshniwal v. Shridhar Ramchandra Alshi and others [AIR 1960 SC 1368] has held that the right of pre-emption is a weak right and is not looked upon with favour by courts and therefore, the courts could not go out of their way to help the pre-emptor. It was also held by the Apex Court in the very same decision :- "There are no equities in favour of a pre-emptor, whose sole object is to disturb a valid transaction by virtue of the rights created in him by statute. To defeat the law of pre- emption by any legitimate means is not fraud on the part of either the vendor or the vendee and a person is entitled to steer clear of the law of pre-emption by all lawful means." 22. Learned counsel for the respondent/plaintiff would submit that the suit has been filed only to enforce the right under Sec.22 of the Act and not on any equitable consideration and therefore, the respondents could not deny the right which the plaintiff is otherwise entitled to get, in the facts and circumstances of the case delineated earlier. 23. The decision of the Division Bench of Calcutta High Court in Arati Das v. Bharati Sarkar and Others [2009 KHC 6459] has also been referred to by the learned counsel for the respondents, where it was held :- "A distinguishing feature of S.22 of the Act is that whereas in case of pre-emption provided in the other Statutes, the right to apply for pre-emption generally accrues only on the registration of the deed of transfer, but in this provision, such right has been conferred upon the pre-emptor even before the actual transfer, if any of the heirs of Class-I proposes to transfer his undivided share. Another peculiar element present is that here, the value of the consideration of the proposed transfer should be decided by the Court unless otherwise agreed to by the parties, i.e. The transferor and the pre-emptor." It was held by the Division Bench in Arati Das's case that even if the transfer has taken place, the right of the pre- emptor under Sec.22 of the Act is not lost and that it would be absurd to suggest that the right conferred upon a heir as provided under sub section (1) of Sec.22 can be frustrated by merely completing the transfer without disclosing the intention of the transfer to the persons who have the right of pre-emption. 24. It is not the case of the appellants that the intention to transfer was intimated or disclosed to the plaintiff and that despite such intention or disclosure, the plaintiff did not come forward to exercise the right of pre- emption so as to contend that the plaintiff had waved his right. Therefore, the argument vehemently advanced by the appellants that since the 2nd defendant had already assigned his share as per Ext.B1, the plaintiff is not entitled to seek the relief of declaration that Ext.B1 is null and void is bereft of any merit. But, on the other hand, if the transfer has not been effected but on coming to know of the fact that one of the co-sharers proposes to transfer his share to a stranger then the other co-sharer should propose to exercise his right under Sec.22 of the Act it may be possible for him to file a suit before the court having jurisdiction under sub- section (2) of Sec.22 of the Act for enforcing his right under Sec.22(1) of the Act. Any way, those are not questions germane for consideration in this case. 25. It was held by the Division Bench of this Court in Valliyil Sreedevi Amma v. Subhadra Devi and others [AIR 1976 Kerala 19(1)] : "The object of sub-section (1) as we understand it is that in cases where by virtue of intestate succession under the Act any interest in immovable property has devolved upon two or more heirs specified in Class I of the Schedule and any one of such heirs proposes to transfer his interest in the property the other heirs should have a preferential right to acquire the interest which is so proposed to be transferred. The said intention of Parliament can be effectuated only if we consider the section as conferring an enforceable right on the heirs other than the one who proposes to transfer his interest. The Section confers on such co-heirs a preferential right to acquire the interest which is proposed to be transferred by the other co-heir. In case the proposed transfer is effected by one of the co- heirs in violation of the right conferred on his co-heirs by sub-s. (1) the latter cannot certainly be without a remedy because every legal right must necessarily carry with it a remedy for enforcing the same. The remedy of the non- alienating co-heirs, in such circumstances, will, in our opinion, be to seek the intervention of the Court to enable them to acquire the right which has been transferred away by the other co-heir in violation of sub-section (1) of Section 22. In as much as the section does not provide any special procedure for seeking the said remedy, the ordinary procedure for enforcement of any civil right has to be resorted to by the co-heirs who wish to enforce their rights under Section 22 (1); in other words the remedy is by way of a regular civil suit before the competent court. Where the properties have been already alienated in favour of strangers there is all the more reason why there should be a full and fair adjudication of the entire matter in a suit tried before a competent civil Court because various factual questions are bound to arise for determination in such a suit wherein the principal issue would be whether the transfer complained of was effected in violation of sub-section (1) of Section 22. The main purpose of such a suit instituted by the co-heir will necessarily be the enforcement of the right conferred by Section 22 (1) of the Act. The question of invalidity of the transfer effected by the other co-heir in favour of strangers becomes relevant in such an action as an incidental matter which has necessarily to be gone into for the purpose of determining whether the plaintiff is entitled to the relief sought by him against his co-heir in enforcement of the right conferred by Section 22 (1)." Here the suit was filed by the plaintiff to enforce his right under Sec.22(1) of the Act. The nature of the declaration and the consequential relief sought for by the plaintiff would make it indubitably clear that the suit is for enforcement of the right of pre-emption under Sec.22(1) of the Hindu Succession Act and to get Ext.B1 declared as null and void. 26. In the light of what have been stated above, I hold that the lower appellate court was perfectly justified in holding that the suit for enforcement of the right of pre- emption under Sec.22(1) of the Hindu Succession Act is perfectly maintainable and that the plaintiff is entitled to get the right of pre-emption enforced. 27. The only other objection that has been raised by the learned counsel for the respondents is that as per Sec.22 the consideration, for which the interest in the property of the deceased may be transferred, in the absence of any agreement between the parties be determined by the court. Here, the consideration was not fixed by the court but the court below directed the plaintiff to deposit Rs.12,000/- since that was the consideration shown in Ext.B1. Learned counsel for the appellants submits that the amount shown in Ext.B1 may not reflect the actual consideration. The court should have considered and decided what should be the consideration fixed in respect of the undivided < share of the 2nd defendant in the plaint schedule property. It is submitted that in the light of the judgment of the appellate court, the plaintiff had already deposited that amount before the trial court. However, since Ext.B1 may not reflect the actual consideration and since there is a duty cast on the court to fix consideration, I find that the consideration is to be refixed. But for that purpose, I do not think that the matter should be remanded to the trial court, for, it will only delay the final disposal of the case. Hence, taking into consideration of all the aspects, I find that over and above Rs.12,000/- mentioned in Ext.B1, the plaintiff shall deposit a further sum of Rs.15,000/- before the trial court. The said amount shall be deposited by the plaintiff/respondent before the trial court within one month from this date under intimation to D1 and D2. D1 shall execute the assignment deed assigning the right obtained under Ext.B1 in favour of the plaintiff within one month thereafter. If not, the plaintiff can get the decree executed through court. This Second Appeal is disposed of as above. N.K.BALAKRISHNAN, JUDGE. Ani/Jvt |
S.A. No. 1060 of 2005 - Somanath Radhakrishna More Vs. Ujjawala Sudhakar Pawar, 2013 (1) KLT SN 5 (C.No. 4)
IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION MRS.MRIDULA BHATKAR, J. PRONOUNCED ON : 30th NOVEMBER, 2012. SECOND APPEAL NO. 1060 OF 2005 Shri Somanath Radhakrishna More (Shimpi) Age : about 44 yrs., Occupation Business R/o. Girnare, Tal. Nashik Dist. Nashik ..Appellant (Orig. Defendant) Versus 1. Smt. Ujjawala Sudhakar Pawar Age : about 47 years, Occ. Household 2. Digamber Ramchandra Mahale (shimpi) since deceased through legal heirs: 2A. Rajendra Digamber Mahale (son) Age: 46 years. 2B. Ramdas Digamber Mahale (Son) Age: 40 years. 2C. Chandrashekhar Digamber Mahale (Son) Age: 37 years Nos. 2A to 2C : R/o. Girnar, Tal. & Dist. Nashik. 2D. Sou. Prabhavati Ashok Jagtap (married daughter) R/o. Navi Chawl, Room no. 13, At & Post Rawalgaon, Tal. Malegaon Dist. Nashik. 2E. Sou. Kalpana Vijay Sonawane (married daughter) R/o. At & Post DeolaliGaon, Opp. Vitthal Mandir,Tal. & Dist. Nashik 3. Smt. Bhagirathabai Trimbak Mahale Age: about 80 yrs. 4. Pandurang Punja thete Age : about 65 years All R/o. Girnae, Tal. Nashik Dist. Nashik ..Respondents Head Note:- Evidence - Adoption - Personal knowledge - A knowledge of a particular old fact or an old incident is always known to the next generation from their parents and elderly members of the family. This oral information is a knowledge and the knowledge becomes authentic if corroborative evidence is tendered by the witnesses. Rule of evidence also supports this proposition of adoption. Partition - Dwelling house - Sole Coparcener - Dwelling house is not partible if the sole coparcener remains and occupies the house along with his family members. Hindu Succession Act, 1956 - Section 23 - Adoption - Legal Status - Adopted son is not a coparcener in law. He does not have any legal right in the property of his father's natural father. Hindu Succession Act, 1956 - Section 23 - Adoption - Dwelling house - As the third person had started residing in the dwelling house, it looses its character as a dwelling house under Section 23 of the Hindu Succession Act and therefore that property can be subjected to a partition and it can be demanded by a female heir from a sole male heir. Mr. M.M.Sathaye, Advocate for the Appellant. Mr. Rahul Motkari, Advocate for respondent no. 1. ORAL JUDGMENT : This Second Appeal is directed against the judgment and order passed by the First Appellate Court dated 16th December, 2004 thereby confirming the judgment and order of the trial Court dated 18th July, 2000. Respondent no. 1 filed Regular Civil Suit No. 461 of 1995 against the appellant and other respondents for her one half share in the agricultural land and suit house including business through her deceased father in the Joint Family property. Respondent no. 1 (plaintiff) is a daughter of deceased Trimbak Ramchandra Mahale. Ramchandra had three sons, i.e., Radhakrishna, Trimbak and Digamber. According to the plaintiff, Radhakrishna was given in adoption in one Mor family, therefore, he had no interest or right in the Joint Hindu family. Respondent no. 2Digamber died pending Second Appeal. Hence, his legal heirs are brought on record. Respondent no. 3 is mother of respondent no. 1 (Original plaintiff). She has equal share like her daughter i.e. respondent no. 1. Pandurang Thete, respondent no. 4 has purchased 1H 20R land from the suit field from deceased Digamber and appellant has also purchased 80R from the suit field from Digamber. Somnath, the appellant/defendant no. 2 is a son of Radhakrishna. Trimbak died leaving behind his wifeBhagirathi and a married daughter Ujjawala Sudhakar Pawar. Admittedly, there was no partition in the family. It being the Hindu joint family, Digambar remained sole coparcener after Trimbak. Ujjawalrespondent no. 1, Trimbak daughter demanded partition of the property of the share which would have given to Trimbak after the partition. The trial court partly allowed the suit and held that the plaintiffdaughter is entitled to ¼th share in the suit property i.e. gat no.665 of village Girnare, admeasuring 3 H. 50 R and also in the house property, bearing grampanchayat number11, village Girnare. The trial court has framed issue in respect of adoption of Radhakrishna and it was held in affirmative. Issue No.3 was that defendant no.3 being son of adopted son Radhakrishna, has no right interest in the suit property and it was answered in affirmative. Share of the plaintiff is to be carved out as per Section 6 of the Hindu Succession Act, 1956. So at the time of partition, if property would have been partitioned in the lifetime of Trimbak, then the property would have been distributed ½ between Trimbak and Digambar. Trimbak left behind Bhagirathiwife and plaintiff and therefore, ½ share of Trimbak was further divided in two portions i.e. between the wifeBhagirathi and daughter Ujjawala and therefore, the plaintiff is entitled to 1/4th share. Somnath was not given anything as it was held that he is a son of the adopted son, therefore he is not entitled to any right in the property. 2. The appellant challenged the said verdict of the trial Court in Civil Appeal No. 316 of 2000 along with original defendant no. 4Pandurang Punja Thete. The first Appellate Court upheld the judgment and order of the trial Court and dismissed the appeal. 3. This Second Appeal was admitted on 21st September, 2005 and substantial questions of law were formulated as follows: “(1) Whether the lower appellate Court was justified in holding that Radhakrishnafather of defendant no. 2/present appellant was given in adoption, when admittedly at the relevant time, during 1915 to 1920, Radhakrishna was only son to his parents i.e. Ramchandra and Narmadabai and prior to year 1956, as per the uncodified Hindu Law, only son could be given in adoption? (2) Whether the lower appellate Court was in error to hold that the bar under Section 23 of the Hindu Succession Act will not apply to the present case because plaintiff/appellant is sole heir of deceased Trimbak, specially when it is plaintiff's own case that no partition has taken place between Trimbak and Digamber (male heirs of family)? (3) Whether the lower appellate Court was justified in holding that the suit land Gat No. 665 is joint family property of plaintiff's father and defendant no. 1 only? (4) Whether the lower appellate Court was justified in holding that at the time when the suit land Gat No. 665 was purchased in the year 1944, the father of plaintiff (Trimbak) who was only 23 years old, was earning member on the basis of evidence available, so as to prove nucleus of the joint family? 4. The issue of adoption of Radhakrishna is vital and goes to the root of the matter. The learned counsel for the appellant submitted that the appellant has vehemently challenged the fact of adoption of Radhakrishna from Mahale family to Mor family. He argued that respondent no. 1plaintiff could not bring any documentary evidence in support of her contention of the adoption of Radhakrishna. She doesn't have personal knowledge and she did not examine any evidence in support of her case. The appellant has produced number of documents supporting his contention that his father Radhakrishna was not given in adoption in true sense and he remained in Mahale family as the eldest son or karta of the family. Considering the status of Radhakrishna as karta in the family, the Courts below ought not to have believed the case of the plaintiff on the point of adoption of Radhakrishna. He pointed out that Radhakrishna was the only son of Ramchandra when adoption has taken place. He submitted that assuming Radhakrishna was given in adoption in the year 1922 approximately, he being the only son, the said adoption is not valid under Hindu Law. 5. Per contra, the learned counsel for the main contestant respondent no. 1/plaintiff relied on oral evidence of the plaintiff's and the admissions given by the appellant in his crossexamination. He relied on the marshalling of the documentary as well as oral evidence done by the Courts below. He submitted that the original defendant no. 1 Digamber, the uncle of the plaintiff was alive till the Second Appeal was filed. However, Digamber did not lead any evidence on the point of adoption. He did not challenge this fact of adoption and this goes in favour of the plaintiff. 6. The genealogy of Mahale family is not disputed. Ramchandra Mahale has 3 sons viz. Radhakrishna, Trimbak and Digambar. There is no evidence in which year Radhakrishna was adopted by a family of Narayan Mor of Trimbakeshwar. Radhakrishna was the eldest son, Trimbak was the second and Digambar was the youngest one. It was contended that when Radhakrishna was given in adoption by Ramchandra at that time Radhakrishna was his only son and as per Chapter 23 of the Hindu Law, only son cannot be given in adoption. The period of adoption is mentioned generally between 1915 to 1920. No documentary evidence of adoption is available, hence not produced by the plaintiff. In the crossexamination of respondent nos.2 & 4 it is brought on record that there was a gap of 4 years between Trimbak and Radhakrishna. Trimbak was born in the year 1921 and there was age gap of 4 to 5 years between Trimbak and Radhakrishna. In the crossexamination of respondent nos.1 & 3 they deposed that when Radhakrishna was 7 to 8 years old, he was given in adoption. The plaintiff could tell a specific year of the birth of her father Trimbak was of 1921, however, she is not sure about the year of the adoption so uncertain long span of 5 years ie 1915 to 1920 of the adoption is stated. However, in the crossexamination, she has specifically stated that the age of Radhakrishna was 7 to 8 years, he was adopted. So also about the distance of 4 years between Radhakrishna and Somnath. From these two statements in respect of the age of the Radhakrishna at the time of adoption and secondly the age gap between Radhakrishna and Trimbak it can be ascertained that when Radhakrishna was given in adoption, Trimbak might have born. So the submission of the appellant/original defendant no.3 that when the adoption has taken place Radhakrishna was the only son to Ramchandra Mahale, cannot be accepted. Moreover, the bar on the adoption of only child was not absolute but it was generally followed. 7. The validity of adoption is further contested on the ground that the plaintiff could not prove adoption by tendering any cogent documentary evidence. The trial court and the first appellate court both, have gone into the evidence of the plaintiff as well as main contesting defendant ie appellant in detailed. In order to find out whether the courts below were perverse in their positive finding of adoption, it is necessary to again look into the relevant evidence of these 2 witnesses. In the crossexamination she admitted that she does not have any document of adoption, she does not have personal knowledge of adoption. She claims that she had this knowledge from her father and the family members. She admitted letters ie Exhibits80 to 87. She admitted that she wrote letters Exhibits80 and 81. She states that Exhibits82 to 85 these 4 letters were written by her husband. Exhibits86 & 87 were written by her fatherinlaw and these 2 letters were written to her Maidenhome. She admitted that in all these letters Radhakrishna was addressed as 'Tatya' and he is the father of original defendant no.2 Somnath. She also admitted that in all these letters Radhakrishna is addressed as Radhakrishna Ramchandra Mahale. She also admitted that all the letters were addressed to Radhakrishna because he was karta of the family and he used to look after the management of the family. On the basis of these admissions it can be inferred that the plaintiff Radhakrishna considered as karta of the family and he being the eldest brother of Trimbak, the plaintiff, her husband and her inlaws used to seek his permission and addressed him letters accordingly. It is a known custom in the Hindu joint family that inlaws or soninlaw generally address the eldest male member in the maiden home of the daughterinlaw and may not the father of the daughterinlaw. This practice is followed generally to give respect to the eldest persons in the family. 8. From this evidence it can be inferred that Radhakrishna was treated in Mahale family as the eldest son of Ramchandra Mahale and the eldest uncle of the plaintiff and admittedly, he was looking after the management of the family as a karta. In the absence of any other evidence, this evidence would have been sufficient to accept the rival submissions of the appellant/defendants challenging the validity of the adoption; however, there are other material circumstances which are produced by the plaintiff in her examinationinchief, so also they are appearing in the evidence of Somnath, the appellant. 9. The learned Counsel for the respondents relied on certain documents ie. Exhibit99 & Exhibit100 the extracts of the school registers showing the names of the appellant and his sister. The name of father is shown as Radhakrishna. However surname of both the children was shown as Mor and not as Mahale. These erstwhile entries show that the name of defendant no.2 was registered in the school by surname Mor. Mr. Ramesh Keda Gavli, the headmaster P.W4 had issued the certificates of Somnath Radhakrishna Mor and Shobha Radhakrishna Mor. Though he did not bring the original register, the truthfulness of the certficates cannot be doubted. 10. Radhakrishna died in 1984. Exhibit73 and Exhibit112 are death certificates issued by the authority on the death of Radhakrishna. Death certificate was issued on 22.9.1999 during the pendency of the suit. In that certificate surname of Radhakrishna is appearing as Radhakrishna Mahale. The death certificate issued earlier is to be given more weightage than the death certificate which was obtained during the pendency of the suit. The certificate which is obtained during the pendency of the suit is obviously suitable to the evidence of the plaintiff. Exhibit112 dated 8.7.1986 shows name as Radhakrishna Mahale. Death certificate is an evidence of a death of a person on a particular date. The name of the deceased obviously should appear in the certificate. However, the certificate though it is expected to be authentic, the authenticity of the contents of the death certificate depends on the information given by the person who approaches the authority. How surname of Radhakrishna appeared as Mahale instead of Mor can be explained on the basis of the admissions given by the plaintiff in her crossexamination. She admitted that Radhakrishna was staying with the family. He was looking after the management of the entire family. His status was like karta of the family and therefore, he was known in the society by the surname of Mahale. Admittedly, Mahale is a surname of Radhakrishna's natural father. Before adoption his name was Radhakrishna Mahale. This is how the two different surnames of deceased Radhakrishna in death certificate are appearing. Thus, he was recognized as one of the members of “Mahale” family. 11. Most important document in favour of the plaintiff is a sale deed Exhibit114 dated 16.6.1995 which was taken place between Digambar and Somnath. This exhibit114 was admitted document. The appellant/defendant no.2 admitted in the crossexamination that he has gone through the sale deed and the contents in the sale deed are true and correct. Somnath has purchased some portion of the land from Digambar. It was argued by the learned Counsel for the appellant that after the death of Trimbak, Digambar was the sole coparcener and he sold some portion of the land which is fallen to his share to Somnath by sale deed dated 16.6.1995. However, in the crossexamination though he admitted all the contents of the sale deed, he denied the contents in paragraph4 of the sale deed that his father was adopted in Mor family. He answered in the crossexamination that he did not realize at the time of execution of the sale deed that this fact is incorrect and he realized this fact at the time of crossexamination. This cannot be believed. Indeed this sale deed hits the core part of the adoption and it negatives the challenge of the defendant to the validity of the adoption. The first appellate court while dealing with this evidence has rightly posed the question that if the defendant was not given in adoption in Mor family then he must be having a share in the suit property and if it was so then what was a need for defendant no.2 to purchase 80R's of land out of the ancestral suit land by executing the sale deed from defendant no.1 Digambar, his uncle? Curiously, the plaintiff filed a suit for partition on 14.6.1995 and the sale deed was executed on 16th June, 1995. Therefore, the contents in the sale deed cannot be read as incorrect and the sale deed is a document which speaks for itself. Therefore, this confirms the case of the plaintiff that Radhakrishna was given in adoption. 12. The learned Counsel Mr. Sathaye on the point of adoption heavily relied on the judgment of the Supreme Court in A.Raghavamma Vs. A.Chenchamma reported in AIR 1964 SC 136. In the said case Supreme Court had occasion to deal with the issue of adoption of only son and subsequent conduct of the parties. The Supreme Court held that who claims adoption must discharge the burden that lies upon him by proof of the factum of adoption and its validity. Only son of a brother Chimpirayya was adopted by one Pitchayya. At the time of adoption Chimpirayya was 40 years old and Pitchayya was 25 years old. The Supreme Court observed that therefore, ordinarily he had every prospect of having children of his own; it is therefore, highly improbable unless there are special circumstances, that an only son of an elder brother was taken in adoption by his younger brother; though there is no legal prohibition, it is well known that ordinarily an only son is neither given nor taken in adoption. The supreme court elaborately described the proof on the point of subsequent conduct of the parties in paragraphs15 & 16 of the judgment. On promissory notes, mortgages, sales of adopted Venkayya was described as adopted son of Pitchayya. However, in the insurance proposal form Venkayya is described as only son of Chimpirayya and adopted son of Pitchayya. In the Will Chimpirayya recited the factum of adoption. However, there was another current of unimpeachable documentary evidence which leads to a contrary inference. In the school Venkayya was adopted as son of Chimpirayya. Venkayya executed promissory note, sale deed and mortgage as son of Chimpirayya. He filed a suit as son of Chimpirayya. He ensured his life as son of Chimpirayya. In the said case it was found that whenever Venkayya exhibited documents he described himself as son of Chimpirayya, that he filed suits as the son of Chimpirayya, operated upon the accounts of third parties as his son, that he purchased properties as his son. So when he gave evidence he declared himself as son of Chimpirayya ie of his natural father. Therefore, Supreme Court held that in such state of evidence it was not possible to say that there had been consistent pattern of conduct from which a court should draw the inference that the adoption must have taken place. The facts of case of Raghavamma are clearly distinguishable from the present set of facts. Radhakrishna was not the only son of his father. It is doubtful at the time of adoption whether 2nd son Trimbak was born or not born. In the school, name of defendant no.2 was registered and his surname was given as Mor and he himself has executed a document ie sale deed exhibit114 and there he himself had mentioned that his father was given in adoption in Mor family. The important distinguishable fact is in the present case Radhakrishna has not challenged his adoption. It is Somnath who is the son of the adopted son challenges adoption of his father. Neither plaintiff nor Somnath had any personal knowledge of the adoption. Thus this ruling of Raghavamma is not of any help to the defendant. Thus the first appellate court and the trial court have rightly accepted the fact of adoption. A knowledge of a particular old fact or an old incident is always known to the next generation from their parents and elderly members of the family. This oral information is a knowledge and the knowledge becomes authentic if corroborative evidence is tendered by the witnesses. Rule of evidence also supports this proposition of adoption. Thus, substantial question of law no. 1 is held against the appellant. 13. The Second question of law involves right of a married daughter in view of the restriction for partition of the dwelling house under section 23 of the Hindu Succession Act, 1956. Section 23 of the Hindu Succession Act was omitted by the Hindu Succession (Amendment) Act of 2005 with effect from 9th September, 2005. Though Second Appeal is filed in 2005, the suit was filed in the year 1995, therefore, it is necessary to consider Section 23. Section 23 reads as follows: “23. Special provision respecting dwelling houses. — Where a Hindu intestate has left surviving him or her both male and female heirs specified in class I of the Schedule and his or her property includes a dwellinghouse wholly occupied by members of his or her family, then, notwithstanding anything contained in this Act, the right of any such female heir to claim partition of the dwellinghouse shall not arise until the male heirs choose to divide their respective shares therein; but the female heir shall be entitled to a right of residence therein: Provided that where such female heir is a daughter, she shall be entitled to a right of residence in the dwellinghouse only if she is unmarried or has been deserted by or has separated from her husband or is a widow.” 14. Section 23 provides bar on demand of female heir to claim partition of the dwelling house until the male heirs chose to divide the respective shares therein. Proviso entitles a daughter who is unmarried, destitute or widow to reside in the dwellinghouse. The learned counsel for the appellant argued that the plaintiff is a married daughter and has no right to demand partition from Digamber, as Digamber was a sole coparcener after the death of Trimbak. 15. The learned counsel for respondent no. 1 in reply argued that respondent no. 1/plaintiff is demanding her share under section 6 of the Hindu Succession Act as her father, who was the coparcener, died. He further submitted that the appellant has no right to stay in the dwellinghouse, as he being the third party, his residence amounts to alienation of the coparcenery property. Therefore, the first appellate court has taken correct view and has given 1/4th share in the dwelling share to the plaintiff. 16. Though Digambar was defendant no.1 and sole coparcener, he did not step in the box to dislodge the case of the plaintiff on the point of adoption of Radhakrishna. His evidence would have been treated as the best evidence on the point of adoption and also while deciding issue of partition of the dwelling house. Moreover, Digambar did not challenge findings either of the trial court or the first appellate court in any Court. He did not question the demand of the partition made by the daughter of his brother and did not refute any averment made and contentions raised by her in respect of partition and also about the status and relation of the appellant in Mahale family. 17. The first appellate court has formulated point no.(iii) in respect of the bar created by Section 23 of the Hindu Succession Act. The finding was given in favour of the plaintiff. The trial court did not frame a specific issue in respect of plaintiff's right to demand partition in view of Section 23 of the Hindu Succession Act. The first appellate Court has discussed ruling of Narasimaha Murthy Vs. Susheelabai & Ors. reported in A.I.R. 1996, 1826 and also case of 'Fulsing Ramsingh Rajput & Anr. Vs. Durgabai w/o. Shivsingh Rajput reported in 1996(2) Mh.L.J. 770 : “............I would like to observe that the scheme of the Act is to the effect that as a result of introduction of female heirs the share of deceased intestate stands notionally partitioned from the rest of the male coparceners. Therefore the net result of introduction of female, being a heirs of deceased intestate who expires in joint family is destruction of coparcenery and severance of status takes place which in the result is a partition in the eye of law and, therefore, the subsequent provisions deal with the rights of heir of the deceased. In this view of the matter Section 23 has been drafted by the Legislature. …....” 18. In Narasimaha Murthy's case, the Supreme Court has discussed about the impartability of the dwelling house. In the present case, the appellant was inducted in an ancestral dwelling house so it was not occupied entirely only by the coparcener and his family members. As the third person had started residing in the dwelling house, it looses its character as a dwelling house under Section 23 of the Hindu Succession Act and therefore that property can be subjected to a partition and it can be demanded by a female heir from a sole male heir. The appellate court relied on the ratio of the ruling of 'Fulsing Ramsingh Rajput'. In that case, a coparcener died intestate leaving only female heir. The Single Judge of this Court has taken a view that if there is no male heir left behind that particular deceased coparcener, then his surviving female heirs, may be a widow or a daughter, have right to ask for the partition. By way of notional partition, the share of the deceased coparcener was carved out. In Narashimaha Murthy's case the Supreme Court has observed as follows : “13. …...... The male heir(s) thereby evinces animus possedendi. But the moment the sole heir chooses to let out the dwelling house to a stranger/third party, as a tenant or a licensee, he or they exhibit (s) animus dessidendi and the dwelling house thereby becomes partible. Here the conduct of the male heir(s) is the cause and the entitlement of the female ClassI heir(s) is the effect and the latter's claim for partition gets ripened into right as she/they is/are to sue for partition of the dwelling house, whether or not the proviso comes into play. Here the female heir(s) becomes entitled to not only mere partition of the dwelling house but also her right to residence after partition.” “33 ….....The provision would have to be interpreted in such manner that it carries forward the spirit behind it. The second question would thus have to be answered in favour of the proposition holding that where a Hindu intestate leaves surviving him a single male heir and one or more female heirs specified in Class I of the Schedule, the provisions of section 23 keep attracted to maintain the dwellinghouse impartable as in the case of more than one male heir, subject to the right of reentry and residence of the female heirs so entitled, till such time the single male heir chooses to separate his share; this right of his being personal to him, neither transferable nor heritable.” 19. In the present case, Somnathdefendant no.2 is admittedly residing in the suit house. Defendant no.2, as held above, is a son of Radhakrishna who was given in adoption in 'Mor' family. Fact of adoption of is proved, therefore Radhakrishna's rights in the ancestral property are extinguished. Thus, after death of Trimbak, Digambar remained a sole coparcener of the suit property i.e. dwelling house. The Supreme Court in Narashimaha Murthy held that dwelling house is not partible if the sole coparcener remains and occupies the house along with his family members. True, Radhakrishna was not occupying the premises in capacity of tenant. There is no evidence that he was occupying the house as a lessee or licensee. He was occupying the premises as a family member. However, he had no legal right, though he was accepted by Digambar and Trimbak as a family member. His stay was not objected either by Trimbak or Digamber. Family is not defined under Hindu Succession Act. Thus, who can be a member of the family is not described by the statute. Therefore, the Court has to determine position of the defendant no. 2 in view of his legal status only. His status as a family member may be acknowledged by the Trimbak and Digamber, however, Somnath is not a coparcener in law. He does not have any legal right in the property of his father's natural father. Due to adoption, Radhakrishna's rights in the property of his natural father were ceased and so of Somnath. He continued to stay there and continued to lookafter the family of his brothers and other family members yet his right cannot be rejuvenated. 20. As mentioned earlier, Digamber did not challenge the case of respondent no. 1 and did not adduce any evidence to deny her demand of partition by respondent no. 1/plaintiff. In view of the ratio laid down in Narashimaha Murthy's case and Fulsing Ramsingh Rajput's case, respondent no. 1/plaintiff is right to demand partition of the dwellinghouse. Question of law no. 2 is also decided against the appellant. 21. Question of law nos. 3 and 4 are whether the suit land i.e. property 2A was purchased from the nucleus of the joint family property or it was purchased out of stridhan by the mother of defendant no.1. Mr.Sathye, learned counsel for the appellant relied on the point of existence of adequacy sufficient nucleus to purchase the property Mr.Sathye relied on (i) Baikuntha Nath Paramanik (dead) by his L.Rs. & heirs Vs. Sashi Bhusan Paramanik (dead) by his L.Rs. & Ors. reported in AIR 1972 SCC 253; (ii) K.V. Narayanaswami Iyer Vs. Ramakrishna Iyer & Ors. reported in 1965 SCC 289; (iii) Achuthan Nair Vs. Chinnammu Amma & Ors. reported in AIR 1966 SCC 411. He submitted that the appellant has tendered evidence that his mother had purchased the suit land out of her 'stridhan' and the plaintiff could not prove that the property was purchased from the nucleus of joint family. He argued that burden to prove necleous was on the respondent. However, the courts below have wrongly placed that burden on the appellant. 22. The suit property described in the plaint originally belonged to the family of Ramchandra. However, the financial condition of the family became bad, so Ramchandra was constrrained to sell the property. Thereafter, he died and after his death, the property was purchased by registered agreement of sale by Narmadamother of defendant no.1 Digambar. It was purchased by Naemadathe wife of deceased Ramchandra in the name of their minor son Digambar. It is a fact that wife of deceased Ramchandra had no separate independent source of income when the suit land was repurchased. In the year 194344, when the land was purchased, Trimbak, the father of the plaintiff was 23 years old and was earning. The plaintiff has deposed on oath that her father gave money to repurchase the suit land out of love and affection so the land was purchased in the name of Digamber. It is to be noted that the family did not purchase any other land but the same land which was sold by Ramchandra was repurchsed. If nonearning wife possesses stridhan and the land is the only piece of an agricultural land owned by the family and the family is dependent on that land, then in financial crises generally female member in the family offers her stridhan to save the land. In the present case, if the case of the defendant is that the suit land was repurchased by selling stridhan of Narmada, the question emerges as to why she did not offer her stridhan to her husband when there was financial crises which compelled him to sell his land. Sale of the land is the last option generally resorted by the joint Hindu family and anyhow family members will try to save the land. Therefore, the case of the defendant that it was purchased out of stridhan of his grandmother after death of her husband, cannot be accepted. Moreover, no evidence on the point of stridhan is tendered. On the other hand, evidence of the plaintiff, that her father was 23 years old and he was, after death of her father being the eldest son at the relevant time, gave money to his mother, appears plausible. 23. Therefore the first appellate court and the trial court have rightly accepted the case of the plaintiff and committed no error. Hence, Second Appeal is dismissed. 24. At this stage, learned Counsel for the appellant prays for staying of the order and interim stay granted by this Court be continued. Learned counsel for respondent no. 1 opposes this prayer. However, as there was interim stay, stay is granted for six weeks. (MRS. MRIDULA BHATKAR, J.) |
S.A. No. 766 of 1998 - Kallen Devi Vs. Kizhakkekoroth Raghavan, 2012 (3) KLT 142 : 2012 (2) KHC 443
IN THE HIGH COURT OF KERALA AT ERNAKULAM
P. Bhavadasan, J. S.A. No. 766 of 1998 Dated this the 23rd day of December, 2011 Head Note:- Indian Easements Act, 1882 - Sections 13 and 15 - Claim a right to use the pathway by way of easement by necessity and prescriptive right of easement. Plea of prescriptive right of easement and easement of necessity are contradictory and inconsistent in each other. Both cannot co-exist. Indian Easements Act, 1882 - Section 13 - Easement of necessity - Pathway - No specific pleadings - The easement being a precarious right, the pleadings should be precise and definite. Indian Easements Act, 1882 - Section 13 - Public Way - A right can be claimed individually to a public way but that does not mean that an easement right can be given through a public way. For Appellants:-
For Respondent:-
J U D G M E N T 1. The defendants is O.S. No. 72 of 1993 who suffered concurrent decrees at the hands of the Courts below are the appellants. 2. The parties and facts are hereinafter referred to as they are arrayed before the Trial Court. 3. The plaintiff is the owner and in absolute possession and enjoyment of the plaint A schedule property. The plaint B schedule property which belongs to the defendants is situated on the southern side. The western boundary of the plaint A schedule property is an old road. That roads goes towards north from Kurumathoor to Vallikkurumbathottam. It is claimed that the road has a width of 18 feet and used by the public of the locality. The road which is shown as C schedule according to the plaintiff passes through the property owned and possessed by the defendants. It is stated that on 15-02-1993, the defendants interrupted the passage of the plaintiff through the road and threatened that he will not permit the plaintiff to use the road any more. It is stated that the plaint C schedule road is the sole means of access to the property owned and possessed by the plaintiff and he has acquired prescriptive right as well as easement by necessity to use the said road. Apprehending further mischief from the defendants, the suit was laid. 4. The defendants resisted the suit. They disputed the identity of the property scheduled in the plaint. It is pointed out that the plaint B schedule property and the adjacent properties were assigned by the Government from the surplus land surrendered by various people. They disputed the existence of C schedule road. It is pointed out that a person by name Baby residing on the northern side of the 1st defendant's property wanted to take lorry through the property of the defendants for which they were not amenable. It is at his behest that the present suit has been laid. Pointing out that the plaintiff has no manner of right over any portion of the defendants' property for their egress and ingress to plaint A schedule property, they prayed for a dismissal of the suit. 5. On the above pleadings issues were raised. The evidence consists of the testimony of PWs 1 to 7 and document marked as Exts. A1 from the side of the plaintiff. The defendants had DWs 1 to 5 examined and documents B1 to B4 marked. Exts. C1 to C7 are the commissioner's report and plan. Exts. X1 to X 4 are the third party Exts. 6. On an appreciation of the evidence in the case, the Trial Court came to the conclusion that the plaintiff has miserably failed to establish the plea of prescriptive right of easement but then found that the plaintiff is entitled to relief on the basis of easement by necessity and accordingly granted a decree in favour of the plaintiff. The aggrieved defendants carried the matter in appeal as A.S. No. 16 of 1994. The Appellate Court concurred with the findings of the Trial Court and dismissed the appeal. Hence the second appeal. 7. Notice is seen issued on the following questions of law: a. Whether a person can claim easement over a road which is admittedly used by the public at the locality? What is the difference between the easementary right and public right? b. Whether the mere averment that a particular road is absolutely necessary in itself constitute a plea of easement of necessity? What is the manner and method of pleading and proof in a case of easement of necessity? c. What are the characteristics of the alternate way, so as to constitute a defence to the claim of easement of necessity? Is it correct to say that merely because the alternate way is not a public way, it is not an alternate way at all? d. Can there be an easement of necessity when there is no servient heritage and no governance of tenements? e. What is the correct perspective to be adopted in deciding the question of identity when the plaint schedule and commissioner's reports contradict each other and when those are vague and uncertain? 8. As could be noticed from the above statement of facts, the dispute in this case relates to C schedule pathway, which according to the plaintiff runs through the property owned and possessed by the defendants which is shown as B schedule and pathway as C schedule. The plaint would say that the road has been in existence for a considerably long period and they have been using it for a long period. They claimed prescriptive right of easement and also stated that the road is an absolute necessity for them. The defendants disputed the existence of the road. 9. The learned counsel appearing for the appellant pointed out that it is strange that the Courts below has found that the plaintiff is entitled to use the way by way of easement by necessity when there was no pleadings to that effect in the plaint and no evidence was adduced to that effect. All that was pleaded in the plaint was that the way is an absolute necessity and the essential ingredients to attract easement of necessity are not seen pleaded in the plaint. According to the learned counsel, it is not sufficient to say that the way is an absolute necessity but it is necessary to plead all the ingredients to attract the relevant provision and that will have to be supplemented by the evidence at the time of trial. Both pleadings and evidence in that regard are conspicuously absent and the Courts below were not justified in granting a decree on the basis that the plaintiff is entitled to use the way by easement of necessity. Attention was also drawn to the fact that, in fact the reading of the plaint closely and scrutinizing the evidence adduced by the plaintiff, it would clear that what was claimed by the public way not right of easement as such. The Courts below have omitted to note this vital aspect and if one has to assume that the way is a public pathway then one fails to understand how easement of necessity could survive. The learned counsel also pointed out that the plea in the plaint are inconsistent and contradictory. Even assuming that plaintiff would take such pleas at the time of evidence he had to elect from one of them and having not done so he should fail on all counts. According to the learned counsel the Courts below have committed grevious error in holding that the plaintiff is entitled to use the C schedule pathway as easement of necessity. 10. The learned counsel appearing for the respondent on the other hand contended that both the Courts below have found that there does exist a way running through the property of the defendants. It is also found by both the Courts that, that is the only means of access to the plaintiff to his A schedule property. In the evidence, it is also clear that the plaintiff and others are using the way. Under such circumstances, the plaintiff could not be non-suited for dearth of pleadings, when it is clearly established that a way does exist and it is being used by people along with the plaintiff. In support of his case the learned counsel relied on the decision reported in Thomman Vs. Kuriako, 1988 (1) KLT 361 It is also pointed out that both the Courts have concurrently found in favour of the plaintiff. The findings are based on appreciation of evidence and are questions of fact. It is contended that no substantial question of law arises for consideration in this second appeal and it is only to be dismissed. 11. When one looks at the plaint one is not certain as to what is the exact nature of the right pleaded by the plaintiff. Of course the Courts below have found that there does exists a way as claimed by the plaintiff. The question that arises for consideration is what right if any has the plaintiff established to use the said road. In the plaint in fact what is pleaded is that the said road has been used by the public of the locality and plaintiff has been using it for a long time to reach their respective properties. In paragraph 8 of the plaint what is stated is that the plaint C schedule pathway has been used by the plaintiff and his predecessors in interest of the plaintiff for last 40 years believing it to be a public pathway. It is further averred the plaintiff has acquired a prescriptive right of easement to use the same. Further averment is that the C schedule road is an absolute necessity for plaintiff and others. 12. The above are the pleadings relating to the right claimed by the plaintiff. 13. Both the Courts below have found that the plaintiff had miserably failed to establish the plea of prescriptive right of easement. But then the Courts go on to hold that since it is shown that the plaintiff has no other means of access, it is a question of absolute necessity and therefore the plaintiff is entitled to a decree on the basis of easement by necessity. 14. The question is whether the above view is sustainable? First of all, the plea of prescriptive right of easement and easement of necessity are contradictory and inconsistent in each other. Both cannot co-exist. Even assuming that the plaintiff is entitled to take inconsistent plea, at the time of evidence he has to elect from one among them i.e. prescriptive right of easement or easement by necessity and he cannot go on with both the pleas which are in fact contradictory. In the case on hand the plaintiff pressed both the grounds and failed to establish prescriptive right of easement. 15. It will be useful at this point of time to refer to the decision reported in Ibrahimkutty Vs. Abdul Rahmankunju, 1992 (2) KLT 775 wherein it was held as follows: Ordinarily a Court can find a case and decree the suit only on the basis of the pleadings of the parties. In case, where the claim is for an easement right, it is all the more necessary that the pleadings should be specific and precise. There is reason therefor. 'Easement' is a precarious and special right. The right of easement is one which a person claims over a land which is not his own. Since the right of easement is a precarious and special right claimed over the land of another, it is highly essential that the pleadings should be precise. On a careful reading of the plaint in the case, it should be stated that the plaintiffs did not specifically plead the nature of the easement claimed by them. Indeed, the issue framed in the case is also of a general and vague nature. That is why the Trial Court found in favor of easement of necessity and also by prescription. The lower Appellate Court found in favor of easement of necessity and also by prescription. The lower Appellate Court found customary easement and easement by prescription. The qualitative and quantitative requirement for the different kinds of easement are to a great extent mutually exclusive. That is the reason why the Courts have always insisted that whenever a right of easement is claimed, the pleadings should be precise and clear and not vague. 16. As already mentioned, the respondents herein claim a right to use the pathway by way of easement by necessity and prescriptive right of easement. First of all both these cannot go together. While easement of necessity has its origin in a statute, the right of way by easement by prescription is the result of continuous and hostile use to the knowledge of the other person. Both the Courts have found that the plaintiff cannot succeed on the claim of easement by prescription. 17. It will be also useful to refer to the decision reported in Joy Joseph and Others Vs. Jose Jacob alias Thankachan, 2010 (4) KHC 167 where in it was held as follows: As already mentioned, the defendants who are the appellants herein claim a right to use the pathway by way of easement by necessity and prescriptive right of easement. First of all both these cannot go together. While easement of necessity has its origin in a statute, the right of way by easement by prescription is the result of continuous and hostile use to the knowledge of the other person. Both the Courts have found that the plaintiff cannot succeed on the claim of easement by necessity. 18. As already noticed the only plea regarding the easement of necessity is that as mentioned in Paragraph 8 of the plaint which merely says that the C schedule pathway is an absolute necessity for the plaintiff and others. What is claimed is the common pathway. Apart from the above fact there are no averments regarding severance of tenements and the origin of easement of necessity as contemplated under Section 13 of Indian Easements Act. In other words there are no specific pleadings containing the ingredients of easement of necessity. Of course, it is stated that the pathway in question is absolute necessity for the plaintiff but that is far from satisfactory. The easement being a precarious right, the pleadings should be precise and definite. It could be seen from the judgment of the Courts below, the Courts below considered both prescriptive right of easement and easement by necessity. The Courts were not sure as to what exactly is the right claimed by the plaintiff. 19. It will be now useful to refer to the evidence of plaintiff who is examined as PW 2. He asserts when he examined as PW 2 that the road is used by him and about 20 families in the locality and is a public road. It is also asserted that all these twenty families along with the plaintiff has no other means of access. In his cross-examination also he categorically stated that the road is a public road and that anybody is entitled to use the said road over which the claim is laid by the plaintiff. To crown it all he would say that he is like any other user of the road. Then he stated that the entire people of the village use the said road. He further stated in cross-examination that the road is being maintained by the people of the locality. It is brought out in the cross-examination that the alignment of the road had been changed by one Yasoda by shifting the road to the boundary of her property. The road runs by the side of court yard of the defendants' house. In no less terms he says that the road is being maintained by the people of the locality and the defendants have no manner of right over the C schedule pathway and that is a public road. 20. It is in the light of said the evidence one has to view the claim set up by the plaintiff. It is useful to refer to the decision cited by the learned counsel for the respondent in this appeal namely Thomman Vs. Kuriako, 1988 (1) KLT 361. The learned counsel relied on the following extract in the said decision. 4. The question to be considered is whether the Sub Judge was justified in dismissing the suit overlooking the avalanche of materials regarding the existence of the public road on the ground that evidence is lacking with regard to its dedication. In other words, can the suit be rejected solely on the ground that there is no evidence of dedicat on. 5. The right to enjoy a highway is a free right. Rights over highways are rights in gross unappurtenant in any dominant tenement. Even in a case where evidence is lacking with regard to the dedication and where there is ample evidence with regard to the existence of road which is used by the public it can be inferred that the owners of the adjacent properties intended to make over to the public the right to use their land as a public highway. In J. Anderson v. Juggodumba Dabi (VI Calcutta Law Reports 282) it is held as follows: "In order to establish that a road is a public road, it is sufficient if acts of user by the public are shown to have been acquiesced in by the owner of the land over which the road passes, and that those acts are of such a character as to warrant the inference that the owner intended to make over to the public the right to use the land as a public highway." 6. High way may be created either by statute or it may come into existence through dedication by the landowner allowing the public the right to pass or re-pass over his land. Dedication implies a gift. But it is not necessary that the dedication must be made by a deed or by written instrument. The dedication though not made in express terms may well be presumed from uninterrupted use by the public of the right of way claimed. More often, it can be presumed from custom and user than from any definite act of the owner of the land. Animus didicandi on the part of the land owner has to be proved in a case where plaintiff relies on dedication. But in a case where there is evidence of long and open user of the road by the public it can definitely lead to the presumption that the land was dedicated as a highway. Dedication is something equivalent to an irrevocable licence granted to the public by the owner of the land through which the road passes. Even in a case where dedication as such is not proved a plaintiff who wants declaration of the right of way can succeed in the suit if there is evidence with regard to the continuous user of the way by the public. In a case where there is evidence of public use of the way to the knowledge of the land owner and without resistance dedication can certainly be inferred. In Laxman Vs. Tukia, AIR 1918 Nagpur 166 it is held as follows: "Public rights of way are not easements. Public, differing from private, rights of way originate from a dedication to the public by the owner of the soil over which they pass. Dedication means a gift not necessarily by a deed or any written document, and it is more often implied from custom and user than from any definite act of the owner of the land. Even when no such overt act can be shown if the public use a way for some time to the knowledge of the land owner and without resistance, dedication will be inferred and a right gained." 21. As could be seen from the reading of the said decision it related to access to a Highway at its end. That stands on a different footing. Of course it is stated in Paragraph 7 that a right can be claimed individually to a public way but that does not mean that an easement right can be given through a public way. Individual rights which are asserted and causing obstruction to the public way can certainly be agitated in a Court. But in the case on hand what is found by the Courts below is that the plaintiff is entitled to use the C schedule pathway as easement of necessity. 22. One has to notice that the plaintiff has a case that his predecessors as well as twenty other families in the locality are using the same road. But strangely enough, neither any of his predecessors in interest or any one of the members of family who are actually using the pathway have been examined, even though as many as seven witnesses are examined by the plaintiff. Some of them are residing far away from the property. He says that they too are using the road. The evidence is far from sufficient. At any rate, the finding of the Courts below that the plaintiff is entitled to C schedule pathway by way of easement of necessity cannot be supported. Apart from the fact that there is absolutely no pleadings in that regard, evidence is also found wanting in that respect. As already noticed, the easement being a precarious right the law insists that there should be precise pleadings and supporting evidence also in that regard. Both the Courts below have proceeded on the premises that since C schedule pathway is an absolute necessity for the plaintiff, he is entitled to use the same by way of easement of necessity. The origin, continuance and termination of easement of necessity does not mean that it takes in absolute necessity only. It arises on severance of tenements and continues till alternate way is available. It is a statutory right. Easement should be one without which dominant tenement cannot be enjoyed at all. In the case on hand even assuming that the C schedule is the only pathway the other ingredients are conspicuously absent in the pleadings and in the evidence. Under those circumstances it will be difficult to accept the findings of the Court below that the plaintiff is entitled to use C schedule pathway by a way of easement of necessity. 23. Even assuming that the C schedule pathway does exist, it is for the plaintiff to establish the nature of right enjoyed by him to use the pathway. When the plaintiff himself says that the defendants have no manner of right over C schedule pathway and it does not belong to them at all the question of easement does not arise at all. Moreover the plaintiff has no consistent plea also. He says that it is a public pathway and also says that C schedule pathway is an absolute necessity for them and also claims prescriptive right of easement. 24. Under the above unsatisfactory state of affairs it is not possible to concur with the Courts below in holding that the plaintiff is entitled to use the plaint C schedule pathway by way of easement by necessity. 25. In the result:- This appeal is allowed, the impugned judgment and decree are s aside and the suit shall stand dismissed. There will be no order as to costs. |
S.A. No. 231 of 1997 - Manathankandiyil Nani Vs. Kuniyil Gangadharan, (2012) 254 KLR 183
(2012) 254 KLR 183 IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT: THE HONOURABLE MR.JUSTICE P.BHAVADASAN WEDNESDAY, THE 6TH DAY OF JUNE 2012/16TH JYAISHTA 1934 SA.No. 231 of 1997 (C) ---------------------- AS.20/1994 of SUB COURT, QUILANDY OS.265/1989 of MUNSIFF COURT, QUILANDY APPELLANT(S/APPELLANTS/PLAINTIFFS: ---------------------------------- 1. MANATHANKANDIYIL NANI, VEYATTUMMAL, NATIYANAD AMSOM AND DESOM, KOZHIKODE TALUK. 2. THOTTATHIL UMMARATH KARTHI, PUNNASSERY AMSOM, KUTTAMPUR DESOM, KOZHIKODE TALUK. BY ADVS.SRI.M.C.SEN (SR.) SMT.SHAHNA KARTHIKEYAN SRI.S.PRAKASH SRI.M.P.SREEKRISHNAN RESPONDENT(S)/RESPONDENT/1ST DEFENDANT: -------------------------------------- KUNIYIL GANGADHARAN, S/O. KUNHIKANDAN, SIVAURAM AMSOM AND DESOM, QUILANDY TALUK. BY ADV. SRI.BIJU ABRAHAM BY ADV. SRI.B.G.BHASKAR THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 11-04-2012, THE COURT ON 06.06.2012 DELIVERED THE FOLLOWING: P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 231 of 1997 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 6th day of June, 2012 Head Note:- Hindu Succession Act, 1956 - Section 25 - The murderer is precluded from inheriting the assets of the victim on the principles of justice, consciousness and also on public policy. Merely because a murderer was able to secure an acquittal on the basis of the defence set up under S. 84 IPC, that cannot be taken aid of to avoid the disqualification under S. 25 of the Hindu Succession Act. Hindu Succession Act, 1956 - Section 25 - The word murder as contained in Section 25 could not be read or equated to the definition of the offence of murder in IPC and the term in Section 25 stands on a different footing and has a larger, wider purport and meaning. Hindu Succession Act, 1956 - Section 27 - The person disqualified will be deemed to have died before the intestate. Civil Trial - Mere production of a judgment of the criminal court will not be sufficient to establish any fact which needs to be independently established in a civil proceeding. J U D G M E N T The twin questions that arise for consideration in this Second Appeal are (i) whether a murderer who secured an acquittal by virtue of the defence set up under Section 84 of the Indian Penal Code is disqualified under Section 25 of the Hindu Succession Act from inheriting the estate of the murderer and (ii) how is the separate estate of the murderer to devolve consequent on his death? 2. The facts fall within a very narrow compass and are not really in dispute. Plaint items 1 to 5 were acquired under Exts.A1, A2, A4, A5 and A7. The properties jointly belonged to Karthiyani and her son Mohandas. Ext.A6 relating to item No.6 of the plaint schedule is the property which Mohandas obtained by assignment from Kalliani, who was the second defendant in the suit. Mohandas was the only child of Karthiyani. Karthiyani, her husband and Mohandas died on 1983, 1959 and 1988 respectively. The plaintiffs are the paternal sisters of Mohandas. At the time of the death of Mohandas he had not left behind any legal heirs other than the plaintiffs. While they were in possession of the property, it is alleged that the defendants are said to have trespassed into the property and appropriated the usufructus from the property. According to the plaintiffs, the defendants have no manner of rights over the suit properties. They therefore sued for recovery of possession on the strength of title. The plaint also makes mention of a suit O.S.236 of 1989 filed by the second defendant in which she procured an interim injunction. On these allegations the suit was laid. 3. The defendants resisted the suit. Mohandas had no rights over plaint item No.6. It was in the exclusive possession of defendant No.2. The second defendant is the mother of Karthiyani, who was the mother of Mohandas. It is contended that Mohandas caused the death of his mother for which he had been convicted and sentenced. Since he had murdered his mother he is disqualified from inheriting her assets. Therefore the plaintiffs have no manner of rights over the suit property. As regards item No.6 it was contended that Et.A6 document was procured from the second defendant by threat and coercion and that has no value in law. Mohandas committed suicide on 18.10.1989. On the basis of these contentions, they prayed for a dismissal of the suit. 4. Issues were raised by the trial court. The evidence consists of the testimony of Exts.A1 to A8 marked from the side of the plaintiffs. The defendants did not adduce any evidence. 5. The trial court on an evaluation of the evidence came to the following findings: (i) Since Mohandas was acquitted in the criminal proceedings, it could not be said that he was guilty of murdering his mother. He is not disqualified from inheriting the estate of his mother and (ii) since the parties have not adduced any evidence regarding the personal law applicable, it is not possible to determine the issue involved. On the basis of the above findings, the suit was dismissed. 6. The aggrieved plaintiffs carried the matter in appeal as A.S.20 of 1994. The appellate court on an independent evaluation of the evidence before it came to the conclusion that by virtue of Ext.A3 judgment in the criminal proceedings, it is clear that Mohandas caused the death of his mother and therefore was disqualified under Section 25 of the Hindu Succession Act from inheriting the estate of his mother. Thereafter taking aid of Section 27 of the Hindu Succession Act the appellate court came to the conclusion that Mohandas will be presumed to have died earlier than the intestate. However, applying Section 17 of the Hindu Succession Act, it was found that the plaintiffs could not succeed and hence the dismissal of the suit was confirmed. It is the said judgment and decree that are assailed in this appeal. 7. Notice is seen issued on the following questions of law: "1. Whether the lower appellate court was right in holding that Mohandas from whom the plaintiffs claim Succession was disqualified to succeed his mother under Sec.25 of the Hindu Succession Act when it is clear from Ext.A3 that the said Mohandas has been acquitted of the charge on grounds of insanity and has been given the benefit of Sec.84 of the Indian Penal Code. 2. Whether the lower courts were right in overlooking Sec.8(b) r/w. Entry VII Clause (2) of the schedule of the Hindu Succession Act to decide that the plaintiffs are the actual legal heirs of deceased Mohandas. 3. Whether the lower appellate court was right in deciding the Succession under Sec.17 of the Hindu Succession Act when there was no specific plea by the defendants that they were marumakkathayees. 4. Whether the lower courts erred in overlooking the fact that the presumption in A.S.313/67 decided by the Hon'ble High court of Kerala that the Thiyyas of North Malabar are marumakkathayees is rebuttable and that the burden of proof lies on the defendants who contended that they were marumakkathayees." 8. Learned counsel appearing for the appellants contended that the court below was not justified in holding that Mohandas was disqualified under Section 25 of the Act from inheriting the estate of his mother. The lower appellate court, according to the learned counsel, failed to note that the criminal proceedings ended in acquittal of Mohandas and if that be so, it could not be said that he is the murderer of his mother. It was also contended that Section 25 can be invoked only in case where the murder is committed with the intention of inheriting the estate and not in a case in which the murder is committed by a person who is found to be insane and acquitted in trial for the offence of murder. It was also contended that the finding of the court below that Section 27 applies is also erroneous. According to the learned counsel plaint items 1 to 5 were the joint acquisitions of Karthiyani and Mohandas and each had half right over the suit properties. Even assuming that by virtue of Section 25 of the Hindu Succession Act Mohandas was disqualified from inheriting the estate left behind by Karthiyani, he will be deemed to have died before the intestate only in respect of the assets which belonged to Karthiyani. As far as half share of Mohandas is concerned over items 1 to 5, it has to devolve according to normal rules of Hindu Succession Act. It was also contended that by virtue of Ext.A6 Mohandas had independent rights over plaint item No.6 and that had to devolve in accordance with Hindu Succession Act and could not be treated as the estate of Karthiyani taking aid of Section 27. 9. It was also pointed out by the learned counsel for the appellants that there is no evidence in the case on hand to show that Mohandas had caused the death of his mother and in the absence of any evidence the lower appellate court was not justified in coming to the conclusion that the disqualification under Section 25 is attracted. 10. Learned counsel appearing for the contesting respondents pointed out that it is true that both sides did not adduce independent evidence at all to show whether Mohandas was the murderer or not of his mother Karthiyani. However, the plaintiffs produced Ext.A3 document, which is the judgment in S.C. No.110 of 1983 and placed considerable reliance on the said document for the position that since Mohandas was acquitted in the criminal trial, he is not disqualified under Section 25 of the Hindu Succession Act. Having produced Ext.A3 and having placed considerable reliance on the same, the defendants were therefore relieved of the burden of proving that Mohandas murdered his mother. Infact there was a finding in Ext.A3 that it is so. Learned counsel did not dispute the fact that strictly speaking the judgment in a criminal trial is not evidence in civil proceedings and independent evidence will have to be adduced in the civil proceedings to establish the fact that the person concerned is disqualified from inheriting the estate of the deceased by virtue of having caused the murder of the deceased. However, in the case on hand, the defendants stand relieved of discharging that burden because of the fact that the plaintiffs have produced the judgment and relied on the same to wriggle out of the disqualification under Section 25 Hindu Succession Act. In such circumstances, all that the defendants have to do is to show that inspite of the acquittal as could be seen from Ext.A3 Mohandas did cause murder of his mother and thus was disqualified. Learned counsel went on to point out that the word murder in Section 25 of the Hindu Succession Act has a larger and wider meaning and cannot be equated to the term as contained in the Indian Penal Code. Learned counsel emphasized that the words used in Section 25 of the Hindu Succession Act are not 'convicted of murder' or 'tried for the offence of murder', but the word used is 'murder'. The word murder has to be understood in the common parlance and if that be so, when a person causes the death of another person, that amounts to murder and acquittal or conviction is not a matter of much relevance. In the case on hand, it was further pointed out that there is a definite finding in Ext.A3 that Mohandas had caused the death of Karthiyani by strangulating her thus his act amounted to murder. However, he set up defence under Section 84 of the Indian Penal Code which was accepted by the court below and therefore he was not convicted and sentenced. By virtue of having secured an acquittal on the basis of the defence set up under Section 84 I.P.C., it does not mean that Mohandas did not cause the murder of his mother and the acquittal on that ground cannot be taken aid of to avoid the disqualification under Section 25 of the Hindu Succession Act. 11. Strictly speaking the judgment of the criminal court is not by itself evidence in the civil proceedings. In the case on hand, neither side has adduced oral evidence. In the plaint, the plaintiffs claimed that they are the paternal heirs of Mohandas. In the written statement it was pointed out that having caused the death of his mother, Mohandas was disqualified from inheriting her assets and if that be so, the plaintiffs cannot succeed. It was in that context that the plaintiffs caused the production of Ext.A3. They placed considerable reliance on Ext.A3 to contend for the position that since the criminal proceedings ended in the acquittal of Mohandas, he was not disqualified under Section 25 from inheriting the estate of his mother. The question as to whether the judgment of the criminal court could by itself form an evidence in civil proceedings was considered in the decisions reported in Seth Ramdayal Jat v. Laxmi Prasad (AIR 2009 SC 2463) wherein it was held as follows: "14. Section 43 of the Indian Evidence Act reads, thus : "43. Judgments, etc., other than those mentioned in Sections 40, 41 and 42, when relevant- Judgments, orders or decrees other than those mentioned in Sections 40, 41 and 42 are irrelevant, unless the existence of such judgment, order or decree, is a fact in issue, or is relevant, under some other provision of this Act." In terms of the aforementioned provision, the judgment in a criminal case shall be admissible provided it is a relevant fact in issue. Its admissibility otherwise is limited. It was so held in Anil Behari Ghosh v. Smt. Latika Bala Dassi and others [AIR 1955 SC 566] in the following terms : "The learned counsel for the contesting respondent suggested that it had not been found by the lower appellate court as a fact upon the evidence adduced in this case, that Girish was the nearest agnate of the testator or that Charu had murdered his adoptive father, though these matters had been assumed as facts. The courts below have referred to good and reliable evidence in support of the finding that Girish was the nearest reversioner to the estate of the testator. If the will is a valid and genuine will, there is intestacy in respect of the interest created in favour of Charu if he was the murderer of the testator. On this question the courts below have assumed on the basis of the judgment of conviction and sentence passed by the High Court in the sessions trial that Charu was the murderer. Though that judgment is relevant only to show that there was such a trial resulting in the conviction and sentence of Charu to transportation for life, it is not evidence of the fact that Charu was the murderer. That question has to be decided on evidence." In Perumal v. Devarajan and others [AIR 1974 Madras 14], it was held : "2. Even at the outset, I want to state that the view of the lower appellate court that the plaintiff has not established satisfactorily that the first defendant or the second defendant or both were responsible for the theft is perverse and clearly against the evidence and the legal position. The lower appellate Court refused to rely on Exhibit A- 3 which is a certified copy of the judgment in C.C. No. 1949 of 1965. It is true that the evidence discussed in that judgment and the fact that the first defendant had confessed his guilt in his statement is not admissible in evidence in the suit. But it is not correct to state that even the factum that the first and the second defendants were charged under Sections 454, and 380, I.P.C. and they were convicted on those charges could not be admitted. The order of the Criminal Court is, in my opinion, clearly admissible to prove the conviction of the first defendant and the second defendant and that is the only point which the plaintiff had to establish in this case..." A similar issue is dealt in some details in Lalmuni Devi and Ors. v. Jagdish Tiwary and Ors. [AIR 2005 Patna 51] wherein it was held : "14. Relying on the judgment of the Supreme Court in Anil Behari Ghosh v. Smt. Latika Bala Dassi and Ors., (supra), a Division Bench of this Court in its judgment reported in 1968 BLJR 197, Mundrika Kuer v. President, Bihar State Board of Religious Trusts, and 8 others, has laid down to the same effect. Paragraph 7 of the judgment is set out herein below for the facility of quick reference :- "7. It is true that, if the Board acted capriciously and arbitrarily without any material whatsoever and attempts to administer private property, saying that it is a public religious trust, this Court may have to interfere in appropriate cases; but it cannot be said here that there were no prima facie materials to show that the trust is a public religious trust. The acquittal of the petitioner in the criminal case (Annexure-A) was very much relied upon; but it is well settled that acquittal or conviction in a criminal case has no evidentiary value in a subsequent civil litigation except for the limited purpose of showing that there was a trial resulting in acquittal or conviction, as the case may be. The findings of the criminal Court are inadmissible." 15. A judgment in a criminal case, thus, is admissible for a limited purpose. Relying only on or on the basis thereof, a civil proceeding cannot be determined, but that would not mean that it is not admissible for any purpose whatsoever. 16. Mr. Sharma also relies upon a decision of this Court in Shanti Kumar Panda v. Shakuntala Devi [(2004) 1 SCC 438] to contend that a judgment of a civil court shall be binding on the criminal court but the converse is not true. Therein it was held : "(3) A decision by a criminal court does not bind the civil court while a decision by the civil court binds the criminal court. An order passed by the Executive Magistrate in proceedings under Sections 145/146 of the Code is an order by a criminal court and that too based on a summary enquiry. The order is entitled to respect and weight before the competent court at the interlocutory stage. At the stage of final adjudication of rights, which would be on the evidence adduced before the court, the order of the Magistrate is only one out of several pieces of evidence." With respect, the ratio laid down therein may not be entirely correct being in conflict with a Three- Judge Bench decision of this Court in K.G. Premshanker vs. Inspector of Police and Anr. [(2002) 8 SCC 87]. 17. A civil proceeding as also a criminal proceeding may go on simultaneously. No statute puts an embargo in relation thereto. A decision in a criminal case is not binding on a civil court. In M.S. Sheriff and Anr. v. State of Madras and Ors. [AIR 1954 SC 397], a Constitution Bench of this Court was seized with a question as to whether a civil suit or a criminal case should be stayed in the event both are pending. It was opined that the criminal matter should be given precedence. In regard to the possibility of conflict in decisions, it was held that the law envisages such an eventuality when it expressly refrains from making the decision of one Court binding on the other, or even relevant, except for certain limited purposes, such as sentence or damages. It was held that the only relevant consideration was the likelihood of embarrassment. If a primacy is given to a criminal proceeding, indisputably, the civil suit must be determined on its own keeping in view the evidence which has been brought on record before it and not in terms of the evidence brought in the criminal proceeding. The question came up for consideration in K.G. Premshanker (supra), wherein this Court inter alia held : "30. What emerges from the aforesaid discussion is - (1) the previous judgment which is final can be relied upon as provided under Sections 40 to 43 of the Evidence Act; (2) in civil suits between the same parties, principle of res judicata may apply; (3) in a criminal case. Section 300 Cr.P.C. makes provision that once a person is convicted or acquitted, he may not be tried again for the same offence if the conditions mentioned therein are satisfied; (4) if the criminal case and the civil proceedings are for the same cause, judgment of the civil court would be relevant if conditions of any of Sections 40 to 43 are satisfied, but it cannot be said that the same would be conclusive except as provided in Section 41. Section 41 provides which judgment would be conclusive proof of what is stated therein. 31. Further, the judgment, order or decree passed in a previous civil proceeding, if relevant, as provided under Sections 40 and 42 or other provisions of the Evidence Act then in each case, the court has to decide to what extent it is binding or conclusive with regard to the matter(s) decided therein. Take for illustration, in a case of alleged trespass by A on B's property, B filed a suit for declaration of its title and to recover possession from A and suit is decreed. Thereafter, in a criminal prosecution by B against A for trespass, judgment passed between the parties in civil proceedings would be relevant and the court may hold that it conclusively establishes the title as well as possession of B over the property. In such case, A may be convicted for trespass. The illustration to Section 42 which is quoted above makes the position clear. Hence, in each and every case, the first question which would require consideration is - whether judgment, order or decree is relevant, if relevant - its effect. It may be relevant for a limited purpose, such as, motive or as a fact in issue. This would depend upon the facts of each case. It is, however, significant to notice a decision of this Court in M/s. Karam Chand Ganga Prasad and Anr. etc. v. Union of India and Ors. [(1970) 3 SCC 694], wherein it was categorically held that the decisions of the civil court will be binding on the criminal courts but the converse is not true, was overruled, stating : "33. Hence, the observation made by this Court in V.M. Shah case that the finding recorded by the criminal court stands superseded by the finding recorded by the civil court is not correct enunciation of law. Further, the general observations made in Karam Chand case are in context of the facts of the case stated above. The Court was not required to consider the earlier decision of the Constitution Bench in M.S. Sheriff case as well as Sections 40 to 43 of the Evidence Act." [See also Syed Askari Hadi Ali Augustine Imam and Anr. v. State (Delhi Admn.) and Anr. 2009 (3) SCALE 604] Another Constitution Bench of this Court had the occasion to consider the question in Iqbal Singh Marwah and Anr. v. Meenakshi Marwah and Anr. [(2005) 4 SCC 370]. Relying on M.S. Sheriff (supra) as also various other decisions, it was categorically held : "32. Coming to the last contention that an effort should be made to avoid conflict of findings between the civil and criminal courts, it is necessary to point out that the standard of proof required in the two proceedings are entirely different. Civil cases are decided on the basis of preponderance of evidence while in a criminal case the entire burden lies on the prosecution and proof beyond reasonable doubt has to be given." The question yet again came up for consideration in P. Swaroopa Rani v. M. Hari Narayana @ Hari Babu [AIR 2008 SC 1884], wherein the law was stated, thus : "13. It is, however, well-settled that in a given case, civil proceedings and criminal proceedings can proceed simultaneously. Whether civil proceedings or criminal proceedings shall be stayed depends upon the fact and circumstances of each case." 18. It is now almost well-settled that, save and except for Section 43 of the Indian Evidence Act which refers to Sections 40, 41, and 42 thereof, a judgment of a criminal court shall not be admissible in a civil suit. 19. What, however, would be admissible is the admission made by a party in a previous proceeding. The admission of the appellant was recorded in writing. While he was deposing in the suit, he was confronted with the question as to whether he had admitted his guilt and pleaded guilty of the charges framed. He did so. Having, thus, accepted that he had made an admission in the criminal case, the same was admissible in evidence. He could have resiled therefrom or explained away his admission. He offered an explanation that he was wrongly advised by the counsel to do so. The said explanation was not accepted by the trial court. It was considered to be an afterthought. His admission in the civil proceeding was admissible in evidence." 12. In the decision reported in Devendra v. State of U.P. ((2009) 7 SCC 495) it was held as follows: "In Shanti Kumar Panda v. Shakuntala Devi this Court held: "23. (3) A decision by a criminal court does not bind the civil court while a decision by the civil court binds the criminal court. An order passed by the Executive Magistrate in proceedings under Sections 14/146 of the Code is an order by a criminal court and that too based on a summary enquiry. The order is entitled to respect and wait before the competent court at the interlocutory stage. At the stage of final adjudication of rights, which would be on the evidence adduced before the court, the order of the Magistrate is only one out of several pieces of evidence." There cannot, however, be any doubt or dispute whatsoever that in a give case a civil suit as also a criminal proceeding would be maintainable. They can run simultaneously. Result in one proceeding would not be binding on the court determining the issue before it iin another proceeding. In P. Swaroopa Rani v. M. Hari Narayana the law was stated, thus: "11. It is, however, well settled that in a given case, civil proceedings and criminal proceedings can proceed simultaneously. Whether civil proceedings or criminal proceedings shall be stayed depends upon the fact and circumstances of each case." 14. It was, however, submitted that by reason of execution of a deed of sale claiming title over the property, which the appellants were not entitled to , the respondent complainant had been cheated. It is difficult to accept the said contention. The appellants had not made any representation to respondent 2. No contract and/or transaction had been entered into by and between the complainant and the appellants." 13. In the decision reported in Mohandas v. Abdul Azeez (2011(3) K.L.T. SN 145) it was held as follows: "A perusal of the provisions contained in Ss.41 to 43 will give a clear perspective as to how judgments, orders or decrees passed by a competent court would become relevant in another case. If the decree or judgment in question is inter partes and if the existence of the said judgment is not disputed by either of the two parties, the said judgment or decree becomes all the more relevant. It need not be stressed that the decree or judgment assumes greater relevance and significance if the decree or judgment sought to be relied on is in respect of the same subject matter. In the case on hand admittedly the suit was in relation to the very same cheque (Ext.P1). It is beyond controversy that the trial court had passed the judgment in the case on April 26, 1995 holding the petitioner guilty of the offence. Nevertheless the complainant chose to institute the suit before the civil court on August 4, 1995. Apparently at that time the appeal preferred by the petitioner was pending before the Sessions Court. The civil court dismissed the suit on December 5, 1997. The Sessions court had disposed of the criminal appeal only on June 21st, 2001. However, it appears that the decree passed by the civil court was not brought to the notice of the Sessions Court. Any how the fact remains that the Sessions Court confirmed the order of conviction and sentence passed by the trial court. As mentioned earlier, the short question that falls for consideration is whether the fate of the criminal prosecution should hang on the decree and judgment passed by the civil court based on the very same cheque. It is trite that if the criminal case and the civil proceedings are for the same cause, judgment of the civil court would be relevant, if conditions stipulated in Ss. 40 to 43 are satisfied." From a reading of the above decisions, it becomes clear that mere production of a judgment of the criminal court will not be sufficient to establish any fact which needs to be independently established in a civil proceeding. At best, the judgment in the criminal proceedings would indicate that there was such a proceedings before the criminal court which ended in a particular manner. Normally therefore independent evidence had to be adduced in the suit to show that Mohandas had caused the murder of his mother and therefore was disqualified. Since the defendants relied on such a disqualification, it was for them to establish the said fact. 14. But unfortunately in this case, that burden on the defendants stands relieved by the act of the plaintiffs in producing Ext.A3 judgment in S.C.No. 110 of 1983 of the Sessions Court, Kozhikode and relying on the same for the purpose of showing that the trial has ended in the acquittal of Mohandas. Since reliance was placed on by the plaintiff on Ext.A3 and had produced the said document as a piece of evidence and also on that basis contend that Mohandas is not disqualified under Section 25 of the Hindu Succession Act, it will be open to the defendants to rely on the very same item of evidence to show that it is not so. 15. Having placed reliance on Ext.A3 document by the plaintiffs to show that the disqualification under Section 25 of the Hindu Succession Act is not attracted, they cannot be heard to say that the defendants cannot rely on the very same document and establish that inspite of the acquittal, Mohandas stands disqualified from inheriting the estate of Karthiyani, his mother. 16. The next question that arises for consideration is the consequence of acquittal in the criminal proceedings. 17. Section 25 of the Hindu Succession Act reads as follows: "25. Murderer disqualified.- A person who commits murder or abets the commission of murder shall be disqualified from inhering the property of the person murdered, or any other property in furtherance of the succession to which he or she committed or abetted the commission of the murder." The Section only makes mention of a person committing murder. It does mention that the person who has committed the offence of murder and not that the person who has been convicted for the offence of murder. The above provision has come up for consideration before different courts including the Apex Court. It will be useful at this point of time to refer to some of the decisions to understand the real purport of the word murder in Section 25 of the Hindu Succession Act. 18. Before going into the decisions, it may be noted that disqualification for the first time came in the statutory form in Section 25 of the Hindu Succession Act. Even prior to such statutory introduction, the issue had come up for consideration before courts. In the decision reported in Kenchuva v. Girimallappa (AIR 1924 PC 209) a similar issue had arisen for consideration. At the relevant time, the Hindu Law did not contain a provision disqualifying a murderer from inheriting the estate of the victim and it was contended before the court that since there is no statutory disqualification, the murderer can inherit the estate of the murdered. Repelling the contention, it was held as follows: "......There is much to be said for the argument of the Subordinate Judge that the principles of jurisprudence which can be traced in Hindu law, would warrant an inference that according to that law a man cannot take advantage of his own wrong, and that if this case had come under consideration by the Hindu sages they would have determined it against the murderer. But it is unnecessary so to decide, because the alternative is between the Hindu Law being as above stated or being for this purpose non-existent, and in this latter case the High Court have rightly decided that the principles of equity, justice and good conscience exclude the murderer. The English law on this subject is based upon principle and is well settled. It is true that the reported decisions have been in cases where the murderer was a devisee or legatee under the will of the murdered person, and that Joyce, J, in Re Houghton (1) thought it a matter for consideration whether the same rule would apply in the case of an intestacy, and cited a decision of a court in the U.S.A. by which it was held that the provisions of the Statute of Distributions were paramount and forbade the consideration of any disqualification. But the actual decision of Joyce, J. was rested upon another ground and a quite satisfactory one; and their Lordships are are unable to follow the reasoning of the learned American Jude. Statutes regulating heirship or descent, or giving force to wills and to the devises contained in wills should be read as not intended to affect paramount questions of public policy or depart from well settled principles of jurisprudence. In their Lordships' view it was rightly held by the to Courts below that the murderer was disqualified; and with regard to the question whether he is disqualified wholly or only as to the beneficial interest which the Subordinate Judge discussed, founding upon the distinction between the beneficial and legal estate which was made by the Subordinate Judge and by the High Court of Madras in the case of Vedanayaga Mudaliar v. Vedammal, their Lordships Lordships reject, as did the High Cort here, any such distinction. The theory of legal and equitable estates is no part of Hindu law and should not be introduced into discussion. The second question to the decided is whether title can be claimed through the murderer. If this were so, the defendants as the murderer's sisters would take precedence of the plaintiff, his cousin. In this matter also, their Lordships are of opinion that the courts below were right. The murderer should be treated as non-existent and not as one who forms the stock for a fresh line of descent. It may be pointed out that this view was also taken in the Madras case just cited." An interesting question came up for consideration in the decision reported in N.Seetharamaih v. N. Ramakrishnaiah (AIR 1970 Andhra Pradesh 407). There the plaintiff was prosecuted along with others for the offence punishable under Section 302 read with Section 34 IPC. The plaintiff was found guilty of the offence punishable under Section 324 read with Section 34 I.P.C. He was convicted and sentenced to undergo a term of imprisonment. Thereafter the plaintiff instituted a suit claiming the estate of the victim. The contention was that since he was not convicted for the offence of murder, it could not be said that he is disqualified. However, the court concerned found on evidence that the plaintiff did cause injury which ultimately resulted in the death of the victim and even though he was not convicted for the offence of murder in the criminal proceedings, the evidence in the civil proceedings is enough to show that he had committed the crime of the victim whose estate he intended to inherit. In the said decision it was held as follows: "..... Therefore, the question that falls to be considered is whether the plaintiff is disqualified from inheriting the property of his father by virtue of the bar imposed by Sections 25 and 27 of the Hindu Succession Act. Section 25 reads: "A person who commits murder or abets the commission of murder shall be disqualified from inheriting the property of the person murdered, or any other property in furtherance of the succession to which he or she committed or abetted the commission of the murder." It may be necessary to refer to the case in which the plaintiff stood charged along with three other accused for the murder of his father Narayana and his paternal uncle under Section 302 read with Section 34, I.P.C. The Sessions Judge, Khammam convicted the plaintiff and the other accused in S.C. No.13 of 1959 under S.326 read with S.34, I.P.C. while acquitting them of the charge under Sec.302 read with S.34, I.P.C. framed against them. They were also convicted under S.324 read with S.34 I.P.C. for robbery of a cart load of paddy from Narayana's possession. The State preferred an appeal against the acquittal of the plaintiff and the other accused of the offence of murder and the plaintiff and the other accused preferred appeals against their convictions. Krishna Rao and Kumarayya, JJ. before whom the connected appeals came up for hearing found having regard to the nature of the injuries inflicted on the two deceased persons, that the only possible conclusion from the evidence on record was that the injuries of both the deceased were sufficient in the ordinary course of nature to cause death, "although unfortunately the prosecution neglected to directly elicit this fact from P.W.9, as they ought to have done. An offence of murder was clearly committed in respect of each of the deceased within the meaning of Cl.3 of Section 300, I.P.C." Having found thus, the learned Judges then proceed to observe: "Having regard to Cl.3 of Section 300, Indian Penal Code, the learned Sessions Judge was in error in the view he took that for a conviction under Section 302 rad with Section 34, I.P.C. the existence of a common intention to beat is insufficient and that a common intention to kill is always necessary. Even if the common intention is merely to beat, if the bodily injury intended to be inflicted by the beating is found to be insufficient to cause death in the ordinary course of nature the mens rea required for liability under Section 302 read with Sec. 34, I.P.C. would be satisfied." The learned Judges on appraisal of the evidence found: "All the accused would therefore, be liable under Section 302 read with Section 34, I.P.C. The benefit of doubt arising from the difference between the the evidence of P.Ws.1 and 2 and that the P.Ws. 3 and 4 must go to the accused, especially as the trial Judge's finding with regard to the events in Lakshminarayana's pasture land implies that P.Ws.1 and 2 were prone to exaggeration." xxx xxx xxx "As the formed the plan with the object of overpowering the deceased's party and seizing the paddy, the common intention that may be initially attributed to them would be merely at causing hurt to the deceased and their men. If we found ourselves on the evidence of P.Ws.3 and 4, it would follow that the acts of accused 2 and 4 were in excess of that common intention and accused 2 and 4 alone would be liable under Section 302, I.P.C. for the murder of the 2nd deceased and the 1st deceased (plaintiff's father) respectively, and accused 1 and 2 would be liable only under Section 324 read with Section 34, I.P.C. on the charge against them relating to these murders." It is in that view that the plaintiff, who was the 1st accused in that case, was convicted along with another under Section 324 read with Section 34, I.P.C. Basing on these findings, it is contended by Mr. Madhavarao for the plaintiff that as the plaintiff was not convicted for the murder of his father, the disqualification prescribed by Sections 25 and 27 of the Hindu Succession Act cannot be made applicable to him. In this connection, it may be pertinent to notice that Section 25 only says that a person who commits murder or abets the commission of murder shall be disqualified from inheriting the property of the person murdered, but not that a person must be convicted of murder or of abetment of murder, to be disqualified from inheriting the property of the person murdered. The principal charge, against the plaintiff and three of his associates, was that all of them, in furtherance of the common intention of all, attacked the two deceased and inflicted injuries which proved fatal. The learned Judges held that murder was clearly committed within the meaning of Section 300, I.P.C. having regard to the injuries found by the Medical Officer who conducted the autopsies on the two deceased persons. If the learned Judges did not convict the plaintiff and another under Section 302 read with Section 34, I.P.C. it was for the reason that he was given the benefit of doubt arising from the difference between the evidence of P.Ws. 1 and 2 and that of P.Ws. 3 and 4 as to what he intended initially when the attack was launched on his father and another. It is for that reason that this Court held that the plaintiff and another only intended causing hurt to the deceased and their men and that the other two accused by reason of their overt acts, rendered themselves liable to punishment under Section 302, I.P.C. In order to apply the disqualification under Section 25 of the Hindu Succession Act, it is not necessary in my opinion that a person who committed the murder or abetted the commission of murder must also have been convicted of the offence of murder or of abetment of murder under Section 302, Indian Penal Code. That the plaintiff had participated in the murderous attack on his father along with A2 and A4 in that case, who were convicted of murder, is not in dispute. It is because of the nature of injuries inflicted by him on his father and the variations found in the version of the direct witnesses that this court found it safe to convict him under Section 324, I.P.C. Section 25 of the Hindu Succession Act does not contemplate punishment for murder to disqualify the murderer from inheriting the property of the murdered. The application of this provision ought not to be approached from the point of view of punishment for murder . This court has held that murder was clearly committed within the meaning of Section 300 I.P.C. The fact that he was given the benefit of doubt arising out of the conflicting versions of two witnesses and convicted under Section 324, I.P.C. does not in any way absolve him from the heinous crime to which he had made his own infamy contribution. Section 25 is introduced in the Hindu Succession Act as a matter of high public policy based on principles of justice, equity and good conscience to make it absolutely impossible for a murderer who deserves to be hanged or to be shut behind the prison bars for life, to derive advantage or beneficial interest from the very heinous act committed by him." The issue came up for consideration before the High Court of Madras in the decision reported in Saravanabhava v. Sellammal (1972(2) M.L.J. 49). In the said case the plaintiff was found to have murdered his father and he was found guilty. He was given the capital punishment which was confirmed by the Supreme Court. In the mercy petition before the authority concerned, the sentence was reduced to one of imprisonment for life. 19. One aspect which needs to be noticed in the above decision is that it has been held that mere production of judgment of the criminal court is not sufficient evidence of the factum of murder in a civil proceedings and independent proof will have to be produced. However, the point considered was whether the disqualification under Section 25 is for inheritance and not for testamentary succession. Considering the above aspects it was held as follows: "..... Almost all systems of law have recognized that a person guilty of homicide cannot succeed to the property of his victim. Section 25 of the Hindu Succession Act given statutory recognition to the above proposition. Mr. Ramaswamy, the learned counsel for the appellant faintly contended that there is a distinction between inheritance and testamentary succession. I do not agree. In Latikabala Dasi v. Anil Bihari, it is observed: "If Cheru was guilty of particide, he could not take any benefit under the will or inherit to his father. In that case, whatever properties Bendode left, would devolve on his cousin Girish, who was the next reversioner." 20. The issue was considered by the Allahabad High Court in the decision reported in Jamuna Das v. Board of Revenue (AIR 1973 Allahabad 397). Two contentions appear to have been raised in the said case. One of them was that since the succession had opened in 1954, i.e., prior to the Hindu Succession Act, disqualification does not apply and (ii) if at disqualification is attracted, that is only against the succession as per the provisions of the Act and not succession under a different Act. In the said decision it was held as follows: "The rule that a murderer and anyone claiming through him is excluded from succeeding to the estate of the victim which is based on justice, equity and good conscience is not applicable where the succession is not to the estate of the victim of murder but to the estate of a person inheriting from the murdered person. Further, where the succession is governed by the provisions of Zamindari abolition Act, the law of succession laid down therein cannot be altered or changed by any rule or principles not contained in the statute itself. Rules of equity, justice and good conscience are applicable when the matter is not governed by statutory provisions." 21. The word 'murder' occurring in Section 25 of the Hindu Succession Act came up for consideration before the High Court of Bombay in the decision reported in Minoti v. Sushil Mohansingh Malik (AIR 1982 Bombay 68). The High Court took the view that the word 'murder' found in Section 25 of the Hindu Succession Act has a larger meaning and cannot be read in pari materia with the term as contained in Indian Penal Code. In the said decision it was held as follows: "In this context a reference could also be made to the following observation in Halsbury's Laws of England, Third Edition, vol 39, para 1315, p. 869:- "Murder or manslaughter. It is contrary to public policy that a man should be allowed to to claim a benefit resulting from his own crime. Accordingly a donee who is proved to be guilty of the murder or manslaughter of the testator cannot take any benefit under his will." It is this principle of public policy that a person cannot be allowed to claim benefit resulting from his own crime which is approved by the Privy Council in Kanchava's case (AIR 1924 PC 209). When the Hindu Succession Act, 1956 was enacted, the legislature had before it the decision of the Privy Council in Kanchava's case and it appears that it is this well established principle of public policy which legislature thought fit to incorporate in S.25 of the Act, so that the person will not be tempted to commit murder to inherit the property of the person murdered. It is well settled that the word not defined in the Act but a word of every day use must be construed in popular sense as understood in common parlance and not in a technical sense. In popular sense the word "murder" means unlawful homicide or unlawful killing of human being. In popular parlance the word "murder" is not used or understood in the technical sense as defined in S. 300 of the I.P.C. Therefore to construe the said word in a technical sense as defined in S.300 of the I.P.C. will result in defeating the very object of the legislation. It will also run counter to the well established principles of equity, justice and good conscience, or the paramount principle of public policy enshrined in S.25 of the Hindu Succession Act. I am fortified in this view by the decision of the Madras High Court in Sarvanabhava v. Sallemmal, wherein the Madras High Court has observed as under: "Almost all systems of law have recognized that a person guilty of homicide cannot succeed to the property of his victim. Section 25 of the Hindu Succession Act gives statutory recognition to the above proposition." In the present case defendant No.1 is convicted of the offence punishable under Section 304 Part I of I.P.C. viz., for the offence of culpable homicide. From the findings recorded by the learned Sessions Judge it is clear that as many as eleven incised injuries were inflicted by defendant No.1 with a sharp edged knife on the person of deceased Revati. He chose vital parts of the body for inflicting these injuries and had used considerable force. He assaulted Revati with intention of causing her death. Therefore it can safely be held that he has committed murder of Revati within the meaning of the said expression as used in S.25 of the Hindu Succession Act, 1956 and therefore, is disqualified from inheriting the property of deceased Revati, the person murdered. Similar view is taken by the Andhra Pradesh High Court in Nannepuneni Seetharamaiah v. Nannepuneni Ramakrishnaiah (AIR 1970 Andrha Pradesh 407) wherein it is observed by the Andhra Pradesh High Court that to apply the disqualification under S. 25 of the Hindu Succession Act it is not necessary that the person who committed murder or abeted commission of murder must also have been convicted of the offence of murder or of abetment of murder under S.302 of the I.P.C. The said Section does not contemplate punishment for murder to disqualify the murder from inheriting the property of the murdered. The application of the Section should not be approached from the point of view of punishment for murder. In my opinion this is the correct approach for interpreting the provisions of Section 25 of the Act, which incorporates a paramount principles of public policy based on principles of justice, equity and good conscience, so that the person will not be able to take the advantage of his own crime. In this context it is pertinent to note that the words used are "commits murder or abets commission of murder" and not "is convicted of an offence of murder or abets commission of murder" and not "is convicted of an offence of murder or abetment of offence of murder. Therefore, it is clear that the legislature has used the term "murderer" in S. 25 of the Hindu Succession Act not in a technical sense as defined in s. 300 of the I.P.C., but in a wider and popular sense, which must include in its import even culpable homicide of unlawful manslaughter. It is neither possible nor desirable to lay down general rule in this behalf, because to some extent it must depend on the facts and circumstances of each case." 22. The issue was considered in the decision reported in G.S. Sadashiva v. M.C.Srinivasan (AIR 2001 Karnataka 453). What is relevant for the purpose are paragraphs 9 and 10 which reads as follows: "I could have accepted the contentions of the learned advocate for the appellant provided the appellant had placed sufficient material to show that the plaintiff was responsible for the murder of his wife or in other words that Bharathi did not commit suicide and that it was a case of murder. But the appellant has not placed any material before the trial court. No evidence has also been let it. The doctors who were treating Bharathi were also not summoned and based on the opinion of the defendant No.1, any man of prudence cannot accept the contentions of the appellant. Now, let me examine S.25 of the Act and whether I can apply the said principle as contended by the learned counsel for the appellant to the facts and circumstances of this case. Section 25 reads as hereunder: "Murderer disqualified.- A person who commits murder or abets the commission of murder shall be disqualified from inheriting the property of the person murdered, or any other property in furtherance of the succession to which he or she committed or abetted the commission of the murder." From reading of S.25 of the Act, it is clear that the person who commits a murder or abates the commission of murder is disqualified from inheriting the property of the person murdered. Therefore, what is required to be proved by the 1st defendant is that his daughter was murdered by the plaintiff or that the plaintiff has abated commission of murder. Even if the plaintiff is acquitted by the criminal Court, if the 1st defendant is able to satisfy that the plaintiff was acquitted either on any technical ground or extending the benefit of doubt and can show that his daughter was actually murdered by the plaintiff or that the plaintiff was responsible for abating the crime. In such circumstances, 1st defendant was right in canvassing that in view of S.25 of the Act plaintiff is dis-qualified to inherit or succeed to the properties of his daughter. But in the instant case, 1st defendant is unable to prove that actually his daughter was murdered. When a competent Court has given a finding that the death of Bharathi was due to suicide considering the medical evidence and when the 1st defendant has not placed any evidence before the civil court to prove that Bharathi did not commit suicide, I cannot interfere with the judgment of the trial court. No doubt, while dealing with S.25 of the Act, one has to be liberal in defining the word "Murder" and one should not be too technical. In popular parlance the word "Murder" is not used or understood in the technical sense as defined in S. 300 of IPC. Therefore, to construe the said word in technical sense as defined in S. 300 of IPC, will result in defeating the very object of the Legislature. It will also run counter to the well established principles of equity, justice and good conscience. But considering the evidence adduced by the parties, I am not in a position to apply the principles of S. 25 of the Act to non-suite the plaintiff. Therefore, judgment and decree of the trial court is required to be confirmed and accordingly, appeal of the 1st defendant in R.F.A. No.716/97 is hereby dismissed and the judgment and decree of the trial court passed against the 1st defendant is confirmed." 23. The issue was considered by the apex court in the decision reported in Vallikannu v. R.Singaperumal (AIR 2005 SC 2587) wherein it was held as follows: "The concept of coparcener as given in the Mitakshara School of Hindu Law as already mentioned above, is that of a joint family property wherein all the members of the coparceners share equally. In this connection a reference may be made to a decision of this Court in the case of State of Maharashtra v. Narayan Rao Sham Rao Deshmukh and others reported in (1985) 2 SCC 321, in which Their Lordships have held as follows: "A Hindu coparcenary is, however, a narrower body than the joint family. Only males who acquire by birth an interest in the joint or coparcenary property can be members of the coparcenary or coparceners. A male member of a joint family and his sons, grandsons and great grandsons constitute a coparcenary. A coparcener acquires right in the coparcenary property by birth but his right can be definitely ascertained only when a partition takes place. When the family is joint, the extent of the share of a coparcener cannot be definitely predicated since it is always capable of fluctuating." Therefore, in view of various decisions of this Court it appears that Defendant No.1 and the plaintiff who was married to Defendant No.1 were members of Joint Hindu Family. If the defendant- appellant had not incurred the disqualification, then they would have inherited the property as per Mitakshara School of Hindu Law. But the question is that when the sole male survivor had incurred the disqualification can he still claim the property by virtue of Mitakshara School of Hindu Law? If he cannot get the property by way of survivorship, then the question is whether his wife who succeeds through the husband can succeed to the property? Our answer to this question is in negative. In fact, prior to the amendment of the Hindu Succession Act, Sections like 25 and 27 were not there but the murderer of his own father was disqualified on the principle of justice, equity and good conscience and as a measure of public policy. This position of law was enunciated by the Privy Council way back in 1924 in the case of Kenchava Kom Sanyellappa Hosmani and Anr. v. Girimallappa Channappa Somasagar, reported in AIR 1924 PC 209, wherein their Lordships have held as follows : "In their Lordships' view it was rightly held by the two Courts below that the murderer was disqualified; and with regard to the question whether he is disqualified wholly or only as to the beneficial interest which the Subordinate Judge discussed, founding upon the distinction between the beneficial and legal estate which was made by the Subordinate Judge and by the High Court of Madras in the case of Vedanayaga Mudaliar v. Vedammal, their Lordships reject, as did the High Court here, any such distinction. The theory of legal and equitable estates is no part of Hindu Law, and should not be introduced into discussion. The second question to be decided is whether the title can be claimed through the murderer. If this were so, the defendants as the murderer's sisters, would take precedence of the plaintiff, his cousin. In this matter also, their Lordships are of opinion that the Courts below were right. The murderer should be treated as non - existent and not as one who forms the stock for a fresh line of descent. It may be pointed out that this view was also taken in the Madras case just cited." Their Lordships also explained the decision in the case of Gangu v. Chandrabhagabai reported in (1908) 32 Bom 275 and held as follows: "It was contended that a different ruling was to be extracted from the decision of the Bombay High Court in Gangu v. Chandrabhagabai. This is not so. In that case, the wife of a murderer was held entitled to succeed to the estate of the murdered man but that was not because the wife deduced title through her husband, but because of the principle of Hindu family law that a wife becomes a member of her husband's gotra, an actual relation of her husband's relations in her own right, as it is called in Hindu Law a gotraja- sapinda. The decision, therefore, has no bearing on the present case." Therefore, the principle which has been enunciated by their Lordships is in no uncertain terms totally disinherit the son who has murdered his father. Their Lordships have observed as follows: "A murderer must for the purpose of the inheritance, be treated as if he were dead when the inheritance opened and as not being a fresh stock of descent; the exclusion extends to the legal as well as beneficial estate, so that neither he can himself succeed nor can the succession be claimed through him." This Privy Council decision made reference to the decisions of the High Courts of Madras and Bombay and their Lordships have approved the ratio contained in those decisions that a murderer should be totally disinherited because of the felony committed by him. This decision of the Privy Council was subsequently followed in the following cases: i. AIR (29) 1942 Madras 277 (K. Stanumurthiayya and others v. K. Ramappa and others). ii. AIR 1953 All 759 (Nakchhed Singh and others v. Bijai Bahadur Singh and another) iii. AIR 1956 All 707 (Mata Badal Singh and others v. Bijay Bahadur Singh and others). iv. AIR 1982 Bom 68 (Minoti vs. Sushil Mohansingh Malik and another). This position of law was incorporated by way of Section 25 of the Hindu Succession Act, 1956 as quoted above, which clearly enunciates that a person who commits murder or abets the commission of murder shall be disqualified from inheriting the property of the person murdered, or any other property in furtherance of the succession to which he or she committed or abetted the commission of the murder. In fact, the objects and reasons also makes a reference to the Privy Council judgment (supra). The objects and reasons for enacting Section 25 read as under: "A murderer, even if not disqualified under Hindu Law from succeeding to the estate of the person whom he has murdered, is so disqualified upon principles of justice, equity and good conscience. The murderer is not to be regarded as the stock of a fresh line of descent but should be regarded as non-existent when the succession opens." Therefore, once it is held that a person who has murdered his father or a person from whom he wants to inherit, stands totally disqualified. Section 27 of the Hindu Succession Act makes it further clear that if any person is disqualified from inheriting any property under this Act, it shall be deemed as if such person had died before the intestate. That shows that a person who has murdered a person through whom he wants to inherit the property stands disqualified on that account. That means he will be deemed to have predeceased him. The effect of Section 25 read with Section 27 of the Hindu Succession Act, 1956 is that a murderer is totally disqualified to succeed to the estate of deceased. The framers of the Act in the objects and reasons have made a reference to the decision of the Privy Council that the murderer is not to be regarded as the stock of a fresh line of descent but should be regarded as non-existent. That means that a person who is guilty of committing the murder cannot be treated to have any relationship whatsoever with deceased's estate. Now, adverting to the facts of the present case, the effect of Sections 25 and 27 is that the respondent No.1 cannot inherit any property of his father as he has murdered him on the principle of justice, equity and good conscience and the fresh stock of his line of descent ceased to exist in that case. Once the son is totally disinherited then his whole stock stands disinherited i.e. wife or son. The defendant- respondent No.1 son himself is totally disqualified by virtue of Sections 25 and 27 of the Hindu Succession Act and as such the wife can have no better claim in the property of the deceased, Ramasamy Konar." 24. From a reading of the above decisions, it becomes clear that the word murder as contained in Section 25 could not be read or equated to the definition of the offence of murder in IPC and the term in Section 25 stands on a different footing and has a larger, wider purport and meaning. 25. On going through Ext.A3 judgment, which is the judgment in the criminal case, it can be seen that Mohandas was given the benefit of Section 84 of the Indian Penal Code and thereby acquitted. Section 334 of the Code of Criminal Procedure may be of some relevance in this context, which reads as follows: "334. Judgment of acquittal on ground of unsoundness of mind.- Whenever any person is acquitted upon the ground that, at the time at which he is alleged to have committed an offence, he was, by reason of unsoundness of mind, incapable of knowing the nature of the act alleged as constituting the offence, or that it was wrong or contrary to law, the finding shall state specifically whether he committed the act or not." 26. A reading of the above provision shows that when an acquittal is rendered on the basis of unsoundness of mind, the judgment shall state whether the act has been committed as alleged by the prosecution. The act made mention of in the said provision must necessarily relate to the offence concerned or the act or omission which constitutes an offence. 27. It is significant to notice that in paragraph 4 of Ext.A3 it is mentioned as follows: "There is thus sufficient evidence on record to show that the mother of the accused had died during the morning of 24.2.1982 by strangulation. There is also evidence to show that it was the accused who killed his mother by tightening M.O.1 belt around the neck." It is found in paragraph 6 of the judgment as follows: "There is evidence on record to to show that the accused had committed the act of murder of his mother by strangulation." 28. Though in the strict sense judgment in the criminal case is not evidence, in the case on hand for reasons already mentioned, the judgment has become relevant. There is a clear finding in Ext.A3 that Mohandas had committed the murder of his mother. 29. Going by the decisions reported in Minoti's case (supra) and G.S. Sadashiva's case (supra), it follows that the word crime occurring in Section 25 has a wider meaning and cannot be restricted to the meaning as contained in the Indian Penal Code. 30. Moreover in Ext.A3 there is a clear finding that the act has been committed by Mohandas and that act resulted in the death of his mother. Even prior to the disqualification brought in by the Hindu Succession Act, as could be seen from the decision of the Privy Counsel referred to above, the courts were inclined to take the view that the murderer is precluded from inheriting the assets of the victim on the principles of justice, consciousness and also on public policy. 31. Therefore, merely because Mohandas was able to secure an acquittal on the basis of the defence set up under Section 84 of the Indian Penal code, that cannot enure to the benefit of the plaintiffs in the present suit for the reason that there is a clear finding in Ext.A3 that the murder of Karthiyani was infact committed by Mohandas. 32. The contention raised by the learned counsel for the appellants that the word murder contemplated under Section 25 of the Hindu Succession Act should be one for the purpose of inheriting the estate is without any legal basis. The section does not lay down any such qualification. It is absolute in its terms. 33. It therefore follows that the finding of the lower appellate court that Mohandas had incurred the disqualification contained in Section 25 of the Hindu Succession Act does not call for any interference. 34. As regards the second question that arises for consideration, it would appear that the lower appellate court has not addressed itself properly to the issues that arose for consideration. The lower appellate court relied on Section 27 of the Hindu Succession Act and treating the murderer having died prior to intestate went on to consider the inheritance on the basis that Karthiyani, the mother of Mohandas, became the sole heir of the entire properties. 35. Section 27 of the Hindu Succession Act reads as follows: "27. Succession when heir disqualified.- If any person is disqualified from inheriting any property under this Act, it shall devolve as if such person had died before the intestate." 36. Obviously Section 27 has to be read along with Section 25 of the Act. It necessarily follows that the disqualification made mention of in Section 27 attaches itself only to those assets which belonged to the victim and does not intend to regulate the succession of the estate which independently belong to the assailant. 37. It is true that Section 27 says that the person disqualified will be deemed to have died before the intestate. 38. As already noticed, items 1 to 5 in the plaint schedule stands in the joint names of Karthiyani and Mohandas. Item No.6 which is covered by Ext.A6 document stands in the name of Mohandas alone. The lower appellate court has not considered whether the independent rights which Mohandas had over items 1 to 5 and exclusive right which he had over item No.6 would devolve in the same manner as the half right which Karthiyani had enjoyed over item Nos.1 to 5 of the plaint schedule properties. 39. It is not in dispute that Karthiyani died in 1983 while Mohandas died only in 1988. Of course it has already been found that in the light of the fact that Mohandas had caused the death of Karthiyani, he incures disqualification under Section 25 so far as the estate of Karthiyani is concerned. But the lower appellate court did not address itself to the question as to what happens to the independent share which Mohandas had over the properties and exclusive right which he had over item No.6. The provision of the Hindu Succession Act which would apply in case it is found that Mohandas had independent rights over item Nos. 1 to 5 and exclusive right over item No.6 and if it is found that the disqualification could not be attracted as far as his rights are concerned, has not been considered by the lower appellate court. The lower appellate court has gone on to take the view that since Mohandas will be deemed to have died prior to the intestate, that is Kalliayani, by virtue of Section 27 of the Hindu Succession Act, the entire properties will have to be treated as if it had belonged to Karthiyani. As already noticed, the lower appellate court has not addressed itself to the question as to whether Section 27 is attracted in case of independent rights which Mohandas had over items 1 to 5 and exclusive right over item No.6 by the disqualification has not been considered. In the result, this appeal is partly allowed, the impugned judgment and decree are set aside and the matter is remanded to the lower appellate court for considering the question whether the independent rights which Mohandas had over items 1 to 5 as per the different documents produced by the plaintiffs and exclusive right which he had over item No.6 would devolve as if it belonged to Karthiyani treating Mohandas having died prior to Kalliyani in respect of the assets which exclusively belonged to Mohandas also. The matter is remanded for the above purpose only. Parties shall appear before the lower appellate court on 27.6.2012. The lower appellate court may make every endeavour to dispose of the appeal within three months from the date of appearance of the parties. Forward a copy of this judgment to the lower appellate court. P. BHAVADASAN, JUDGE sb. |
S.A. No. 210 of 1999 - Chandramathy Vs. Arundhathi, (2012) 248 KLR 685
(2012) 248 KLR 685 IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT: THE HONOURABLE MR.JUSTICE S.S.SATHEESACHANDRAN MONDAY, THE 9TH DAY OF APRIL 2012/20TH CHAITHRA 1934 SA.No. 210 of 1999 (G) ---------------------- AS.234/1994 of ADDL.DISTRICT COURT, THRISSUR OS.872/1987 of PRINCIPAL SUB COURT,THRISSUR APPELLANT(S)/RESPONDENT/PLAINTIFF: ------------ CHANDRAMATHY,D/O.MULLATH VELAYUDHAN AND W/O.KUNNATHULLY BALAN, KECHERI DESOM, ERANELLUR VILLAGE, THALAPPILLY TALUK. BY ADV. SRI.N.N.SUGUNAPALAN (SR.) RESPONDENT(S)/APPELLANTS/DEFENDANTS: -------------- 1.ARUNDHATHI,D/O.ALUKKAL RAJAN AND W/O.LATE SREEVALSADASAN, S/O.EDAKKADATH UNNERI, PERUMANNU DESOM, ERANELLUR VILLAGE, THALAPPILLY TALUK. 2.SHINE,S/O.1ST RESPONDENT AND LATE SREEVALSADASAN, RESIDING WITH 1ST RESPONDENT. BY ADVS.SRI.M.R.VENUGOPAL SRI.K.S.SAJEEV KUMAR SMT.DHANYA P.ASHOKAN THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 22-03-2012, ALONG WITH SA. 251/1999 AND SA. 268/1999, THE COURT ON 09-04-2012 DELIVERED THE FOLLOWING: C.R. S.S.SATHEESACHANDRAN, J. ------------------------------- S.A.NOS.210, 251 & 268 OF 1999 ----------------------------------- Dated this the 9th day of April, 2012 Head Note:- Code of Civil Procedure, 1908 - Order XXI Rule 58 (2) - Whether the conclusive findings rendered in the claim petition would operate as res judicata from setting up any claim of ownership over the suit property? - Held, All right, title and interest over the attached property as between the parties is conclusively determined in the proceedings of the claim petition. The decision in the claim petition preclude from setting forth any further claim. The lifting of the attachment over the entire property upholding the claim of the claimant would foreclose any further challenge. J U D G M E N T These three appeals arise from the common judgment rendered in four appeals A.S.Nos.234/1994, 235/1994, 248/1994 and 250/1994 rendered by the learned District Judge, Thrissur, which, in turn arose from the common judgment and decree in two suits O.S.Nos.872 of 1987 and 808 of 1988 rendered by the learned Sub Judge, Thrissur. 2. The appeal S.A.No.210 of 1999 is by the plaintiff in O.S.No.872 of 1987 against the decree rendered in that suit, to the extent the relief canvassed for was declined by the courts below, which has been decreed only in part. The defendants in the above suit are the plaintiffs in the other suit O.S.No.808 of 1988. They have preferred the other two appeals S.A.Nos.251 of 1999 and 268 of 1999 to the extent aggrieved by the declining of the reliefs canvassed for in their suit, which too was decreed only in part by the courts below, and also, the decree granted in part to the plaintiffs in the connected suit. As parties in both suits are one and the same, and challenge is against the decision rendered under common judgment disposing the two suits, and later the appeals, for the sake of convenience, parties are hereinafter referred to as ranked in O.S.No.872 of 1987 as 'plaintiff' and 'defendants' unless it is otherwise found necessary for reference, to dispose these appeals. 3. The background on which suit claims were canvassed by the rival side in their respective suit, over which no dispute could be canvassed of deserve to be taken notice at the outset itself, and it can be summed up thus: The defendants are the wife and son of one Sreevalsadasan with whom the husband of the plaintiff, namely, Kunnathully Balan had money transaction, with the former to discharge the liability to the latter. The aforesaid Kunnathully Balan instituted a suit as O.S.No.261 of 1972 for recovery of money, against Sreevalsadasan. In that suit, an immovable property having an extent of 44 cents comprised in two survey numbers viz. Sy.No.626/2 (26 cents) and Sy.No.626/3 (18 cents) with a house situate therein in Eranelloor village was attached before judgment to secure the suit claim, as belonging to Sreevalsadasan. In execution, when the property was proceeded against, by which time Sreevalsadasan had already passed away, the present defendants set up a claim over the property on the basis of Ext.B1 settlement deed executed by Sreevalsadasan. Claim canvassed by them was upheld by the execution court resulting in the lifting of the attachment over the property. Ext.B2 is that order. Ext.B2 was challenged in appeal by the decree holder but of no avail as the appellate court affirmed that order. Ext.B3 is the judgment rendered by the appellate court. As against Ext.B3 judgment, the decree holder preferred a second appeal before this Court. But he did not pursue such appeal reporting that Sreevalsadasan had assigned his one half right in the property involved in favour of Chandramathy, wife of the decree holder, the present plaintiff, and as such, he was not interested in bringing that property to sale. Noting the submissions made on behalf of the decree holder/the appellant, the Ex.S.A. was dismissed. Ext.B4 is the copy of the judgment dated 04.10.1988. 4. The backdrop of the factual scenario as presented above is of crucial importance in considering the claims canvassed by the rival parties over the suit property, which, no doubt, are based on divergent allegations conflicting to one another, to sustain the reliefs canvassed in their respective suit. Both the suits had been instituted much prior to Ext.B4 judgment rendered in the Ex.S.A. by this Court, but, only after Ext.B2 order passed by the execution court lifting the attachment made over the property allowing the claim petition of the defendants. 5. O.S.No.872 of 1987 was originally filed before the Munsiff Court, Wadakkanchery as O.S.No.69 of 1984 for a decree of injunction. Later, the suit was converted as one for recovery of possession on the strength of title, and on such amendment, the plaint being returned for want of pecuniary jurisdiction, it was re-presented before the Sub Court and numbered as O.S.No.872 of 1987. Plaint in that suit was later amended to include an alternate relief for partition with mesne profits. Suit claim by the plaintiff was based on Ext.A1 sale deed executed in her favour by Sreevalsadasan conveying title over the entire extent described in the plaint schedule, 44 cents referred to above. The other suit O.S.No.808 of 1988 was initially filed before the Munsiff Court, Wadakkanchery as O.S.No.112 of 1984 by the defendants in the former suit as plaintiffs seeking a declaration that Ext.A1 sale deed is null and void, and inoperative. That suit was later transferred to Sub Court, Thrissur and renumbered as O.S.No.808 of 1988. In that suit, the present defendants, the plaintiffs therein, based their claim over the entire property on the basis of Ext.B1 settlement deed executed by late Sreevalsadasan in favour of himself, his wife and their children. In the execution proceedings of the decree passed in O.S.No.261 of 1972 of the Munsiff Court, Wadakkancherry, the attachment made over the present suit property as if it belonged to late Sreevalsadasan at the instance of the husband of the present plaintiff Chandramathi had been lifted upholding the claim of the wife and son of late Sreevalsadasan based on Ext.B1 settlement deed was canvassed for in the above suit to contend that no validity can be attached to Ext.A1 sale deed and no assignment of title, interest or possession over the suit property had passed on under that deed to the plaintiff, Chandramathi. 6. The questions that emerged for adjudication in the two suits primarily called for answers over the validity of Ext.A1 sale deed executed by Sreevalsadasan in favour of the plaintiff, Chandramathi and the exclusive title and possession claimed over the suit property under Ext.B1 settlement deed, that too, by Sreevalsadasan in favour of himself, his wife and their child. After trial, the learned Sub Judge held that under Ext.A1 sale deed, plaintiff had obtained one half right over the property, which belonged to Sreevalsadasan, and she is entitled to recover separate possession of that portion through partition by metes and bounds with mesne profits in proportion to her share from the date of suit till recovery of possession of her half share. The defendants were found entitled to value of improvements in the plaint property from the date of execution of Ext.A1 sale deed till the date of institution of the suit. O.S.No.872 of 1987 was decreed in part in favour of the plaintiff Chandramathi as indicated above. Similarly, O.S.No.808 of 1988 instituted by the wife and children of Sreevalsadasan as plaintiffs, the defendants in the former suit, was also partly decreed declaring that Ext.A1 sale deed to the extent of one half right over the plaint schedule property is invalid and not binding on them. 7. As against the decrees passed in the two suits, as indicated above, both parties preferred appeals challenging the decrees to the extent the suits were decided against them. A.S.Nos.234 of 1994 and 235 of 1994 were filed by the defendants in O.S.No.872 of 1987 as against the decree and judgment passed in the two suits O.S.No.872 of 1987 and O.S.No.808 of 1988 respectively, to the extent they were aggrieved thereto. Plaintiff in O.S.No.872 of 1987 preferred the other two appeals, A.S.No.248 of 1994 from the decree passed in O.S.No.808 of 1988 and A.S.No.250 of 1994 from the decree passed in O.S.No.872 of 1987, to the extent she was aggrieved by the common judgment rendered in the two suits by the learned Sub Judge. All these four appeals, after being heard together, were disposed by a common judgment by the learned District Judge, Thrissur, by which, except to a slight modification as to from which date the liability of the defendants to mesne profits will commence, which was ordered to operate only from the date of payment/deposit of the value of improvements by the plaintiff, the decision rendered by the learned Sub Judge was affirmed in all respects. A.S.No.234 of 1994 to the extent indicated with respect to the date from which mesne profits will be payable by the defendants was allowed in part, and all the other three appeals were dismissed. As against the decision so rendered by the learned District Judge affirming the decision of the learned Sub Judge with the modification as to the date from which mesne profits is to be paid by the defendants, both parties have preferred these appeals. Plaintiff (Chandramathi) has preferred the appeal numbered as S.A.No.210 of 1999 to the extent aggrieved by the judgment rendered in A.S.No.234 of 1994, which arose from the decree passed in the suit O.S.No.872 of 1987 by the learned Sub Judge. The defendants have preferred the other two appeals S.A.Nos.251 of 1999 and 268 of 1999, the former against the decree passed in A.S.No.234 of 1994, which arose from the decree in O.S.No.872 of 1987, and the latter from the decree passed in A.S.No.235 of 1994, which arose from the decree rendered in O.S.No.808 of 1988. 8. A preliminary objection was raised by the learned counsel for the defendants over the entertainability of S.A.No.210 of 1999 filed by the plaintiff challenging the decree in A.S.No.234 of 1994 which arose from the decree passed in the suit O.S.No.872 of 1987. As both suits O.S.No.872 of 1987 and O.S.No.808 of 1988 have been disposed of after joint trial under a common judgment, and the decision thereof objected to by way of four appeals, two of them by the plaintiff and the other two by the defendants, too disposed under a common judgment, in the absence of a separate second appeal against the decree passed in A.S.No.248 of 1994, which was filed against the decree rendered in O.S.No.808 of 1988, S.A.No.210 of 1999 filed by the plaintiff Chandramathi is not entertainable as the decision rendered dismissing of A.S.No.248 of 1994, which remains unchallenged, would constitute res judicata barring the prosecution of S.A.No.201 of 1999 by the plaintiff, is the submission of the learned counsel for the defendants/the appellants in S.A.Nos.251 and 268 of 1999. Challenge so canvassed by the learned counsel for the defendants, no doubt, is formidable; and, there cannot be any escape from the conclusion that the sole second appeal filed by the plaintiff as S.A.No.210 of 1999 from the decision in one of the two appeals preferred by her against the decision rendered in the two suits under a common judgment, where both such appeals had been dismissed by the learned District Judge, is barred by res judicata. Challenge against the correctness of the decision in one such first appeal without assailing the adverse decision rendered in the other first appeal when both such appeals arose from the common judgment rendered in the two suits, after joint trial, and as such, there being only one decision, would foreclose and interdict the plaintiff from assailing any further the judgment rendered in her two appeals by the learned District Judge (See Janardhanan Pillai v. Kochunarayani Amma (1976 KLT 279 (F.B.)). 9. What survives for consideration is only the two appeals S.A.Nos.251 of 1999 and 268 of 1999, both preferred by the defendants against the decision rendered in the two suits, O.S.No.872 of 1987 and O.S.No.808 of 1988, which arose from the decree in A.S.No.234 of 1994 and A.S.No.235 of 1994, the former of which was affirmed with a slight modification, and the latter, dismissal by the learned District Judge under the common judgment rendered in the four appeals preferred by both parties. After hearing the counsel on both sides and looking into the pleadings in both suits and the materials tendered as well, though several substantial questions have been raised in the appeals for determination, what I find is that only one of them, that alone, require critical scrutiny as the finding entered thereto would suffice for disposal of these appeals. That substantial question of law in the facts and circumstances and evidence of the case revolves round the question whether the conclusive finding made under Exts.B2 to B4 rendered in the claim petition based on Ext.B1 in the execution proceedings of O.S.No.262 of 1972, by the defendants would operate as res judicata against the plaintiff from setting up any claim of ownership over the suit property under Ext.A1 sale deed executed by Sreevalsadasan. If the answer to that question is in the negative, then alone, other questions of law formulated require to be considered in these appeals. The trial Judge has negatived the plea of res judicata, which was raised as one among the issues (second issue) in O.S.No.808 of 1988, suit instituted by the present appellants on the case canvassed by them and disputed by the other side that in view of the decision in the proceedings of the claim petition, no right could be set up under Ext.A1 sale deed. The learned Sub Judge has decided that issue thus: "The matter in issue in E.A.No.240/75 which ended in Ext.B2 order was regarding the claim of title of plaintiffs in the 2nd suit. But it was litigated between the decree holder Balan vis-a-vis the plaintiffs in O.S.No.808/88. The title question of defendants in O.S.No.808/88, i.e. the plaintiff in the main suit was not put in issue there in the execution claim petition, though indirectly it may have a bearing on the same decision. Therefore the plea of res judicata cannot sustain. Issue No.2 found in favour of plaintiff in O.S.No.808/88." If that was the reasoning followed by the learned Sub Judge to hold that the decision rendered in the proceedings of the claim petition could not operate as res judicata as against the plaintiff Chandramathi, the learned District Judge did not advert to or consider the question relating to res judicata at all in examining the claim canvassed on the basis of Ext.A1 sale deed. However, in examining the challenge over the validity of Ext.A1 sale deed taken by the plaintiff Chandramathi from Sreevalsadasan, which was impeached by the defendants, observations made in Ext.B4 judgment rendered in Ex.S.A. arising from the decision in the claim petition were taken as decisive to enter a finding that under Ext.B1 settlement deed, of which, the defendants claim title and possession over the suit property, the 1st defendant and her husband had equal rights and so much so, Ext.A1 deed to the extent of one half right of Sreevalsadasan, her husband, as found by the learned Sub Judge is valid. Both the courts below, the learned Sub Judge and also the learned District Judge, on going through the respective judgment, it is seen, have examined and considered the validity of Ext.A1 sale deed with reference to Ext.B1 settlement deed interpreting to the terms contained in the later document making advertence to the decision rendered in the claim petition, but, without taking into account the impact and decisive force as what could be the effect of such decision rendered, by which, the attachment made over the entire plaint property on the claim made by the defendants had been lifted and the decision thereof has become final and conclusive and binding on the parties. 10. As already indicated, O.S.No.261 of 1972 was a suit for money filed by Balan, husband of the plaintiff Chandramathi against Sreevalsadasan, and the property covered by Ext.A1 and Ext.B1, which is one and the same, belonging to Sreevalsadasan had been attached before judgment to secure the suit claim. Ext.B1 settlement deed, admittedly, was executed by Sreevalsadasan in favour of himself, his wife and child much before the order of attachment passed in the suit. Ext.A1 sale deed taken by the wife of Balan, namely, Chandramathi, the plaintiff in O.S.No.872 of 1987, was after the passing of the order of attachment by the court in the above suit. In the execution proceedings of the decree passed in O.S.No.261 of 1972, the defendants, the wife and child of Sreevalsadasan raised a claim over the property under Ext.B1 settlement deed contending that Sreevalsadasan had no salable interest over that property after execution of that settlement deed. Ext.B2 is the order passed by the execution court on the claim petition by which, their claim was upheld and the attachment over the property was lifted. Ext.B2 order was challenged by the decree holder Balan in appeal, but it was turned down vide Ext.B3 judgment. As against Ext.B2 order and Ext.B3 judgment, the decree holder preferred E.S.A.No.6 of 1986 before this Court. When that appeal came up, the execution of Ext.A1 sale deed by Sreevalsadasan in favour of Chandramathi, wife of the decree holder, during the pendency of the proceedings was canvassed to state that the decree holder was not interested in bringing the property of his wife to sale and, consequently, that appeal was dismissed. Ext.B4 is that judgment. Observations made in Ext.B4 judgment would show that under Ext.A1 sale deed, plaintiff Chandramathi had obtained one half right over the suit property, was the view taken by the learned District Judge under the common judgment impugned in the present appeals to hold that, to that extent, Ext.A1 deed is valid. What is the effect of the observations if at all they tend to indicate so under Ext.B4 judgment was however not examined by the learned District Judge while forming a conclusion as above to hold that Ext.A1 sale deed is valid at least to one half of the suit property on the premise that Sreevalsadasan even after execution of Ext.B1 settlement deed retained such right over that property. 11. Claim petition based on Ext.B1 settlement deed was filed by the wife and child of Sreevalsadasan in the execution proceedings of O.S.No.261 of 1972 under Order XXI Rule 58 of the Code of Civil Procedure, for short, the 'Code' challenging the attachment made over the property as belonging to Sreevalsadasan. When that claim petition was entertained and an adjudication thereof followed what will be the effect of that adjudication and the order passed thereon is the question to be considered. Previously, before the amendment of the Code in 1976, Rule 63 of Order XXI of the Code enabled a claim petitioner to institute a suit despite the dismissal of his claim to substantiate his right, title and interest over the property within the period of one year from the date of the order passed on his claim petition. That rule has been repealed and now, amended rule as under sub rule (2) of Rule 58 of Order XXI of the Code, the claim raised over the attached property has to be decided by the court, which passed the order of attachment and not by a separate suit. Sub rule (2) of Rule 58 of Order XXI of the Code reads thus: "All questions (including questions relating to right, title or interest in the property attached) arising between the parties to a proceeding or their representatives under this rule and relevant to the adjudication of the claim or objection, shall be determined by the Court dealing with the claim or objection and not by a separate suit." Any decision rendered on the claim or objection raised over the attachment, it has been made clear under sub rule (4) of the above rule is to be treated as if it were a decree having the same force thereof, and, amenable to an appeal on the same conditions as applicable thereto. The above sub rule (4) of Rule 58 of Order XXI reads thus: "Where any claim or objection has been adjudicated upon under this rule, the order made thereon shall have the same force and be subject to the same conditions as to appeal or otherwise as if it were a decree." Perusal of Ext.B2 order would show that the decree holder Balan, the husband of Chandramathi, the plaintiff, had pressed into service not only Ext.A1 sale deed taken in the name of his wife but also the original of Ext.B1 settlement deed to resist the claim raised over the attached property by the claimants - wife and child of Sreevalsadasan, the defendants/appellants herein. A challenge was also set forth that Ext.B1 was a will and not a settlement deed and it has been revoked by the execution of Ext.A1 sale deed. The execution court negativing such challenges held that no validity can be attached to the sale deed executed by Sreevalsadasan over the property covered by the settlement deed. That finding was entered into analysing the terms specified in the settlement deed that late Sreevalsadasan had no right to revoke the settlement deed or alienate the property. Ext.B1 settlement deed is dated 26.07.1970 and it was much prior to the attachment order and even earlier to the execution of the pronote on which the suit O.S.No.261 of 1972 was laid, was also taken note by the execution court to hold that such property is not liable for the debt of the judgment debtor. In the context, it is also to be taken note of, as evidenced from Ext.B2 order, that the property had been attached before judgment on 19.10.1972. In respect of that attached property the claim was raised by the 1st appellant herein, and, Ext.B2 order passed by the execution court on 06.08.1983. The suit O.S.No.261 of 1972 was decreed on 19.10.1972, and in execution, when the property which was attached before judgment was proceeded for sale the claimant had raised the claim under Order XXI Rule 58 of the Code basing such claim on the settlement deed exhibited as Ext.B1 in the present case. That claim was resisted not only by producing the original of that settlement deed but also the sale deed taken from the judgment debtor by the wife of the decree holder Chandramathi. That sale deed (Ext.A1) is dated 20.05.1978. Whether or not Chandramathi, the vendee under the sale deed was a party or not in the proceedings of the claim petition as she had taken such a deed after the attachment ordered over the property whatever be the decision rendered in such claim proceedings will undoubtedly be binding on her as she is only a pendente lite transferee, who has taken a deed over the property attached under the orders of the court. When that be so, the finding entered under Ext.B2 by the execution court that no validity can be attached to that sale deed while upholding the claim based on the settlement deed by the claimant, the wife of Sreevalsadasan, is not open to further challenge in any fresh suit, having regard to the mandate under sub rule (2) of Rule 58 of Order XXI of the Code. For more than one reason, any further challenge over the right, title and interest claimed on the basis of Ext.A1 sale deed by the plaintiff Chandramathi cannot at all be recognised nor even adjudicated upon. Since she has taken a sale deed over the attached property, while such order of attachment continued in force, she is bound by the decision passed in the proceedings of the claim petition raised over the property covered by the attachment; and, her presence or not as a party being a transferee after attachment does not make any difference at all as to the binding force of that decision. The execution court determining the claim raised over the attached property has entered a finding that no validity can be attached to Ext.A1 sale deed. The attachment made over the entire property has been lifted by order of the execution court upholding the claim raised by the claimant, the wife of Sreevalsadasan. Ext.B2 order has been affirmed in appeal by Ext.B3 judgment. Challenge against Ext.B2 order and Ext.B3 judgment by the decree holder had been negatived and the E.S.A. was dismissed. Whatever be the observations made in Ext.B4 judgment rendered in E.S.A., it would not wipe off or obliterate the finding made over the validity of Ext.A1 sale deed, which was taken pendente lite while the attachment order was in force, and also when the attachment over the entire property had been lifted recognising the claim of the claimant on the basis of Ext.B1 settlement deed. All right, title and interest over the attached property as between the parties is conclusively determined in the proceedings of the claim petition. No reservation is made under Ext.B4 judgment that the lifting of the attachment would not operate so far as any right retained by Sreevalsadasan in the property. If only there was any such reservation under Ext.B4 judgment, then alone, any claim or right could have been set up under Ext.A1 sale deed, despite the finding made by the execution court that it is not valid. The decision in the claim petition preclude the plaintiff Chandramathi from setting forth any further claim on the basis of that sale deed. When under Ext.B4 judgment rendered in E.S.A., Ext.B2 order and Ext.B3 judgment have been affirmed dismissing such appeal, the lifting of the attachment over the entire property upholding the claim of the claimant would foreclose any further challenge on the basis of Ext.A1 sale deed by the plaintiff Chandramathi over the suit property. The question whether Sreevalsadasan had retained half right even after executing Ext.B1 settlement deed, which has been gone into in detail by the two courts below to uphold the claim of the plaintiff to grant her a decree of partition and other reliefs, was not at all an issue that could be adjudicated upon since no claim on the basis of Ext.A1 sale deed in view of the binding and conclusive decision under Exts.B2 to B4 was available to the plaintiff. What has been decided in Ext.B2, which has become final under Ext.B3 and Ext.B4 that Ext.A1 sale deed has no validity is binding on the plaintiff, a pendente lite transferee, who had taken such sale deed while the attachment order of the property was in force, the claim over such property had been upheld in favour of the defendants by the courts in such proceedings. In view of the finding as above, other substantial questions of law formulated in these appeals do not require consideration at all. In the result, S.A.No.210 of 1999 is dismissed. S.A.No.251 of 1999 is allowed, ordering that the decree and judgment rendered in O.S.No.872 of 1987 as affirmed in appeal are set aside and that such suit shall stand dismissed and struck off from the file of the court. S.A.No.268 of 1999 is allowed, and modifying the decree rendered in O.S.No.808 of 1988, it is decreed as prayed for declaring that Ext.A1 sale deed is invalid, inoperative and not binding on the plaintiffs in that suit nor affect their rights in any manner over the suit property. Considering the facts and circumstances involved, both parties in these appeals are directed to suffer their costs. S.S.SATHEESACHANDRAN JUDGE prp |
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