Kunju Kesavan vs M. M. Philip I.C.S. and Ors
Rewritten Version Notice: This is a rewritten version of the original judgment.
Court: Supreme Court of India
Case Number: Civil Appeal No. 1 of 1962
Decision Date: 8 May 1963
Coram: M. Hidayatullah, A.K. Sarkar, J.C. Shah
In the matter titled Kunju Kesavan versus M. M. Philip I.C.S. and others, the Supreme Court of India rendered its judgment on 8 May 1963. The judgment was authored by Justice M. Hidayatullah and was delivered by a bench consisting of Justices M. Hidayatullah, A. K. Sarkar and J. C. Shah. The case is reported in the 1964 volume of the All India Reporter at page 164 and in the 1964 Supreme Court Reports (Third Series) at page 634. Citations to subsequent reports include R 1968 SC 1165, D 1971 SC 2171, D 1978 SC 1362, and F 1989 SC 1530. The dispute concerned the interpretation of the Travancore Ezhava Act of 1100, specifically the nature and incidents of Makkathayam property, the concept of partibility, the meaning of the expression “contrary intention” in section 32, and the rights of issue when an exemption under section 33 applies. An additional procedural question addressed whether the failure to raise the exemption in the written statement, the absence of an issue framed on that point, and the subsequent evidence presented without objection by the plaintiffs could vitiate the trial. The valuation of the suit, which was below the twenty‑thousand rupee threshold, raised a question as to the validity of the certificate issued by the High Court under Article 133 of the Constitution of India. The statutory provisions relevant to the case were sections 2, 18, 19, 32 and 33 of the Travancore Ezhava Act, 1100 (Act III of 1100).
The property at the center of the suit originally belonged to a person named Bhagavathi Parameswaram, who created an otti in favour of Krishnan Marthandam for a sum of three thousand five hundred fanams, roughly equivalent to five hundred rupees. Later, Krishnan Marthandam executed a chittoti, and subsequently, in the year 1163 M.E., Bhagavathi Parameswaram made a gift of the same property to his wife Bhagavathi Valli. Bhagavathi Valli died in 1105 M.E., leaving a sole son, Sivaraman, who was married to Parvathi Meenakshi and had a son named Vasudevan. Sivaraman departed from Travancore in 1096 M.E.; both parties agreed that he died thereafter, although the precise date of his death was not settled. Vasudevan, together with the heirs of 635, jointly sold the jenmom rights to the present appellant in 1123 M.E. The appellant then instituted a suit seeking redemption of the otti and recovery of possession of the property from the defendant, who is the present respondent No. 1. The defendant denied that Bhagavathi Valli ever obtained the jenmom right, asserting instead that he had acquired both the jenmom right and other rights. He traced his title through Bhagavathi Valli’s sister, B. Narayani, and Narayani’s daughter, Gouri, claiming they were the heirs on whose behalf he derived title. Moreover, the defendant contended that even if Meenakshi and Vasudevan had any jenmom right, it was lost due to an auction sale recorded in O.S. No. 36 of 1100 M.E. On these grounds, the defendant argued that the plaintiff lacked any title to bring the suit. Both parties acknowledged that the Travancore Ezhava Act, 1100 governed the dispute. The trial court and the first appellate court had decreed in favour of the plaintiff, but the High Court set aside those decisions, holding that the plaintiff had not acquired a valid equity of redemption through the sale deed and therefore was not entitled to redeem the property. Consequently, the plaintiff appealed to the Supreme Court.
In the appeal before this Court, the record began with a certificate that had been issued by the High Court. The respondent raised a preliminary objection, questioning whether that certificate was competent. The respondent argued that the suit had been valued at three thousand five hundred fanams, which is equivalent to five hundred rupees, and that this valuation should control the assessment of the certificate. Because that amount was below the minimum threshold prescribed by Article 133 of the Constitution, the respondent maintained that the certificate could not be considered competent. The respondent also advanced an alternative ground, contending that if the valuation of the suit exceeded ten thousand rupees, the trial court would have lacked jurisdiction to try the suit.
On the other hand, counsel for the appellant put forward several submissions. First, the appellant argued that the ordinary rule of law treated property as impartible, but that Section 32 of the applicable Act created an exception by imposing partibility on Makkothayam property. The appellant explained that the phrase “contrary intention” mentioned in Section 32 was meant to denote an intention that was opposite to partibility, and that such an intention could not be derived from Exhibit III, the gift deed. The appellant further submitted that if the property had been shared by Bhagavathi Valli with Sivaraman and Vasudevan, then Vasudevan would have acquired the right to redeem the Otti as an interested person, and that right would also pass to the appellant as a transferee from Vasudevan. Alternatively, if the property had become the sole possession of Bhagavathi Valli, then, provided Bhagavathi Valli was not exempted from the operation of the Act under Section 33, Vasudevan would be entitled to succeed to the property left by Bhagavathi Valli by virtue of Sections 18, 36 and 19 of the Act.
The appellant also argued that the question of exemption had not been pleaded by the defendant in his written statement, and that no issue had been framed on that point. Consequently, the appellant maintained that the High Court should not have entertained the notification introduced by the respondent as evidence to prove that Bhagavathi Valli was exempted. Finally, the appellant contended that the notification itself did not actually establish that exemption, because the identity of the person referred to in the notification was not established.
The Court then set out its own analysis on the competence of the certificate. It held that for a certificate to be competent, the appeal must satisfy two valuation tests. First, the value of the subject matter of the suit as determined by the court of first instance must be above the prescribed minimum. Second, the value of the subject matter that is in dispute on appeal before this Court must also exceed that minimum. The Court noted, however, that there are cases where a decree or final order directly or indirectly involves claims or questions concerning property whose value exceeds the threshold. Such cases are likewise appealable. The term “indirectly” was explained to cover the real value of the claims, which must be assessed independently of the valuation stated in the plaint when the property was not required to be valued at market price for the purposes of the suit.
Applying this principle to the present matter, the Court observed that the High Court had determined the value of the subject matter to be forty‑two thousand rupees and eighty thousand rupees at the relevant times. Moreover, the plaintiff was not required to value his plaint on the basis of the real or market value of the property. Accordingly, the Court concluded that the certificate was competent, as both the original suit valuation and the valuation of the disputed subject matter on appeal satisfied the required threshold.
In this matter the Court observed that the dispute concerned the price for redemption rather than the market value of the land. The appellant had requested possession of the land after redemption, and the High Court had determined that the land’s value was well above the statutory threshold. Consequently, the appellate certificate issued by the High Court was deemed competent. The Court further noted that the suit, as valued, had been correctly instituted in the court of first instance, and that such a valuation objection could not be raised for the first time before this Court.
Regarding the operation of section thirty‑two, the Court rejected the contention that the phrase “contrary intention” limited the effect of the provision to a rule of impartibility only. Instead, the law was interpreted as defining the rights that arise on the partition of makkathayam property, stipulating that partitioned shares must be equal unless a contrary intention is expressly expressed. The gift deed identified as Exhibit III demonstrated that each donee was intended to hold the conveyed property exclusively. By reading sections eighteen and nineteen together, the Court concluded that, irrespective of whether Sivaraman survived Valli or died before her, Vasudevan would succeed as an issue within the expression “how‑low‑so‑ever” found in the explanation to section nineteen, thereby acquiring at least a fractional interest in the property. This conclusion, however, was contingent upon Bhagavathi Valli not being exempted from the operation of Part IV of the Ezhava Act.
The parties proceeded to trial with a clear understanding of the pivotal question of whether the succession scheme prescribed by the Ezhava Act applied to Bhagavathi Valli. The Court held that the mere absence of a contested issue on that point did not constitute a material defect sufficient to invalidate the trial Court’s decision. Moreover, the Court found that the plaintiff’s replication, which expressly stated that “the suit property was obtained as makkathayam property by Bhagavathi Valli under the Ezhava Act,” rendered the plea largely unnecessary. The question of exemption from Part IV of the Ezhava Act had been properly raised before the trial Court and was correctly examined by the High Court.
The High Court’s determination that the identity of Bhagavathi Valli was established and that she was exempted from the operation of Part IV of the Ezhava Act was affirmed. Accordingly, the appellant was held not to be entitled to redeem the otti, since he had never enjoyed the jenmom rights associated with it. The judgment concluded with the formal citation of the civil appellate jurisdiction: Civil Appeal No. 1 of 1962, an appeal against the judgment and decree dated 10 September 1957 rendered by the Kerala High Court in Second Appeal No. 42 of 1954 (I.T.). Counsel for the appellant included T. S. Venkataraman and V. A. Seyid Muhammad, while counsel for respondent No. 1 comprised A. V. Viswanatha Sastri, G. B. Pai, Shakuntala Sharma and K. P. Gupta. The judgment was delivered on 8 May 1963 by Justice Hidayatullah, who noted that the present appeal arose from a suit filed by the appellant Kunju Kesavan seeking redemption of an otti created by Bhagavathi Parameswaran in favour of Krishnan Marthandan on 5 May 1091 M.E. for 3 500 fanams. Subsequent events included the creation of a chittoti by Krishnan Marthandan and a gift made by Bhagavathi Parameswaran to his wife Bhagavathi Vailiyamma on 9 March 1103 M.E., as set out in Exhibit III.
According to the record, Bhagavathi Parameswaran transferred ownership of the property to his wife Bhagavathi Vailiyamma on the third day of the ninth month of the year 1103 in the Malayalam Era, a transaction that is documented by Exhibit III. Bhagavathi Valli died on the fourth day of the eleventh month of the year 1105 M.E. She left a single son, Parameswaran Sivaraman, who was married to Parvathi Meenakshi and together they had a son named Vasudevan. The plaintiff asserted that Sivaraman departed from Travancore in the year 1096 M.E., and both parties to the suit accepted as a fact that he died sometime after his departure. Meenakshi and Vasudevan, claiming to be the rightful heirs of Sivaraman, jointly sold the jenmom rights on the twelfth day of the fourth month of the year 1123 M.E. to the appellant, Kunju Kesavan. Following that sale, the appellant instituted the present suit seeking redemption of the otti, offering to pay an amount equivalent to 3,500 fanams in cash and to make any improvements that the court might determine to be necessary. The value of the suit was fixed at 3,500 fanams, roughly equivalent to Rs. 500, which represented the face value of the otti; the plaintiff’s claim therefore comprised redemption of the otti together with possession of the fields that were then occupied by the defendants. The first defendant, identified as respondent No. 1, opposed the suit. Respondents 2 and 3 filed a written statement but thereafter did not appear to pursue the matter actively. The first respondent conceded certain factual matters but insisted that the instrument executed by Bhagavathi Parameswaran was never intended to create enforceable rights and that Bhagavathi Valli and related parties never acquired any jenmom rights under Exhibit III. He further argued that even if Bhagavathi Valli had obtained any rights, those rights were subordinate to an earlier charge imposed by a decree of the District Court at Trivandrum in Original Suit No. 36 of the year 1100 M.E. He pointed out that in an auction held on the third day of the fourth month of 1114 M.E., the jenmom rights were bought by the decree‑holders, who were the heirs of Krishnan Marthandan; from those purchasers the first respondent obtained a sale deed, thereby acquiring both the jenmom and the otti rights. The first respondent also acknowledged that Sivaraman had left India in 1096 M.E., but he rejected the plaintiff’s allegation that any correspondence from Sivaraman was received up to the year 200 M.E. or that any information about him continued to be received until 1108 M.E. He maintained that from 1096 M.E. no news of Sivaraman was heard, and he submitted that Sivaraman must have died in 1096 M.E. or was certainly not alive on 9 March 1103 M.E., the date of the alleged gift to Bhagavathi Valli. According to his version, on the death of Bhagavathi Valli her legal heirs were her sister Narayani and Narayani’s daughter Gouri; consequently Meenakshi and Vasudevan were not entitled to any jenmom rights. Alternatively, he argued that even if Meenakshi and Vasudevan had acquired any jenmom rights, those rights were extinguished by the auction sale in Original Suit No. 36 of 1100 M.E., which transferred the rights to the auction purchasers. Therefore, the first respondent contended that the sale in favor of the present appellant conferred no rights upon the appellant. Conversely, he claimed that the auction purchasers were permitted to remain in possession as full owners, either by express consent, implied consent, or acquiescence of Vasudevan and Meenakshi, and thus acquired full title to the property.
Ezhavas, lacking any special exemption under the statute, were subject to the provisions of the Travancore Ezhava Act of 1100 (Act III of 1100) for matters of succession and partition. One of the issues presented to the courts concerned whether Bhagavathi Valli had obtained an exemption from Part IV of that Act, and consequently claimed that she should be governed not by the Act but by the general law of Marumakkathayam. The lower tribunals had both decreed the suit. The Temporary District Munsiff of Trivandrum held that the plaintiff was entitled to redeem the otti and placed a value of Rs 1367/13/4 on the improvements. The first respondent then filed an appeal and the opposing party filed a cross‑objection; both the appeal and the cross‑objection were dismissed. On a further appeal brought by the first defendant, the High Court set aside the decisions of the lower courts, holding that the plaintiff had not secured a valid title to the equity of redemption through the sale deed in his favour and therefore could not redeem the property. The plaintiff subsequently sought to challenge that decision before this Court by obtaining a certificate of appeal from the High Court.
A preliminary objection was raised questioning the competence of the certificate issued by the High Court. The objection argued that the suit had been valued at 3 500 fanams, and that this valuation controlled the jurisdiction for the certificate; because the amount was below the prescribed threshold, the certificate was allegedly issued wrongly and should be set aside. An alternative contention was advanced that if the valuation exceeded Rs 10 000, the trial court would have been without jurisdiction to try the suit. The present appeal therefore challenged the High Court’s judgment that reversed the lower courts, asserting that if the valuation was above the prescribed mark, the certificate had been properly granted because an appeal of right would then vest in the plaintiff.
The Court explained that for an appeal to be maintainable, two valuation tests must be satisfied. First, the value of the subject‑matter of the suit as determined by the court of first instance must exceed the threshold. Second, the value of the subject‑matter in dispute on appeal to this Court must also exceed the threshold. The Court noted that there are cases where the decree or final order involves, either directly or indirectly, a claim or question concerning property whose value is above the threshold; such cases are likewise appealable. Ordinarily, the valuation placed in the plaint governs the valuation for the purposes of the appeal. A plaintiff who understates the value of his claim in the plaint, where the law requires the claim to be valued at its real or market value, may not later increase the valuation, because doing so would amount to an approval followed by a repudiation. However, the Court observed that where the plaint is not required to be valued in that manner, a genuine question may arise as to the appropriate value of the claim both in the court of first instance and on appeal to this Court. In that context, the term “indirectly” was explained to include the real value of the property or right that may be implicated by the decree.
The Court explained that the claim in this matter had to be assessed independently of the valuation stated in the plaint. The High Court, when reviewing the case, determined that the value of the property was Rs 42,000 at one material stage and Rs 80,000 at a later material stage. It was clear from the facts that the plaintiff was not required to assign a real or market value to the property in his plaint; instead, he was required to state the price for redemption of the property. Consequently, the plaintiff could not be said to have been bound by the valuation he had set in the plaint. The plaintiff had applied to the court for possession of the property after it had been redeemed, and the High Court found that the property, as valued, was well above the threshold for the particular jurisdiction. Accordingly, the certificate granting possession was rightly issued. The plaintiff’s challenge to the jurisdiction of the court that first heard the suit was therefore untenable. The suit, as valued, had been properly instituted in the court of first instance, and an objection to that valuation could not be raised at this stage of the appeal. For these reasons, the Court dismissed the preliminary objection.
The substantive issue before the Court was whether the respondents, Meenakshi and Vasudevan, possessed any legal title to the property and whether they could pass any such title on to the appellant. The determination of this issue depended upon whether the Ezhava Act governed the succession or whether the ordinary law of Marumakkatayam applied. Under the ordinary Marumakkatayam system, inheritance follows the female line. The parties conceded that, if the Marumakkatayam law were applicable, Meenakshi, who was the daughter‑in‑law of Bhagavathi Valli, and Vasudevan, who was her grandson, would not be considered heirs of Bhagavathi Valli. The Ezhava Act had been enacted to define and amend, among other matters, the law of succession and partition among persons belonging to the Ezhava community. In its original provisions, the Act excluded Ezhavas domiciled in Travancore who followed the Marumakkatayam system. However, section 2 of the Ezhava Act provided that the Act could be extended to cover Ezhavas who adhered to the Marumakkatayam system. No submission was made before the Court indicating that such an extension had not been made, and the arguments were based on the assumption that the extension was in force. The respondent asserted that Bhagavathi Valli had opted out of Part IV of the Act under section 32, a step that could be taken only if the Act applied to her. The appellant, in turn, argued that Bhagavathi Valli was indeed governed by the Ezhava Act.
The Court noted that the term “Makkathayam” signifies a gift made by the father. Section 32 of the Ezhava Act defines Makkathayam property as property acquired by the wife or child, or both, from the husband or father by gift, inheritance or bequest. In the present suit, the property had been gifted by Bhagavathi Parmeswaran to his wife Bhagavathi Valli, thereby giving the property the character of Makkathayam property. Counsel for the appellant, Dr Seyid Muhammed, raised the initial question of whether, although the gift was made in the name of Bhagavathi Valli alone, the law governing Makkathayam property would confer equal rights upon Bhagavathi Valli and her issue, however remote. The appellant referred to section 32 of the Act, which contains a special provision concerning the partition of Makkathayam property. Section 32 states: “Makkathayam property shall be divisible among the wife and children equally.” This provision therefore formed the basis of the appellant’s argument that the property should be shared equally between Bhagavathi Valli and her descendants.
In the statute, it was expressly provided that, unless a contrary intention was set out in the instrument of gift or bequest, any makkathayam property acquired after the Act came into force must be divided equally between the wife and each of the children. The provision further stipulated that, on partition of such property, the issue of a deceased child would be entitled to only the share that the child would have received had it been alive at the time of division. The respondent contended that the settlement deed, reproduced as Exhibit III, conveyed the suit property solely to Valliyamma and allocated a different piece of property to the grandson Vasudevan. According to the respondent, this allocation demonstrated an intention that was expressly contrary to the operation of section 32, because the deed appeared to segregate the property rather than to place it within the equal‑share scheme mandated by the statute. The respondent argued that the deed therefore manifested a specific intent to keep the property out of the statutory division, and that this intent must be respected as a clear departure from the default rule of equal partition.
Counsel for the appellant, Dr Seyid Muhammed, submitted that the prevailing rule of law treated such property as impartible and that it was traditionally shared by a female member of a marumakkathayam family with her thavazhee. He supported this claim by quoting a passage from M P Joseph’s Principles of Marumakkathayam Law (pages 52‑53) and by referring to the observations of a Division Bench in Narayanen Narayanen v. Parwathi Nangali, where the court held that a gift by a father, known as makkathayam, to his wife was ordinarily intended to benefit both the wife and the donor’s children, and although title might be placed in the mother’s name, the property was held in common by them. The appellant argued that section 32 introduced a departure from that traditional rule by imposing partibility on makkathayam property, and that any intention expressed in the deed must therefore favour impartibility, an intention that could not be inferred from Exhibit III. He emphasized that section 32 expressly makes the property divisible among the wife and children equally and that this provision lies in Part VII, which deals with partition. He asserted that it was not possible to infer that a contrary intention could impose impartibility, and that no authority demonstrated that impartibility was the prevailing rule for makkathayam property. The two cited passages, he said, merely indicated that the benefit usually passed to the thavazhee as a whole. He maintained that the statute merely defined the rights on partition and laid down equal shares unless a contrary intention was expressed, and that the reading suggested by the respondent could not be accepted as the sole interpretation. Examining the deed, the appellant observed that Exhibit III plainly showed an implicit intention to allocate certain properties to the wife and other properties to the grandson, while the son had been absent for many years. Accordingly, the donor appeared to have divided his estate between his wife and his grandson, with the clear intention that each would receive an exclusive share. Finally, the appellant contended that the property was either shared by Bhagavathi Valli with her son and grandson, as indicated by the proviso to section 32, or that it belonged exclusively to her, and in either scenario Vasudevan would possess a vested interest.
In this case the Court examined the argument that the appellant could acquire an interest in the property and thereby transmit that interest to the appellant. The argument was that if the property had been shared by Bhagavathi Valli with Sivaraman and Vasudevan, then Vasudevan would have been a person interested who could redeem the otti, and the present appellant, as a transferee from Vasudevan, would likewise be a person interested. The alternative argument was that if the property had become the exclusive possession of Bhagavathi Valli, then its succession would be governed by sections 18 and 19 of the Ezhava Act, read together with Explanation II, which explanation governs the whole of Part IV where sections 18 and 19 appear. The Court therefore set out the relevant statutory language: “18. Devolution of self‑acquired or separate property of a female. On the death of an Ezhava female, the whole of her self‑acquired or separate property left undisposed by her at her death shall devolve on her own thavazhee. If she dies leaving her surviving no members of her thavazhee but her husband and members of her mother’s thavazhee, one‑half of such property shall devolve on her husband and the other half on her mother’s thavazhee. In the absence of the husband the mother’s thavazhee shall take the whole; and in the absence of the mother’s thavazhee the husband shall take the whole.” “19. Devolution of such property in the absence of members of her or her mother’s thavazhee or husband. On the death of an Ezhava female, leaving her surviving neither members of her thavazhee nor other members of her mother’s thavazhee nor husband but only the thavazhee of her grandmother or of her other more remote female ascendants, her self‑acquired or separate property left undisposed of by her at her death shall devolve on such thavazhee, the nearer excluding the more remote.” The Court also reproduced Explanation II: “Explanation II. The expression ‘children’ in the case of an intestate male and the expression ‘thavazhee’ in the case of an intestate female shall, for the purpose of Part IV of this Act, include the issue of such intestate male or female how‑low‑so‑ever.” From this explanation it appeared that the term ‘thavazhee’ with respect to an intestate female includes her issue however remote, and that the word ‘issue’ embraces both males and females. Applying this wording to section 18, the counsel for the petitioner, Dr Seyid Muhammed, contended that on the death of Bhagavathi Valli the whole of her separate property left undisposed would devolve upon her own thavazhee, that is, her issue however remote. In connection with this claim a question of great subtlety was raised as to whether Sivaraman could be said to have survived Bhagavathi Valli or to have died earlier. The Court observed that, in the absence of any evidence, it would be unnecessary to pursue an inquiry based on presumptions about the time of Sivaraman’s death. The Court noted that the document executed in favour of the answering respondent, Exhibit R dated 1‑7‑1121 M.E., clearly stated by the predecessors‑in‑title of the answering respondent that Sivaraman was then dead. The Court held that this statement amounted to an admission, which had not been withdrawn nor shown to be incorrect, and therefore was binding upon the answering respondent.
Because the document executed in favour of the answering respondent has not been withdrawn nor shown to be incorrect, the Court regarded it as binding on that party. Consequently, irrespective of whether Sivaraman survived Bhagavathi Valli or predeceased her, Vasudevan succeeded to a fractional interest in the property as an “issue” within the meaning of the expression “how‑low‑so‑ever” contained in the Explanation. This succession positioned Vasudevan to convey his interest to the appellant, thereby rendering the appellant a “person interested” for the purpose of redeeming the otti. However, that conclusion could be reached only if the succession provisions of the Ezhava Act were applicable to Valli. The pleadings contain no allegation that Bhagavathi Valli had obtained an exemption from the Ezhava Act, yet the parties appeared to have joined the issue on that point. The answering respondent submitted a copy of a Gazette notification, asserting that it listed Bhagavathi Valli among those granted exemption from Part IV of the Ezhava Act. Section 33, which authorises such exemption, provides that an individual member of an Ezhava tarwad may apply within six months of the commencement of the Act and, after a satisfactory inquiry, the Government may exempt that individual by a Gazette notification. The plaintiff was cross‑examined about Bhagavathi Valli’s address to confirm that the name in the notification referred to the same person. The answering respondent also produced evidence that Bhagavathi Valli had applied for and obtained the exemption, and the appellant produced no evidence to the contrary.
The respondent contended that the notification and the testimony of the witness could not be considered because there was no specific plea or issue raised regarding the exemption. It was further argued that the plaintiff was taken by surprise when the High Court examined this matter, claiming he had not been given a sufficient opportunity to rebut it, an opportunity that would have been available had the exemption been pleaded and an issue framed. The Court held that the parties understood the sole issue to be the application of the succession rules of Part IV of the Ezhava Act to Bhagavathi Valli. The appellant was cross‑examined about Valli’s address, and an advocate for the respondent identified Exhibit II as the Gazette notification showing the exemption. The trial judge assumed that Bhagavathi Valli had indeed been exempted from Part IV, but concluded that such exemption did not affect the devolution of the makkathayam property according to Section 32 of the Ezhava Act. Accordingly, the trial judge was of the opinion that, upon Bhagavathi Valli’s death, neither her sister Narayani nor Narayani’s daughter Gouri acquired any right in the property.
It was held that neither Narayani’s daughter Gouri nor Narayani herself acquired any right in the disputed property. In the appellate proceeding, the learned District Judge observed that the notification listed more than one person named Bhagavathi Valli, and consequently it could not be determined whether the Bhagavathi Valli who was identified as the donee in Exhibit III was the same individual mentioned in the notification. The Court did not accept the contention that the plaintiff had been taken by surprise. The notification, the Court observed, must have been filed together with the written statement because there was no evidence that it had been produced only after the court had issued its orders. The plaintiff had also been cross‑examined on the question of Bhagavathi Valli’s address, and the sole witness called on behalf of the defendant had testified about the notification but had not been cross‑examined on that point. The plaintiff neither asked the court’s permission to introduce fresh evidence on this issue nor objected to the admission of the evidence that had been offered. Even before the District Judge, the dispute was not framed as a question of improper admission of evidence lacking a proper plea or issue; rather, the contention centered on the lack of clarity in the notification and the doubt as to whether the particular Bhagavathi Valli mentioned therein had been granted exemption. Both parties proceeded to trial with a full understanding of the pivotal question of whether the succession provisions of the Ezhava Act applied to Bhagavathi Valli. The Court therefore concluded that the absence of a formally framed issue did not amount to a miscarriage of justice sufficient to void the decision. Moreover, the necessity of a specific plea on exemption was minimal because the plaintiff, in his replication, had expressly pleaded that “the suit property was obtained as makkathayam property by Bhagavathi Valli under the Ezhava Act, and that, pursuant to the provisions of that Act, the property was thereafter obtained exclusively by Vasudevan after the death of Bhagavathi Valli and Sivaraman.” The notification was introduced expressly to rebut that allegation.
The Court expressed the view that the question of exemption had been properly raised between the parties and duly examined by the High Court as well as the lower tribunals. While the High Court reached a conclusion different from that of the District Court—holding that Bhagavathi Valli was exempted from the operation of Part IV of the Ezhava Act—the present consideration required an assessment of which finding was correct. To that end, the Court examined Exhibit II, a notification issued in the year 1102 M.E. The notification stated that the persons listed had applied to the Government under Section 33(1)(i) of the Travancore Ezhava Regulation, Act 3 of 1100 M.E., seeking exemption from the provisions of Part IV of that regulation, and that, after satisfactory enquiry, the Government was convinced of the truth of their applications and consequently exempted each of the named persons from Part IV. The notification was signed by K. George, the Chief Secretary to the Government, and dated 8 January 1927, and it proceeded to enumerate the full names and addresses of the individuals whose exemption was granted. The Court therefore set out to determine whether the exemption recorded in this notification applied to the Bhagavathi Valli who was the donee under Exhibit III and, accordingly, whether the High Court’s finding of exemption should be affirmed over the District Judge’s contrary view.
The schedule of persons showed that entry number 170 recorded a woman named Bhagavathi Valli, who was described as belonging to the branch of Bhagavathi residing at Thottuvarambu Bungalow in Katakam Palli Pakuthi, Trivandrum Taluk, and identified as part of the Pinarummoottu tarwad. Entry number 171 listed Bhagavathi Narayani of the same Pinarummoottu tarwad, and entry number 172 listed Narayani Gouri, also of the Pinarummoottu tarwad. Further entries included number 183, Narayanan Lakshmanan of Vanchiyoor, residing at Pinarummoottu kuthi, Trivandrum, and numbers 185 and 186, which again referred to Bhagavathi Valli and Bhagavathi Narayani respectively, both associated with Pinarummoottu. The respondent argued that the Bhagavathi Valli shown at entry number 170 was the very Bhagavathi Valli claimed by the plaintiff. To support this contention, the respondent called a witness, Mathan Kuruvila, an advocate, who testified that the Bhagavathi Valli appearing at entry number 170 was indeed Bhagavathi Valliamma, that the Bhagavathi Narayani at entry number 171 was her sister, and that Narayani Gouri at entry number 172 was the daughter of Bhagavathi Narayani. The plaintiff, on the other hand, admitted that he had observed Bhagavathi Narayani on several occasions, that their family house was known as Thottuvarambu, that the name of the tarwad house was Pinarummoottu Veedu, and that Thottuvarambu Veedu was situated in Katakam Palli Pakuthi. The plaintiff further stated that he did not know whether Gouri also lived in Thottuvarambu Veedu. Dr Seyid Muhammed produced a series of documents dated between 1928 and 1938 in which the address of Bhagavathi Valli was recorded as Pinarummoottu Veedu in Vanchiyoor Pathirikari Muri. These documents were identified as exhibits C, D, K, L, M, Q and R. Dr Muhammed argued that, with the sole exception of exhibit Q, all of these documents listed either Bhagavathi Valli or her sister as residing at Pinarummoottu Veedu in Vanchiyoor Pathirikari Muri, an address that differed from the one appearing in exhibit II, and therefore contended that the Bhagavathi Valli mentioned at entry number 170 could not be the same individual. However, exhibit Q contained a deposition from Bhagavathi Narayani made in an earlier suit in the year 1110 M.E. (1935), in which she gave her address as “Pinarummoottu Veedu in Vanchiyoor Pathirikari Muri and now in Thottuvarambu Bungalow in Katakampulli Pakuthi” and stated that she had an elder sister named Bhagavathi Valli who was residing in the Veedu. From this evidence it became clear that the tarwad possessed two residences: one being the Veedu in Vanchiyoor Pathirikari Muri and the other being a bungalow called Thottuvarambu in Katakampulli Pakuthi. One of these two addresses corresponded with that shown in exhibit II. Consequently, the address recorded in exhibit II did not demonstrate that the individual was a different Bhagavathi Valli. Moreover, a number of factors linked the plaintiff’s Bhagavathi Valli with the Bhagavathi Valli listed at entry number 170. The name was accurately described, she was correctly identified as belonging to the Bhagavathi branch, and she was associated with the Pinarummoottu tarwad. In addition, the entries also named Bhagavathi Narayani and Narayani Gouri, who were members of the same branch and tarwad and could logically be her sister and niece respectively, and the address given matched as well. Accordingly, the Court found that the High Court had correctly concluded that the identity of Bhagavathi Valli had been established. The observation made by the learned District Judge that many individuals named Bhagavathi Valli appeared in the list was not supported by the record, as the only other reference to a Bhagavathi Valli in the present proceedings was the one appearing at entry number 185.
At entry number one hundred eighty‑five it is uncertain whether the Bhagavathi Valli recorded there is identical with the Bhagavathi Valli whose name appears together with that of one Narayanan Lakshmanan of Pinarummoottu, Vanchiyoor Pakuthi, in Trivandrum. The record does not definitively establish that the two references denote the same individual, and the possibility remains that they could refer to different persons.
In a separate notification, the exemption from part seven of the Act was set out. That notification again identified the branch of Bhagavathi Bhagavathi of Pinarummoottil tarwad as being situated at Thottuvaramba Bungalow in Katakampalli Pakuthi, within Trivandrum Taluk. At the same time, the same tarwad was also shown to be located at Pathirikari Muri in Vanchiyoor Pakuthi, also in Trivandrum. This duplication demonstrates that the tarwad possessed two distinct houses, each occupied by a different branch of the family. The Court therefore concluded that the existence of two separate residences was established beyond doubt.
The Court further expressed that it was satisfied that the exemption claimed under the Act had been properly proved in the present proceedings. Because Bhagavathi Valli was not subject to part four of the Ezhava Act, the Court applied the principles of pure Marumakkathayam law and held that Meenakshi and Vesudevan could not be regarded as her heirs. Instead, the legal heirs were identified as Bhagavathi Narayani and her daughter Gouri. It was noted that Gouri Narayani participated in the execution of document “R” in favour of the answering respondent; this document had been executed by the legal representatives of the original mortgagee.
On the basis of these findings, the Court affirmed the decision of the High Court that the present appellant was not entitled to redeem the otti, having never enjoyed the jenmom rights that would have given her such entitlement. Accordingly, the appeal was dismissed, and the costs of the proceedings were awarded against the appellant.