MADRAS HIGH COURT

M.P. CHRISTOBER AND ORS. VS M. FABIAN AND ORS. ON 6 APRIL, 1999

Summarised Judgement (Scroll for Complete Judgement)

Introduction:

Defendants in O.S.No. 49 of 1984 on the file of Subordinate Judge, Padmanabapuram are the appellants herein.

Parties will be referred to in accordance with their rank in the suit in the lower court.

Facts of the Case:

Plaintiffs, who are respondents herein filed the suit for declaration of title and recovery of possession of two items of properties more specifically described in the schedule to the plaint. Item No. l originally belonged to one Padmanabha Pillai and Manoharan Nair. They sold the property in favour of Maria Michaelal mother of plaintiffs by two separate sale deeds dated 27.9.1960. and 12.1.1961. They are Exs.A-1 and A-2 respectively. Item No. 2 belonged to Sabarimuthu Nadar and Dominic, who are brothers of Maria Michaelal. They gifted the plaint items to their sister Maria Michaelal as per two gift deeds dated 9.6.1975 and 11.6.1975 They are Exs.A-4 and A-4 respectively. Maria Michaelal died in the year 1976. At the time of her death, she had left behind the plaintiffs and also her husband as legal heirs.

Father of plaintiffs Varuvel, sold both the properties as if they belong to him exclusively, to the defendants in the suit. They obtained possession as per sale deed dated 5.4.1979,. The said sale deed covered other properties also. After obtaining sale deed plaintiffs who were in possession of plaint schedule items were dispossessed, which necessitated plaintiffs for filing suit for recovery of possession. They claimed mesne profits at the rate of Rs. 2,500 per annum from the date of suit and as past profits they claimed Rs. 7,500.

In the written statement filed by the appellants, they contended Exs.A-1 and A-2 were obtained in the name of the Maria Michaelal as binami for her husband and she did not have any right.

Observation & Judgement of Court:

 From the above finding, it follows that plaintiffs as well as defendants are not co-owners, and recovery of possession cannot be allowed. But that does not prohibit the court from granting a smaller relief. It is therefore declared that plaintiffs are entitled to 2/3rd share in the plaint items 1 and 2 and they are allowed to recover the same from defendants.

A preliminary decree is therefore passed declaring that plaintiffs are entitled to 2/3rd share in plaint items 1 and 2 and they are permitted to take out a commission for partitioning both the items, and get a final decree passed. Quantum of mesne profits payable to the plaintiffs also will be decided during final decree proceedings. Finding of lower court that defendants are not entitled to value the constructions either for building or compound wall is confirmed.

In the result, the appeal is allowed as indicated above, There will be no order as to cost.

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Complete Judgement

MADRAS HIGH COURT

M.P. CHRISTOBER AND ORS. VS M. FABIAN AND ORS. ON 6 APRIL, 1999

M.P. Christober And Ors. vs M. Fabian And Ors. on 6 April, 1999

Equivalent citations: (1999) 3 MLJ 256

Author: S Subramani

JUDGMENT S.S. Subramani, J.

1. Defendants in O.S.No. 49 of 1984 on the file of Subordinate Judge, Padmanabapuram are the appellants herein.

2. Parties will be referred to in accordance with their rank in the suit in the lower court.

3. Plaintiffs, who are respondents herein filed the suit for declaration of title and recovery of possession of two items of properties more specifically described in the schedule to the plaint. Item No. l originally belonged to one Padmanabha Pillai and Manoharan Nair. They sold the property in favour of Maria Michaelal mother of plaintiffs by two separate sale deeds dated 27.9.1960. and 12.1.1961. They are Exs.A-1 and A-2 respectively. Item No. 2 belonged to Sabarimuthu Nadar and Dominic, who are brothers of Maria Michaelal. They gifted the plaint items to their sister Maria Michaelal as per two gift deeds dated 9.6.1975 and 11.6.1975 They are Exs.A-4 and A-4 respectively. Maria Michaelal died in the year 1976. At the time of her death, she had left behind the plaintiffs and also her husband as legal heirs.

4. Father of plaintiffs Varuvel, sold both the properties as if they belong to him exclusively, to the defendants in the suit. They obtained possession as per sale deed dated 5.4.1979,. The said sale deed covered other properties also. After obtaining sale deed plaintiffs who were in possession of plaint schedule items were dispossessed, which necessitated plaintiffs for filing suit for recovery of possession. They claimed mesne profits at the rate of Rs. 2,500 per annum from the date of suit and as past profits they claimed Rs. 7,500.

5. In the written statement filed by the appellants, they contended Exs.A-1 and A-2 were obtained in the name of the Maria Michaelal as binami for her husband and she did not have any right. In regard to item No. 2, it is said that Varuvel was already in possession of the entire property along with his other properties adjoining the same and item No. 2 was only formal document. It is also said that father of plaintiffs put up pucca construction and compound walls around the property and it was thereafter, he sold the properties to the appellants as per Ex.A-5. According to the appellants, plaintiffs have no right over the property and the suit is liable to be dismissed.

6. On the above pleadings, lower court raised five issues and evidence was also taken. Oral evidence consist of P.W.1 first plaintiff and D.W.1 first defendant. Exs.A-1 to A-5 were marked.

7. After elaborate discussion of evidence, lower court came to the conclusion that the properties absolutely belongs to Maria Michaelal and the claim of benami cannot be accepted and defendants are even prevented from putting forward such a plea when even the executor of document did not have a claim of benami. Even otherwise on merits, it was held that Maria Michaelal was the real owner of the property. It further came to the conclusion that plaintiffs' father who is the husband of the acquirer has l/5th right under the provisions of Travancore Christian Succession Act and subject to his right, plaintiffs are entitled to have their title declared, " Plaintiffs were allowed to recover the properties with mesne profits and defendants were permitted to work out their remedy in so far as their l/5th share, which the plaintiff's father had and alienated to the appellants.

8. It was also declared that plaintiffs are also entitled to mesne profits and the matter was relegated to further enquiry under Order 20, Rule 12 of Code of Civil Procedure. It further held that the claim of appellants that plaintiffs father put up construction and compound wall. etc. is false and mischievous claim and therefore was not entitled to any value of construction. Parties are directed to suffer their costs.

9. It is against the said decree and judgment, defendants have preferred this appeal.

10. I heard the counsel on both sides.

11. Learned Counsel for appellants contended that the decision of lower court requires reconsideration especially in view of Mary Roy's case A.I.R. 1986 S.C. 1011 : (1986) 2 S.C.C. 209. If that be so, Indian Succession Act that will be applied and consequently, sale deed executed by plaintiffs' father will be valid to the extent of 1/3rd share and only for the remaining, plaintiffs will have right. Finding of the lower court that plaintiffs father will be entitled to only l/5th share and that too terminable on his death under the provisions of Travancore Christians Succession Act is not correct.

12. The only question that requires consideration is whether the contention of the appellants that decree and judgment of the Lower court is liable to be modified is correct or not?

13. Item Nos. l and 2 of the plaint schedule absolutely belongs to Maria Michaelal under Exs.A-1 to A-4 is not seriously disputed by appellant's counsel. Appellants are only alienees from Plaintiffs' father who is the husband of the acquirer. Plaintiffs father has claimed his right only as legal heir of his wife. That means, even the vendor of the appellants admit the title of the acquirer. Appellants who are claiming under Ex.A-5, cannot therefore put forward the contention that Exs.A-1 and A-2 are benami for her husband. Even on merits, the contention has no force. It is seen that the documents were taken for consideration and the consideration was paid only by Maria Michaelal. Finding of lower court that properties covered by Exs.A-1 and A-2 absolutely belonged to Maria Michaelal is only to be confirmed.

14. With regard to item No. 2, Maria Michaelal became the owner only because of the two gift deeds executed by her brothers. There is no scope for benami in such cases. That is why appellants have taken into contention that item No. 2 property was all along with the possession of plaintiffs' father. There is absolutely no evidence in this case to show that plaintiffs' father enjoyed the property even before the gift deeds Exs.A-3 and A-4. Even if plaintiffs' father was in possession, that can only be as agent of Maria Michaelal in view of the relationship as man and wife, Therefore, it cannot be said that plaintiff's father had any right over the property during the lifetime of Maria Michaelal. The finding of lower court that item No. 2 also absolutely belongs to Maria Michaelal is only to be confirmed.

15. Maria Michaelal died in the year 1976. The question to be considered is who are the legal heirs of Maria Michaelal and what is the law applicable to them.

16. Parties herein hail from southern district of erstwhile Travancore State where Travancore Christians Succession regulation was in force. Lower court held that the husband is also legal heir along with sons, but his right is terminable on his death. Therefore, lower court was of the view that plaintiff's father is entitled to l/5th lifetime interest over that share. I do not think the said finding of lower court could be accepted in view of the decision in Mary Roy's case (1986) 2 S.C.C. 209, their Lordships held that on coming into force of Part B States (Laws) Act, 1951, Travancore Christian Succession Act, 1092 stands repealed and Chapter II of Part V of Indian Succession Act became applicable and the parties will be governed by the provisions of Indian Succession Act alone. In paragraph 6 of the judgment, It is held thus, ...The petitioners contended that the Travancore Christian Succession Act, 1092 which was admittedly in force in Part B State of Travancore-Cochin immediately prior to April 1, 1951, was a law corresponding to Chapter II of Part V of the Indian Succession Act, 1925 and this law, namely, the Travancore Christian Succession Act, 1092 must consequently be held to have been replaced in its entirety on the extension of the provisions of Chapter II of Part V to the Indian Succession Act, 1925 to the territories of the former State of Travancore and if that be so, the continuance of the Travancore Christian Succession Act, 1092 could not possibly be regarded as saved by Section 29, Sub-section (2) of the Indian Succession Act, 1925. The respondents made a faint attempt to combat this argument by urging that the Travancore Christian Succession Act, 1092 was not a law corresponding to the Indian Succession Act, 1925 since the latter Act had a much wider coverage in that it dealt not only with rules relating to intestate succession among Indian Christians but also laid down rules of intestate succession among Parsis as also rules relating to testate succession, while the Travancore Christian Succession Act, 1092 was confined only to laying rules of intestate succession among Indian Christians. This plea urged on behalf of the respondents is wholly fallacious. It ignores the basic fact that when the Indian Succession Act, 1925 was extended to part B State of Travancore Cochin every part of that Act was so extended including Chapter II of Part V and the Travancore Christian Succession Act, 1092 was a law corresponding to Chapter II of Part V, since both dealt with the same subject-matter namely, intestate succession among Indian Christians and covered the same field. We may point out that Mr. Justice Ismail of the Madras High Court sitting as a single Judge of the Madras High Court recognised the validity of this position in Solomon v. Muthian (1974) 1 M.L.J. 53 and held that, "the conclusion is irresistible that the Travancore Christian Succession Regulation II of 1902) is a law corresponding to the provisions contained in Part V of the Indian Succession Act, 1925 so far as Christians are concerned." The learned Judge following upon this view held that the Travancore Christian Succession Act, 1092 was wholly repealed by virtue of Section 6 of Part B States (laws) Act, 1951 and it could not be held to have been saved by Section 29, Sub-section (2) of the Indian Succession Act, 1925. This conclusion reached by the learned single Judge was overruled by the Division Bench of the Madras High Court in D. Chelliah v. G. Lalita Bai , but even this decision of the Division Bench while disagreeing with the conclusion reached by the learned single Judge accepted the position that the Travancore Christian Succession Act, 1092 was a law corresponding to part V of the Indian Succession Act, 1925. And if that be so, it is difficult to resist the conclusion that by Section 6 of part B States (Laws) Act, 1951 the Travancore Christian Succession Act, 1092 stood repealed in its entirety. When Section 6 of part B States (Laws) Act, 1951 provided in clear and unequivocal terms that the Travancore Christian Succession Act, 1092 which was a law in force in part B States of Travancore Cochin corresponding to Chapter II of Part V of the Indian Succession Act, 1925, shall stand repealed, it would be nothing short of subversion of the Legislative intent to hold that the Travancore Christian Succession Act, 1092 did not stand repealed but was saved by Section 29, Sub-section (2) of the Indian Succession Act, 1925. Of course, if there were any provision in Part B States (Laws) Act, 1951 expressly providing that the Travancore Christian Succession Act, 1092 shall not stand repealed despite the extension of Chapter II of Part V of the Indian Succession Act, 1925 to the territories of the former State of Travancore then undoubtedly the Travancore Christian Succession Act, 1092 would not have stood repealed and would have been saved. But admittedly there is nothing in Part B States (Laws) Act, 1951 expressly saving the Travancore Christian Succession Act, 1092.

The only argument urged on behalf of the respondent was that Section 29, Sub-section (2) of the Indian Succession Act, 1925 had the effect of saving the Travancore Christian Succession Act, 1092 and the latter Act therefore continued to govern Indian Christians in the territories of the former State of Travancore. Now this contention of the respondents might perhaps have required some consideration if the Travancore Christian Succession Act, 1092 had not been expressly repealed and an argument had been raised that by reason of the extension of the Indian Succession Act, 1925, there was implied repeal of the Travancore Christian Succession Act, 1092. Then perhaps an argument could have been advanced that though both Chapter II of Part V of the Indian Succession Act, 1925 and the continued operation of the Travancore Christian Succession Act, 1092 was saved by Section 29, Sub-section (2) of the Indian Succession Act, 1925. We very much doubt whether such an argument would have been tenable but in any event, in the present case, there is no scope for such an argument, since the Travancore Christian Succession Act, 1092 stood expressly repealed by virtue of Section 6 of Part B States (Laws) Act, 1951.

And finally, in paragraph 8 of the judgment, their Lordships declared thus, we are, therefore, of the view that on the coming into force of Part B States (Laws) Act, 1951, the Travancore Christian Succession Act, 1092 stood repealed and Chapter II of Part V of the Indian Succession Act, 1925 became applicable to intestate succession to the property of members of the Indian Christian Community in the territories of the erstwhile State of Travancore was thereafter governed by Chapter II of Part V of the Indian Succession Act, 1925.

17. In view of my finding that parties are governed by Indian succession Act, I have to consider how the property devolves on the death of Maria Michaelal.

18. Section 32 of the Indian Succession Act says that property of an intestate devolves upon the wife or husband, or upon those who are of the kindred of the deceased, in the order and according to the rules hereinafter contained in this chapter. Section 33 of the Act read thus, where intestate has left widows and lineal descendants, or widow and kindred only, 'or widow and no kindred.

Where the intestate has left a widow:

(a) If he has also left any lineal descendants, one-third of his property shall belong to his widow, and the remaining two-thirds shall go to his lineal descendants according to the rules hereinafter contained:

(b) save as provided by Section 33-A, if he has left no lineal descendant, but has left persons who are of kindred to him, one-half of his property shall belong to his widow, and the other half shall go to these who are of kindred to him, in the order and according to the rules hereinafter contained;

(c) If he has left none who are of kindred to him, the whole of his property shall belong to his widow.

The other relevant portion is Section 35 of the Act, which read thus, "Rights of Widower": A husband surviving his wife has the same rights in respect of her property, if she dies intestate, as a widow has in respect of her husband's property, if he dies intestate.

19. In view of these provisions, plaintiff's father will be entitled to l/3rd share in the plaint schedule items 1 and 2 and not l/5th life interest as found by the lower court.

20. The sale deed executed by plaintiff's father Ex.A-5 is valid to the extent of 1/3rd share and the defendants are entitled to retain that share as owners.

21. From the above finding, it follows that plaintiffs as well as defendants are not co-owners, and recovery of possession cannot be allowed. But that does not prohibit the court from granting a smaller relief. It is therefore declared that plaintiffs are entitled to 2/3rd share in the plaint items 1 and 2 and they are allowed to recover the same from defendants.

22. A preliminary decree is therefore passed declaring that plaintiffs are entitled to 2/3rd share in plaint items 1 and 2 and they are permitted to take out a commission for partitioning both the items, and get a final decree passed. Quantum of mesne profits payable to the plaintiffs also will be decided during final decree proceedings. Finding of lower court that defendants are not entitled to value the constructions either for building or compound wall is confirmed.

23. In the result, the appeal is allowed as indicated above, There will be no order as to cost.

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