KERALA HIGH COURT
O.YOHANNAN VS VERONICA, DATED: 25
AUGUST, 2009
Summarised Judgement (Scroll for Complete Judgement)
Introduction:
The
appeal arises from the judgment and decree dated 21.5.1998 in AS No.47/89 of
this court against OS No.37/87 of the Sub Court, Sulthan Bathery, decreeing the
suit for partition, instituted by the respondent as plaintiff.
Facts of the Case:
The appellant is the defendant in the said
suit. Both the appellant and the respondent plaintiff are brother and sister.
They are Travancore Christians, migrated from Meenachil Taluk in Wayanad
District. The subject matter of the partition is the property situated in
Wayanad District.
The
short question that arose for consideration was as to whether in the case of
partition of properties, it is the Travancore Christian Succession Act or the
Indian Succession Act that would apply. The Honourable Supreme Court of India
in Mary Roy v. State of Kerala (1986 KLT 508) considered the effect of Part B
States (Laws) Act, 1951 and held that in view of Sections 6, 3, 2(cc) and the
Schedule thereto, the Travancore Christian Succession Act, 1092 stood wholly
repealed on extension of the Succession Act, 1925 to Part B State of
Travancore-Cochin by the 1951 Act and not saved by S.29(2) of the Succession
Act. Hence, in the matters of intestate succession to property of Indian
Christians of former State of Travancore, Chapter II of Part V of Succession
Act would apply.
Observation of Court:
Therefore,
there is no doubt that in matters of intestate succession regarding plaint
schedule property, it is the Indian Succession Act 1925 that would apply and it
is the admitted case of the parties that the property in question devolved on
the plaintiff and the defendant in equal share on the death of the mother. But
the issue which arose for consideration before the court below was as to
whether the earlier decision in the suit between the parties to this suit would
operate as res judicata. Earlier, the plaintiff had instituted a suit as OS
No.3/77 for partition and separate allotment of share in the plaint schedule
property. The suit was dismissed and the appeal filed by her as AS No.58/78 was
also dismissed. So, the matter has become final. It was the contention of the
plaintiff in that suit that since the property was situated in Malabar, the
Travancore Christian Succession Act will not apply and the parties will be
governed by the provisions of the Indian Succession Act. However, it was a
negative holding that since the parties are Travancore Christians, irrespective
of the land where the property is situated, they will be governed by the
provisions of the Travancore Christian Succession Act.
Judgement:
In
the aforesaid view, the decision rendered by the trial court and as confirmed
by this court, holding that the present suit is not barred by the rule of res
judicata is perfectly correct, though for our own reasons as stated above. In
the result, the appeal fails and it is accordingly dismissed.
Complete Judgement
KERALA HIGH COURT
O.YOHANNAN VS VERONICA, DATED: 25
AUGUST, 2009
IN THE HIGH COURT OF KERALA AT ERNAKULAM
AFA.No. 44 of 1998()
1. O.YOHANNAN
... Petitioner
Vs
1. VERONICA
... Respondent
For Petitioner
:SRI.LALJI P.THOMAS
For Respondent
:SRI.PHILIP MATHEW
The Hon'ble MR. Justice P.R.RAMAN
The Hon'ble MR. Justice P.BHAVADASAN
Dated :25/08/2009
O R D E R
P.R.RAMAN & P.BHAVADASAN, JJ.
--------------------------------------------------------
AFA 44 OF 1998
--------------------------------------------------------
Dated
25th August 2009 Judgment RAMAN, J.
The
appeal arises from the judgment and decree dated 21.5.1998 in AS No.47/89 of this
court against OS No.37/87 of the Sub Court, Sulthan Bathery, decreeing the suit
for partition, instituted by the respondent as plaintiff.
2.
The appellant is the defendant in the said suit. Both the appellant and the
respondent plaintiff are brother and sister. They are Travancore Christians,
migrated from Meenachil Taluk in Wayanad District. The subject matter of the
partition is the property situated in Wayanad District. The short question that
arose for consideration was as to whether in the case of partition of
properties, it is the Travancore Christian Succession Act or the Indian
Succession Act that would apply. The Honourable Supreme Court of India in Mary
Roy v. State of Kerala (1986 KLT 508) considered the effect of Part B States
(Laws) Act, 1951 and held that in view of Sections 6, 3, 2(cc) and the Schedule
thereto, the Travancore Christian Succession Act, 1092 stood wholly repealed on
extension of the Succession Act, 1925 to Part B State of Travancore-Cochin by
the 1951 Act and not saved by S.29(2) of the Succession Act. Hence, in the
matters of intestate succession to property of Indian Christians of former
State of Travancore, Chapter II of Part V of Succession Act would apply.
Therefore, there is no doubt that in matters of intestate succession regarding
plaint schedule property, it is the Indian Succession Act 1925 that would apply
and it is the admitted case of the parties that the property in question
devolved on the plaintiff and the defendant in equal share on the death of the
mother. But the issue which arose for consideration before the court below was
as to whether the earlier decision in the suit between the parties to this suit
would operate as res judicata.
Earlier, the plaintiff had instituted a suit as
OS No.3/77 for partition and separate allotment of share in the plaint schedule
property. The suit was dismissed and the appeal filed by her as AS No.58/78 was
also dismissed. So, the matter has become final. It was the contention of the
plaintiff in that suit that since the property was situated in Malabar, the
Travancore Christian Succession Act will not apply and the parties will be
governed by the provisions of the Indian Succession Act. However, it was a
negative holding that since the parties are Travancore Christians, irrespective
of the land where the property is situated, they will be governed by the
provisions of the Travancore Christian Succession Act. The effect of the Part B
States (Laws) Act, 1951 did not arise for consideration. It was subsequently
that the Apex Court in Mary Roy's case declared the law that in view of the
specific provisions contained in Part B States (Laws) Act, 1951, more
particularly Ss. 6, 3, 2(cc) and Schedule thereto, the Travancore Christian
Succession Act 1092 stood wholly repealed on extension of the Succession Act,
1925 to Part B States, such extension was made by the 1951 Act and it was not
saved by S.29(2) of the Succession Act. The court below, following the decision
of this court in Joseph Philip v. Mariamma Chacko (1987 KLJ 1418) held that the
earlier decision is a nullity and that the law as laid down by the Apex Court
in Mary Roy's case will bind it. This was confirmed by the learned Single Judge
of this court. Hence the defendant in appeal.
3.
We have heard the parties. The basic principle of res judicata is that when the
cause of action of the second suit is merged with the first suit, it does not
survive any more. The res judicata ousts the jurisdiction of the court, whereas
in the case of estoppel, it does not, since it is not a rule of substantive law
and is a rule of evidence. See the decision of the Apex Court in Satyadhyan
Ghosal v. Deorajin Debi (AIR 1960 SC 941). As per the principle contained in
S.11 CPC, no court shall try any suit or issue in which the matter directly and
substantially in issue has been directly and substantially in issue in a former
suit between the same parties, or between parties under whom they or any of
them claim, litigating under the same title in a court competent to try such
subsequent suit or the suit in which such issue has been subsequently raised
and has been heard and finally decided by such court. The issues that are
raised in the present suit are (1) whether the plaint schedule property is
partible and (2) whether the suit is barred by the principle of res judicata.
Admittedly, in the earlier suit, the effect of the provisions contained in the
Part B States (Laws) Act, 1951 over the Travancore Christian Succession Act was
not raised or considered. The point that was considered was since the parties were
Travancore Christians, whether they will be governed by the Travancore
Christian Succession Act for succession to a property situated in Malabar,
where the Indian Succession Act would apply. Though it was answered against the
plaintiff, incidentally, it has to be pointed out that (though we are not
reconsidering the said decision) even that decision was rendered, overlooking
the Division Bench decision of this court in ASA No.1 of 1974 (1977 KLT SN 17
Case No.45), where also the property involved was in Malabar area and it was
held that the Travancore Christian Succession Act passed by the Legislature of
the then State of the Travancore cannot obviously have application and has not
been made applicable in respect of properties situated outside the Travancore
State or the now Travancore area of this State to which alone it has
application. It makes little difference that the appellants and their pre-
deceased father were persons who migrated from Travancore area of this State to
the Malabar area and carried their laws along with them from their territory of
origin to the area of choice. Even if such a law was carried by them to the
area of migration, it would be of no avail for effecting the properties
situated in the Malabar area.
4.
Coming back to the question of res judicata, it has to be held that the earlier
decision itself was rendered based on a non-existent law. If the effect of the
provisions contained in the Part B States (Laws) Act, 1951 repealed the
Travancore Christian Succession Act 1092, the court cannot undo the legislative
mandate and apply the repealed enactment. In effect, what was done was to
re-enact the repealed law. Therefore, the said decision is fully without
jurisdiction. It has been held by the Apex Court in Allahabad Development Authority
v. Nasiruzzaman (1996)6 SCC 424) that when a previous decision is found to be
prima facie erroneous, it will not operate as res judicata. In the aforesaid
view, the decision rendered by the trial court and as confirmed by this court,
holding that the present suit is not barred by the rule of res judicata is
perfectly correct, though for our own reasons as stated above. In the result,
the appeal fails and it is accordingly dismissed.
P.R.RAMAN,
JUDGE
P.BHAVADASAN,
JUDGE
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