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in view of Sections 6, 3, 2(cc) and the Schedule thereto, the Travancore Christian Succession Act, 1092 stood wholly repealed on extension of the Succession Act, 1925 to Part B State of Travancore-Cochin by the 1951 Act and not saved by S.29(2) of the Succession Act.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.

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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.

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AFA 44 OF 1998
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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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ABHISHEK 28012020

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