Aliyas and Others v. Saramma and Others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **FRIDAY, THE 13TH DAY OF JULY 2018 / 22ND ASHADHA, 1940** **SA.No. 289 of 2001** **AGAINST THE JUDGMENT IN A.S 20/1997 OF THE SUB COURT, MUVATTUPUZHA DATED 19/1/2001 AGAINST THE JUDGMENT IN OS 453/1993 OF MUNSIFF'S COURT, MUVATTUPUZHA DATED 29/11/1996** ## **APPELLANT(S)/APPELLANTS/DEFENDANTS 2 TO 4** **1. ALIYAS, AGED 65 YEARS, S/O. PATHROSE, PARAYIL HOUSE, AYIROOR KARA, KOTTAPPADY VILLAGE, KOTHAMANGALAM TALUK.** **2. SARAMMA, AGED 63 YEARS, W/O. ALIYAS, PARAYIL HOUSE, AYIROOR KARA, KOTTAPPADY VILLAGE, KOTHAMANGALAM TALUK.** **3. ELDHO, AGED 39 YEARS, S/O. ALIAS, PARAYIL HOUSE, AYIROOR KARA, KOTTAPPADY VILLAGE, KOTHAMANGALAM TALUK.** **BY ADVS.SRI.K.JAJU BABU** - **SRI.BRIJESH MOHAN** - **SRI.JOSEPH SEBASTIAN PURAYIDAM** **SMT.M.U.VIJAYALAKSHMI** ## **RESPONDENT(S)/RESPONDENTS /PLAINTIFF AND DEFENDANTS 4 TO 16.:** ## **1. SARAMMA,** - **AGED 67 YEARS, W/O. VARKEY, AYYAKKADAN HOUSE, AYOOR KARA, KOTTAPPADY VILLAGE, KOTHAMANGALAM TALUK.** - **2.* ANNAM, AGED 82, W/O. PAILY, MUNGARATH HOUSE, AYIROOR KARA, KOTTAPPADY VILLAGE, KOTHAMANGALAM TALUK. (DIED AND LRS RECORDED)** - **IT IS RECORDED THAT THE 2ND RESPONDENT IS DIED AND R4 TO R8 ARE LEGAL HEIRS OF THE DECEASED 2ND RESPONDENT AS PER ORDER DATED 1.8.01 VIDE MEMO IF 3506/01.** **3. MARIYAM, AGED 77, W/O. MATHULLA, PARAPPATTU HOUSE, AYIROOR KARA, KOTTAPPADY VILLAGE, KOTHAMANGALAM TALUK.** **4. PATHROSE, AGED 69 YEARS, S/O. PAILY, MANGARATHU HOUSE, AYIROOR KARA, KOTTAPADY VILLAGE, KOTHAMANGALAM TALUK.** **PBS** 2 **SA.No. 289 of 2001** ## **SA.No. 289 of 2001** **5. YACOB, AGED 66 YEARS, S/O. PAILIY, MANGARATHU HOUSE, AYIROOR KARA, KOTTAPPADY VILLAGE, KOTHAMANGALAM TALUK.** **6. MATHAI, AGED 63, S/O. PAILY, MANGARATHU HOUSE, AYIROOR KARA, KOTTAPPADY VILLAGE, KOTHAMANGALAM TALUK.** **7. PAULOSE, AGED 53, S/O. PAILY,** - **MANGARATHU HOUSE, MALLIPPARA KARA,** - **KOTTAPPADY VILLAGE, KOTHAMANGALAM TALUK.** **8. ALIAS, AGED 55 YEARS, S/O. PAILY, MANGARATHU HOUSE, MALLIPPARA KARA,** - **KOTTAPPADY VILLAGE, KOTHAMANGALAM TALUK.** **9. SARAMMA, AGED 50, W/O.VARGHESE, KEERAMKUZHIYIL, THURUTHUMKARA, VENGOOR WEST VILLAGE, KUNNATHUNADU TALUK.** **10. SARAMMA, W/O. LATE VARGHESE, MANGARATHU HOUSE, PINDIMANA KARA, KURUMATTOM BHAVAN, PINDIMANA VILLAGE.** **11. ANNAMMA, W/O. MATHAIKUNJU, PULINATTU HOUSE, PINDIMANA KARA, PINDIMANA VILLAGE, MUTHAMKUZHI BHAGAM.** **12. PAUL, S/O. VARGHESE, MANGARATHU HOUSE, PINDIMANA KARA, PINDIMANA VILLAGE.** **13. THANKACHAN, S/O. VARGHESE, ...DO...DO..** **14. MARY, W/O. PAUL, MADATHIKUDIYIL HOUSE, PULINTHANAM KARA, ENANALLOOR VILLAGE.** - **** ADDL.R15 TO R20 IMPLEADED** **15. GEEVARGHESE, S/O. MATHULLA, PARAPPAT(MAROTH) HOUSE, KUMBLERI P.O, NEAR KUMBLERI SCHOOL, MEENANGADI.** **16. PATHROSE, S/O. MATHULLA, PARAPPAT (MAROTH) HOUSE, KURUPPAMPADY P.O, PERUMBAVOOR.** **17. ANNAKUTTY, W/O. THARIYATH , CHIRAKKAL HOUSE, ALATTUCHIRA P.O, KOOVAPPADY, PERUMBAVOOR.** **18. MARY, W/O. ESAHAKN ARAKKAL HOUSE, VAYAKARA P.O, ASAMANOOR, PERUMBAVOOR.** **19. ALIYAS, S/O. MATHULLA, PARAPPATT (MAROJ) HOUSE, KOTTAPPADY P.O, KOTHAMANGALAM VIA.** **20. SALY, W/O. GEORGE, PARAPPAT (MAROTH) HOUSE, KOTTAPPADY P.O, KOTHAMANGALAM (VIA).** 3 **SA.No. 289 of 2001** **** THE LEGAL REPRESENTATIVES OF DECEASED 3RD RESPONDENT ARE IMPLEADED AS ADDL. RESPONDENTS 15 TO 20 AS PER THE ORDER DATED 27/03/2018 IN I.A. 1721/2015** ## **SA.No. 289 of 2001** ## ***** ADDL.R21 TO R23 IMPLEADED** **21. MOLY ALIYAMMA, W/O. LATE PATHROSE, PARAPPAT (MAROTH) HOUSE, KURUPUMPADY P.O, PERUMBAVOOR.** **22. LIJO PETER, S/O. LATE PATHROSE,--DO--DO..** **23. LISSY PETER, D/O. LATE PATHROSE, --DO--DO...** **24. THARU ELIAS THARIATH PAULOSE, H/O.LATE ANNAKUTTY, RAPATTU CHIRACKAL HOUSE, ALATTUCHIRA.P.O,** - **KUVAPPADY, PERUMBAVOOR.** **25. ELDHO. C.T,** - **S/O. LATE ANNAKUTTY, -DO-- DO--** **26. SOLLY.C.T., D/O. LATE ANNAKUTTY, --DO--** **27. SOMMY.C.T., D/O. LATE, ANNAKUTTY, --DO--** - ***** LEGAL REPRESENTATIVES OF DECEASED 16TH RESPONDENT ARE IMPLEADED AS ADDL. RESPONDENTS 21 TO 23 AND LEGAL REPRESENTATIVES OF DECEASED 17TH RESPONDENT ARE IMPLEADED AS ADDL. RESPONDENTS 24 TO 27 AS PER THE ORDER DATED 27/03/2018 IN I.A. 97/2016.** ****** ADDL.R28 TO R29 IMPLEADED** **28. ELIYAMMA JACOB, D/O. YACOB, MANGARATHU HOUSE, PINDIMANA P.O, KOTHAMANGALAM.** **29. ELDHO, S/O. YACOB, -DO-** **30. CHINNAMMA, D/O. YACOB, -DO-** **31. MOLLY, D/O. YACOB, -DO-** **32. BEENA, D/O. YACOB, -DO-** **33. MATHAI.P.V @ MATHAIKUNJU, AGED 63 YEARS,** - **H/O. ANNAMMA, PULINATTU HOUSE, PINDIMANAKARA,** - **MUTHAMKUZHI, PINDIMANA VILLAGE, KOTHAMANGALAM TALUK.** **34. JOBY MATHEW, S/O. MATHAI, AGED 42, PINDIMANAKARA,** - **MUTHAMKUZHI, PINDIMANA VILLAGE, KOTHAMANGALAM TALUK.** 4 **SA.No. 289 of 2001** **35. BINU MATHEW, S/O. MATHAI, AGED 32, PINDIMANAKARA, MUTHAMKUZHI, PINDIMANA VILLAGE, KOTHAMANGALAM TALUK.** **36. BINDHU MATHEW, D/O. ANNAMMA, W/O. JOAN @ ELDHO, AGED 37 KARIMALA, KOTTIL HOUSE, THRIKKALATHOOR KARA, THRIKKALATHOOR POST, MUVATTUPUZHA, PIN-686 661.** ## **SA.No. 289 of 2001** ## ******* ADDL. R37 TO 43 IMPLEADED** **37. VARGHESE ,S/O. VARKEY (H/O (LATE) SARAMMA, AYAKKADAN HOUSE, AYIROOR KARA, AYIROORPADAM P.O, KOTTAPADY VILLAGE, KOTHAMANGALAM TALUK, 686 692.** **38. VARGHESE VARGHESE. S/O. VARGHESE, AYAKKADAN HOUSE,** - **AYIROORPADAM P.O, KOTTAPADY VILLAGE, KOTHAMANGALAM-686 692.** **39. ELIYAMMA MATHEW D/O. (LATE) SARAMMA, VADAKKEKARA PULINAL HOUSE, PARIYARAM KARA, MEEMPARA P.O, AYKKARANAD SOUTH VILLAGE, KUNNATHUNADU TALUK, PIN-682 308.** **40. SARAKUTTY PAULOSE, D/O. (LATE) SARAMMA, OOTHALKODAN HOUSE, AYIROORPADAM P.O, KOTTAPADY VILLAGE, KOTHAMANGALAM TALUK, 686 692.** **41. MARY VARGHESE, D/O. (LATE) SARAMMA, PARVELIKUDIYIL HOUSE, MUDAVOOR P.O, VELLOORKUNNAM VILLAGE, MUVATTUPUZHA TALUK, PIN-686669** **42. ANNIE SKARIA, D/O. (LATE) SARAMMA, POKKANATHIL HOUSE, POTHANICAD P.O, KOTHAMANGALAM TALUK, PIN-686 671.** **43. DOLLY BABY, D/O. (LATE) SARAMMA, VATTAPARAMBIL HOUSE, AYIROORPADAM P.O, KOTHAMANGALAM TALUK, PIN-686 692.** ******* LEGAL REPRESENTATIVES OF DECEASED 1ST RESPONDENT ARE IMPLEADED AS ADDL. RESPONDENTS 37 TO 43 AS PER THE ORDER DATED 27.03.2018 IN I.A. NO. 1276/2012.** ******** ADDL. R44 TO R48 IMPLEADED** **44. MARIYAMMA PATHROSE, W/O. LATE PATHROSE, MANGARATHU HOUSE, PINDIMANA P.O, KOTHAMANGALAM-686 692.** **45. POULOSE PATHROSE, S/O. LATE PATHROSE, MANGARATHU HOUSE,** - **PINDIMANA P.O, KOTHAMANGALAM-686 692.** 5 **SA.No. 289 of 2001** **46. VARGHESEKUTTY PATHROSE, S/O. LATE PATHROSE, MANGARATHU HOUSE, PINDIMANA P.O, KOTHAMANGALAM-686 692.** **47. GEORGE PATHROSE, S/O. LATE PATHROSE, MANGARATHU HOUSE, PINDIMANA P.O, KOTHAMANGALAM-686 692.** **48. LEELAMMA VAVACHAN, D/O. LATE PATHROSE, KALARICKAKUDY HOUSE, VADATTUPARA P.O, KOTHAMANGALAM-686 681.** - ******** LEGAL REPRESENTATIVES OF DECEASED 4TH RESPONDENT ARE IMPLEADED AS ADDL. RESPONDENTS 44 TO 48 AS PER THE ORDER DATED 27.03.2018 IN I.A. NO. 371/2015.** ## **SA.No. 289 of 2001** ********* ADDL.RESPONDENTS** **49. MARY, W/O. VARGHESE, AGED 64 YEARS, AYAKKADAN HOUSE, AYROORPADAM P.O, KOTTAPADY VILLAGE, KOTHAMANGALAM, ERNAKULAM DISTRICT, PIN- 686 692.** **50. SMITHA VARGHESE, D/O. VARGHESE, AGED 36 YEARS, AYAKKADAN HOUSE, AYROORPADAM P.O, KOTTAPADY VILLAGE, KOTHAMANGALAM, ERNAKULAM DISTRICT, PIN- 686 692.** **51. SMIJA VARGHESE, D/O. VARGHESE, AGED 33 YEARS, AYAKKADAN HOUSE, AYROORPADAM P.O, KOTTAPADY VILLAGE, KOTHAMANGALAM, ERNAKULAM DISTRICT, PIN- 686 692.** **52. AMALA VARGHESE, D/O. VARGHESE, AGED 29 YEARS, AYAKKADAN HOUSE, AYROORPADAM P.O, KOTTAPADY VILLAGE, KOTHAMANGALAM, ERNAKULAM DISTRICT, PIN- 686 692.** **53. ANNA MARY, D/O. VARGHESE, AGED 25 YEARS, AYAKKADAN HOUSE, AYROORPADAM P.O, KOTTAPADY VILLAGE, KOTHAMANGALAM, ERNAKULAM DISTRICT, PIN-686 692.** ********* LEGAL HEIRS OF DECEASED 38 TH RESPONDENT ARE IMPLEADED AS ADDL. RESPONDENT'S 49 TO 53 AS PER ORDR DATED 27/03/2018 IN I.A. 2855/2017** **R4 TO R6,R8 TO R15, BY SENIOR ADVOCATE SRI.R.D.SHENOY , ADV. SRI.S.VINOD BHAT R37 TO R43 BY ADV. SMT.A.A.GEETHA** **R1,R37 TO R43, BY ADV. SRI.PAUL K.VARGHESE** **THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 13-07-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **PBS 24/7/2018** 6 **SA.No. 289 of 2001** ## **JUDGMENT** Defendants 1 to 3 in a suit for partition are the appellants in the second appeal. 2. The plaintiff and defendants 1, 4 and 5 are siblings. Defendants 2 and 3 are the wife and son of the first defendant. Two items of properties were sought to be partitioned in the suit. Among them, plaint A schedule property belonged to Pathrose, the father of plaintiff and plaint B schedule property is the southern one half portion of a property jointly held by Pathrose and his friend Varkey. The case of plaintiff is that on the death of Pathrose, the plaint schedule properties devolved on the plaintiff and defendants 1, 4 and 5. Defendants 1 to 3 contested the suit contending that Pathrose died prior to the coming into force of the Indian Succession Act; that the parties were governed by Travancore Christian Succession Act at the relevant time and and that therefore the plaintiff, a female successor of Pathrose has not acquired any right over the plaint schedule properties. The fourth defendant remained _ex parte_ . The fifth defendant filed a written statement 7 **SA.No. 289 of 2001** ## supporting the plaintiff. 3. It seen that the one half right of Varkey over plaint B schedule property has been subsequently purchased by one Paily. As Paily was no more, his legal representatives were also impleaded as parties to the suit subsequently. They, however, did not contest the suit. 4. The specific case of the plaintiff in the suit was that Pathrose died during 1966, after the coming into force of the Indian Succession Act. The question arose for consideration in the suit, in the circumstances, was as to the date of death of Pathrose. In order to prove the date of death of Pathrose, the plaintiff produced Ext.A4 death certificate. Placing reliance on Ext.A4 Death Certificate, the trial court found that Pathrose died after the coming into force of the Indian Succession Act and consequently decreed the suit declaring one fourth right of the plaintiff over the suit properties. Defendants 1 to 3 though challenged the decision of the trial court in appeal, the appellate court, on a reappraisal of the materials on record, confirmed the decision of the trial court. Aggrieved by the decisions of the courts below, defendants 1 to 3 have filed this second appeal. 5. Heard the learned counsel for the appellants as also 8 **SA.No. 289 of 2001** ## the learned counsel for the respondents. 6. It is seen that after hearing the parties, this Court framed the following substantial questions of law for decision in the second appeal. (i) whether in the facts and circumstances of the case, the law applicable to the parties is Indian Succession Act, 1925 or Travancore Christian Succession Act? (ii) whether the courts below are justified in holding that the first appellant has got no absolute right over the plaint schedule property under the provisions of the Travancore Christians Succession Act? (iii) whether Ext.A4 death certificate issued on 22.8.96 as per the provisions of Registration of Births and Deaths Act, 1969 in respect of a death happened prior to the promulgation of the Act has got any legal validity? (iv) whether the findings of the court below on the questions, the plaint schedule property is partiable and if so, whether the first appellant is entitled for value of improvements is sustainable in law? 7. The learned counsel for the appellants contended that the findings rendered by the courts below as regards the death of Pathrose are faulty insofar as the same are solely based on Ext.A4 Death Certificate. According to the learned counsel, Ext.A4 Death Certificate is an invalid document insofar as the death occurred prior to the coming into force of the Registration of Births and Deaths Act, 1969, in terms of which the Ext.A4 Death Certificate is issued. The learned counsel relied on the decision of 9 **SA.No. 289 of 2001** the Division Bench of this court in **Usman vs Hindustan Machine Tools Ltd** (1987 (2) K.L.T 1028) in support of the said contention. In addition, the learned counsel for the appellants also contended that Pathrose had only one half right in the plaint B schedule property and therefore the courts below acted illegally in declaring the one fourth right of the plaintiff over the said property. According to the learned counsel, the plaintiff is entitled to only one eighth share in the plaint B schedule property. In the light of the submissions made by the learned counsel for the appellants, the following additional question of law is formulated for decision in the second appeal: Were the courts below justified in declaring the one fourth right of the plaintiff over plaint B schedule property? 8. Ext.A4 is the certified extract of the relevant portion of the Register of Deaths maintained under the Registration of Births and Deaths Act, 1969. Ext.A4 certifies that Pathrose died on 31/07/1966. The question arises for consideration is as to whether Ext. A4 is a valid document insofar as it certifies a death took place prior to the coming into force of the the Registration of Births and Deaths Act, 1969. True, in **Usman** _(supra)_ , it was held by a Division Bench of this Court that the provisions contained in the Registration 10 **SA.No. 289 of 2001** of Births and Deaths Act, 1969 cannot be invoked in respect of the deaths took place prior to the statute. The said decision, however, has been overruled by a Full Bench of this Court in **Abu v. Sub Divisional Magistrate** [1998 (1) K.L.T 683]. The appellants have not disputed the fact that if the death of Pathrose was after the Indian Succession Act, the plaintiff is entitled to one fourth share in the properties held by Pathrose. In the circumstances, the substantial questions of law framed at the time of admission of the second appeal are answered against the appellants. 9. As regards the additional question, as noted, the entire property jointly held by Pathrose and Varkey is not included in the suit. Instead, only the southern one half portion of the said property is included in the plaint B schedule. The averments of the plaintiff in this regard reads thus: “ B പടട്ടികവസസസ്തു പട്ടിസതാവ് പതതസതാസസ്തുസും ടട്ടിയതാനനന്റെ സസ്തുഹഹൃതത വർകട്ടിയസ്തുസും കകൂടട്ടി ടട്ടി രജട്ടിസ്റ്റന്റെട്ടിനലെ 1120-നലെ 2387-)o നമ്പർ ആധതാരസും തപകതാരസും കകൂടതായട്ടി സതീന്റെസ്തു വതാങസ്തുകയസ്തുസും ടട്ടി വർകട്ടിയകൂനട ഒനസ്തു പകസ്തുസട്ടി വതീസസും 1121 -നലെ 1506-)o നമ്പർ ആധതാരതപകതാരസും വട്ടിറട്ിട്ടുള്ളസസ്തുസും ബതാകട്ടി വസസസ്തു പട്ടിസതാവട്ടിനസ്തു മതാതസമതായട്ടി അവകതാശനപ്പെടത വനട്ടിരസ്തുനസസ്തുമതാണ.” True, there is no specific averment in the plaint as to the partition, if any, effected between Pathrose and Varkey or between Pathrose 11 **SA.No. 289 of 2001** and Pailey. However, in so far as only the southern one half portion of the property jointly held by Pathrose and Varkey alone is included in the suit with the aforesaid averment and insofar as the legal representatives of Pailey have not claimed any right over the same, I am inclined to hold that the said property was divided between Pathrose and Varkey and the southern one half portion of the property scheduled in the plaint is the portion allotted to Pathrose. The additional question formulated for decision in the second appeal also, in the circumstances, is answered against the appellants. The second appeal is, therefore, without merit and the same is, accordingly, dismissed. **Sd/-** **P.B.SURESH KUMAR** **JUDGE**