C.G. Joseph alias Kunjan v. Biyatrees alias Chinnamma and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR MONDAY, THE 18TH AUGUST 2008 / 27TH SRAVANA 1930 AS.No. 200 of 1990(A) --------------------OS.9/1982 of PRINCIPAL SUB COURT,PARAVUR .................... APPELLANT/DEFENDANTS 6, 7 & 8: ----------------- 1. MRS.BIYATREES ALIAS CHINNAMMA, AGED 50, W/O.XAVIER, ARACKAL MUDUKUPURAM DESOM, CHELLANAM VILLAGE, COCHIN TALUK. 2. MRS.GRACY VAKKACHAN, AGD 56, KOCHERRYVEEDU, KUMBALANGI P.O., COCHIN-7. 3. MRS.THANKAMMA JOSE, AGED 55, OLAPPURATHU HOUSE, MATHILAKAM P.O. - BY ADV. SRI.N.N.SUGUNAPALAN (SR.) SRI.C.HARIKUMAR SRI.ARAVINDA KUMAR BABU T.K. - SMT.P.K.RADHIKA SRI.S.SUJIN ## RESPONDENTS/PLAINTIFF & DEFENDANTS: --------------------- 1. C.G.JOSEPH ALIAS KUNJAN, AGED 55, S/O. GEORGE, CHINGAMTHARA, CHIRAYAMKARA, PANAYIKULAM ALANGADU PAKUTHUY. **(DIED)** 2. C.G.CLEATUS, AGED 66, S./O.GEORGE CHINGAMTHARA, CHIRAYAMKARA, NOW RESIDING AT CHINGAMTHARA VEETTIL, THOTTAKKATTUKARA, ALWAYE. **(DIED)** 3. C.G.MANNUEL ALIAS KUNJACHAN, AGED 62, S/O.GEORGE CHINGAMTHARA, KONGORPILLI, PANAYIKULAM P.O., ALWAYE. 4. AUGUSTHYNJUKUTTY, S/O.VARUTHUKUTTY SIVELI, RESIDING AT KOTTAPPILLY KUNNIL, KODUVAZHANGAKARA, ALANGAD P.O. -2- ## A.S.NO.200/90 5. ANNAM, W/O.JOSEPH, CHELATTU, KODUVAZHANGAKARA, ALANGADU VILLAGE. 6. BABY, W/O.CLIFEE, CHINGAMTHARA, KONGORPILLY, PANAYIKULAM P.O. ALANGAD. **(DIED)** 7. MELBY, S/O.CLIFFEE, -DO- -DO- 8. C.C.SURESH, TUTOR, MEDICAL COLLEGE, BEACH ROAD, KOZHIKODE. 9. GINNY, D/O.CLEETUS, CHINGAMTHRA, THOTTAKKATTUKARA, ALWAYE. 10. RAPHEL MATHEW, KONAPPILLY, CHIRAYAM, P.O. PANAIKULAM. **(EXPIRED)** 11. MRS.MEENA PAUL, AGED 39, ANJI PARAMBIL VEEDU, TRIPOONITHURA ROAD, ERNAKULAM SOUTH, COCHIN016. 12. MRS.GEETHA HUBERT, AGED 39, PUTHENPURAKAL, NAZRETH, COCHIN-2. 13. MRS.REENA ANTONY, AGED 36, KOCHUPURAKAL HOUSE,' KALAMASSERY. 14. USHA PRESHY, AGED 35, KANDANATTU HOUSE, KATTOOR, ALLEPPEY. 15. MRS.SEENA TOMY, AGED 34, NALPATHAMKALAM, GANDHI SQUARE, TRIPOONITHURA. 16. MR.VICTOR CLIFEE, AGED 20, S/O.CLIFEE, CHINGANTHARA HOUSE, KONGORPILLY, PANAYIKULAM .P.O. VIA,. ALWAYE. 17. MR.MARTINE CLIFEE, AGED25, S/O.CLIFEE, CHINGAMTHARAL HOUSE, -DO- -DO- 18. MRS.BEENA ELIYAS, AGED 25, KATTUPARAMBIL HOUSE, CEMETRY JUNCTION, ERNAKULAM. 19. NEENA CLIFEE, AGED 26, CHINGOMTHARA HOUSE, KONGORPILLY, PANAYIKULAM P.O. VIA. ALWAYE. (Respondents 7 and 11 to 19 are recorded as legal representatives of the deceased 6[th] respondent as per order dtd. 8/10/92 on memo cf .9066/92) ADDL. 20. M.G.ASHOKAN, MADATHIL HOUSE, KODUVAZHANGA, NEERIKODE P.O., ERNAKULAM. (Addl.R20 is impleaded as per order dtd. 7/7/2000 in CMP.NO..2828/2000) -3- ## A.S.NO.200/90 - ADDL.21. KUNHAMMA, W/O.LATE RAPHEL MATRHEW, KONAPPILLY, CHIRAYAM P.O.PANAIKULAM. - '' 22. JOSEPH, S/O. LATE RAPHEL MATHEW, -DO- -DO- - '' 23. PHILOMINA, D/O. -DO-DO- - '' 24. TREASA, D/O. -DO-DO- - '' 25. BABY, D/O. -DO-DO- (The legal heirs of deceased R10 are impleaded as Addl.R21 to R25 as per order dtd. 1/11/02 on CMP. 2636/91) - ADDL.26. METTY, W/O.LATE C.C.HJOSEPH, ALIAS KUNJAN, CHINGAMTHARA, CHIRAYAMKARA, PANAYIKULAM, VIA, ALUVA.' - '' 27. DOYAL JOSEPH, S/O.METTY, -DO- -DO- - '' 28. DINU JOY, S/O.-DO- ARACKAL HOUSE, NEENDAKARA, ESZHUPUNNA P.O., SHERTALLAI. **(DIED)** - '' 29. DINNA SETHY, -DO- PARACKAL HOUSE, NEAR ST. PAIS 10 CHURCH, FERRT ROAD, KALAMASSERY. - '' 30. SABU JOSEPH, S./O.-DO- CHINGAMTHARA, CHIRAYAMKARA, PANAYIKULAM VIA. ALUVA. - '' 31. ANTONY JOSEPH ALIAS SASI, S/O. -DO- -DO- -DO- - '' 32. DALY JOSEPH, -DO-DO-DO- (Legal heirs of deceased R1 are impleaded as Addl.R26 to 32 as per order dated 1/11/02 on CMP.NO.9663/92) - ADDL.33. JITHA DOYAL, MINOR REPRESENTED BY HER GUARDIAN METTY JOSEPH, CHINGAMTHARA, CHIRAYAMKARA, PANAYIKULAM, ALUVA. - '' 34. RIYA DOYAL, MINOR REPRESENTED BY HER GUARDIAN METTY JOSEPH,M CHINGAMTHARA, PANAYIKULAM, ALUVA. (Legal heirs of deceased R28 are impleaded as Addl.R33 and R34 as per order dated 1/11/02 on CMP.NO.5553/99). - ADD.35. TESSY CLEATUS, CHINGAMTHARAL; HOUSE, C.G.C. ENGINEERING, EDAYAR, BINANIPURAM, VIA. ALUVA. -4- ## A.S.NO.200/90 (Legal heir of deceased R2 is impleaded as additional 35th respondent as per order dated 1/11/02 on CMP.No.264/2002) R20 TO R24 BY ADV. SRI.V.DAMODARAN SRI A.B.XAVIER R6, R7, R11, R12, R14 TO R19 BY ADV SRI.V. RAMACHANDRA IYER SRI JOSEPH FRANKLIN R2 & R8 BY ADV. SRI.S.ANANTHASUBRAMANIAN, SRI S.SHYAM SRI PHILIP M. VARGHESE SRI.V.V.JOSHY FOR R2 SRI.C.VALSALAN FOR R11,12,16,18,19 SRI P.K.ABOOBACKER EDAPPALLY FOR R25, R27, R28, R29, R30 & R31. SRI.K.RAKESH ROSHAN FOR -DOSMT.THUSHARA.V FOR -D0SRI.P.M.SAJI FOR R15 THIS APPEAL SUIT HAVING BEEN FINALLY HEARD ON 18/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **P.R.RAMAN & T.R.RAMACHANDRAN NAIR,JJ. ------------------------------A.S.NO.200 OF 1990 -------------------------------Dated this the 18[th] day of August,2008 JUDGMENT** ## **Raman,J.** Defendants 6, 7 and 8 in a suit for partition are the appellants. The appeal is filed against the decree and judgment passed by the court below in a suit for partition by which it was found that the appellants are not entitled to get any share in the plaint schedule properties. The counsel appearing for the contesting respondents reported no instruction. Hence, this appeal is disposed of after hearing the counsel for the appellants and supporting respondents. 2. The short facts necessary for the disposal of the appeal are as follows: The suit was one for partition. The properties originally belonged to Chingamthara Thomman Cheeku and his son Chingamthara Cheekku George and Vironi, wife of Cheekku George. Cheeku Geroge and Vironi have seven children. The -2- ## A.S.No.200/1990 plaintiff and defendants 1 to 3 are their sons. The appellants who are subsequently impleaded as defendants 6 to 8 are the three daughters. One of the sons of Cheeku George have filed suit for partition claiming that the plaintiff and defendants 1 to 3 are entitled to 1/4[th] share each on the assets left by their parents and grant-father. The stand taken by the plaintiff is that the daughters are married away by giving sthreedhanam and hence not entitled to any share in the plaint schedule properties. They were not made properties to the suit also. Subsequently, the appellants got themselves impleaded as defendants 6 to 8. Defendants 4 and 5 are the assignees of first respondent. There were originally seven items of immovable properties,. Subsequently the suit was amended by adding three more items of immovable properties and B schedule immovables. 3. Defendants 1 and 3 filed written statement contending that except items 4 and 5 no other properties are partible. The 2[nd] defendant filed written statement. Subsequently, that contentions -3- ## A.S.No.200/1990 were withdrawn. Appellants contended that they are also entitled to 1/7 share each on all items. The court below after considering the evidence found that the daughters are also entitled to 1/7[th] share in the assets left by their parents and grand-father. It is also found that Thomman Cheekku, Cheekku George and Vironi had executed documents and gifted the properties to their male children alone and hence daughters are not entitled to get any shares. So preliminary decree allowing partition of the suit properties into four shares was passed. Defendants 6, 7 and 8 who are daughters, who were found not entitled for any share, have come up in appeal. 4. One of the grounds urged in the memorandum of appeal is that being a Christian Will the court ought not to have accepted the will, when the same is not probated. This contention as such is not seen argued before the court below. However, being a question of law, we permit the question to be argued before us. The testator of the Will is Thomman Cheekku, who died in the year 1945 and the Will is in the year 1941. But the suit was instituted only in -4- ## A.S.No.200/1990 1982. It is therefore contended that any party, who claims right under the Will in a suit of the year 1982, can claim such right only when it is probated. But thus argument looses sight of the subsequent amendment made to the Act as far as Christian Will is concerned. The learned counsel appearing for the respondents placing reliance on the decision of the Apex Court in **Mary Roy and others v. State of Kerala & others (1986 KLT 508)** contended that Indian Succession Act, 1925 was not applicable to the Travancore State until 1951 and it governed by Chapter II of Part V of the Indian Succession Act only after coming into force of Part B State (Laws) Act, 1951. Since the Will is prior to 1951, it was contended that such Will need not be probated. We however find no force in this contention. Only when the right is claimed under the Will, there arises a question as to whether the Will is to be probated. Admittedly, in a suit of the year 1982 when a right is claimed under the will in terms of Section 213, Indian Christians can claim any such right under the Will only when it is probated. -5- A.S.No.200/1990 In **Hem Nolini Judeah v. Isolyne Sarojbashini Bose and others (AIR 1962 SC 1471)** the Apex Court held that Section 213 creates a bar to the establishment of any right under the will by an executor or a legatee unless probate or letters of administration of the Will have been obtained. Whether that right is claimed by the person as a plaintiff or defendant. Therefore, the question of establishing the right arises only when the suit is filed. Therefore, the question whether the Will is executed prior to 1951 or not, may be of no significance. But then the subsequent amendment to Section 213 of the Act exempted the Christian Will from the requirement of it being probated to claim any right thereunder. As per the Kerala Amendment Act (Act 1 of 1997) Section 213 (2) of the Indian Succession Act, 1925 was amended inserting the word “Indian Christians” after the word “Mohammedans”. Same amendment was effected subsequently by the Parliament also. As far as Kerala is concerned, by virtue of the amendment which came into force with effect from 8/3/1997, the requirement to probate the Will as -6- ## A.S.No.200/1990 envisaged under Section 231(1) of the Act will not apply to Indian Christians with effect from the said date. If so, it has to be held that Section 213(1) is not applicable and the Will need not be probated for claiming any right therein. 5. It was nextly contended by the learned counsel for the appellants that items 4 and 5 are available for partition. It is contended that items 4 and 5 are also part of the Will. Additional documents were produced in the appellate stage as per I.A. Which was allowed long back. We have gone through the additional documents produced. 6. It is contended that items 4 and 5 were sold in court auction even during the life time of the testator. As such on the date of her death the Will in respect of these properties did not take effect. It has to be found that the auction purchaser, who purchased the properties in court auction, sold those items to the son's wife Vironi, who died intestate. The evidence also shows that plaintiff and defendants 1 to 3 had entered into a partition deed as evidenced -7- ## A.S.No.200/1990 by Ext.A2 excluding items 4 and 5. There is also an admission of PW-3 that those items are partible. On consideration of these materials on record, it has to be held that items 4 and 5 are available for partition. 7. In the result, appeal is allowed partly modifying the preliminary decree passed in respect of items 4 and 5, which also to be divided into 1/7 shares and the appellants each will be entitled to the share. As far as the preliminary decree passed in favour of the plaintiff in respect of other items is concerned, we hold that the appellants are not entitled to any share in respect of those items. The parties shall bear their respective costs. **P.R.RAMAN,** **Judge.** **T.R.RAMACHANDRAN NAIR, Judge.** **kcv.** -8- ## A.S.No.200/1990 **P.R.RAMAN & T.R.RAMACHANDRAN NAIR,JJ. -------------------------A.S.NO.200 OF 1990 -------------------------JUDGMENT 18[th] August, 2008**