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Parukutty Amma Parvathi Amma and ors. Vs. Sankara Kurup Rama Kurup and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKerala High Court
Decided On
Case NumberSecond Appeal No. 114 of 1959
Judge
Reported inAIR1964Ker4
ActsTravancore-Cochin High Court Act, 1125 - Sections 8; Travancore-Cochin High Court Ordinance, 1124; Evidence Act, 1872 - Sections 101 to 103
AppellantParukutty Amma Parvathi Amma and ors.
RespondentSankara Kurup Rama Kurup and ors.
Appellant Advocate P. Govinda Menon, Adv.
Respondent Advocate M.K. Narayana Menon, Adv. for Respondent No. 1,; V. Sankara Menon, Adv. for Respondent No. 4
DispositionAppeal dismissed
Cases ReferredViswnathan v. Rukn
Excerpt:
.....and sections 101 to 103 of evidence act, 1872 - suit for partition of immovable property - whether suit property belonged to 'tarwad' - joint and undivided status of 'tarwad' was conclusive as members of 'tarwad' were all domiciled in former state of cochin and cochin high court was competent to decide question - no case made out that suit property belonged to appellant exclusively - claim of appellant to exclusive ownership of properties negatived - appeal liable to be dismissed. - - the plaintiffs and the defendants-appellants who supported them relied a good deal on the finding in ext. if suchwere the intention, appropriate words would have been employed, say, ail proceedings commenced prior to the coming into force of this ordinance, whether pending or concluded'.it requires a..........munsiff's court, for partition of an item of immovable property, which may be referred to as the suit property, alleged to belong to the tarwad of the plaintiffs and defendants 1 to 11. the tarwad owned nine items of properties situated within the former state of cochin with respect to which a similar suit for partition, o. s. 48 of 1121 was instituted in the anjikaimal district court. there was a previous suit o. s. 184 of 1109 in the anjikaimal district court by some of the members of the tarwad which was to remove padmanabha kurup from karnavanship and in which the title of the tarwad to all the ten items of properties comprised in both o. s. 48 of 1121, and o. s. 204 of 1122, was found to be established by judgment ext. xvi, confirmed on appeal by the cochin high court by judgment.....
Judgment:

Velu Pillai, J.

1. This second appeal by defendants 4 and 6 to 11 arises out of O. S. 204 of 1122 instituted in the Parur Munsiff's Court, for partition of an item of immovable property, which may be referred to as the suit property, alleged to belong to the tarwad of the plaintiffs and defendants 1 to 11. The tarwad owned nine items of properties situated within the former State of Cochin with respect to which a similar suit for partition, O. S. 48 of 1121 was instituted in the Anjikaimal District Court. There was a previous suit O. S. 184 of 1109 in the Anjikaimal District Court by some of the members of the tarwad which was to remove Padmanabha Kurup from Karnavanship and in which the title of the tarwad to all the ten items of properties comprised in both O. S. 48 of 1121, and O. S. 204 of 1122, was found to be established by judgment Ext. XVI, confirmed on appeal by the Cochin High Court by judgment Ext. C. Within a few days of Ext. C, Padmanabha Kurup whose claim to the exclusive ownership of the properties was thus negatived, gave an assignment of the suit property by Ext. XI in favour of the 12th defendant as if it belonged to him. O. S. 204 of 1122 was contested by the 12th defendant relying on Ext. XI. The two Courts have accepted his contention and dismissed the suit. In the nature of the questions involved, this second appeal has been placed before a full bench and has been heard by us.

2. The sole controversy in this appeal is whether the suit property belongs to the tarwad and is partible or not. The plaintiffs and the defendants-appellants who supported them relied a good deal on the finding in Ext. C as conclusive. The suit property lay within the limits of ths territorial jurisdiction of the Parur Munsiff's Court, which at the time of the institution of O. S. 204 of 1122, was a Court of the former Travancore State which upon its integration with the former Cochin State on the 1st July, 1949, became a part of the territory of the United State of Travancore and Cochin. Thus the Anjikaimal District Court which delivered Ext. XVI and the Cochin High Court which delivered Ext. C had no jurisdiction at the time to decide title to the suit property. But the contention was, that on the 13th October, 1954, when judgment was pronounced by ths Munsiff in O.S. 204 of 1122 the Cochin High Court had ceased to be a foreign Court, and so on that date the Parur Court was bound to treat Ext. C as res judicata. On the 1st July, 1949, the two Covenanting States of Travancore and Cochin were united under what is familiarly known as the Integration Covenant, so as to form the United State of Travancore and Cochin, with a common Executive, Legislature and Judiciary. By virtue of Article 11 of the Covenant the Raj Pramukh was empowered to promulgate Ordinances to have the force of law for a period of six months. Among the Ordinances which were promulgated on that date, Ordinance I of 1124 provided for the continued operation of the 'existing law' and the continued functioning of the Civil Courts in each State in the concerned area, and Ordinance II of 1124 which is more relevant for the decision of this case, provided for the establishment, constitution and powers of the High Court for the new State. Section 8 of this Ordinance reads :

'All proceedings commenced prior to the coming into force of this Ordinance in either of the High Courts of Travancore and Cochin, hereinafter in this Ordinance referred to as the existing High Courts, shall be continued and depend in the High Court as if they had commenced in the State. Section 8 of this Ordinance reads :

Any order made by either of the existing High Courts in any such proceedings as aforesaid shall, for all purposes, have effect not only as an order of that Court, but also as an order made by the High Court,'

3. The effect of the above provision was contended to be, that the records of the former Travancore and Cochin High Courts were transferred to the new High Court so as to become part of the records of that High Court so that applying paragraph 2, the decrees or orders of the former High Courts became the decrees or orders of the new High Court for all purposes, including the application of Section 11 of the Civil Procedure Code. Paragraph 2 above has reference to 'any such proceedings as aforesaid' and is thus related to paragraph 1, but the contention was, that paragraph 1 applied not only to proceedings which had commenced prior to the 1st July, 1949, and were pending, but also to proceedings which had become closed or concluded before that date. We find great difficulty in accepting this interpretation. The opening words in paragraph 1, 'all proceedings commenced prior to the coming into force of this Ordinance' normally refer to proceedings which were live or pending at the time, and not to those which were dead or had ceased to be pending, may be, a long time before, say even thirty or fifty years. If suchwere the intention, appropriate words would have been employed, say, ail proceedings commenced prior to the coming into force of this Ordinance, 'whether pending or concluded'.

It requires a good deal of straining of the language to hold, that the concluding words of paragraph 1 viz., 'shall be continued and depend in the High Court as if they had commenced in the High Court after such date' apply also to proceedings which had terminated a long time ago. The argument of the appellants' counsel was based almost entirely on the word 'depend'. According to several dictionaries, the word denotes, especially in relation to law suits or actions at laws 'pendency'. The Oxford Concise dictionary gives to the word the meaning, 'be waiting for settlement (of law suit, Bill, etc.)', the New English Dictionary by James A. H. Murray, gives to the ward the meaning- 'to be in suspense or undetermined, be waiting for settlement (as an action at law, a bill in Parliament, an appointment etc.') and to the word 'depending', 'pending'. Black's Law Dictionary also gives the same meaning to the word 'depending'. According to the American College Dictionary, the word 'depend' means 'to be undetermined or pending' and to Webster's, New International Dictionary, it means 'to be pending, to be undetermined or undecided'. Learned counsel has relied on the meaning of the word as 'to rely' or 'to rest' in Chamber's Twentieth Century Dictionary and has addressed an argument that the records of the former High Courts have come 'to rest' in the new High Court. Shorter Oxford English Dictionary, Volume I also relied on, gives one of the meanings as 'to rest entirely on, upon, for support or what is needed'. The word 'rest' is used in a different context and has a different meaning. Oxford Concise dictionary gives one of the meanings as 'rest for maintenance etc. upon (e.g. she depends upon her own efforts'), the New English Dictionary by James A. H. Murray, as 'to rest entirely upon for maintenance'. Webster's New International Dictionary as 'to rest with confidence (e.g. you may depend on him)'

The argument, relying on the word 'rest' in, some of the dictionaries, that the records of the two High Courts have come to rest in the new High Court and have become the records of the latter is entirely far-fetched. Even accepting that meaning, it is impossible to import all that counsel wants into that single word 'depend'. We are satisfied, that the plain and natural meaning of the word 'depend' in paragraph 1 is 'be pending', and that the words 'shall be continued' and 'depend' have to be read conjunctively for greater clarity and emphasis and not disjunctively to mean little or nothing. We are therefore unhesitatingly of the opinion, that Section 8 of the Ordinance aforesaid applies only to proceedings which were commenced before the date on which it came into force and were pending on that date.

4. Ordinance II of 1124 was replaced by the United State of Travancore and Cochin High Court Act, 1125 (Act V of 1125) which denned the 'existing High Court' as the High Court constituted under Ordinance II of 1124 and the 'High Court' as the High Court constituted under this Act. Section 8 of this Act which corresponds to Section 8 of the Ordinance reads :

'All proceedings commenced prior to the coming into force of this Act in the existing Hieh Court, and all proceedings continued in the existing Hiah Court by virtue of Section 8 of Ordinance No. II of 1124 shall be continued anddepend in the High Court as if they had commenced in the High Court after the coming into force of this Act.

Any order made by the existing High Court or the High Court of Travancore or Cochin in any such proceedings as aforesaid shall, for all purposes have effect not only as an order of that Court but also as an order made by the High Court.'

5. in our opinion, this Section furnishes also a clue to the interpretation of Section 8 of (he Ordinance. It applies first to proceedings commenced prior to the coming into force of Act V of 1125 apparently to those which were com-menced during the period that the Ordinance was in force and second to all proceedings continued in the existing High Court by virtue of Section 8 ot Ordinance II of 1124, thereby suggesting that the effect of Section 8 of the Ordinance was no More than to enable the existing High Court as defined to continue pending proceedings; Section 8 of the Act has also used the words 'shall be continued and depend' in the High Court. It is quite clear that paragraph 1 of Section 8 of the Act does not take in proceedings which were commenced and concluded prior to the date of the Ordinance, because they were not to be continued by virtue of Section 8 of the Ordinance. For that reason, paragraph 2 of Section 8 of the Act also has no application to proceedings which had closed before the date of Ordinance II of 1124. Of course learned counsel argued, that what has been done or achieved under Ordinance II of 1124 cannot be undone or given up but all this is in our opinion too far-fetched and unacceptable.

6. in Laxmichand v. Mst. Tipnri, ((S) AIR 1956 Raj 81) (FB), Wanchoo C. J. as he then was, held :

'If a decree was a nullity when it was passed, except in the State which passed it, it cannot become a living and executable decree in the areas of other States which happen to be merged with the State which passed the decree on account of political changes alone.

Something more, to my mind, is required to be done by the new State in order to make such decrees, which were a nullity with respect to the areas now merged, to become of full force and effect in those areas'.

The learned Chief Justice then referred to Section; 49, Sub-section (1) of the Rajasthan High Court Ordinance XV of 1949, which may be extracted below for the sake of comparison with Section 8 of the Ordinance :

'On the date appointed in the notification issued under Sub-section (3) of Section 1 of this Ordinance every tribunal functioning as the High Court of a Covenanting State or any authority exercising the powers of a High Court in such State shall cease to exist, and all cases pending before the said High Court or authority at that date shall be transferred to and heard by the High Court constituted by this Ordinance, and all the records and documents of the several Couris which so cease to exist shall become, and be, the records and documents of the High Court'.

On the above, the learned Chief Justice observed : 'I wish to emphasise the last part of this subsection. To my mind by this provision all the records and documents of the Courts which were abolished by this sub-section become the records and documents of the new High Court. These words are general and do not, in my opinion,refer merely to those records and documents which pertain to pending cases'. and discussing the effect of the last part of the Section, he proceeded to remark :

'By the last part of this sub-section therefore all decrees by High Courts or similar authorities of covenanting States become the decrees of the present High Court. As they become the decrees of the present High Court by virtue of this provision, they cannot be called decrees of foreign Courts now, and must be deemed to have been passed by this High Court when they were passed'. Very different is the language both jn Section 8 of the Ordinance of 1124 and in Section 8 of Act V of 1125. The last part of Section 49(1) of the Rajasthan Ordinance can never be read into the word 'depend' or into Section 8 of the Ordinance or of the Act. Unlike the Rajasthan case, the present is not a case where provision has been made either by the Ordinance or the Act, for the records, that is, the decrees and orders of the Travancore and the Cochin High Courts, to become the records, that is, the decrees and orders of the High Court of the United State of Travancore and Cochin or later of the High Court of Travancore-Cochin.

7. Learned counsel then drew our earnest attention to certain irremediable consequences which according to him would follow, if this Interpretation were to prevail; for example, the question was posed before us, as to which High Court would then be competent under Order 9, Rule 13 to reopen or under Order 47 to review, decrees of the former Travancore and Cochin High Courls, or to amend such decrees, or to pass orders in proceedings for contempt of Court for the violation of orders of injunction issued by such Courts. The answer to this is furnished by Section 18 of Ordinance II of 1124 and by Section 18(1) of Act V of 1125. Section 18 of the Ordinance reads :

'subject to the provisions of this Ordinance, the High Court shall have and exercise all the jurisdiction and powers vested in it by this and any other Ordinance and under any law which may hereafter come into force and any power or jurisdiction vested in the existing High Courts by any Act or Proclamation in force in the State of Travancore and Cochin immediately prior to the coming into force of this Ordinance'.

and Section 18 (1) of Act V of 1125 has enacted : 'Subject to the provisions of this Act, the High Court shall have and exercise alt the jurisdiction and powers vested in it by this Act and any other law in force or which may hereafter come into force and any power or jurisdiction vested in the existing High Court immediately prior to the coming into force of this Act'.

By these provisions the new High Court became invested with all the jurisdiction and powers to pass orders in the case posed. We are not persuaded that into these can be read, as contended, a provision as under the Rajasthan Ordinance, that the records of the former High Courts shall become the records of the new High Court. Our interpretation of Section 8 of the Ordinance and of the Act cannot lead to any lacuna as imagined. It therefore follows that nothing has happened either under Ordinance II of 1124 or under Act V of 1125, so as to make a decree of the Travanj core or of the Cochin High Court, a decree of the High Court of the United State of Travancore and Cochin, and Ext. C, was therefore, a foreign, judgment which could not operate as res judicata.

8. Learned counsel then relied on Exception 2 to Rule 18 formulated by Dicey on Conflict of Laws, 7th edition, at pages 147 and 155. Rule 18and Exception 2 are as follows :

'Subject to the exceptions hereinafter mentioned, the Court has no jurisdiction to entertain, ansion for .

(1) the determination of the title to, or the right to the possession of, any immovable situate out of England (foreign land); or

(2) the recovery of damages for trespass to such immovable'.Exception 2. 'Where the Court has jurisdiction to administer an estate or a trust and the property includes movable or immovable situated in England and immovables situated abroad, the Court has jurisdiction to determine questions of title to the foreign immovables for the purposes of the administration'.

We cannot bring ourselves to hold, that a suit for the removal of a Karnavan from management as O. S. 184 of 1109 was, can in any sense of the term be assimilated to a suit for the administration of an estate or a trust, the question for decision in the suit as laid being whether the karnavan was guilty of mismanagement of the tarwad and was liable to be deposed from office. The Exception does not apply.

On the question whether a foreign Court has jurisdiction to pronounce upon title to immovable property situate outside the State, this is what the Supreme Court has recently held in Viswnathan v. Rukn-ul-Muik Syed Abdul Wajid, AIR 1963 SC 1 at p. 21.

'Title to immovable property may therefore be determined directly or indirectly only by the law of the State, and by the Courts of the State in which it is situate. A decision of a foreign; Court directly relating to title to immovable property within its jurisdiction will of course be regarded between the same parties as conclusive by the Courts in India; but that decision is ineffectual in the adjudication of claims to immovables without the jurisdiction of that foreign Court, even if the foundation of title in both the jurisdictions is alleged to be identical. A foreign Court being incompetent to try a suit relating to immovable property not situate within its jurisdiction, the grounds on which its decision relating to title to immovable property within its jurisdiction is founded will not debar investigation into title to other property within the jurisdiction of the municipal Courts, even if the latter properties are alleged to be held on the same title'.

We therefore hold that as a foreign judgment, Ext. C, is not conclusive between the parties on the issue as to the title to the suit property situate in the former State of Travancore.

9. The learned counsel for the appellants contended, that the judgment of the Additional District Judge is liable to be interfered with under Section 100(1) Clauses (a) and (c) of the Civil Procedure Code. As a preliminary to this it was urged, that at least the finding in Ext. C of the joint and undivided status of the tarwad is conclusive, as the members of the tarwad were all domiciled in the former State of Cochin; and the Cochin High Court was competent to decide the question it is unnecessary to go into this, for even assuming it there is no room for complaint on that score, as the two Courts have proceeded on the footing that the tarwad was undivided and yet have reached their conclusion for sheer wantof proof that the suit property belonged at any time to the tarwad. In Ext. C the Cochin High Court did observe that Padmanabha Kurup who was the first defendant, had no case then that even if the tarwad was found to be joint and undivided, the suit property still belonged to him exclusively. There being no question of res judicata, or con-clusiveness of Ext. C, the failure of Padmanabha Kurup to set up such a case in the former suit, did not preclude him from pleading an independent title. The 12th defendant's plea was that the property belonged to the branch of Padmanabha Kurup.

The burden of proof was not also wrongly cast on the plaintiffs; on the pleadings it lay certainly upon the plaintiffs to prove that the property was partible, and it is in no way affected by the frame of the concerned issue in a negative form. No such complaint was ever raised before the appellate Judge or in the appeal memorandum in this Court. It is true that the Munsiff referred to the plea of the 12th defendant as one of sale acquisition, while in reality it was one of tavazhi ownership, Padmanabha Kurup being the last surviving member. However, the discussion in the judgment of the Munsiff turned on the question whether the property belonged to the tarwad or not, and this was the only question to be decided. There is no such defect in the judgment rendered on appeal by the Additional District Judge, who summarised the plea of the 12th defendant, and posed the question correctly. Once the plaintiffs have not proved what it was incumbent on them to prove, it was quite immaterial whether the property belonged to Padmanabha Kurup as the last surviving member of the tavazhi or was his self-acquisition. We are not also satisfied, that as contended, an admission by Padmanabha Kurup can be read into Ext. XXVII Gazette Notification, that the suit property was the tarwad property of the plaintiffs and defendants I to 11. We therefore come to the conclusion, that no sufficient ground has been made out for interference with the concurrent findings of the two Courts. The second appeal is dismissed with costs to the 12th defendant-respondent.


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