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Acharu Vs. Rappai and ors. - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtKerala High Court
Decided On
Case NumberSecond Appeal No. 278 of 1974 and Cross-Objections
Judge
Reported inAIR1979Ker34
ActsEvidence Act, 1872 - Sections 90 and 114; Cochin Christian Act, 1097 M.E. - Sections 20, 22, 26 to 29 and 31 to 34
AppellantAcharu
RespondentRappai and ors.
Appellant Advocate T.M. Mahalinga Iyer and; S.K. Brahmanandan, Advs.
Respondent Advocate C.K. Sivasankara Panicker and; D. Narayanan Potti, Advs.
DispositionAppeal allowed
Cases ReferredEast End Dwelling Co. Ltd. v. Finsbury Borough Council
Excerpt:
.....on death of intestate all properties vested in his father who resurrected only to die immediately intestate - determination of legal heirs without estate getting vested in father of intestate does not serve purpose for which legislature created legal fiction - held, first appellate court erred in concluding object of legal fiction invented in section 31 for purpose of determining lineal descendants of deceased who died intestate without getting estate vested in him for purpose of effectuating succession under section 31. - - the question is very important and of wide application and i think that it is best it is considered by a bench. d-6, d-8 and d-9 documents have to hold good in the absence of any evidence to rebut the presumption. requirements of none of these sections are..........helpful to understand the relationship between the contesting parties. the said rappai, who died intestate on 19-8-1961 without leaving behind a widow or any issue to inherit his estate, was the son of one antony who had five children, two sons (rappai and kuriappan) and three daughters (mariam, thressia and annam). it is the admitted fact that rappai's parents, brother and sisters had all predeceased him. the plaintiff in the suit is the son of the said mariam, and the 9th defendant her daughter. the 1st defendant is the only daughter of kuriappan. the brother of rappai. the plaintiff and defendants 2 to 9 are the legal heirs of the said deceased mariam, thressia and annam. the 10th defendant is the receiver appointed in other proceedings between the parties, and the 11th defendant is.....
Judgment:

K. Bhaskaran, J.

1. The reference order passed by the learned single Judge, before whom the second appeal came up for hearing in the first instance, reads as follows :

'The principal question involved in the appeal concerns the interpretation of Section 31 and some other connected provisions of the Cochin Christian Succession Act. The question is very important and of wide application and I think that it is best it is considered by a Bench. I am therefore referring the appeal for a decision by a Division Bench', The matter is now before us as the Division Bench in its turn has referred it to a Full Bench, 'in view of the importance of the question raised.'

2. The first defendant in the suit O. S. No. 164 of 1966 on the file of the Munsiffs Court, Trinjalakuda. is the appellant in the second appeal. The suit was one instituted by the 1st respondent herein, as plaintiff, for partition of the immovable properties described in the A and B Schedules, and the movable properties described in the C. Schedule to the plaint, left behind by one Rappai who was the maternal uncle of the plaintiff, and the paternal uncle of the first defendant. The geneology given in para. 4 of the judgment of the first appellate court win be helpful to understand the relationship between the contesting parties. The said Rappai, who died intestate on 19-8-1961 without leaving behind a widow or any issue to inherit his estate, was the son of one Antony who had five children, two sons (Rappai and Kuriappan) and three daughters (Mariam, Thressia and Annam). It is the admitted fact that Rappai's parents, brother and sisters had all predeceased him. The plaintiff in the suit is the son of the said Mariam, and the 9th defendant her daughter.

The 1st defendant is the only daughter of Kuriappan. the brother of Rappai. The plaintiff and defendants 2 to 9 are the legal heirs of the said deceased Mariam, Thressia and Annam. The 10th defendant is the Receiver appointed in other proceedings between the parties, and the 11th defendant is an assignee in whose favour defendants 2 to 7 have transferred their purported shares in the plaint schedule properties. The plaint proceeded on the footing that on the death of the said Rappai, his estate had devolved on the plaintiff and defendants 1 to 9. It was also the case of the plaintiff that he was a panguvaram tenant under Rappai in respect of Items 4, 6, 7 and a portion of Item 5 in the A schedule. The defence of the 1st defendant was that the said Mariam, Thressia and Annam, through whom the plaintiff and defendants 2 to 7 traced their right to the plaint schedule properties, were not entitled to claim any share whatsoever in those properties inasmuch as they were all given in marriage and were paid streedhanam during the lifetime of their father Antony.

The panguvaram tenancy right claimed by the plaintiff also was denied by the 1st defendant. The trial Court as per its judgment dated 8-4-1971 passed a preliminary decree declaring, inter alia, that the plaintiff was entitled to 15/120 share and the 11th defendant to 34/120 share in the plaint schedule properties. It also recorded findings to the effect that the case of the lit defendant that streedhanam was paid to Mariam, Thressia and Annam, the predecessors-in-interest of the plaintiff and defendants 2 to 9, was not established, and that the plaintiff was entitled to reservation of the panguvaram tenancy claimed by him with respect to items 4, 6, 7 and part of 5 in the A schedule. On appeal by the 1st defendant, the court of the Subordinate Judge of Irinjalakuda, in its judgment dated 17-9-1973 in A. S. No. 121 of 1971, while upholding the preliminary decree fop partition passed by the trial court, has held, on reversal of the finding of the trial court, that Mariam. Thressia and Annam were all married and were all also paid streedhanam during the lifetime of their father Antony, and also that the plaintiff was not entitled to claim reservation of any panguvaram tenancy right. There were also certain modifications in regard to the order as to costs in the judgment of the first appellate court.

3. Aggrieved by the decision of the 1st appellate court in so far as it relates to the confirmation of the preliminary decree for partition passed by the trial court, the 1st defendant, who was the appellant before the first appellate court also, has preferred the second appeal. In the memorandum of cross-objections filed by the first respondent (plaintiff) the correctness of the findings of the first appellate court that streedhanam was paid to the said Maria. Thressia and Annam during the lifetime of their father Antony, and that the plaintiff was not entitled to reservation as panguvaram tenant has been canvassed.

4. Inasmuch as it is the admitted case that if there was no acceptable evidence regarding payment of streedhanam to Mariam, Thressia and Annam, the plaintiff and defendants 2 to 9 also would be entitled to claim shares in the plaint schedule properties left behind by Rappai, it is necessary to decide the factual question relating to payment of streedhanam, on being married, to the sisters of Rappai during the lifetime of their father, raised in the memorandum of cross-objections before we proceed to examine the question of law raised in the second appeal.

From the discussion under Issue No. 6 in paras. 19 to 28 of the judgment of the trial court, it is found that in spite of Exts. X-1 (a) and X-1 (b) entries in Ext. X-1 marriage register maintained in Veliyanad Church with respect to the payment of streedhanam and passaram to or in trust for Mariam and Thressia, the trial court did not accept the 1st defendant's case that they were paid streedhanam, mainly for two reasons: (1) the payments alleged took place even before the first defendant was born according to the oral evidence of the 1st defendant herself, who was examined as D. W. 1. and whatever evidence she tendered as D. W. 1 on that question was without having any direct knowledge; and (ii) the handwriting of the person who made Exts. X-1 (a) and X-1 (b) entries in Ext. X-I marriage register has not been proved inasmuch as D. W. 2 the Reverend Father examined in the case was not a competent witness to prove it, because he did not depose either to have made it himself or to have witnessed the act of making it by anyone else. The trial court has also disregarded the recitals in Exts. D-6, D-8 and D-9 in regard to payment of streedhanatn to Annam.

5. The first appellate court has discussed the matter threadbare in para. 2 of its judgment while considering the point (No. 1) 'whether the sisters of Rappai had been paid streedhanam at the time of their marriage.' Having regard to the ancient nature of the document, applying the provisions of Sections 90 and 114 of the Evidence Act, it has held that the presumption regarding the genuineness of Exts. X-1 (a) and X-1 (b) entries in Ext. X-1 register and the relevant recitals found in Exts. D-6, D-8 and D-9 documents have to hold good in the absence of any evidence to rebut the presumption. The genuineness of Ext. X-1 marriage register, produced from proper custody, is not disputed. No motive for making, decades before the dispute arose, a false or an imaginary entry regarding payment of streedhanam to Rappai's sisters, as Exts. X-1 (a) and X-1 (b), has been alleged or proved by the plaintiff. The evidence relating to payment of streedhanam afforded bythe recitals in Exts. D-6, D-8 and D-9 also lends support to the conclusion reached by the first appellate court. We are in agreement with the finding entered by the first appellate court on the question of payment of streedhanam to the sisters of Rappai on their marriage during the lifetime of their father Antony.

6. Though the finding on the question of panguvaram tenancy also is seen challenged in the memorandum of cross-objections, it was not stressed during the course of the argument by the counsel for the first respondent. Going through the judgment of the trial court we find that that court itself was in doubt regarding the plaintiffs case in regard to the panguvaram tenancy. In para. 32 of the judgment it is stated as follows:--

'P. W, 1 says that he was cultivating the properties on pakuthivaram since Rappai his uncle was old. Of course there is no pankuvaram chit or receipts evidencing the sharing of the produce.'

Paragraph 33 of the trial court's judgment begins with the sentence-

'Of course, there is some discrepancy and some doubt created with regard to the varom rights set up by the plaintiff which is sup-ported by Ext. D-4 order.'

Ext. D-4 order is one which came into existence long after the death of Rappai and during the course of the proceedings for the grant of probate instituted by the first defendant. Under Point No. 3 the question 'whether the pankuvarom alleged by the plaintiff tn his favour is true' has been discussed extensively in para. 5 of the judgment of the first appellate court. It has been pointed out by the first appellate court that there are not only no documents produced in support of the claim of panguvaram tenancy, but also the plaint to devoid of any averment regarding the date on which the entrustment or the entrustments were alleged to have been made, and also the terms and conditions on which the alleged entrustments were made. In cross-examination, as P. W. 1, the plaintiff could not even definitely state whether the panguvaram arrangement was in the year 1953 or 1954. For these and other reasons mentioned by the learned Subordinate Judge in para. B (sic) of his judgment, we are in agreement with the conclusion reached by him on the question of alleged panguvaram tenancy claimed by the plaintiff.

7. We will now proceed to consider the question of law relating to the interpretation to be given to Section 31 of the Cochin Christian Succession Act (Act VI of 1097) which mainly gave rise to the reference of the second appeal to the Full Bench. The first appellatecourt despite finding that all the three sisters of Rappai were married and were paid stree-dhanam during the lifetime of their father Antony, held that plaintiff and defendants 2 to 9, as their legal heirs, are entitled to claim shares in the properties left behind by the said Rappai. Sri. T. M. Mahalinga Iyer, the counsel for the appellant, submitted that it was without properly grasping the rules of law bearing on the issue and on a misreading of Section 31 of the Act that the courts below held that there was no vesting of the estate of Rappai in his father Antony. He pointed out that the women who were married and paid streedhanam during the lifetime of their father, as in the instant case, are not entitled to claim a share in the estate of their deceased brother, as the brother of the deceased or his lineal descendants would exclude the sisters, who were married and paid streedhanam, and their lineal descendants. What Section 22 of the Act lays down reads as follows:--

'Notwithstanding anything in the foregoing provisions of this Act, when a streedhanam has been given or contracted to be given by the father, mother, paternal grandfather or the paternal grandmother, of a woman, to or in trust for her, neither the said woman nor any lineal descendant of hers as such, shall be entitled to a distributive share in the property of any of them dying intestate, if (1) a brother of the said woman, being a lineal descendant of the intestate, or (2) the lineal descendants of such a brother, survive the intestate.'

It is clear from Section 22 quoted above that if streedhanam had been paid to a woman or contracted to be given to or in trust for her by any of the four relatives specified in the section, viz., father, mother, paternal grandfather and paternal grandmother, during their lifetime, she will be excluded from the inheritance of all the said four ancestors by her brother or a lineal descendant of a brother. This position has also been clarified by the decision of this Court in Elizabeth v. Susanna (1965 Ker LT 659). The rule of exclusion contained in Section 22 of the Act is squarely applicable in this case on the basis of the finding of the first appellate court that Rappai's three sisters, through whom the plaintiff and defendants 2 to 9 claim shares in the properties, were given in marriage and paid streedhanam during the lifetime of their fattier Antony. The only question to be decided further is whether Rappai's sisters, or anybody claiming through them, would be entitled to claim a share in the estate in the particular circumstance that he died without a widow or any issue. Here arises the need for examining the correctness of the approach made by the first appellate court to the question.

8. The first appellate court under point No. 2 considered this qoestion and recorded the finding :

'.....I hold that the sisters of Rappaihad been paid Streedhanam at the time of their marriage and that the said payment willnot disentitle then or their lineal descendantsfrom inheriting a share in the estate left byRappai.'

Section 31 of tie Act reads as follows:--

'If the intestate's father is dead, the property shall be inherited by the lineal descendants of the father in the same manner as it would if the father survived him and died intestate immediately after leaving no widow.'

The learned Subordinate Judge took the view that the legal fiction that the father survived me deceased and died intestate immediately after, leaving no widow, is only for the purpose of determining the heirship of the intestate, not for the vesting of the estate of the intestate in the father who is deemed to have survived him though in reality died before him. According to him, the estate to be inherited being that of Rappai, not of his deceased father Antony, the estate could not be considered to have vested in Antony. His finding is :

'Hence the only section that is applicable to the facts of the case is Section 31 .....'

It would, however, appear that because Section 30 provides that the rules of succession stated in Sections 31 to 34 are subject to the provisions of Sections 26 to 29 he took the view that there wasno vesting of the estate of Rappai in his father Antony, who, by the legal fiction, survived the intestate and died immediately intestate, and for that reason, sisters not being excluded from inheriting the estate of the brother who died intestate, in terms of Section 22 of the Act the plaintiff and defendants 2 to 9 also were entitled to their shares.

9. Let us now examine what impact Sections 26 to 29 have on Section 31. For this purpose we may notice what the substance of each section is. Section 26 lays down that if the intestate's father is dead, but the intestate's mother is living, and there are also brothers of the intestate by the same father who either survive him or having predeceased him, have left lineal descendants surviving him, a share equal to that of such a brother shall belong to the mother. Section 27 is to the effect that if the intestate's brother is dead, but the intestate's mother is living and there are no kindred of the class mentioned in the preceding section, but there are sisters of the intestate by the same father, who survived the intestate, or having predeceased him, have left lineal descendants surviving theintestate, a share equal to that of such a sister shall belong to the mother. What Section 28 provides is that when the intestate's mother is living and he has left none of the other kindred referred to in Sections 25 to 27, but his paternal grandfather or the lineal descendants of his paternal grandfather is or are living, one half of his property shall belong to his mother.

Section 29 enjoins that when the intestate's mother is living and he has left none of the other kindred mentioned in Sections 25 to 28. the property shall belong to the mother. The first appellate court, we are afraid, has completely lost sight of the scheme of the inheritance contemplated in the above sections. The object of these sections obviously is to make provision for a share to the intestate's mother, who survived him. along with his other kindred in his estate or to inherit exclusively the estate in the total absence of the other kindred mentioned in Sections 23 to 28. Section 26 in terms has application only in cases where the intestate's mother is to share the properties along with the brothers of the intestate who either survive him or having predeceased him. have left lineal descendants surviving him. Section 27 is intended to provide for a share for the intestate's mother along with the sisters of the intestate who survive him or having predeceased him if the intestate's brother is dead and there are no kindred of the class mentioned in Section 26.

Under Section 26 (sic) the intestate's mother if to share the estate along with the paternal grandfather or the lineal descendants of the paternal grandfather who is or are living when he has left some of the other kindred referred to in Sections 25 to 27. Section 29 lays down that the entire estate shall belong to the mother if she is alive when the intestate has left none of the other kindred mentioned in Sections 25 to 26 (sic). What Section 25 provides is that if the intestate's father is living he should succeed to the property. Requirements of none of these sections are satisfied in this case, The mother having predeceased Rappai the contingency of making provision for her did not really arise in this case. One important aspect to be noticed in this context is that Section 30 does not state that the rule of exclusion mentioned in Section 26 would not operate in cases where Section 31 comes into play.

10. Sri C. K. Sivasankara Panicker, the counsel for the first respondent-plaintiff, while generally adopting the reasoning given by the first appellate court on this point, also advanced an argument that the legal fiction of (resurrection) and immediate death of the deceased father of the intestate should not in its application be stretched to the point of absurdity so as to defeat the very purpose for which the legal fiction was created. No decision of the Supreme Court or of this Court interpreting Section 31 of the Act has been placed before us. We have, therefore, to decide the question giving a reasonable interpretation to the expressions used in the section, bearing also in mind the scheme of the Act.

11. 'Fiction' has been defined in Corpus Juris, Vol. 25, page 1036--

'A legal assumption that a thing is true which is either not true, or which a probably false as true; an assumption or supposition of law that something which is or may be false is true, or that a state of fact exists which has never really taken place, an allegation in legal proceedings that does not accord with the actual facts of the case, and which may be contradicted for every purpose, except to defeat the beneficial and for which the fiction is invented and allowed : New Hamshire Strafford Bank v. Cornell, 2 NH 324 at p. 327.

The rule on this subject is that the court will not endure that a mere form of fiction of law, introduced for the sake of justice, should work wrong contrary to the real truth and substance of the thing. Hibberd v. Smith, 67 California 547 at p. 561; Jhonson v. Smith, (1760) 2 Burr 950 at p. 962 : 97 ER 647.'

Story, J. in United States v. 1960 Bags of Coffee, ((1814) 8 Cranch (US) 398 at p. 415), has stated as follows:--

'It seems to be a role founded in commansense, as well as strict justice that 'fiction of law' shall not be permitted to work any wrong, but shall be used 'ut res magis valeat quam pereat:'

Sri Panicker relied on State of Travancore-Cochin v. Shanmugha Vilas Cashewnut Factory, Quilon (AIR 1953 SC 333), wherein, at the end of para. 39 at page 343 the Supreme Court with reference to the deemed provision contained in the Explanation to Article 286(1) of the Constitution, which Explanation has since been omitted by the Constitution (Sixth Amendment) Act, 1956 has observed as follows:--

'The fiction of the Explanation cannot be extended to any purpose other than the purpose of Clause (1) (a), that is, to any purpose other than the purpose of taking away the taxing power of all States outside whose territories the sale or purchase is, by the fiction, deemed to take place. There its purpose ends and it cannot be used for the purpose of giving any taxing power on the delivery State, for that is quite outside its avowed purpose.'

A decision of a Division Bench of the Patna High Court in Brijnandan Singh v. Jamuna Prasad Sabu (AIR 1958 Pat 589) wherein it has been emphasised that the legal fiction should not be stretched so as to defeat the very purpose sought to be achieved by thecreation of the fiction, also has been relied on by Sri Panicker.

12. A Full Bench of this Court in Easwari Amma v. Meenakshi Amma (1963 Ker LT 920) had occasion to consider the ambit of the object and applicability of legal fictions while construing the relevant portion of Section 22 (i) of the Agriculturists Debt Relief Act, (Act 31 of 1958 Kerala), which provided that where any immovable property in which an agriculturist had an interest had been sold in execution of any decree before 1-11-1956 but the possession of the said property had not actually passed before 20-11-1957 from the judgment-debtor to the purchaser, then, notwithstanding anything in the Indian Limitation Act 1908, or in the Civil P. C, 1908, and notwithstanding that the sale had been confirmed such judgment-debtor may--

'(a) in the case of a sale where the purchaser is the decree-holder, deposit one-half of the purchase money together with the costs of execution, where such costs were not included in the purchase money, and apply to the Court within six months of the commencement of this Act to set aside the sale of the property and the Court shall, if satisfied that the applicant is an agriculturist entitled to the benefits of this Act, order the sale to be set aside and the court shall further order that the balance of the purchase money shall be paid in ten equal half-yearly instalments together with the interest accrued due on such balance outstanding till the date of payment of each instalment at five per cent per annum, the first instalment being payable within a period of six months from the date of the order of the Court.'

13. Act 31 of 1958 came into force on14-7-1958. In that case, the judgment-debtor having filed his application for setting aside the sale on 7-7-1959 only, which was not within the time specified under Section 22 of that Act, the execution Court as well as the appellate Court had dismissed the application. Thereafter Section 22 of Act 31 of 1958 was amended by Act 2 of 1961. The words 'one year' were substituted for the words 'six months' in Sub-section (1) (a) of that section. Section 1 (2) of the amending Act said that that Act 'shall be deemed to have come into force on the 14th day of July, 1958.' In the light of this amendment the judgment-debtor filed an application on 13-2-1961 before the appellate Court, and prayed for a review of its decision. The appellate Court dismissed the application stating--

'I do not think that subsequent legislation can afford a valid ground for review. It appears to me that the ground for review must have existed on the date of the order or judgment complained of.'

The sole question for determination that came up before this Court in the Civil Revision Petition was whether a subsequent amendment with retrospective effect from a date anterior to the dates of the orders passed by the courts below will render these orders incorrect and afford a ground for review. After having considered various decisions of the High Courts and also of the Privy Council and passages from authorities on interpretation of statutes, the Full Bench came to the conclusion that full credit to the retrospective effect granted by Act 2 of 1961 was to be given, and held that the application filed by the judgment-debtor was in time. As far at the effect of statutory fictions are concerned, the Full Bench held that the proper approach is the approach of Lord Asquith in East End Dwelling Co. Ltd. v. Finsbury Borough Council (1952 AC 109):

'If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequence and incidents which, if the putative state of affairs had in fact existed must inevitably have flowed from or accompanied it....The statute says that youmust imagine a certain state of affairs; it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs.'

We respectfully follow the dictum laid down in the above passage quoted with approval by the Full Bench of this Court.

14. In the light of the principle laid down in the above decisions, when we consider the purpose of the fiction created in Section 31 of the Act. we are left with no other choice than the reasonable conclusion that it was intended to effectuate inheritance on the assumption that on the death of the intestate all the properties got vested in his father, who for that purpose, is resurrected only to die immediately intestate. The section gives us no other clue, and there is no warrant for taking a view different from that the plain words employed in the section tell us. Importing the dea of the legal fiction being confined to the determination of the legal heirs without the estate getting vested in the father of the intestate would not serve the purpose for which the legislature appears to have created the legal fiction. It may also be noted that Section 20 of the Act which lays down that the rules of succession stated in Sections 31 to 34 and subject to the provisions of Sections 26 to 29, does not give any indication that the rule of exclusion provided in Section 22 is not applicable to cases of succession governed by Section 31 of the Act.

We are, therefore, of the view that the first appellate Court has fallen in error in concluding that the object of the legal fiction invented in Section 31 of the Act is only for the purpose of determining the lineal descendants of Antony, deceased father of Rappai, who died intestate without getting the estate vested in him for the purpose of effectuating succession in terms of Section 31 of the Act.

For the foregoing reasons we allow the appeal, setting aside the judgments and decrees of the courts below, and dismissing the suit. The cross-objection is also dismissed without costs. The appellant-first defendant will be entitled to her costs throughout.


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