1. The first plaintiff appeals. The suit out of which the appeal,arose was laid under the following circumstances.
One Sivagnanam died in the year 1964 leaving him surviving nine children, viz, plaintiffs I to 3, one Rathna Bai represented by plaintiffs 4 and 5, defendants I to 4 and one Aseri whose wife is the 11 the defendant and whose children are defendants 7 and 8. Out of these nine children, defendants 1 and 2 and Azari are sons and the others are daughters. The appellant herein, 1st plaintiff filed the suit, O. S. 62 of 1968 on the file of the Principal District Munsif, Padmanabhapuram, against her other brother, sisters and their successorsin right. In that suit she stated that her father demised 50cents of land as Stridhanam after her marriage and accordingly he surrendered possession of that portion of the land in the suit properties. She prayed for a. declaration of title and possession in respect of that portion of the land. The suit was resisted by the defendants on the ground that the plaintiff was given Stridlianam by way of jewels and that the oral gift and oral surrender by the father pleaded by the plaintiff was not true and valid.The trial Court held that the alleged oral gift was not valid and dismissed the suit.
2. During the course of appeal there was an attempt for compromise as per which it was agreed that the appellant first plaintiff should be entitled to her 50 cents of land as claimed by her. But one of the defendants, viz, 9th defendant in the suit, did not join the compromise and therefore it was decided that the compromise cannot be given effect to and that the plaintiff cannot be granted the relief prayed for by her. The appellate Court upheld the finding of the trial Court that the oral gift, inasmuch as it was invalid in law, cannot be recognised by the court for the purpose of declaring the title of the plaintiff. The dismissal of the suit was therefore confirmed by the appellate court. However, while dismissing the appeal, the appellate Court observed that the remedy open to the plaintiff was to file a suit for partition and to ask by way of equity for allotment of that portion in her possession towards her share. This appellate judgment was pronounced in A. S. 34 of 1971 on 30-81971 3. Accordingly, the first plaintiff along with her sisters filed the present suit O.S. 3159 of 1974, for partition. of the immovable properties torming the estate of their father, Sivagnanam and claimed t/9 share in the suit properties as the heir of her father under the Indian Succession Act 1925. The defendants resisted the suit contending that the parties are governed by the Travancore Christian Succession Act 1916 (1092 M.E,). While admitting that tile plaintiff has put up a house in item 1, the defendants contended that the claim of the plaintiff for 50 cents under the oral gift was barred by res judicata in view of the decree of the courts in O.S. 82 of 1968. They accordingly prayed for the suit to be dismissed. The trial Court by judgment dated 13-9-1975 came to the conclusion that the parties being Christians were governed by the Indian Succession Act, 1925, and held that the first plaintiff was entitled to 1/9 share and plaintiffs 2 to 5 were together entitled to 3/9 share in the plaint schedule properties, Accordingly, the trial court. passed a preliminary decree for partition by metes and bounds and directed that such a partition of the first plaintiff s share in item I will be allotted in such a way as to include her house in that item.
3. On appeal before the first appellate Court, the two points which were taken for determination were: (1) Whether the first plaintiff was entitled to 1/9 share in the plaint schedule properties? and (2) if not, whether the plaintiff was entitled to 50 cents of land and the house thereon under the oral. gift from the father? The first appellate Court by judgment dated 28-8-1978 decided that the Indian Succession Act 1925, was not applicable to the parties who are Christians of Kanyakumari district and that only the Travancore Christian Succession Act 1092 M.E. would apply to them as per the ruling of the Division Bench of this Court in Chelliah Nadar v. G. Lalitha Bai, : AIR1978Mad66 The appellate Court also decided that the claim of oral gift was already negatived in O. S. 62 of 1968 and hence that decision would operate as res judicata, which wouId disentitle the first plaintiff to reagitate the same plea. Accordingly, the appeal was allowed and the suit filed by the plaintiffs was dismissed,
4. It is against the said appellate judgment that the present second appeal is preferred. Let it be first observed that the second point as framed by the first appellate Court did not arise in this case. The first plaintiff did not claim on the fool of the oral gift. It is- the defendants who contended that the claim for partition in this suit by the plaintiff was hit by the maxim of res judicata, since her claim of 50 cents under the. oral gift was already dismissed in the earlier suit, O. S 82 of 1968. The trial Court in its judgment dated 13-9-1975 has rightly held that there was no res Judicata operating against the. present claim of the plaintiff, since the present claim was one for partition which was quite distinct from the claim under an oral gift. In fact, if the claim of oral gift by way of streedhanam was accepted by the other parties in the earlier suit, the plaintiff would not have come forward with this suit since she would not have any right of action. It is because her claim of oral gift was resisted stoutly and ultimately rejected that she was bound to file the suit for partition. Hence, the present cause of action is entirely different from the cause of action in the earlier suit. In fact in the earlier suit, as pointed out earlier, the first appellate Court has observed' that the proper course open to the plaintiff was to file a suit for partition and that the plaintiff was wrong in having filed a suit for declaration of title in respect of a particular property alone without filing a suit for partition. It is practically upon the observation of the court that her remedy was only to file a suit for partition that. the present suit was filed.Therefore, there is no res judicata. by which the present suit is hit and the first appellate Court had wrongly framed for itself a question whether the plaintiff was entitled to 50 cents of lands under the oral gift, which the first plaintiff did not plead in the present suit. After this point having been made clear, I shall turn to the main point of law raised in this appeal.
5. The appellant herein, who filed the suit for partition, was contending before the Courts below that the shares should be allotted as per the Indian Succession Act 1925, as per which she would get 1/9 share. She now admits that as per the Bench decision of this court referred to above, that Act would not apply to the parties, though she would state that the matter has not yet been finally settled by the Supreme Court. She contends that the first appellate Court while deciding that the parties were governed by the Travancore Christian Succession Act 1092 M.E., should have granted her share as per that Act instead of dismissing her suit. The contention of the first plaintiff appellant herein is, therefore, that the first appellate Court erred in not giving her relief as per the provisions of the Act found applicable to her. In fact, the suit is mainly one for partition. When the question, whether the Indian Succession Act or the Travancore Christian Succession Act would apply to the Christians of the Kanyakumari district, has given room to conflicting decisions in this Court itself, the parties, therefore, cannot be penalised in claiming their rights under one Act or the other. The main objective of the suit is one for partition. The Act under which the said partition is claimed is only an accessory portion of the demand. When the Court comes to the conclusion that the Act relied upon by the plaintiff is not applicable, its duty is to give relief in the matter of partition as per the provision of law found applicable. That such is the well established law has been clearly stated by the Division Bench of the Madhya Pradesh High Court in Indermal v. Ramprasad. : AIR1970MP40 . The relevant paragraph viz paragraph No. 14, which appears at page 46 is worth reproducing and accordingly it is reproduced below : -
'It is now well established that where an alternative case, which the plaintiff could have made, but did not make in the plaint., is admitted by the defendant in his written statement, it is permissible to grant to the plaintiff relief on that basis. So in Firm Shrinivas, Ram Kumar v. Mahabir Prasad, : 2SCR277 Mukherjee J. (as he then was) held -'The rule undoubtedly is that the Court cannot grant relief to the plaintiff on a case for which there was no foundation in the pleadings and which the other side was not called upon or had an opportunity to meet. But when the alternative case, which the plaintiff could have made, was not only admitted by the defendant in his written statement but was expressly put forward as an answer to the claim which the plaintiff made in the suit. there would be nothing improper in giving the plaintiff a decree upon the case which the defendant himself makes. A demand of the plaintiff based on the defendant's own plea cannot possibly be regarded with surprise by the latter and no question of adducing evidence on these facts would arise when they were expressly admitted by the defendant in his pleadings.'
It is, therefore, clear that the lower appellate Court erred in not delivering the judgment as per the Travancore Christian Succession Act 1092 M.E. which according to the defendants applies to the parties to the suit.
6. The relevant provision of the Travancore Christian Succession Act 1092 M.E. is found in S. 28 which runs as follows -
'The shares of son in group (1) of S. 25 without prejudice to the provisions of S. 16, the male heirs mentioned in group (1) of the S. 25 shall be entitled to have the whole of the intestate's property divided equally among themselves, subject to the claims of the daughter for Streedhanam.
S. 28 - The streedhanam due to a daughter shall be fixed at one fourth the value of the share
Daughter's Streedhanam and its value The streedhanam due to a daughter shall be fixed at one fourth the value of the share of a son, or Rs, 5,000 whichever is less;
Female heirs who were paid streedhanam to be ordinarily left. out of consideration, provided that any female heir of an intestate to whom streedhanam was paid by the intestate, or in the intestate's life time either by such intestate's wife or husband, or after the death of such wife or husband by her or his heirs, shall not be entitled to have any further claim in the property of the intestate when any of her brothers (whether of the fullblood or of the half-blood by the same father) or the lineal descendants of any such deceased brother shall survive the intestate. Any streedhanam promised, but not paid by the intestate, shall be a charge upon his property.'
As per the above provisions, the plaintiffs would be entitled to 1/4 the value of the share of a son or Rs. 5000 whichever is less by way of streedhanam, if such streedhanam was not already granted. In the present case, the case of the first plaintiff has been throughout that she was not given any streedhanam other than the 50 cents of land granted by her father. Though the defendants had stated in the earlier suit, O. S.82 of 1968 that the first plaintiff was given jewels by way of streedhanam as the other daughters, that matter was not put in issue and, investigated. Therefore, the appellant-first plaintiff would be entitled to streedhanam unless it is proved that she was already given streedhanam in some form or other. In this connection, it is important to note that Streedhanam is one fourth of the value of the share of a son or Rs. 5000 whichever is less. On one side there are properties in kind and on the other side the relief in terms of money. Since, both have to be compared in order to grant the lesser relief, both should be valued at the same time. The Travancore Christian Succession Act (Regulation 11 of 1092 of Travancore) was passed by His Highness the Maharajah of Travancore on 21-12-1916 of the Gregorian calendar and 1092 of the era in force in Travancore corresponds to the year 1916, of the Christian era. Therefore, the amount of Rs. 5000 referred to therein is the amount of Rs. 5000 with the value which the said sum had in the year 1916. Similarly, the land properties are also to be valued as per the value of the land in the same year, Giving an amount of Rs. 5000 of the present rupees would consist of circumvention of the provision under S. 28 of the said Act. For the same reason valuing the properties at the present market value, in order to find out whether one fourth of the value of the share of a son is more or less than Rs. 5000 of the present day value, would be contrary to the provision s of that section.
7. In the result, the appeal is allowed. The judgment and decree of both the Courts below are set aside. The appellant-first plaintiff is declared to be entitled to her streedhanam as per S. 28 of the Travancore Christian Succession Act 1092 M.E. The trial Court, shall pass a decree in respect of streedhanam, after giving opportunities to the respective parties to prove whether streedhanam. to the extent due to the first plaintiff has been already granted or not, either in kind or in terms of money. If streedhanam was not granted fully or partially, the lands shall be valued for the purpose of granting relief as per the value in the year 1916 in the Revenue Records or any other acceptable evidence. The matter is remitted to the trial Court for the above purpose and the trial Court is directed to give top priority to dispose of the, suit as expeditiously as possible. There will be no order as to costs.
8. Appeal allowed.