Kunju Kesavan Vs. M. M. Philip I. C.
S. & Ors  INSC 140 (8 May 1963)
08/05/1963 HIDAYATULLAH, M.
CITATION: 1964 AIR 164 1964 SCR (3) 634
CITATOR INFO :
R 1968 SC1165 (27) D 1971 SC2171 (7) D 1978
SC1362 (25) F 1989 SC1530 (18)
Travancore Ezhava Act-Makkathayam
property-Nature and incidents-Partibility-The meaning of the expression 'contrary
intention' in s. 32 of the Act-The rights of issues' when there is exemption
under s. 33 of the Act-Question of exemption not raised in written statement
-No issue framedBut evidence led-Not objected by plaintiffs-Whether vitiate the
trial-Valuation of the suit below twenty thousandCertificate granted by the
High Court under Art. 133 of the Constitution valid-Constitution of India, Art. 133Travancore Ezhava Act, 1100 (Act, III of 1100), ss. 2, 18,19,32,33.
The property in the suit originally belonged
to one Bhagavathi Parameswaram who created an otti in favour of one Krishnan
Marthandam for 3500 fanams (about Rs. 500/-).
Subsequently the latter created a chittoti,
Bhagavathi Parameswaram some years later (in 1163 M.E.) made a gift of the
property to his wife Bhagavathi Valli. Bhagavathi Valli died in 1105 M.E. She
bad an only son Sivaraman who was married to Parvathi Meenakshi and had a son
Sivaraman left Travancore in 1096 M.E. Both
sides are agreed that he died thereafter. But there is no aggreement as to the
date of his death. &ad Vasudevan claiming 635 to be the heirs jointly sold
the jenmom rights in 1123 M.E. to the present appellant. The appellant brought
a suit for the redemption of the otti and recovery of possession of the
property from the defendant (present respondent No. 1).
The defendant denied that Bhagawathi Valli
ever got the jenmom right. He claimed to have obtained both the jenmom right as
well as other rights. According to him on Bhagavathi Valli's death her sister
B. Narayani and Narayani's daughter Gouri were heirs through whom he traced his
title. He further contended that even if Meenakshi and Vasudevan got any jenmom
right they lost it by the auction sale in O.S. No. 36 of 1100 M. E. For these
reasons it was contended that the plaintiff had no title to sue. It is admitted
by both parties that the case is governed by the Travancore Ezhava Act, 1100.
The trial court and the first appellate court
decreed the suit but the High Court reversed the decision of the courts below
holding that the plaintiff had not obtained a valid title to the equity of
redemption by the sale deed in his favour and was not entitled to redeem the
property. The plaintiff thereupon appealed to this Court on a certificate
granted by the High Court.
A preliminary objection was raised by the
respondent about the competency of the certificate granted by the High Court.
It was contended that since the suit was
valued at 3500 fanams (Rs. 500/-) this valuation governed the suit for the
purpose of the certificate and this value being below the prescribed minimum
under Art. 133 of the Constitution the certificate was not competent. It was
alternatively contended that if the valuation was more than Rs. 10,000 the
trial court had no jurisdiction to try the suit.
It was contended on behalf of the appellant
that the ordinary rule of law was that property was impartable and that s., 32
of the Act made a departure and imposed partibility on the Makkothayam property
and the expression 'contrary intention' contemplated in s. 32 was an intention
contrary to partibility and such an intention could not be spelled out from Ex.
III the gift deed. It was contended that if the property was shared by
Bhagavathi Valli with Sivaraman and Vasudevan, then Vasudevan would have the
right to redeem the Otti as a person interested and so would the appellant, a transferee
from him. Alternatively if the property became that of Bhagavathi Valli alone
then Vasudevan would be entitled to succeed to the property left by Bhagavathi
Valli by virtue of ss. 18 636 and 19 of the Act provided Bhagavathi Valli was
not exempted from the operation of the Act under s. 33. It was further
contended that since the question of exemption was not pleased by the defendant
(respondent) in his written statement and since no issue was framed the High
Court ought not to have considered the notification put in by the respondent in
his evidence purporting to prove that Bhagavathi Valli was exempted. Finally it
was urged that the notification does not in fact prove that she was so exempted
since her identity is not established by the notification.
Held that for the certificate to be competent
the appeal must satisfy two tests of valuation. The amount or value of the
subject matter of the suit in the court of first instance and the amount or
value of the subject matter in dispute on appeal to this Court must both be
above the mark.
There are however cases in which the decree
or final order directly or indirectly involves some claims or question to or
respecting property above the mark. Such cases are also appealable. The word
indirectly' in such cases coven the real value of the claims which is required
to be determined quite apart from the valuation given in the plaint if the
property was not required to be valued for the purposes of the suit on the
market value. In the present case the High Court found the value to be Rs.
42,000/and Rs. 80,000/at the material times. The plaintiff was not required to
value his plaint on the real or market value of the property but on the price
for redemption. He had asked for possession of the property after redemption
and the property as the High Court has found is well above the mark in value.
The certificate is competent. The suit as valued was properly laid in the court
of first instance and in any case such an objection cannot be raised for the
first time in this Court.
The working of s. 32 does not justify the
contention that by reason of the expression 'contrary intention' only
impartibility could be imposed. What the law did was to define the rights on
partition of makkathayam property and laid down that on partition the shares
should be equal unless a contrary Intention was expressed. The gift deed Ex.
III in the present case shows that the properties given to the donees are to be
taken by each -exclusively.
Reading ss. 18 and 19 it follows that whether
Sivaraman survived Valli or died before her Vasudevan would succeed as an issue
within the expression 'how-low-so-ever' of the Explanation to s. 19 at least to
a fractional interest in the property.
637 But this can only be if Bhagavathi Valli
was not exempted from the operation of Part IV of the Act.
The parties went to trial, fully
understanding the central fact whether the succession as laid down in the
Ezhava Act applied to Bhagavathi Valli or not. The absence of an issue,
therefore, did not lead to a material sufficient to vitiate the decision. The
plea was hardly needed in view of the fact that the plaintiff stated in his
replication that the "suit property was obtained as makkathayam property,
by Bhagavathi Valli under the Ezhava Act". The subject of exemption from
Part TV of the Ezhava Act, was properly raised in the trial Court and was
rightly considered by the High Court.
The High Court was right in holding that the
identity of Bhagavathi Valli had been established and that Bhagavathi Valli was
exempted from the operation of the Ezhava Act (Part IV).
The present appellant. is not entitled to
redeem the otti having never enjoyed the jenmom rights.
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 1 of 1962.
Appeal from the judgment and decree dated
September 10, 1957, of the Kerala High Court in Second Appeal No. 42 of 1954
(I.T.) T. S. Venkataraman and V. A. Seyid Muhammad, for the appellant.
A. V. Viswanatha Sastri, G. B. Pai,
Shakuntala Sharm and K. P. Gupta for respondent No. 1.
1963. May 8. The judgment of the Court was
delivered by HIDAYATULLAH J.-This is an appeal on a certificate by the High
Court of Kerala against its judgment and decree dated September 10, 1957. The
suit out of which this appeal arises, was filed by the appellant Kunju Kesavan
to redeem an Otti created by one Bhagavathi Parameswaran in favour of 638 one
Krishnan Marthandan on 5.5.1091 M.E., for 3500 fanams.
Subsequently, Krishnan Marthandan created
Bhagavathi Parameshwaran made a gift of the
property to his wife Bhagavathi Vailiyamma on 9.3.1103 M.E., by Exh. III.
Bhagavathi Valli died on 4.11.1105 M.E. She
had an only son Parameswaran Sivaraman who was married to Parvathi Meenakshi
and had a son named Vasudevan. Sivaraman, according to the plaintiff, left
Travancore in 1096 M.E., and both sides have taken it for granted that he died
thereafter. Meenakshi and Vasudevan, claiming to be the heirs, jointly sold the
jenmom rights on 12.4.1123 M.E., to the appellant Kunju Kesavan, and he brought
the present suit for redemption of the otti, offering to pay 3500 fanams in
equivalent money and for improvements, if any, as determined by the court. The
suit was valued at 3500 fanams (about Rs. 500/-) which was the amount of the
otti, and the claim was for redemption of the otti and possession of the fields
from the defendants who were in possession. The suit was resisted by the first
defendant (respondent No. 1). Defendants 2 and 3 (respondents 2 and 3) filed a
written statement, but do not appear to have taken much interest thereafter.
The first respondent admitted some of these
facts. He, however, averred that the document executed by Bhagavathi
Parameshwaran was not meant to be acted upon and Bhagavathi Valli and others
never obtained any rights in the jenmom by Exh.III. He also contended that if
Bhagavathi Valli got any rights, they were subject to a prior charge of the
decree of the District Court, Trivandrum, in O. S. No. 36 of 1100 M.E., and
that in an auction sale held on 3.4.1114 M. E., the jenmom rights were
purchased by the decree-holders, who were the heirs of Krishnan Marthandan and
from whom the first respondent obtained the sale deed. He claimed to have thus
obtained the jenmom rights as also the otti rights.
639 The first respondent admitted that Sivaraman
had left India in 1096 M.E., but denied the allegation that letters were
received from him till II 00 M.E , or that till 1108 M E., some information was
being received about him. He asserted that right from 1096 M.E., none heard
from him or of him, and submitted that Sivaraman must have died in 1096 M.E.,
or was not alive on 9.3-1103 M.E., the date of the gift to Bhagavathi Valli.
According to him, on Bhagavathi Valli's death, her sister Narayani and
Narayani's daughter Gouri were heirs and Meenakshi and Vasudevan were not her
heirs and thus they never got the jenmom rights. Alternatively, he contended
that even if they did obtain any jenmom rights, they lost them by the
auctionsale in O.S. No. 36 of 1100 M.E., to the auctionpurchasers. The first
respondent, therefore. submitted that the transaction by sale in favour of the
present appellant gave him no rights; on the other hand, as the
auction-purchasers were allowed to continue in possession as full owners with
the consent express or implied or the acquiescence of Vasudevan and Meenaksi,
full title resulted to him.
The parties are Ezhavas, and in the absence
of a special exemption under the Act, they would be governed by the' Travancore
Ezhava Act, 1100 (Act III of 1100) in the matter of succession and partition.
One of the contentions tried in the case relates to this exemption, it being
contended that Bhagavathi Valli had applied for exemption from part IV of the
Act, and was thus governed not by its terms but by the general Marumakkathayam
law., The two courts below decreed the suit. The Temporary District Munsiff of
Trivandrum held that the plaintiff was entitled to redeem the otti and valued
the improvements at Rs. 1367/13/4. An appeal was filed by the present first
respondent, and the other side cross-objected. The appeal and the
crossobjection were dismissed. On further appeal by the 640 first defendant,
the High Court reversed the decision of the two courts below, holding that the
plaintiff had not obtained a valid title to the equity of redemption by the
sale deed in his favour, and was not entitled to redeem the property. The
plaintiff has now appealed to this Court on a certificate by the High Court.
A preliminary objection has been raised about
the competency of the certificate granted by the High Court. It is contended
that the suit was valued at 3500 fanams, and this valuation governs the suit
for the purpose of the certificate, and the amount or value being below the
mark, the certificate was wrongly issued by the High Court and ought to be
cancelled. Alternatively it is contended that if the valuation was more than
Rs. 10,000, the trial court had no jurisdiction to try the suit.
The present appeal is against the judgment of
the High Court which reversed the decision of the court below, and if the
valuation was above the mark, the certificate was properly granted by the High
Court since an appeal as of right would lie. An appeal must satisfy two tests
of valuation. The amount or value of the subject-matter of the suit in the
court of first instance and the amount or value of the subject-matter in
dispute on appeal to this Court must both be above the mark. There are,
however, cases in which the decree or final order involves directly or
indirectly some claim or question to or respecting property above the mark.
Such cases are also appealable. Ordinarily,
the valuation in the plaint determines the valuation for the purposes of
appeal. A plaintiff, who sets a lower value on a claim which he is required to
value according to the real or market value, cannot be permitted to change it
subsequently, because this would amount to approbation and reprobation.
But in those cases in which the plaint is not
required to be valued in 641 this way, a question may arise as to the proper
value of the claim both in the court of first instance and on appeal to this
Court. The word 'indirectly' in such cases covers the real value of the claim
which is required to be determined quite apart from the valuation given in the
In this case, the High Court found the value
to be Rs. 42,000 and Rs. 80,000 at the two material times. It is obvious that
the plaintiff was not required to value his plaint on the real or market value
of the property but on the price for redemption. He was not, therefore,
concluded by the valuation given in the plaint. He had asked for possession of
the property after redemption, and that property as the High Court hag found,
is well above the mark in value. The certificate was, therefore, properly
The attack on the jurisdiction of the court
of first instance must also fail. The suit as valued was properly laid in the
court of first instance, and in any case, such an objection cannot be
entertained now. The preliminary objection is, therefore, rejected.
The main question in this appeal is whether
Meenakshi and Vesudevan had any title to the property and whether they could
transmit any title to the appellant. This depends on whether the Ezhava Act
applies or the ordinary Marumakkathayam law. The ordinary Marumakkathayam law
has a system of inheritance in which the descent is traced in the female line.
It is conceded that if the Marumakkathayam law is applicable, Meenakshi and
Vasudevan, who were the daughterin-law and son's son of Bhagavathi Valli,
were-not heirs to her. The Ezbava Act was passed to define and amend, among
others, the law of succession and partition among the Ezhavas. In its
application, it excluded Ezhavas domiciled in Travancore, who were following
Makkathayam. By s. 2 of the Ezhava 642 Act, the Act could be extended to
Ezhavas who followed Makkathayam. No question has been raised before us that it
was not so extended and the arguments proceeded on the assumption that it was,
indeed, the answering respondent claimed that Bhagavathi Valli had opted out of
part IV under s. 32 of the Act, and this could only be if the Act was
applicable to her. The appellant contended. as we shall show presently, that
Bhagavathi Valli was governed by the Ezhava Act.
'Makkathayam' means gift by the father. In
the Ezhava Act, Makkathayam property is defined to mean property obtained from
the husband or father by the wife or child or both of them, by gift,
inheritance or bequest. The property in suit was gifted by Bhagavathi
Parmeswaran to his wife Bhagavathi Valli, and obtained the character of
The first question, therefore, raised by Dr.
Seyid Muhammed, counsel for the appellant, is that though the gift was to
Bhagavathi Valli co nomine, it operated, under the law applying to makkathayam
property, to confer equal benefits upon Bhagavathi Valli and her issue
Reference in this connection is made to s. 32
of the Act which makes a special provision for the partition of makkathayam
property and provides:
"32. Makkathyam property divisible among
wife and children equally. Except where a contrary intention is expressed in
the instrument of gift or bequest, if any, makkathayam property acquired after
the date of the passing of this Act shall be liable to be divided among the
wife and each of the children in equal shares :
Provided that, in the partition of
makkathayam property, the issue how-low-so-ever of a 643 deceased child shall
be entitled to only such share as the child itself, if alive would have
taken." According to the answering respondent, the settlement deed, Exh.
III, gave the suit property exclusively to Valliyamma and some other property
to the grandson Vasudevan and thereby evinced an intention contrary to the
operation of s. 32. Dr. Seyid Muhammed submits that the ordinary rule of law was
that the property was impartable and was always shared by a female of a
marumakkathyam tarwad with her thavazhee, and cited a passage from M.P.
Joseph's book on the Principles of Marumakkthayam Law (1926), pp. 52,53, in
support of this contention. He also refers to the observations of a Division
Bench in Narayanen Narayanen v, Parwathi Nangali (1), where it was held that a
gift by the rather (known as makkathayam) to his wife was ordinarily intended
to benefit the wife and the children of the donor and though the property was
usually registered and acquired in the name of the mother, it was always held
in common by them. He contends that s. 32 made a departure and imposed
partibility on the makkathayam property and the only intention that must appear
must be in favour of impartibility, and such an intention cannot be spelled out
of Exh. III.
Section 32 makes the makkathayam property
divisible among wife and children equally. The provision is in part VII which
deals with partition. It is not possible to say that by the contrary intention
only impartibility could be imposed. There is nothing to show that
impartibility was the rule in respect of makkathayam property. The two passages
only show that ordinarily the benefit went to the thavazhee as a whole. What the
law did was to define the rights on partition of makkathayam property and laid
down that on partition the shares would be equal (1) 5. T. L. R. 116.
644 unless a contrary intention was
expressed. The reading suggested by Dr. Seyid Muhammed cannot be accepted as
the only reading. If one goes by the document, Exh. III, it is clear that there
was such an intention implicit in it. The donor gave some properties to his
wife, and others to his grandson. His son was then unheard of for years. He
thus divided his properties between his wife and grandson and the intention is
manifest that each was to take exclusively.
Dr. Seyid Muhammed next contends that the
property was either shared by Bhagavathi Valli with her son and son's son as
shown in the proviso to s. 32, quoted above, or it belonged to her
exclusively.In either case, be contends Vasudevan would have an interest and
could transmit it to the appellant. He argues that if the property was shared
by Bhagavathi Valli with Sivaraman and Vasudevan, then, Vasudevan would have
the right to redeem the otti as a person interested, and so would the present
appellant, as a transferee from him. Alternatively, if the property became that
of Bhagavathi Valli alone, then, succession to that property would be governed by
ss. 18 and 19 of the Ezhava Act, read with Explanation II, which explanation
governs the whole of part IV where ss. 18 and 19 figure. These sections and the
explanation read :
"18. Devolution of self-acquired or
separate property of a female. On the death of an Ezhava female, the whole of
her self-acquired or separate property left undisposed by her at her death
shall develove on her own thavazhee.
If she dies leaving her surviving no members
of her thavazhee but her husband and members of her mother's thavazhee,
one-half of such property shall devolve on her husband and the other half on
her mother's thavazhee. In the absence of the husband the mother's thavazhee
shall take the whole; and in the absence of the 645 mother's thavazhee the
husband shall take the whole." "19. Devolution of such property in
the absence of members of her or her mothers thavazhee or husband. On the death
of an Ezhava female, leaving her surviving neither members of her thavazhee nor
other members of her mother's thavazhee nor husband but only the thavazhee of
her grandmother or of her other more remote female ascendants, her selfacquired
or separate property left undisposed of by her at her death shall devolve on
such thavazhee, the nearer excluding the more remote." x x x x "'Explanation
II. The expression 'children' in the case of an intestate male and the
expression 'thavazhee' in the case of an intestate female shall, for the
purpose of Part IV of this Act, include the issue of such intestate male or
female how-low-so-ever." From the explanation, it would appear that the
expression 'thavazhee' in the case of an intestate female includes her issue
how-low-so-ever, and the word 'issue' indicates both males and females. Reading
this expression in connection with s. 18, Dr. Seyid Muhammed contends that on
the death of Bhagavathi Valli, the whole of her separate property left
undisposed of by her at her death, devolved on her own thavazhee, that is to
say, her issue how-lowso-ever.
In this connection, a question of great
nicety was also argued before us as to whether Sivaraman could be said to have
survived Bhagavathi Valli or to have died earlier. In the absence of evidence,
we need not embark upon an inquiry by the light of presumptions as to when
Sivaraman can be said 646 to have died. In the document executed in favour of
the answering respondent, Exh. R, dated 1-7-1121 M.E., it is quite clearly
stated by the predecessors-in-title of the answering respondent that Sivaraman
was then dead. This constitutes an admission which. has neither been withdrawn
nor shown to be incorrect, and is thus binding upon the answering respondent.
It follows that whether Sivaraman survived Bhagavathi Valli or died before her,
Vasudevan succeeded, as an 'issue' within the expression 'how-low-soever' of
the Explanation, at least to a fractional interest in the property. He would
thus be in a position to transfer that interest to the appellant, and the
appellant would be a 'person interested' for the purpose of redeeming the otti.
But this can only be if 'lie provisions
regarding succession under the Ezhava Act were applicable to Valli.
Though in the pleadings, there is no mention
that Bhagavathi Valli, had secured an exemption from the Ezhava Act, parties
appeared to have joined issue on this subject. The answering respondent filed
in the Court a copy of a Gazette notification which, so it was claimed,
mentioned Bhagavathi Valli's name among the persons who were granted exemption
from part IV of the Ezhava Act. Section 33, under which such an exemption from
the Act could be claimed, reads :
"33. (1) On an application made within
six months from the commencement of this' Act(i) by an individual member of an
Ezhava tarwad with reference to the provisions of part IV, x x x x the
Government may, after making such enquiry as may be necessary and on being 647
satisfied as to the truth of the application, exempt by a notification in the
Government Gazette such individual member.. ...from the operation of the said
provisions of this Act." The plaintiff was cross-examined about the
address of Bhagavathi Valli to prove that it was the same as shown in the
notification. Evidence was also led by the answering respondent to show that
Bhagavathi Valli had applied for exemption and obtained it. The appellant did not
lead any evidence to show the contrary.
It is contended before us that the
notification or the deposition of the aforesaid witness cannot be looked into
when there is no proper plea or issue about the exemption.
It is contended that the plaintiff was taken
by surprise when the High Court considered this point, as he did not get
sufficient opportunity to rebut it, which he would have done if it had been
pleaded and an issue had been framed. In our opinion, the parties understood
that the only issue in the case was the application to Bhagavathi Valli of the
rules of succession contained in part IV of the Ezhava Act. The appellant was
cross-examind regarding Bhagavathi Valli's address, and D.W.1, an advocate,
gave evidence that Exh. II was the notification, which showed the exemption
obtained by Bhagavathi Valli.
The trial judge assumed that Bhagavathi Valli
had been exempted from the provisions of part IV of the Ezhava Act, but he felt
that did not affect the devolution of makkathayam property according to the
provisions of s. 32 of the Ezhava Act. He was, therefore, of the opinion that
after Bhagavathi Valli's death, Bhagavathi Valli's sister Narayani and
Narayani's daughter, Gouri, did not acquire any right in the property. In the
appeal court, the learned District Judge observed that in the notification
there were more 648 than one Bhagavathi Valli, and therefore, it was impossible
to say whether Bhagavathi Valli, the donee under Exh. III, was at all mentioned
in the notification.
We do not think that the plaintiff in the
case was taken by surprise. The notification must have been filed with the
written statement, because there is nothing to show that it was tendered
subsequently after obtaining the orders of the court. The plaintiff was also
cross-examined with respect to the address of Bhagavathi Valli, and the only
witness examined on the side of the defendant deposed about the notification
and was not cross-examined on this point. The plaintiff did not seek the
permission of the court to lead evidence on this point. Nor did he object to
the reception of this evidence. Even before the District judge, the contention
was not that the evidence was wrongly received without a proper plea and issue
but that the notification was not clear and there was doubt whether this
Bhagavathi Valli was exempted or not. The parties went to trial fully
understanding the central fact whether the succession as laid down in the
Ezhava Act applied to Bhagavathi Valli or not. The absence of an issue,
therefore, did not lead to a mistrial sufficient to vitiate the decision. The
plea was hardly needed in view of the fact that the plaintiff made the
following plea in the replication:
"The suit property was obtained as
makkathayam property, by Bhagavathi Valli, under the Ezhava Act. And as per the
provisions in the said Act, the said property was obtained exclusively by
Vasudevan, subsequent to the death of the said Bhagavathi Valli and
Sivaraman." and the notification was filed to controvert his allegation.
In our opinion, the subject of exemption was
properly raised between the parties and considered in the High Court and the
courts below. The High 649 Court differed from the District Court with regard
to the notification and held that Bhagavathi Valli was exempted from the
operation of part IV of the Ezhava Act. We shall now consider whether the
finding on this part of the case given by the District judge or that given by
the High Court is correct.
Exh.II is a notification issued in 1102 M.E.
It reads :
"Whereas the undermentioned persons have
applied to the Government, under Section 33 (1)(i) of the Travancore Ezhava
Regulation, Act 3 of 1100 M.E, praying to exempt them from the provisions of
Part IV of the said regulation, and whereas the Government have become
convinced of the truth of their application, on making enquiries.
The Government have exempted each of the
following persons, from the provisions of Part IV of the Travancore Ezhava
Regulation, Act 3 of 1100 M.E. Huzur, Trivandrum. (By order) 8th January 1927
K. George Chief Secretary to Government." "S. No. Full name of the
170. Bhagavathi Valli belongThottuvarambu ing
to the branch of Bha-Bungalow, Kat gavathi Bhagavathi of akampalli Paku
Pinarummoottu tarwad thi, Trivandrum Taluk.
171. Bhagavathi Narayani of -doPinarummootu
tarwad 172. Narayani Gouri of -do-" Pinarummootu tarwad 650 S. No. Full
name of the person Address "183. Narayanan Lakshmanan Vanchiyoor Paof
Pinarummototu kuthi, Trivandrum." "185. Bhagavathi Valli of -doPinarummoottu
186. Bhagavathi Narayani -doIt was contended by the answering respondent that
Bhagavathi Valli at No. 170 is this Bhagavathi Valli. His witness, Mathan
Kuruvila, an advocate, deposed that Bhagavathi Valli shown at No. 170 was Bhaga
vathi Valliamma and Bhagavathi Narayani at No. 171 was her sister and Narayani
Gouri at No. 172 was Narayani's daughter. The plaintiff admitted that he had
seen Bhagavathi Narayani on several occasions, that their house was called
Thottuvarambu, that Pinarummoottu Veedu was the name of the tarwad house, that
Thottuvarambu Veedu is in Katakam Palli Pakuthi, and that he did not know
whether Gouri was also residing in Thottuvurambu Veedu. Dr. Seyid Muhammed
refers to a number of documents in which the address of Bhagavathi Valli was shown
as Pinarummoottu Veedu in Vanchiyoor Pathirikari Muri. These documents were of
the years 1928 to 1938. They are exhibits C, D, K,L,M, Q and R.
He contends that in all these documents
except one (Exh. Q), the address of Bhagavathi Valli or of her sister was shown
as Pinarummoottu Veedu in Vanchiyoor Pathirikari Muri which is not the address
shown in Exh.II and that Bhagavathi Valli at No, 170 was not this Bhagavatht
Valli. In Exh. Q, however, Bhagavathi Narayani, deposing in an earlier suit in
1110 M.E. (1935), gave 651 her address as "Pinarummoottu Veedu in
Vanchiyoor Pathirikari Muri and now in Thottuvaramba Bungalow in Katakampulli
Pakuthi" and stated that she had an elder sister by name Bhagavathi Valli
who was residing in the Veedu. It is, therefore, clear that the tarwad had two
places of residence, one Veedu in Vanchiyoor Pathirikari Muri, and the other, a
bungalow called Thottuvaramba in Katakampalli Pakuthi. One of these addresses
is given in Exh.II. It would, therefore, follow that the address as given in
Exh.11 does not show that this was some other Bhagavathi Valli. Indeed the
points which identify the suit Bhagavathi Valli with the Bhagavathi Valli
mentioned at No. 170 are numerous. The name is correctly described. It is also
a fact that she belonged to the Bhagavathi Bhagavathi branch. Further, she was
of Pinarummoottu tarwad. Then follow two other names, namely, Bhagavathi
Narayani and Narayani Gouri who also belonged to the same branch and tarwad and
who could be none other than her sister and-her niece. Even the address is
correct. It is, therefore, quite clear that the High Court was right in holding
that the identity had been established. The observation of the learned District
judge that there were many Bhagavathi Vallis in the list is not borne out on
the record of this case, because the only other Bhagavathi valli mentioned at
No.'185 may or may not be the same Bhagavathi Valli whose name is mentioned in
conduction with one Narayanan Lakshmanan of Pinarummoottu, Vanchiyoor Pakuthi,
In the other notification, under which
exemption from part VII of the Act was notified, the 'branch of Bhagavathi
Bhagavathi of Pinarummoottil tarwad was again shown to be at Thottuvaramba
Bungalow in Katakampalli Pakuthi in Trivandrum Taluk, while Pinarummoottil
tarwad was shown as at Pathirikari Muri in Vahchiyoor Pakuthi in Trivandrum.
This again proves that the tarwad had two houses which were occupied by
652 We are satisfied that the exemption under
the Act has been duly proved in this case. Since Bhagavathi Valli was not
subject to part IV of the Ezhava Act, it is obvious that under the pure
Marumakkathayam law, Meenakshi and Vesudevan were not her heirs, but Bhagavathi
Narayani and her daughter Gouri. Of these Gouri Narayani joined in executing
the document 'R' in favour of the answering respondent, which was executed by
the legal representatives of the original mortgagee. In our opinion, therefore,
the High Court was right in holding that the present appellant was not entitled
to redeem the otti, having never enjoyed the jenmom rights.
The appeal, therefore, must fail and is
dismissed with costs.