NEELAKANTA PILLAI v. ABRAHAM — 1962 DIGILAW 288 (KER)

Judgment :- 1. The 5th defendant is the appellant. The suit was for declaration of title and recovery of possession of the plaint schedule property with mesne profits. Kallupurakkal Varkey Mathen and his two brothers Varkey Joseph and Varkey Varghese effected a partition in 1112 whereby one-half of the suit property fell to the share of Mathen and the other half to Varghese. They jointly executed a lease in favour of the plaintiff in the year 1113. Subsequently Mathen purchased the half right of Varghese and thereby became the full owner of the property. Mathen died in 1118 issueless. The 1st defendant is his widow. On his death the suit properties devolved on his two brothers in equal shares. The 1st defendant was under law entitled to take the yield from one-half of the plaint property. As per a compromise arrangement the 1st defendant gave up her life-interest in the property in favour of Joseph and Varghese. Joseph thereafter sold his half right in the suit property to the plaintiff under Ext. C and in 1118 Varghese sold his half share in favour of one Mariamma under Ext. D, who in turn sold the same to the plaintiff under Ext. E. The plaintiff thus became the full owner of the property. While matters stood thus a proceeding under S.145 of the Criminal Procedure Code was started before the First Class Magistrate's Court, Alleppey, by the 1st defendant for declaring her possession. The Magistrate on 3121124 declared the possession of the 1st defendant. It was to set aside this order by the Magistrate that the present suit was filed by the plaintiff. In pursuance to the decision in the M. C. Proceedings 1st defendant took possession of the property and withdrew an amount of Rs 1,361/-deposited by the receiver in the M. C. proceedings. The plaintiff alleged that the 1st defendant had no manner of right in respect of the property or the income deposited by the receiver. The 5th defendant obtained a decree in 0. S.133 of 1121 of the Krishnapuram Munsiff's Court on a promissory note alleged to have been executed by deceased Mathen. The said decree was obtained, it was alleged, against the 1st defendant as heir of Mathen. In execution of that decree the property was attached & sold, & it was purchased by the 5th defendant in court auction. He obtained delivery on 18-6-1952. The said decree was obtained, it was alleged, against the 1st defendant as heir of Mathen. In execution of that decree the property was attached & sold, & it was purchased by the 5th defendant in court auction. He obtained delivery on 18-6-1952. This decree was also impeached by the plaintiff in the plaint as not binding on the estate of deceased Mathen, on the ground that the 1st defendant had no right to represent the estate of Mathen. Therefore the plaintiff claimed that the suit property and the amount deposited by the receiver and drawn by the 1st defendant belonged to him. He also prayed for cancellation of the decision of the Magistrate in the M. C. Proceedings, and for recovery of the property with mesne profits. 2. The only contentions with which I am concerned in this appeal are the contentions raised by the 5th defendant. He contended that deceased Mathen had executed a pronote in favour of the 2nd defendant which was endorsed by the 2nd defendant in his favour, and that he instituted the suit in O. S.133/1121 and obtained the decree impleading the 1st defendant as heir of deceased Mathen, that the estate was substantially represented by the widow of Mathen and that he purchased the property and became the owner thereof. 3. On these contentions the lower court has entered findings; they are as follows: (1) The plaintiff became the owner of the suit property by virtue of Exts. G, D and E subject to the life-interest of the 1st defendant over one-half of the suit property, (2) that the decision of the Magistrate in the M. C. proceedings was correct and that order was not liable to be set aside, (3) that the decree and the execution proceedings in O. S.1331121 were not binding on the plaintiff or his right over the suit property, and (4) that the defendants were liable for mesne profits to the plaintiff. On these findings the lower court passed a decree in favour of the plaintiff declaring his title to the suit property and allowing his prayer for recovery thereof. 4. The main submission of counsel for the appellant was that the decree in O. S.133/1121 was binding on the estate of deceased Mathen as the 1st defendant had the capacity to represent the estate of deceased Mathen. 4. The main submission of counsel for the appellant was that the decree in O. S.133/1121 was binding on the estate of deceased Mathen as the 1st defendant had the capacity to represent the estate of deceased Mathen. He contended that under S.14 of the Christian Succession Act a widow is a sharer of the estate of the deceased and the fact that her estate is limited to a life interest in respect of one-half share of the immovable property left by the intestate is no reason to hold that she had no capacity to represent the estate of the deceased. He further submitted that the fact that she is one of the heirs is sufficient to give her the status to represent the estate of the deceased in a proceeding against that estate. I do not find the argument persuasive. It has been held in Ramaswami v. Arumanayagam (AIR. 1955 TC. 20) and Nicholas Decosta v. Sivasubramania Nadar (1956 KLT.177) that the position of a widow under the Christian Succession Act is entirely different from the position of a widow under the Hindu Law. So far as a Hindu widow is concerned the property becomes vested in her, and for the time being she is the full owner thereof, although her interest is characterised as a limited estate: but a Christian widow, inheriting under the Christian Succession Act gets only a life-interest over one-half of the immovable property left by the deceased and that right terminates on her death or remarriage. It was also decided in those cases that she has no right to alienate the property as such although it is open to her to transfer her life-interest. Therefore on the strength of these rulings I hold that the 1st defendant could not have represented the estate of the deceased. At best she could only represent her own interest in the property. 5. Then it was contended by counsel that the representation by the widow, being a representation by one of the heirs of the deceased, is a substantial representation of the estate of the deceased. I cannot accept this submission as it is directly opposed to the decision in Pyli v. Varghese (1955 KLT. 739 - AIR 1956 TC. 5. Then it was contended by counsel that the representation by the widow, being a representation by one of the heirs of the deceased, is a substantial representation of the estate of the deceased. I cannot accept this submission as it is directly opposed to the decision in Pyli v. Varghese (1955 KLT. 739 - AIR 1956 TC. 147) where a Full Bench of the T. C. High Court held that in the case of Christians and Muhammadan there is no question of the estate of a deceased being represented by one of the legal representatives. So if the theory of substantial representation fails, the only alternative is to agree with the finding of the lower court that the decree and the execution proceedings in O. S.1331121 were not binding on the estate of the deceased Mathen. If that be so, the decree of the lower court does not call for any interference. 6. Counsel contended that the 5th defendant had paid off certain amounts due under a decree in O. S.100/1125 and charged on these properties and therefore as a matter of equity before he is dispossessed the plaintiff should be directed to pay the amount. It is seen from the affidavit Ext. Al filed in the case that the 5th defendant filed an application to pay off the decree amount in O. S.100/1125 and that prayer was allowed. It is clear from the affidavit that he deposited certain amount in court. But there is no definite evidence in the case as to what was the amount which he deposited in court. In this Court the appellant has produced two documents one a copy of the B diary in O. S.1331121 and another a copy of the memo filed by the advocate for the 5th defendant in 0. S.1301125. As there is a real lacuna in the evidence, and as it is necessary for this court to find out what exactly was the amount deposited by the 5th defendant in O. S.100/1125 I thought it proper to admit these documents in evidence. So I have marked them as Exts. VI and VII respectively. From Ext. VII it is clear that an amount of Rs. 590 5 0 was paid to the plaintiff in O. S.1001125. I therefore find that the 5th defendant is entitled to pet this amount before he is dispossessed of the plaint schedule property. So I have marked them as Exts. VI and VII respectively. From Ext. VII it is clear that an amount of Rs. 590 5 0 was paid to the plaintiff in O. S.1001125. I therefore find that the 5th defendant is entitled to pet this amount before he is dispossessed of the plaint schedule property. The plaintiff is therefore directed to pay the 5th defendant the amount mentioned above before he seeks recovery of possession of the property. 7. Learned counsel for the appellant contended that he is also entitled to get the decree amount in O. S.133/1121 or at any rate the note amount together with interest thereof. This plea was not taken in the written statement filed by the 5th defendant. There is no adjudication on the question of the genuineness of the debt represented by the pronote. The plaintiff has never admitted that the note represented a genuine transaction between Mathen and the 2nd defendant. In these circumstances I am unable to accede to the submission of learned counsel that the note amount should also be paid to him before he is dispossessed of the property. 8. In the result, with the modification mentioned above, I confirm the decree of the lower court. The appeal is disposed of as above, and the parties will pay and receive proportionate cost in this Court.