V. M. MATHEW v. ELISWA — 1988 DIGILAW 55 (KER)

Judgment :- 1. Plaintiff in a partition suit, O.S. No. 414 of 1976 of the Sub Court, Ernakulam is the appellant herein. 2. First defendant was the widow, defendants 2, 6, 7 and 9 are the daughters and plaintiff, defendants 3 to 5, 8 and 10 are the sons of Matheeis, who died on 3-5-1976. Plaint A schedule properties are immovable properties. The plaint in the partition suit contains two schedules, viz., immovable properties in A schedule and movable and outstandings in B schedule. The main dispute regarding partibility related to the two sets of properties. Defendants 3 and 5 to 7 contended that 11.178 cents of land dealt with under Ext. B1 and included in plaint A schedule item 3 was given to them by Matheeis under Ext. B1 and that the building standing thereon also belonged to them and dealt with by them under Ext. B2 and therefore the land and the building is not partible. There was a further contention that certain items of partible properties have not been included in the plaint. Ultimately parties agreed that the dispute regarding those items not included in the plaint could be agitated in a fresh suit. The former contention regarding 11.178 cents of land together with the building was accepted by the court below which held it to be not partible. Accordingly a preliminary decree for partition was passed regarding the plaint schedule properties except Ext. B1 property and Ext. B2 building, shares being determined under the provisions of the Cochin Christian Succession Act, the court having held that the married daughters were not given Sthreedhanam and therefore they are entitled to share. The plaintiff challenges the finding of the court below regarding 11.178 cents of land as well as the building. Defendants 6, 7 and 9 have filed CMP No. 30967 of 1987 praying that this court may direct their shares computed under the provisions of the Indian Succession Act be allotted to them. This court directed that the question be considered in appeal. 3. Thus only two questions arise for consideration in the appeal, viz., whether 11.178 cents of land dealt with in Ext. This court directed that the question be considered in appeal. 3. Thus only two questions arise for consideration in the appeal, viz., whether 11.178 cents of land dealt with in Ext. B1 and the building consisting of four flats standing thereon belonged to Matheeis at the time of his death and are partible or whether they belong absolutely to defendants 3 and 5 to 7 and whether married daughters are entitled the shares as provided in the Indian Succession Act. 4. The building situated in the disputed piece of land consists of four flats. The building is situated in a piece of land which admittedly belonged to Matheeis. On 1-2-1975 defendants 3 and 5 to 7 purported to enter into Ext. B1 partition deed reciting that the building was constructed by them out of their own funds and purporting to divide the four flats in the building among themselves by allotting one flat to each of them. By Ext.B2 dated 25-4-1975, Matheeis purported to execute settlement deed in favour of these four children in regard to 11.178 cents of land reciting therein that the building was constructed by the four children out of their own funds and they have been in enjoyment of the same. Thus he admitted that the building was constructed by the four children and that they were also collecting the rent. Evidently after his death the children attempted to lay claim to the rent. One of the tenants, viz., State Bank of India, who was the tenant in regard to the two flats (allegedly allotted to defendants 6 and 7 under Ext. B1 partition deed) filed an interpleader suit, O.S. No, 390/76, depositing the arrears of rent for the building and surrendering the keys to the court. Defendants 1 to 4 therein are the present first defendant, sixth defendant, 7th defendant and plaintiff respectively. Subsequently four of the other children of Matheeis were impleaded as additional defendants 5 to 8. They are defendants 2, 4, 8 and 10 herein respectively. However, the present 9th defendant was not impleaded in the suit. Present defendants 6 and 7 filed written statement in the suit contending that title passed to them under the settlement deed and the building had been partitioned under the partition deed and the bank was paying rent to Matheeis till bis death without authorisation from them. However, the present 9th defendant was not impleaded in the suit. Present defendants 6 and 7 filed written statement in the suit contending that title passed to them under the settlement deed and the building had been partitioned under the partition deed and the bank was paying rent to Matheeis till bis death without authorisation from them. The present plaintiff and first defendant filed written statement denying the claim set up by them add contending that the registered documents were not genuine and were not intended to be acted upon and contained false recitals and also alleging that they were brought oat at a time when he did not have requisite mental capacity and convincing him that the documents were necessary to reduce his tax liability. They also contended that the building was constructed out of the funds of Matheeis and therefore defendants 6 and 7 had no exclusive right. The present defendants S to 8 filed written statement supporting the contentions of the present plaintiff and the first defendant. The trial court in the interpleader suit mainly relied on the recitals in the documents and the action of the Cochin Corporation in registering the two flats in the name of present defendants 6 and 7 and payment of tax by them after the death of Matheeis and upheld their claim of title to the building and entitlement to rent and accordingly passed a decree. The decree was challenged in appeal, A. S. No. 23 of 1979 before the District Court, Ernakulam. The District Court held that the settlement deed purported to transfer title only to the land and not to the building, that the recitals therein in regard to the building can at best be treated as admission of Matheeis, that the alleged admission is also wrong, that the funds for the construction of the building were provided by Matheeis and he himself was dealing with the building till his death, that it was not proved that defendants 3 and 5 to 7 provided funds for the construction of the building, that the title to the building did not pass under Ext. B1 and on the death of Matheeis it devolved on all the heirs of Matheeis. Accordingly the court set aside the decree of the trial court and passed a decree in favour of all the heirs of Matheeis. The decree was challenged in S. A. No. 132/82. B1 and on the death of Matheeis it devolved on all the heirs of Matheeis. Accordingly the court set aside the decree of the trial court and passed a decree in favour of all the heirs of Matheeis. The decree was challenged in S. A. No. 132/82. The court formulated only one question, viz., whether on the interpretation of the recital in the settlement deed it could be said that the title passed to the sons in regard to the building and held against the defendants 3 and S to 7 and declined to interfere with the decree of the appellate court. 5. We have referred in detail to the previous litigation, contentions of the parties therein and the findings of the three courts because it is argued on behalf of the appellant that the finding of the first appellate court, with which this court in the Second Appeal declined to interfere, is binding on the parties therein and operates as res judicata. It has to be seen that in the prior suit the court did not purport to record any finding whether title to the land passed under Ext. B1; first appellate court found that the building was constructed with the funds of Matheeis and the title remained with him and did not pass under Ext.B1 to the four sons. Matheeis left behind him his widow, six sons and four daughters. Of them, the widow, five sons and two daughters were parties to the prior suit; present defendants 3, 5 and 9 were not parties thereto. In A. S. No. 23 of 1979 the first appellate court found that the settlement deed did not purport to convey title to the building, that the building was constructed by Matheeis out of his own funds and dealt with by him as owner till his death, that the contrary recitals in Exts. B1 and B2 were not true and therefore the building would devolve on his heirs at the time of his death. Though present defendants 3 and S to 7 were not parties to that suit, the finding referred to above would be binding between the parties thereto by virtue of the provisions of S.11 CPC. Therefore those parties cannot in this litigation contend that the building did not belong to Matheeis. However, it is open to present defendants 3, 5 and 9 to raise such a contention. Therefore those parties cannot in this litigation contend that the building did not belong to Matheeis. However, it is open to present defendants 3, 5 and 9 to raise such a contention. This no doubt could lead to an anomalous situation since so far as these three defendants are concerned it would be legally permissible for this court to take a view contrary to the view taken in A. S. No. 23 of 1979. We are not impressed by the contention advanced on behalf of some of the respondents that the findings in A. S. No. 23 of 1979 cannot be conclusive even between the parties on account of the fact that these findings were not allowed to be challenged in the second appeal. Second Appeal lies only on substantial question of law and this court did not permit any question to be raised on any finding of fact or law except in regard to interpretation of Ext. B1. It must therefore be taken that those findings of the first appellate court have become final between the parties. 6. In the plaint it has been contended that Ext. B1 is vitiated by absence of proper mental faculty on the part of Matheeis and also by undue influence, coercion and misrepresentation, a contention not pursued before us. In fact no worthwhile evidence also was adduced in the trial court in that behalf. The other contention of the plaintiff is that the document was not intended to be acted upon. The contesting defendants strongly relied on the recitals in Ext. B1 to show that Matheeis admitted that the building belonged to defendants 3 and S to 7 and not to him. The court below accepted these contentions of the contesting defendants. 7. Ext. B1 contains a statement that Matheeis was in possession of the plot of land, that in that land defendants 3 and 5 to 7 constructed a building spending money and have been enjoying the same by letting out the building and collecting the rent. Undoubtedly these statements would constitute admissions made by Matheeis. Admissions are never conclusive unless they operate as estoppel. Defendants 3 and 5 to 7 have no contention that they acted on the basis of the statements made by Matheeis in Ext. B1 or shifted their position in any way. These admissions cannot be regarded as operating as estoppel. Undoubtedly these statements would constitute admissions made by Matheeis. Admissions are never conclusive unless they operate as estoppel. Defendants 3 and 5 to 7 have no contention that they acted on the basis of the statements made by Matheeis in Ext. B1 or shifted their position in any way. These admissions cannot be regarded as operating as estoppel. However, it is open to the party making admission to show that the admission was wrong or was made under such circumstances as to render it unacceptable. 8. First part of the admission contained in Ext. B1 is that defendants 3 and 5 to 7 constructed the building spending money, evidently meaning spending their own money. It is the admitted case of all the parties that Matheeis was a person of substantial means having immovable properties and other assets. He was also a contractor. There is no doubt that be had substantial acquisitions in and around Cochin. Exts. A20 to A23 would show that the construction of the building could have commenced only in and around 1965. Ext. A20 dated 23-11-1986 is the receipt issued by the Municipality for licence fee for construction of the building in favour of Matheeis. Evidently he bad submitted plan for approval. Under Ext. A21 dated 6-1-1965 it was returned to him for the purpose of submitting a revised plan. Under Ext. A22 dated 25-6-1965 be was permitted to pay the balance licence fee. It was only under Ext. A23 dated 23-11-1965 permission was granted to Matheeis to construct the building. The question of means of parties has to be considered with reference to the period in and around 1965 and 1966. Ext. Al would show that in August 1962 a sum of over Rs. 47,000/- was awarded to Matheeis as compensation for acquisition of his land. Ext. A2 would show that in October 1962 a sum of over Rs. 15,000/- was awarded to him as compensation for acquisition of the land. Ext. A3 would show that in October 1967 a sum of over Rs. 11,030/- was similarly awarded to him. It is also in evidence that not being satisfied with the compensation be moved for reference to the Land Acquisition Court and the court enhanced the compensation. There can therefore be no doubt that at the relevant time Matheeis was in possession of sufficient funds to enable construction of the building. 9. 11,030/- was similarly awarded to him. It is also in evidence that not being satisfied with the compensation be moved for reference to the Land Acquisition Court and the court enhanced the compensation. There can therefore be no doubt that at the relevant time Matheeis was in possession of sufficient funds to enable construction of the building. 9. Let us now examine the evidence regarding the means of defendants 3 and 5 to 7. Among these defendants only defendants 6 and 7 were examined as Dws 1 and 2. Defendants 3 and 5 did not give oral evidence. Thus the best evidence regarding their means was not placed before court. There is practically no documentary evidence also to show that defendants 3 and S bad sufficient means to spend for the construction of the building. We have already indicated that the finding in the prior litigation would be binding on defendants 6 and 7, who were parties thereto. The finding was that the building did not belong to them. Dw.1 (6th defendant) was at the relevant time in Singapore staying with her husband who was employed there. According to her, her husband was getting monthly salary of Rs. 2,500/-. It is quite possible that they had some savings. But it is admitted that they had purchased a property and also constructed a building through Matheeis late in the 1960s. The evidence is not sufficient to show that they bad sufficient funds for the construction of the disputed building. Dw.1 deposed that she had sent Rs. 12,000/- to Matheeis from Singapore for that purpose. Money was sent partly by money orders. She could not say when exactly the money was sent. No records were also produced. The bank pass book, which will show withdrawal of the money, was also not produced. At the relevant time 7th defendant was in Bhilai. She did not produce any evidence to show that she or her husband bad sufficient means to advance the money. In these circumstances, the necessary inference can only be that the building was constructed out of the funds of Matheeis and not out of the funds of the four children. This would show that the recital in Ext. B1 to the effect that the building was constructed with the funds of the children is not true. 10. Ext. In these circumstances, the necessary inference can only be that the building was constructed out of the funds of Matheeis and not out of the funds of the four children. This would show that the recital in Ext. B1 to the effect that the building was constructed with the funds of the children is not true. 10. Ext. B1 also recites that the four children were letting out the building and collecting the rent and thereby enjoying the building. At present there is no dispute that it was Matheeis himself who was letting out the building and collecting the rent. In the written statement of the third defendant it is stated that after the construction of the building, because of the absence of the four children, Matheeis on their behalf might have leased the building to the tenants and might have collected the rent on their behalf, and after meeting the maintenance expense, water charges, property tax and electricity charges balance amount is kept by him for payment to the four children. We do not understand why the written statement used the word 'might'. The written statement also does not state that the balance amount was paid to them or that they had ever demanded payment of the same. No doubt, the written statement states that subsequently third defendant let out the building and collected the rent. That could only be after the death of Matheeis. In the written statement filed by the 5th defendant he alleges that he let out his flat and collected rent and paid tax. There is absolutely nothing to indicate that this statement is true. On the other hand even the oral evidence would indicate that this was done by Matheeis himself. In the written statement of defendants 6, 7 and 9 they did not say anything about the funds. They did not submit that these two flats were let out by them. Exts. A4 to A7 are orders passed by the Rent Controller in four petitions filed by Matheeis against the tenants of the four flats seeking fixation of fair rent. Fair rent was fixed in all those proceedings. There is no dispute that till the death of Matheeis the building stood registered in his name in the Corporation records and he was paying the tax and other duties. Fair rent was fixed in all those proceedings. There is no dispute that till the death of Matheeis the building stood registered in his name in the Corporation records and he was paying the tax and other duties. The assertion on the part of the four children was for the first time made only after the death of Matheeis. These circumstances will show that the recital in Ext. B1 that the four children were letting out the flats and collecting rent and also enjoying the building in that manner is not true. In our opinion, the trial court was wholly in error in relying on this statement in Ext. B1. 11. Ext. B2 is the partition deed entered into among the four children with an assertion that the building was constructed by them out of their own funds and have been enjoying the same. This document was attested by Matheeis. There is a controversy as to the legal effect of the attestation. Ordinarily attestor is not presumed to know of the contents and the attestation cannot be taken to be evidence of consent. However, it is open to the parties to prove that attestation took place under circumstances which involved consent on the part of the attestor to the transaction. See AIR. 1916 B.C.110, AIR. 1928 P.C. 20 and AIR. 1945 P.C. 82. Assuming that attestation by Matheeis involved consent, the statement in Ext. B2 cannot have any value higher than that which could be attached to the statement made in Ext. B1. We have already indicated that the statement can only be regarded as untrue. The court below was therefore in error in relying on the statement in Ext. B2 as clinching evidence. 12. It is strenuously contended that Matheeis could not have any motive to make false recitals and therefore the recitals in the document could only be true. We have already indicated that Matheeis was man of substance. It appears most probable that he bad not disclosed his true income and wealth to the authorities under the Income Tax Act and Wealth Tax Act. Ext. A10 dated 12-12-1974 mentions that be had submitted income tax return for the year 1973-74. By Ext. A10 he was required to appear before the Income tax Officer to clarity certain matters and to produce documents in support of the return. Exts. Ext. A10 dated 12-12-1974 mentions that be had submitted income tax return for the year 1973-74. By Ext. A10 he was required to appear before the Income tax Officer to clarity certain matters and to produce documents in support of the return. Exts. All and A12 would show that the matter was pending till the end of 1975. There is no evidence as to how the proceedings terminated. But Ext. A13 dated 26-12-1975 would clearly show that Matheeis had made a voluntary disclosure of income under the Voluntary Disclosure of Income and Wealth Ordinance, 1975 and remitted an amount of Rs.5,000/-. The acknowledgement is Ext. A13. Under Ext. A14 he was allowed to make the payment of dues in instalments. These documents would show that the circumstances in which Matheeis found himself were such that he thought it prudent to make a voluntary disclosure. He would not have done it but for earlier suppression of income. It was precisely during that period that Exts. B1 and B2 were brought about. We are inclined to accept the submission made on behalf of the appellant that Exts. B1 and B2 were brought about to enable Matheeis to contend before the income-tax authorities that he did not invest funds in this building and therefore was not liable to explain the source. It is in this background that the statements in Exts. B1 and B2 have to be appreciated. On an anxious consideration of the pleadings, evidence and circumstances of the case, we are of the opinion that the documents Exts. B1 and B2 were brought about only to extricate Matheeis from the unhappy consequences of action on the part of the income-tax authorities and the documents were not intended to be acted upon and the material statements therein now adverted to also were not true. We hold that the building was constructed by Matheeis out of his own funds and inspite of Exts. B1 and B2 title to the land and the building continued to vest in Matheeis till his death. The title must naturally devolve on bis legal heirs. The preliminary decree passed by the court below to that extent is unsustainable. 13. It is argued on behalf of the four daughters that the finding of the court below that inheritance is governed by the provisions of the Cochin Christian Succession Act is wrong. The title must naturally devolve on bis legal heirs. The preliminary decree passed by the court below to that extent is unsustainable. 13. It is argued on behalf of the four daughters that the finding of the court below that inheritance is governed by the provisions of the Cochin Christian Succession Act is wrong. Under the provisions of the Cochin Christian Succession Act when Sthreedhanam 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 descendants of hers as such, shall be entitled to a distributive share in the property of any of them dying intestate, if a brother or the said woman, being a lineal descendant of the intestate or the linear descendants of such a brother, survive the intestate. The trial court has held that there is no evidence to show that Sthreedhanam was given or contracted to be given to the three daughters by the father or the mother etc. and therefore alongwith the unmarried daughter they also inherit to the property. This finding is not challenged by learned counsel for the appellant in the course of arguments. Under S.20 of the Cochin Christian Succession Act the share of a daughter is equal to 1/3 of the share of the son. Under S.11 of the Act share of a widow is equal to 2/3 of a son. The trial court has held that the provisions of the Cochin Christian Succession Act apply and it was on that basis the shares were worked out. It is argued by the learned counsel representing the daughters that in view of the decision of the Supreme Court in Mary Roy v. State of Kerala (1986 KLT. 508) it must follow that the parties are governed by the provisions of the Indian Succession Act and not by the Cochin Christian Succession Act and therefore the widow and all the children have equal shares in the estate of the deceased. In the above case the Supreme Court considered the question whether Travancore Christian Succession Act should be treated as repealed with the coming into force of the States (Laws) Act and whether Christians in the erstwhile State of Travancore would be governed by the provisions of the Indian Succession Act and answered the question in the affirmative. In the above case the Supreme Court considered the question whether Travancore Christian Succession Act should be treated as repealed with the coming into force of the States (Laws) Act and whether Christians in the erstwhile State of Travancore would be governed by the provisions of the Indian Succession Act and answered the question in the affirmative. By party of reasoning the same conclusion must follow in regard to the Cochin Christian Succession Act. Therefore the correct position is that Cochin Christian Succession Act also must be treated as repealed with the coming into force of the State (Laws) Act and since then persons who were otherwise governed by the Cochin Act would be governed by the provisions of the Indian Succession Act. If that be so, daughters are also entitled to equal share with the sons in the estate of the deceased. 14. Is is pointed out by the learned counsel for the appellant that daughters have not filed appeals or cross-objections challenging the finding of the court below that the parties are governed by the provisions of the Cochin Christian Succession Act and therefore the finding of the court has become conclusive. It is further argued that in these circumstances this court cannot interfere with the shares declared by the court below. Learned counsel representing the daughters requests the court to invoke the provisions of Order XLI R.33 CPC. This rule enables the appellate court to pass any decree and make any order which ought to have been passed or made and to pass or make such further or other decree or order as the case may require, notwithstanding that the appeal is as to part only of the decree. This power, it is made clear, may be exercised in favour of all or any of the respondents or parties though such respondents or parties may not have filed any appeal or objection. Learned counsel for the appellant would contend that this provision is not applicable to the facts of the case and in any event the discretion of the court may not be exercised in favour of the daughters. 15. The amplitude of the provision came up for consideration before a Full Bench of the Madras High Court in Subramanian v. Sinnammal (AIR. 1930 Madras 801). 15. The amplitude of the provision came up for consideration before a Full Bench of the Madras High Court in Subramanian v. Sinnammal (AIR. 1930 Madras 801). The plaintiff in that case purchased the property in court auction and obtained delivery, the sale being subject to hypothecation in favour of the defendant. The defendant filed a suit to recover the hypothecation money against the judgment-debtor in the earlier suit, without impleading the plaintiff. Ultimately be himself purchased the property in court auction. Plaintiff thereupon filed the suit against the defendant for redemption of this mortgage and alleging trespass. The defendant contended that be was the owner of the property by virtue of the court sale. The first court decreed redemption. Plaintiff filed: an appeal challenging the correctness of the mortgage money determined by the court below. Defendant did not file any appeal against the decree for redemption. The appellate court, however, found that the plaintiff was not entitled to redeem and dismissed the suit, even though there was no appeal or cross objection by the defendant. The Full Bench of the Madras High Court held that Order XLI R.33 CPC. was rightly invoked in that case. 16. In Giani Ram and others v. Ramjilal and others (1969) (3) SCR., 944 the Supreme Court said that the expression "which ought to have been passed" in R.33 means "what ought in law to have been passed" and if an appellate court is of the view that any decree which ought in law to have been passed was in fact not passed by the court below, it may pass or make such further or other decree or order as the justice of the case may require. The above observation was approved by the Supreme Court in Kok Singh v. Deokabai (1976) 2. S. C. C. 963. In that case the appellant purchased the property from the respondent's husband agreeing that incase of non payment of consideration the amount due would be charged on the property. Respondent, on the death of her husband, filed the suit for recovery of the purchase money personally and on charge on the property. The trial court held that there could be no charge as the defendant had occupancy right in the property and granted only a personal decree against the appellant. Respondent, on the death of her husband, filed the suit for recovery of the purchase money personally and on charge on the property. The trial court held that there could be no charge as the defendant had occupancy right in the property and granted only a personal decree against the appellant. In first appeal, the High Court held that respondent was entitled to enforce the charge on the property and not to personal decree and accordingly interfered with the decree. It was argued that in the absence of an appeal by the respondent, the High Court could not have so interfered. The Supreme Court held that even though the respondent did not file any appeal from the decree of the trial court, there was no bar to the High Court in granting a decree in favour of the respondent for enforcement of the decree under Order XLI R.33 CPC. 17. We have no doubt that in the facts and circumstances of the case, in spite of the fact that the daughters did not file an appeal or cross-objection in regard to the finding and decree relating to quantum of shares, this court has power to give appropriate relief. Till the decision in Mary Roys' case (1986 KLT. 508) it was always uniformly accepted by the courts in Kerala that Indian Succession Act does not apply to Christians in the areas forming part of the erstwhile Travancore and Cochin States. This position was accepted for about 35 years. It was evidently on this basis that the daughters did not challenge the decree. Mary Ray's case has now laid down that the provisions of the Indian Succession Act would apply. We consider it our duty in the facts and circumstances of the case to set right the injustice which the daughters would otherwise suffer if the finding and that part of the decree of the lower court stand. We therefore set aside the finding of the court below that the parties are governed by the provisions of the Cochin Christian Succession Act and hold that they are governed by the provisions of the Indian Succession Act and all the sons and daughters are entitled to equal shares in the estate of the deceased. 18. We therefore set aside the finding of the court below that the parties are governed by the provisions of the Cochin Christian Succession Act and hold that they are governed by the provisions of the Indian Succession Act and all the sons and daughters are entitled to equal shares in the estate of the deceased. 18. In the result, the decree and judgment of the court below are modified as follows: (i) The finding of the court below that the building dealt with in Ext. B2 and the land dealt with in Ext. B1 are not available for partition is set aside. These assets would also be subject to division in the final decree. (ii) Each of the sons and daughters of the deceased Matheeis will be entitled to 1/10 share in the assets of the deceased. Such of the sharers who have not paid court fee will also be entitled to secure their share on payment of court fee in the final decree proceedings. The appeal is allowed as indicated above, but in the circumstances we direct the parties to bear their costs. Allowed.