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Kerala High Court · body

1990 DIGILAW 569 (KER)

Annakutty v. Xavier

1990-12-20

MANOHARAN

body1990
Judgment :- The defendants 3,4,6,7 and 8 are the appellants. Suit was for partition. 2. Remold acquired 9 cents of property in Fort Cochin and constructed building No.XI/594. He had five children - 3 sons and 2 daughters; Bastian, Joseph, Agnes, Cicily and George. Except Joseph and Agnes all others are dead. Joseph and Agnes are respectively defendants land 2. Plaintiffs are the children of Cicily. Defendants 4 and 5 are the children of Bastian. Third defendant is his widow, but after his death she married his brother, George. Defendants 6 to 9 were born in that wedlock. Plaintiffs claimed partition as per S.40 of the Indian Succession Act, 1925 claiming 1/5th share. According to the plaintiffs, the children of Remold are entitled to 1/5 the share each in the said property. 3. Defendants 1 and 2 filed ajoint written statement and the 5th defendant filed a separate written statement admitting the plaint allegation except the allegation regarding commission of waste in the property. 4. The contesting defendants are defendants 3,4,6,7 and 8. They contended that the law applicable to Remold is the Cochin Christian Succession Act (Act VI of 1097) and not the Indian Success ion Act. On that basis they contended his daughters are not entitled to any share in his estate. They denied the allegation that Remold died intestate, and contended that as per the arrangement it was decided that his whole property should belong to the third and fourth defendants and that they should maintain and look after the minors. They contended alternatively that, defendants 3 and 4 alone are in exclusive possession of the property and have prescribed title to the property. Consequently others are not entitled to any share in the property. It is also contended, in the event of partition the building constructed by fourth defendant has to be allotted along with his share. 5. The Lower Court did not accept the claim that Remold did not the intestate; the claim of prescriptive title by defendants 3 and 4, and the contention that the succession to the estate of Remold is governed by the Cochin Christian Succession Act were also found against. On the other hand the Court held-that the succession to the estate of Remold is governed by the provisions in the Indian Succession Act 1925. The court passed a preliminary decree for partition, but held that building No.XI/721 is not partible. On the other hand the Court held-that the succession to the estate of Remold is governed by the provisions in the Indian Succession Act 1925. The court passed a preliminary decree for partition, but held that building No.XI/721 is not partible. 6. Learned counsel for the appellant assailed the findings of the lower court that the succession is not governed by the Cochin Christian Succession Act and the finding that defendants 3 and 4 have not perfected title by prescription. There is no evidence oral or documentary to show that Remold did not the intestate. The finding as regards that is not questioned. 7. Thus the two questions that survive for determination are as to what is the provision that would govern the succession to the estate of Remold and whether right of the co-owners is barred by adverse possession by defendants 3,4,6,7 and 8. 8. It was contended on behalf of the appellants that, the law applicable is The Cochin Christian Succession Act (Act VI of 1097). On the other hand the respondent contended that succession to Remolds estate is governed by the Indian Succession Act (Act 39 of 1925). In Mary Roy and others v. State of Kerala and others (1986 KLT 508) the Supreme Court held that as per S.6 of the Part B States (Laws) Act, 1951 The Travancore Christian Succession Act (Regulation II of 1092) was repealed as the same was a corresponding law within the meaning of S.6 of the Act 39 of 1925. The ratio of the decision in Mary Roy's case would lead to the conclusion that on the appointed day the Cochin Christian Succession Act was also repealed by S.6 Part B States (Laws) Act 1951. The appointed day under S.3 of the said Act was 1st April 1951. Therefore the repeal could take effect only on that day. As per the evidence of P. W.1 Remold died in 1950, at that time the Cochin Christian Succession Act was in force. 9. In deciding the law applicable to the deceased Remold it is necessary to refer to section of the Cochin Christian Succession Act. The Section reads as follows: "Succession to immovable property situated in Cochin and belonging to a Christian is regulated toy this Act wherever he may have had his domicile at the time of his death. 9. In deciding the law applicable to the deceased Remold it is necessary to refer to section of the Cochin Christian Succession Act. The Section reads as follows: "Succession to immovable property situated in Cochin and belonging to a Christian is regulated toy this Act wherever he may have had his domicile at the time of his death. Succession to the movable property of a deceased Christian is regulated by the law of the country in which he had his domicile at the time of his death". A plain reading of the section shows that the succession to the immovable property situated in Cochin belonging to the Christian would be regulated by the Act. Therefore, the section does not purport to be applicable with respect to properties of a Christian situated outside Cochin. The plaint schedule property is situated in Fort Cochin which is outside former Cochin state. S.7 of the Travancore Christian Succession Act (Regulation II of 1092) also is in the same line. That section also states, the same is applicable with respect to properties situated in Travancore belonging to an Indian Christian. The scope of S.7 of the Travancore Christian Succession Act arose for decision in Mary and others v. Eliyamma and others (1973 KLT 728 = AIR 1974 Ker.107). In that case the question arose for decision was with respect to a property situated in Malabar. Though it was held therein that S.29(2) of the Indian Succession Act saved the Travancore Christian Succession Act which proposition since is opposed to what the Supreme Court held in Mary Roy's Case (1986 KLT 508) can not be treated as the correct proposition; the ratio of the decision with respect to the application of S.7 of the Travancore Christian Succession Act is relevant. It is held: "S.7 of the Travancore Christian Succession Act is clear to show that succession to immovable property situated in Travancore and belonging to a member of the Indian Christian Community wherever he may have had his domicile at the time of his death is t be regulated by that Act. It is held: "S.7 of the Travancore Christian Succession Act is clear to show that succession to immovable property situated in Travancore and belonging to a member of the Indian Christian Community wherever he may have had his domicile at the time of his death is t be regulated by that Act. The relevant provisions of S.7 read: "Succession to the immovable property situated in Travancore and belonging to a member of the Indian Christian Community is regulated by this Regulation wherever he may have had his domicile at the time of his death" In this case the property is not situated in Travancore area, but in the Malabarrea, in which case S.5 of the Indian Succession Act will come into operation. S.5 states that succession to immovable property in India of a person deceased shall be regulated by the law of India wherever such person may have had his domicile at the time of his death. So in the present case succession to the plaint schedule property shall be determined by the law of India irrespective of the fact that the parties belonged to the Travancore Christian community who is governed by the Travancore Christian Succession Act." As has seen Remold died in 1950. The Part B State (Laws) Act 1951 came in to force on 1st April 1951. The law applicable would be the law in force when the succession opened; here that was in 1950. Though in 1950 Cochin Christian Succession Act was in force, S.4 of the said Act limited its application to properties situated in Cochin. As the property in question is situated outside Cochin, the said Act cannot apply. Since the Cochin Christian Succession Act could have application only with respect to properties situated in the former Cochin state and since the suit property is situated in Fort Cochin, the contention that Remold was from Angamali - a place within the former Cochin state - and he only settled in Fort Cochin cannot have relevance. 10. S.5 of the Indian Succession Act specifically states that succession to immovable property in India of a person would be regulated by law of India. The Indian Succession Act is applicable to Christians. In such circumstances it is clear that the law that would govern the succession to the estate of Remold is the Indian Succession Act as the property in question is situated in Fort Cochin. The Indian Succession Act is applicable to Christians. In such circumstances it is clear that the law that would govern the succession to the estate of Remold is the Indian Succession Act as the property in question is situated in Fort Cochin. Therefore the finding of the lower court with respect to the said aspect does not call for any interference. 11. The next question for consideration is as to whether defendants 3 and 4 have prescribed title to the property as claimed by them. It is well known that since parties are co-owners to acquire prescriptive title there should be ouster, and limitation would start to run only from the date of ouster. Positive over tact constituting ouster has to be proved by the co-owner, who claims prescriptive title. Mere non-participation in the income by itself, in the absence of other circumstance; may not be sufficient to infer outster. (Kunjunni and others v. Kesavan Namboodiri and others 1990 (2) KLT 854 =1990 (2) KLJ 777-D.B.). In a given case a demand for income and refusal of the same can constitute ouster, and time would run against the non-possessing co-owners from the said date. In Krishnan v. Raman (1986 KLT Short Notes 63 - Case No. 104) it is held that exclusive possession without the knowledge of ouster of the other co-owners cannot operate to bar the rights of the other co-owners and that adverse possession must be in open denial of the rights of the other co-owners. The same principles are laid down the decision in Karatil Ammad Koya v. Karattit Ayammad (1990 (2) KLJ 802) also. 12. It is now necessary to advert to the evidence relied by defendants 3,4,6,7 and 8 in support of their claim of adverse possession. Ext.B1 is a release of charge executed by one Mr.Rokey in favour of the third defendant. The same recites a simple mortgage executed by George, Joseph and Remold. With due regard the nature of contentions put forward it can be seen that the said recital cannot support the claim of ouster, further the release was with respect to a simple mortgage. Ext.B2 is a possessory mortgage executed by the third and fourth defendant. They claim to have inherited the property from Remold. It was contended that Ext.B2 would constitute ouster. Ext.B3 and B4 are the assignments and Ext.BS is the release. Ext.B2 is a possessory mortgage executed by the third and fourth defendant. They claim to have inherited the property from Remold. It was contended that Ext.B2 would constitute ouster. Ext.B3 and B4 are the assignments and Ext.BS is the release. The learned counsel for the respondent contended that the effect of these document has to be assessed in the light of Ext.B8 letter written by the 4th defendant to the 1st defendant. In Ext.B2 the 4th defendant solicits his cooperation to enable him to execute the document. The same does not demonstrate any hostility. As has already noted unless the person in possession has the necessary hostile animus the same cannot constitute adverse possession much less ouster. A positive animus to exclude the co-owner to his knowledge has to be established. The lower court was of the view that in the context of Ext.BS, Ext.B2 cannot constitute ouster. It should be noted that Ext.BS is dated 14-2-1963 and Ext.B2 is dated 15-2-1963. In the context of Ext.BS which was written a day prior to Ext.Bl it is not possible to hold that the person who wrote Ext.BS could have had even hostile animus against the first defendant. In such circumstances Ext.B2 cannot constitute ouster. As has already noted Ext.B5 is only a relase of Ext.B2 mortgage and Exts.B3 and B4 are assignments of Ext.B2. These documents cannot evidence ouster. It is not possible to hold that these defendants are not successful in proving prescriptive title. Therefore that finding also has to be confirmed. 13. There is no dispute as to the quantum of share found by the lower court as per the Indian Succession Act. As far as possible Building No. XI/ 721 found to be not partible will be allotted to the 4th defendant along with his share. In view of the above discussion it is clear that the judgment and decree of the lower court is only to be confirmed and the appeal is liable to be dismissed. In the result the appeal fails and it is accordingly dismissed. But in the circumstances without any order as to costs.