Mary John v. Ratnabai — 1997 DIGILAW 1172 (MAD)

Judgment : 1. The second appeal has been preferred by the defendants while the plaintiffs have preferred the cross objections. 2. The suit is for partition of the plaintiffs’ half share in items 1 and 2 and a half share in the B schedule after setting aside the gift deed and sale deed dated 14.1.1974 and 24.1.1974 respectively. There is also a prayer for redemption of the half share of the plaintiffs in the B schedule. 3. The case of the plaintiffs is that the properties in the A schedule belonged in Devasahayam, the grandfather of the plaintiffs and the father of the first defendant. The B schedule property belonged to Arputham alias Muthammal, the grandmother of the plaintiffs and the mother of the first defendant. The grand-mother Arputham died before the grandfather, Mariadasan, the father of the plaintiffs predeceased his mother Arputham. According to them, the documents have come into existence i.e., one gift deed dated 14.1.1974 and the sale deed dated 26.1.1974. These documents were obtained by coercion and undue influence as the grand-father Devasahayam was very old and sick, by the first defendant. Hence they are not valid documents. If these documents are eschewed, the plaintiffs will be entitled to the reliefs as prayed for as per the law existed then i.e., the Travancore Christian Succession Act, 1092 M.E. 4. It is worth-while to note here that both the courts below as well as the parties were under the impression that the parties were governed only by the said law. The defence was that the first defendant was very helpful to the grandfather. He has been discharging the mortgage debts created by Devasahyam and Arputham Ammal. The first defendant has also constructed the building wherein the father was living during his lifetime. The documents viz., the sale deed and the gift deed were executed voluntarily and there was no collusion, fraud or undue influence. The assignments of the mortgages in favour of the first defendant were for valid consideration. Since the plaintiffs are not entitled to the share as claimed they are also not entitled to claim for redemption. 5. The trial court, after considerating the evidence, found that Exs.B-23 and B-24, gift deed as well as the sale deed, were brought about by fraud and undue influence and hence they were not valid. Since the plaintiffs are not entitled to the share as claimed they are also not entitled to claim for redemption. 5. The trial court, after considerating the evidence, found that Exs.B-23 and B-24, gift deed as well as the sale deed, were brought about by fraud and undue influence and hence they were not valid. Hence, the trial court has set aside the aforesaid documents and granted a preliminary decree as prayed for. 6. The lower appellate court considered the evidence in detail and after elaborate discussion of the facts and circumstances found that the gift deed and the sale deed were valid documents. There was no under influence. Hence, the judgment and decree of the trial court were reversed. However, the lower appellate court has granted a preliminary decree for partition and redemption with reference to the half share in the B schedule property, with a liability to pay a sum of Rs.719.60 being the mortgage amount within three months. 7. Aggrieved by the judgment and decree of the lower appellate court both the plaintiffs and the defendants are before this court as mentioned having filed the second appeal and the cross objections respectively. 8. Learned counsel for the appellant at the commencement of the arguments represented that he has filed the petition (C.M.P.No. 17506 of 1992) to raise additional grounds in view of the decision of the Supreme Court in Mary Roy v. State of Kerala , A.I.R. 1986 S.C. 1011: (1986)1 S.C.J. 415: (1986)2 S.C.C. 209 . A copy of the petition has also been served on the counsel for the respondent. No counter has been filed. Since the additional grounds relate to the pure question of law declared by the Supreme Court, I am of the view that it has to be allowed. Hence, C.M.P.No. 17506 of 1992 is allowed in view of the pronouncement of the Supreme Court. Learned counsel, therefore, was asked to make his submissions on the additional grounds as well. 9. According to learned counsel for the appellants, after having found that the documents viz., the sale deed and the gift deed in favour of the appellants with respect to Exs.B-23 and B-24 are valid, the lower appellate court ought not the have granted a decree for a half share in the B schedule property. 9. According to learned counsel for the appellants, after having found that the documents viz., the sale deed and the gift deed in favour of the appellants with respect to Exs.B-23 and B-24 are valid, the lower appellate court ought not the have granted a decree for a half share in the B schedule property. According to learned counsel as per the law declared by the Supreme Court in the decision cited supra, the Indian Succession Act is made applicable to the territory of Pondicherry. The judgment of the Supreme Court was rendered on 24.2.1986. Therefore, the parties are governed by the provisions of the Indian Succession Act, 1925. If so, in the B schedule property Devasahayam would have inherited one third share for him and the said share become heritable also among his heirs. As per the Travancore Christian Succession Act, only a life-interest is granted to the husband or wife, A widower can succeed to an equal share along with the son or daughter. But, the share which they take will be reverted to the son or daughter after the lifetime of the widower. The substance of the contention of learned counsel is that when the Supreme Court has declared the law that Indian Succession Act is applicable to the territory of Pondicherry, the share taken by Devasahayam becomes absolute to him and that one third has been conveyed to the second defendant under Ex.B-24, the plaintiffs are not entitled to claim the same. 10. Learned counsel for the respondents however contended that the application of the law declared by the Supreme Court will become applicable i.e., as and when a new case is filed after the pronouncement of the Supreme Court on 24.2.1986. Since this case, has been filed already i.e., in 1979 itself, the law declared by the Supreme Court is not applicable. 11. I am not in a position to agree with this contention. Once a law is declared by the Supreme Court it becomes applicable immediately and since the matter in hand is being disposed of only now after the pronouncement of the Supreme Court, this Court must take note of the same and adjudicate the right of the parties based upon the declaration made by the Supreme Court. 12. The next question that is to be considered is, whether the documents Exs.B-23 and B-24 are valid. 12. The next question that is to be considered is, whether the documents Exs.B-23 and B-24 are valid. If the said question is decided, another question as to whether the plaintiffs are entitled to claim the relief of redemption is only consequential. 13. As regards the validity of these documents first of all we have to note that they are registered documents. The first one was registered on 14.1.1974 while the second one was registered on 24.1.1974. The age of the executant Devasahayam is mentioned in the documents is 73. It is also in evidence that he died in the year 1978. Even though the trial court states that he was then 85 years old and he was sick etc., there is no evidence to the said fact. Some suspicion is created with reference to the registration of the documents in Kerala. The lower appellate court has considered that they have to visit Kerala on account of some funeral and, therefore, the document was registered there. Since there is no evidence to show that Devasahayam was very old and was not in a position to understand things as the appellate court has found that he was only 73 years’ old, the mere fact that the documents were registered in Kerala would not invalidate them. It is to be seen that the parties were living in Kanyakumari District, the border district of Kerala State. There is also a statement that Devasahayam was in possession of some poromboke land in Kerala and that the said item is also included in Exs.B-23 and B-24. Further, the Registrars office is only within a distance of 15 kms. from the residents of the parties. The lower appellate court has taken into account certain instances to consider that the aforesaid documents are valid. One of the facts is that even though Devasahayam lived for more than four years after the execution of these documents he did not question them at all. Further there are also reasons for executing the documents in favour of the defendants. The first defendant has got the assignment of mortgages in his own name. In one sense he has recovered the properties from the hands of the outsiders. Further he has spent his money and put up construction in the land. Further there are also reasons for executing the documents in favour of the defendants. The first defendant has got the assignment of mortgages in his own name. In one sense he has recovered the properties from the hands of the outsiders. Further he has spent his money and put up construction in the land. Of course, the lower appellate court has also referred to the conduct of the mother of the plaintiffs getting herself married to another person immediately after the death of their father. In my view, on certain facts the trial court arriving at a finding that the documents are not valid. But, the lower appellate court considered the reasons given by the trial court and also taking note of some more facts chose to differ with reference to the finding of the trial court. In such circumstances, as a final court of appeal it has exercised its jurisdiction fairly and properly. Inasmuch as there is no perversity or illegality in the finding of the lower appellate court, I am not in a position to interfere with the finding of the lower appellate court. Therefore, the finding of the lower appellate court that Exs.B-23 and B-24 are valid is correct. 14. As regards the claim of the plaintiffs for redemption the position is like this: As per the law of the land as on today, under Ex.B-23 the entire property owned by Devasahayam has been given away to the first defendant. His one third share which he inherited from his wife has also been sold to Devasahayam i.e., the one third share in the B schedule property. After Arputham, the grandmother died, the persons who were entitled to succeed on that date were the husband Devasahayam, and the plaintiffs representing the branch of Mariadasan, predeceased son and John Mary, the surviving son. Therefore, the plaintiffs were entitled to 1/3rd share, while Mary John was entitled to the 1/3rd share each. After Devasahayam conveyed his 1/3rd share by Ex.B-24 and since I have found that the document is valid, the plaintiffs do not get any right in that item viz., 1/ 3rd share left behind by Devasahayam. However, they will be entitled to only 1/3rd share which they were entitled to succeed as the grandsons of Arputham. 15. It is not in dispute that the third share is included in the mortgages. However, they will be entitled to only 1/3rd share which they were entitled to succeed as the grandsons of Arputham. 15. It is not in dispute that the third share is included in the mortgages. Therefore, they are entitled to have a partition to the 1/3rd share in the B schedule property after payment of the amount due by them in respect of their 1/3rd share. Learned counsels on both sides agree that the lower appellate court has valued their share for payment and redemption at Rs.719.60. If that is reduced to 1/3rd it works out to Rs.479.70. 16. On a consideration of all the facts and circumstances, I am of the view that the second appeal has to be allowed as indicated below: (1) The plaintiffs will be entitled to a decree for partition with reference to the only l/3rd share in the B schedule property. (2) The said share will be available for partition only after their payment of Rs.479.70. They should deposit the said amount before the trial court within a period of six months from today and file a petition for passing of the final decree. After the deposit of the amount the first defendant will be entitled to withdraw the said amount from court. (3) The decree of the lower appellate court is modified to the extent mentioned above. Consequently, the cross-objection is dismissed. There will be no order as to costs. Consequently C.M.P.Nos.3413 of 1984 and 17506 of 1992 are dismissed.