Research › Search › Judgment

Kerala High Court · body

2002 DIGILAW 232 (KER)

Mary Roy v. Susie Issac

2002-04-01

R.BHASKARAN, S.SANKARASUBBAN

body2002
Judgment :- Sankaransubban, J. This appeal is filed by the plaintiff in O.S. No. 323 of 1988 of the Sub court, Kottayam. Plaintiff is the daughter of one P.V. Issac. First defendant is her mother. Defendants 2 to 4 are her brothers and sister. The suit was filed for partition of plaint A schedule immovable properties and plaint B schedule movable properties. 2. According to the plaintiff, the properties scheduled in A and B of the plaint belonged to late P.V. Issac, Palathinkal House, T.B. Road, Kottayam. He died on 18.12.1960 at Bangalore. He died intestate. Issac and the plaintiff and the defendants are Indian Christians and they are governed by the Indian Succession Act. The above Act was extended to Travancore-cochin State by the Part B State (Laws) Act 1951 (Act 3 of 1951) from 1.4.1951 onwards. On the date of the death of Issac, his heirs were the plaintiff and the four defendants. Under Sec. 33 of the Indian Succession Act, the first defendants - wife would be entitled to 1/3 share over the suit property and the remaining 2/3 share will go to his children who are the plaintiff and defendants 2 to 4. Hence, the plaintiff is entitled to 1/6 share over the property scheduled to the plaint. It is further stated that late Issac executed a settlement deed with regard to plaint A schedule properties by document No. 3184/1959 of the Kottayam Sub Registry in favour of the first defendant creating a life estate in her favour over A schedule properties. That is dated 17th November, 1959. This was accepted by all the parties that the properties belonged to Issac without any dispute. The plaintiff's father had another property at Ooty, the right, title and possession over which now belong only to the plaintiff by virtue of documents executed by the defendants and they have no right over that property. Plaint B schedule properties are the items of furniture, movables of everyday use, curios, artifacts, antiques, chinaware, dinner set, silver tea set, bed steads, panchaloha idols etc., which were owned, collected and kept by Issac at Palathinkal house, item No. 1 of plaint A schedule. They are very valuable. 3. So far as the Christians in Travancore area are concerned, they were govered by the Travancore Christian Succession Act. After the extension of Indian Succession Act. They are very valuable. 3. So far as the Christians in Travancore area are concerned, they were govered by the Travancore Christian Succession Act. After the extension of Indian Succession Act. After the extension of Indian Succession Act under Part B State (Laws) Act, 1951, the Travancore - Cochin High Court in the decision reported in Angusthy v. Devassy Aley - 1956 K.L.T. 559 held that the succession to the properties is governed by the Travancore Christian Succession Act. The plaintiff filed a writ petition before the Supreme Court seeking a declaration that the Travancore Christian Succession Act 1092 is not applicable to the Indian Christian Community in the territories originally forming part of the erstwhile State of Travancore - cochin on and from the date of coming into force of the Part B States (Laws) Act, 1951, it is the Indian Succession Act that is applicable. The Supreme Court by judgment dated 24.2.1986 in Mary Roy and Others v. State of Kerala and others - 1986 K.L.T. 502 declared that on the coming into force of Part B States (Laws) Act, 1951 on 1.4.1951, the Travancore Christian Succession Act stood repealed on Chapter II of Part V of the Indian Succession Act, 1925 became applicable. Thus, the plaintiff is entitled to a share under the Indian Succession Act. 4. It is true that the first defendant has a life interest over the property. But the plaintiff came to understand that the defendants were attempting to create some documents and create some documents and create difficulties to the plaintiff to get her share in plaint A and B schedule properties. Defendants 1 and 3 have already created some documents alienating the portions of plaint A schedule item No. 1 to some strangers and have also encumbered plaint A schedule items to more than Rs. 40 lakhs to the State Bank of Tracancore. Defendants 1 and 3 have no right to alienate or encumber any of the plaint schedule properties and whatever documents they have illegally created are invalid and will not affect the plaintiff's share. Hence, the prayer in the suit for partition of the share by metes and bounds and allot such share will be subject to life interest in favour of the first defendant by settlement deed No. 3184/1959 of the Kottayam Sub Registry Office and the plaintiff prayed for partition of movables shown in B schedule. 5. Hence, the prayer in the suit for partition of the share by metes and bounds and allot such share will be subject to life interest in favour of the first defendant by settlement deed No. 3184/1959 of the Kottayam Sub Registry Office and the plaintiff prayed for partition of movables shown in B schedule. 5. A written statement was filed by defendants 1 and 3. No written statement was filed by defendants 2 and 4. In the written statement filed by defendants 1 and 3, it was stated that the suit was not maintainable, since there was a life interest by settlement deed dated 17.11.1959 and till the life time of the first defendant, the plaintiff is not entitled to get her share in plaint A schedule properties. It is further stated that the movable properties do not belong to Issac, but they belong to the first defendant. The main contention taken in the written statement is that the plaintiff knows that the entire rights over the Ooty property was given to her in lieu of her share in the plaint schedule properties. Hence, she cannot claim any right over the plaint schedule properties. It is stated that after the death of Issac on 18.12.1960 a very valuable property situated in Ooty belonging to him was given to the plaintiff by the defendants in lieu of and in full satisfaction of her legitimate share in the properties left by her father. But this property has been sold by the plaintiff. It is further stated that out of A schedule item No. 1, only 55 cents alone is available for partition. 9 cents have been set apart for a common road and the balance is in the possession of strangers. The area obtained by partition at Nattakom was only about 6.60 acres, out of which, 1.60 acres were sold by the first defendant and 50 cents are in the possession of kudikidappukars. The balance alone is available for partition. A replication was filed by the plaintiff denying that the Ooty property was given to her in lieu of other shares. 6. On the basis of the above pleadings, the court below raised six issues. Exts. A1 to A6 were marked on the side of the plaintiff and Exts. B1 to B4 were marked on the side of the defendants. Ext. C1 is the commission report. 6. On the basis of the above pleadings, the court below raised six issues. Exts. A1 to A6 were marked on the side of the plaintiff and Exts. B1 to B4 were marked on the side of the defendants. Ext. C1 is the commission report. The plaintiff was examined as PW1 and the third defendant was examined as DW1. 7. The first issue was whether the suit was premature. The court below held that the suit was premature because the first defendant is entitled to enjoy the plaint schedule properties throughout her life. But the court went on to consider the other issues also. Issue No. 2 was whether the property at Ooty was given to the plaintiff in lieu of her share in the properties left by her father. The court found that the property did not belong to Issac. Regarding the question of value of improvement in issue No. 5, the court held that the first defendant is not entitled to value of improvement. In the light of the above facts, the suit was dismissed. It is against the above judgment and decree that the appeal is filed. 8. Learned counsel for the appellant /smt. Lekha Suresh submitted that after the filing of the appeal, the first defendant - mother died and the appellant and R2, R3 and R5, who are already on the party array were recorded as the legal representatives of the first respondent. So also, the fourth defendant also died and his wife was impleaded as his legal representative. Learned counsel for the appellant contended that since the mother is no more, the contention that the suit was premature does not hold good. According to her, the suit was filed since in spite of the restrictions contained in the settlement deed, defendants 1 and 3 were trying to alienate the plaint schedule properties and encumber the same. In the written statement it has been admitted that a portion of the properties has been alienated and that on the strength of the plaint schedule properties, a loan was taken from the State Bank of Travancore. Hence, learned counsel contended that the court below was not correct in holding that the property is not partible. She has prayed for partition subject to life interest. In any event, it was submitted that since the mother is no more, there cannot be any difficulty in partitioning the properties. Hence, learned counsel contended that the court below was not correct in holding that the property is not partible. She has prayed for partition subject to life interest. In any event, it was submitted that since the mother is no more, there cannot be any difficulty in partitioning the properties. It was contended on behalf of the third respondent that the mother had executed a Will regarding her 1/3 share and under the Will, the plaintiff is not entitled to any shre. Learned counsel for the appellant submitted that so far as the share of the mother is concerned, it is not necessary that any share should be allotted to her. She may be given her 1/6 share. 9. There is no dispute that the plaint schedule properties belong to Issac, the father of the plaintiff and defendants 2 to 4 and husband of the first defendant. By Ext. A1 settlement deed, the plaint schedule properties were given for the enjoyment of the first defendant. There was a maintenance case filed by the first defendant. It was in such circumstance that the settlement deed was executed. The settlement deed clearly says that the first defendant can enjoy the property throughout her life.. It is stated therein that she cannot transfer her life estate. It is also admitted that it is the Indian Succession Act that is applicable and as per the Act, the children whether male or female will be entitled to 2/3 share over the property belonging to the father and 1/3 share should be given to the mother. It is also admitted that Issac was the owner of the property in Ooty called Clifton Estate. The case of the defendants is that the Clifton Estate was given to the plaintiff in lieu of her share in other items of properties belonging to the father. So far as Clifton Estate is concerned, it is situated in the State of Madras where the Indian Succession Act applies. By Exts. B1 to B3, defendants 1 to 4 separately executed gift deeds gifting thir shares in the Ooty property in favour of the plaintiff. What the plaintiff would contend is that it was taking into account the financial circumstances that the gift deeds were executed. According to her, she had married one Roy. But that marriage entered into divorce. She had two children. What the plaintiff would contend is that it was taking into account the financial circumstances that the gift deeds were executed. According to her, she had married one Roy. But that marriage entered into divorce. She had two children. She came to Ooty where all of them were living together. It was taking into consideration the circumstances that defendants 1 to 4 gifted their shares to the plaintiff. At that time, the partition of the plaint schedule properties was never in contemplation because the law at that time was that the female members are not entitled to get share in the properties in Travancore area. Further, the properties were in the possession of the mother under the settlement deed. She also contended that nothing would be seen from Ext. B1 to B3 as to the relinquishment of the right by the appellant over the property. She contended that the right over the immovable properties can only be lost by relinquishment by express or implied. In this case, there is neither. On the other hand, learned counsel for the respondent contended that the plaintiff was insisting that she should be given Ooty Property, since she was in difficult situation. Even though the document will appear that it was executed on account of the natural love and affection, it is only a settlement deed settling the differences in the family. 10. The main contention is that Exts. B1 to B3 should be taken to be the settlement deeds and by the acceptance of these deeds, the plaintiff had relinquished her right over the rest of the properties of her father. Regarding the negotiations, which took place prior to the execution of Exts. B1 to B3, there are only scanty details. Oral evidence was given by the plaintiff as PW1 and the third defendant as DW1. The plaintiff in her evidence, stated that after the divorce from her husband, she came to Ooty. Her mother and brothers threatened to evict her. It was thereafter that Exts. B1 to B3 were executed. According to her, the partition of the plaint schedule properties in Travancore area were not in contemplation. Since at that time the law as laid down by the Travancore Cochin High Court was that the defendants are not entitled to share as per Travancore Christian Succession Act. Further, as per Ext. B1 to B3 were executed. According to her, the partition of the plaint schedule properties in Travancore area were not in contemplation. Since at that time the law as laid down by the Travancore Cochin High Court was that the defendants are not entitled to share as per Travancore Christian Succession Act. Further, as per Ext. A1settlement deed, the mother was to be in possession of her property till her life time. Hence, the question of obtaining the share from the plaint schedule properties did not arise when Exts. B1 to B3 were executed. In the oral evidence given by the third defendant as DW1, he has stated that the plaintiff insisted for her share in the properties left by her father. Her lawyers were king and patridge and that defendants decided to give the Ooty property to the plaintiff and thus, the plaintiff cannot claim share over the plaint schedule properties. 11. It is true that Exts. B1 to B3 are named as settlement deeds. Ext. B1 is dated 20.6.1966. That was executed by defendants 2 and 4. Then the third defendant executed the settlement deed on 8.12.1966. The first defendant executed the settlement deed dated 20.2.1968. Thus, there is a gap of nearly 2 years from the execution of first settlement and the execution of the third settlement. The terms of the documents do not show that these properties were given to the plaintiff in lieu of her share in the plaint schedule properties. The terms clearly show that it was the gift deed executed by different executants in view of their natural love and affection towards the plaintiff. From the terms, it cannot be inferred that the plaintiff had relinquished her right in the plaint schedule properties. The court below took the view that it amounts to relinquishment because according to it, the property in Ooty is more valuable than the plaint schedule properties and hence, since the plaintiff has been benefited by acquiring the entire Ooty property, she should be deemed to have relinquished her right over the plaint schedule properties. We find it difficult to uphold this reasoning . First of all there is no data available to show the value of these two properties. The lower court assumed that the Ooty property was sold after the suit was filed for Rs. 4 lakhs. We find it difficult to uphold this reasoning . First of all there is no data available to show the value of these two properties. The lower court assumed that the Ooty property was sold after the suit was filed for Rs. 4 lakhs. Then it relied on the valuation given in the application of Letters of Administration by the first defendant regarding the plaint schedule properties. We perused the application. We find that the plaint schedule properties had been valued subject to life estate of the first defendant. Hence, the real value was not given in the application for Letters of Administration. Another circumstance stated is that the plaintiff came to Ooty and that she was in difficult circumstances. But that does not mean that the gift deeds were executed in lieu of her share in the plaint schedule properties. What appears is that the plaintiff insisted for her share in the Ooty property. It was found that she is entitled to the share because the ooty property was situated in Madras State. Subsequently, the defendants executed gift deeds giving their shares in the Ooty property. Another fact to be noted is what is gifted is the share of each persons. As a matter of fact, the documents would have been made stating that the executants do not claim any share in the Ooty property since the plaintiff does not claim any share in the Travancore property. Further, in the present suit, the first contention taken is that the suit became premature, since the plaint schedule properties cannot be partitioned during the life time of the mother. Further the law declared by the High Court on the day when Exts. B1 to B3 were executed is that the daughter was not entitled to share. Another factor which comes for consideration is that the plaint schedule item 2 properties were partitioned among the brother of late Issac and the first defendant only by Ext. B4 dated 25.7.1966. So the extent of properties to which the plaintiff's father was entitled become clear only by the execution of Ext. B4. In these circumstances, we are not able to uphold the reasoning of the court below that the plaintiff had waived her right over the plaint A schedule properties. Thus, we hold that plaint A schedule properties are partible. So the extent of properties to which the plaintiff's father was entitled become clear only by the execution of Ext. B4. In these circumstances, we are not able to uphold the reasoning of the court below that the plaintiff had waived her right over the plaint A schedule properties. Thus, we hold that plaint A schedule properties are partible. Of course, it is stated that a portion of the plaint schedule properties that have been alienated shall not be allotted to the plaintiff. So far as movables are concerned, there is nothing to show that it belonged to Issac. Hence, we agree with the court below that they are not partible. 12. In the result, we set aside the judgment and decree of the court below. The suit is decreed allotting 1/6 share over plaint A schedule item 1 and 2 to the plaintiff. The property alienated will not be allotted to the plaintiff in the final decree proceedings. Appeal is allowed.