Joseph & Others v. Mary & Others

1. The defendants 1 to 6 in O.S No. 198 of 1981 on the file of the Court of Additional Subordinate Judge, Ernakulam are the appellants. The said suit was filed by the 1st respondent, for partition. Plaintiff and defendants 1, 7 and 8 are the children of deceased Manuel, the 6th defendant is the wife and defendants 2 to 5 are the children of Antony, the deceased son of Manuel. Part of the properties were acquired after the death of Manuel and the case of the plaintiff is that they were acquired with the funds of the family. The acquisition was made in the name of deceased Antony by the plaintiff's mother. Manuel died in the year 1119 M.E, corresponding to 1944, and the plaintiff's mother died in 1974 and Antony died in 1980. The plaintiff was married in 1950 and the case of the plaintiff was that no ‘sthreedhanam’ was paid to the plaintiff. It was also alleged in the plaint that the defendants had executed partition deed settling the claim of the plaintiff also, but that does not represent her legitimate share. It was in these circumstances, the suit was filed by the plaintiff.

2. Manuel had properties both in erstwhile Cochin and Travancore States. Items 1 to 5, 8 to 11, 15 and 16 were situated in the erstwhile Cochin State, whereas items 6, 7, 12, 13 and 14 are situated in the erstwhile Travancore State. Item 16 is a building situated in item 1 of the plaint schedule property. Items, 7, 12, and 13 were acquired as per Ext. B3 in 1120 in the name of Antony. As per Ext. A2, part of the properties acquired under Ext. B3, were sold. The wife and all the children of Manuel joined as executants of the sale deed Ext. A2.

3. The defendants resisted the claim of the plaintiff. In the written statement filed by the 1st defendant, he contended that item Nos. 7, 12, 13 and 14 in the plaint schedule properties belonged exclusively to Antony and that they were not available for partition. It was also contended that the plaintiff was married in 1950 and defendants 7 and 8 were subsequently married and all of them were given ‘sthreedhanam’ and ornaments and therefore the plaintiff was not entitled to claim any share in the plaint schedule properties. The allegation that the acquisition of properties in the name of Antony was with the family funds was also denied. Defendants 2 to 6 adopted the contentions of the 1st defendant. Similarly, defendants 7 to 8 also supported the contentions of defendants 1 to 6.

4. Plaintiff examined herself as P.W 1 and on her behalf P.Ws 2 to 6 were also examined and Ext. A1 and A2 were marked. On behalf of defendants D.Ws 1 to 4 were examined and Ex. B1 to B8 were marked.

5. The lower court found that there was no evidence of any payment of ‘sthreedhanam’ to the plaintiff and that therefore she was entitled to a share in the properties situated in the erstwhile Cochin State that Ext. B3 properties were purchased with the family funds and therefore those properties except those which were already sold as per Ext. A2 were available for partition and that the plaintiff was not entitled to any share in the properties left by Manuel in the erstwhile Travancore State. Accordingly the learned Subordinate Judge passed a decree for partition and separate possession of the plaintiff's 1/94th share in the plaint schedule items 1 to 5, 7 to 11, 12, 13, 15 and 16.

6. In this appeal the appellants have challenged the judgment and decree of the learned Subordinate Judge. Across appeal has been filed by the plaintiff, in which she challenged the finding that the plaintiff was not entitled to any share in the properties in Travancore Stale. It was also contended that the provisions contained in the Travancore Christian Succession Act and. The Cochin Christian Succession Act are violative of Articles 13, 14 and 15 of the Constitution of India and the parties were governed not by the provisions of those Acts, but by Indian Succession Act and therefore sons and daughters are entitled to equal shares.

7. Learned counsel for the appellants raised the following points:—(1)‘Sthreedhanam’ was paid to the plaintiff and therefore she is not entitled to share; (2) the properties acquired as per Ext. B3 in t;he name of Antony exclusively belonged to Antony and that the plaintiff was not entitled to any share in the property.

8. In support of the contention that ‘sthreedhanam’ was paid, the learned counsel for the appellants has relied on Exts. B1 and B2, oral testimony of D.Ws 1 to 4 and also the admission of PW. 6 and Ext. XI, the register of ‘manassamatham’

9. Defendants contended that for raising funds for payment of ‘sthreedhanam’, Manuel's brother Thommen executed a mortgage deed Ext. B1 in favour of Narayana Panicker. Ext. B1 recites that the mortgage under Ext. B1 was created for raising fund for the marriage of the mortgagee's brother's daughter. Ext. B2 is a release deed executed by Sankara Paniker in favour of Thommen on receipt of mortgage amount. It is recited in Ext. B2 that the amount and interest were discharged by payments in instalments and Sankara Panicker got the mortgage amount. Exts. B1 and B2 clearly indicate that amount was raised for the marriage of the plaintiff and the liability was discharged by Antony. This amount, according to the defendants, represents the sthreedhanm paid to the plaintiff. On the other hand, the plaintiff would contend that this amount was raised for marriage expenses, which was conducted in a grand scale and she had not received any sthreedhanam though ornaments were given to her at the time of marriage. Learned counsel for the appellants?also relied on Ext. XI, the register of ‘manassammatham’. At page 59 of Ext. XI, there is the relevant entry relating to ‘manasamatham’ of the plaintiff. It shows that 1,500 puthen was the sthreedhanam fixed. Learned counsel for the respondent basing on Section 23 of the Cochin Succession Act argued that payment of ‘passaram’ is no proof for payment of sthreedhanam and that therefore counsel for the appellant cannot rely on Ext. XI. The fact that sthreedhanam of 1,500 puthen is a very small amount and is not equivalent to Rs. 2500/- pleaded in the written statement as the sthreedhanam paid to the plaintiff, has also been pressed into service to contend that Ext. XI cannot be relied on for any purpose. On the other hand, learned counsel for the appellants argued that the quantum of streedhanam mentioned in Ext. XI may not tally with the streedhanam paid to the plaintiff which according to the defendant was Rs. 2500/- but the entries at the same page to the effect in respect of another manassammatham is clearly indicative of payment of streedhanam in the plaintiff's case, though amount mentioned therein might not be correct. The argument is that whenever there is no payment or contract for payment of streedhanam specific mention was made that there was no streedhanam. The learned counsel for the appellant in support of his contention that streedhanam was paid to the plaintiff, also relied on the evidence of P.W 6. In answer to a question in cross-examination whether there was contract for payment of streedhanam, P.W 6 replied:

10. Similarly, the evidence of D.Ws 1 to 4 as well as the statement of defendants 7 and 8 that sthreedhanam was paid to the plaintiff were also relied on by the appellant to substantiate the contention that sthreedhanam was paid to the plaintiff. Lower court took the view that the entries in Ext. XI are not sufficient to prove that sthreedhanam was paid to the plaintiff. The evidence of D.W 1 to D.W 4 on this aspect was not believed by the lower court.

11. Though we feel on a consideration of overall evidence in the case, it was quite probable that the plaintiff was paid sthreedhanam at the time of her marriage, we do not think that it is necessary to decide that question in this case. Manuel died in 1944 and as far as the properties of Manuel are concerned the inheritance opened on the death of Manuel. The marriage of the plaintiff was conducted much later in 1950. Section 22 of the Cochin Christian Succession Act lays down that 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 denial descendant of her as such, shall be entitled to a distributive share in the property of any of them dying intestate, if (1) a brother of the said woman, being a lineal descendent of the intestate or (2) the lineal descendants of such a brother, survive the intestate. In other words, if streedhanam was paid to a woman by any of the four relations specified in Section 22, and a brother or lineal descendant of the brother of the woman is alive, the woman will be excluded from inheritance of the said four persons by her brothers or lineal descendants of brothers. In the instant case, inheritance opened in 1944 on the death of Manuel and the question to be considered is whether the alleged payment of streedhanam in 1950 would disentitle her from claiming any share in the properties left by her father who died in 1944. This question has been considered by a Division Bench of this Court in Ouseph v. Chirayath Joseph's daughter Jholly alias Saramma (A.S No. 208 of 1975). The following observation by the Division Bench is relevant.

“That the marriage took place long after the death of the father; that succession to the properties of the father opened, the moment he died; since before the date of death of the father, no streedhanam had been given, the plaintiff was not disentitle to get her due share in the properties of her father, that her subsequent marriage and receipt of streedhanam are not sufficient to divest her of the share which had already become hers”.

12. We are in respectful agreement with the view expressed by the Division Bench in the above judgment. In the instant case, admittedly no sthreedhanam was paid before the death of the father in 1944. The marriage of the plaintiff was in 1950. In the circumstances, the payment of shreedbanam subsequently will not disentitle her to claim her share in the property left behind by her father since succession opened on the death of her father in 1944. Therefore we hold that the plaintiff is entitled to get shares in the properties situated in the Cochin State left behind by her father.

13. It is not seriously disputed that in view of Section 28 of the Travancore Christian Succession Act, daughter was not entitled to claim any share in the properties of the father and was only entitled to claim sthreedhanam. The claim for streedhanam is barred as held by the lower court. In view of section 28, of the Travancore Christian Succession Act, we hold that the plaintiff is not entitled to any share in the properties left by Manuel which are situated in the Travancore State. Therefore, items 6 and 14 are not available for partition.

14. The next question to be considered and decided is whether the plaintiff was entitled to any share in the properties acquired in the name of Antony as per Ext. B3. Items 7, 12 and 13 are the properties so acquired. The learned counsel for the appellant strongly contended that Ext. B3 stands in the name of Antony and that Ext. B3 shows that it is a purchase made in the name of Antony represented by his mother for the benefit of Antony and that therefore the plaintiff is not entitled to any share in the property.

15. Ext. B3 is the document under which those properties were purchased. It shows that there was an agreement between the assignee and Manuel for sale of the property to Manuel on 22nd Mithunam, 1111 and he paid an advance of Rs. 100/- towards sale consideration. It also shows that Manuel had made some payments towards consideration by discharging debts of the assignee. It also recites that after his death, Anna had discharged certain debts and that also formed part of consideration. A total of cash payment alleged to have been made at the time of registration is only Rs. 169/-. There is no evidence to show that Anna paid part of the consideration out of her funds or that she was possessed of properties other than left behind by Manuel. Ext. A2 is a document of sale executed by all the legal heirs of Manuel in respect of a portion of the properties purchased as pr Ext. B3. What is recited in Ext. A2 is that the property was purchased by Anna in the name of Antony while he was a minor and that all the executants were in possession and enjoyment of the properties. The plaintiff is one of the executants and the other executants are wife and other children of Manuel. On the date of execution of Ext. A2, Antony was aged 32 and he was a party to the document, as well. There is a clear admission that the property was purchased by Anna in the name of Antony and all the legal heirs of Manuel were in possession and enjoyment of the property. It is not mentioned that it is for the benefit of Antony that the purchase was made. The fact that all legal heirs joined the document as executants shows that they are all beneficial owners, that though properties were purchased in the name of Antony, the intention was to benefit all the legal heirs of Manuel and that as a matter of fact, all the legal heirs were in possession and enjoyment of the property. In view of the above facts, the learned counsel for the respondents strenuously contended that it has to be held that Ext. B3 properties excluding the properties already sold are partible items. Learned counsel for the appellants also brought to our notice a decision in Narayanan v. Gangadharan (1988 (1) K.L.J 601) and contended that where the property is acquired in the name of one person but the purchase price is paid by another, a presumption arises that the transaction is one for the benefit of the person providing the money. No doubt, that such presumption is a reputable one and it can be shown that really the person in whose name the property was purchased was intended to be the beneficial owner. In view of the fact that a major part of the consideration was paid by Manuel and the balance of consideration was paid by Anna, and in view of the clear recital in Ext. A2 to which Antony himself was a party that the properties purchased under Ext. B3 were possessed and enjoyed by all the legal heirs, it is difficult to infer aby intention that Antony was exclusively intended to be the beneficial owner of the transaction. As against the admission of Antony, it is not open to the legal heirs of the said Antony to contend that the property was purchased for the benefit of Antony. There is no case that the consideration for Ext. B3 purchase was paid out of the funds of Antony. Antony was a minor and had no property except the properties inherited from his father. There is also no case for the defendants that Antony was engaged in gainful activities and could have raised necessary funds for purchase of Ext. B3 properties.

16. The learned counsel for the appellants strenuously contended that the purchase in the name of Antony alone, while there were other legal heirs of Manuel alive itself is sufficient to raise a presumption that Antony alone, was intended to be benefited. Based on the decisions in Neelakantan Domodaran Namboodiri v. Velayudhan Pillai Narayana Pillai (AIR 1958 S.C 832) and Sarojini v. Santha Trading Co. (1968 K.L.T 475), he also contended that, if there is no pre-existing right mere recital in the document Ext. A2 or Ext. B4 cannot confer any right on the plaintiff or other heirs of Manuel. We have no quarrel with the propositions in the above two decisions but in the instant case, there is clear evidence that the agreement for purchase was executed by Manuel himself and substantial part of the consideration was paid by Manuel and the rest of the consideration also has to be presumed to have paid out of the joint funds in the absence of evidence of separate funds possessed by Anna, widow of Manuel or by Antony. It is difficult to hold that originally the purchase was made for the benefit of Antony alone. As held by us in Narayanan v. Gangadharan, reported in 1988 (1) KLJ 601 where the property is acquired in the name of one person but the purchase price is paid by another, a presumption arises that the transaction is one for the benefit of the person providing the money. In these circumstances, a presumption arises that it was intended to be enjoyed by all the legal heirs of the said Manuel. In Ext. A2 there is a clear admission of Antony himself that the properties purchased under Ext. B3 were possessed and enjoyed by all the legal heirs of Manuel. That being the position, this is not a case where it is established that the title belonged to the person, in whose name the property was purchased. We are therefore constrained to hold that the court below is justified in holding that the properties in Ext. B3 other than those already sold under Ext. A2 are also partible items.

17. We have next to deal with the reliefs claimed by plaintiff in the cross-objection filed by her. We have already held that in view of the provisions contained in Section 28 of the Travancore Christian Succession Act, the plaintiff is not entitled to any share in properties left by Manuel which are situated in the erstwhile Travancore State. The next contention raised in the cross-objection is that in regard to the properties inherited by the mother of the plaintiff from her husband Manuel, the Indian Succession Act would apply. The mother of the plaintiff died in 1974. The Supreme Court in the decision reported in Mrs. Mary Roy v. State of Kerala (1986 KLT 508 (SC) held that Travancore Christa in Succession Act stood repealed after the coming into force of Part B States (Laws) Act 1951. On the same principle, it has to be held that on coming into force of Part B States (Laws Act), 1951, Cochin Christian Succession Act also stood repealed and Chapter II of Part V of the Indian Succession Act began to apply to the members of the Indian Christian Community in the territories of the erstwhile Travancore and Cochin States. The resultant position is, even if sthreedhanam was paid by the mother at the time of marriage, that will not disentitle her from claiming share in the assets left behind by the mother, according to the provisions contained in the Indian Succession Act. Manuel left two sons, three daughters and his widow as legal heirs. According to Cochin Christian Succession Act. widow gets ⅔ and a daughter gets ⅓ of son's share. Antony gets three shares, 1st defendant (son) gets three shares, Anna gets two shares and each daughter gets one share each. Thus, the plaintiff is entitled to 1/11 share as heir of Manuel. The widow Anna the mother of the plaintiff was entitled to 2/11 shares, two sons and three daughters take one share each according to Indian Succession Act, that is to say 1/5 out of 2/11 shares. Thus, the plaintiff is entitled to 1/11 plus 2/55 = 7/55 shares.

18. In the result, the appeal is dismissed and the cross appeal is allowed to the extent indicated above. The plaintiff will be entitled to a decree for partition and separate possession of the plaintiff's 7/55 shares in the plaint schedule items 1 to 5, 7 to 12, 15 and 16. The plaintiff is at liberty to apply for a final decree. The cost in this court and in the lower court will come out of the estate.