Kerala High Court
Babu vs Ayillalath Arunapriya
Author: K. Vinod Chandran
Bench: K.Vinod Chandran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN
WEDNESDAY, THE 3RD DAY OF OCTOBER 2012/11TH ASWINA 1934
R.S.A.No.763 of 2006
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[AGAINST THE DECREE AND JUDGMENT DATED 20.03.2006 IN A.S.34/2005
OF THE COURT OF THE DISTRICT JUDGE, KOZHIKODE; FROM THE DECREE AND
JUDGMENT DATED 17.09.2004 IN O.S.NO.155/2003 OF THE COURT OF THE
II ADDITIONAL SUB JUDGE, KOZHIKODE.
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APPELLANT/APPELLANT/DEFENDANT:-
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BABU, S/O. KAVUNGAL VASU,
AGED 53 YEARS, RESIDING IN PANNIYANKARA AMSOM, DESOM,
KOZHIKODE TALUK, KOZHIKODE DISTRICT.
BY ADV. SRI.K.M.SATHYANATHA MENON.
RESPONDENT/RESPONDENT/PLAINTIFF:-
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AYILLALATH ARUNAPRIYA,
D/O. DAMODARAN MASTER, AGED 27 YEARS,
RESIDING IN VAZHAYUR VILLAGE, ERNAD TALUK,
MALAPPURAM DISTRICT.
BY ADVS. SRI.K.JAYAKUMAR (SENIOR ADVOCATE)
SRI.S.V.BALAKRISHNA IYER (SENIOR ADVOCATE)
SRI.P.B.KRISHNAN.
THE REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD
ON 27-09-2012, ALONG WITH C.O.NO.33/2010, THE COURT ON 03-10-2012
DELIVERED THE FOLLOWING:-
K. Vinod Chandran, J
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R.S.A.No.763 of 2006-G &
Cross Objection No.33 of 2010
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Dated this the 3rd day of October, 2012
JUDGMENT
The defendant in a suit for partition is the appellant herein. The plaintiff, who is the defendant's niece born to his elder sister, is the respondent in the Second Appeal and cross-objector in C.O.No.33 of 2010. The plaintiff, claiming through her mother, sought for partition of the properties acquired from the great-grandfather of the defendant, more specifically one-half share. The Courts below, by concurring judgments, partitioned the properties and out of the 9 equal shares, the plaintiff's entitlement to 3/9 shares was declared and the remaining 6/9 share was set apart for the defendant.
2. When the Second Appeal was admitted, a learned Single Judge of this Court framed the following questions of law:
"i. When the plaintiff's mother Jayasree was admittedly not a party to Ext.A1 document dt.22.1.1956, was the lower appellate court justified in applying sec.6 of the Hindu Succession Act, 1956 in view of the fact that the said Act came into force only on 17.6.1956?
R.S.A.No.763/2006 & - 2 - C.O.No.33/2010 ii. Were the courts below justified in treating the plaint schedule property as the self-acquired property of Nayadi Vaidyar, the great grandfather of the plaintiff when, in the hands of his son Choyi and Choyi's son Vasu, the property was coparcenary property?"
3. By the Cross Objection, essentially the plaintiff seeks for one-half share as contended by her before the Courts below. The question of law arising therein would be:
iii. Whether the plaintiff, through her mother, is entitled to one-half share in the plaint schedule property by virtue of Section 6(1) of the Hindu Succession Act, 1956 (hereinafter referred to as "Act 30 of 1956") as amended by the Hindu Succession (Amendment) Act, 2005 (hereinafter referred to as "Act 39/2005"); which enabled the daughter of a coparcener, by birth, to become a coparcener in her own right in the same manner as the son?
4. Admittedly the plaintiff's mother and the defendant were siblings, belonging to a family of Makkathaya Hindu Thiyyas of Calicut and governed by Hindu Mithakashara Law. The mother of the plaintiff being a female member, was not entitled to a share in the co-parcenary property of her great-grandfather, Nayadi Vaidyar. Nayadi Vaidyar had three children, Kelan, Choyi @ Kuttan and R.S.A.No.763/2006 & - 3 - C.O.No.33/2010 Raman. Of the three children, Choyi @ Kuttan died first and then Raman, who died a bachelor and issueless. Even during the life time of Raman; himself, Kelan and Vasu S/o.Choyi @ Kuttan had decided on a partition of Nayadi Vaidyar's property, orally, by setting apart one share to the branch of Kelan and another to the branch of Choyi @ Kuttan and Raman together. After Raman died, Kelan's children Sreenivasan and Balan representing that branch and Vasu and his children Rajan and Babu representing the deceased Choyi @ Kuttan's branch and also that of deceased Raman entered into a deed of partition dated 22.1.1956 by Exhibit A1. By the said partition deed, the 'A' schedule properties therein were set apart for Kelan's branch and Vasu, Rajan and Babu became entitled to share in 'B' schedule properties therein. Rajan and Babu (the defendant) were both minors and were represented by their father and natural guardian Vasu. The 'B' schedule in Exhibit A1 is the plaint 'A' schedule property herein. Subsequently Vasu died and then Rajan followed. Rajan also died a bachelor and issueless. Sreeja @ Jayasree, who was the sister of Rajan and Babu, married and the plaintiff was born in the wedlock. She too passed away in 1990. Hence, the surviving members in the family were Babu, the defendant and Arunapriya, his niece, the plaintiff. R.S.A.No.763/2006 & - 4 - C.O.No.33/2010
5. The plaintiff having sought for partition personally and through lawyer's notice, filed the suit on her attempts becoming futile. The suit was filed in the year 2003 and the plaintiff, holding herself out to be the only other surviving member along with the defendant, claimed one-half of the plaint schedule properties. The defendant, however, contended that the plaintiff has absolutely no rights over the properties, since it is a co-parcenary property and female members are not entitled to share in the co-parcenary property. The plaintiff's claim, obviously, was through her mother and though her mother was alive at the time of Exhibit A1, she was not participated in the partition entered into by the male members then living.
6. The trial Court found that Exhibit A2, assignment deed of 1997, indicated that Rajan, the brother of Sreeja @ Jayasree and Babu, the defendant, predeceased the plaintiff's mother Sreeja @ Jayasree. The claim of the plaintiff for one-half share was negatived. It was found that as per Exhibit A1 Vasu and his two sons Rajan and Babu had one-third share in the plaint schedule properties. Subsequently on Vasu's death, his share equally devolved upon his three children Sreeja @ Jayasree, Rajan and Babu. Then on Rajan's death, his individual share acquired by virtue R.S.A.No.763/2006 & - 5 - C.O.No.33/2010 of A1 and the fractional share inherited by him on the death of his father, Vasu, devolved equally upon the plaintiff's mother and the defendant. It was in such circumstance that the plaintiff was declared to be entitled to 3/9 share and the defendant to 6/9 share of the plaint schedule property.
7. The first appellate Court concurred with the said finding and specifically dealt with the contention of the plaintiff with respect to the amendment to Act 30/1956 made in the year 2005 by Act 39/2005. The first appellate Court held that the effect of the amendment brought in by Act 39/2005 has to be examined along with the provisions of the Kerala Joint Hindu Family System (Abolition) Act, 1975 (hereinafter referred to as "Act 30/1976"). By virtue of Act 30/1976, it was held that the joint family system among the Hindus in the State of Kerala was abolished. Since Section 6(1) refers specifically to a "Joint Hindu Family" governed by Mitakshara Law and since Act 39/2005 did not make any specific reference to Act 30/1976, it can only be presumed that the said provision did not apply to the State of Kerala. It is this finding of the first appellate Court that is challenged herein through the Cross Objection.
8. The learned counsel for the appellant Sri.Sathianatha Menon would contend that the Courts below erred in relying on Act R.S.A.No.763/2006 & - 6 - C.O.No.33/2010 30/1956, since partition was of a coparcenary property effected before Act 30/1956 came into force. It is also contended that there is no evidence as to when exactly the death of Vasu and Rajan occurred. Though Exhibit A1 was executed on 22.1.1956 and Act 30/1956 came into force on 17.6.1956, this Court cannot assume without any reliable evidence that the death of Rajan and Vasu did not occur during that short period. It is also contended on behalf of the appellant/defendant that the plaintiff had acquired no rights over the property, since her mother was clearly excluded from the partition as early as in the year 1956 and had not challenged such exclusion in her lifetime. The mother of the plaintiff expired long after, in the year 1990. The daughter has chosen to claim the share through her mother only in the year 2003.
9. The learned Senior Counsel Sri.S.V.Balakrishna Iyer, appearing for the respondent-cross objector/plaintiff, per contra, would contend that the death of Vasu definitely is after 1956, as is evident from Exhibit A2. Exhibit A4 is the Purchase Certificate issued with respect to the very same property in the name of all the three children of Vasu in the year 1981. Exhibits A5 and A6 are respectively the statement accompanying the order and the order in Suo Motu proceedings No.3810/76 taken under the Kerala Land R.S.A.No.763/2006 & - 7 - C.O.No.33/2010 Reforms Act, 1964, which evidently culminated in Exhibit A4. This would show that Rajan's death was after Act 30/1976 came into force on 1.12.1976. Vasu having died after Act 30/1956, his share is subject to the proviso to Section 6. Sreeja @ Jayasree, the mother of the plaintiff, gets an entitlement even as a female member and with respect to Rajan, since his death occurred after the coming into force of the Act 30/1976, there is no question of application of Section 6 of Act 30/1956 and what is applicable is Section 8.
10. The learned counsel for the appellant seriously disputes this. It is his contention that though the documents are marked in evidence, that alone is not proof of its contents. He also contends, without conceding, that if at all Vasu's share is found to be subject to the proviso to Section 6 of Act 30/1956, Rajan's share would be governed by Section 6 as such. Section 6 provides that after the commencement of the Act if a male Hindu, having an interest in a Mitakshara coparcenary property, dies, his interest in the property shall devolve by survivorship upon the surviving members of the coparcenary and not in accordance with the Act. Hence, when Rajan died, his interest would be one in Mitakshara coparcenary property and only Babu, the surviving member of the coparcenary; gets a claim by way of devolution by survivorship. R.S.A.No.763/2006 & - 8 - C.O.No.33/2010
11. Nayadi Vaidyar, this Court is informed, died in 1935 and Choyi @ Kuttan in 1939. The date of their death does not at all alter the facts situation or has any relevance to the law to be applied in the above case. Exhibit A1 is admitted by all parties; nor does the plaintiff challenge the same, since it was executed on 22.1.1956, evidently before Act 30/1956 came into force on 17.6.1956. The plaintiff's mother was alive at that point of time and there was nothing wrong in having not included her in the partition deed, since admittedly it was a coparcenary property. Only the male members, i.e., Vasu, Rajan and Babu, representing the share of two sons of Nayadi Vaidyar were entitled to share therein. Within about five months, i.e. on 17.6.1956, Act 30/1956 came into force.
12. Before the commencement of the Hindu Succession Act, coparcenary property, in contradistinction with the absolute or separate property of any individual coparcener, devolved according to the rule of devolution by survivorship upon surviving coparceners in the family, which consisted exclusively of male members. Section 6 of the Act while recognizing the rule of devolution by survivorship among the members of the coparcernary, made an exception to the rule in the proviso. By the proviso to Section 6, it was provided that when a male Hindu dies after the commencement of Act 30/1956, if R.S.A.No.763/2006 & - 9 - C.O.No.33/2010 he is survived by a female relative specified in Class I of the Schedule or a male relative specified in that class who claims through such female relative, the interest of the deceased in the Mitakshara coparcenary property shall devolve by testamentary or intestate succession; under Act 30/1956 and not by survivorship. A coparcener is further enabled under Section 30 to make a testamentary disposition of his undivided interest in the Joint family property. Vasu having died after 17.6.1956, the said proviso gets attracted with respect to the share acquired by Vasu, on the strength of Exhibit A1. The mother of the plaintiff and her two brothers Rajan and Babu were the children of deceased Vasu. Hence, the share of Vasu devolved upon these three children equally. Hence, if by Exhibit A1 Vasu, Rajan and Babu had acquired 3/9 shares of 'B' schedule therein, on the death of Vasu, the three children get 1/3 share each. Rajan's and Babu's share would be then 4/9 each and the share of the plaintiff's mother 1/9.
13. Then Rajan dies, by which time Act 30/1976 came into force, which, by Section 4, deemed that all members of an undivided Hindu Family governed by the Mitakshara Law holding any coparcenary property on the day when the Act came into force shall hold it as tenants-in-common as if a partition had taken place R.S.A.No.763/2006 & - 10 - C.O.No.33/2010 and each share shall be separately held as full owner thereof. Hence Rajan, Babu and their sister Sreeja @ Jayasree holds the property as their own separately. When Rajan died intestate, unmarried and issueless, Section 6 has no application, since there is no coparcenary property available at that point, by virtue of the provisions of Act 30/1976. Then necessarily one has to go to Section 8 of Act 30/1956. Section 8 provides that the property of a male Hindu dying intestate shall devolve firstly, upon the heirs, being the relatives specified in Class I of the Schedule and on such heirs being unavailable, then upon the heirs, being the relatives specified in Class II of the Schedule. Rajan left behind only his brother and sister - Babu the defendant and Sreeja @ Jayasree, the plaintiff's mother. He did not have any Class I heirs surviving. The brother and sister equally share under Class II of the Schedule. Hence, his 4/9 shares gets equally divided; and Babu, who already had 4/9 share gets an additional share of 2/9 making his share 6/9. Sreeja @ Jayasree having inherited 1/9 share on her father Vasu's death, gets additional 2/9 share on Rajan's death, making her share 3/9. This is the partition effected by the trial Court and affirmed by the first appellate Court.
14. The learned counsel for the appellant would persist R.S.A.No.763/2006 & - 11 - C.O.No.33/2010 in his plea with respect to the deceased Rajan's succession as being governed by the main Section 6 of Act 30/1956. He would rely on the decision reported in C.Kamalamma v. Narayana Pillai, 1993 (1) KLT 174. The Full Bench in that case was considering the question as to whether Act 30/1976 intended to trench upon Section 17 of Act 30/1956. The argument put forward was that Section 17, by providing for succession on the death of a Hindu Marumakkathayee female, by sub-clause (a) to (e) of sub-section
(ii), effectively incorporated an amendment into the Travancore Nair Act and other statutes. On the repeal of the Travancore Nair Act and other State laws by Act 30/1976, Section 17 of Act 30/1956 too stood repealed. All the learned Judges concurred and held that Section 4 of Act 30/1956 has an overriding effect and by providing for devolution of interest in the property of tarawad, etc. by Section 7 and general rules of succession by Sections 15 and 17 as also testamentary succession by Section 30; Travancore Nair Act in so far as it was repugnant to Act 30/1956 would be void to that extent. Referring to the Objects and Reasons of Act 30/1976 and noticing the specific statement that the Central Acts would prevail as also the suggestion of the Kerala Law commission not to change Section 17 of Act 30/1956; it was held that the plea of repugnancy fails. The R.S.A.No.763/2006 & - 12 - C.O.No.33/2010 argument of Section 17 of Act 30/1956 being engrafted into Travancore Nair Act and its consequent repeal, by repeal of the Travancore Nair Act by Act 30/1976, was also rejected. Considering the effect of Act 30/1976 it was held by the majority that it has no effect on Section 17, since it continues to be applicable to those who were alive before the promulgation, since they were born into the identifiable group of Marumakkathayees and Act 30/1976 has no effect on their succession which opens on their death on or after 1.12.1976. For those who were born after 1.12.1976, there can no longer be an identifiable group of Marumakkathayees due to its abolition by Act 30/1976.
15. The learned counsel would submit that, on the same principle, Act 30/1976 does not invalidate Section 6 of Act 30/1956. That is not the case projected by the Senior Counsel for the respondent. It is the case of the plaintiff that Act 30/1976 extinguishes coparcenary property and there being no coparcenary property after Act 30/1976; Section 6 cannot be relied upon and one has to go to Section 8 to decide succession. Looking again at the Full Bench decision, Their Lordships noticed that Act 30/1956 dealt with "Wills, intestacy and Succession" coming under Entry 5 of List III of the 7th Schedule to the Constitution (para 18 supra). It was also R.S.A.No.763/2006 & - 13 - C.O.No.33/2010 noticed that Act 30/1976 dealt with "Tarawad and its management and partition" (para 20 supra). While Act 30/1956 determined the succession on death, intestate or testamentary; Act 30/1976 created a division during the lifetime of a person. If Rajan died before 1.12.1976; his share remained a coparcenary property and would have gone to the surviving coparcener. Provisions of Act 30/1956 could not be replaced by Act 30/1976; nor could there be a plea of repugnancy because the Act 30/1956 is enacted by the Union and Act 30/1976 by the State. There is absolutely no overlap or even incidental trenching, since the aspects dealt with though falling under the same entry in Schedule 3 deals with different fields as is noted in Kamalamma's case (supra).
16. As noticed by the Full Bench, Section 17 refers two specific groups, i.e., persons governed by "Marumakkathayam" and "Aliyasantana" laws and makes a departure from the general rules of succession. Act 30/1956 codified law relating to intestate succession among Hindus and gave rights till then unknown in relation to women's property. However, as far as "Marumakkathayam" and "Aliyasantana" laws were concerned, the law makers were faced with the prospect of taking away more than equal rights already available to women. Hence it necessitated R.S.A.No.763/2006 & - 14 - C.O.No.33/2010 treatment as a separate group under Section 17. Section 6 in contradistinction provided for devolution of interest in "coparcenary property". When Act 30/1976 came to be enacted, within Kerala, the coparcenary property ceased to exist. On 1.12.1976, by operation of law, there was a deemed partition and the joint properties were henceforth held individually as tenants-in-common. For reason of there being no coparcenary property thereafter Section 6 ceased to have any effect within State of Kerala. However, though held separate, the property of a female Marumakkathayye having born to such group prior to 1.12.1976; her death makes Section 17 of Act 30/1956 applicable to her properties, as held by the Full Bench. After 1.12.1976, there is no coparcenary property in existence by reason of Act 30/1976; in the State of Kerala. Hence, there can be no succession by survivorship as provided in Section 6 of Act 30/1956, one has to go to Section 8.
17. The claim of one-half share put forth by the plaintiff is on the strength of amendment to Section 6. The (Amendment) Act, 2005 was enacted to remove the discrimination contained in S.6 of the Hindu Succession Act, 1956 by giving equal rights and liabilities to the daughters in the Hindu Mitakshara coparcenary property as the sons have. The said Act came into force with effect R.S.A.No.763/2006 & - 15 - C.O.No.33/2010 from 9.9.2005. The legislature did not specifically make the provisions retrospective. A careful reading of sub-sections (1) and (5) of Section 6 of the said Act indicates that the Act is prospective. It creates substantive right in favour of the daughter a right of coparcener from the date when the amended Act has come into force, i.e. 9.9.2005. Section 6, as substituted by Act 39/2005 is extracted for ready reference:
"6. Devolution of interest in coparcenary property - (1) On and from the commencement of the Hindu Succession (Amendment) Act, 2005, in a Joint Hindu family governed by the Mitakshara law, the daughter of a coparcener shall, -
(a) by birth become coparcener in her own right in the same manner as the son; ....
(b) have the same rights in the coparcenary property as she would have had if she had been a son;
(c) be subject to the same liabilities in respect of the said coparcenary property as that of a son, and any reference to a Hindu Mitakshara shall be deemed to include a reference to a daughter of a coparcener:
Provided that nothing contained in this sub-section shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004.
R.S.A.No.763/2006 & - 16 - C.O.No.33/2010
18. The aforementioned provisions give no room for doubt. The provision applies only to coparcenary property surviving as on the date of enactment of the amended provision of the Hindu Succession Act. As noticed above, in the State of Kerala, after the enactment of Act 30/1976, coparcenary property ceases to exist and all the members in the coparcenary who till then were joint-tenants become tenants-in-common as if a statutory partition had taken place among all the coparceners. Section 4 of the said Act provides that all members of an undivided Hindu family governed by the Mitakshara law holding any coparcenary property on the day the Act comes into force shall be deemed to hold it as tenants-in-common, as if a partition had taken place among all the members of that undivided Hindu family. Therefore, on the day on which the Hindu Succession Amending Act No.35/2005 came into force, there was no coparcenary property existing within the State of Kerala consequent to the passing of Act 30/1976.
19. The next issue would be the actual time of death of Vasu and Rajan. It is the contention of the learned counsel for the appellant that no reliance can be placed on the documents or its contents to hold that Vasu died after 1956 and Rajan after 1976, more specifically after Act 30/1956 and Act 30/1976, came into R.S.A.No.763/2006 & - 17 - C.O.No.33/2010 force, respectively. It is the contention of the appellant that marking of documents and proof of its contents are two different concepts. Merely because a document has been produced in evidence, that cannot lead to a presumption that the contents of the documents is proved.
20. The Hon'ble Supreme Court considered the issue in Narbada Devi Gupta v. Birendra Kumar Jaiswal, (2003) 8 SCC
745. The plaintiff in the said case sought for recovery of possession of the suit premises on the ground of trespass and as a pre-emptive measure; in the plaint itself it was averred that his adoptive mother, under whom the claim was made, had signed on some blank papers and handed them over to the defendant. The defendant in the written statement made specific reference to the rent receipts issued in his favour by the adoptive mother of the plaintiff. No specific plea of fraud or forgery was made by the plaintiff but for what was stated in the plaint. No further explanation as to how blank printed rent receipts, thumb-marked and signed on the back portions came into the hands of the defendant. Reiterating the undisputed position that mere production and marking of documents as Exhibits by the Court cannot be held to be due proof of its contents, the position was once again affirmed by the Supreme R.S.A.No.763/2006 & - 18 - C.O.No.33/2010 Court. The execution, it was held, has to be proved by admissible evidence, i.e, by the "evidence of those persons who can vouchsafe for the truth of the facts in issue". However, the situation was held to be different where the documents are produced, they are admitted by the opposite party, signatures on them are also admitted and they are marked thereafter as Exhibits by the Court. The plaintiff having not disputed the rent receipts, it was held, there was no further burden of proof on the defendant to lead additional evidence in proof of the writing on the rent receipts and its due execution. The reliance placed by the High Court on P.C.Purushothama Reddiar v. S.Perumal, (1972) 1 SCC 9 was approved by the Supreme Court. This was followed in Oriental Insurance Co. Ltd. v. Premlata Shukla, (2007) 13 SCC 476, wherein it was so held in para 15:
"A party objecting to the admissibility of a document must raise its objection at the appropriate time. If the objection is not raised and the document is allowed to be marked and that too at the instance of a party which had proved the same and wherefor consent of the other party has been obtained, the former in our opinion cannot be permitted to turn round and raise a contention that the contents of the documents had not been proved and, thus, should not be relied upon". R.S.A.No.763/2006 & - 19 - C.O.No.33/2010
21. In the present case, admittedly there was no oral evidence, either by the plaintiff or by the defendant. Going by the plaint, the plaintiff specifically pleaded that Vasu died after the commencement of the Act 30/1956. It was also pleaded that Rajan, one son of Vasu, died thereafter and his share devolved equally upon the defendant and the plaintiff's mother. It is the contention of the learned counsel for the appellant/defendant that the defendant had, in paragraph 5 of the written statement, specifically pleaded that the factum of death having occurred after the coming into force of Act 30/1956, was specifically denied. The denial was in the following terms:
"The statement that Vasu died after the Hindu Succession Act came into force and that by the provisions of the aforesaid enactment, Vasu's share in the property devolved upon the plaintiff's mother Jayasree @ Sreeja, the defendant and their brother Rajan is not correct" (sic).
This according to me, is an omnibus denial. That alone does not cast any additional burden on the plaintiff.
22. I have looked at the "B" Diary of the trial Court available in the records. The suit was listed for trial on 9.9.2004. It was submitted on behalf of the plaintiff that there was no oral evidence. Exhibits A1 to A6 were marked. The plaintiff's evidence R.S.A.No.763/2006 & - 20 - C.O.No.33/2010 was closed and the case was posted to 10.9.2004 for the defendant's evidence, if any. On 10.9.2004, it was submitted that there is no oral evidence for the defendant. Hence, it was posted for hearing and after hearing the judgment was pronounced. The defendant had not raised any objection with respect to the marking of the documents. It was again marked on his consent. Applying the law laid down by the aforesaid Supreme Court decisions, the defendant cannot now turn round and say that there was requirement of further proof.
23. Looking at the document itself; Exhibit A2 is a certified copy of a sale deed bearing No.316/1997 of the Sub Registrar's Office, Meenchantha, Kozhikode, conveying 9.5 cents of land by way of sale to third parties. The vendors in the said document are the defendant, the father of the plaintiff and the plaintiff. The recitals in the document is to the effect that the properties sold are part of that acquired by Vasu, Rajan and Babu by way of Exhibit A1 in 1956. Rajan and Babu were minors at that point. It is specifically stated that, Vasu was holding the same on behalf of the minors also till they attained majority. The death of Vasu as also the death of Rajan is evident from the recitals. The devolution of Vasu's share to the three children and Rajan's share R.S.A.No.763/2006 & - 21 - C.O.No.33/2010 to the defendant and the plaintiff's mother has also been stated. It is on the strength of such recitals that the aforesaid three vendors put their signature to Exhibit A2 document. The defendant too has signed on the document and he has not denied the same. Even in the written statement the defendant admits to the same, but dismisses the inclusion of the plaintiff as an expedient measure due to the ignorance of the vendee therein. Afterthought cannot substitute/extinguish specific recitals made in the deed. Vasu has been shown as having held the property till both Rajan and Babu attained majority. Babu, the defendant, was 53 when this appeal was filed in the year 2006. At the time of execution of Exhibit A1, i.e., 22.1.1956, the defendant would have been three years old. If Vasu survived till he attained majority, necessarily Vasu died after the coming into force of Act 30/1956.
24. Now we come to the death of Rajan. As has been shown in Exhibit A4, the property was assigned to the plaintiff's mother, the defendant and the other sibling Rajan, in 1981. Exhibits A5 and A6 are objected to by the learned counsel for the appellant as being on dates prior to 1.12.1976. More specifically, both of them are dated 25.10.1976. The contention is that Exhibits A5 and A6 are prior to the coming into force of Act 30/1976. Exhibit A4 Purchase R.S.A.No.763/2006 & - 22 - C.O.No.33/2010 Certificate, it is contended, is one issued as a natural consequence of Exhibit A5 and A6 order and it cannot at all conclusively prove that Rajan was alive when Act 30/1976 came into force. That contention does not impress this Court. Section 114 of the Evidence Act confers power on this Court to presume the existence of certain facts. This Court can presume that judicial and official acts have been regularly performed. It can only be presumed that Rajan was alive at the time when Act 30/1976 came into force. The defendant had not objected to the marking of the Purchase Certificate issued in the name of the three siblings. The defendant neither in the written statement nor at any time had a plea that Rajan was not alive at the time when Exhibit A4 was issued. In the circumstances, going by the discussion above as to the devolution of the share on Vasu and Rajan on their death, the judgments of the Court below are not liable to be interfered with.
25. The first question with respect to the plaintiff's mother not being a party to Exhibit A1 document dated 22.1.1956 and the justification of the lower appellate Court in applying Section 6 of Act 30/1956, which came into force subsequently, has to be answered in favour of the respondent/plaintiff and against the appellant/ defendant. On 22.1.1956 when Exhibit A1 document was R.S.A.No.763/2006 & - 23 - C.O.No.33/2010 executed, the female member could not have had any entitlement to the coparcenary property. But, after the coming into force of Act 30/1956 on 17.6.1956, the female member gets a claim under the proviso to Section 6. Hence, Vasu's share devolves equally upon his children - Rajan, Babu and Sreeja @ Jayasree. At the time of death of Rajan, Act 30/1976 having came into force, his property is held by him separately as tenants-in-common and as full owner thereof. The devolution on his death has to accede to Section 8. Class I heirs being unavailable, the brother and sister share the property equally as Class II heirs. The question whether the plaint schedule property is the self acquired property of Nayadi Vaidyar when the same was coparcenary property in the hands of his children Choyi and Choyi's son Vasu cannot at all have any relevance, because it is not Nayadi Vaidyar's property as such which is claimed by the plaintiff, but the share of Vasu, being the father of the plaintiff's mother, who died after Act 30/1956 came into force and the share of Rajan, the brother of the plaintiff's mother who died after Act 30/1976 came into force.
26. The question raised by the cross objector/plaintiff regarding her entitlement to one-half share based on the amendment to Section 6 by Act 39/2005 does not arise at all, since, R.S.A.No.763/2006 & - 24 - C.O.No.33/2010 as held by the first appellate Court, the effect of that Section cannot be taken as extinguishing the provisions of Act 30/1976. In fact, the Statement of Objects and Reasons of Amendment Act, 2005 specifically refers to Act 30/1976 being a precursor towards the goal of equal rights to women. Also for the further reason that by the amendment of 2005, it was only provided that nothing contained in sub-section (1) of Section 6 of Act 30/1956 shall affect or invalidate any disposition or alienation including any partition or testamentary disposition of property which had taken place before the 20th day of December, 2004. The joint holding (coparcenary property), if at all, ceased to exist on the coming into force of Act 30/1976, i.e., 1.12.1976.
In view of the above findings, this Court is of the opinion that there is no merit in the Second Appeal as also the Cross Objection. They are, accordingly, dismissed. The parties shall suffer their costs.
Sd/-
K. Vinod Chandran, Judge vku/-
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