Kerala High Court
K.K. Thankappan And Ors., Etc. vs K.S. Jayan And Ors. Etc. on 26 November, 2002
Equivalent citations: AIR2003KER114, AIR 2003 KERALA 114
Author: K. Padmanabhan Nair
Bench: K. Padmanabhan Nair
JUDGMENT Padmanabhan Nair, J.
1. All these four appeals arise from a common judgment passed by the II Additional Subordinate Judge, Ernakulam in O. S. 643 of 1983 and connected suits. 11 suits were consolidated and tried together by the learned II Additional Subordinate Judge, Ernakulam. In one suit a preliminary decree was passed. 4 Suits were dismissed. 6 suits were decreed. A. S. 13 of 1989 is filed by defendants^ to 7 and 9 to 11 in O. S. 643 of 1983. A. S. 98 of 1989 is filed by the plaintiff in O. S. 646 of 1983. A. S. 503 of .1990 is filed by the plaintiff in O. S. 413 of 1984. The appellants in all the three appeals are same persons. The learned II Additional Subordinate Judge treated O. S. 643 of 1983 as the leading case and evidence was recorded in that case. Since these appeals arise from a common judgment, these appeals are also heard and disposed of by a common judgment.
2. A. S. 13 of 1989 : This appeal is filed by defendants 5 to 7 and 9 to 11 in O. S. 643 of 1983, a suit for the administration of the estate of deceased K. K. Majeendran and deceased T. K. Omana. Respondents 1 to 3 filed the suit for the relief of administration of the estate of deceased Majeendran. who died on 9-10-1981 due to gun shoot injuries and late T. K. Omana, who died on 15-10-1983 and for other reliefs.
3. Respondents 1 and 2 and 4 to 6 are the children of deceased Omana, D/o. Thuruthil Kannukutty. 3rd respondent is her brother. Respondents 1 and 2 and 4 to 6 are children born to late Smt. T. K. Omana through Sri K. G. Sadanandan who had married Omana. According to the plaintiffs, Omana divorced K. G. Sadanandan on 6-4-1973 and married K. K. Majeendran on 8-4-1973 "in accordance with the custom prevailing in the community" and thereafter they were living together as man and wife. She had no children through Majeendran. Majeendran died on 9-10-1981. It is averred that all his assets were inherited by Omana, his widow. The further case is that Omana executed a Will on 9-2-1982 and it was deposited in accordance with law, with the District Registrar, Ernakulam. Smt. Omana died on 15-10-1983. After the death of Omana, the cover was opened and the Will registered. According to the plaintiffs, all the assets belonging to Omana were bequeathed to respondents 1, 2 and 4 to 6, who are her children through her first husband, and also to 3rd respondent, who is her brother. It is also averred that the 7th respondent in the appeal, who is the 4th defendant in the suit, was appointed as an Executor under, the Will executed by late Omana. According to the plaintiffs, that is the true, valid and last Will executed by Omana. The appellants and 8th defendant in the suit are the brothers and sisters of deceased Majeendran. The case of the plaintiffs is that subsequent to the of Omana, the appellants came to the building situated in plaint A schedule items 1 and 2 as visitors, but they have no manner of right or interest in any of the assets left by Majeendran and they are impleaded only to avoid obstruction in execution. It is also averred that defendants 9 and 10 had filed a suit as O. S. 890 of 1983 in the Munsiff s Court, Ernakulam against the 7th respondent to restrain him from claiming some rights over the assets of Majeendran. It is further averred that since Omana is the widow of Majeendran, she alone is the sole heir who is entitled to inherit the assets of deceased Majeendran and his brothers and sisters will not get any right over the assets of Majeendran. It is further averred that item Nos. 1 and 2 in plaint A schedule was purchased by Majeendran and Omana on 16-11-1977. Item No. 3 in plaint A schedule is plot No. 22 situated at Thottakkattukara, allotted to Majeendran by the G. C. D. A. in pursuance of the Housing Scheme. In item No. 4 Majeendran had 1/7th share which, according to the plaintiffs, devolved upon Omana. The plaint B schedules, according to the plaintiffs, are outstandings to be collected from the debtors of Majeendran. Plaint C schedule are items of movables which, according to the plaintiffs, belong to Majeendran and Omana together which was inherited by Omana. It is averred that the lorries and autorickshaws described in plaint C schedule are in the possession of the 7th respondent. Plaint D schedule items are stated to be the debts left by Majeendran and Omana as far as they are known to the plaintiffs. It is further alleged that there are heavy debts payable by Majeendran and Omana and there are also assets left by them. It is further averred that the plaintiffs and defendants 1 to 3 are the sole legatees and sharers of the properties and the plaintiffs are entitled to 3 out of 6 shares. It is further alleged that the sharers are entitled to get their share after the discharge of the debt due from the estate. It is averred that since some of the items kept in items 1 and 2 in plaint A schedule are attached in some suits filed by the creditors, it has become impossible to effect any partition or to discharge the debts. It is necessary to ascertain and collect the movables and immovables of the deceased and also binding debts. It is averred that it may be necessary to sell certain properties through Court to discharge the binding debts. According to the plaintiffs, it is necessary to appoint a Receiver to take steps to realise the amounts due to deceased Majeedran and only on ascertainment and collection of the debts, there can be the distribution of the residue among the legatees. For that purpose, it was alleged that a suit for administration of estate by Court has become necessary. Hence, the suit for a decree of administration of the estate left by deceased K. K. Majeendran and T. K. Omana for ascertainment and collection of the assets, realisation of the outstandings, discharge of the debts and for distribution of the residue among the legatees and sharers of deceased T. K. Omana.
4. The respondents 4 and 5 did not file any written statement.
5. 6th respondent filed a written statement accepting the averments in the plaint, but making a further contention that apart from the properties scheduled in the plaint, there are other properties which were misappropriate by the 7th respondent, who is the Executor appointed under the Will. So, it was prayed that the Executor under the Will may be directed to account the properties owned and held by Majeendran which he had misappropriated and then pass appropriate orders.
6. The appellants who are the main contesting defendants, i.e. defendants 5 to 7 and 9 to 11, filed written statement disputing all the averments in the plaint. It was contended that the suit is speculative in nature and not supported by any bona fides. It was contended that there was no marriage in any form known to law or custom between K. K. Majeendran and T. K. Omana. The averment that Majeendran married Omana on 8-4-1973 in accordance with the custom prevailing in the community was denied as false. But, it is admitted that Majeendran and Omana lived together under the same roof which, according to the appellants, will not confer the status of a widow to Omana or her children to succeed the estate of Majeendran. It was contended that since Omana did not inherit any of the assets Majeendran, the terms of the Will cannot in any way affect the properties of late Majeendran. It was also contended that there was no valid Will and it was not validly executed by late Omana, It was contended that some of the appellants are residing in the building in items 1 and 2 of plaint A schedule and they are not visitors. It was contended that appellants are the sole legal heirs of deceased Majeendran as there was no valid marriage between Majeendran and Omana and the appellants had to file suit when respondents 1 to 3 along with 7th respondent exerted political influence and used the police to infringe the rights of the appellants. The averment that Omana was the sole heir of Majeendran is denied. The averment that the suit properties were joint acquisition of Omana and Majeendran was denied. It was contended that all those properties were acquired by Majeendran exclusively and no funds of Omana were utilised. The plot was allotted by G. C. D. A. to Omana and Majeendran is denied. The averment that certain amounts were due to Majeendran from M/s Suri Films and M/s F. A. C. T. is admitted. The averment that plaint C schedule movables belonged to Majeendran and Omana is denied. It is contended that all those articles exclusively belonged to Majeendran. It was contended that the appellants are not aware of any debts incurred by Majeendran. The allegation that there are heavy debts to be paid by Majeendran is denied. It is contended that respondents 1 to 6 have no right to administer the properties as they have no right over the properties. It is contended that there is no need to administer the properties as the appellants are capable of looking after the properties left my Majeendran. Hence, they prayed for a dismissal of the suit.
7. The 12th defendant in the suit filed a written statement contending that the suit is not maintainable. It was contended that T. K. Omana was not the legal heir of Majeendran. It is contended that she never married to Majeendran and she was not entitled to succeed to the assets of Majeendran as his widow. It is also very specifically contended that there was no valid divorce took place between late Smt. Omana and her husband K. G. Sadanandan. It was admitted that Majeendran entered into an agreement with the 12th defendant regarding the distribution of the film by name "Sambhavam" making the 12th defendant believe that Majeendran had obtained the negative rights of the film. It was contended that Majeendran received Rs. 1,00,000/-from the 12th defendant for the purpose of production of that film and subsequently he advanced another Rs. 6,00,000/- also. According to the 12th defendant, no amount was due from him to Majeendran, but amounts were due to him from Majeendran. Hence, he prayed for dismissal of the suit.
8. The 13th defendant filed a written statement contending that the suit is not maintainable. It is admitted that the firm by name "M/s V. M. Transports" wherein Majeendran and 4th defendant were partners were having transporting contract with the 13th defendant. It is also admitted that an amount of Rs. 1,00,022.56 is outstanding due to the firm. But, It was contended that after the death of Majeendran the firm was dissolved. It was contended that the 13th defendant was having no transaction with the reconstituted firm to which Omana was the partner. It was contended that the 13th defendant was ready to pay-off the amount, but in view of the orders passed in I. A. 1906 of 1983 in O. S. 252 of 1983 filed by M/s Mejestic Finance, Ernakulam, the amount was not paid. So, the 13th defendant also prayed for the dismissal of the suit.
9. The 14th defendant also filed a written statement contending that the 14th defendant is not a debtor. It is admitted that the firm was conducting several Chitties registered at Ernakulam as well as at Bangalore. It is also admitted that Majeendran joined some of the Chitttes and received prize amounts. The averment that Majeendran and Omana were the subscribers is denied. It is averred that Omana was not a subscriber of any chitty conducted by defendant No. 14. It is also averred that V. M. Transport has also not joined the Chit-ties conducted by the 14th defendant. It is contended that in the absence of any material giving the details of the Chitties it is not possible to state whether any amount was due to Majeendran. It was also contended that the 14th defendant had received notice from some of the rival heirs to the estate of Majeendran after his death not to disburse any amount to Omana, if any amount is due to Majeendran.
10. The 15th defendant had contended that the firm V. M. Transport, K. K. Majeendran, M. S. Venugopala Pillai along with K. S. Ramakrishnan and A. C. Mohanan together had availed various loans from the 15th defendant executing documents. It is contended that after the death of Majeendran, his widow Omana became the partner in the place of Majeendran and she had also jointly and severally made liable along with others for the amounts due to the 15th defendant. It was contended that 15th defendant had filed three suits and all the three suits are pending.
11. The 16th defendant filed a written statement contending that the suit is not maintainable. It was contended that the firm by name M/s Veeyam Transport was a subscriber to one full class ticket and the 27th day kuri conducted from the Bangalore Branch of the 16th defendant company. It was contended that the said kuri was auctioned on 27-8-1980 and the prize amount was paid to the subscriber on executing proper security. It was contended that the 16th defendant had filed a suit as O. S. 286 of 1983 for realisation of the amount from the legal heirs of Majeendran and the same is pending.
12. The 17th defendant had filed a written statement contended that the suit is not maintainable. It was contended that the 4th defendant along with Majeendran availed a loan of Rs. 1,00,000/- undertaking to pay back the same in ten equal monthly instalments. It was contended that since there was default in repayment, the said defendant has filed O. S. 350 of 1982 and the same is pending.
13. The 18th defendant filed a written statement contending that he has filed a suit as O. S. 595 of 1983 before the Sub-Court for realisation of an amount of Rs. 50,000/-which was borrowed by late Majeendran and Venugopalan executing a promissory note.
14. The 19th defendant filed a written statement contending that there was no dealings between the 19th defendant and decreased Majeendran or Omana. It was contended that 3rd plaintiff along with one Venugopala Pillai borrowed Rs. 80,000/- for their personal business and they had executed a promissory note and re-paid an amount of Rs. 20,000/-. It is further contended that since they failed to repay the amount, the 19th defendant filed a suit as O. S. 58 of 1994 before the Sub-Court, Parur and the same is pending. It is further contended that the estate of Majeendran or Omana is not answerable to the amounts due to the 19th defendant from the 3rd plaintiff and Venugopala Pillai and it was borrowed by them in their individual capacity.
15. The 20th defendant-Bank filed a written statement contending that amounts are borrowed by Majeendran from the 20th defendant on executing necessary documents. It is contended that the amount was not paid and the Bank is entitled to get back those amounts from the assets of deceased Majeendran.
16. The 21st defendant filed a written statement contending that he is a Receiver appointed by the Court and he is not having any personal interest in the settlement of the claims.
17. This suit was tried along with other suits. The learned sub Judge found that the suit is maintainable, there was divorce between Sadanandan and Omana and she was married to Majeendran, after the death of Majeendran, Omana inherited the estate of Majeendran as his widow and the Will executed by Omana is valid and genuine and hence respondents 1 to 6 are entitled to succeed the estate of deceased Omana. The suit was decreed.
18. The following points arise for consideration in this appeal :--
(i) Whether the suit as framed is maintainable.
(ii) Whether there was any need to administer the estate of late Majeendran and late Omana through a civil Court.
(iii) Whether the case of the plaintiffs that Omana divorced K. G. Sadanandan on 6-4-1973 by executing a registered document is proved.
(iv) Whether the case of the plaintiffs that late Sri Majeendran married late Smt. Omana on 8-4-1973 in accordance with the custom prevailing in the community is proved.
(v) whether late Smt. Omana is entitled to succeed the estate left by late Majeendran as his widow.
(vi) Whether the respondents 1 to 6 are entitled to claim any right over the properties left by late Majeendran on the strength of the Will executed by smt. Omana as the widow of Majeendran.
(vii) Whether the preliminary decree passed in the suit is correct.
19. A. S. 98 of 1989: This appeal arises from the judgment passed in O. S. 646 of 1983 dismissing that suit filed by the appellants against the 4th respondent. The appellants in the suit are the appellants in A. S. 13 of 1983 also. The appellants 1 to 6 filed the suit against the defendant for rendition of accounts of the firm V. M. Transports. In the plaint it is averred that the plaintiffs are the sisters and brothers of late K. K. Majeedran, who was doing business in and around Ernakulam. It was contended that Majeendran along with the defendant in the suit formed a partnership by name V. M. Transports for the purpose of running lorry transport service as carriers of goods.
It was contended that Majeendran died on 9-10-1981 and at that time Majeendran was the Managing Partner of the firm and consequent to the death of one of the partners, the firm stood automatically dissolved. It was contended that the defendant, with an intention to exploit the benefit of the partnership has taken in one Omana who was staying with Majeendran and purported to have reconstituted the firm using the share capital of late Majeendran as the contribution of Omana. It was contended that such a re-constitution of the firm is illegal as there was no partnership legally in existence from the date of death of Majeendran, which could be reconstituted or rejuvenated. It was contended that Omana also died on 4-9-1983 and even after her death the firm was doing business. It was contended that after the death of Majeendran, the defendant sold away four lorries which belonged to the firm and appropriated the entire amount. It was contended that the plaintiffs being the sole legal heirs of Majeendran are entitled to claim the benefits of the partnership which stood dissolved on the death of Majeendran. Hence the suit for rendition of accounts and for other reliefs.
20. The defendant filed a written statement contending that the suit is an experimental one and with malicious intention. It is admitted that there was a partnership between Majeendran and the defendant as V. M. Transports. But, it was contended that there was no goodwill for the partnership and Majeendran married Omana on 8-4-1973 in accordance with the prevailing custom and they were living together as man and wife till 9-10-1981, the date on which Majeendran was shot dead. It was contended that Omana had no children through Majeendran, but she had five children through her first divorced husband and after the death of Majeendran, she was the sole heir and she came into possession of all assets of Majeendran and the plaintiffs are not the legal heirs of Majeendran and they have no right, interest or claim over the assets left behind by Majeendran. It was contended that as sole legal heir to Majeendran, Omana and the defendant entered into a partnership and continued the business. It is contended that at the time of death of Majeendran large amounts were due to the South Indian Bank the liability was taken over by the defendant and the defend-
ant had mortgaged his properties to the Bank and the liability is more than Rs. 5,00,000/-. It was contended that the defendant did not misappropriate any amount from the partnership. So, he prayed for the dismissal of the suit.
21. The suit was tried along with O. S. 643 of 1983. The trial court found that since the plaintiffs are not the legal heirs of Majeendran, they are not entitled to any relief and dismissed the suit. The question whether there is a reconstitution of the partnership and whether the defendant is possession of the assets of the firm V. M. Transports, etc. were not considered as the plaintiffs have no right as the legal heirs of Majeendran.
22. A. S. 31 of 1990 : This appeal arises from a decree passed by the Court below dismissing O. S. 253 of 1983 filed by M/s Majestic Finance, a partnership firm registered and engaged in money lending business against M/s V. M. Transports and others. It is alleged that the first defendant is a firm doing transporting business and lorry service. It is averred that on 27-7-1981 the Managing Partner of the first defendant firm on behalf of the firm and on behalf of all other partners of the firm availed a loan of Rs. 70,000/- from the plaintiff. The managing partner of the firm and defendants 2 and 3 executed a promissory note for Rs. 70,000/- in favour of the plaintiff promising to pay on demand the same amount with interest at 20% per annum. It was contended that the 4th and 5th defendants were the partners. It is averred that towards the liability, an amount of Rs. 34,300/- was paid. There was a balance of Rs. 35,700/- with interest is due from the defendants to the plaintiff. It was averred that in spite of repeated requests, the defendants failed to repay the amount. Hence, notice was issued to the defendants on 2-12-1983. No reply was sent to that notice. No amount was also paid. It was contended that the plaintiff is entitled to get interest at the rate of 20% per annum. The 5th defendant died during the pendency of the suit. Her children were impleaded as the additional defendants in the suit.
23. The defendants 1, 4, 6 and 8 to 10 filed a joint written statement. It was contended there was no Managing Partner for the first defendant firm and no loan was availed by the first defendant firm and no promissory note was also executed. It was contended that there was no cause of action against defendants 1 and 4 to 10 and they are unnecessary parties. It was contended that the dates on which re-payments were made purposely suppressed. The averment that defendants have agreed to pay 20% interest was also denied. Hence, they prayed for the dismissal of the suit.
24. Defendants 2 and 3 filed a joint written statement contending that the suit is not maintainable. It was contended that the loan was availed by the first defendant firm and the firm is liable to account to the plaintiff. It was contended that the plaintiffs paid the amount directly to the first defendant firm and not to defendants 2 and 3. It was contended that defendants 2 and 3 signed the document due to the pressure of the plaintiff as well as at the instance of the other defendants. But there was a specific understanding between the plaintiff and other defendant that the amount will be realised from the first defendant firm alone. It was contended that the rate of interest claimed is excessive. So, they also prayed for the dismissal of the suit.
25. This suit was also tried along with the other suits. The learned Subordinate Judge found that there is material alteration in the instrument. Issue Nos. 2 to 6 in O. S. 253 of 1983 tried along with issues 1 to 4 in O. S. 252 of 1983 filed by the same plaintiff against the very same defendants. It was found that there was material alterations in the two promissory notes produced as Exhibits B20 and B23 by the plaintiff in those suits and hence, the plaintiff was not entitled to any relief and recover the amount due under the promissory notes. Thereafter, the learned Subordinate Judge proceeded to consider whether the plaintiff is entitled to a decree on the original cause of action. It was found that the plaintiff is not entitled to get any relief as prayed for in the respective suits even based on the original cause of action and dismissal both the suits. The appeal filed by the plaintiff as A. S. 46 of 1990 against the decree passed in O. S. 252 of 1983 was dismissed by this Court on 13-6-1990 confirming the decree passed by the Court below.
26. The following points arise for consideration in this case :
(i) Whether the finding of the learned subordinate Judge that there are material alteration in the promissory note is correct.
(ii) Whether the appellant is entitled to a decree based on the original cause of action is also correct.
27. A. S. 503 of 1990 : This appeal arises from the judgment and decree passed by the Court below in O. S. 413 of 1984 dismissing the same. That suit was also tried along with O. S. 643 of 1983 and connected suits. The appellants filed the suit alleging that they are the legal heirs of their brother Majeendran, who died on 9-10-1981, It was contended that at the time of death, Majeendran was unmarried and issueless. It was averred that Majeendran had acquired substantial properties by doing business. It was contended that the father of the defendant was a very wealthy and influential man doing business in number of fields, including abkari business. He was very friendly with late Majeendran and even in business matters the father of the first defendant was advising late Majeendran. It was contended that though Majeendran was unmarried, Omana the wife of one Sadanandan was staying with him, separated from her husband Sadanandan. It was averred that she started living with Majeendran staying herself as the wife of Majeendran, through there was no legal marriage either customary or otherwise known to law between Omana and Majeendran. It was contended that after the death of Majeendran, the first defendant's father exerted influence on Omana and on 6-11-1981 Omana executed a registered document purporting to convey the rights in respect of the suit property in favour of the minor first defendant. It was contended that the properties originally belonged to Maheendran and Omana was not the widow of Majeendran and so the document executed by her is a void one and the possession of the first defendant is that of a trespasser. Hence, the suit for declaration that the sale deed executed is illegal, sham and fraudulent one not binding on the plaintiffs and for mandatory injunction directing the first defendant to remove the construction made by him in the suit property and directing redelivery of the suit properties to the plaintiffs.
28. The first defendant filed a written statement contending that the suit is not maintainable and barred by limitation. It was contended that the suit is bad for mis-joinder and non-joinder of necessary parties. It was contended that the plaintiffs are not the legal heirs of Majeendran. it was contended that Majeendran married Omana and was living with her. The averment that Omana was the wife of Sadanandan was denied. It was contended that the suit property was purchased by Majeendran using the money advanced by the father of the minor first defendant as loan and after the death of Majeendran, his widow executed a sale deed in favour of the first defendant. It was contended that the property was purchased with the money advanced by the father of the first defendant and he was in actual physical possession of the same. It was contended that the first defendant is the absolute owner of the property. Hence, he prayed for a dismissal of the suit.
29. This suit was also tried along with O. S. 643 of 1983. In view of the finding that the plaintiffs are not the legal heirs and they did not succeed the estate of the deceased Majeendran. the suit was dismissed.
30. The following points arise for consideration In the appeal :--
(i) Whether the appellants are entitled to succeed the estate of deceased Majeendran.
(ii) Whether dereased Omana was the widow of Majeendran.
(iii) Whether the sale deed executed by Omana in favour of the minor first respondent is liable to be set aside.
(iv) Whether the appellants are entitled to claim possession of those properties.
31. As already stated, these suits were tried jointly along with other suits. O. S. 252 of 1983, 253 of 1983, 646 of 1983 and 413 of 1984 were dismissed. O. S. 643 of 1983 filed for administration was decreed. O. S. Nos. 256 of 1983, 286 of 1983, 595 of 1983, 598 of 1983 - suits for money filed by other persons - were decreed. O. S. 97 of 1984 filed by a person for a decree of injunction restraining the defendants in the suit from forcibly evicting them from the suit property was also decreed. The contesting defendants in O. S. 643 of 1983, who are the plaintiffs in O. S. Nos. 646 of 1983 and 413 of 1984 have filed A. S. 13 of 1989 challenging the decree passed in O. S. 643 of 1983 and A. S. 98 of 1989 challenging the decree passed in O. S. 643 of 1983 and A. S. 503 of 1990 challenging the decree passed in O. S. 413 of 1984. The plaintiffs in O. S. 253 of 1983 filed A. S. 31 of 1990. Since the four appeals arise from the common judgment, these appeals are also heard and disposed of by this common judgment. We shall first consider how far O. S. 643 of 1983, from which A. S. 13 of 1989 arises, as framed is maintainable.
32. A. S. 13 of 1989 : Points 1 to 7 :--The suit O. S. 643 of 1983 is one for administration of assets of two deceased persons. The main contentions raised are that firstly a single suit for administration of estate of two deceased persons is not maintainable. Secondly it is contended that in view of the provisions contained in the Indian Succession Act which provides for a speedy and summary remedy of granting letters of administration or probate a civil suit for administration is not maintainable. Thirdly, it is contended that even according to the plaintiffs deceased Omana had left a will in which the 4th defendant was appointed as an executor. Since there is a sole executor appointed under the Will, a suit by the legatees alone as plaintiffs is not maintainable. Fourthly, it is contended that the real intention of the plaintiffs, especially that of the 3rd plaintiff and the 4th defendant, is to get the status of Omana as the widow of deceased Majeendran and her title over the estate left behind by Majeendran established and not for administering the estate.
33. The learned Subordinate Judge relying on the decisions reported in Mt. Amir Bi v. Abdul Rahim Sahib, AIR 1928 Madras 760 and in Nazarali v. Fazlanbibi (AIR 1975 Gujarat 81) found that the suit as framed is maintainable. The learned counsel appearing for the appellants has vehemently argued that the principle laid down in Mt. Amir Bi's case (supra) or in Nazarali's case (supra) has no application to the facts of this case. It is argued that in both these cases the main question arose for consideration were regarding the maintainability of a suit filed by a legal heir of a deceased Muslim under the provisions of the Indian Succession Act. So, first of all we will have to consider what exactly is the scope of an administration suit.
34. The suit for administration is a suit filed for administration of an estate of a de-
ceased person. It is filed under Section 9 of the Code of Civil Procedure. It is true that there is no specific provision either in the Code of Civil Procedure or in the Indian Succession Act or in the personal law relating to parties regarding the Civil suit filed for the purpose of administration of estate of a deceased. The only guideline we get in such cases is the provisions contained in order XX Rule 13 and the model form given in Appendix A. But, the provisions contained in Order XX Rule 13 are not of any assistance in finding out the circumstances under which a person can sue for administration. Order XX Rule 13 provides for the decrees to be passed in a suit for administration. Form Nos. 41 and 43 in Appendix A deals with forms of pleadings in a suit for administration. Form Nos. 17 and 18 in appendix D deals with the forms of decrees to be prepared in a suit for administration. It does not state as to who can file a suit for administration. But, it is reasonable to infer that a creditor is one of the persons who is entitled to get a decree for administration. The next of kin of deceased person is also entitled to file a suit for administration, provided a man died intestate. In such a suit, it may be necessary to take into account the estate of the deceased, A reading of the provisions contained in order XX Rule 13 also shows that a decree for administration is a discretionary relief and no one is entitled to get such a relief as of right. A division Bench of the Karnataka High Court in the decision reported in Gowramma v. Venkataswamy AIR 1960 Mysore 53 held that a creditor can sue for administration and no person is entitled to get a relief as of right. In Nazarali's case (AIR 1975 Gujarat 81) (supra) relied on by the learned Sub Judge it is held as follows:--
"The next of the kin of a deceased person who has died intestate can file a suit for administration where it is necessary to take an account of the estate of the deceased...................."
In this case, the suit is not filed by the creditors of the deceased. In fact, some suits tried along with the suit shows that the creditors of the deceased had filed separate suits for realisation of the amounts due to them. The plaintiffs have no case that apart from those creditors there are any other persons who are entitled to get money from the estate of the deceased Majeendran. In this connection, It is very pertinent to note that the 13th defendant in its written statement has specifically contended that it was doing business with a firm to which Majeendran and 4th defendant were partners and after the death of Majeendran, the firm was dissolved and thereafter the 13th defendant had not recognised the so called firm which was reconstituted by the 4th defendant with deceased Omana as a partner and did not contract any business of transporting with that firm with Omana as a partner. It is also contended that they are always prepared to pay money to those persons who are entitled to receive the money due the erstwhile firm V. M. Transports, but unable to pay the money in view of the injunction order passed by the Sub Court in I. A. 1906 of 1983 in O. S. 252 of 1983 filed by Majestic Finance. The 14th defendant had very specifically contended that Majeendran alone was the subscriber to the Chitties and Omana never joined as a subscriber to the Chitties. It is also very specifically contended that V. M. Transports also has not joined the chitties conducted by the 14th defendant. It Is also to be noted that 14th defendant had received notice from the rival claimants who staked a claim over the estate of Majeendran. According to the 16th defendant, only an amount of Rs. 8,575/- was due to them. The contention of the 16th defendant shows that the firm by name V. M. Transports was the subscriber to the chitties. It is admitted that the suit was filed against the partners of the firm and also the legal heirs of deceased Majeendran for realisation of the amount. The 17th defendant contended that some amounts were borrowed by Majeendran along with 4th defendant hypothecating a vehicle and the vehicle belonging to Majeendran was given as security. It was specifically contended that the assets of the deceased Majeendran are liable for the amounts due. The 18th defendant also contended that the money was borrowed Majeendran and Venugopal Pillai on executing a promissory note and they are liable to repay the amount. The contention of the 19th defendant was that there was no transaction between the 19th defendant and Majeendran or Omana, but there was a transaction between the 19th defendant and third plaintiff, who was the brother of deceased Omana. It was contended that the 3rd plaintiff along with Venugopala Pillai borrowed the money and the estate of Majeendran is not answerable to the amounts due to the 19th defendant from the 3rd plaintiff and Venugopal Pillai. The contention of the 20th defendant Bank is also that it was Majeendran who borrowed the amounts from the Bank. So, the contention raised by the creditors of the deceased Majeendran shows that apart from 15th defendant who has filed O. S. Nos. 252, 253 and 256 of 1983, no other defendants are staking any claim over the estate of deceased Omana. The 19th defendant alone admitted that after the death of Majeendran, Omana became partner of V. M. Transports. The 14th defendant is stated to be one of the debtors. He is also not admitting that the firm is liable to pay any amount. So, a reading of the written statements filed by various creditors and debtors will show that they were having transactions with Majeendran alone and most of them are not staking any claim against the estate of deceased Omana. Infact, a reading of the written statement of 19th defendant shows that he is a creditor of 3rd plaintiff and 4th defendant in their personal capacity and even he has been arrayed as a defendant on the pretext that he is liable to get some amounts from the estate of deceased Majeendran and Omana. Going by the pleadings, there is no need to administer the estate of the deceased Omana.
35. In O. S. 643 of 1983, it is admitted by the plaintiffs that Majeendran died on 9-10-1981 due to gun shot injuries. Omana died on 15-10-1983. According to the plaintiffs, Omana executed a Will on 9-2-1982 and It was deposited with the District Registrar, Ernakulam in accordance with law. The evidence adduced in this case shows that on 22-10-1983, that is 7 days after the death of Omana, the 3rd plaintiff rushed to the District Registrar's Office with a death certificate and got the cover opened and the Will registered as document No. 122/83 In Book No. 3. The Will is marked as Exhibit X2 in evidence. It is dated 9-2-1982. As per the disputed Will, there is a provision to pay Rs. 6,000/- to one Leela and Rs. 2,000/- to Unni. The rest of the properties were bequeathed in favour of her five children and one of her brothers who is arrayed as 3rd plaintiff in the suit in equal shares. There is no mention of any debts either due to or due from Majeendran or from Omana in Exhibit X2. In Exhibit X2 Will, the 4th defendant is appointed as the executor. It is very specifically stated that he is one of the closest friends of deceased Majeendran and as a business partner of deceased Omana. It is also very pertinent to note that one of the attestors to the Will is an Advocate, who was examined as P. W. 2 in this case. In fact, the evidence also shows that he had filed a suit for 17th defendant as O. S. 598 of 1983 and he was appearing for him who was arrayed as 17th defendant in the suit. The counsel appearing for one of the defendants in the suit was examined as a witness to prove the Will relied on by the plaintiffs in the case. It is also very pertinent to note that the suit was filed on 8-12-1983, on the 44th day after the death of Omana. All these aspects shows that the persons who filed the suit were actually waiting for the death of Omana to rush to the Court with a suit of this nature.
36. The parties are Hindus. After the commencement of the Indian Succession Act in 1925, any Hindu can file a suit for letters of administration or probate. Those are speedy and summary remedies provided under the statute in which the genuineness of Will is to be decided. As already stated, in the Will defendant No. 4 is named as the executor. It is very specifically stated that he was the closest friend of deceased Majeendran and was a business partner. Under the provisions of the Indian Succession Act when there is a named executor in the Will, it is for the executor to file a suit for probate. Section 222 of the Indian Succession Act provides that probate shall be granted only to the executor appointed under the Will. Section 229 of the Indian Succession Act provides that when a person appointed an executor has not renounced the executorship, letters of administration shall not be granted to any other person until a citation has been issued calling upon the executor to accept or renounce his executorship. Section 230 of the Succession act provides the form and effect of renunciation of executorship. It provides that renunciation may be made orally in the presence of a Judge, or by a writing signed by the person renouncing. Section 231 provides the procedure where the executor renounces or falls to accept the executorship within the time limit. It provides that if the executor renounces or fails to accept an executor-ship within the time limit for the acceptance or refusal thereof, the Will may be proved and letters of administration, with a copy of the Will annexed, may be granted to the person who would be entitled to administration in case of intestacy. There are specific provisions in the Indian Succession Act to deal with a situation when the executor appointed under the Will fails to discharge his duty. It is to be noted that normally a testator appoints a person on whom he has confidence as executor. A duty is cast upon the Court to respect the intention of the testator. So, the only irresistible conclusion possible is that, a suit for administration can be filed by the creditors of the deceased. Next of kin of the deceased can also file such a suit if the deceased dies intestate, but if the deceased leaves a Will in which an executor is appointed, the legatees can be allowed to prosecute a suit for administration only if they plead and prove exceptional circumstances. The plaintiff should state the reason for not resorting to the summary remedy provided under the Succession Act.
37. In this case, as already stated the propounder died on 15-10-1983 and the Will was registered on 22-10-1983 and the suit was filed on 8-12-1983. Neither the plaintiffs nor the executor who is impleaded in the suit as 4th defendant has got a case that there was any compliance with the provisions contained in Section 229 to 231 of the Indian Succession Act. It is also not stated why the executor cannot approach the District Court under the provisions of the Indian Succession Act. All that is stated in the plaint is that there are heavy debts payable by the Majeendran and Omana. In paragraph 1 of the plaint itself it is admitted that 4th defendant is appointed as the executor of the Will. In paragraph 2 it is admitted that after the death of Majeendran, defendants 5 to 11 who are the brothers and sisters of Majeendran are residing in the building in which Majeendran was residing. All that is stated is that they have no manner or right or interest in any of the assets left by Majeendran and they are Impleaded only to avoid obstruction in execution. It is admitted in the plaint itself that defendants 9 and 10 have filed O. S. 890 of 1983 before the Munsiff's Court, Ernakulam against the 4th defendant, who was one of the partners of V. M. Transports and the executor appointed under the Will. In paragraph 7 of the plaint it is stated that as there are heavy debts payable by Majeendran and Omana, and as there are assets left by them, it has become not possible for the legatees to administer the estate and enjoy the same. It is further averred that the sharers are entitled to get their share only after the discharge of the debts due from the estate. According to them, for the above said purpose the administration of the estate through Court is necessary. Of course, there is a vague statement in paragraph 9 of the plaint that the 4th defendant is not able to take possession of the movables. It is very pertinent to note that there is absolutely no averment in the plaint to the effect that the executor failed to take any action to administer the estate of deceased, Omana as desired by Omana in the Will. There is no averment anywhere in the plaint why the executor or the plaintiffs cannot approach the District Court by filing Original Petition for probate or letters of administration. As already stated, barely within six weeks from the date of registration of the Will, the plaintiffs rushed to the Court with the suit. The 4th defendant executor has not filed any written statement. But, he was examined as D. W. 3 in the suit. During chief examination or cross-examination he had not stated as to whether he renounced the executorship. It is seen that during re-examination a statement was elicited from the witness to the effect that he has not done anything in his capacity as executor. P. W. 1, one of the brothers of Omana, is a beneficiary under the Will. He had also not explained as to why a Civil Suit for administration was necessitated. All that was stated by P. W. 1 in chief examination was that some of the debts are disputed and help of the Court is necessary to collect the amounts due to deceased Majeendran and discharge the debts. In chief examination all that is stated is that defendant No. 4 had done nothing as an executor. The need for invoking the powers of the civil Court is stated in paragraph 7 and all that is stated is that it is impossible to effect any partition. Why it has become impossible is not stated, but, from the earlier averments in the plaint itself it is very clear that it was because of the resistance by the appellants who are the brothers and sisters of Majeendran and not because of any other reason. The pleadings and evidence adduced in this case shows that it is a case in which the deceased propounder has executed a Will with a named executor and even without giving time to the executor, three of the legatees had rused to the Civil Court by filing a civil suit for administration. The question to be decided is how far such a suit is maintainable.
38. One of the defendants raised a contention that a single suit for administration of estate of more than one person is not maintainable. A Division Bench of the Assam High Court in Atorjan Bibi v. Sikardar All, AIR 1960 Assam 183 had held that there Is no bar to bring a suit for administration in respect of the assets of more than one person. It was further held that it is a suit of civil nature and its cognizance by the Court has not been expressly or impliedly barred. We also do not find any reason to differ to from the principles laid down in Atorjan Bibi's case (supra).
39. The nature of a suit for administration was considered in Sasi Bhushan bose v. Manindra Chandra, AIR 1918 Calcutta 883 (2). It was held as follows :--
"An Administration suit is in essence for an account and application of the estate of the debtor for the satisfaction of the dues of all the creditors; the whole administration and settlement of the estate are assumed by the Court, the assets are marshalled, and the decree is made for the benefit of all the creditors. Creditors other than the plaintiff may come in under the decree and prove their debts and obtain satisfaction of their demands, equally with the plaintiff in the suit, and under such circumstances, they are treated as parties to the suit. If they decline so to come in they will be excluded from the benefit of the decree, and yet they will, form necessity, be considered as bound by the acts done under the authority of the Court."
It was also held that the creditor of the deceased is entitled to maintain such an action. In Abdeul Rahim v. Lingappa Vaijappa, AIR 1943 Bombay 273. a learned single Judge of the Bombay High Court has also considered the scope of an administration suit. It was held :--
"An administration suit is in essence a suit for an account and application of the estate of a deceased debtor for the satisfaction of the dues of all his creditors. The entire administration and settlement of the estate are assumed by the court. The assets are marshalled and a decree is made for the benefit of all the creditors."
In Shafi-Ul-Nisa v. Fazal-Il-Nisa, AIR 1950 (East) Punjab 276 a Division Bench of the Punjab High Court considered the nature and scope of an administration suit. It was held as follows :--
"In an administration suit where a man dies intestate the Court takes upon itself the function of an executor or an administrator and administers the estate of the deceased, but it is the estate of the deceased which is to be administered and, therefore, if the deceased leaves no estate either because he never had it or because he had transferred the whole of his property to somebody else, there is no estate which the Court can administer. The suit in its essence is one for account and for application of the estate of the deceased for the satisfaction of the debts of all the creditors, and for the benefit of all others who are entitled and the Court marshals the assets and makes such a decree."
It was further held that if the main object of the suit is to consider alienation of a property, a suit for administration is not a proper one. In Shafi-Ul-Nisa's case (AIR 1950 (East) Punjab 276) (supra) the Punjab High Court had held that when a man dies intestate, in the administration suit the Court takes upon itself the function of an executor or an administrator. In this connection it is very pertinent to note that in Nazarali's case (AIR 1975 Gujarat 81) (supra) which was relied on by the Court below also it was held that the next of the kin of the deceased person who has died intestate has a cause of action. In Appu v. Uma Devi Rajan, 1974 Ker LJ 135 a learned single Judge of this Court has also considered the nature of an administration suit. It was held as follows :--
"In the suit for administration of the estate of the deceased the Court is really being requested to assume its management, to take upon itself the functions of an executor or administrator and to administer the estate. The administration of the estate consists of the collection and preservation of assets left by the deceased, payment of debts and legacies, the taking of proper action in respect of adverse claims and after settlement of the claims of creditors and legatees, if any, the final distribution of the residue amongst the heirs or the next of kin.
Hence, one of the basic and essential functions of the Court in an administration suit is to enquire and determine what proper ties and assets the deceased was seized of or entitled to at the time of his death and to take all necessary steps for their realisation from the hands of any accountable party impleaded as a defendant in the suit, in case it be found that he is in possession of as sets belonging to the estate."
In Appu's case the learned single Judge had also considered the principle laid down in Mt. Amir Bi's case AIR 1928 Madras 760. Relying on that principle it was held that the view expressed by the trial Court that certain alienations effected by the second defendant in that suit cannot be considered in the suit for administration is not correct. The facts of Appu's Case (supra) are also relevant. One Sankunni died intestate and the suit was filed by one of his daughters for the administration of the estate. The facts of the case show that Sankunni died leaving two daughters. The elder daughter was married and settled at U.K. Second daughter was only aged about 11 years. The suit was filed by the minor daughter alleging that the second defendant, who is one of the younger brothers of deceased Sankuni, taking advantage of the fact that major daughter is in England and second daughter is only 11 years, misappropriated the assets of Sankunni and effected certain alienations as a de facto legal heir of the deceased Sankunni. In the suit the second defendant raised a contention that since there is a prayer to set aside certain alienations effected by him, Court Fee has to be paid for setting aside the alienation. The question arose for consideration was what exactly is the Court Fee that the plaintiff in that suit was liable to pay. When the question of Court Fee was considered, this Court took a view that the alienations effect by a person in a de facto management is either as an executor de son tort or even an intermeddler. So, in fact when the question involved was title to the property whether a suit for administration is the remedy was not considered in Appu's case (1974 Ker LJ 735) also.
40. The learned Subordinate Judge has relied on the decisions reported in Mt. Amir Bi's case (AIR 1928 Madras 760) (supra) and Nazarali's case (AIR 1975 Gujarat 81) (supra). In Mt. Amir Bi's case (supra) the real question arose for consideration was whether the legal heirs of a Muslim who died intestate can maintain a suit for administration. It was held that when the main purpose of the suit is to determine as to the rightful heir of a deceased person, as administration suit can be filed by one of the heirs to obtain possession of the property wrongly held by another person claiming to be his heir. The principle laid down in that decision was distinguished in Chand Narain v. Ghasi Ram, AIR 1940 Lahore 179. After discussing the principle laid down in Mt. Amir Bi's case (AIR 1928 Madras 760) (supra), it was held that the principle laid down in that decision is not an authority when the main purpose of the suit is to determine as to who is the rightful heir of a deceased person. In Chand Narain's case (supra), it was held as follows :--
"Where a suit is one between rival claimants to the estate of the deceased each one claiming to be her sole heir, such a suit is not a suit for account of any property and for its due administration under the decree of the Court. Hence, an administration suit cannot be filed by one of the heirs to obtain possession of the property wrongfully withheld by another person claiming to be the heir".
It is seen that the decision in Chand Narain's case (AIR 1940 Lahore 179) (supra) was affirmed by a Division Bench of the Lahore High Court in the decision reported in Zamani Begam v. Fazal-Ul-Rahaman, AIR 1943 Lahore 241. It was held that even-though it is open to the Court to consider whether certain alienations were effected by the deceased. Court cannot determine the validity of these alienations in a suit for administration. The principle laid down in Chand Narain's case (AIR 1940 Lahore 179) (supra) was again considered by the Lahore High Court in the decision reported in ., in which it was held as follows:--
The right to institute a suit for administration is distinct from the procedure prescribed by the Code or by any other law for trial of that suit. It would be incorrect to rely too much on Order 20, Rule 13 or the forms of plaints and decrees prescribed in Schedule I of the Code for ascertaining the objects of an administration suit. Order 20 bears the title "judgment and decree" and is devoted to the form in which judgments should be delivered and decrees passed in particular cases. The forms are not exhaustive and Rule 13 itself enables the Court to give any direction that it thinks fit. "Administration" means management and disposal of an estate, whether it be that of a deceased person or of any other person. The power to entertain an administration suit is given not by Order 20, Rule 13 but by Section 9 of the Code and if a suit for the administration of an estate is not barred expressly or impliedly by any provision of law, it must be entertained. It would appear that an administration suit need not necessarily relate to the estate of a deceased person".
In Mahbub Alam's case (AIR 1950 Lahore 12) (supra), the Division Bench considered the decision reported in Mt. Amir Bi's case (AIR 1928 Mad 760J (supra) and also the decision reported in Chand Narain's case (AIR 1940 Lahore 179) (supra). A reading of all the three decisions show that the real issue arose for consideration was whether how far one of the co-sharers of a deceased Muslim is entitled to bring a suit for administration. In Mahbub Alam's case (AIR 1950 Lahore 12) (supra), it was held that if there is any estate to be administered by any form (excluding, of course, cases relating purely and obviously to rival claims), an administration suit would not only be competent, but often desirable. So, the principle laid down in Mt. Amir Bi's case (AIR 1928 Mad 760) (supra) is not an authority for the proposition that when there are cases relating obviously to rival claims, administration suit is the proper one. The Court has relied on the decision in Nazarali's case (AIR 1975 Guj 81) (supra) to hold that the suit was maintainable. That was also a case in respect of the properties left by a deceased Muslim. As already stated, in that case also the Court has taken a view that if the deceased died intestate, suit for administration can be filed. It was further held that the scope of an administration suit clearly is one to collect the assets of the deceased to pay off the debts and other legal charges. It is further held that in a suit for administration a complete enquiry is to be made as to what property the deceased was possessed or entitled at the time of his death. Further it was also held that such a suit is governed by the provisions of Section 9 and not Order XX. Rule 13 of the Code of Civil Procedure. It was further held that if the main purpose of the suit is not to determine as to who is the rightly claimant but to administer the estate of the deceased and for deciding that question, the title can also be incidentally considered and that will not alter the nature of the suit. It was held as follows:--
"If it were so, in every administration suit, a defendant would raise a plea covering a question of title or some other complicated question and can urge that the suit as framed, is not competent. This would defeat the very purpose of an administration suit and would lead to avoidable multiplicity of judicial proceedings between the same parties, a situation which cannot be allowed to arise in such a suit, the main purpose of the suit being not to determine as to who is the rightful heir of the deceased, but to administer the estate of the deceased, if, for that purpose, the questions of title have incidentally to be gone into, that would certainly be within the purview of an administration action. The question as to title of the property can be appropriately considered in an administration suit."
Again in paragraph 13 it was held that in a suit for administration, the deeds obtained by fraud of the executor can be investigated as ancillary to an order of administration of estate. So, the principle laid down in Nazarali's case (AIR 1975 Guj 81) (supra) is also not an authority for the proposition that when the real issue established is rival claims, suit for administration is the remedy. On the other hand, a reading of the decision in Mt. Amir Bi's case (AIR 1928 Mad 760) (supra) as well as Nazarali's case (supra) makes it very clear that such a suit is maintainable only when deceased died intestate. The position of law in this aspect was considered in an earlier decision of the Calcutta High Court reported in Parsania v. Hari Charan Dass, (1912) 16 Ind Cas 588. In that decision, a Division Bench of the Calcutta High Court held as follows:--
"Where the object of the litigation appears to be not to administer the estate left upon the death of the deceased, but merely to obtain a declaration of heirship so as to fortify the position of the successful party in a regular suit that may be instituted, no grant of letter of administration ought to be made."
As already stated, that question was again considered in the decision reported in Chand Narain's case (AIR 1940 Lahore 179). In Lal Singh v. Smt. Hira, AIR 1953 All 507, it was held that in the exercise of testamentary jurisdiction, a disputed question of title need not be adjudicated in a suit for administration. The discussion of the various authorities cited above clearly shows that when the real purpose of filing a suit for administration is to establish and enforce the rival claims the administration suit is not the proper remedy. The remedy is to file a regular suit for declaration and incidental reliefs.
41. Majeendran died on 9-10-1981 and Omana died on 15 10-1983. As already stated, the plaintiffs filed the suit on 8-12-1983. Even according to them, deceased Omana had executed a Will in which an executor was appointed. They have not stated any reason why the executor did not join in filing the suit. When an executor is appointed, it is the duty of the executor to file a suit for administration.
42. The suit is stated to have been filed by two children of deceased Omana along with her brother, who claims to be legatees under the Will. Plaintiffs 1 and 2 and defendants 1 to 3 are her children. None of them had come forward to give evidence in this case. It was at the instance of the third plaintiff the Will, was opened and registered 3rd plaintiff had given evidence as P.W. 1. P.W. 1 had admitted that in addition to him. Omana had eight brothers and sisters. But, under the Will share is given to the 3rd plaintiff alone. All other brothers and sisters of Omana were excluded. Eventhough there is a provision in the Will to give some amount to the housemaid and her son, there is nothing on record to show that those amounts were ever paid. The evidence given by P.W. 1 shows that the suit Itself was filed at the instance of 4th defendant, who is appointed as the executor in the Will. P.W, 1 had admitted that it was defendant No. 4 who instructed the lawyer to draft the plaint. P.W. 1 had further admitted that apart from the 4th defendant he had also instructed the counsel to prepare the plaint. The 3rd defendant, who is one of the children of Omana, had filed written statement alleging that many of the movables and also cash belonging to Majeendran and Omana were misappropriated by defendant No. 4. The evidence adduced in this case shows that the debt incurred by the 3rd plaintiff and 4th defendant is also styled as a debt incurred by deceased Majeendran and Omana. As we have already stated. P.W. 2, the attestor to the Will, is a junior attached to the lawyer appearing for the plaintiffs. Further, he was appearing for the 17th defendant in the suit. Further the reluctance of the children of Ornana to come forward and give evidence speaks volumes. The irresistible conclusion possible in the proved facts is that the suit was filed at the instance of the 3rd plaintiff and 4th defendant as an experiment to misappropriate the assets belonging to deceased. Majeendran using the name of deceased Omana as a shield. It is also to be noted that in the suit a debt which the 3rd plaintiff incurred along with another person was described as a debt incurred by late Majeendran and Omana. We have already extracted the stand taken by various defendants in this case. There is absolutely nothing on record to show that it is impossible to discharge the debts due from Majeendran or Omana without the intervention of the Court. There is also nothing on record to show that it will not be possible for the executor to collect the amounts due either to Majeendran or to Omana after obtaining a probate from the proper Court. Why the appellants were made parties to the suit is also not clearly stated. All that is stated is that they were made parties only to get a decree which is binding on them. But at the same time it is admitted in the plaint itself that they have set up rival claims in respects of the assets left by Majeendran. The contentions raised by some of the defendants also shows that they were not able to pay the amounts due to Majeendran only on account of fight between the legatees under the Will and only because of the claim put forward by the legatees under the Will and the brothers and sisters of Majeendran, the appellants. As already stated, no evidence was also adduced by the legatees or even by the executor to show that the suit for administration was necessary. So, the only inference possible from the proved facts in this case that the plaintiffs have approached the Court with the suit for administration is a short out to get the title of deceased Majeendran established. The real dispute is not regarding the estate left by Omana, but the real dispute is as to who is the person entitled to inherit the assets of Majeendran. That is the real issue involved in the case and that was the only issue decided by the Court below also. For that purpose, the suit for administration is not the remedy. The person interested ought to have filed a suit for declaration giving proper valuation of the suit. So, the finding of the Court below that the suit for administration is maintainable is not correct and liable to be interfered with. We set aside that finding and hold that the suit is not maintainable.
43. Now we shall consider how far the finding of the Court below that Omana inherited the estate of Majeendran as the widow of Majeendran. To decide the status of Omana, two things are to be considered; (i) How far the divorce between Omana and Sadanandan alleged in the plaint is proved; and (ii) How far the plaintiffs have succeeded in proving the customary marriage between Majeendran and Omana alleged.
44. It is an admitted case that Omana was residing in the house of Majeendran. It is also true that some of the documents produced by the plaintiffs show that Omana is described as the wife of Majeendran. The case of the appellants is that eventhough Omana was living in the house of Majeendran, there was no marriage between them and at best she can be considered as a concubine of deceased Majeendran. It is also argued that the evidence on record shows that Omana was much elder to Majeendran. On the date of the alleged marriage, she was having five children in the earlier marriage. It is also contended that the only allegation regarding marriage is customary, for which there is no evidence at all.
45. The learned Subordinate Judge approached the matter on the assumption that the parties are governed by the Cochin Thiyya Act (Act VIII of 1107 M.E.). The first appellant as D.W. 1 had admitted that Majeendran and his brothers and sisters are Ezhavas. So far as Omana is concerned, even that evidence is lacking. There is absolutely no pleadings to the effect that Omana is an Ezhava by birth. P.W. 1, her brother also did not say that his father and mother were Ezhavas and Omana was an Ezhava. The only material on record is that at the beginning of the first page of the deposition of P.W. 1 he has given his caste as Ezhava. That is not a part of evidence given on oath. Apart from that there is absolutely nothing on record to show that Omana belongs to Ezhava community. The learned Subordinate Judge also proceeded on the assumption that the personal law applicable to the parties is Cochin Thiyya Act. P.W. 1 in his evidence has stated that the house of parents of himself and Omana is situated at Vadakkumpuram at Chendamangalam Village in Parur Taluk. Chendamangalam Village in Parur Taluk was originally a part of erstwhile Travancore State. So, going by the place of Birth it is proved that Omana was an Ezhava and the personal law applicable to her is Travancore Ezhava Act and not Cochin Thiyya Act. Section 1(2) of the Travancore Ezhava Act reads as follows :--
"It shall apply to all Ezhava domiciled in Travancore other than those who follow Makkathayam, and shall also apply to such Ezhavas, whether domiciled or not, as have or shall have marital relation with Ezhavas domiciled in Travancore".
To apply the provisions of Cochin Thiyya Act, it must be shown that the parties have domicile in Cochin and not followers of Makkathayam. Section 2 of the Cochin Thiyya Act reads as follows :--
"It shall apply to all Thiyya domiciled in Cochin other than those who follow Makkathayam, and to such Thiyyas or others, whether so domiciled or not, as have or shall have marital relation with them."
Thiyyas domiciled in Cochin except in Chittoor Taluk who follow Makkathayam are governed by the Cochin Makkathayam Thiyya Act. Section 2 of Cochin Makkathayam Thiyya Act reads as follows :--
"It shall apply to all Thiyyas domiciled in Cochin except the Chittoor Taluk who follow Makkathayam and to such Thiyyaas, whether so domiciled or not, as have or shall have marital relations with them."
So, the crucial question to be decided is which is the domicile of the person concerned. It is well settled principle of law that a person who is residing in another place in connection with employment or business cannot be said to have acquired domicile in that area. There is absolutely no evidence as to where exactly is the domicile of Omana in this case. Even regarding Majeendran all that is stated is that he was residing in Ernakulam in connection with his business.
If the parties are governed by the Travancore Ezhava Act, for a valid marriage the procedure to be followed Is either by the presentation of cloth to, or by tying Mangalyasutra around the neck of the female by the male. It is pertinent to note that if the parties are governed by Travancore Ezhava Act, garlanding is not sufficient to constitute a valid marriage. But, under the Cochin Thiyya Act as well as the Cochin Makkathayam Thiyya Act valid marriage can be solemnised either by tying Mangalyasutra or by mutual garlanding. But under all the three enactments, the subsequent marriage of a male or female during the subsistence of a prior marriage and performed after the commencement of the respective Acts is void. In the absence of any pleadings or evidence it is not possible to accept the argument advanced by the counsel for the contesting respondents that the parties are governed by the provisions of Cochin Thiyya Act. The only reason stated by the learned Subordinate Judge for holding that the parties are governed by the Cochin Thiyya Act is that Omana, Majeendran and Sadanandan the former husband of Omana were living in Cochin and therefore the law applicable can only the Cochin Thiyya Act, Even if they are domiciled at Cochin, the further question to be considered is whether they are followers of Makkathayam or not. So, the finding of the learned Subordinate Judge that parties are governed by the Cochin Thiyya Act are based on no pleadings or evidence.
46. Now we shall consider how far the alleged divorce between Omana and Sadanandan, her former husband, is proved in this case. In the plaint itself it Is admitted that Omana was married to Sadanandan and they were having five children born in that wedlock. The specific case put forward by the appellants is that the marriage between Omana and Sadanandan was dissolved under a registered document executed on 6-4-1973 and Majeendran married Omana on 8-4-1973 in accordance with the customary rites.
47. Regarding the alleged divorce, the only evidence available is that of P.W. 1, the third plaintiff. The divorce was by executing a registered Instrument. Under Section 7 of the Travancore Ezhava Act, marriage can be dissolved by mutual consent evidenced by a registered instrument. Under Section 7 of the Cochin Thiyya Act also marriage can be dissolved by a registered instrument. But, under the Cochin Makkathayam Thiyya Act marriage can be dissolved by mutual consent evidenced by a registered instrument attested by not less than two witnesses. If the parties are governed by the Cochin Makkathayam Thiyya Act. a dissolution deed must be attested by two witnesses. Under the Travancore Ezhava Act and Cochin Thiyya Act such a document is not to be attested.
48. Regarding the dissolution of marriage between Omana and Sadanandan the only evidence available is that of the highly interested testimony of P.W. 1. At the instance of the plaintiffs, the register kept in the Sub-Registrar's Office wherein the dissolution deed was registered was brought to the Court an extract of the document was taken and marked as Exhibit X1 in this case. Exhibit X1 was not proved by any person. The person who produced the register did not go to the box and proved that document. The learned Subordinate Judge found that since the original deed of dissolution is coming with the ambit of Section 74(2) of the Evidence Act, the same can be proved by production of the registration copy of the original document. Whenever a deed is registered, the original document after registration will be returned to the party. What happened to the original deed is not explained by the plaintiffs. The plaintiffs have no case that the dissolution deed was taken away by Sadanandan and is not giving for being proved. It is very pertinent to note that none of the children of Sadanandan and Omana entered the box. Even if it is admitted that the relation between Sadanandan and Omana was strained and he deserted her, the children of Sadanandan have no case that the relation between them and Sadanandan was strained. On the other hand, the evidence given by P.W. 1 would only show that in spite of the strained relationship between Sadanandan and Omana, the plaintiffs 1 and 2 and Sadanandan were residing in a house together. Why plaintiffs 1 and 2 who are the children of Sadanandan failed to cite Sadanandan to prove at least the signature in the document is not explained by the plaintiffs.
49. The learned counsel appearing for the appellants has argued that respondents 1 to 6 cannot be allowed to take shelter under Section 74(2) of the Evidence Act regarding the proof of content of dissolution deed. It is argued that Sadanandan was very much alive, but he was not cited and examined to prove the dissolution. It is also argued that there were two attestors to Exhibit X1 document and they were also not cited and examined. Sections 61 to 90 of the Evidence Act deals with proof of evidence regarding documentary evidence. Section 61 provides that the contents of documents may be proved either by primary or by secondary evidence. Section 62 provides that primary evidence means the document itself. Section 63 deals with secondary evidence. Section 64 enjoins that documents must be proved by primary evidence except in the cases mentioned in Chapter V of the Evidence Act. Section 65 deals with the cases in which secondary evidence relating to documents may be given. Section 66 provides the rules as to notice to produce secondary evidence. Section 67 provides that if a document is alleged to be signed or to have been written wholly or in part by any person, the signature or the handwriting of so much of the document as is alleged to be in that person's handwriting must be proved to be in his handwriting. Exhibit X1 purports to contain the signature of Omana as well as Sadananda, It also contains the signatures of two attestors. It is true that Omana was dead prior to the date on which the document was sought to be proved. Section 68 deals with proof of execution of document required by law to be attested. Section 74 deals with public documents. Sub-section (2) of Section 74 provides that public records kept in any State of private documents is also a public document. So, Exhibit X1 is a private document kept in a public office. So, the document is admissible in evidence. The question to be considered is that the fact that a document is admissible alone is sufficient to hold that the signature of the party is also proved as contemplated under Section 67 of the Evidence Act. Under Section 67 if a document is alleged -to be signed by any person, the signature of the said person must be proved to be in his handwriting in the manner laid down in Sections 45 and 47 (See Venkatachala v. Thimmajamma, AIR 1959 SC 443). The ordinary mode of proof of execution is calling the person who saw the executor affixes the signature in the document. It is well settled position of law that mere registration of a document is not itself sufficient proof of its execution. Section 74(2) refers to such records as are kept under the provisions of Registration Act. The fact that such a document is registered does not make it a public document nor is mere registration proof of its execution. In such a case, secondary evidence of the document is admissible. But, execution and content were still to be proved in the ordinary way. The mere production of a document does not dispense with the proof of the handwriting or signature of the person who signed the same. The learned Subordinate Judge has not considered this aspect at all. In Hemanta Kumar v. Alliantz Ins. Co., (AIR 1938 Cal 120), it was held that a certified copy of the entry of registration of a deed is admissible in evidence under Sections 74 and 77 as proof of the entry, but not of the contents of the deed. In Lourembam v. Laisram, AIR 1979 Gauhati 68 and in Om Prakash Berlia v. Unit Trust of India, AIR 1983 Bom 1 the same view was taken. In Ramji Dayawala and Sons (P.) Ltd. v. Invest Import, AIR 1981 SC 2085 the Apex Court has held that proof of hand writing is not proof of facts in a documents. In Achuthan Pillai v. Marikar (Motors) Ltd., AIR 1983 Ker 81, a Division Bench of this Court has also taken the view that proof of execution of a document is not proof of the truth of the contents of the documents. In this case, apart from taking steps to cause production of a certified copy of the document, there is absolutely no other evidence available on record regarding the due execution of Exhibit X1 dissolution deed. The signature and handwriting contained in Exhibit are not proved as that of Sri Sadanandan and Omana. So, the plaintiffs have miserably failed to prove that Exhibit X1 dissolution deed was executed by Sadanandan and deceased Omana.
50. The execution of the document is also shrouded in mystery. P.W. 1 deposed that the deceased Omana was residing with her husband Sadanandan and she was admitted in Krishna Nursing Home, Ernakulam as she was suffering from heart ailments. P.W. 1 had also deposed that Omana became ill and firstly she was taken to one doctor by name V. K. Menon and at that time she was suffering from Diabetis and blood pressure. He further deposed that during the first part of 1973 as per the advice of Dr. V. K. Menon, Omana was taken to Krishna Nursing Home, Ernakulam and she was admitted and treated as inpatient for more than one month. During that period of one month, Sadanandan never came and looked after Omana and his relationship with Omana was strained. According to him, there was a misunderstanding between Omana and Sadanandan and it was P.W. 1 who got admitted Omana in the hospital. He had further deposed that the children used to come to the hospital to visit their mother and at that time they told P.W. 1 that the mother shall not come back to their house as their father used to quarrel with her. His evidence further shows that during the early part of April she was discharged from the hospital and instead of either going to the matrimonial home or her parental home, she was taken to the lodge in which P.W. 1 was residing. According to P.W. 1, 2-3 days from the date of discharge from the hospital, the divorce was effected and two days after divorce, the subsequent marriage also took place. There is absolutely nothing on record to show that until Omana was admitted in the hospital the relationship between Omana and Sadanandan was strained. P.W. 1 has no case that Omana left the matrimonial home with an intention not to return to the matrimonial home. On the other hand, his evidence was to the effect that it was the children of Omana who insisted that she shall not come to the matrimonial home and that is the reason why she was taken to the lodge wherein he was staying. There is nothing on record to show that while Omana was undergoing treatment in Krishna Nursing Home any talk or discussion of executing a divorce deed took place between the parties. It is also very difficult to believe that a lady who was undergoing treatment for more than one month as an inpatient for heart ailment straight away went to the Sub-Registrar's Office from the hospital to execute a deed of dissolution of her marriage. As we have already stated, the evidence on record shows that the entire suit and other proceedings are initiated at the instigation of the 3rd plaintiff and 4th defendant who were two persons having many business dealings with Majeendran. So, there is much force in the argument advanced by the appellants that all the documents were fabricated or created at the instance of 3rd plaintiff and 4th defendant who I wanted to steal away the estate of Majeendran on one pretext or another. So, we hold that the plaintiffs failed to prove that the marriage between Sadanandan and Omana was dissolved.
51. In the absence of proof of dissolution of former marriage even if Omana underwent a form of marriage with Majeendran, that is a void marriage. The provisions of the Travancore Ezhava Act, the Cochin Thiyya Act and the Cochin Makkathayam Thiyya Act are very clear. A man or a lady who is having a living spouse cannot enter into another marriage.
52. It is true that there is evidence to show that from 1973 onwards Omana was residing in the house of Majeendran. This fact is admitted by the appellants also. In some of the documents she was described as the widow of Majeendran. Then the question to be decided is whether there was a marriage between Majeendran and Omana. We have already found that there is no evidence to show that the marriage between Omana and Sadanandan was dissolved. Equally mysterious is the proof regarding marriage between Majeendran and Omana. The only statement made in the plaint is that they underwent a customary form of marriage. As we have already found, there was no pleading as to what exactly is the personal law applicable to the parties. There is also no pleading regarding what exactly is the customary form of marriage. It is very pertinent to note that the time, place, etc. of the marriage are conspicuously absent in the pleadings. At the time of oral evidence, the plaintiffs made an attempt to prove the marriage. To prove the marriage also the only evidence available is that of highly interested testimony of P.W. 1. We have already discussed the evidence of P.W. 1 so far as this case is concerned. His evidence is to the effect that while Omana was residing in the hostel, one Bhat came and told him that in case the marriage between Sadanandan and Omana is dissolved, Majeendran will marry Omana. His evidence is to the effect that the marriage between Majeendran and Omana was conducted at Paramara Temple situated at Ernakulam. According to P.W. 1, he along with one Karthikeyan accompanied Omana to the temple. Majeendran and Bhat came there and they stood in front of the temple and exchanged garlands. Thereafter they went to a house taken on rent by Majeendran. As we have already stated if the parties are governed by the Travancore Ezhava Act, there is no valid marriage at all since under the Travancore Ezhava Act for solemnisation of a marriage there must be either an open presentation of cloth or tying of Mangalyasutra. Even according to P.W. 1 apart from P.W. 1 no other relative of Omana or relatives or friends of Majeendran attended the marriage. At the instance of the appellants a marriage register maintained at Paramara Temple was produced. That document shows that on 8-4-1979 some other marriages were held at Paramara Temple. But, there is no entry regendlng the marriage between Majeendran and Omana in the register. Of course the genuineness of the register is disputed by the respondents 1 to 6. But, that document is an old one kept in the usual course. Even assuming that the document is not proved, that does not mean that respondents 1 to 6 have succeeded in discharging the burden of proof cast on them to prove that marriage between Majeendran and Omana was solemnised. The evidence of P.W. 1 itself shows that normally a marriage of Ezhana is performed by a "Karmikan" (Vernacular matter omitted). His evidence itself shows that even in his marriage there was tying of Mangalyasutra and there shall be presentation of cloth also. His evidence also shows that at the time of marriage of defendant No. 8 also there was tying of Thali (Mangalyasutra). He had admitted that the normal procedure of a marriage is tying of Thali (Mangalyasutra) and after chanting manthras the Karmikan will give it to the hands of bridegroom who ties it on the neck of bride. So, the evidence adduced by P.W. 1 itself of tying of Mangalyasutra is an essential form of marriage so far as the families of Omana and Majeendran are concerned. This is absent in this case. None of the persons who attended the marriage was also examined in this case. It is not at all possible to place any reliance on the evidence of P.W. 1. So, we hold that respondents 1 to 6 have miscerably failed to prove that there was a marriage between Majeendran and Omana. The mere fact that Omana lived in the house of Majeendran from the year 1973 till her death in 1983 will not confer her the status of a wife. At best it can be said that she was a concubine.
53. It is very pertinent to note that the only averment in the plaint is that there was a customary marriage between Majeendran and Omana. What is the custom prevailing among the community to which Omana and Majeendran belonged is not pleaded or proved in this case. The learned Subordinate Judge has taken a view that it is not essential to prove that fact. We find it difficult to accept that finding. The learned counsel appearing for the appellants has argued that in this case the lower Court has found that there are no sufficient pleadings regarding customary marriage between Majeend-dran and Omana. As we have already stated, the lower Court proceeded on the assumption that the parties are governed by the provisions of Cochin Thiyya Act and that the evidence of P.W. 1 is sufficient to prove the marriage between Majeendran and Omana. In the Court below the appellants have raised a specific contention that since the details of the custom, time and place of marriage, etc. are not pleaded in the plaint, the case of the plaintiffs that there was a customary marriage between Majeendran and Omana should be found against. In fact in paragraph 60 of the judgment of the lower Court also it was found that there is lack of pleadings regarding custom. The Court below further found that had there been pleadings regarding the custom, the complaint of the contesting defendants could have been avoided, but did not consider whether the failure to plead that aspect is fatal to the case of the plaintiffs. The Court below took the view that a rigorous interpretation of the pleadings is not necessary in this case. It is well settled position of law that when a party pleads a custom, he must actually pleaded the custom in the plaint. In Salig Ram v. Munshi Ram, AIR 1961 SC 1374 the Apex Court has found that when the plaintiff bases his claim on custom, he should actually plead the custom in the plaint. In Harihar Prasad v. Balmiki Prasad, AIR 1975 SC 733 also the Apex Court has found that in the first instance it is for the plaintiff to prove the existence of the custom and if they fail to do so, they cannot succeed on the basis that the defendant did not succeed in proving that the custom did not exist. The Apex Court has also considered the mode of proof of custom. In Dr. Surajmani Stella Kujur v. Durga Charan Hansdah, (2001) 3 SCC 13 : (AIR 2001 SC 938) the Apex Court held as follows :--
"For custom to have the colour of a rule or law. it is necessary for the party claiming it, to plead and thereafter prove that such custom is ancient, certain and reasonable. Custom being a derogation of the general rule is required to be construed strictly. The party relying upon a custom is obliged to establish it by clear and unambiguous evidence."
So, the initial burden is on the plaintiffs to plead and prove the custom. There is absolutely no pleading regarding the custom. Apart from the highly interested testimony of P.W. 1, there is no other evidence to prove either the custom or the solemnisation of marriage as spoken to by P.W. 1.
54. It is true that there is evidence to show that at least from 1973 till the death of Majeendran in 1981 Omana was living with Majeendran in his house. It is also true that when a man and woman continuously ' cohabits together under same roof for a long time it may arise a presumption. But, that presumption is rebuttable. In this case, the specific case put forward by the plaintiffs are that a particular form of marriage was solemnised. The word "solemnised" means to celebrate marriage with proper ceremonies and in due form (See Joyita Saha v. Rajesh Kumar, 2002 (2) Ker LT SN 31 (Case No. 36). In this case, the plaintiffs have a specific case that the marriage between Omana and Majeendran was solemnised in accordance with the customary rites. It is not possible to hold that there was solemnisation of marriage based on the evidence of P.W. 1. So, the evidence adduced by the plaintiff is not sufficient to hold that the marriage between Omana and Majeendran was solemnised in accordance with the customary rites.
55. The evidence discussed above clearly shows that it is admitted by the plaintiffs that Omana was married to Sadanandan and she is having five grown up children. The case of the plaintiffs that there was a valid divorce between Omana and Sadanandan on 6-4-1973 is not properly proved. Their further case that Majeendran married Omana on 8-4-1973 is also not proved. Even assuming that Majeendran and Omana underwent some form of marriage, that was a void marriage in view of the existence of the prior marriage of Omana with Sadanandan. So, the plaintiffs have failed to prove that Majeendran married Omana and on his death his estate devolved upon Omana. So, the finding of the Court below that Omana is entitled to succeed the estate of Majeendran is wrong and liable to be interfered with. We set aside the same. We hold that the plaintiffs have failed to prove that Omana succeeded the estate of Majeendran.
56. In view of the finding that Omana is not the widow of Majeendran and she has not succeeded the estate of Majeendran, there is no scope for the plaintiffs for maintaining an action for administration of estate of late Majeendran. So, it is not necessary to consider the validity of the Will relied on by the plaintiffs.
57. The plaintiffs claim the right under Exhibit X2 Will alleged to have been executed by Omana. It is very Interesting to note that one of the attestors to that Will is a practising advocate. He was appearing for the 17th defendant in the very same suit. Without relinguishing his Vakalath for the 17th defendant, he voluntarily went to the box and gave evidence in favour of the plaintiffs. It is also interesting to note that the evidence adduced in this case shows that P.W. 2 was practising as a Junior advocate attached to the office of the advocate who was appearing for the plaintiffs. As we have already stated, on the 7th day after the demise of Omana, plaintiff No. 3 rushed to the District Registrar's Office to get the cover opened and Will registered. The evidence also shows that the third plaintiff and 4th defendant together has filed this suit. The children of Omana never appeared before Court and gave evidence. It has come out in evidence that apart from 3rd plaintiff who gave evidence as P.W. 1, Omana was having other brothers and sisters. None of them were given any share in the property. Why Omana preferred P.W. 1 alone is not explained. So, it is evidently clear that the Will itself was brought into existence at the instance of 3rd plaintiff and 4th defendant. But, since there is no dispute regarding inheritance of the estate of Omana, we do not propose to consider that issue and the matter is left open. But, since Omana did not inherit the estate of Majeendran, the suit for administration is not maintainable and it is only to be dismissed.
58. In view of the finding that the suit as framed is not maintainable, it is not necessary to consider the genuineness regarding the debt. etc. claimed by the plaintiffs. We leave open that matter to be decided at the appropriate proceedings.
59. A.S. 98 of 1989: This appeal arises from a suit filed by the brothers and sisters of deceased Majeendran against the defendant, who was one of the partners of V. M. Transports for rendition of the accounts of the firm. It is an admitted case that Majeendran along with the respondent formed themselves a partnership by name V. M. Transports and was mainly engaged in running lorry transport service as carriers of goods. Their main business was with F.A.C.T. Ltd. Majeendran died on 9-10-1981 due to gun shot injuries sustained by him. According to the appellants-plaintiffs, Majeendran was the Managing Partner of the firm and consequent to the death of Majeendran, the partnership which consists of respondent alone automatically dissolved. Their further case is that taking advantage of the close association of the respondent with Majeendran, he had attempted to reconstitute the firm by inducting Omana, who claims to be the widow of deceased Majeendran. The specific case put forward by the appellants was that Majeendran was unmarried and died issueless and hence all his interest and good-will, etc. of the firm devolved upon them. This suit was tried along with O. S. 643 of 1983 filed by two children and brother of Omana claiming rights under the Will alleged to have been executed by Omana for administration of the estate of Majeendran and Omana. The learned subordinate Judge in that suit found that Majeendran married Omana and after his death, she became the sole legal heir and inherited the entire estate left by Majeendran and hence the appellants did not inherit any right as claimed by the appellants herein. In A. S. 13 of 1989 filed by the appellants against the decree and judgment passed in O. S. 643 of 1983 which we have already disposed of along with this appeal we have found that the finding of the learned Subordinate Judge that Omana was the widow of Majeendran is wrong and there was no marriage between Maheendran and Omana and hence she will not inherit the estate of Majeendran. Since the suit was dismissed on the sole ground that the entire assets of Majeendran devolved upon Oman and in view of our decision in A. S. 3 of 1989, the issues involved in the suit are to be reconsidered. The Court below has not considered whether the case of the respondent that the firm was reconstituted with Omana as partner and hence he is not liable to account is correct. So, for a decision on merits, the case has to go back. For that purpose, the judgment and decree in O. S. 646 of 1983 has to be set aside and the matter remanded.
60. A. S. No. 503 of 1990 : Points 1 to 4 : The suit O. S. 413 of 1984 was filed by the brothers and sisters of deceased Majeendran for setting aside a sale deed executed by Omana in favour of the first respondent. The suit property originally belonged to deceased Majeendran. After his death Omana, who was residing in the house along with Majeendran, executed a sale deed in favour of the first respondent, who was a minor and represented by his father and guardian. The plaintiffs filed the suit for setting aside the document alleging that Omana is not the legal heir of Majeendran and after the death of Majeendran all his assets devolved upon the appellants. The contention put forward by the defendants in the suit was that Omana was married to Majeendran and after his death, entire assets devolved upon Omana and so she was fully competent to execute the sale deed. The first defendant also raised a contention that the property was actually purchased by the guardian of the first defendant : but in view of the close association between the guardian of the first defendant and Majeendran, the document happened to be executed in the name of Majeendran. So, in a sense the contention that it was a benami transaction. The suit was dismissed by the Court below on the sole ground that the appellants did not inherit the estate of deceased Majeen-d-ran. It was also found that Majeendran married Omana and after the death of Majeendran, all his assets devolved upon Omana. In A. S. 13 of 1989, which was heard along with this appeal, we found that there was no marriage between Omana and Majeendran. Hence, she will not inherit the estate of deceased Majeendran as his widow. Since the finding based on which the suit was dismissed was set aside, the matter requires reconsideration. The learned Subordinate Judge has not considered the other contentions including the contention of limitation raised by the defendants in the suit.
Therefore, it is only just and proper that the decree and judgment passed by the Court below is set aside and the suit remanded for fresh disposal in accordance with law.
61. A. S. No. 31 of 1990 : Points 1 & 2 : The suit O. S. 253 of 1983 was filed by partners of a firm which is engaged in the business of money lending against the respondents claiming amounts advanced under a promissory note. Another suit was also filed by the very same appellant against the very same respondents under another promissory note. These two suits were tried along with O. S. 643 of 1983 and other connected suits. The learned Subordinate Judge after considering the pleadings and evidence found that the negotiable instrument was materially altered and hence the appellant was not entitled to get a decree. It was also held that since the suit was based on a promissory note, no decree based on the original cause of action can be granted.
62. This suit and O. S. 252 of 1983 was tried together. The two promissory notes involved in the two suits are Exhibits B20 and B23. The claim of the appellants was considered in paragraph 82 of the judgment of the court below in which issues 1 to 4 arising in both the suits were considered together by the court below. The Court below after a meticulous analysis of the evidence has found that Exhibits B20 and B23 were materially altered. Hence, both the suits were dismissed. Against the dismissal of O. S. 252 of 1983, the appellants filed A. S. 46 of 1990 and that appeal was heard along with A. S. 84 of 1990 filed by the appellant against the refusal of a claim in O. S. 643 of 1983.
63. Of course since the cause of action of these two suits are different, there cannot be any res judicata, though the plaintiffs and defendants are the same. The Court below has considered the alterations made in the document in its minute details. The evidence adduced in this case shows that what was originally written in the document is 12. That has been subsequently corrected as 20, whereby enhancing the liability of the defendants from 12% to 20%. The learned counsel appearing for the appellants placed much reliance on the decision reported in Verco Pvt. Ltd. v. Newandram Naraindas AIR 1974 Madras 4. In that case a learned single Judge of the Madras High Court found that if the alteration is made for carrying out a common intention, then it cannot be held that there is material alteration. In this case, the appellant has no case that alteration was effected as to carry out a common intention of the party at the time of execution of the document itself. On the other hand, the evidence adduced in this case clearly shows that that was done subsequently without the knowledge and consent of the defendants. The effect of the alteration is that liability of the person who executed the negotiable instrument is increased from 12% to 20%. The Court below has also considered the contention raised by the defendant that the alteration has not been made simultaneously when the document was executed, but on a subsequent date. The evidence of D. W. 6 is relied on by the counsel for the appellant. The Court below has considered the evidence of D. W. 6. D. W. 6 had admitted that he was having no direct knowledge about the execution of the document. After analysing his evidence, the Court below found that his evidence is insufficient to discharge the burden caused on the appellant. So, the finding of the Court below that there is material alteration and hence the appellant is not entitled to any relief under the promissory note is correct and does not call for any interference.
64. The learned counsel appearing for the appellant has contended that even if no decree can be passed based on the negotiable instrument, still the appellant is entitled to a decree based on the original cause of action. It is true that in A. S. 46 of 1990 another Division Bench, relying on a decision reported in Sankara Pillai v. Usman Settu 1963 Ker LT 241, found that the appellant is not entitled to a decree based on the original cause of action.
65. It is true that when it is found that the plaintiff is not entitled to base his claim on a promissory note he is not entitled to get a decree based on the original cause of action. But, it is a well settled position of law that if the loan is independent and completed before the execution of the promissory note, the plaintiff is entitled to base his claim on the original cause of action. The learned counsel relied on the decisions reported in Bhusan Chandra v. Kanailal Sadhukhan AIR 1937 Calcutta 241 and in the Jyoti Prosad v. Jahor Lal AIR 1945 Cal-
cutta 268. In Jyoti Prosad's case (supra) it was held as follows :--
"Promissory note--Money lent accompanied with pronote--Note is merely collateral security for original loan and lender can sue on original consideration."
In Narayanprasad v. Ghanshamlal AIR 1961 M.P. 62 it was held that if the execution and passing of consideration are simultaneous, the plaintiff cannot fall back on the original cause of action. In Raghavan v. Variathu 1962 Ker LT 518 it was held that when the suit is on a promissory note, no decree can be granted on the original cause of action unless the suit was also on the original consideration. So, eventhough this Court took the view that in a suit on a promissory note decree cannot be granted on the original consideration, it was also held that if there are pleadings to that effect Court can consider whether the plaintiff is entitled to get a decree based on the original cause of action. The same principle was followed in Sankara Pillai's case (1963 Ker LT 241) (supra) also. It was held that no decree can be granted in a suit based on a promissory note on the basis of original cause of action if there is no pleading to that effect. In Thommen v. Usamikhan 1967 Ker LT 74, a Division Bench of this Court granted opportunity to the plaintiff to amend the suit so as to include a pleading on the original cause of action. But, we are of the view that in view of the lapse of time the plaintiff cannot be allowed to amend its plaint, but if there are sufficient pleadings in the plaint the claim for money based on the original cause of action has to be considered by the trial Court. The trial Court has not considered whether there are sufficient pleadings for a decree to be granted on the basis of the original cause of action. It is true that another Division Bench dismissed A. S, 46 of 1990 holding that the suit cannot be decreed based on the original cause of action. But, it is not discernible from the judgment whether there was a claim in that plaint based on the original cause of action. In this case, in the appeal memo a specific contention was raised by the appellant is that the suit is not based on the promissory note alone, but on the original cause of action also. So, that is a matter to be considered by the trial Court. For the limited purpose of reconsidering whether there is sufficient pleadings so as to enable the plaintiff to claim a decree based on the original cause of action, that part of the Judgment and decree in O. S. 253 of 1983 has to be set aside and that case remanded for re-consideration.
In the result, the appeals are disposed of in the following manner : A. S. 13 of 1989 is allowed, the decree and judgment passed by the court below in O. S. 643 of 1983, are hereby set aside and the suit is dismissed. A. S. No. 98 of 1989 and 503 of 1990 are allowed and the judgment and decree are hereby set aside and O. S. Nos. 646 of 1983 and 413 of 1984 are remanded to the trial Court for fresh trial and disposal in accordance with law. A. S. 31 of 1990 is allowed in Part. That part of the judgment and decree finding that the appellant is not entitled to any relief based on the promissory note is confirmed. The suit O. S. 253 of 1983 is remanded to the trial Court for the limited purpose of reconsidering whether there is sufficient pleading so as to enable the appellant-plaintiff to claim a decree based on the original cause of action.
The parties in O. S. 646 of 1983, O. S. 413 of 1984 and O. S. 253 of 1983 are directed to appear in the Court below on 18-12-2002. We make no order as to costs.