# [1964] 3 S.C.R. 634 - **Citation:** [1964] 3 S.C.R. 634 - **Court:** Supreme Court of India - **Decided:** 1964 - **Bench:** A. K. Sarkar, M. HIDAYATULL.lH, J. C. Shah - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/1964-3-s-c-r-634-3012 - **Pages:** 19 ## Headnote Travancort JJlzlava Act-Jlakkathayam properly-Nature and incidenta-Partibility-Tht meani11g of lht t:i:pm•iOll •contrary inttntion' in•· 32 of tht Act-The righla of 'i8'uea' whtn there is exemption ui1dtr •· 33 of the Act-Queabon of tteemption not rai•td in written atatement-No i83ue framed-But evidtn.u led-Not objected by plaintif/1-Whtther vitiat.. the trial-Val• ation of tho •uil below twt'llly thousand-Certificate granted by tht High Court under Art. 133 of the Constitution valid-Constitution of India, Art. 133-Travancore Ezhaw Act, 1100 (Act, III of 1100), ••· 2, 18,19,32,33. The property in the •nit originally belonged to one Bhagavathi Parameswaram who created an otti in favour of one Krishnan Marthandam for 3500 fanama (about Rs. 500/-), Subsequently the latter created a chittoti, Bhagavathi Parameswaram some years later (in 1163 M.E.) made a gift of the property to his wife Bhagavathi Valli. Bhagavathi Valli died in 1105 M.E. She bad an only son Sivaraman who was married to Parvathi Meenaksbi and had a son named Vasudevan. Sivaraman left Travancore in 1096 M.E. Both sides are agreed that he died thereafter. But there is no agreemeat aa 10 the date of hb death. Mccnakllhi a.id claimiD1 I \ 3 S.C.R. SUPREME COURT REPORTS 635 to be the heirs jointly sold thejenmom rights in 1123 M.E. to the present appellant. The appellant brought a suit for the redemption of the otti and recovery of possession of the property from the defendant (present respondent No. 1). The defendant denied that Bhagwathi Valli ever got the jtnmom right. He claimed to have obtained both the jenmom right as well as other rights. According to him on Bhagavathi Valli's death her sister B. Narayani and Narayani's daughter Gouri were heirs through whom he traced his title. He further contended that even if Meenakshi and Vamdevan got any jenmom right they lost it by the auction sale in O.S. No. 36 of 1100 M. E. For these reasons it was contended that the plaintiff had no title to sue. It is admitted by both parties that the case is governed by the Travancore Ezhava Act, llOO. The trial court and the first appellate court decreed the suit but the High Court reversed the decision of the courts below hoLJing that the plaintiff had not obtained a valid title to the equity of redemption by the sale deed in his favour and was not entitled to redeem the property. The plaintiff thereupon appealed to this Court on a certificate granted by the High Court. A preliminary objection was raised by the respondent about the competency of the certificate granted by the High Court. It was contended that since the suit was valued at 3500 Janams (Rs. 500[-) \hi• valuation governed the suit for the purpose of the certificate and this value being below the prescribed minimum under Art. 133 of the Constitution the certificate was not competent. It was alternatively contended that if the valuation was more than Rs. 10,000 the trial court had no jurisdction to try the suit. It was contended on behalf of the appellant that the ordinary rule of law was that property was impartible and that . 1., 32 of the Act rrace a departure and imposed partibility on the Makkothayam property and the expression 'contrary intention' contemplated in s. 32 was an intention contrary to partibility and such an intention could not be spelled out from Ex. III the gift deed. It was contended that if the property was shared by Bhagavathi Valli with Sivaraman and Vasudevan, then Vasudevan would have the right to redeem the Otti as a person interested and so would the appellant, a transferee from him. Alternatively if the property became that of Bhagavathi Valli alone then Vasudevan would be entitled to succeed to the property left by Bhagavathi Valli by virtue of ss. 18 1963 Kunju K1savan .. M. M. Philip Kunju Ke5aian v. M.M. PMip 636 SUPREME COURT REPORTS (1964] VOL. and 19 of the Act provided Bhagavathi Valli was not exempted from the operation of the Act under s. 33. It was further contended that since th ## Text 1963 Union of India '. La du Lal Jain 1963 634 SUPREME COURT REPORTS (1964) VOL. In view of what we have said above, we hold that the Union of India carries on the business of running railways and can be sued in the Court of tlie Subordinate Judge of Gauhati within whose territorial jurisdiction the headquarters of one of the railways run by the Union is situated. We accordinily dismiss the appeal with costs . ..4 ppwl lliami1aed. llUNJU KESA VAN "· M. M. PHILIP I. C. S. AND ORS. (A. K. SARKAR, M. HIDAYATULL.lH and J. C. SHAH JJ.) Travancort JJlzlava Act-Jlakkathayam properly-Nature and incidenta-Partibility-Tht meani11g of lht t:i:pm•iOll •contrary inttntion' in•· 32 of tht Act-The righla of 'i8'uea' whtn there is exemption ui1dtr •· 33 of the Act-Queabon of tteemption not rai•td in written atatement-No i83ue framed-But evidtn.u led-Not objected by plaintif/1-Whtther vitiat.. the trial-Val• ation of tho •uil below twt'llly thousand-Certificate granted by tht High Court under Art. 133 of the Constitution valid-Constitution of India, Art. 133-Travancore Ezhaw Act, 1100 (Act, III of 1100), ••· 2, 18,19,32,33. The property in the •nit originally belonged to one Bhagavathi Parameswaram who created an otti in favour of one Krishnan Marthandam for 3500 fanama (about Rs. 500/-), Subsequently the latter created a chittoti, Bhagavathi Parameswaram some years later (in 1163 M.E.) made a gift of the property to his wife Bhagavathi Valli. Bhagavathi Valli died in 1105 M.E. She bad an only son Sivaraman who was married to Parvathi Meenaksbi and had a son named Vasudevan. Sivaraman left Travancore in 1096 M.E. Both sides are agreed that he died thereafter. But there is no agreemeat aa 10 the date of hb death. Mccnakllhi a.id claimiD1 I \ 3 S.C.R. SUPREME COURT REPORTS 635 to be the heirs jointly sold thejenmom rights in 1123 M.E. to the present appellant. The appellant brought a suit for the redemption of the otti and recovery of possession of the property from the defendant (present respondent No. 1). The defendant denied that Bhagwathi Valli ever got the jtnmom right. He claimed to have obtained both the jenmom right as well as other rights. According to him on Bhagavathi Valli's death her sister B. Narayani and Narayani's daughter Gouri were heirs through whom he traced his title. He further contended that even if Meenakshi and Vamdevan got any jenmom right they lost it by the auction sale in O.S. No. 36 of 1100 M. E. For these reasons it was contended that the plaintiff had no title to sue. It is admitted by both parties that the case is governed by the Travancore Ezhava Act, llOO. The trial court and the first appellate court decreed the suit but the High Court reversed the decision of the courts below hoLJing that the plaintiff had not obtained a valid title to the equity of redemption by the sale deed in his favour and was not entitled to redeem the property. The plaintiff thereupon appealed to this Court on a certificate granted by the High Court. A preliminary objection was raised by the respondent about the competency of the certificate granted by the High Court. It was contended that since the suit was valued at 3500 Janams (Rs. 500[-) \hi• valuation governed the suit for the purpose of the certificate and this value being below the prescribed minimum under Art. 133 of the Constitution the certificate was not competent. It was alternatively contended that if the valuation was more than Rs. 10,000 the trial court had no jurisdction to try the suit. It was contended on behalf of the appellant that the ordinary rule of law was that property was impartible and that . 1., 32 of the Act rrace a departure and imposed partibility on the Makkothayam property and the expression 'contrary intention' contemplated in s. 32 was an intention contrary to partibility and such an intention could not be spelled out from Ex. III the gift deed. It was contended that if the property was shared by Bhagavathi Valli with Sivaraman and Vasudevan, then Vasudevan would have the right to redeem the Otti as a person interested and so would the appellant, a transferee from him. Alternatively if the property became that of Bhagavathi Valli alone then Vasudevan would be entitled to succeed to the property left by Bhagavathi Valli by virtue of ss. 18 1963 Kunju K1savan .. M. M. Philip Kunju Ke5aian v. M.M. PMip 636 SUPREME COURT REPORTS (1964] VOL. and 19 of the Act provided Bhagavathi Valli was not exempted from the operation of the Act under s. 33. It was further contended that since the question of exemption was not pleaded by the defendant ·(respondent) in his written statement and since no issue was framed the High Court ought not to have considered the notification put in by the respondent in his evidence purporting to prove that Bhagavathi Valli was exempted. Finally it was urged that the notification does not in fact prove that she was so exempted since her identity is not established by the notification. Held that for the certificate to be competent the appeal must satisfy two t"'ts of valuation. The amount or value of the subject matter of the suit in the court of first instance and the amount or value of the subject matter in dispute on appeal to this Court must both be above the mark. There are however cases in which the decree or final order directly or indirectly involves some claims or question to or respecting property above the mark. Such cases are also appealable. The word 'indirectly' in such cases covers the real value of the claims which is required to be determined quite apart from the valuation given in the plaint if the property was not required to be valued for the purposes of the suit on the marketvalue. In the case the High Court found the value to be Rs. 42,000/- and Rs. 80,000i· at the material times; The plaintiff was not required to value his plaint on the real or market value of the property but on the price for redemption. He had asked for posse1Sion of the property after redemption and the property as the High Court has found is well above the mark in value. The certificate is competent. The suit as valued was properly laid in the court of first instance and in any case such an objection cannot be raised for the firsf time in this Court. · The working of 1. 32 does not justify the contention that by reason of the expression 'contrary intention' only impartibility could be imposed. What the law was to define the rights on partition of makkatha11am property .and laid .down that on partition the shares should be equal unless a contrary intention was expressed. The gift deed Ex. III in the present case shows that the pr<>perties given to the donees a•·e io'bc taken by each •exclusively. Reading ss. 18 and 19 it follows that whether Sivaraman survived Valli or died her Vasudevan an issue within the expresS1on 'how-low-so-ever .of nation to 1. 19 at leasl '° a fracti011al interest in the I 3 S.C.R.. SUPREME COURT REPORTS 637 But this can only be if Bhagavathi Valli ·wa. not exempted from the operation of Part IV of the Act. The parties went to trial, fully understanding the central fact whether the succession as laid down in the Ezhava Act applied to Bhagavathi Valli or not. The absence of an iasue, therefore, did not lead to a material sufficient to vitiate the decision. The plea was hardly needed in view of the fact that the plaintiff' stated in his replication that the "suit property was obtained as makkathayam property, by Bhagavathi Valli under the Ezbava Act". The subject of exemptir>n from Part IV of the Ezhava Act, was properly raised in the trial Court and was rightly considered by the High Court. The High Court was right in holding that the identity of Bhagavathi Valli had been established and that Bhagavathi Valli was exempted from the operation of the Ezhava Act (Part IV). The present appellant is not entitled to redeem the olti having never enjoyed the jenmom rights. CIVIL APPJliLLATE JURISDICTION : Civil Appeal No, 1 of 1962. · Appeal from the judgment and decree dated September 10, 1957, of the Kerala High Court in Second Appeal No. 42 of 1954 (I.T.) T. S. Venkataraman and V. A. Seyid Muhammad, for the appellant. A. V. Vis11anatha Sastri, G. B. Pai, Shakuntala Sharma aad K. P. Gupta for respondent No. 1. 1963. May S. The Judgment of the Court was delivered by L963 K unju K J4!7M v. M. M. PJiilip HmAYATULL.4.H ].-This is an appeal on a ffidayat•llu 1. certificate by the High Court of Kerala against its judgment and decree dated September 10, 1957. The suit out of which this appeal arises, was filed by the appellaut Kunju Kesavan to redeem an Otti created by one Bhagavathi Parameswaran in favour of 1963 Kunju K1saoan •• M. M.Philip Hidayalu/Jah J. 638 SUPREME COURT REPORTS [1964] VOL. one Krishnan Marthandan on 5.5.1091 M.E., for 3500 fanams. Subsequently, Krishnan Marthandan created some chittoti. Bhagavathi Parameshwaran made a gift of the property to his wife Bhagavathi Valliyamma on 9.3. ll03 M.E., by Exh. III. Bhag· avathi Valli died on 4.11.1105. M.E. She had an only son Parameswaran Sivaraman who was married to Parvathi Meenakshi and had a son named Vasudevan. Sivaraman, according to the plaintiff, left Travancore in 1096 M.E., and both sides have taken it for granted that he died thereafter. Meenakshi and Vasudevan, claiming to be the heirs, jointly sold the jenmom rights on 12.4.1123 M.E., to the appellant Kunju Kesavan, and he brought the present suit for redemption of the otti, offering to pay 3500 fanams in equivalent money and for improve-. ments, if any, as determined by the court. The suit was valued at 3500/anams (about Rs. 500/-) which was the amount of the otti, and the claim was for redemption of the otti and possession of the fields from the defendants who were in possession. The suit was resisted by the first defendant (respondent No. 1). Defendants 2 and 3 (repondents 2 and 3) filed a written statement, but do not appear to have taken much interest thereafter. The first respondent admitted some of these facts. He, however, averred that the document executed by Bhagavathi Parameshwaran was not meant to be acted upon and Bhagavathi Valli and others never obtained any rights in the jenmom. by Exh.III. Re also contended that if Bhagavathi Valli got any rights, they were subject to a prior charge of the decree of the District Court, Trivandrum, in 0. S. No. 36 of llOO M.E., and that in an auction sale held on 3.4.1114 M. E., the jenmom rights were purchased by the decree-holders, who were the heirs of Krishnan Marthandan and from whom the first respondent obtained the sale deed. He claimed to have thus obtained the jenmom rights as also the otti rights. 3 s.c.R.. SUPREME COURT REPORTS 639 The first respondent admitted that Sivaraman had left India in J 096 M. E., but denied the allegation that letters were received from him till 1100 M.E , or that till I 108 M E., some information was being received about him. He asserted that right from 1096 M.E., none heard from him or of him. and submitted that Sivaraman must have died in 1096 M.E., or was not alive on 9.3.1103 M.E., the date of the gift to Bhagavathi Valli. According to him, on Bhagavathi Valli's death, her sister B. Narayani and Narayani's daughter Gouri were heirs and Meenakshi and Vasudevan were not her heirs and thus they never got the jenmom rights. Alternatively, he contended that even if they did obtain any jenmom rights, they lost them by the auctionsale in O.S. No. 36 of 1100 M.E., to the auctionpurchasers. The first respondent, therefore. submitted that the transaction by sale in favour of the present appellant gave him no rights; on the other hand, as the auction-purchasers were allowed to continue in possession as full owners with the consent express or implied or the acquiescence of Vasudevan and Meenaksi, full title resulted to him. The parties are Ezhavas, and in the absence of a special exemption under the Act, they would be governed by the Travancore Ezhava Act, llOO (Act III of 1100) in the matter of succession and partit!on. One of the contentions tried in the case relates to this exemption, it being contended that Bhagavathi Valli had applied for exemption from part IV of the Act, and was thus governed not by its terms but by the general Marumakkathayam law. The two courts below decreed the suit. The Temporary District Munsiff of Trivandrum held that the plaintiff was entitled to redeem the otti and valued the improvements at Rs. 1367/13/4. An appeal was filed by the present first respondent and the other side cross-objected. The appeal and the crossobjection were dismissed. On further appeal by the 1965 Ku'!ju Ke1nvan ·- M. M. PhUip Hidayatut/ih J. -- KuniM K esavaN v. M.M. Pftil¥ Hi®y""'ll•A J. 640 SUPREME COURT REPORTS [1964] VOL. first defendant, the High Court reversed the decision of the two courts below, holding that the plaintiff had not obtained a valid title to the equity of redemption by the sale deed in his favour, and was not entitled to redeem the property. The plaintiff' has now appealed to this Court on a certificate by the High Court. A preliminary objection has been raised about the competency of the certificate granted by the High Court. It is contended that the suit was valued at 3500 fanams, and this valuation governs the suit for the purpose of the certificate, and the amount or value being below the mark, the certificate was wrongly issued by the High Court and ought to be cancelled. Alternatively, it is contended that if the valuation was more than Rs. 10,000, the trial court had no jurisdiction to try the suit. The present appeal is against the judgment of the High Court which reversed the decision of the court below, and if the valuation was a hove the mark, the certificate was properly granted by the High Court since an appeal as of right would lie. An appeal must satisfy two tests of valuation. The am,.,unt or value of the subject-matter of the suit in the court of first instance and the amount or value of the subjeet-matter in dispute on appeal to this Court must both be above the mark. There are, however, cases in which the decree or final order involves directly or indirectly some claim or question to or respecting property above the mark. Such cases are also appealable. Ordinarily, the valuation in the plaint determines the valuation for the purposes of appeal. A plaintiff', who sets a low0r value on a claim which he is required to value according to the real or market value, cannot be permitted to change it subsequently, · because this would amount to approbation and reprobation. But in .those cases in which the plaint is not· required to be valued in 3 S.C.R. SUPREME COURT REPORTS 641 this way, a question may arise as to the proper value of the claim both in the court of first instance and on appeal to this Court. The word 'indirectly' in such cases covers the real value of the claim which is required to be determined quite apart from the valuation given in the plaint. In this case, the High Court found the value to be Rs. 42,(i)OO and Rs. 80,000 at the two material times. It is obvious that the plaintiff was not required to value his plaint on the real or market value of the property but on the price for redemption. He was not, therefore, concluded by the valuation given in the plaint. He had asked for possession of the property after redemption, and that property as the High Court has found, is well above the mark in value. The certificate was, therefore, properly granted. The attack on the jurisdiction of the court of first instance must also fail. The suit as valued was properly laid in the court of first instance, and in any case, such an objection cannot be entertained now. The preliminary objection is, therefore, rejected. The main question in this appeal is whether Meenakshi and Vesudevan had any title to the property and whether they could transmit any title to the appellant. This depends on whether the Ezhava Act applies or the ordinary Maruniakkathayam law. The ordinary Marumakkathayam law has a system of inheritance in which the descent is traced in the female line. It is conceded that if the Marumakkathayam Jaw is applicable, Meenakshi and Vasudevan, who were the daughter-in-law and son's son of Bhagavathi Valli, were not heirs to her. The Ezhava Act was passed to define and amend among others, the law of succession and among the In its application it excluded Ezhavas domiciled in Travancore, 'who were following Makkathayam. By s. 2 of the Ezhava 196J KM1j11 K1io11aa ... M.M. Philil Hi'4,alullali J. 196J Kunyu K1savan v. M.M. Philip Hidayatutlah J,. 642 SUPREME COURT REPORTS [1964) VOL. Act, the Act could be extended to Ezhavas who followed Makkathayam. No question has been raised before us that it was not so extended and the arguments proceeded on the assumption that it was, indeed, the answering respondent that Bhagavathi Valli had opted out of part IV under s. 32 of the Act, and this could only be if the Act was applicable to her. The appellant contended. as we shall show presently, that Bhagava.thi Valli was governed by the Ezhava Act. 'Makkathayam' means gift by the father. In the Ezhava Act, Makkathayam property is defined to mean property obtained from the husband or father by the wife or child or both of them, by gift, inheritance or bequest. The property in suit was gifted by Bhagavathi Parmeswaran to his wife Bhagavathi Valli, and obtained the character of makkathayam property. The first question, therefore, raised by Dr. Seyid Muhammed, counsel for the appellant, is that though the gift was to Bhagavathi Valli co nomine, it operated, under the law applying to makkathayam property, to confer equal benefits upon Bhagavathi Valli and her issue how· low-so-ever. Reference in this connection is made to s. 32 of the Act which makes a special provision for the partition of makkathayam property and provides : "32. Makkathyam property divisible a1111Jng wi,f e and children equally. Except where a contrary intention is expressed in the instrument of gift or bequest, if any, makkathayam prope•ty acquired after the date of the passing of this Act shall be liable to be divided among the wife and each of the children in equal shares : Provided that, in the partition of makkathayam property, the issue how-low-so-ever of a :1 S.C.R. SUPREME COURT REPORTS 643 deceased child sha1! be entitled to only such share as the child itself, if alive would have taken." According to the answering respondent, the settlement deed, Exh. III, gave the suit property exclusively to Valliyamma and some other property to the grandson Vasudevan and thereby evinced an intention contrary to the operation ofs. 32. Dr. Seyid Muhammed submits that the ordinary rule of law was that'the property was impartible and was always shared by a female of a marumakkathyam tarwad with her tkavazhee, and cited a passage from M.P • .Joseph's book on the Principles of Marumakkthayam ·Law (1926), pp. 52,53, in support of this contention. He also refers to the observations of a Division Bench in Narayanen Narayanen v, Parwathi Nangali ('), where it was held that a gift by the father (known as makkathayam) to his wife was ordinarily intended to benefit the wife and the children of the donor and though the property wa1 usually registered and acquired in the name of the mother, it was always held in common by them. He contends that s. 32 made a departure and imposed partibility on the makkathayam property ·and the only intention that must appear must be in favour of impartibility, and such an intention cannot be spelled out of Exh. 111. Section 32 makes the makkathayam property divisible among wife and children equally. The provision is in part VII which deals with partition. It is not possible to say that by the contrary intention only impartibility could be imposed. There is nothing to show that impartibility was the rule in respect of makkathayam property. The two passages only show that ordinarily the benefit went to the thavazhee as a whole. \Vhat the law did was to define the rights on partition of makkathayam property and laid down that on partition the shares would be equal (I) 5, T. L. R. 116. J96J KunJU K611oat1 v. M.M. Philip Hid