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Judges : S.VELU PILLAI,T.C.RAGHAVAN,K.K.MATHEW
PARUKUTTY AMMA PARVATHI AMMA - Appellant
Versus
SANKARA KURUP RAMA KURUP - Respondent
Case No : S. A. No. 114 of 1959
Decided On : 07/25/1963
Advocates Appeared :
P. Govinda Menon; For Appellant M. K. Narayana Menon; V. Sankara Menon; For Respondents
res judicata - Partition of Property - Ordinance I of 1124, Ordinance II of 1124, Act V of 1125 - Interpretation of S.8 of the Ordinance and Act - Effect of foreign judgment - Jurisdiction of foreign court - Conclusive ness of foreign judgment - Burden of proof - Admission by party
Fact of the Case:
The case involved a dispute over the partition of an immovable property belonging to a tarwad. The plaintiffs and defendants contested whether the property belonged to the tarwad and was partible or not. The courts had to determine the effect of foreign judgments, the interpretation of relevant ordinances and acts, and the burden of proof in establishing the title to the property.
Finding of the Court:
The court held that the foreign judgment was not conclusive on the issue of title to the property, as the foreign court lacked jurisdiction to decide on immovable property situated outside its jurisdiction. The burden of proof lay on the plaintiffs to establish the property's partibility, and the court found no grounds for interference with the concurrent findings of the lower courts.
Issues: The key issues included the interpretation of S.8 of Ordinance I of 1124, Ordinance II of 1124, and Act V of 1125, the effect of foreign judgments, the jurisdiction of foreign courts, the burden of proof in establishing title to the property, and the admission by a party.
Ratio Decidendi: The court emphasized that a foreign judgment on immovable property outside its jurisdiction is not conclusive in another jurisdiction. It clarified the interpretation of S.8 of the relevant ordinances and acts, and upheld the burden of proof on the plaintiffs to establish the property's partibility. The court also rejected the contention of an admission by a party based on a Gazette Notification.
Final Decision: The Second Appeal was dismissed, and the court upheld the concurrent findings of the lower courts, ruling in favor of the 12th defendant-respondent.
1. This Second Appeal by defendants 4 and 6 to 11 arises out of O. S 204 of 1122 instituted in the Parur Munsiff's Court, for partition of an item of immovable property which may be referred to as the suit property, alleged to belong to the tarwad of the plaintiffs and defendants 1 to 11. The tarwad owned nine items of properties situated within the former State of Cochin, with respect to which a similar suit for partition, O. S.48 of 1121, was instituted in the Anjikaimal District Court. There was a previous suit O. S.184 of 1109 in the Anjikaimal District Court by some of the members of the tarwad, which was to remove Padmanabha Kurup from Karnavanship and in which the title of the tarwad to all the ten items of properties comprised in O. S.48 of 1121 and O. S.204 of 1122, together was found to be established by judgment Ext. XVI confirmed on appeal by the Cochin High Court by judgment Ext. C. Within a few days of Ext. C, Padmanabha Kurup whose claim to the exclusive ownership of the properties was thus negatived, gave an assignment of the suit property by Ext. XI in favour of the 12th defendant, as if it belonged to him. O. S.204 of 1122 was contested by the 12th defendant relying on Ext. XI. The two courts have accepted his contention and dismissed the suit. In the nature of the questions involved, this Second Appeal has been placed before a Full Bench and has been heard by us.
2. The sole controversy in this appeal is whether the suit property belongs to the tarwad and is partible or not. The plaintiffs and the defendants-appellants who supported them, relied a good deal on the finding in Ext. G as conclusive. The suit property lay within the limits of the territorial jurisdiction of the Parur Munsiff's Court, which at the time of the institution of O. S.204 of 1122, was a court of the former Travancore State, which upon its integration with the former Cochin State on the 1st July, 1949, became a part of the territory of the United State of Travancore and Cochin. Thus the Anjikaimal District Court which delivered Ext. XVI and the Cochin High Court which delivered Ext. C, had no jurisdiction at the time to decide title to the suit property. But the contention was, that on the 13th October, 1954 when judgment was pronounced by the Munsiff in O. S.204 of 1122, the Cochin High Court had ceased to be a foreign court, and so on that date the Parur Court was bound to treat Ext. C as res judicata. On the 1st July, 1949, the two Covenanting States of Travancore and Cochin were united, under what is familiarly known as the Integration Covenant, so as to form the United State of Travancore and Cochin, with a common Executive, Legislature and Judiciary. By virtue of Art.11 of the Covenant, the Raj Pramukh was empowered to promulgate Ordinances to have the force of law for a period of six months. Among the Ordinances which were promulgated on that date, Ordinance I of 1124 provided for the continued operation of the 'existing law' and the continued functioning of the Civil Courts in each State in the concerned area and Ordinance II of 1124 which is more relevant for the decision of this case, provided for the establishment, constitution and powers of a High Court for the new State. S.8 of this Ordinance reads:
"All proceedings commenced prior to the coming into force of this Ordinance in either of the High Courts of Travancore and Cochin, hereinafter in this Ordinance referred to as the existing High Courts, shall be continued and depend in the High Court as if they had commenced in the High Court after such date. Any order made by either of the existing High Courts in any such proceedings as aforesaid shall, for all purposes, have effect not only as an order of that court, but also as an order made by the High Court."
3. The effect of the above provision was contended to be, that the records of the former Travancore and Cochin High Courts were transferred to the new High Court so as to become part of the records of that High
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