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2024 Supreme(Online)(KER) 13478
CR IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE A. BADHARUDEEN WEDNESDAY, THE 7TH DAY OF FEBRUARY 2024 / 18TH MAGHA, 1945 RSA NO. 62 OF 2024 AGAINST THE ORDER/JUDGMENT OS 213/2019 OF MUNSIFF COURT, PALA AS 8/2022 OF ASSISTANT SESSIONS COURT/SUB COURT, PALA APPELLANT/S:
MARIYAM @ BEATRICE, REP. BY POWER OF ATTORNEY HOLDER BOBY KURIAN, AGED 87 YEARS MATTATHIL @VALYAPARAMBIL HOUSE, KEZHUVAMKULAM P.O, PULIYANNOOR VILLAGE, MEENACHIL TALUK, KOTTAYAM DISTRICT NOW RESIDING AT ST JOSEPH CONVENT, ST. THOMAS HOSPITAL, ST THOMAS MOUNT CHENNAI, REP. BY POWER OF ATTORNEY HOLDER BOBY KURIAN, S/O C K. KURIAN AGED 40, CHERUVIL HOUSE, KEZHUVAMKULAM P.O, PULIYANNOOR VILLAGE, PIN -
686584 BY ADVS.
C.S.BISSIMON DENNY VARGHESE RESPONDENT/S:
1 FR. JOSEPH MATTAM (DIED), MATTATHIL HOUSE , KEZHUVAMKULAM P.O, KEZHUVAMKULAM KARA, PULIYANNOOR VILLAGE, PIN - 686584
2 MARYKUTTY CHACKO, AGED 89 YEARS MATTATHIL HOUSE , KEZHUVAMKULAM P.O, KEZHUVAMKULAM KARA, PULIYANNOOR VILLAGE, PIN -
686584
3 ALVIN MATTATHIL, S/O SUNNY MATTATHIL @ SONY MATTATHIL MATTATHIL @ VALYAPARAMBIL , KEZHUVAMKULAM P.O, KEZHUVAMKULAM KARA, PULIYANNOOR VILLAGE NOW RESIDING AT GASSERGASSE
19/2/7/1050. VIENNA AUSTRIA EUROPE REPRESENTED BY NOHA THOMAS S/O THOMAS PULLATTU HOUSE KADAVANTHARA P.O, ERNAKULAM VILLAGE, PIN - 682020
4 ANAND MATTATHIL S/O SUNNY MATTATHIL @ SONY MATTATHIL MATTATHIL @ VALYAPARAMBIL , KEZHUVAMKULAM P.O, KEZHUVAMKULAM KARA, PULIYANNOOR VILLAGE NOW RESIDING AT GASSERGASSE 19/2/7/1050. VIENNA AUSTRIA EUROPE REPRESENTED BY NOHA THOMAS S/O THOMAS PULLATTU HOUSE KADAVANTHARA P.O, ERNAKULAM VILLAGE, PIN -
682020
5 ANJALY, D/O SUNNY MATTATHIL @ SONY MATTATHIL , MATTATHIL HOUSE , KEZHUVAMKULAM P.O, KEZHUVAMKULAM KARA, PULIYANNOOR VILLAGE NOW RESIDING AT GASSERGASSE 19/2/7/1050. VIENNA AUSTRIA EUROPE REPRESENTED BY NOHA THOMAS S/O THOMAS PULLATTU HOUSE KADAVANTHARA P.O ERNAKULAM VILLAGE, PIN - 682020
6 SR. MARY SIVILLIA@ ALEY D/O CHACKO, MATTATHIL HOUSE , KEZHUVAMKULAM P.O, KEZHUVAMKULAM KARA, PULIYANNOOR VILLAGE, MEENACHIL TALUK , KOTTAYAM DISTRICT, NOW RESIDING AT ST. MARY'S CONVENT KADALOOR P O, TAMILNADU STATE., PIN - 686584
7 CHACKO MATTAM , S/O MANI, MATTATHIL HOUSE, KEZHUVAMKULM P.O, KEZHUVAMKULAM KARA PULIYANNOOR VILLAGE, MEENACHIL TALUK KOTTAYAM DISTRICT., PIN - 686584
8 ALEYAMMA JOY , W/O JOY, KUMPALAPPALLIL HOUSE, MANAKKADAVU P.O, MANAKADAVU KARA UDAYAGIRI VILLAGE TALIPPARAMBU TALUK KANNUR DISTRICT., PIN - 670571
9 EMMANUEL @ OUSEPACHEN S/O MANI, MATTATHIL HOUSE, KEZHUVAMKULAM KARA, KEZHAUVAMKULAM PO, PULIYANNOOR VILLAGE, MEENACHIL TALUK, KOTTAYAM DISTRICT., PIN - 686584
10 M.M. JOSE , S/O MANI MATTATHIL HOUSE, MUTHOLY P.O, 686573 MUTHOLY KARA PULIYANNOOR VILLAGE MEENACHIL TALUK, PIN - 686573
11 M.M. THOMAS , MATTATHIL HOUSE, MUTHOLY P.O, MUTHOLY KARA PULIYANNOOR VILLAGE MEENACHIL TALUK, PIN - 686573
12 SCARIA, S/O ULAHANNAN ANNIEKAMATTATHIL HOUSE, PUNNATHARA WEST P.O, ETTUMANOOR VILLAGE, KOTTAYAM TALUK, PIN - 686631
13 ELSAMMA PAUL, W/O PAUL, ANNIEKAMATTATHIL HOUSE, PUNNATHARA WEST P.O, ETTUMANOOR VILLAGE, KOTTAYAM TALUK, PIN - 686631
14 ANNIE SCARIA, D/O SCARIA, ANNIEKAMATTATHIL HOUSE, PUNNATHARA WEST P.O, ETTUMANOOR VILLAGE, KOTTAYAM TALUK, PIN - 686631
15 SIBY SCARIA, ANNIEKAMATTATHIL HOUSE, PUNNATHARA WEST P.O, ETTUMANOOR VILLAGE, KOTTAYAM TALUK, PIN - 686631
16 RANI JOSE , VEGINTEKALPARAMBIL NEEZHOOR PO, NEEZHOOR KARA NEEZHOOR VILLAGE KOTTAYAM DISTRICT, PIN - 686612
17 THRESSIAMMA SCARIA , W/O SCARIA, VATHALLOOR HOUSE, KONGANDOOR P.O, KONGANDOOR KARA AYARKUNNAM VILLAGE, KOTTAYAM TALUK, PIN - 686564
18 MARY GEORGE , W/O GEORGE THONDICAKAL HOUSE, KADAPLAMATTOAM P.O, KADAPLAMATTOM KARA KADAPLAMATTOM VILLAGE MEENACHIL TALUK, PIN -
686571
19 JAMES THOMAS , S/O THOMAS , MATTATHIL HOUSE, KEZHUVAMKULAM P.O, KEZHUVAMKULAM KARA, PULIYANNOOR VILLAGE, MEENACHIL TALUK, PIN -
686584
20 JOSEPH THOMAS, S/O THOMAS MATTATHIL HOUSE , KEZHUVAMKULAM P.O, KEZHUVAMKULAM KARA, PULIYANNOOR VILLAGE, MEENACHIL TALUK, PIN -
686584
21 ROSAMMA THOMAS , D/O THOMAS, MATTATHIL HOUSE, KEZHUVAMKULAM P.O, KEZHUVAMKULAM KARA, PULIYANNOOR VILLAGE, MEENACHIL TALUK, PIN -
686584
22 MANUEL MATTOM, S/O THOMAS, MATTATHIL HOUSE, KEZHUVAMKULAM P.O, KEZHUVAMKULAM KARA, PULIYANNOOR VILLAGE, MEENACHIL TALUK., PIN -
686584
23 SIBY THOMAS, S/O THOMAS , MATTATHIL HOUSE, KEZHUVAMKULAM P.O, KEZHUVAMKULAM KARA, PULIYANNOOR VILLAGE, MEENACHIL TALUK, PIN -
686584
24 JOHN MATTAM THOMAS, S/O THOMAS MATTATHIL HOUSE, KEZHUVAMKULAM P.O, KEZHUVAMKULAM KARA, PULIYANNOOR VILLAGE, MEENACHIL TALUK NOW RESIDING AT D 24, SHIVADHARA APTS, THALTE SILAJ ROAD AHMEDABAD, PIN - 380059
25 SR. STANTLEY, D/O CHACHO, MATTATHIL HOUSE, KEZHUVAMKULAM P.O, KEZHUVAMKULAM KARA, PULIYANNOOR VILLAGE, MEENACHIL TALUK C/O JAMES CHACKO AGED 58 S/O CHACKO MATTATHIL HOUSE, KEZHUVAMKULAM P.O, KEZHUVAMKULAM KARA, PULIYANNOOR VILLAGE, MEENACHIL TALUK, PIN -
686584
26 MARY, D/O CHACKO MATTATHIL HOUSE, KEZHUVAMKULAM P.O, KEZHUVAMKULAM KARA, PULIYANNOOR VILLAGE, MEENACHIL TALUK C/O JAMES CHACKO AGED 58 S/O CHACKO MATTATHIL HOUSE, KEZHUVAMKULAM P.O, KEZHUVAMKULAM KARA, PULIYANNOOR VILLAGE, MEENACHIL TALUK, PIN - 686584
27 ALEYAMMA JOY , S/O JOY, MULAVELIKKUNNEL HOUSE, KURUMALLOOR P.O, VEDAGIRI KURUMALLOOR KARA , KANAKKARI VILLAGE, MEENACHIL TALUK, KOTTAYAM DISTRICT., PIN - 686632
28 JAMES CHACKO , S/O CHACKO MATTATHIL HOUSE, KEZHUVAMKULAM P.O, KEZHUVAMKULAM KARA, PULIYANNOOR VILLAGE, MEENACHIL TALUK, PIN -
686584
29 ANEY,D/O CHACKO MATTATHIL HOUSE, KEZHUVAMKULAM P.O, KEZHUVAMKULAM KARA, PULIYANNOOR VILLAGE, MEENACHIL TALUK, C/O JAMES CHACKO AGED 58 S/O CHACKO MATTATHIL HOUSE, KEZHUVAMKULAM P.O, KEZHUVAMKULAM KARA, PULIYANNOOR VILLAGE, MEENACHIL TALUK, PIN - 686584
30 KATHRIKKUTTY, W/O JOSEPH MATTATHIL HOUSEMANIKKADAVU P.O, SANTHINAGAR KARA, PAYYAVOOR VILLAGE, KANNUR DISTRCTI, PIN - 670633
31 BIJU JOSEPH, S/O JOSEPH MATTATHIL HOUSE ULIKKAL P.O, KOKKADU KARA VYTHIRI VILLAGE KANNUR DISTRICT, PIN - 670705
32 BINU JOSEPH , S/O JOSEPH MATTATHIL HOUSE MANIKADVU P.O, SANTHINAGAR KARA, PAYYAVOOR VILLAGE KANNUR DISTRICT, PIN - 670633
33 BLESSY JOSEPH , D/O JOSEPH MATTATHIL HOUSE MANIKADVU P.O, SANTHINAGAR KARA, PAYYAVOOR VILLAGE KANNUR DISTRICT, PIN - 670633 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 07.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
CR A.BADHARUDEEN, J.
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R.S.A.No.62 of 2024 =============================================================
Dated this the 7th day of February, 2024
J U D G M E N T
This appeal is at the instance of the plaintiff in O.S.No.213/2019 on the files of Munsiff Court, Pala. The respondents are the defendants in the suit.
2. Heard the learned counsel for the appellant/plaintiff on admission. I shall refer the parties as plaintiff and defendants.
3. The plaintiff filed the suit contending that the parties are Christians and are governed by the Indian Succession Act, 1925. According to the plaintiff, plaint A and B schedule properties belonged to the father of the plaintiff by name Chacko, S/o. Mattathilaya Valiyaparambil Chacko. It is the further contention that Chacko obtained absolute ownership over the property covered by partition deed No.339/1100 and sale deed No.3482/1103 of Meenachil SRO. The contention of the plaintiff further is that Chacko died intestate and his mother also died.
Therefore, the plaintiff, who is governed by the Indian Succession Act, is entitled for 1/5th share over the plaint schedule property.
4. Defendants 1 to 5, 17, 18, 19, 20, 27 and 23 filed written statement and the crux of their contentions is that Chacko died in the year 1938 and therefore, in the matter of succession, the parties are governed by Travancore Succession Act, 1092 and Indian Succession Act has no application in the instant case. 5. The trial court raised necessary issues and recorded evidence. During trial PW1 and PW2 were examined and Exts.A1 to A7 were marked. DW1 to DW7 were examined and Exts.B1 to B25 were marked. Exts.X1 and X2 were also marked. Finally the trial court found that Chacko died in the year 1938 and relying on Exts.X1 and X2 held that the parties are governed by the Travancore Succession Act, 1092. Accordingly, suit was dismissed. The trial court verdict was assailed in A.S No.8/2022 before the Sub Court, Pala, but the appellate court also concurred the finding of the trial court and dismissed the appeal.
6. Even though the learned counsel for the plaintiff submitted that Chacko died in the year 1953 and, therefore, Indian Succession Act, 1925 would apply in this matter, it is discernible from the verdicts of the trial court that the plaintiff never raised pleadings in the plaint that Chacko died in the year 1953 and no evidence also let in, in this regard.
7. The trial court as well as the appellate court relied on Exts.X1 and X2, copies of the death register and the details of Almayar of Cherpunkal Church, to hold that Chacko died in the year 1938. In the decision reported in [AIR 1986 SC 1011], Mary Roy v. State of Kerala & Ors. the Apex Court held as under :
“So far as Indian Christian are concerned, Chapter II of Part V contains rules relating to intestate succession and a fortiori on the extension of the Indian Succession Act, 1925 to Part B State of Travancore Cochin, the rule relating to intestate succession enacted in Chapter II of Part V would be applicable equally to Indian Christians in the territories of the former State of Travancore. It cannot be said that S.29, sub-sec. (2) of the Indian Succession Act, 1925 saved the provisions of the Travancore Christian Succession Act, 1092 and that therefore despite the extension of the Indian Succession Act, 1925 to Part B State of Travancore Cochin, the Travancore Christan Succession Act, 1092 continued to apply to Indian Christians in the territories of the erstwhile State of Travancore. S.6 cannot be overlooked in such a case. The Indian Succession Act, 1925 was extended to Part B State of Travancore-Cochin by virtue of S.3 of PartB States (Laws) Act, 1951 and if therefore, there was in force in Part B State of Travancore- Cochin any law corresponding to the Indian Succession Act, 1925 immediately prior to 1st April, 1951, such law would stand wholly repealed.
In such a case, the continuance of Travancore Act cannot be justified on the ground that, the Travancore Christian Succession Act, 1092 was not a law corresponding to the Indian Succession Act, 1925 since the latter Act had a much wider coverage in that it
