TMI Blog1963 (5) TMI 74X X X X Extracts X X X X X X X X Extracts X X X X ..... esavan, and he brought the present suit for redemption of the otti, offering to pay 3500 fanams in equivalent money and for improvements, if any, as determined by the court. The suit was valued at 3500 fanams (about ₹ 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 (respondents 2 and 3) filed a written statement, but do not appear to have taken much interest thereafter. 2. 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. He 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 O.S. No. 36 of 1100 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 de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ₹ 10,000, the trial court had no jurisdiction to try the suit. 6. The present appeal is against the judgment of the High Court which reversed the decision of the court below, and if the valuation was above 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 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dent claimed 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 Bhagavathi Valli was governed by the Ezhava Act. 9. '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 Parameswaran 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 among wife and children equally. Except where a contrary intention is expressed in the instrument of gift or be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... andson. His son was then unheard of for years. He thus divided his properties between his wife and grandson and the intention is manifest that each was to take exclusively. 12. Dr. Seyid Muhammed next contends that the property was either shared by Bhagavathi Valli with her son and son's son as shown in the proviso to s. 32, quoted above, or it belonged to her exclusively. In either case, he contends Vasudevan would have an interest and could transmit it to the appellant. He argues 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 present appellant, as a transferee from him. Alternatively, if the property became that of Bhagavathi Valli alone, then, succession to that property would be governed by Sections 18 and 19 of the Ezhava Act, read with Explanation II, which explanation governs the whole of part IV where Sections 18 and 19 figure. These sections and the explanation read : 18. Devolution of self-acquired or separate property of a female. On the death of an Ezhava female, the whole of her self-acquired or separate property left undispose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s that whether Sivaraman survived Bhagavathi Valli or died before her, Vasudevan succeeded, as an 'issue' within the expression 'how-low-so-ever' of the Explanation, at least to a fractional interest in the property. He would thus be in a position to transfer that interest to the appellant, and the appellant would be a 'person interested' for the purpose of redeeming the otti. But this can only be if the provisions regarding succession under the Ezhava Act were applicable to Valli. 15. Though in the pleadings, there is no mention that Bhagavathi Valli had secured an exemption from the Ezhava Act, parties appeared to have joined issue on this subject. The answering respondent filed in the Court a copy of a Gazette notification which, so it was claimed, mentioned Bhagavathi Valli's name among the persons who were granted exemption from part IV of the Ezhava Act. Section 33, under which such an exemption from the Act could be claimed, reads : 33. (1) On an application made within six months from the commencement of this Act - (i) by an individual member of an Ezhava tarwad with reference to the provisions of part IV, x x x the Government may ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Valli, and the only witness examined on the side of the defendant deposed about the notification and was not cross-examined on this point. The plaintiff did not seek the permission of the court to lead evidence on this point. Nor did he object to the reception of this evidence. Even before the District Judge, the contention was not that the evidence was wrongly received without a proper plea and issue but that the notification was not clear and there was doubt whether this Bhagavathi Valli was exempted or not. 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 issue, therefore, did not lead to a mis-trial sufficient to vitiate the decision. The plea was hardly needed in view of the fact that the plaintiff made the following plea in the replication : The suit property was obtained as makkathayam property, by Bhagavathi Valli, under the Ezhava Act. And as per the provisions in the said Act, the said property was obtained exclusively by Vasudevan, subsequent to the death of the said Bhagavathi Valli and Sivaraman . and the notification was filed to co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... bu Bungalow in Katakampulli Pakuthi and stated that she had an elder sister by name Bhagavathi Valli who was residing in the Veedu. It is, therefore, clear that the tarwad had two places of residence, one veedu in Vanchiyoor Pathirikari Muri, and the other, a bungalow called Thottuvaramba in Katakampalli Pakuthi. One of these addresses is given in Exh. II. It would, therefore, follow that the address as given in Exh. II does not show that this was some other Bhagavathi Valli. Indeed the points which identify the suit Bhagavathi Valli with the Bhagavathi Valli mentioned at No. 170 are numerous. The name is correctly described. It is also a fact that she belonged to the Bhagavathi Bhagavathi branch. Further, she was of Pinarummoottu tarwad. Then follow two other names, namely, Bhagavathi Narayani and Narayani Gouri who also belonged to the same branch and tarwad and who could be none other than her sister and her niece. Even the address is correct. It is, therefore, quite clear that the High Court was right in holding that the identity had been established. The observation of the learned District Judge that there were many Bhagavathi Vallis in the list is not borne out on the record ..... X X X X Extracts X X X X X X X X Extracts X X X X
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