Thomas P. Joseph, J.@mdashThe substantial question of law framed in the appeal is:
Have not the courts below gone wrong in awarding a decree for mesne profits fixing the rate of Rs. 12,000/- per annum solely on the basis of the admission of appellant/defendant that the building in the plaint property would normally fetch a rent of Rs. 1,000/- per month, ignoring the relevant factors and legal principles applicable in fixing and awarding future mesne profits?
After hearing learned counsel for appellant and respondent, the following substantial question of law is also framed for a decision:
Whether, in view of the Kerala Joint Hindu Family (Abolition) Act, 1975 (for short, "Act 30 of 1976") is it still open to the respondent to contend that succession to the suit property should be in accordance with the marumakkathayam law as provided under Sec. 17 of the Hindu Succession Act, 1956? (for short, "the Act")
2. The second appeal arises from the judgment and decree of learned District Judge, Thiruvananthapuram in A.S.No.167 of 2009 confirming judgment and decree of learned Sub Judge, Nedumangad in O.S.No.59 of 2007 declaring title of respondent over the suit property, allowing her to recover possession of the same, declaring that Ext.A2, sale deed dated 26.04.2 007 is void and, allowing the respondent to recover mesne profit from the appellant at the rate of Rs. 12,000/- per annum.
3. Facts which are not in dispute are as under:
One Prathibha Kumari is the daughter of respondent/plaintiff. The suit property originally belonged to her husband, Bhuvanachandran who executed Ext.A1, gift deed No.2168 of 1990 dated 05.10.1990 in favour of the said Prathibha Kumari. She died on 02.01.2002, issueless. Bhuvanachandran, her husband died on 11.01.2007. Following that, 1st defendant (she later died and appellant was recorded as her legal heir), the mother of Bhuvanachandran claiming that on the death of Bhuvanachandran the suit property was inherited by her, executed Ext.A2, sale deed dated 26.04.2007 in favour of appellant. Respondent/plaintiff contends that in view of Ext.A1, gift deed, property belonged to Prathibha Kumari and on her death, it devolved on respondent/plaintiff, mother as her only legal heir. Respondent prayed for a declaration as above stated and recovery of possession with mesne profits at the rate of Rs. 1,000/- per month.
4. Appellant contended that the sale deed in his favour is valid since on the death of Bhuvanachandran, property devolved on his only legal heir, deceased 1st defendant and hence deceased 1st defendant was competent to execute Ext.A2, sale deed in his favour. It is also contended that Ext.A1, gift deed was executed by Bhuvanachandran in the name of Prathibha Kumari to facilitate availing a loan, that gift did not take effect nor was it intended to take effect and hence by virtue of Ext.A1, gift deed Prathibha Kumari did not acquire title. So, on her death the suit property would not devolve on respondent/plaintiff, her mother.
5. Trial court found that under Ext.A1, gift deed No.2168 of 1990 dated 05.10.1990 Prathibha Kumari acquired title over the suit property and since the parties are Ezhavas who followed marumakkathayam law of succession, Sec. 17 of the Act would apply and thus, respondent/mother of Prathibha Kumari as the sole legal heir inherited the suit property. In that view, trial court held that Bhuvanachandran, husband of Prathibha Kumari acquired no right over the property to pass on to the deceased 1st defendant on his death. Hence Ext.A2, sale deed is void. Trial court placed reliance on the decision of the Full Bench of this court in Chellamma Kamalamma v. Narayana Pillai (1993 (1) KLT 174). Trial court also held that respondent is entitled to recover mesne profit from the suit property and building at the rate of Rs. 1,000/- per month. Though, appellant had raised a claim for value of improvements, that was found against.
6. Appellant challenged that judgment and decree before learned District Judge, Thiruvananthapuram in A.S.No.167 of 2009 but, only to get a confirmation of judgment and decree of the trial court. Hence the Second Appeal.
7. Learned counsel for appellant contends that since Act 30 of 1976 has done away with the marumakkathayam law in the matter of succession, it is idle to contend that Sec. 17 of the Act would apply. According to the learned counsel, there could be no reliance on a non-existent law. Hence, Sec. 17 of the Act has no application. Learned counsel has placed reliance on the dissenting view (paragraph 75 onwards) in Chellamma Kamalamma v. Narayana Pillai (1993 (1) KLT 174),
8. It is further contended by the learned counsel that notwithstanding that appellant had effected improvements in the property and building spending around Rs. 3,50,000/- and a plea to that effect raised, trial court did not frame any issue on that. Hence, appellant was not able to adduce evidence on the question. It is prayed that the suit is liable to be remitted to the trial court to frame proper issue regarding value of improvements claimed by the appellant. A further argument learned counsel has advanced is that mesne profits fixed by the trial court is without any evidence at all, respondent not even going to the witness box to say about the rent which the building in the suit property would have fetched.
9. Learned counsel for respondent has contended that there is no reason to deviate from the judgment of the Full Bench in Chellamma Kamalamma v. Narayana Pillai (supra). It is pointed out by the learned counsel that the majority decision of the Full Bench is to the effect that as to persons who are born on or after 18.06.1956 (the date of commencement of the Act) but before 01.12.1976 (when Act 30 of 1976 came into force) and who died on or after 01.12.1976, Sec. 17 of the Act would govern intestate succession. According to the learned counsel, Prathibha Kumari was born after 18.06.1956 and died after 01.12.1976 and hence, came within the sweep of decision of the Full Bench in Chellamma Kamalamma v. Narayana Pillai (supra).
10. It is further contended by the learned counsel that so far as value of improvements claimed by the appellant is concerned, once it is found that Ext.A2, sale deed in his favour is void, appellant cannot claim value of improvements even under Sec. 51 of the Transfer of Property Act (for short, "the TP Act") and as regards mesne profits awarded by the trial court and confirmed by the first appellate court is concerned, it is pointed out that it is admitted by the appellant in his written statement that the building in the suit property will fetch Rs. 1,000/- by way of rent which, respondent is entitled to get by way of mesne profits and as such, there is no reason to interfere with the judgment and decree of the courts below.
11. Sec. 17 of the Act says that provisions of Secs. 8, 10, 15 and 23 of the Act shall have effect in relation to "persons who would have been governed by the marumakkathayam law or aliyasantana law if this Act had not been passed". It is not very much in dispute that if Sec. 17 of the Act would apply and by Ext.A1, gift deed No.2168 of 1990 Prathibha Kumari acquired title over the suit property, her sole legal heir is the respondent/plaintiff, her mother.
12. So far as Ext.A1, gift deed No.2168 of 1990 is concerned, contention raised by the appellant is that Bhuvanachandran had executed that gift deed in favour of his wife, Prathibha Kumari merely to facilitate availing a loan. On that plea no evidence worth the name was adduced, not to say that appellant has not even gone to the witness box. Ext.A1 is not an onerous gift. So far as a gift which is not onerous is concerned, it is settled position of law that only slight evidence is required for its acceptance and that in appropriate cases, even the recital in the deed would be sufficient to prove acceptance. In Ext.A1, it is not disputed before me that the recitals are to the effect that Bhuvanachandran divested himself of his right, title, interest and possession and the same were conveyed to his wife, Prathibha Kumari. Therefore and also in the absence of any contra evidence let in by the appellant, contention that Ext.A1 has not taken effect or was not to be acted upon cannot be accepted. It follows that by Ext.A1, Prathibha Kumari, daughter of respondent became the absolute owner in possession of the suit property.
13. Back to Sec. 17 of the Act. The provision says that Secs. 8, 10, 15 and 23 of the Act shall have effect in relation to persons who would have been governed by the marumakkathayam law (in this case) in the matter of succession. Learned counsel contends that since by Act 30 of 1976 marumakkathayam law was abolished, question of application of marumakkathayam law after 01.12.1976 when Act 30 of 1976 came into force does not arise. Learned counsel says that there could be no reference to a non-existent law. It is also pointed out by the leaned counsel that when Sec. 17 of the Act was incorporated in the Act, marumakkathayam law was in force and, it is later that Act 30 of 1976 is enacted abolishing the marumakkathayam law. Therefore it is contended that after 01.12.1976 when Act 30 of 1976 came into force, there could be no reference to parties being governed by the marumakkathayam law as referred to in Sec. 17 of the Act.
14. In support of that contention learned counsel has invited my attention to paragraph 75 onwards of Chellamma Kamalamma v. Narayana Pillai (supra). There, dissenting from the majority view, learned Judge has stated that Sec. 17 of the Act is not repealed by Act 30 of 1976, nor is it in any way repugnant to the provisions of the Act. It is held that even if there is no repeal or repugnancy between the Act and Act 30 of 1976 in certain cases, if the provision in the former enactment become unworkable or cannot be applied in the light of the later enactment (here, Act 30 of 1976) the former provision (Sec. 17 of the Act) becomes inoperative and ineffective. If the application of the provision in the earlier enactment is dependant on the existence of certain factors and if those factors are affected by a latter enactment, such a provision becomes unworkable and ceases to be operative. Tested in the light of the above principle, learned Judge took the view that there could be no hesitation to say that Sec. 17 of the Act has become inoperative.
15. The majority view in Chellamma Kamalamma v. Narayana Pillai (supra) (which I am bound to follow) has taken a different note of the matter. In paragraph 50, the result of the discussion is summarised. It is held:
Sec. 17 of the Act will govern the law of succession on the death of males or females who were governed by the marumakkathayam system if such persons were ...
(1)...
(i)...
(ii)...
(iii)
(iv)born on or after 18.6.1956 when the Hindu Succession Act, 1956 came into force but before 1.12.1976 and who died on or after 1.12.1976 when the Kerala Joint Hindu Family System (Abolition) Act, 1975 came into force.
The Full Bench approved the decision in Madhavi Amma v. Kalliani Amma (1988 (2) KLT 964) and of the Division Bench in Bhaskaran v. Kalliani (1990 (2) KLT 749).
16. In the light of the binding decision of the Full Bench, I cannot accept the view expressed by the learned Judge in the dissenting judgment. I must also notice that what the Division Bench has referred to in Clause (iv) of paragraph 50 quoted above is concerning persons who are born on or after 18.06.1956 when the Act came into force but before 01.12.1976 and who died on or after 01.12.1976 when the Act 30 of 1976 came into force. It is in relation to those persons that the Full Bench (majority view) held that Sec. 17 of the Act would apply.
17. I shall also refer to other decisions relied by the learned counsel for appellant of the Supreme Court. In Sundari and others v. Laxmi and others (supra) it is held that Chapter II of the Act which deals with intestate succession of Hindus would prevail over any law which was in force immediately before the commencement of that Act and therefore, after coming into force of the Act an undivided interest of an Aliyasanthana Hindu possessed of life interest would devolve as provided for under Sec. 7(2) while in the case of separate property it would devolve on his heirs as provided for in Sec. 17 of that Act. The Aliyasanthana Act would not be applicable.
18. Though, learned counsel for appellant has a contention that the suit property originally belonged to the family of Bhuvanachandran and he got it as per partition deed No.1296 of 1985, I found that by Ext.A1, gift deed he conveyed his right, title, interest and possession to his wife, Prathibha Kumari. Therefore, the suit property belonged to Prathibha Kumari as per Ext.A1. Moreover, in the decision referred to supra, it is not as if application of Sec. 17 of the Act is totally taken away. What is held is only that the Aliyasanthana Act would not be applicable. Nor, does the said decision affect the Full Bench decision referred to above.
19. The other decision on which reliance is placed is Bhagat Ram (Dead) by LRs. v. Teja Singh (Dead) by LRs. (supra). There, application of Secs. 15(2)(a) and 14 of the Act was considered. It is held that under Sec. 15 (2)(a) of the Act if the property held by a female was inherited from her father or mother, in the absence of any son or daughter of the deceased including the children of any predeceased son or daughter, it would only devolve upon the heirs of the father. It is also held that it is the source from which the property was inherited by the female which is more important for the purpose of devolution of her property, that a female Hindu originally had a limited right and later acquired the full right does not in any way alter the rules of succession given in Sub-sec.(2) of Sec. 15 of the Act.
20. I may say the said decision has no application to the facts of this case. I stated that even as per the case of appellant, the suit property belonged to Bhuvanachandran as per partition deed No.1296 of 1985 executed between himself, his brothers and sisters and that, by Ext.A1, the said property has become the absolute property of his wife, Prathibha Kumari.
21. Yet another decision learned counsel has placed reliance is Basanti Devi v. Ravi Prakash Ram Prasad Jaiswal (supra). There also, the scope and application of Secs. 15, 3(f) and 8 of the Act was considered. The question considered was implication of the expression ''heirs'' occurring in Rule 683 of the Bombay High Court Rules. It was held that Sec. 3(f) of the Act defines "heir" to mean any person, male or female, who is entitled to succeed to the property of an intestate under the Act. Sec. 15 of the Act lays down the general rules of succession in the case of female Hindus and provides for devolution of property under certain conditions upon heirs of the husband. It is further held that for the purpose of ascertaining as to who would be heirs of the husband if the deceased did not leave any sons and daughters or husband, reference has to be made to Sec. 8 of the Act. I am afraid, the said decision also cannot be applied to the fact situation in the case.
22. The last of the decision referred to me is S.R. Srinivasa and others v. S. Padmavathamma (supra). There also, application of Secs. 15 and 30 of the Act is considered. My attention is drawn to paragraph 34 of the decision. There, it is held that a perusal of Sec. 15 would show that the basic aim of Sec. 15(2) is to ensure that inherited property of an issueless female Hindu dying intestate goes back to the source. It was enacted to prevent inherited property falling into the hands of strangers. It is also held that this is evident from the recommendations of the joint committee of Houses of Parliament, which have been duly noticed by the Supreme Court in State of Punjab v. Balwant Singh (1992 Supp (3) SCC 108).
23. So far as application of the above decision is concerned, I stated that Prathibha Kumari acquired full title over the property as per Ext.A1, gift deed and if Sec. 17 of the Act were to apply as the Full Bench has held in Chellamma Kamalamma v. Narayana Pillai (supra), her sole legal heir is her mother, respondent and, it must be taken that she has inherited the property.
24. Having heard learned counsel on both sides, I do not find any reason to doubt the correctness of the majority view in Chellamma Kamalamma v. Narayana Pillai (supra). Bound as I am by the said decision I must hold that Sec. 17 of the Act would apply, Clause (iv) of Sec. 17(1) of the Act in Chellamma Kamalamma v. Narayana Pillai (supra) applied and it follows that respondent acquired absolute right by law of succession under Sec. 17 of the Act over the suit property. It follows that Bhuvanachandran acquired no right over the property and hence on his death, his mother could not acquire any right If that be so, trial and first appellate courts are right in holding that Ext.A2, sale deed executed by the mother of Bhuvanachandran in favour of appellant is void and conveys no right, title, interest or possession to the appellant.
25. In that view of the matter, trial and first appellate courts were right in granting the declarations and recovery of possession prayed for by the respondent.
26. Next question is concerning non-framing of issue regarding improvements said to be effected by appellant over the building in the suit property. It is contended that around Rs. 3,50,000/- was spent by the appellant for improvement of the building. But, concededly no evidence in that line was let in. Assuming that trial court did not frame an issue on the question, it is not as if appellant could not alert the trial court about the necessity to frame an issue regarding that. Rule 5 of Order XIV of the CPC (for short, "the Code") empowers the court to add, alter or modify or even delete any issue. It was open to the appellant to alert the court of the need to frame an issue regarding value of improvements claimed by the appellant. that was not done. That apart, no evidence was also let in.
27. I must notice that in law, appellant could not claim any value of improvements. Admittedly, provisions of the Compensation for Tenants Improvements Act, 1958 has no application. Then the question is whether Sec. 51 of the TP Act would apply? That provision applies only when a person having a ''defective title'' under the bonafide belief of having good title over the property effects improvements. In this case, question of ''defective title'' does not arise since trial and first appellate courts found that by Ext.A2, sale deed appellant acquired no right over the property since that assignment is void as the assignor had no right, title, interest or possession of the property. If that be so, it is idle to contend that appellant was holding the property under a defective title. It is useful to refer to the decision in
28. No doubt, there is no rule or presumption that everybody knows the law. But, that appellant was unaware of Sec. 17 of the Act is also no excuse. Therefore, I am not inclined to think that appellant was holding the property either under a ''defective title'' or, on the bonafide belief that he has title to the property. In that view of the matter, the empty formality of remand to frame an issue regarding value of improvements cannot be resorted to.
29. What remains for consideration is whether finding of the trial court regarding mesne profits involves any substantial question of law?
30. Under Sec. 100(5) of the Code notwithstanding that a substantial question of law is framed, it is open to the opposite party to contend that no substantial question of law is involved. Learned counsel for respondent contends that so far as finding regarding mesne profits is concerned, no substantial question of law is involved. But, the argument of learned counsel for appellant is that so far as mesne profits is concerned, absolutely no evidence is let in by the respondent.
31. No doubt, respondent has not gone into the box to speak in favour of mesne profits. But, I find from paragraph 6 of the written statement that appellant has admitted that the building in the suit property is liable to fetch Rs. 1,000/- per month by way of rent. That can be taken as basis for fixation of mesne profits. A fact which is admitted is not required to be proved. If that be so, mesne profits of Rs. 12,000/- per annum fixed by the trial court is justified as it is based on the admission contained in paragraph 6 of the written statement of the appellant. In that view of the matter, failure of respondent to mount the witness box to speak about mesne profits is of no consequence. No substantial question of law is involved regarding mesne profits in the light of the above.
32. The other substantial questions raised are answered as above. The result of my discussion is that the Second Appeal is liable to be dismissed. However, having regard to the fact that appellant is now occupying the building in the suit property I am inclined to grant some time to the appellant to vacate the premises. Resultantly the Second Appeal is dismissed. But, appellant is granted three months time from this day to vacate the building in the suit property subject to the following conditions:
i. Appellant shall vacate the building in the suit property on the expiry of three months granted hereby without putting forth any claim or objection on any count whatsoever.
ii. Appellant shall not create documents, encumber or induct third parties into possession of the suit property during the said period of three months.
iii. Appellant shall within two weeks from this day file affidavit in the executing court, without prejudice to the right if any of the appellant to move the Apex Court in the matter, undertaking to comply with the conditions above stated.
iv. Execution proceedings will stand in abeyance during the said period of three months or till there is violation of any of the above conditions whichever is earlier. All pending interlocutory applications will stand dismissed.
