KRISHNA PILLAI Vs. THEKKE VALIA VEETIL PARUKUTTY AMMAL

JUDGEMENT

(1.) THIS second appeal raises an important and interesting point of law regarding the meaning and bearing of Section 4 of the Partition Act. The facts are briefly these.

(2.) THE appellant, Krishna Pillai, is the mother's sister's son of the first defendant, Parukutty Ammal of Nagaram Amsom, Kozhikode taluk. Parukutty Ammal and her sister, Thangammal, were living in the suit house, as tenants -in -common, having inherited it from their mother, and had not divided it. On 29th August 1940, Krishna Pillai bought the half share of Thangammal in that house and obtained a decree for partition of his half shave. Parukutty filed an application under Section 4 of the Partition Act to buy out Krishna Plllal's share. Krishna Pillai contended that the house in question did not belong to 'an undivided family', as Parukutty and Thangammal were sisters in a 'Mitakshara' family, and so would belong to 'different families', and not to one joint family or coparcenary, and that he himself, though an alienee, was 'a member of the family' and could not be deemed to be 'not a member of the family', under Section 4, and that an order under Section 4, giving the right to Parukutty to buy out his share and giving him no right to buy out Parubutty's share would be 'unjust and inequitable.' The principal District Munsiff of Calicut, by his order dated the 28th November 1946, in I.A. No. 6057 of 1946, in O.S. No. 493 of 1943, the application put In by Parukutty under Section 4, held that Parukutty was entitled to the benefit conferred by Section 4, and overruled all the objections of Krishna Pillai. Krishna Pillai took the matter in appeal. The District Judge of South Malabar, who heard the appeal, confirmed the order of the District Munsiff by his judgment and decree dated 29th September 1947 in A. S. No. 108 of 1947, and dismissed the appeal with costs. Hence this second appeal by Krishna Pillai.

(3.) THE next contention of Mr. Vcnkatachala Sastry was that the ' appellant, Krishna Pillai, could not be termed to be a person who was 'not a member of the family', as he was the mother's sister's son of Parukutty, the first defendant and as, by virtue of his purchase, the undivided house in question belonged to him also along with Parukutty. I cannot agree. The ruling in 'Shafian Eegam v. Mt. Kiflato' : AIR1939All640 was relied on by Mr. Venkatachala Sastry, and it was urged that when a Muslim widow was held to be 'a member of the family' regarding her first husband's family after she had remarried, a mother's sister's son, like Krishna Pillai, would also be 'a member of the family.' That ruling will not. in my opinion, apply to this case. There, the widow was living for years and years in that house and continued to live there even after remarriage, with her son and two daughters by her first husband. No doubt, her second husband also joined her there, as a second wife may join a Hindu living in his deceased first Wife's house with his son ana daughters by her. So she was considered to be 'a member of the family' regarding her first husband's family, and she was undoubtedly a member of his family, namely, his wife - - widow, and continued to live in the same dwelling house even after his death. Here, Krishna Pillai, a mother's sister's son of Parukutty, was 'never' a member of her family, and never lived in this dwelling house. No sane man or woman would have considered him and Parukutty to be members of the 'same family', let alone 'the same undivided family.' It is crystal clear that Krishna Pallai never lived in this dwelling house along with Parukutty as a member of an undivided family. The lower appellate Court has, in paragraph 1 of its judgment, stated as below: 'It is also not disputed that the first respondent has been residing in the dwelling house and that the appellant has been residing elsewhere.' This recital in the lower appellate Court's Judgment has been challenged before me by Mr. Venkatachala Sastry as incorrect. Sri Alladi Krishnaswami Aiyar, on the other side, rightly urged that a recital in the judgment of a judicial officer, like a District Judge, cannot be challenged as incorrect and must be taken to be correct in all events and circumstances, there being an 'absolute and irrebuttable' presumption to that effect. There is no need to discuss that extreme position here, It may be that there may be some exceptional cases, of 'proved' accidental slips and statements in judgments; where a challenge is 'possible.' But, in the absence of 'conclusive proof of such erroneous statements' creeping in judgments, by affidavits of vakils and parties, I am of opinion that the recitals in a judgment of a judicial officer must be taken to be correct as regards the facts said to have been admitted or conceded before him. To hold otherwise will be to prolong the hearing of cases and to drag Judicial officers into unnecessary vexatious and undignified controversies. So I take the above recital by the learned District Judge in his Judgment to be correct, all the more readily because Krishna Piliai never stepped into the box and spoke to his living in the dwelling house at any time. Nor did he even file an affidavit about any such living there, thus confirming the correctness of the recital in the learned District Judge's Judgment.