SOBANA BAI Vs. S EPPSI

JUDGEMENT

(1.) The first plaintiff appeals. The suit out of which the appeal arose was laid under the following circumstances. One Sivagnanam died in the year 1964 leaving him surviving nine children, viz, plaintiffs 1 to 3, one Rathna Bai represented by plaintiffs 4 and 5, defendants 1 to 4 and one Aseri whose wife is the 11th defendant and whose children are defendants 7 and 8. Out of these nine children, defendants 1 and 2 and Azari are sons and the others are daughters. The appellant herein, 1st plaintiff filed the suit, O. S. 62 of 1968 on the file of the Principal District Munsif, Padmanabhapuram, against her other brother, sisters and their successors-in-right. In that suit she stated that her father demised 50 cents of land as Stridhanam after her marriage and accordingly he surrendered possession of that portion of the land in the suit properties. She prayed for a declaration of title and possession in respect of that portion of the land. The suit was resisted by the defendants on the ground that the plaintiff was given Stridhanam by way of jewels and that the oral gift and oral surrender by the father pleaded by the plaintiff was not true and valid. The trial Court held that the alleged oral gift was not valid and dismissed the suit.

(2.) During the course of appeal there was an attempt for compromise as per which it was agreed that the appellant first plaintiff should be entitled to her 50 cents of land as claimed by her. But one of the defendants, viz, 9th defendant in the suit, did not join the compromise and therefore it was decided that the compromise cannot be given effect to and that the plaintiff cannot be granted the relief prayed for by her. The appellate Court upheld the finding of the trial Court that the oral gift, inasmuch as it was invalid in law, cannot be recognised by the court for the purpose of declaring the title of the plaintiff. The dismissal of the suit was therefore confirmed by the appellate court. However, while dismissing the appeal, the appellate Court observed that the remedy open to the plaintiff was to file a suit for partition and to ask by way of equity for allotment of that portion in her possession towards her share. This appellate judgment was pronounced in A. S. 34 of 1971 on 30-8-1973. Accordingly, the first plaintiff along with her sisters filed the present suit O.S. 359 of 1974, for partition of the immovable properties forming the estate of their father, Sivagnanam and claimed 1/9 share in the suit properties as the heir of her father under the Indian Succession Act 1925. The defendants resisted the suit contending that the parties are governed by the Travancore Christian Succession Act, 1916 (1092 M.E.). While admitting that the plaintiff has put up a house in item 1, the defendants contended that the claim of the plaintiff for 50 cents under the oral gift was barred by res judicata in view of the decree of the courts in O.S. 82 of 1968. They accordingly prayed for the suit to be dismissed. The trial Court by judgment dated 13-9-1975 came to the conclusion that the parties being Christians were governed by the Indian Succession Act, 1925, and held that the first plaintiff was entitled to 1/9 share and plaintiffs 2 to 5 were together entitled to 3/9 share in the plaint schedule properties. Accordingly, the trial court passed a preliminary decree for partition by metes and bounds and directed that such a partition of the first plaintiff's share in item 1 will be allotted in such a way as to include her house in that item.

(3.) On appeal before the first appellate Court, the two points which were taken for determination were: (1) Whether the first plaintiff was entitled to 1/9 share in the plaint schedule properties? and (2) if not, whether the plaintiff was entitled to 50 cents of land and the house thereon under the oral gift from the father? The first appellate Court by judgment dated 28-8-1978 decided that the Indian Succession Act 1925, was not applicable to the parties who are Christians of Kanyakumari district and that only the Travancore Christian Succession Act 1092 M.E. would apply to them as per the ruling of the Division Bench of this Court in Chelliah Nadar v. G. Lalitha Bai, AIR 1978 Mad 66. The appellate Court also decided that the claim of oral gift was already negatived in O. S. 62 of 1968 and hence that decision would operate as res judicata, which would disentitle the first plaintiff to reagitate the same plea. Accordingly, the appeal was allowed and the suit filed by the plaintiffs was dismissed.