SECRETARY OF STATE FOR INDIA IN COUNCIL THROUGH THE COLLECTOR OF MALABAR Vs. KUTTIPRETH KOVILAKATH KADATHANAD PORLATHIRI KUNHI KRISHNA VARMA VALIA RAJA AVERGAL

JUDGEMENT

(1.) The plaintiff is the Valia Raja of Kadathanad, having succeeded to the title on the death of the previous holder, Krishna Varma, in 1919. In 1918 Krishna Varma Valia Raja had subscribed for six war bonds of Rs. 1000 each and 60 Post Office cash certificates of Rs. 100 each. The point for decision in this case is, who became entitled to these assets upon Krishna Varma's death. The succession to the Sthanam, which comprises an estate as well as the title of Valia Raja, is regulated by the usual Malabar rule; there are two Kovilagams, called respectively the Edavalath and the Ayancheri Kovilagam, and the senior male member of the Kovilagams combined succeeds as Valia Raja. Krishna Varma himself derived from the Ayancheri Kovilagam, his successor the plaintiff from the Edavalath Kovilagam. The general proposition is not now disputed before us that on the death of a Valia Raja such of his assets as originated from the income of the Sthanam go to the Kovilagam from which he sprang, in the case of Krishna Varma to the Ayancheri Kovilagam. They do not under the ordinary law pass as accretions or otherwise to the Sthanam. When Krishna Varma died the securities in question were taken possession of by the senior member of that Kovilagam, Sankara Varma, now the 2nd defendant; and it is his case that by the ordinary rule of succession his Kovilagam is entitled to them. The plaintiff as Sthani sets up special grounds, which will be particularised later, to take the case out of the ordinary rule.

(2.) Before coming to the present suit we may glance briefly at the course of proceedings which led up to it. Not long after Krishna Varma's death, which occurred on 5 September, 1919, both the plaintiff and the 2nd defendant applied to the Revenue authorities for the transfer of the securities in their respective names. The 2nd defendant's letter to the Collector, Ex. V, is dated the 6 December, 1919 and that of the plaintiff to the Tahsildar, Ex. II, is dated the 22nd January, 1920. These applications evoked a reply from the Superintendent of Post Offices, Malabar Division, (Ex. B), that the amount of the war loan could only be paid on production of an order from a competent court of law. The plaintiff after some considerable delay then applied (Ex. I) for a succession certificate, making Sankara Varma respondent. The District Judge dismissed the application on the 16 August, 1922. Thereupon the plaintiff sued the present 2nd defendant, in O.S. No. 23 of 1923, on the file of the Subordinate Judge of Tellicherry, for a declaration of his title to these assets. While the suit was pending Sankara Varma succeeded in obtaining payment of the amounts due upon the war loan and Post Office certificates, and the plaintiff was allowed to amend his plaint to include a prayer for the recovery of the money. The suit was dismissed both upon the allegation of fact with which the plaintiff endeavoured to support his .title and upon the issue whether, even if the plaintiff had proved his title, he could recover the money from the 2nd defendant. There was an appeal to this Court and the learned Judges who disposed of it, while agreeing with the Court below that the plaintiff could not recover the money, took a different view of the evidence relating to title. Having thus failed in his objective, the plaintiff then brought the present suit against the Secretary of State, on whose application Sankara Varma was impleaded as 2nd defendant. Substantially the same ground was travelled over, the depositions of some of the witnesses in the prior suit being by consent read as evidence. The learned Subordinate Judge of Tellicherry has found in favour of the plaintiff on the question of title, and has given him a decree for the recovery of the amount of the war loan, hut has dismissed the claim in respect of the Post Office certificates as barred by limitation. The appeal is preferred by the Secretary of State in respect of the former decision and the plaintiff has filed a memorandum of objections in respect of the cash certificates.

(3.) Although the matter was at one time disputed, it is now common ground that the money with which these investments were made came from the income of the Sthanam, and, as already observed, it is not disputed that according to the ordinary law of succession the 2nd defendant's Kovilagam would have been entitled to them. The plaintiff must therefore put his case upon a special footing if he is to succeed. He in fact assumes two alternative positions. In the first place he alleges that Krishna Varma specifically appropriated these particular assets to the Sthanam with the intention that they should be incorporated with the rest of the Sthanam estate and pass to his successor as Valia Raja. The plaintiff's second position is that the ordinary law is overridden by a special family custom according to which all assets left by a Sthani pass to his successor in the Sthanam. [His Lordship after discussing the evidence negatived both the contentions of the plaintiff and proceeded:]