Joseph Philip vs Mariamma Chacko and Another

Sukumaran, J.—These cases concern a Christian woman in the Travancore area of Kerala State. Her rights on intestate succession when a preliminary decree has intervened in a pending suit, where the preliminary decree is concededly based on the wrong law. The issue involved will have impact in other cases too; and it has general importance, in that view.

Background of Legal Provisions:

For historic reasons, Christian women happened to have different laws in the Malabar and Travancore-Cochin portions of the State. The Indian Succession Act, 1925 applied to those in the Malabar area. The Travancore Christian Succession Act, 1092 M.E. had held the field in the Travancore area, and the Cochin Christian Succession Act in the Cochin portion. Travancore and Cochin were two independent State prior to their integration on 1st July 1949. The Travancore-Cochin State so formed was a ''Part-B State'', as it was then called under the Constitutional scheme. Many enactments passed by the Indian Legislature, were extended to the Part B States by a major legislative measure made in 1951, the Part B States Laws Act, 1951. The Indian Succession Act, 1925 was one such Act. What is the law which governs the Christians in relation to their succession, after the enactment of the Part B States Laws Act? It was a grey area. A live dispute arose when Joseph Kathanar died intestate on 24th December 1952. The sons of a deceased sister of Joseph Kathanar claimed shares in the property. They are entitled to a share if the Indian Act is applicable; otherwise net. The issue was finally decided by at Division Bench of the Travancore-Cochin High Court in Kurian Augusty v. Devassy Aley 1956 KLT 559. That Court ruled that the Travancore Christian Succession Act, would continue to govern the intestate succession among the christians of Travancore. The correctness of the view was not challenged immediately by an approach to the Supreme Court. The defeat in two Courts apparently depressed the spirits of the Plaintiffs. A legal fight in the apex Court is too costly a venture for an ordinary family in the Kerala State. Delhi is that way distant, very distant, geographically. Feminine insurgency in relation to the establishment of equal rights, was yet to develop in this State, despite extensive educational attainments of the women. A dissentient view was visible in the neighbouring States, when a similar issue arose from a former portion of the Travancore State which merged with Tamil Nadu consequent on the States Re-organisation Act, 1956. That was somewhat belated, in the year 1974. Justice Ismail of the Madras High Court held that the Travancore Christian Succession Act, 1092 stood wholly repealed by virtue of Section 6 of the Part B States (Laws) Act, 1951, and that it had not been saved by Section 29(2) of the Indian Succession Act, 1925. (Vide Solomon v. Muthiah 1974 (1) M.L.J. 5. Gokila Krishnan, J. and Mudaliyar, J. of that Court took the same view. That view was, however soon overruled by a Division Bench of the Madras High Court in D. Chelliah Nadar and Another Vs. G. Lalita Bai and Another, .

In the year 1983, the Christian women were on a constitutional war path for the vindication of their rights. Writ Petitions were filed challenging the Constitutional validity of Sections 24, 28 and 29 of the Travancore Succession Act. Alternatively it was contended that the Indian Succession Act, 1925 would be the applicable enactment in relation to intestate succession of the Christians, of Travancore. The Supreme Court of India noted:

This question is of great importance because it affects the property rights of women belonging to the Indian Christian Community in the territories of the former State of Travancore.

In what is well-known as the Mary Roy''s case vide Mary Roy and Ors. v. State of Kerala and Ors. 1986 KLT 508, the momentous decision was rendered. The Supreme Court held that with the enactment of the Part B States (Laws) Act in 1951, the Travancore Christian Succession Act got repealed and that the Indian Succession Act became applicable to the Christians of Travancore.

In the intervening period many a succession had opened up in the numerous Christian farrilies of the Travancore area. Parties had reckoned their rights in accordance with the Travancore law. They had then to reconcile with that position.

Even for the establishment and realisation of their limited rights under the Travancore Act, parties had quite often to seek the aid of the Court. In many such suits, the Christian women were parties, in one capacity or other.

What is the impact of Mary Roy''s decision 1986 KLT 508 on past transactions and past decisions?- is a larger question that has been agitating the members of the community. The Court is not now concerned with that larger question. Yet the impact of Mary Roy''s decision 1986 KLT 508 in a limited area, as indicated earlier, arises for decision in this case.

Council in the case:

This Court felt that assistance in the resolution of the legal controversy should be sought for even from the sources other than the parties to the cases. The Indian Federation of Women Lawyers was requested to render their help in this matter. They did respond effectively, in presenting able arguments. The Court acknowledges and appreciates the helpful gesture. Sri P.K. Balasubramoniam also assisted the Court substantially when requested in that behalf. Many organisations championing the cause of women, got themselves impleaded: ''Lawyers'' Collective, Bombay and Women''s Forum for Social Act, Madras. Counsel appearing on their behalf also substantially supplemented the legal discussion at the Bar. Mrs. Indira Jaisingh argued the case on behalf of Lawyers'' Collective.

Finding of Court below:

What is the effect of Mary Roy''s decision 1986 KLT 508 on a preliminary decree already passed in a pending suit-is the question raised in these revision petitions. The Court below took the view that the preliminary decree which went counter to the statutory provision is nonest in the eye of law. That view is challenged in these two revision petitions.

Contentions of Petitioner:

A preliminary decree which has become final, cannot be re-opened at a later stage whatever be the error involved in the preliminary decree-is the contention of the revision Petitioners. The bar of Section 97 CPC is forcefully put forward by counsel for the Petitioner. His arguments were sought to be buttressed with the decisions of the Supreme Court and High Courts.

Arguments of Defending Counsel:

The contention of the Revision Petitioner is sought to be shot down by legal missiles hurled from different angles. Section 151 of the CPC has been invoked as enabling a correction of the grievous mistake committed by the Court. It is a fundamental duty of the Court to do justice and to correct mistakes-It was contended.

A new event has happened after the preliminary decree. That event can be taken note of by the Court to remedy injustice. Procedural shackles shall be broken by the force of substantial justice. Such activism and dynamism had been shown by Courts even in olden days. In Allahabad, Bombay and Calcutta-Was the somewhat spirited contention urged by counsel appearing for the women''s organisations.

The declaration of law by the Supreme Court and its binding effect under Article 141 of the Constitution throughout the Union of India, was another aspect emphasised in the course of the arguments. The decision of the Supreme Court will be binding on all parties, even though they are not parties to the particular decision. This subsequent event can, and has necessarily, to be taken note of by a Court of law and appropriate corrective action made by it in the interests of justice. That larger aspect has been emphasised by the Supreme Court itself, in the context of the elucidation of the scope and content of Article 141. It was this strand of reasoning that was developed by counsel Sri Balasubramoniam.

Skeletal facts of the case:

Before dealing with the various legal contentions, it is desirable to give the skeletal facts relevant for the purpose. A suit for partition was filed by the Plaintiff in the year 1983, the Defendant being the widow of his deceased brother. The preliminary decree was passed on 30th June 1984 declaring the Plaintiff''s half right in the property. An application for passing a final decree was filed on 3rd September 1984, by the Plaintiff. That was dismissed by the Court. That order is challenged in C.R.P. 291 of 1987-G. The Commissioner deputed in that behalf filed a report and plan on 18th January 1985. The 1st Defendant filed objections thereto on 29th August 1986. A petition I.A. 1837/86 was filed by the 1st Defendant for disposal of the final decree application. That too was dismissed by the Court below. C.R.P. No. 232 of 1987 is directed against that order. The Court took the view that in the light of the Supreme Court decision in Mary Roy''s case 1986 KLT 508, it had no right to pass a decree based on the provision of a non-existent law, the Travancore Christian Succession Act, 1092.

Relevant Statutory Provisions:

The statutory provision regarding preliminary decree and final decree as obtaining under the Code of Civil Procedure, and the Kerala amendment may now be referred to Section 2(2) of the CPC and the Explanation thereto define ''preliminary decree'' and ''final decree''. Section 97 provided for an appeal at the instance of a party aggrieved by the preliminary decree. Order 20, Rule 18 of the CPC underwent an amendment by the Kerala Legislature in 1959. It has not brought about any material change from the Indian Code on the issue in the case. Rule 18 corresponds to Order 20, Rule 18(2) of the Indian Code. Explanation to Order 47, Rule 1 (dealing with Review), as introduced by the Kerala Amendment reads:

Explanation. The fact that the decision on a question of law on which the judgment of the Court is based has been reversed or modified by the subsequent decision of a superior Court in any other case, shall not be a ground for the review of such judgment.

Is the Preliminary decree a nullity?

Is a preliminary decree passed by the Court a nullity, if the Court has passed such a decree on a misapprehension of the law? Such a large contention may not be easily acceptable in the light of judicial pronouncements. A Court, no doubt, is expected to pass a correct decree. Human agencies being what they are, this ideal situation may elude many parties and many cases. Parties have, no doubt, the right to have an incorrect decree set right by appeal to superior authorities. A failure to avail of such corrective procedure would give a finality to the decision, although the decision is demonstrably wrong. This position is clear from Ittavira Mathai Vs. Varkey Varkey and Another, . That case made a reference to the decision of the Privy Council in AIR 1935 85 (Privy Council) The Privy Council had pointed out the bounden duty of a Court to enquire into the question whether a suit is within time, as obligated u/s 3 of the Limitation Act, even in a context where the Defendant did not raise such a plea. The Supreme Court proceeded to observe:

The Privy Council has not said that where the Court fails to perform its duty, it acts without jurisdiction. If it fails to do its duty, it merely makes an error of law and an error of law can be corrected only in the manner laid down in the CPC Code. If the party aggrieved does not take appropriate steps to have that error corrected, the erroneous decree will hold good and will not be open to challenge on the basis of being a nullity.

The general proposition was also stated earlier:

But it is well settled that a Court having jurisdiction over the subject of the suit and over the parties thereto, though bound to decide right may decide wrong; and that even though it decided wrong it would not be doing something which it had no jurisdiction to do. It had the jurisdiction over the subject-matter and it had the jurisdiction over the party and therefore, merely because it made an error in deciding a vital issue in the suit, it cannot be said that it has acted beyond its jurisdiction. As has often been said, Courts have jurisdiction to decide right or to decide wrong and even though they decide wrong, the decrees rendered by them cannot be treated as nullities.

Bar u/s 97 Code of Civil Procedure:

There is a specific impediment, statutorily imposed, Section 97 in challenging the preliminary decree, which was not appealed from. Ordinarily, such a preliminary decree will have full effect and impact on the parties who would be bound thereby. That position is explained by the Supreme Court in the context of a noncompliance with a mandatory provision, Order 32, Rule 7 Code of Civil Procedure. A preliminary decree which had assumed finality in the absence of a challenge against it in appeal, was found to be immune from challenge by the parties bound by that decree. Challenge could not be pursued, according to the Supreme Court, in the final decree proceedings. The Court observed:

It is true that the proceedings in appeal can be regarded as a continuation of the proceedings in suit; but the decision of the question as to whether the Appellants can challenge the said preliminary decree in their appeal against the final decree must in the present case be govered by the provision of Section 97 of the Code. The whole object of enacting Section 97 was to make it clear that any party feeling aggrieved by a preliminary decree must appeal against that decree; if he fails to appeal against such a decree the correctness of such a decree cannot be challenged by way of an appeal against the final decree, which means that the preliminary decree would be taken to have been correctly passed. When Section 97 provides that the correctness of the preliminary decree cannot be challenged if no appeal is preferred against it, it clearly provides that if it is not challenged in appeal it would be treated as correct and binding on the parties. In such a case an appeal against the final decree would inevitably be limited to the points arising from proceedings taken subsequent to the preliminary decree and the same would be dealt with on the basis that the preliminary decree was correct and is beyond challenge. It would be idle to contend that what is prohibited is a challenge to the factual correctness of the dccree on the merits, because it the said decree is voidable, as in the present case, the very point as to its voidable character is a part of the merits of the dispute between the parties. Whether or not Order 32, Rule 7(1) applies to the case would certainly be a matter of dispute in such a case and the object of Section 97 is precisely to disallow any such dispute being raised if the preliminary decree is not challenged by appeal. The whole object which Section 97 intends to achieve would be frustrated if it is held that only the factual correctness of the decree cannot be challenged but its legal validity can be even though an appeal against the preliminary decree has not been filed. Therefore, in our opinion, the High Court was right in coming to the conclusion that it was not open to the Appellants to challenge the validity of the preliminary decree in the appeal which they had preferred against the final decree before the said High Court. (See Kaushalya Devi and Others Vs. Baijnath Sayal and Others, .

A wrong decision on the question about the appropriate law applicable to a given set of facts, would not, therefore, render it a nullity. As regards a preliminary decree taking an erroneous view on the law applicable, Section 97 may even be a bar to raise a challenge in the final decree proceedings. Even then, is the Court powerless, and the law lifeless to find a solution in giving a helping hand to a distressed woman suffering the pangs of patent injustice? I think, NOT.

Courts duty to ensure substantial justice

Courts of law have a primary duty to do justice. They should have a proper sense of direction towards just results; and liberal views which will move the society forward, freeing it from oppressive hang overs of an inequitious antecedent social set up. And mere words would not do. "Words are clouds; deeds are rain", as the Arab saying goes. This sense of direction and urge for justice, should enable this Court to find a way out even within the existing legal frame work. When on the facts, a preliminary decree passed by the court is demonstrated to be illegal and unjust (as would be the case where an oppressively disadvantageous effect is brought about by a Court which missed the proper law on the point), a Court shall necessarily be anxious to look for method and material which can bring about justice. That anxiety impels me to explore ways and means to ward off a patently unjust result to a party to the suit.

Special nature of preliminary decree

This is a case where there is no scope for any doubt at all on the right and entitlement of the parties to the suit. They are to be governed by the Indian Succession Act and not by the repealed Travancore Act. That, in passing a preliminary decree, the trial Court made a mistake, is as clear as day light. The suit has not come to its termination, for, the final decree proceedings are still awaiting culmination. Is the bar u/s 97 so imponderable as to perpetuate an illegality and an injustice in relation to the action of the Courts? The special nature of a preliminary decree, which has been commented upon by the Supreme Court, is helpful in that context. In the same way as it is burdened with a provision like Section 97, it has an advantage of flexibility in certain other areas. That a Court can pass more than one preliminary decree, is such a helpful facility. This aspect was particularly emphasised by the Supreme Court while dealing with the preliminary decree, and in a partition suit, in Phoolchand and Another Vs. Gopal Lal, . It observed:

We are of opinion that there is nothing in the CPC which prohibits the passing of more than one preliminary decree if circumstances justify the same and that it may be necessary to do so particularly in partition suits when after the preliminary decree some parties die and shares of other parties are thereby augmented. We have already said that it is not disputed that in partition suit the court can do so even after the preliminary decree is passed. It would in our opinion be convenient to the Court and advantageous to the parties, specially in partition suits, to have disputed rights finally settled and specification of shares in the preliminary decree varied before a final decree is prepared. If this is done, there is a clear determination of the rights of par ies to the suit on the question in dispute and we see no difficulty in holding that in such cases there is a decree deciding these disputed right; if so, there is no reason why a second preliminary decree correcting the shares in a partition suit cannot be passed by the Court. So far therefore as partition suits are concerned we have no doubt that if an event transpires after the preliminary decree whkh necessitates a change in share, the Court can and should do so....

(emphasis supplied)

Notwithstanding an earlier preliminary decree, the Court can, and in a sense should, correct the mistake committed in the earlier preliminary decree in such circumstances. It is not the form that matters; it is the substance of the power of the Court to mete out justice between the parties. If there is no disability for a Court to pass a fresh and correct preliminary decree in the light of a subsequent event, even when a previous preliminary decree is in existence, it would follow that the court would have the power and duty to remove the injustice which had vitiated the earlier preliminary decree, Section 97 CPC notwithstanding.

The only condition to be satisfied is whether an event justifying such a variation has taken place. When Mary Roy''s case 1986 KLT 508 was decided, ihere was such an important event in relation to the rights of the parties. The decision in Kaushalya Devi and Others Vs. Baijnath Sayal and Others, supra deals with a situation in which parties are precluded from going behind the preliminary decree. Ordinarily, a Court of law will not rush to do anything which the parties themselves are unable to seek as remedies in that behalf from the Court. However, situations are not lacking where the courts have felt it their duty to correct a mistake lest manifest injustice should result in, in altered situations.

Such an approach commended itself for adoption by Masodkar, J. in Pandurabg Sakharam Vs. The Mahaarashtra Revenue Tribunal, Nagpur and Others, That case also dealt with a bar, a different type of bar, the bar created by the principles of res judicata. From the point of principle, it could not stand on a different footing from the similar bar created u/s 97 Code of Civil Procedure. The learned Judge observed:

It is necessary and compulsive that the doctrine of res judicata and general principles emanating therefrom must be resorted to secure and freeze the issues once debated and finally decided. However it is eminently obvious that the felt necessities of a given cause and the course of justice tend to find exceptions to do justice at all times. Administration of justice and principles of adjudication are not wrought nor understood within a static formulae. Human fallibility and foibles constantly necessitate an alert mind to find solutions to varying patterns of difficulties.

The injustice which arose in that Court is out of an erroneous application of the legal principles. In that context, the learned Judge observed:

Whenever the law is changed or its interpretation is found to have been incorrectly made, the parties should be able to show that such a decision unrelated to facts do not foreclose their rights upon allusions to these general principles.

A disregarding or reopening of the preliminary decree, though not appealed against, will therefore be permissible in limited contingencies. In substance, this is what the Court below had done when it declined to pass a final decree applying the provisions of the Travancore Christian Succession Act, which could not be considered as the proper law in view of the decision of the Supreme Court in Mary Roy''s case 1986 KLT 508, supra.

Way back in 1913, the Calcutta High Court took a daring step to throw off technality and to effectuate the mandate of the law. A preliminary mortgage decree was followed by a final decree, and a sale of the property and the confirmation thereof. In between the preliminary decree and the final decree, a Statute had intervened prohibiting the sale of the rights of the ryots. The Court held that even the confirmation of the sale could not be put forward as a bar to question the same. The Court observed that "the Appellant cannot be estopped from bringing to the notice of the Court what the Court must be taken to know of itself..." Holding that the sab was in direct contravention of the statutory provision, the High Court in appeal set aside the same, despite the existence of the preliminary decree, the final decree and subsequent further actions, sale and confirmation thereof. This decision was approvingly referred to and applied by a Division Bench of the Allahabad High Court in Ram Deo Singh and Others Vs. Board of Revenue and Others, . Inherent jurisdiction of the High Court was invoked to correct an action which was something of an interlocutory nature when an intervening legislation demanded such a corrective See Assistant Settlement Officer, Pudukottai Vs. K. Karunagiri Muthiah Naicker, . A similar approach could be adopted in the present case, for effectuating substantial justice and for enforcing the law as laid down by the Supreme Court.

Effect of Article 141 of the Constitution:

Another way of bringing about a just result is by I drawing upon the efficacy and pervasiveness of the decision of the Supreme Court with necessary stimulus derived in that behalf from the Constitutional provision in Article 141. When the Supreme Court of India has laid down the rule, it would be binding all parties, all authorities and all Courts. Principles of res judicata would get evaporated in the blazing light of the decision of the Supreme Court. That, in a sense, is a view taken in a recent decision by the Supreme Court itself. See Shenoy and Co., Represented by its Partner, Bele Srinivasa Rao Street, Bangalore and Others Vs. Commercial Tax Officer, Circle II, Bangalore and Others, . A plea about the finality of some decisions in the absence of an appeal from those decisions, was held to be of no avail when the Supreme Court has spoken on the self-same issue in another decision. The Supreme Court itself has indicated that the situation may be different if presence or absence of some facts may make out a different factual situation, even marginally. The present is not such a case. Absolutely, no difference exists on the question relating to the proper law applicable to the Christians in Travancore as between the present case and Mary Roy''s case 1986 KLT 508. The preliminary decree, even though not appealed from, thus will get blasted away by the force and effect of the law laid down by the Supreme Court under Article 141 of the Constitution. The situation in the present case is thus different from the one that the Supreme Court considered in Kaushalya Devi and Others Vs. Baijnath Sayal and Others,

In Shenoy and Co., Represented by its Partner, Bele Srinivasa Rao Street, Bangalore and Others Vs. Commercial Tax Officer, Circle II, Bangalore and Others, the Supreme Court took pains to explain two seemingly conflicting views of the Supreme Court as disclosed in Trilok Nath v. State of Jammu and Kashmir (1969) 1 S.C.R. 103 and Makhanlal Waza and Others Vs. State of Jammu and Kashmir and Others, , and proceeded to observe:

As we have already held, the two decisions, on the principles laid down by them, speak the same voice, i.e. that the law laid down by the Supreme Court is binding on all, notwithstanding the fact that it is against the State or a private party and that it is binding on even those who were not parties before the Court.

And still later:

The declaration of the law is binding on everyone and it is, therefore, futile to contend that the mandamus would survive in favour of those parties against whom appeals were not filed...the mandamus issued by the High Court becomes ineffective and unenforceable when the basis on which it was issued fails, by the declaration by the Supreme Court....

Applying the same principle, it would then be possible to hold that in the present case, the law laid down by the Supreme Court should be observed by the Courts and that they should proceed in the matter only on the basis of the law so laid down. The law was laid down will be binding on other parties also although they are not parties to the decision in the Supreme Court. Viewed in that background, the refusal of the trial Court to pass a final decree based on the non-existent and inapplicable Travancore Christian Succession Act, cannot be found fault with.

Conclusion:

In the light of the aforesaid discussion, the revision petition will have to fail, they are accordingly dismissed but without any order as to costs.

Some general observations:

The intervening period between 1956 when the 4 Travancore-Cochin High Court decided Kurian Augusthfs case 1956 KLT 559 and 1986 when the Supreme Court delivered judgment in Mary Roy''s case 1986 KLT 508 is a fairly long one. Many girls born in 1956 would have set their solemn pace in the bridal procession to the Marriage altar, by then.

Society has its varied personalities. Not all are men with great pockets and little souls; and not all, people with little pockets and great souls. A matrimonial alliance quite often is preceded by talks between the families. The financial status of the parents of the girls do have a bearing on those parleys. It is common experience that bridegrooms expect, and could often bargain upon, a proper apportionment and payment (quite often in convenient cash form) of parental wealth reckoning a due share for the girl. The married girls who have carried with them substantial cash or other assets at the time of, or soon after, the marriage, should leave the brothers alone, with the residual family assets could be the feeling of the brothers. Most often, the girls are in disadvantageous positions, when helpless parents or unsympathetic brothers mete out to them a less dignified and disadvantageous treatment. An unfair treatment, naturally generates feelings of anguish among the daughters. An unequal hand and an evil eye are annoying, financially and psychologically. It was that mounting discontent of the christian women that was expressed by Marv Roy when she, along with others, knocked at the doors of the apex court demanding justice. This Court too had noted earlier some of their distressing problems. Iri Kunjamma''s case 1984 KLT 128 it posed the question: "Is a Christian daughter still a Cindrella as regards her patrimony?" That query of this Court was at a time when there was no assurance that the Christian daughters could count on the more benevolent provisions of the Indian Succession Act, 1925. The Christian daughters can now have a sigh of relief in view of Mary Roy''s decision 1986 KLT 503. At the same time, the brothers, at any rate those who had conducted themselves reasonably, in relation to their sisters by ensuring a just treatment to them at the time of the marriage, may justifiably have an apprehension about a possible attenuation of their residual assets when the Democles'' sword of a possible future litigation hangs over their heads. Why should these satisfied sisters have their plums further sugared, may be their feeling. These and a variety of other problems are the follow ups of Mary Roy''s decision 1986 KLT 503. It is not for this Court while dealing with a limited question, to suggest even by way of general observations, any plausible or possible solutions, some of which were referred to in the course of arguments in the case. A community endowed with entrepreneurial expertise and educational enlightenment may not have much difficulty in evolving satisfactory solutions and in adjusting itself to the altered situation.

Soon after the pronouncement of the order, counsel on both sides submitted that it is desirable to clarify that the court below can pass a fresh preliminary decree in the light of the view expressed in the order. It is accordingly clarified that the Court below will pass a fresh preliminary decree in accordance with the order passed in the revision petitions. The proceedings also can be expedited in the matter.