Krishnan Nilakantan vs Karumpan Kesavan and Others

Sankaran, J.—The Division Bench which heard this appeal at first, referred the case to a Full Bench by the following short order:

This appeal raises an important question of law relating to the interpretation of Section 33 of the Ezhava Act. So we refer the whole case for decision by a Full Bench.

The parties to this case are Ezhavas governed by the Travancore Ezhava Act (Act 3 of 1100). It is common ground that the properties involved in the suit are the self-acquisitions of one Raman Krishnan who died intestate on 2-12-1106 i.e., more than 5 years after the Ezhava Act had come into force. He had two sisters, Raman Kunjali and Raman Ittikkali. On the date of the suit there were 28 members in the thavazhi of Kunjali and 39 members in the thavazhi of Ittikkali; Plaintiffs l, 2 and G represent the thavazhi of Kunjali, while Plaintiffs 3, 4, 5. 7 and 8 represent the thavazhi of Ittikkali. Raman Krishnan and the members of his tarwad were governed by Marumak- kathayam Law as modified by custom and usage. By virtue of such custom and usage they were following the Misravazhi system of inheritance, the characteristic feature of that system being that one-half of the separate and self-acquired properties of an individual would, on his death, devolve on his Marumak''cathayam heirs and the other half on his Marumakkathayam heirs. By the provisions contained in Part IV of the Ezhava Act, a fundamental charge was made in this peculiar system of intestate succession. By Section 15 occurring in Part IV it was laid down that

on the death of an Ezhava male, leaving him surviving a widow or mother or both and also children or the lineal descendants of deceased children or both, they shall take the whole of the self-acquired and separate property left undisputed of at his death and that in the absence of the mother and the widow, the children and the lineal descendants of deceased children shall take the whole and in the absence of the mother, widow and the children, the lineal descendants of deceased children shall take the whole.

Excepting the mother none of the other Marumakkathayam heirs of the deceased could claim any share in the self-acquired and separate property left by him at his death in case there are his Makkathayam heirs surviving. It is made clear by Sections 16 and 17 that only in the absence of such Makkathayam heirs the property of the deceased would devolve on his Marumakkathayam heirs. The provisions contained in Fart IV of the Act relating to intestate succession are of general application and are to govern all the Ezhavas to whom the Act is applicable. But a special provision was made in Section 33 of the Act enabling such of the Ezhavas who desired to get themselves exempted from Part IV of the Act, to file an application to the State Government within a period of six months from the commencement of the Act and to get an order of exemption by the necessary notification being published in the Government Gazette. Those who are thus exempted will no doubt continue to be governed by the pre-existing customary law relating to intestate succession so long as they have not chosen to have the exemption revoked, as provided for in Sub-section (2) of Section 33. Raman Krishnan, according to the Plaintiffs, had got himself exempted under Sub-section (1) of Section 33 from the operation of Part IV of the Act and that lie lived and died as a Misraduyi Ezhava, it is on this basis that the Plaintiffs haves instituted the present suit on behalf of his Marumakkathayam heirs referred to above, for partition and recovery of one-half share in the suit properties, as the legitimate share that should go to the Marumakkathayam heirs of Raman Krishnan as per the Misravazhi system of inheritance.

Defendant 1 is the widow of Raman Krishnan. Defendants 2 to 0 are the children of Defendant 1 and Raman Krishnan. It is stated that Defendant l''s sister Palpan Narayani was also the wife of Raman Krishnan and that Defendants 10 to 13 were born of that union. The status given by the Plaintiffs to Defendants 10 to 13 is denied by Defendant 2 who is the main contesting Defendant. The decision of this question is not necessary for the disposal of the suit where the real question to be determined is whether the Marumakkathayam heirs of Raman Krishnan are entitled to get one-half share in the properties left by him at the time of his death.

Soon after the death of Raman Krishnan disputes arose between his Marumakkathayam heirs on the one side and his Makkathayam heirs on the other, regarding the possession of his properties, and such disputes were settled by the final order passed in Miscellaneous case No. 16/1108 on the file of the First Class Magistrate''s Court at Chirayinkeezh, by which possession was found in favour of the Makkathayam heirs Defendants 1 to 9.

That decision was on 18-1-1110 and Ex. ii is copy of the judgment in that case. The present suit is resisted mainly by deiendant 2 on behalf of his Makkathayam heirs. According to him Kaman Krishnan had not got himself exempted under Sub-section (1) of Section 33 of the Ezhava Act from the operation of Part IV of the "Act and that therefore on his death the whole of his self-acquired and separate properties devolved on Defendants 1 to 9 by virtue of the provisions of Part IV of the Act relating to intestate succession. Certain special claims were also put forward by Defendant 2 on account of the discharge of the debts of Raman Krishnan and also on account of improvements effected in the suit properties. It was also contended that the present suit is time-barred, because it has been instituted more than three years lifter the date of the decision in Ex. II case. There are also certain other matters of comparatively less importance on which there is controversy between the parties to the suit.

The trial court repelled the defence contentious and held that Raman Krishnan had got himself exempted u/s 33(1) of the Ezhava Act and that he died as a Misradayee Ezhava. Accordingly, a preliminary decree was passed in favour of the Plaintiffs for partition and recovery of a one-half share in the suit properties us the share that had devolved on the Marumakkathayam heirs of Raman Krishnan. Defendant 2 has come up in appeal challenging the correctness of the conclusions reached by the trial court. In an objection memorandum filed on behalf of the Plaintiffs, the lower court''s findings which arc against them have been objected to.

It is obvious that the Plaintiffs can sustain the present suit only if it is conclusively established that Raman Krishnan had been exempted from Part IV of the Ezhava Act as contemplated by Section 33 of the Act and that he died as a Misradayi. The two notifications, Exs. A and B, are relied on by the Plaintiffs to make out this position, Ex. A is the notification dated 11-1-1927 published in the Travancore Government Gazette dated 25-1-1927/12-6-1102. This notification was published by Government u/s 33(1) of the Ezhava Act. The name of Raman Krishnan did, not find a place among the names of persons enumerated in this notification as having been exempted from the operation of Part IV of the Ezhava Act. According to the Plaintiffs the person described as Panayii Veettil Raman Narayanan against serial No. 232 was a mistake and that the real person intended by that name was Panayii Veettil Raman Krishnan. Some time after the death of Raman Krishnan, his Marumakkathayam heirs put forward such an allegation in an application filed by them before Government and applied for a correction of the name given against serial No. 232 in the notification Ex. A.'' Accordingly the Erratum Notification Ex. B dated 17-6-1932/ was published in the Government Gazette dated 21-6-1932, directing as follows:

Read" 232, Raman Krishnan of Panayil. Veedu, Anathalavattom Chirayinkeezh Desom,. Chirayinkeezh Taluk" for "232. Raman Narayanan oi Panayil Veedu, Ananthalavattom, Chirayinkeezh Desom, Chirayinkeezh Taluk", as occurring in the notification Ex. A. It is by virtue of this erratum notification published long, after the death of Raman Krishnan that the Plaintiffs seek to maintain that Raman Krishnan had, as a matter of law and fact, been exempted from the operation of Part IV of the Ezhava Act.

The question of the validity and the effect of the erratum notification Ex. B had been in controversy between the Makkathayam heirs and the Marumakkathayam heirs of Raman Krishnan in a prior litigation in which ''they were arrayed on opposite sides. O. S. No. 799/1108 of the Attingal District Munsiff''s Court was that litigation and It arose under the following circumstance. Raman Krishnan had a mortgage "right in his name for a sum of Rs. 750/-, The mortgagor sued on that mortgage and obtained a decree for redemption after depositing the mortgage amount in court Raman Krishnan died before he could draw the amount from court and in execution his wife a children were represented as his legal heirs. The present Plaintiff 2 intervened in that suit as representing the Marumakkathayam heirs of Raman Krishnan and claimed one-half of the mortgage amount. The execution court negatived his claim and directed him to a fresh suit. This M to his filing the suit O. S. 799/1108 already reared to and it was a suit against the Makkathajjim heirs of Raman Krishnan. The gazette notification Exs. A and B had been produced in that suit. All the same the trial court held that Raman Krishnan had not been exempted from the operation of Part IV of the Ezhava Act and that therefore all his assets devolved on his Makkathayam heirs. The suit was accordingly dismissed. The first appellate Court confirmed that decision and uphold the findings recorded by the trial court. The matter was taken to the Travancore High Court in S. A. No. 680/1111. That Court allowed the second appeal and upheld the claim of the Marutnakknlhayiun heirs of Human Krishnan to a half share in the mortgage amount of Rs. 750/- (sic) of the judgment in S.A. No. 630/1111(sic).

In the lower court it was strongly urged on behalf of the Plaintiffs that the decision in Ex. (sic) as res judicata against the contention (sic) present suit by the Makkuthayam hence of Raman Krishnan that he had not been exampled from the operation of Part IV Of the Ezhava Act. This plea did not find favour with the lower court which held that the decision in Ex. C case does not operate as res judicata against the Defendants in the present suit, but at the same time it accepted Ex. C as a piece of evidence entitled to great weight. In the memorandum of objections filed on behalf of the Plaintiff-Respondents the plea of res judicata has been raised against. That question may therefore be considered at the outset.

The parties to the suit O. S. No. 799/1108 of the Attingal Munsiff''s Court are practically the name as the parties'' to the present suit. The main question in controversy in both the suits is also the same. But these conditions by themselves are not sufficient to attract the rule of res judicata as laid down in Section 11, Code of Civil Procedure. One of the essential conditions prescribed by that section is that the Court which tried and decided the earlier suit must have been a court competent to try the subsequent suit. The decision in Ex. C does not ob piously satisfy this test. That suit was tried and disposed of by a Munsiff''s Court, while the present suit is beyond the competency and jurisdiction of that court. It follows, therefore, that. Section 11 as it stands does not lend support to the Plaintiff plea that the ultimate decision in the earlier suit O. S. No. 799 of 1108 of the Attingal Munsilli''s Court operates as res judicata against the contentions raised by the Defendants in the present suit.

It is argued on behalf of the Respondents that Section 11, CPC is not exhaustive and that the rule of res judicata can be invoked even apart from the limited provisions of the Code. No doubt there may be cases where the Point of res Judicata founded on general principles of law could be sustained even though the conditions prescribed by 8 11 of the Code are not fully satisfied. In - Ram Kirpal v. Eup Kuari 83 11 Ind App 37 (PC) (A) it was ruled by the Privy Council that though the section of the Code relating to the rule of res judicata does not in terms apply to execution proceedings the principle of res judicata must be applied to execution proceedings as well. Similarly, there have been instances where the decisions of courts of special and exclusive jurisdiction have been held to operate as res judicata in subsequent suits between the same parties. These cases have been recently reviewed by the Supreme Court in - Raj Lakshmi Dasi and Others Vs. Banamali Sen and Others, where the extent m which the plea of res judicata, even apart from Section 11, CPC could be sustained on general principles of law, has been clearly explained as follows:

When a plea of res judicata is founded on general principles of law, ail that is necessary to establish is that the court that heard and decided the former case was a court, of competent jurisdiction. It does not seem necessary in such cases to further prove that it has jurisdiction to hear the later suit. A pica of res judicata on general principles can be successfully taken in respect of judgments of courts of exclusive jurisdiction, like Revenue Courts, laud acquisition courts, administration courts etc. It is (sic) that these (sic) these (sic) the constitution urged on behalf on the Respondents that the plea of res judicata cases of the ultimate the ultimate decision in Ex. C in the present case should be upheld on general principles of law. As already pointed out, the decision in Ex. C is one which clearly comes within the ambit of Section 11, Code of Civil Procedure. In respect of a matter which clearly comes under that section there is no scope for ignoring the section and resting the plea of res judicata on general principles of law. This position has been made clear by the Supreme Court in the case already cited Where the following observation occurs:

The condition regarding the competency of the former court to try the subsequent suit is one of the limitations engrafted on the general rule of res judicata by Section 11 of the Code and has application to suits alone.

It is obvious that when a plea of res judicata is raised on the strength of the decision in a suit tried by an ordinary civil Court in the exercise of its normal jurisdiction, the sustainability of the plea has to be decided in the light of the conditions laid down by Section 11, Code of Civil Procedure. If such a test is not to be applied to decisions in suits tried by ordinary civil courts, the result will be ignoring the section altogether and leaving it as a dead letter. It may be mentioned here that in the corresponding section as it stood in the earlier Code all that was insisted upon was that the court which tried the'' earlier case must have been a court of competent .jurisdiction. It was when the old Section 13 was amended in the year 1882 that the said expression was amplified by adding the expression "Court competent to try such subsequent suit or the suit in which such issue has been subsequently raised." The condition that in order to attract the rule of res judicata the Court which decided the earlier case must be a court competent to try the subsequent suit, was thus deliberately added by the Legislature and it is the duty of the courts to give full effect to this condition in examining; the plea of res judicata bawd on the decision in an earlier suit. The Importance of the/ condition relating to the competency of the court which decided the earlier suit to try the subsequent suit, has been particularly emphasized by the Privy Council in - ''Gokul Mandar v. Padranand Singh'' 29 Ind App 193 (PC) (C) where, In considering the scope of Section 13, Code of Civil Procedure.(corresponding to Section 11 of the present Code), it was observed as follows:

Under Section 13, CPC a decree in a previous suit cannot be pleaded as res judicata in a subsequent suit unless the Judge by whom it was made had Jurisdiction to try and decide, not only the particular matter in issue, but also the sub sequent suit itself in which the issue is subsequently raised respect the enactment goes beyond Section 13 of the previous Act, to of 1877 and also, as appears to their lordships, beyond the law laid down by the Judges In the - ''Duchess of Kingston''s case'' 1776 2 Shim LC 713 (D). They will further observe that the essence of a Code is to be exhaustive on the matters in respect of which it declares the law and it is not the province on judge to disregard or go outside the letter of the enactment according to its true construction.

A plea of res Judicata founded on general principles of law may be available to cases not strictly covered by S. 11, CPC ; but in cases strictly falling u/s 11 it will certainly be wrong to ignore the specific conditions prescribed by the section and to sustain a plea of resjudicata merely on general principles. To do so, would be to defeat the purpose and the intention with which, the Legislature enacted the section. We are, therefore, clearly of the view that the ultimate decision in Ex. C judgment in the case tried in the Attingal Munsiff''s Court cannot operate as res judicata against the contentions raised in the present suit tried by the District Court, even though the parties are the same and the main point of controversy is also identical.

The question whether Raman Krishnan had been exempted from the operation of Part IV of the Ezhava Act, has therefore, to be examined on its merits independent of the decision in Ex. O Judgment. Such exemption had to be made by Government by the issue of a notification in the Government Gazette, as required by Sub-section (1) of Section 33 of the Ezhava Act. The notification stated to have been issued to that effect is Ex. A. But Ex. A does not contain the name of Raman Krishnan. Till some time after the death of Raman Krishnan no other notification concerning him. had been published in the Government Gazette, According to the Plaintiffs, the name of Raman Narayanan, occurring against serial No. 232 in Ex. A, was a mistake for the name of Raman Krishnan and that the said mistake was rectified by the issue of the erratum notification Ex. B dated 17-6-1932 in the Gazette dated 27th June I932/8th Mithunam 1107. Beyond the allegation that at the time of the publication of the notice Ex. A, the name of Raman Krishnan happened to be wrongly put in as Raman Narayanan, there is no reliable and independent evidence to substantiate that allegation. It may be mentioned here that it is alleged by both sides that in the tarwad of Raman Krishnan there was Anr. member known by the name of Raman Narayanan and that inclusive of these two persons all the 22 adult members in their tarwad had put in a joint application u/s 33 praying that themselves and their tarwad may be exempted from the provisions of Part TV and of Part VII (1) of the Ezhava Act. Raman Narayanan was the karnavan of the tarwad at that time. Exhibit A shows that some of these applicants were alone exempted from the operation of Part IV. Raman Narayanan, whose name finds a place in Ex. A, having been one of those who had applied for such an exemption, it cannot be said that his name happened to be in- eluded in Ex. A on account of any mistake. If lie had not been an applicant for exemption, it could very well have been said that his name was wrongly included in the notification Ex. A. The theory propounded by the Plaintiffs that the name of, Raman Narayanan occurring against No. 232 In Ex. A, is a mistake for the name of Raman Krishnan, could be sustained only if it is shown that the authority competent to issue the necessary notification had, as a matter of fact, decided to exempt Raman Krishnan, and not to exempt Raman Narayanan. Evidence, oral or documentary, in proof of these facts, is significantly absent in this case. It does not appear that any such evidence was adduced even in Ex. C case. All that could be gathered from Ex. C is that an attempt had, been made in that case to show that Raman Krishnan was among those who had given statements in Support of the application for exemption from the operation of Part IV of the Ezhava Act, while Raman Narayanan was among those who had not given such statements. On the basis of such a situation an argument was advanced that the decision of Government must have been not to exempt those who had not given any statements in support of their applications, but to exempt only those who had given such statements. This argument appears to have found favour with the learned Judges who participated in Ex. C decision: With all respect to those learned Judges, it has to be stated that their conclusion was the result of an erroneous impression about the rail scope of Section 33 of the Ezhava Act. There is nothing in that section to indicate that the applicant''s sworn statement is a condition precedent to the granting of the exemption applied for. The only two conditions postulated by the" section are that there must be an application presented within period of six months from the commencement of the Act and that Government must, after making such inquiry as may be necessary, be sat is tied as to the truth of the application. The satisfaction contemplated by the section may be obtained from the statements of the applicants themselves or from other inquiries. It will not therefore be right or justified to speculate that Government must have decided to exempt only those who had given statements and not to exempt the other who had defaulted to give similar statement." It is perfectly open to an applicant to change his mind at the time of giving the statement and to say that he does not want any exemption and is therefore withdrawing his application. In such a contingency there can be no notification for exempting him against him will. The Parts who alleges that the notification issued by Government was at variance with the actual decision arrived at by Government, is bound to prove the real nature of the decision so as to enable the Court to come, to a conclusion as to whether any error or mistake has been committed in the notification which followed that decision. In the absence of such evidence, it will be futile to ask the Court to speculate and to give a decision in favour of the alleged mistake. Exhibit A merely gives the names of the persons'' who were exempted as per that notification, and it is of no help in ascertaining the exact nature of the ''prior decision of Government as to the individuals whose request for exemption was granted and as to the Ors. whose request was declined. The Government order embodying such decisions, or at least a cop) of the same, has not been produced in this case, and no attempt was made to prove the nature of those decisions by examining any officer who had anything to do with the same. The erratum notification Ex. B is equally unhelpful in respect of; this matter. It merely states that the name of Raman Narayanan occurring against No. j232 the prior notification should be read as Raman Krishnan. It is not known why such a direction was issued. Those notifications must have been issued by Government on the strength of an order embodying the reasons for thus interfering with the prior notification. Here again the order or copy of it has not been produced in the caw and officer who dealt with the matter has been examined as a witness to explain whether any error mistake, had been committed in the earlier notification evidenced by Ex. A.

When the existence of any such mistake or error is in dispute, the mere fact that an errature(sic) notification like Ex. B was issued by Government, cannot justify any presumption being drawn In favour of the existence of such a mistake or error. In the absence of any evidence to show that Government had decided to exempt Raman Krishnan from the operation of Part IV of the Ezhava Act and not to grant any such exemption in favour of Raman Narayanan, the allegation that the inclusion of Raman Narayanan''s name In Ex. A was a mistake for the correct name Raman Krishnan as intended cannot stand.

The notification Ex. A as it appeared in the Government Gazette, had the effect of retaining the customary law relating to intestate succession so far as Raman Narayanan was concerned and to that extent his desire as Expressed In the application for exemption was accomplished. If at any time thereafter he had desired to be governed by the provisions of Part IV of the Ezhava Act, he could have got the exemption granted under Ex. A revoked by filing an application to th8t effect, as contemplated by Sub-section (2) of Section 33. According to the evidence in this case he died only on 27-6-1105'' and there is nothing to show that during the period of three years from the date of publication of the notification Ex. A to the date of his death, he had taken any step to have the notification revoked. If the omission of Raman Krishnan''s name from the notification Ex. A was the result of any error or commission, it is only natural that he would have moved for rectification of that mistake or error. Both sides agree that Raman Krishnan died only on 2-12-1106. Thus he lived for a period of 4 1/2 years after the notification Ex. A had appeared in the Government Gazette, and he had no complaint that there was anything wrong about .the notification. As persons who had applied for exemption u/s 33 of the Ezhava Act, Raman Narayanan and Raman Krishnan would naturally have been anxious to know the outcome of that application, and in the ordinary course of events it has to be assumed that they saw the notification and understood its nature and purpose soon after it was issued or within a reasonable time thereafter. Their submission to the notification as it stood, is a clear indication of the fact that they never felt that there was anything wrong about the notification which required rectification Apart from these telling circumstances, there is direct evidence also to show that subsequent to the filing of the application for exemption Raman Krishnan had changed his mind and had preferred to be a Makkathayee Ezhava so as to be governed by Part IV of the Ezhava Act. D.W. 1 is a friend and neighbor of Raman Krishnan and this witness swears that Raman Krishnan himself had mentioned to him about his change of mind in favour of the Makkathayam system of inheritance. It appeal''s that D.W. 1 and Raman Krishnan were moving on terms of intimacy. It is therefore only natural that in the course of their conversation Raman Krishnan have expression to this idea also. D.W. 1 Is an independent and respectable witness and we see no reason to dl-believe him. The evidence of this witness is quite consistent with probabilities also. Defendant 2 as D.W. 3 has also stated that his lather, Raman Krishnan, used to tell his children that, all his acquisitions would go to them and that they should take special interest n improving those properties. Since the application for exemption under 33 had to be tiled within six months of the commencement of the Ezhava Act, the application must have been filed before the end of Makaram 1101. That there was a fundamental change in the outlook of Raman Krishnan some time after the filing of the application for Exemption, is amply borne out by Ex. VI which is copy of an affidavit sworn to by him on 8-5-1102 in O. S. No. 490/1099 of the Attingal Munsiff''s Court. If even at that time he was keen on getting exemption u/s 33 so as to continue to be governed by the misravazhi system of inheritance, he would have described himself in Ex. VI as a misravazhi Ezhava. But it is significant to note that in Ex. VI he has described himself as a Makkavazhi Ezhava. This is quite consistent with the version given by D.W. 1 as to Raman Krishnan''s change of outlook and his inclination to be governed by the makkathayam system of inheritance. The lower court has tried to minimise the significance of the expression Makkavazhi used In Ex. VI by stating that such a description might have been added by the person who prepared affidavit and that Raman Krishnan might have signed the affidavit without knowing the existence of such an expression in the affidavit. There is no justification for making any such unwarranted assumptions. The normal presumption is that Raman Krishnan put his signature to the affidavit with full knowledge of its contents. Thus the direct evidence on record is such as to point to the conclusion that Raman Krishnan''s name did not appear in the notification Ex. A, not on account of any mistake, but because he had given up fain idea of getting exemption from the operation of Part IV of the Ezhava Act.

The alleged mistake in the notification Ex. A has to be considered in Anr. aspect also. If the mistake consisted in the omission to mention the name of Raman Krishnan in the notification, the only person who could have been aggrieved by such an omission, was himself. Such a mistake is not on a par with mistakes occurring in contracts or other transactions inter partes, and hence the principles on which any of the parties to such a transaction may claim relief on the ground of mistake are of no application in considering the consequences following from a mistake in a notification like Ex. A. The right of an in-1 dividual to apply u/s 33(1) (i) and to get exemption from the operation of Part XV of tho Ezhava Act, is a purely personal right. For a proper understanding of the exact scope of the section, it is necessary to quote here the section in extenso. Section 33 runs as follows:

(1) On an application made within six months from the commencement of this Act� (I) by an individual member of an Ezhava tarwad with reference to the provisions of Part IV, or (ii) by a majority of the adult members of such tarwad with reference to the provisions a! Part VII (I)

the Government may. after making such enquiry as may be necessary and on being satIsfied as to the truth of the application, exempt by a notifi cation in the Government Gazette such Indivi dual member or taiwad as the care may be, from the operation of �the said provisions of this Act,

(2) On an application made by�

(i)the 111(1 ,vicliial ttieti or

(ii)a majority of the adult members of the toward,

exeinpicci under sub-c, (1), the Goveranuent mot�. after making such enquiry as may be necessary 1111 1 on being satIsfied as t the truth of the ep� ion, revoke such exeinotionby it notWcailon in time �I tie persoflal right conferred by tIm section on an Individual may or may not he exercised by him. Even after exercising his option n favour of filing an application for exemption, It will still be open to him to withdraw the application at arty time before exemption is notified by Government Gazette.

The personal right conferred by the section on an Individual may or may not be exercised by him. Even after exercising his option in favour of filing an application for exemption, it, will still be open to him to withdraw the application at any time before exemption is notified by Government in the official Gazette. Even after the exemption is notified in the Gazette, the right is still available to him under sub-s. (2) to annly for a revocation of the exempt ton. The section makes it abundant-ly clear that the application for exemption as also Ithe application for revocation must both proceedfrom the individual concerned, and not from any- body else. By necessary Implication, it must followthat any application for rectification of the mis-takes, if any, in the notifications concerning him, must also proceed from him, the obvious reason being that the question whether he should remain exempted from the operation of Part IV of the Act, by virtue of a proper and valid notification, is one depending entirely on his own volition. The will or the desire of any other party in respect of that matter cannot be imposed on him, The func- tion of the Government is merely to issue the noti-fication rant1ng the exemilion or revoking the, came, after being satisfied about the truth. of the application to that effect. In this matter Govern- mont functions merely as a statutory agent to im- plement the will of the applicant as expressed iii the application. The agency must necessarily come to an end with the death of the applicant. On his death succession opens in accordance with the Jaw of inheritance governing him at the time of his death. If he remained exempted from the operation of Part IV of the Act at the time of his death, the customary law by which he was gov- erned prior to the passing of the Ezhava Act, will determine the mode of devolution of his estate, if no such exemption had been granted in his favour, the provisions in Part IV of the Act relating to intestate succession will regulate the mode of devoltion of his astets.

What has happened in the present case Is that Raman Krishnan died on 2-12-1106 in the full faith and belief that he died as a Makkathayi and that his estate would devolve on his wife and children in accordance with the provisions of Part IV of the Ezhava Act, because he had not been exempted from those provisions as per the notification Ex. A which was in force at that time. As soon as he died, the whole of his estate devolved on his wife and children. It was only some time later that his seshakkars moved for a rectification of the notification Ex. A, by replacing the name of Raman Narayanan occurring against No. 232, with the name of Raman Krishnan. They had no right to ask for such a substitution by way of correction, which was never desired by Raman Krishnan himself, even though he lived for over four years after that notification had been published.

By acceding to the request, of the seshakkars to substitute the name of Raman Krishnan for the name of Raman Narayanan in Ex. A, by issuing the erratum notification Ex. B subsequent to the death of Raman Krishnan, Government have denied Raman Krishnan the opportunity to exercise his right under Sub-section (2) of Section 33 and to apply for a revocation of the exemption brought into existence by the erratum notification. Two questions emerge for determination in this connection. The first question is whether Government had the necessary jurisdiction to issue the erratum notification Ex. B. The second question is whether an erratum notification could be issued after the death of Raman Krishnan so as to divert the course of succession which had opened at the moment of the death of Raman Krishnan.

Regarding the first question it is conceded on behalf of the Respondents that the Ezhava Act contains no provision conferring any express power or jurisdiction on Government to alter or modify a notification issued u/s 33. But the learned Counsel for the Respondents argues that is a statutory authority constituted under the Act, Government empowered to issue the no Metrication u/s 33, must be taken to have the inherent jurisdiction to amend, vary or rescind such a notification. No doubts this position could hold good if the power conferred on Government by Section 33 of the Act is a general power to issue notifications as contemplated by the section. The position will also gain support from Section 20, General Clauses Act which runs as follows:

Where, by any Act, a power to issue notifications, orders, rules or bye-laws, is conferred, then that power includes a power exercisable, ''in the like manner and subject to the like sanction and conditions, if any, to add to, amend, vary or rescind any notifications, ''orders, rules or bye-laws so issued.

This position will be attracted only if a general power to issue notifications has been conferred on Government by Section 33 of the Ezhava Act. The section as it stands does not lend support to the contention that under it Government have been constituted a statutory authority having a general power to act on its own initiative in the matter of issuing notifications contemplated by the section. On the other hand, the section makes it clear that Government''s jurisdiction to act under Sub-sections (1) and (2) of the section, is derived exclusively from the applications that the parties concerned may file under that section. Government have no power to act under that section except on receipt of such an application. In fact, all that the section contemplates is that Government should act merely as the statutory agent of the parties applying under that section, for implementing their desire expressed in their applications, by Issuing the necessary notifications in the Government'' Gazette. For the purpose of exemption from the operation of Part IV of the Act, the application must proceed from the very person who desires such exemption. Similarly, the application for revocation of any such exemption, must also proceed from the individual who is desirous of getting his exemption revoked. The necessary implication of the provision to that effect as contained In Sub-section (2) (1) is that any application to amend, vary or modify as notification issued under Sub-section (l)(i) must also be made by the individual affected by that notification, and not by anybody else. It follows from these provisions that Government could have derived jurisdiction to vary, modify or amend the notification Ex. A, only if an application to that effect has been filed by any of the persons mentioned in that notification or intended to be included, in that notification. The erratum notification Ex. B was issued not on the strength of an application from any such person. What was intended by that notification was to revoke the exemption that was apparently granted in favour of Raman Narayanan, by his name being included against No. 232 in Ex. A and to grant exemption in favour of Raman Krishnan whose name did not find a place in Ex. A. Since no move in these directions had proceeded from Raman Narayanan and Raman Krishnan, it is clear that Government had not derived, any jurisdiction or power to issue a notification like Ex. B, Government acted on the strength of an application which had been filed by Raman Krishnan''s seshakkars some time after his death. Such an applied ion could not be treated as an application envisaged by Section 33 and the applicants are person on whom no right has been conferred by that section. Government could not derive any jurisdiction from such an application to interfere with the notification Ex. A which had its full legal effect on the death of Raman Narayanan and Raman Krishnan. Government'' having acted without Jurisdiction in issuing the erratum notification, Ex. B, it has only to be ignored as being void and of no legal effect.

The second question postulated above can arise only on the assumption that Government had the power to issue a notification like Ex. B. On that assumption it may be considered whether a notification like Ex. B could be issued after the death of Raman Narayanan and Raman Krishnan. Since Raman Narayanan died as a person exempted from the operation of Part IV of the Ezhava Act, as per the notification Ex. A, one-half of his assets devolved on his Makkathayam heirs and the other half on his Marumakkathayam heirs, as per the misravazhi system of inheritance. Since Raman Krishnan s name did not find a place in Ex. A the provisions of Part IV of the Ezhava Act relating to intestate succession came into play at the time of his death so far as his assets are concerned and the whole of his assets devolved on his wife and children. Devolution of the estates of these two individuals had thus become complete and their legal heirs had acquired vested interests in such assets. Law does not favour a thorough upsetting of such settled facts by bringing about a radical change in the legal status of Raman Narayanan and Raman Krishnan after their death, as has been attempted to be effected by the issue of the erratum notification Ex. B. The following extract from Halsbury''s Laws of England (2nd Edn.) Vol. 23, p. 160, para 232, makes this position clear:

If during the period that has elapsed the parties have materially altered their position, so that it is impossible to restore things to their previous condition or if third parties have acquired rights under the uncertified or unrescinded agreement, it will then be too late for any party to claim rectification or rescission.

To the same effect is the ruling in - ''Caird v. Moss'' (1886) 33 Ch D 22 (E). In that case the transaction under an agreement was settled and closed on the basis, of a judgment which construed the agreement in a particular, manner, ''subsequently an action was brought to rectify the agreement on the ground that the construction put upon the agreement was contrary to the intention of all the parties. It was ruled that though there was no bar of res judicata for the action, the move for rectification of the agreement cannot be entertained after the agreement had been worked out and the fund distributed under due process of law. No doubt, this decision as also the passage extracted a cove, related to the belated attempts at rectification of agreements inter partes. But the broad principles enunciated therein are applicable to attempts at rectification of unilateral notifications like Ex. A after the completion of the legal consequences that followed from the notification as it stood at the relevant period. One such consequence was to vest the estate of Raman Krishnan In his wife and children at the time of his death. Thereafter no change in the notification Ex. A could be effected at the instance of third parties like the Plaintiffs, because the notification as it stood had its full effects already.

Viewed in all these aspects, it is clear that the notification Ex. B had no legal effect on the legal status of Raman Krishnan at the time of Ills death. Accordingly we hold that Raman Krishnan died as a person not exempted from the operation of Part IV of the Bashava Act, with the result that the plaint properties which were his .separate and self-acquired assets, devolved exclusively on his wife and children. Since his seshakkars did not acquire any right in these properties, the present suit brought on behalf of his seshakkars partition and. recovery of one-half share la the plaint items, must fail. In this view of the matter, the other questions involved in the suit do not also for consideration.

In the result this appeal is allowed and in reversal of the decree of the lower Court, Plaintiffs suit is dismissed with costs throughout. The objection memorandum filed on behalf of the Respondents is dismissed.