Madambath Rohini and Others vs Devi and Others

Sankarasubban, J.—A. F. A. No. 13 of 1995 is filed against the Judgment and decree in A.S. Nos. 238 and 368 of 1983, while A. F.A. No. 30 of 1995 is filed against the Judgment and decree in A.S. No. 144 of 1985 of this Court. A. S. No. 238 of 1983 and A. S. No. 368 of 1983 were filed against the judgment and decree in O.S. No. 246 of 1979 of the Sub Court, Kozhikode, while A.S. No. 144 of 1985 was filed against the judgment and decree in O.S. No. 244 of 1979 of the Sub Court, Kozhikode. O.S. Nos. 246 and 244 of 1979 were disposed of together by a common judgment.

O.S. No. 244 of 1979 was a suit for recovery of possession on the strength of title instituted by one Devi, who is the wife of one Vasudevan. The suit was filed against one Madhavan and his wife Rohini. O.S. No. 246 of 1979 was a suit filed by Devi for partition and separate possession over three items of properties in that suit. The averments in O.S. No. 244 of 1979 are as follows :

Plaint schedule Items 1 and 2 were purchased by the plaintiffs husband by registered document No. 1192/53 of the Joint Sub Registry, Kozhikode and was being kept in his possession. Item No. 2 was purchased by him by registered deed No. 113/53 and he was in possession thereof. The above three items were the self acquisitions of Vasudevan. Vasudevan was doing business in Ceylon and used to visit the native place frequently. Vasudevan married the plaintiff accordingly to customary rites on 7-3-1948 and they were residing as husband and wife. After Vasudevan left for Ceylon in 1969, nothing was heard of him. Though the Indian High Commission Office in Ceylon was contacted in 1969 they replied that there was no information about Vasudevan. The plaintiff believed and it is the legal presumption also that Vasudevan is dead.

The properties were looked after by Vasudevan during his life time and while he was in Ceylon the plaintiff was looking after the properties. After he was unheard of the plaintiff is looking after the same assisted by the first defendant -- Madhavan. When the plaintiff shifted her residence to her father''s house, she used to come to the properties occasionaly. The first defendant used "to take Income on behalf of the plaintiff and produce proper accounts. For the last three years, he ws not giving any profits. So, the plaintiff told the first defendant that she would herself look after the properties and the first defendant should not enter the properties and when the first defendant began to act ignoring her directions, a notice was sent to him. The first defendant had sent a reply raising false and untenable contentions. In the reply notice it is stated that the property and that it has been gifted to the second defendant and in the possession of the second defendant. The first defendant has absolutely no right over the property.

The defendant in the written statement contended that the plaintiff is not the wife of Vasudevan. The first defendants father is Ramunni and mother Kallyani. They have four children, Achuthan, Madhavi, Vasudevan and Madhavan. Now the first defendant and Madhavi only are alive. Achuthan died unmarried on 8-12-1968. Ramunni died in 1962 and Kallyani died on 1-6-1957. Vasudevan had not married the plaintiff according to the religious and customary rites. At the age of 13, Vasudevan was taken by one Chekkutty who was doing business at Colombo and he was working in the shop of Chekkutty there. Later Vasudevan was doing his own business at the town Maradana. Once in three or four years he used to come to the native place to see the parents and brothers and sisters. His last visit was in 1946-47. After residing here with parents for eight months towards the close of 1947 he returned to Ceylon. Thereafter, for some period he was sending letters to his elder brother Achuthan. When Vasudevan returned from here in 1947 end he was unmarried. After 1955, no letters were received from Vasudevan. It is further stated that the properties were purchased benami by the first defendant in the name of Vasudevan. The consideration was paid by the first defendant.

The other suit O.S. No. 246 of 1979 was a suit for partition. There three items of properties were included. According to the plaintiff, Items 1 and 2 were in the possession of Ramunni as per the teer deed purchased in the name of his wife Kallyani and Achuthan. Item No. 1 was purchased by registered teer dated 30-6-1910 and Item No. 2 was purchased as per registered deed dated 20-6-1933. On the death of Kallyani, the mother, in 1957-58, her right devolved on her four children, viz. Vasudevan, Achuthan and defendant Nos. 1 and 8. The properties were kept in the possession of Ramunni and Achuthan. The plaintiff is the wife of Vasudevan who was doing business in Cyelon. His whereabouts from 1969 were not known and was presumed to be deed. Ramunni died in 1962 and Achuthan died in 1968. After their death, defendants 1 and 8 had been in possession for and on behalf of Vasudevan also. The self acquired properties of Vasudevan had been kept in exclusive possession by the plaintiff. Plaint schedule Item No. 3 was acquired out of the income derived from Items 1 and. 2. It is in the name of the first defendant. Thus, the right of Kallyani and Achuthan over the plaint schedule three Items devolved equally on defendants 1 and 8 and Vasudevan. Since Vasudevan had to be presumed to be dead, the plaintiff was entitled to her l/3rd right. The properties are now in joint possession. Thus, the suit is file for partition.

In the written statement the contention taken is that the plaintiff has not been married by Vasudevan according to customary rites and they have not lived as husband and wife. The first defendants mother Kallyani was the daughter of Kalathil Unniyatha. Unniyatha had also two sons by name Koran and Govindan. Plaint schedule item No. 1 was assigned by Ramunni in favour of Kallyani and his minor son Achuthan for a consideration of Rs. 50/- by registered deed dated 3-6-1910. Kallyani and Achuthan got 1/2 right each over the same, Achuthan bequeathed his 1/2 right and over the same, Ahuthan bequeathed his 1/ 2 right and after the mother death 1/3rd of her 1/2 right by registered Will dated 24-7-1962 in favour of defendants 1 to 7 and on his death on 8-12-1968 the Will came into force and the defendants got the right under the Will. Subsequently, by registered surrender deed dated 19-12-1976, the 8th defendant surrendered her right for valid consideration and thus Item No. 1 exclusively belongs to defendants 1 to 7. Vasudevan had no right over the same. On the death of Achuthan, his rights were obtained by defendants 1 to 7. Plaint schedule Item No. 3 was not included in the notice demanding partition. It exclusively belongs to the first defendant. The same contention as was raised in O.S. No. 244 was also raised in O.S. No. 246 of 1979.

The main issue raised in both these cases is whether Devi was the legally wedded wife of Vasudevan and whether Vasudevan survived Kallyani and Achuthan and also whether the properties in O.S. No. 244 of 1979 are the self-acquired properties of Vasudevan or that they were acquired benami in the name of Vasudevan. So far as O.S. No. 246 of 1979 is concerned , the question arose whether item No. 3 is partible.

Before the trial Court, Exts. A 1 and A14 were marked on the of the plaintiff and Exts. B1 to B42 were marked on the side of the defendants. PWs 1 and 4 were examined on the side of the plaintiffs. The trial Court found that there was marriage between Vasudevan and plaintiff. It is found that there is no proof to show that Vasudevan died prior to 1-6-1957. The trial court also found that in O. S. No. 46 of 1979, the properties were acquired by Vasudevan. O.S. No. 244 of 1979 was dismissed. So far as O.S. No. 246 of 1979 is concerned, it found that the plaintiff is the legally wedded wife of Vasudevan . It also found that Vasudevan at the time of Achuthans death was not alive. Hence, it was held that the plaintiff is entitled to 1/3rd share of plaint schedule Item 1 and 1/4th share in plain schedule Item No. 2. So far as Item No. 3 in O.S. No. 246 of 1979 is concerned, it was held that the Item No. 3 exclusively belongs to the first defendant. The question of mesne profits and equities are left open to be decided in the final decree stage.

Against the dismissal of O.S. No. 244 of 1979, the plaintiff preferred A.S. No. 144 of 1985. So far as O.S. No. 246 fo 1979 is concerned , there are two appeals, A.S. Nos. 238 of 1983 and 368 of 1983, A.S. No. 238 of 1983 was filed by the defendants against the decree granted by the plaintiff, while the other A.S. was filed by the plaintiff against the finding that item No. 3 is not partible.

All the three appeals were heard together by a learned single Judge of this Court. The learned single Judge decreed the suit, O.S. No. 244 of 1979 holding that there is nothing to show that the properties were purhased benami in the name of Vasudevan. So far as O.S. No. 246 fo 1979 is concerned, the appeals filed by the defendants were dismissed while the appeal filed by the plaintiff was partly allowed confirming the decree of the trial Court that Item No. 3 is not partible. But the learned single Judge took the view that Vasudevan survived both Kallyani and Achuthan. Hence, a decree was granted for partition of 1/3 share over plaint schedule Items No. 1 and 1 O.S. No. 246 of 1979. Thus A.S. No. 144 of 985 was dismissed and A.S. No. 238 of 1983 was also dismissed and A.S. No. 368 of 1983 was partly allowed. The plaintiff has not filed appeal. Thus in so far as the finding that Item No. 3 in O.S.No. 246 of 1979 is not available for partition, that finding has become final. The defendants have filed appeal against the granting of decree for partition in O.S. No. 246 of 1979 and also against the decree holding that plaint schedule Item No. 1 to 3 in O.S. No. 244 of 1979 is not benami.

We heard learned counsel for the appellants and learned counsel for the respondents.

Learned counsel for the appellants reiterated the contentions taken in the Court below, which were refuted by the counsel for the respondents. So far as O.S. No. 244 of of 1979 is concerned against which A.F.A. No. 13 is filed. We went through the evidence and we agree with the learned single Judge. There is nothing to show that the properties were purchased benami by the first respondent in the name of Vasudevan. It has come in evidence that Vasudevan was in Ceylon and he was sending money for the purchase of properties. There is no circumstance to what why the properties had been purchased benami in the name of Vasudevan. We find that the finding given by the learned Judge is correct and we agre with the learned single Judge and so far as item No. 1 to 3 in O.S.No. 244 of 1979 is concerend, the Judgment and decree of the learned single Judge is correct. Hence, A.F.A. No. 30 of 1995 is dismissed.

Now we shall go through A.F.A. No. 13 of 1995. That is with regard to O.S, No. 246 of 1979. As already, stated the question for consideration is whether Item No. 3 is partible or not and it is found that Item No. 3 is not partible. So, the only question is whether Item Nos. 1 and 2 are partible and what is the share to which the plaintiff is entitled to. As, already stated. Kallyani had four children, Achuthan, Madavan, Vasudevan and Madhavi. Plaint schedule Item Nos. 1 and 2 were purchased in the name of Kallyanl and Achthan. Kallyani died on 1-6-1957 and Achuthan died in 1968. The questions for consideration are (1) whether the plaintiff is the legally wedded wife of Vasudevan and (2) whether Vasudevan surlved Kallyani and Achuthan So far as the first question is concerened , but the courts have found that the plaintiff is the legally wedded wife of Vasudevan. We also agree. We find that the defendants themselves admitted that Vasudean and the plaintiff were residing together as husabnd and wife. Further contention was that before Vasudevan left for Ceylon, the relationship was terminated. But there was nothing to show that the relationship was terminated. Hence, we agree with the courts below that the plaintiff is the legally wedded wife of Vasudevan.

Next question for consideration is whether the plaintiff is entitled to any share over the properties. Admittedly, plaint schedule Item Nos. 1 and 2 were purchase in the name of Kallyanl and Achuthan. It is not disputed that after the death of Kallyani. The properties developed upon her children. Thus, if Vasudevan was alive at the time of the death of Kallyani and Achuthan, he would successed in obtaining the share. The question to be found is whether Vasudevan survived Kallyani and Achuthan. In the plaint in O.S. No. 246 of 1979, it is stated by the plaintiff thus :

(Vernacular matter is omitted)

Thus, the averments in the plaint appear to be that Vasudevan was not heard of since 1969. Thus suit was filed in 1979. Thus, according to the plaintiffs, Vasudevan should be presumed to be dead, since he was not heard of seven years.

In the written statement filed by the defendants 1 to 8 it is stated as follows :

"(Vernacular matter is omitted)''

Thus, the defendants contended that at least from 1962 Vasudevan was not heard of . So far as documentary evidence in this case is concerned. Ext. A5 has been produced by the plaintiff. That is a letter dated 7-3-1969 from the Department of Immigration and Emigration, Galle Buck Road, Colombo to the plaintiff. That letter was sent with reference to a latter sent by the plaintiff on 26-11-1968. In the letter, it is stated that investigation regarding the whereabout of Vasudevan was unsuccessful and he was not traceable of the given address. Ext. B7 is a communication from the Postmaster. Kozhikode to the first defendant. In that communication it is stated thus "Your telegaram No. 51 dated 15-6-1962 sent from the Head Post Office. Telegraph Branch to Sri. M.R. Vasudevan 51 Piachando Lane, Maradana Colombo 10 has not been delivered. It is reported that the address has left the place" . The trial Court, on appreciation of documentary and oral evidence on the basis of Ext. B7 took the view that Vasudevan was alike at the time of the death of Kallyani. According to us this view is correct. Even though the defendants have taken the contention that from 1957, Vasudevan was not heard of, the only communication that is available is the 1962 communication sent from the defendants to Vasudevan. If that be so, Vasudevan was alive at the time of the death of Kallyani.

The next question is whether Vasudevan survived Achuthan. Achuthan died on 8-12-1968. The question now is whether Vasudevan surived Achuthan. Ext. A5 show that from 25-11-1968 onwards, according to the plaintiff, Vasudevan was not heard of, that is even before the death of Achuthan. Ext. B7 shows that even from 1962, Vasudevan could not be traced. Bo''th the courts have found that no acceptable evidence was given as to the date of death of Vasudevan. The trial Court held that there was no evidence to show that Vasudevan survived Achuthan and hence, held that Vasudevan did not inherit any share from Achuthan. But the learned single Judge, applying Section 21 of the Hindu Succession Act, held that there was presumption that Vasudevan survived Achuthan and so held that Vasudevan was entitlled to a share in Achuthans right over Items No. 1 and 2. The question is whether Section 21 of the Hindu Succession Act can be applied in this case. Section 21 of the Hindu Succession Act is as follows :

"21. Presumption is cases of simultaneous death :-- Where two persons have died in circumstances rendering it uncertain whether either of them, and if so which, survived the other, then, for all purposes affecting succession to property , it shall be presumed until the contrary is proved, that the younger survived the elder "

As stated in Mayne''s on Hindu Law and Usage, Twelth Edition, the Section lays down a presumption in case of simultaneous deaths that the younger person survived the older, until the contrary is proved. This operates only in cases where persons die in circumstances rendering it uncertain as to who died first. Prior to the commencement of this Act there was no such presumption in the old Hindu Law. The Courts ascertained on facts as to who died first. In AIR 1944 100 (Privy Council) the Privy Council observed following the decision of the House of Lords in Wing v. Angrave (1860) 8 HLC 183, that when two persons perish in a common calamity, in the absence of evidence as to who died first, there is no presumption that the younger survived the elder. Though such a rule was introduced in England by Section 184 of the English Law of Property Act, 1925. there is no such statutory provision in India. The Privy Council also rejected the contention that the survivorship of the should be considered as an element in the evidence bearing on the question as to who died first and observed. "It is obvious that in a disaster like an earthquake it is a matter of pure chance whether the younger or the elder would be killed first." in order to avoid difficulties arising in the case of simultaneous death especially where there is likely to be absence of evidence as in an earthquake or a plane accident, as to who died first, the Legislature though it fit to introduce this provision on the lines of Section 184 of the English Law of Property Act, 1925.

In D. Padmaraja Setty v. Gyanachandrappa, AIR 1970 Mysore 87, a property belonged to two brothers, Dasarath and Tukkappa. Dasaarath died first. After the death of Tukkappa also, leaving only his widow Padavathamma one of the sons of Padmavathamma field a suit for partition and delivery to him of a half share in the property. Padmavathamrna had brought up her brothers daughter Janavva as her foster daughter. During the pendency of the suit, Padmavathamma died. Both Padmavathamrna as well as her foster daughter Janawa were murdered on the same night. Padmavathamma had left a Will bequeathing all her estate in favour of Janavva. The question arises whether Janawa survived Padmavathamma. The Court giving presumption u/s 21 of the Hindu Succession Act that since both of them murdered on the same night, it was difficult to ascertain who died first and held that younger survived the elder. In Jayantilal Mansukhlal and Another Vs. Mehta Chhanalal Ambalal, , it is stated that Section 21 of the Hindu Succession Act acts as a proviso to Sub-section (2) of Section 105 of the Succession Act in cases governed by the Hindu Succession Act. Consequently, in case of commorientes, that is to say, of persons who perish at the same time in consequence of the same calamity, it is for the party disputing the statutory presumption u/s 21 to prove by the defined and warranted conclusion to the contrary that the elder survived the younger and rebut the presumption. Their Lordships referred to Section 184 of the Indian Law of Property Act and referred the decision reported in Hickman v. Peacy (1945) AC 304. In that case also, what happened was that two persons Mangu and her daughter Kanta were residing together in a house where a fire broke out in the house on the evening of January 28, 1958 and the two were burnt alive and died. There the case was that even though both were died in the same accident, Kanta survived mother Mangu. Presumption was relied on the it was held that younger survived the elder.

In Re Mahabir Singh AIR 1963 P&H 66, it was held that u/s 21 of the Hindu Succession Act, the presumption is until contrary is proved, that the younger survived the elder. Thus provision lays down a rule of evidence and introduces a statutory presumption of rebuttable character in cases of simultaneous deaths. The law of evidence is a law of procedure and is retrospective. In that case, the testator and his wife who was younger than the testator and was the sole legatee under the Will died of gun shot wounds at the same time. It was held that apart from the medical evidence showing that the testator died first, it could be presumed u/s 21 that the testator is survived by his wife, the lagatee. In paragraph 22, the learned Judge traces the history of the presumption . It is stated thus

"Common law does not solve the problem, by taking shelter behind any artificial rule of presumption , for determining as to who out of the several, outlived the rest when struck by common disaster. Common law answered the question posed by resort to the rule of burden of proof. Which of the two commorientes survived the other, had to be proved by the claimant why sought to establish his right. The matter of survival, in all cases, was treated as a question of fact. The Courts may drawn their own deductions by taking into consideration the circumstances of age, sex or physical condition of the person who perished and also examine the minutes of the disaster and the manner of deaths of the parties.

Learned counsel for the respondents submitted that the presumption u/s 21 of the Hindu Succession Act can be applied even in cases where parties died not in common disaster, but in other cases also. Learned counsel brought to our notice a decision in Hickman v. Peacey (1945) 2 All ER 215. In that case, facts are as follows "On Sept. 14, 1940, a bomb fell upon a house and exploded in the basement. There were five people sheltering in an air raid shelter in the basement and they were all killed. They were (a) the occupier of the house (b) her daughter, (c) the housekeeper of two brothers who are the testators next referred to (d) R.L.G., aged 73, the first testator and (e) his brother, E.M.G. aged 66, the second testator. The first testator inter alia, left a legacy to he housekeeper and he left the residue equally among his brothers "surviving at the date of my disease." The second testator left L 100 to each of his executors of whom the first testator, was one, pecuniary legacies to the first testator to the occupier of the house and to the housekeeper, and the residue equally to three named legatees of them the first testator was one. The question for the determination of the court was whether the deaths occurred in circumstances rendering it uncertain which of them survived the other or others so as to bring into operation the Law of Property Act, 1925, Section 184." in that case it was held that in view of the uncertainty which of the deceased survived the other or others, the presumption u/s 184 of the Law of Property Act, 1925, should be applied and the elder of the deceased brothers must be deemed to have died.

Learned counsel for the respondents invited our attention to the judgment of Viscount Simon in the above case (B. wherein it is stated thus :

"So far as the language of the section goes, it seems to me to be manifest that the section does not apply to the case where two or more death are absolutely simultaneous. Indeed, counsel for the appellants expressly said that he was not contending that if it were adequately proved that deaths were simultaneous, the section would apply. The section he readily conceded, deals with a succession of death and does not deal with simultaneous death. It is to be observed that, whatever may be case in similar provisions in the Roman Law, Section 184 is not limited to multiple deaths arising out of a "common disaster". For example, if a husband goes a long voyage and the ship completely disappears in circumstances where his death has to be presumed to have occurred, but there is no material to indicate on what date he was drowned, and if this wife was in a nursing honme when he started and subsequently died under an operation, they may be absolutely no means of ascertaining which of them died first. Yet in such a case is no "common disaster" at all."

The aboves passage is referred to in cross on Evidence, Fifth Edition at page 144. Lord Macmillan in a separate judgment states as follows :

"I prefer, therefore, to judge the language of the present enactment by a more common place standard. I think that it poses a practical question -- Can you say for certain which of those who dead persons died first ? if you cannot say for certain, then you must presume the older to have died first. It is Immaterial that the reason for your inability to say for certain which died first is either because you think they both died simultaneous or because you think they died consequently but you do not know in what seqeunce."

Lord Simonds in the above case, stated as follows ; "I conclude, then, that the true construction of Section 184 is that it proceeds upon the footing that the proof of simultaneous death is impossible or in other words upon the footing that, if surviorship is not proved , the only alternative is uncertainty. If it is thus read, there is no casus omissus and the section can be so construed as to cover every case in which it cannot be proved that one of two persons dying together survived the other. In coming to such a conclusion, I would reject the suggestion that it is that of a metaphysician rather than of a lawyer, unless indeed metaphylscs here include logic. It is a conclusion which has regard to our pre-existing law, to the way in which other systems of law have dealt with the same problem." Argument of the learned counsel for the respondents is that even though in the present case, there is no common disaster, relying on the illustration given by Viscount Simon, the learned counsel wants to apply the presumption u/s 21, According to us, the section only applies to cases where death take place in circumstances where it may not be possible to find out who survived the other in the case of common disaster like fire, bombing or even gun-shots. In the illustration given by Viscount Simon, it is pertinent to note that the wife was at Nursing Home when her husband had set voyage and the husband was not heard of after voyage. There is, it was presumed that wife and husband could have dead during the same time. Even if we apply to above illustration to our case, that cannot help the respondents. There is no presumption regarding the date of death, because the case of the appellants is that at least from 1962, Vasudevan is definite. It is not a case where there is evidence to show that both the persons could have died within a particular time. Hence, we differ from the learned single Judge and find that there is no evidence to show that Vasudevan survived Achuthan. If that be so, Vasudevan would be entitled to only 1/4th share in the share of Kallyani in plaint schedule item Nos. 1 and 2. Thus, he will be entitled to 1/ 8th share in plaint schedule item Nos. 1 and 2.

In the above view of the matter, the judgment and decree of the learned single Judge in A.S. No. 368 of 1983 are reversed and the judgment and decree of the trial Court in O.S. No. 246 of 1979 are restored.

Appeals are disposed of as above. No costs.