High Court Kerala High Court

M. Mohanan Pillai vs Sumathy Amma on 18 January, 2010

Kerala High Court
M. Mohanan Pillai vs Sumathy Amma on 18 January, 2010
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

RP.No. 18 of 2010()


1. M. MOHANAN PILLAI,
                      ...  Petitioner

                        Vs



1. SUMATHY AMMA,
                       ...       Respondent

2. B. SANTHAMMA AMMA,

3. K. NARAYANA PILLAI (DIED),

4. BHAVANI AMMA, W/O. NARAYANA PILLAI,

5. K. KUTTAN PILLAI (DIED),

6. K. RAJEEVAN PILLAI,

                For Petitioner  :SRI.B.SURESH KUMAR

                For Respondent  : No Appearance

The Hon'ble MR. Justice THOMAS P.JOSEPH

 Dated :18/01/2010

 O R D E R

THOMAS P JOSEPH, J.

—————————————-

R.P.No.18 of 2010
in
S.A.No.704 of 1995
&
R.P.No.19 of 2010
in
S.A.No.847 of 1997

—————————————

Dated this 18th day of January, 2010

COMMON ORDER

Heard both sides.

2. These petitions seek review of the common judgment

dated 09-09-2009 in S.A.Nos.704 of 1995 and 847 of 1997. Petitioners

are the unsuccessful appellants in these second appeals. The grounds

stated in the petition for review are that this court while disposing of

the appeals observed in paragraph 10 of the common judgment that

documents produced by the review petitioners (appellants in the

second appeals) in the first appellate court did not reveal that the

parties were following the Marumakkathayam Law in the matter of

intestate succession. Grievance of petitioners is that the said

documents as well as Ext.A4 already marked in the case would reveal

that the parties were following the Makkathayam Law of Succession.

The findings that being members of Hindu Nair community, parties

were following the Marumakkathayam Law of Succession and hence

section 17 of the Hindu Succession Act applied is illegal. Learned

counsel would submit that there is an error apparent on the face of the

records in that the documents were not properly considered by this

court while disposing of the second appeal. Learned counsel submits

R.P.Nos.18 and 19 of 2010 2

that common judgment may be reviewed and the matter may be

reheard. The petitions are opposed by learned counsel for respondents

in the review petition (respondents in the second appeals). Learned

counsel points out that the parties belong to the Hindu Nair Community

domiciled in erstwhile Travancore area and hence there is no scope for

a contention that they were following the Makkathayam Law of

Succession in view of the provisions of the Travancore Nair Act.

3. It is not disputed before me that the parties belong to the

Hindu Nair community domiciled in the erstwhile Travancore area.

While hearing these second appeals petitioners had advanced an

argument that the parties were following Makkathayam Law of

Succession and hence section 15 of the Hindu Succession Act applied.

This court in the common judgment sought to be reviewed held after

referring to the relevant provisions in the Travancore Nair Act and

Travancore Ezhava Act (the relevant provisions are quoted in the

common judgment) that so far as Hindu Nairs domiciled in the

erstwhile Travancore area are concerned there is no scope for a

contention that members of that community domiciled in the said area

are following the Makkathayam Law of Succession. Based on that

finding it was held that petitioners are not entitled to succeed in the

appeals. Incidentally, this court also referred to the documents

produced by petitioners in the first appellate court though, without an

R.P.Nos.18 and 19 of 2010 3

application for reception of additional evidence under Order XL1 Rule

27 of the Code of Civil Procedure. This court held that in the absence

of an application to receive additional evidence first appellate court

was not bound to rely on the said documents. It was also observed

that the said document also will not help petitioners in their contention

that they followed Makkathayam Law of Succession. According to

learned counsel for petitioners the said findings are not correct.

4. The common judgment stands on the finding that since the

parties belonged to the Hindu Nair community and are domiciled in the

erstwhile Travancore area question of their opting for any law of

succession other than Marumakkathayam law in view of the provisions

of the Travancore Nair Act (Section 1(2)) did not arise. That is a

finding based on relevant provisions of the said Act and the Hindu

Succession Act. The correctness of that finding cannot be challenged

by a review petition reason being that a review is not a substitute for

an appeal or, an occasion for a further hearing.

5. So far as the contention that documents produced do

reveal that the parties were following Makkathayam Law of Succession

is concerned, that question does not arise for a decision in view of my

finding in the common judgment under challenge that the parties are

governed by section 1(2) of the Travancore Nair Act (wrongly stated in

the common judgment as section 2(1)) and hence it is the

R.P.Nos.18 and 19 of 2010 4

Marumakkathayam Law of Succession that is applicable. If the

common judgment can be sustained on any one ground stated therein,

fact that another ground stated is not correct on facts even if it is

assumed so, is not a ground to review the common judgment under

challenge. As such, there is no scope for entertaining these petitions.

Accordingly these petitions are dismissed.

THOMAS P JOSEPH,
JUDGE

Sbna/