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/