SUPREME COURT OF INDIA — Civil Appeal No. 1 of 1962 (certificate appeal under Art. 133 from the judgment and decree dated September 10, 1957, of the Kerala High Court in Second Appeal No. 42 of 1954 (I.T.)); bench A. K. Sarkar, M. Hidayatullah and J. C. Shah JJ.; judgment delivered by Hidayatullah J.; decided May 1963 — APPEAL DISMISSED WITH COSTS. (1) Certificate competency: an appeal must satisfy two valuation tests — the value of the subject-matter in the court of first instance and the value in dispute on appeal must both exceed the prescribed mark; where the decree directly or indirectly involves a claim/question respecting property above the mark the appeal is competent, 'indirectly' covering the real value determined apart from the plaint valuation; a redemption plaintiff values his plaint on the redemption price (here 3500 fanams, about Rs. 500/-, the otti amount), not market value; the High Court found values of Rs. 42,000/- and Rs. 80,000/- at the material times; certificate competent; the alternative objection that the trial court lacked jurisdiction (if value exceeded Rs. 10,000) cannot be raised for the first time in this Court. (2) Travancore Ezhava Act, 1100 (Act III of 1100), s. 32: makkathayam property divides equally among wife and children on partition unless a contrary intention is expressed; the expression is not confined to imposing impartibility, and nothing shows impartibility was the rule for makkathayam property; gift deed Exh. III (Bhagavathi Parameswaran to wife Bhagavathi Valliyamma, 9.3.1103 M.E.) allotted properties severally to wife and grandson Vasudevan, each to take exclusively. (3) Succession: reading ss. 18-19 with Explanation II (thavazhee of an intestate female includes issue how-low-so-ever), Vasudevan took at least a fractional interest as 'issue' whether or not his father Sivaraman survived Bhagavathi Valli; the statement of Sivaraman's death in Exh. R (1-7-1121 M.E.) is an unwithdrawn, binding admission on the answering respondent; the appellant as transferee would be a person interested entitled to redeem — but only if Part IV applied to Bhagavathi Valli. (4) Procedure: though exemption was neither pleaded nor framed as an issue, the notification was filed with the written statement, the plaintiff was cross-examined on the address, the defendant's witness (Mathan Kuruvila) deposed to the notification unchallenged, and the plaintiff neither objected nor sought leave to rebut; the parties went to trial fully understanding whether the Act's succession rules applied to Bhagavathi Valli; absence of an issue caused no mistrial and did not vitiate the decision. (5) Identity/exemption: Exh. II, notification issued in 1102 M.E. (Government order dated 8th January 1927, K. George, Chief Secretary) exempting individuals under s. 33(1)(i); Bhagavathi Valli at Sl. No. 170 identified by name, the Bhagavathi Bhagavathi branch of Pinarummoottu tarwad, the accompanying entries for sister Bhagavathi Narayani (No. 171) and niece Narayani Gouri (No. 172), and the address Thottuvarambu Bungalow, Katakampalli Pakuthi; the tarwad had two residences; the District Judge's observation of several Bhagavathi Vallis is not borne out; exemption duly proved. (6) Result: Part IV inapplicable to Bhagavathi Valli; under Marumakkathayam law her heirs were her sister Bhagavathi Narayani and niece Gouri, not daughter-in-law Meenakshi or grandson Vasudevan; the appellant, who purchased the jenmom rights from Meenakshi and Vasudevan (12.4.1123 M.E.), never enjoyed the jenmom rights and could not redeem the otti held by respondent No. 1 (title traced through the decree-holders' auction purchase of 3.4.1114 M.E. in O.S. No. 36 of 1100 M.E. and document R); appeal dismissed with costs.
