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Kerala High Court
Sherly Mathai vs Susamma Mathai on 20 May, 2024
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.JAYACHANDRAN
MONDAY, THE 20TH DAY OF MAY 2024/30TH VAISAKHA, 1946
OP(C) NO.2266 OF 2017
AGAINST THE ORDER/JUDGMENT DATED 05.04.2017 IN I.A.
No.216/2017 IN O.S NO.26 OF 2016 SUB COURT, PUNALUR, KOLLAM.
PETITIONERS:
1 SHERLY MATHAI, AGED 38 YEARS, D/O.LATE P.C.MATHAI,
CHIRAYIL PARUVAKKAL CHEKAM, KIZHAKKE MURI,
PIRAVANTHOOR VILLAGE, PATHANAPURAM TALUK,
KOLLAM DISTRICT, REPRESENTED BY POWER OF ATTORNEY
HOLDER, ANNAMMA THOMAS, AGED 77 YEARS, W/O.G.THOMAS,
GREEN LAND, KADAIKKADU MURI, CHERIYANADU VILLAGE,
KOLLAKADAVU P.O.,
CHENGANNUR TALUK, ALAPPUZHA, PIN-690509.
2 SHEENA MATHAI, AGED 36 YEARS, D/O.LATE P.C.MATHAI,
CHIRAYIL PARUVAKKAL CHEKAM, KIZHAKKE MURI,
PIRAVANTHOOR VILLAGE, PATHANAPURAM TALUK,
KOLLAM DISTRICT, REPRESENTED BY POWER OF ATTORNEY
HOLDER, ANNAMMA THOMAS, AGED 77 YEARS, W/O.G.THOMAS,
GREEN LAND, KADAIKKADU MURI, CHERIYANADU VILLAGE,
KOLLAKADAVU P.O.,
CHENGANNUR TALUK, ALAPPUZHA, PIN-690509.
BY ADVS.
SRI.T.KRISHNANUNNI (SR.)
SRI.ASHWIN SATHYANATH
SRI.K.C.KIRAN
SMT.MEENA.A.
SRI.SAJU.S.A
SRI.VINOD RAVINDRANATH
SRI.VINAY MATHEW JOSEPH
RESPONDENT:
SUSAMMA MATHAI, AGED 57 YEARS, W/O.LATE P.C.MATHAI,
CHIRAYIL PARUVAKKAL CHEKAM, PIRAVANTHOOR VILLAGE,
PATHANAPURAM TALUK, KOLLAM DISTRICT, PIN-691001.
BY ADVS.
SRI.RENJIT GEORGE
SRI.K.SHAJ
SRI.VARGHESE C.KURIAKOSE
THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON
20.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP(C) No.2266 of 2017
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'C.R.'
JUDGMENT
Dated, this the 20th May, 2024 The mechanism of reference under Section 113 of the Code of Civil Procedure, 1908 (the 'Code' for short) is scarcely pressed into service by the civil courts, wherefore, it's creases are not adequately delineated by judicial pronouncements. The instant facts in this Original Petition leaves room for interpretation of Section 113, read with Order XLVI, especially on the point, whether the requirements of Order XLVI, Rule (1) would govern a reference in terms of the proviso to Section 113 as well. The factual matrix may be summed up thus:
The defendants in O.S.No.26/2016 on the files of the Sub Court, Punalur are the petitioners herein. The suit is one for partition. The defendants resisted the claim on the strength of a Will executed by late P.C.Mathai and laid Ext.P2 counter-claim. The plaintiff, Susamma Mathai, is the second wife of OP(C) No.2266 of 2017
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late P.C.Mathai, the first wife being Mariyamma Mathai. Defendants are the children born to the said P.C.Mathai in his first marriage with Mariyamma Mathai. Certain dates are relevant, which are referred to here below:
The first wife Mariyamma Mathai passed away in the year 1999. The subject Will was executed by P.C.Mathai on 20.04.2006. P.C.Mathai married the plaintiff, Susamma Mathai on 22.10.2006. P.C.Mathai died on 09.09.2009.
2. As already indicated, the defendants are claiming under the Will to exclude the plaintiff from intestate succession. Upon completion of pleadings, trial commenced, and the same was almost complete. According to the petitioners/defendants, a substantial question of law involving the interpretation of Section 69 of the Indian Succession Act and its constitutional vires had arisen in the case, wherefore, they filed Ext.P4 interlocutory application - I.A.No.216/2017 - OP(C) No.2266 of 2017
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seeking a reference of the question to the High Court under Section 113, read with Order XLVI. It was contended in Ext.P4 interim application that Section 69, which invalidates a Will upon the marriage of the testator - only insofar as persons who belongs to Christian community is concerned - is discriminatory and violative of the principles of equality enshrined in Articles 14 and 15 of the Constitution. It was further contended that Section 69 has not been declared unconstitutional by the High court so far. On such premise, reference was sought for. By Ext.P5 impugned order, the learned Sub Judge dismissed Ext.P4 I.A., essentially on the premise that the decree to be passed in the suit is an appealable one, wherefore a reference cannot be sought for as per Order XLVI, Rule (1). Another reason to frown upon the reference sought for is that there is no pleading in the written statement as regards the constitutional validity of Section 69 of the Indian Succession Act and, therefore, the said question does not arise for OP(C) No.2266 of 2017
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consideration, according to the learned Sub Judge.
3. Therefore, the moot questions to be answered are formulated thus:
i) Whether a reference in terms of the proviso to Section 113 is different, distinct and separate from a reference under the main part of Section 113, read with Order XLVI, Rule (1)?
ii) If the answer to the above question is in the affirmative, whether the requirements of Order XLVI, Rule (1) would also govern a reference as per the proviso to Section 113?
4. For a correct understanding and appreciation of the points formulated, it should immediately be noticed that Section 113, as it originally stood, does not contain the proviso. Section 113, unaccompanied by the proviso, is extracted here below:
OP(C) No.2266 of 2017
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"113. Reference to High Court.-Subject to such conditions and limitations as may be prescribed, any Court may state a case and refer the same for the opinion of the High Court, and the High Court may make such order thereon as it thinks fit."
[underlined by me for emphasis] Here, two aspects are relevant to be noticed. The first is that an order for reference under Section 113 is subject to such conditions and limitations as may be prescribed. The second aspect is that, it is not obligatory on the part of the court to make a reference under Section 113, as is explicable from the term 'may' employed in Section 113.
5. Now, we should immediately refer to Order XLVI, Rule (1), which prescribes the conditions and limitations envisaged in Section 113. Order XLVI,, Rule (1) is extracted here below:
"1.Reference of question to High Court.- Where, before or on the hearing of a suit or an appeal in which the decree is not subject to appeal, or where, in the execution of any such decree, any question of law or usage OP(C) No.2266 of 2017
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having the force of law arises, on which the Court trying the suit or appeal, or executing the decree, entertains reasonable doubt, the Court may, either of its own motion or on the application of any of the parties, draw up a statement of the facts of the case and the point on which doubt is entertained, and refer such statement with its own opinion on the point for the decision of the High Court."
As per the above extracted provision, reference of a question to the High Court can be made at three stages namely, in a suit, an appeal and also in execution of a decree. In the first two stages namely that of a suit and an appeal, there is an important pre-condition that the decree to be passed in the suit or appeal is not subject to appeal. Here, we may have to pause for a moment to understand that, if a reference is to be made at an appellate stage, then, the decree to be passed in the appeal shall not be subject to a further appeal. In essence, if an appeal is provided as against a decree to be passed in the suit or an appeal, a OP(C) No.2266 of 2017
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reference is impossible. To understand the raison d'etre for exclusion of reference in cases, where an appeal is provided as against the decree, it is profitable to notice that the main part of Section 113 does not state the nature of the question to be referred to the High Court for a decision, which, however, is expatiated in Order XLVI, Rule (1). The question, which can be referred in terms of Section 113 read with Order XLVI, Rule (1) is "any question of law or usage having the force of law", which "arises" in the suit/appeal/execution and the court concerned entertains a reasonable doubt on that particular point. Then, the same can be referred in terms of Order XLVI, Rule (1). Order XLVI, Rule (1) only employs the expression "any question of law or usage having force of law". It does not even mandate that such questions should be substantial questions of law. Therefore, a question of law, which arises from the facts in the given case, can as well be raised and addressed by an appellate court, provided the decree to be passed in the suit OP(C) No.2266 of 2017
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or appeal is subject to an appeal. The obvious intention for exclusion of reference in cases, where an appeal is provided for, is that the said question of law can be addressed and answered by the appellate court, which considers the decree from the suit or appeal. Per contra, if no such appeal is provided and if a question of law arises in the suit or an appeal, which requires an answer by the High Court, then, the same can be referred under Section 113, read with Order XLVI, Rule (1). Two things, which are not explicitly stated in Section 113 or Order XLVI, Rule (1), may have to be read into, in this context. The first is that the question of law to be referred is an important question, which has not thus far been answered either by the High Court, or for that matter, the Honourable Supreme Court. The second aspect to be read into is that such question of law should be one, which is essential for the adjudication of the suit/appeal being considered by the civil court. For the time being, I may leave Section 113, read with Order XLVI, OP(C) No.2266 of 2017
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Rule (1) as it is. Further conditions as encapsulated in Order XLVI, Rule (1) is not dealt with herein, for, the same are not germane/relevant in the facts of the instant case.
6. This Court will now address the reference contemplated in the 'proviso' to Section 113. It is important to note that the proviso was subsequently added to Section 113 by Act 24 of 1951. The proviso to Section 113 is extracted here below:
"Provided that where the Court is satisfied that a case pending before it involves a question as to the validity of any Act, Ordinance or Regulation or of any provision contained in an Act, Ordinance or Regulation, the determination of which is necessary for the disposal of the case, and is of opinion that such Act, Ordinance, Regulation or provision is invalid or inoperative, but has not been so declared by the High Court to which that Court is subordinate or by the Supreme Court, the Court shall state a case setting out its opinion and the reasons therefor, and refer the same for the opinion of the High Court."OP(C) No.2266 of 2017
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7. The statement of objects and reasons for amendment in terms of Act 24 of 1951 are extracted here below:
" STATEMENT OF OBJECTS AND REASONS During the last year, a few cases have come to notice in which subordinate courts have taken upon themselves the grave responsibility of declaring enactments of the Legislature to be void under the Constitution.
Article 228 of the Constitution casts on every High Court an obligation to withdraw from a subordinate court any case if it is satisfied that the case involves a substantial question of law as to the interpretation of the Constitution, and then either dispose of the case itself or determine the question of law and remit it to the subordinate court for disposal. The invalidity of an enactment must necessarily give rise to a substantial question of law as to the interpretation of the Constitution.
It is no doubt possible for parties who are vigilant enough, to apply to the High Court in time under Article 228 of the Constitution for withdrawing a case from a subordinate court, instead of allowing that court to OP(C) No.2266 of 2017
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pronounce on the validity or invalidity of an enactment, and this is equally true of Government in criminal cases. In practice, however, they often fail to take prompt action. The result, in the words of Cooley, the well known writer on American constitutional law, is that we have "the ludicrous spectacle of an inferior magistrate having merely police or other limited jurisdiction assuming to pass judgment upon the legislation of a State or country and declare it invalid,". The responsible duty of declaring an enactment invalid, and thereby overruling the solemn decision of the Legislature, should be discharged only by the superior courts of the country.
This Bill accordingly proposes to amend section 113 of the Code of Civil Procedure and section 432 of the Code of Criminal Procedure so as to make it obligatory on the part of the subordinate courts to make a reference to the High Court in every case where the subordinate court is satisfied-
(a) that the case before it involves a question as to the validity of an enactment, the determination of which is necessary for the disposal of the case;
(b) that the enactment has not been authoritatively declared to be invalid; OP(C) No.2266 of 2017
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and
(c) that in its own opinion the enactment is invalid or inoperative.
8. By the same amending Act 24 of 1951, Rule 4-A was also introduced under Order XLVI, which is extracted here below:
"4-A. Reference to High Court under proviso to Section 113.-The provisions of rules 2, 3 and 4 shall apply to any reference by the Court under the proviso to Section 113 as they apply to a reference under rule 1."
It could thus be seen that the reference contemplated in the proviso is not a mere question of law as envisaged in Order XLVI, Rule (1), but a question as to the validity of an Act, Ordinance or Regulation, or of any provision contained in an Act/ Ordinance/Regulation. The proviso mandates that the determination of the validity of the Act etc., or any provision contained in the Act etc., should be necessary for the disposal of the case and that the civil court is satisfied that either the Act or any OP(C) No.2266 of 2017
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provision therein is invalid or inoperative, but which is not so declared by the High Court or the Supreme Court so far.
9. Coming to Rule 4-A of Order XLVI, the heading is important. It speaks of "Reference to High Court under proviso to Section 113", which gives a clear indication that the reference under proviso is different and distinct from the reference under the main part of Section 113, read with Order XLVI, Rule (1). Rule 4-A stipulates that Rules 2, 3 and 4 applies to a reference under the proviso to Section 113, as they apply to a reference under Rule (1). It is of significant impact to note that Rule 4-A does not make Rule (1) of Order XLVI applicable to a reference under the proviso to Section 113. Profitable reference in this regard may be made to the maxim "Expressio unius est exclusio alterius". When Order XLVI, Rule 4-A specifically prescribes the applicability of sub rules 2, 3 and 4, it is silent about sub rule 1, which going by the maxim, OP(C) No.2266 of 2017
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can only be treated as a conscious omission/ exclusion. Rule 5 to Order XLVI will also throw some light to the question being addressed. It speaks of the power of the court making reference to alter the decree, which the court referring the matter had passed. There, two types of references are seen referred to. The first is a reference to the High Court under Rule (1) of Order XLVI and the second, a reference under the proviso to Section 113. It is therefore clear, beyond the cavil of any doubt, that a reference in terms of Order XLVI, Rule (1), read with Section 113 or vice-versa; and the reference in terms of the proviso to Section 113 are different, separate and distinct. In fact, a reference under the proviso to Section 113 is a different package altogether, which specifically pertains to the validity of an Act/Ordinance/Regulation, or of any provision contained therein. Whereas, the reference in terms of Order XLVI is generally in respect of a question of law or usage having the force of law, which 'arises' in a suit or an appeal. OP(C) No.2266 of 2017
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10. The upshot of the above discussion is that the pre-requisite/pre-condition envisaged in Order XLVI, Rule (1) that the suit or an appeal in which the decree is not subject to appeal cannot be made applicable to a reference under the proviso to Section 113. I would hasten to add a reason, which occurs in my mind as to why a provision for an appeal cannot be, or should not be, made applicable to a reference under the proviso to Section 113. As already indicated, a reference under the proviso pertains to the validity of an Act/Ordinance/ Regulation or of any provision contained therein. Generally, the validity of an Act or a provision in the Act is challenged in the touchstone of constitutional provisions and the challenge usually boils down to the constitutional validity of the Act or any provision therein. We have seen from the statement of objects and reasons that law does not contemplate a civil court, or for that matter an appellate court, to deal with the constitutional vires of an enactment and to declare the same void OP(C) No.2266 of 2017
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under the constitution. Instead, by the introduction of the proviso, it is made obligatory on the part of the subordinate courts to refer such question to the High Court. If that be so, the existence or otherwise of a provision for an appeal from the decree is hardly material/consequential, since the appellate court empowered to consider the appeal cannot deal with the constitutional validity of the Act, Ordinance or Regulation or any provision contained therein. This probably explains as to why the pre-condition as regards the absence of an appellate provision for a reference, as envisaged in Order XLVI, Rule (1), would not/should not apply to a reference under the proviso to Section 113.
11. Although no decision on the point by the Honourable Supreme Court was brought to my notice, this Court could trace a decision of a learned Single Judge of this Court, where the distinction between a reference under the main part of Section 113 and the one under the proviso, is seen taken OP(C) No.2266 of 2017
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note of. In Pankajasha Menon v. Union Bank of India [1988 (2) KLT 142], the learned Single Judge found in paragraph no.11 that for a reference under the main part of Section 113, the decree to be passed in the suit/appeal, is not appealable. Light is thrown to the purpose of the said provision by explaining that the appellate court can correct the error, which the trial court may commit. However, in the facts of that case, the learned Single Judge found that the reference is only under the proviso to Section 113, which engrafts an exception to the general principle envisaged in the main part of Section 113. Accordingly, the objection that the reference is bad, since the decree to be passed in the suit is appealable, is rejected.
12. The precise issue fell for consideration before a Division Bench of the Rajasthan High Court in Shersingh v. Ghansiram [AIR 1954 Rajasthan 233], Wanchoo, C.J (as his Lordship then was), speaking for the bench, opined thus in paragraph no.4: OP(C) No.2266 of 2017
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"4. A preliminary objection has been raised that this reference is incompetent. It is pointed out that O.46, R.1, which supplements the provisions of S.113, Civil P.C., provides that reference is only competent in a suit in which the decree is not subject to appeal. It is urged that as the decree in this suit is subject to appeal, no reference is possible except where the case is covered strictly by the proviso to S.113. This statement of the law is correct, and we have, therefore, to see whether this reference is covered strictly by the proviso to S.113."
[underlined by me for emphasis]
13. A subtle indication that the reference under Section 113 (sic. read with proviso) is different from a reference under Order XLVI, Rule (1) is contained in the judgment of the Himachal Pradesh High Court in Jai Lal v. Padam Singh and another [AIR 1954 Himachal Pradesh 23]. The relevant findings are extracted here below:
"1. This is a reference made by the learned OP(C) No.2266 of 2017
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Senior Subordinate Judge, of Mahasu in a proceeding in execution of a decree under Section 113 and O.46, R.1, C. P. C. The decree under execution not being a non- appealable one, and moreover, the question involved being as to the validity of a Regulation, the former and not the latter was the correct provision of the Code for making the reference."
[underlined by me for emphasis]
14. In Antonio Ferreira Martina and another v. Union Territory of Goa, Daman and Diu [AIR 1971 Goa, Daman and Diu 31], an indication in this regard is made by a learned Single Judge of the Goa High Court. A reference made was set aside on the ground that an appeal lies, by placing reliance upon Order XLVI, Rule (1). There, the learned Single Judge specifically noticed in paragraph no.6 that the reference in question was one not made under the proviso to Section 113. The said observation would obviously indicate that, had it been a reference under the proviso to Section 113, the pre-requisite of the absence of an appeal provided against the OP(C) No.2266 of 2017
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decree would not have applied.
15. Having found that the first ground found by the learned Sub Judge to dismiss Ext.P4 application is not sustainable, this Court will now address the second one. According to the learned Sub Judge, the constitutional validity of Section 69 of the Indian Succession Act is not canvassed in the pleadings, and, therefore, the said issue does not arise for consideration, based on which premise as well, reference sought for is rejected. I am afraid, whether the learned Sub Judge is misconceived in this regard. When the defendants, who are children born in the first marriage of Sri.P.C.Mathai, espouse a Will to disinherit the plaintiff, it is absurd to expect that the defendants would plead Section 69, which speaks of the invalidity of the Will espoused by the defendants, themselves. If at all it is to be pleaded, the same has to be done by the plaintiff, in his written statement to the counter-claim of the defendants. Moreover, what is OP(C) No.2266 of 2017
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to be pleaded is essentially the facts; and not the law. The question which should have been posed by the learned Sub Judge is that, whether the case involves a question as to the validity of any provision contained in an Act, the determination of which is necessary for the disposal of the case. In the instant facts, the provision contained in Section 69 of the Indian Succession Act has got a pivotal consequence insofar as the defence claim is concerned, wherefore, a reference in terms of the proviso to Section 113 of the Code should have been found necessary. It is hence concluded that the second reason, which weighed with the learned Sub Judge, also cannot be sustained.
16. In the light of the above discussion, this Court finds that the impugned Ext.P5 order of the learned Sub Judge cannot be sustained and the same is hereby set aside. The matter is remitted to the trial court for fresh consideration of Ext.P4 interlocutory application in accordance with law, OP(C) No.2266 of 2017
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and also in the light of the law laid down in this judgment.
This Original Petition is disposed of, as above.
Sd/-
C.JAYACHANDRAN, JUDGE ww OP(C) No.2266 of 2017
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APPENDIX OF OP(C) 2266/2017 PETITIONERS' EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE PLAINT IN O.S. NO.26/2016 (FORMERLY O.S.NO.7/2010 FILED BEFORE MUNSIFF COURT, PUNALUR) ON THE FILES OF SUB COURT, PUNALUR.
EXHIBIT P2 TRUE COPY OF THE WRITTEN STATEMENT DATED 08-03-2010 IN O.S.NO.26/2016, SUB COURT, PUNALUR FILED RAISING COUNTER CLAIM.
EXHIBIT P3 TRUE COPY OF THE WRITTEN STATEMENT DATED 03-04-2010 IN O.S.NO.26/16, SUB COURT, PUNALUR DATED 03-04-2010.
EXHIBIT P4 TRUE COPY OF THE I.A.NO.216/2017 DATED 27- 03-2017 IN O.S.NO.26/2016, SUB COURT, PUNALUR.
EXHIBIT P5 TRUE COPY OF THE ORDER DATED 05-04-2017 IN I.A.NO.216/2017 IN O.S.NO.26/2016, SUB COURT, PUNALUR.