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
                               - 2 -

                                                            '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

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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 -

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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

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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:

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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

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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

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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

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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,

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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."

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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

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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;

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and

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

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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,

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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.

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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

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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

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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:

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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

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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

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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

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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,

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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

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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.