[Cites 35, Cited by 0]
Kerala High Court
N.Subramanya Sarma vs E.N.Narayana Sarma on 19 December, 2025
2025:KER:97690
RSA Nos.698 & 624/2015
1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
FRIDAY, THE 19TH DAY OF DECEMBER 2025 / 28TH AGRAHAYANA, 1947
RSA NO. 624 OF 2015
AGAINST THE JUDGMENT AND DECREE DATED 15.01.2015 IN AS
NO.270 OF 2008 SUB COURT, CHENGANNUR ARISING OUT OF THE JUDGMENT
AND DECREE DATED 19.12.2007 IN OS NO.386 OF 2002 OF MUNSIFF
COURT,CHENGANNUR
APPELLANT/APPELLANT/PLAINTIFF:
N.SUBRAMANYA SARMA, AGED 60 YEARS,
OWN AFFAIRS, S/O.NARAYANA MOOSATH, EDAKKATTIL
ILLOM, PULIYOOR VILLAGE, PULIYOOR MURI, CHENGANNUR
TALUK, ALAPUZHA DISTRICT, PRESENTLY RESIDING AT
THIRUVANNUR NADA, KOZHIKODE - 673 029.
BY ADVS.
SHRI.P.T.GIRIJAN
SHRI.C.MURALIKRISHNAN (PAYYANUR)
SRI.ABRAHAM GEORGE JACOB
SHRI.AKSHAY R
SRI.ADEENA SHAMEED
RESPONDENTS/RESPONDENTS 2 TO 4 AND 6 TO 11/DEFENDANTS
2,3,5,7,8,9,10,11& NON PARTY TO SUIT:
1 E.N.NARAYANA SARMA
AGED 47 YEARS, GOVERNMENT EMPLOYEE, S/O.NARAYANAN
MOOSATH, EDAKKATTIL ILLOM, PULIYOOR VILLAGE,
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2
PULIYOOR MURI, CHENGANNUR TALUK, ALAPUZHA DISTRICT
- 689 510.
2 RAJAN
AGED 46 YEARS, S/O.ACHUTHAN, MUDIYIL HOUSE,
PULIYOOR VILLAGE, PULIYOOR MURI, CHENGANNUR TALUK,
ALAPUZHA DISTRICT 689 510.
3 LEELA @ SAJANI
AGED 39 YEARS, MUDIYIL HOUSE, PULIYOOR VILLAGE,
PULIYOOR MURI, CHENGANNUR TALUK, ALAPUZHA DISTRICT
689 510.
4 SARADAKUTTY AMMA (DIED, LRS RECORDED)
TC 38/1877, WEST FORT, THIRUVANANTHAPURAM FROM
EDAKKATTIL ILLOM, PULIYOOR MURI, PULIYOOR VILLAGE.
(RESPONDENTS 5 AND 10 ALREADY IN THE PARTY ARRAY
ARE RECORDED AS THE L.HRS. OF DECEASED 4TH
RESPONDENT AS PER THE ORDER DTD. 06/8/2015 IN I.A.
1907/2015)
5 SUBHADRARANI
AGED ABOUT 43 YEARS, KOCHUMADOM, T.C.17/1817(9),
PURA 24C, NETHAJI ROAD, POOJAPPURA,
THIRUVANANTHAPURAM-695 012.
6 E.N. PADMAJADEVI
AGED 53 YEARS, D/O.SAROJINI ANTHARJANAM, SREE
VIHAR, PUTHEZHATHU ILLOM, ARANMULA VILLAGE,
KOZHENCHERY TALUK, PATHANAMTHITTA DISTRICT - 689
533.
7 V.P. KANNAN
AGED 23 YEARS, S/O.LATE JALAJA DEVI, VALAKKODATHU
ILLOM, UDAYANAPURAM VILLAGE, VAIKOM TALUK, KOTTAYAM
DISTRICT- 686 143.
8 V.P. KARTHIKA
AGED 13 YEARS, D/O.LATE JALAJA DEVI, VALAKKODATHU
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3
ILLOM, UDAYANAPURAM VILLAGE, VAIKOM TALUK, KOTTAYAM
DISTRICT - 686 143.
(IT IS RECORDED THAT 8TH RESPONDENT HAS ATTAINED
MAJORITY AS PER ORDER DATED 24/2/2021 IN I.A.NO.
01/2021 IN RSA 624/2015)
9 PARAMESWARAN MOOTHATHU (DIED LRS RECORDED)
AGED ABOUT 56 YEARS, S/O.SUBRAMANYAN MOOTHATHU,
VALAKKODATHU ILLOM, UDAYANAPURAM VILLAGE, VAIKOM
TALUK, KOTTAYAM DISTRICT - 686 143.
(RESPONDENTS 7 AND 8 ARE RECORDED AS THE LEGAL
REPRESENTATIVES OF DECEASED 9TH RESPONDENT AS PER
ORDER DATED 24/2/2021 IN I.A.NO.02/2021 IN RSA
624/2015.)
10 KANNAN
AGED ABOUT 37 YEARS, S/O.LATE NEELAKANTA SHARMA,
RESIDING AT T.C.36/1427(6), J.P.NAGAR, 21-C,
OUTSIDE WEST FORT, THIRUVANANTHAPURAM - 695023.
BY ADVS.
SRI.R.LAKSHMI NARAYAN (SR.) FOR R1 & R10
SHRI.M.R.SABU
SRI.J.HARIKUMAR FOR R5
SHRI.N.K.KARNIS FOR R2 & R3
SRI.KURUVILLA JOHN
SRI.S.SHYAM FOR R2 & R3
SMT.POOJA M.NAIR FOR R2 & R3
SRI.N.SUKUMARAN (SR.) FOR R2 & R3
SRI.SAJI VARGHESE KAKKATTUMATTATHIL FOR R2 & R3
SRI.KIRAN PETER KURIAKOSE FOR R2 & R3
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON
17.11.2025, ALONG WITH RSA.698/2015, THE COURT ON 19.12.2025
DELIVERED THE FOLLOWING:
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RSA Nos.698 & 624/2015
4
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
FRIDAY, THE 19TH DAY OF DECEMBER 2025 / 28TH AGRAHAYANA, 1947
RSA NO. 698 OF 2015
AGAINST THE JUDGMENT AND DECREE DATED 15.01.2015 IN AS
NO.270 OF 2008 SUB COURT, CHENGANNUR ARISING OUT OF THE JUDGMENT
AND DECREE DATED 19.12.2007 IN OS NO.386 OF 2002 OF MUNSIFF
COURT, CHENGANNUR
APPELLANTS/RESPONDENTS 2 AND 11/DEFENDANTS 2 AND LEGAL HEIR
OF D1:
1 E.N.NARAYANA SHARMA
GOVT.EMPLOYEE, S/O.NARAYANAN MOOSATH,EDAKKATTIL
ILLAM, PULIYOOR MURI, PULIYOOR VILLAGE,CHENGANNUR
TALUK, WORKING AS CLERK, BILLING UNIT,OFFICE OF THE
ASSISTANT EXECUTIVE ENGINEER,KERALA WATER
AUTHORITY, THIRUVALLA.
2 KANNAN S/O.NEELAKANDA SARMA
SIV GANGA, TC 37/1877, PADINJARENADA,
THIRUVANANTHAPURAM.
BY ADVS.
SRI.R.LAKSHMI NARAYAN (SR.)
SRI.P.RAVINDRAN (SR.)
SHRI.M.R.SABU
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RSA Nos.698 & 624/2015
5
RESPONDENTS/APPELLANT & RESPONDENTS 3 TO 10/PLAINTIFF &
DEFENDANTS 3 TO 11:
1 N.SUBRAMANYA SHARMA, AGED 60,
S/O.NARAYAN MOOSATH, COMPANY EMPLOYEE,NOW RESIDING
AT 102, TULIP GARDEN,CO-OPERATIVE HOUSING SOCIETY
LTD., MILITARY ROAD, MAROL,ANDHERI EAST, MUMBAI-400
059 FROM EDAKKATTIL ILLAM,PULIYOOR MURI, PULIYOOR
VILLAGE, CHENGANNUR TALUK.
2 RAJAN, AGED 52 YEARS, S/O.ACHUTHAN
P.W.D. CONTRACTOR, RESIDING AT MUDIYIL HOUSE,
PULIYOOR MURI, PULIYOOR VILLAGE, CHENGANNUR TALUK-
689 510.
3 LEELA, AGED 45 YEARS,
MUDIYIL HOUSE, PULIYOOR MURI, PULIYOOR VILLAGE,
CHENGANNUR TALUK-689 510
4 SARADAKUTTY AMMA, (DIED, LRS RECORDED)
AGED 62 YEARS, T.C.37/1877, WEST FORT,
THIRUVANANTHAPURAM,FROM EDAKKATTIL ILLAM, PULIYOOR
MURI, PULIYOOR VILLAGE - 689 510.
(AS PER THE ORDER DATED 10/8/2016 ON STATEMENT VIDE
OF 4319/16 DATED 02/08/2016, IT IS RECORDED THAT
THE 4TH RESPONDENT DIED AND THE 2ND APPELLANT AND
5TH RESPONDENT WHO ARE ALREADY IN THE PARTY ARRAY
ARE HER LEGAL HEIRS)
5 SUBHADRANI, AGED 50 YEARS,
T.C.37/1877, WEST FORT, THIRUVANANTHAPURAM, FROM
EDAKKATTIL ILLAM, PULIYOOR MURI, PULIYOOR VILLAGE -
689 510.
6 E.N. PADMAJA DEVI, AGED 59 YEARS,
S/O.SAROJINI ANTHARJANAM, SREE VIHAR, PUTHEZHATHU
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6
ILLAM, ARANMULA VILLAGE, KOZHENCHERRY
TALUK,PATHANAMTHITTA DISTRICT - 689 533.
7 V.P. KANNAN, AGED 29 YEARS
S/O.JALAJA DEVI, VALAKKODATHU ILLATHU, UDAYANAPURAM
VILLAGE, VAIKOM TALUK, KOTTAYAM DISTRICT - 686 143.
8 V.P. KARTHIKA, ATED 18 YEARS
D/O.JALAJA DEVI, VALAKKODATHU ILLATHU, UDAYANAPURAM
VILLAGE, VAIKOM TALUK, KOTTAYAM DISTRICT - 686 143.
9 PARAMESWARAN MOOTHATHU, AGED 52 YEARS,
S/O.SUBRAMANIAN MOOTHATHY, VALAKKODATHU ILLATHU,
UDAYANAPURAM VILLAGE, VAIKOM TALUK, KOTTAYAM
DISTRICT-686 143.
BY ADVS.
SHRI.C.MURALIKRISHNAN (PAYYANUR)FOR R1
SMT.ADEENA SHAMNAD FOR R1
SRI.ABRAHAM GEORGE JACOB FOR R1
SHRI.AKSHAY R FOR R1
SRI.S.SHYAM FOR R2 & R3
SRI.KURUVILLA JOHN FOR R2 & R3
SRI.SAJI VARGHESE KAKKATTUMATTATHIL FOR R2 & R3
SHRI.N.K.KARNIS FOR R2 & R3
SHRI.J.HARIKUMAR FOR R5
SHRI.KIRAN PETER KURIAKOSE
SHRI.P.T.GIRIJAN
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON
17.11.2025, ALONG WITH RSA.624/2015, THE COURT ON 19.12.2025
DELIVERED THE FOLLOWING:
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RSA Nos.698 & 624/2015
7
"C.R"
EASWARAN S., J.
------------------------------------
RSA Nos.624 and 698 of 2015
-------------------------------------
Dated this the 19th day of December, 2025
JUDGMENT
Has the concept of civil death of a person, who chooses an ascetic
life (sanyasi), lost relevance on coming into force of the Hindu
Succession Act, 1956? This Court is called upon to examine the issue
because the plaintiff claims that he has not adopted the life of an ascetic,
whereas the defendants contend that the plaintiff consciously chose the
life of an ascetic and thus is precluded from claiming the right over the
family property.
1. Interestingly, the plaintiff and the defendants in
O.S.No.386/2002 on the files of the Munsiff's Court, Chengannur, a suit
for partition, have come up in these second appeals, respectively,
questioning the manner in which the Sub Court, Chengannur rendered
the judgment dated 15.01.2015 in A.S.No.270/2008, an appeal by the
plaintiff. By the judgment and decree of the trial court dated 19.12.2007,
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the suit filed by the plaintiff for partition was dismissed, and the plaintiff
carried forward the challenge in appeal. In the first appeal, the dismissal
of the suit was reversed and the suit was decreed. The plaintiff in his
second appeal contends that the quantum of shares allotted to him is not
correct. The defendants, on the other hand, are questioning the mode of
reversal of the judgment of the trial court, in RSA No.698/2015.
2. The brief facts necessary for the disposal of the appeals are as
follows:
In the wedlock of Narayan Moosath of Edakattil Illom with
Subhadra, the 1st defendant was born. Subhadra died and Narayan
Moosath remarried making the 4th defendant his 2nd wife. The plaintiff,
2nd defendant, one Padmaja and one Jalaja were born in that wedlock.
By partition deed No.4206 of 1954, the plaint schedule properties and
other properties were set apart as Saka share of Narayan Moosath,
plaintiff, 4th defendant, the child in her womb and the children to be born
later. The 2nd defendant and other two daughters were born later.
During 1958, a partition was effected as deed No.4155 among the family
members, dividing them into three and allotted shares. Narayan
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Moosath and minor child, Savithri, who died during her minority, were
the first party and A schedule was allotted to them. Certain properties
were allotted to Narayan Moosath as his individual share. The plaintiff,
deceased Savithri, the 4th defendant and the child in the womb and other
children to be born later were made as second party and B schedule was
allotted to them. The 1st defendant, who was a major at the time, was
made a third party and due share was allotted to him also. The plaint A
schedule item No.2 property belonged to Narayan Moosath, is in
possession of the 1st defendant on behalf of the Illam. Narayan Moosath
expired in the year 1964. Sisters of the plaintiff were married using the
funds spent by the plaintiff, 4th defendant and others and, hence, they
relinquished their rights over their shares. Defendants 1 and 2, along
with the 4th defendant and the sisters of the plaintiff, created partition
deed No.1191 in the year 1994 without the knowledge of the plaintiff and
not allotting due share to him. Though the plaintiff demanded partition,
the defendants were not amenable. Hence, the suit.
2.2 Defendants 1, 2 and 4 resisted the suit. It was contended that
the plaintiff left his native land at a young age and had become an ascetic
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by adopting Sanyasa. Neither the 4th defendant nor her children were
parties in the partition deed of the year 1954. Narayan Moosath had no
right to sell the property allotted to the minor 1st defendant. As per the
partition deed of the year 1958, existing minors and the children to be
born to the 4th defendant were allotted B schedule and were treated as
one party. The quantum of share claimed by the plaintiff was also
disputed.
2.3 The 3rd defendant filed a separate written statement
contending that by virtue of sale deed No.2028/1994, the 3rd defendant
and his wife are in ownership of the property. The plaintiff or anyone
under him has no right over the same and he is a bona fide purchaser.
2.4 On behalf of the plaintiff, Exts.A1 to A20 series were marked
and PW1 to PW3 - the plaintiff, an independent witness and the advocate
commissioner, respectively - were examined. The reports and mahazar
of the advocate commissioner were marked as Exts.C1 to C3. On behalf
of the defendants, Exts.B1 to B14 were marked and DW1 and DW2 - the
2nd defendant and an independent witness, respectively - were examined.
3. The trial court framed the following issues for consideration:
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"1. Whether plaintiff is entitled to any share of the
plaint schedule properties?
2. What is the share?
3. Quantum of mesne profits, if plaintiff is entitled
for the same?
4. Reliefs and costs?"
4. On appreciation of the oral and documentary evidence, the
trial court came to the conclusion that the claim of the plaintiff for
partition is barred by the principle of estoppel. In the light of the oral
testimony of DW2 and also the various communications - letters
addressed by the plaintiff to the defendants - the trial court concluded
that the plaintiff had renounced worldly life and adopted Sanyasa and
thereby relinquished all claims over the property and thus was
disentitled to claim partition. Accordingly, the suit was dismissed.
5. Aggrieved, the plaintiff preferred A.S.No.270/2008 before
the Sub Court, Chengannur. The appeal was allowed by judgment dated
15.1.2015 and the judgment and decree of the trial court dismissing the
suit, were reversed and a preliminary decree for partition was passed.
Hence, both the appeals.
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6. On 8.10.2015, this Court admitted the appeals and issued
notice on the substantial questions of law framed in the memorandum of
appeals, since both the appeals raise substantially the same questions.
But insofar as RSA No.624/2015 is concerned, the quantum of share
allotted in favour of the plaintiff is disputed, and the substantial
questions of law as framed in RSA No.624/2015 will be required to be
addressed only if this Court finds that RSA No.698/2015 is to be
dismissed. In other words, once RSA No.698/2015 is allowed, the
dismissal of RSA No.624/2015 must follow.
7. The substantial questions of law, which are framed and
required to be addressed by this Court in RSA No.698/2015, are as
follows:
1. In view of the mandate of section 58 of Evidence Act, whether
the First Appellate court is justified in burdening the
defendant with the burden of proof of the acceptance of
Sanyasa by the plaintiff, when it is an admitted case as amply
and unambiguously revealed by Ext,.B4 to B8 letters that he
has accepted Sanyasa and became a Sanyasi, thereby
renouncing worldly affairs?
2. Whether the First Appellate court is right in reversing the well
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considered judgment and decree of the trial court on the
premises that burden to prove that the plaintiff has embraced
Sanyasa is on the defendant, in spite of Exts. B4 to B8 which,
along with the other facts and circumstances brought out in
evidence militates against such a view taken by the First
Appellate court ?
3. Whether the First Appellate court is justified in reversing
judgment and decree of the trial court, when it is an
undisputed case of effecting partition by excluding the plaintiff,
acting on his own representation, as evident from Ext.B3 to B6
and Ext.A3 ?
4. Whether the First Appellate court is justified in ignoring the
principles of estoppels as embodied in section 115 of Evidence
Act, when pleadings and evidence on record would disclose in
abundance that, on the basis of declaration, acts or omission
intentionally caused by the plaintiff, he permitted the
defendants to believe his embracing of Sanyasa to be true and
act up on such belief and caused the execution of Exhibit A3
partition deed ?
5. Has not the lower appellate court erred in reversing the
findings of the trial court when the pleadings and evidence on
record disclose that the plaintiff had renounced the world and
joined the religious order and had become an ascetic of a mutt
and therefore is disentitled to demand a share of the joint
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property ?
6. In the present case in spite of clear and specific admission
made by the plaintiff as to fact of becoming a Sanyasi which
stood corroborated by the oral evidence of Dw2, whether the
lower appellate court is wrong in allowing the suit holding that
the defendants failed to prove that the plaintiff renounced the
world and embraced Sanyasa ?"
8. Heard Sri.R.Lakshmi Narayan, the learned Senior Counsel
appearing for the appellants in RSA No.698 of 2015/2nd defendant and
the legal heir of 1st defendant, and Sri.C.Muralikrishnan (Payyannur), the
learned counsel appearing for the 1st respondent/plaintiff - the appellant
in RSA No.624/2015- and Sri.S.Shyam and Smt.Pooja M. Nair, the
learned counsel appearing for respondent Nos.2 and 3 in both the
appeals.
9. Sri.R.Lakshmi Narayan, the learned Senior Counsel
appearing for the appellants in RSA No.698/2015 raised the following
submissions:
a) In view of the mandate of Section 58 of the Indian Evidence Act,
1872, admitted facts need not be proved. So the plaintiff's
admission as discernable need not be proved by the defendants
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and it is for the plaintiff to adduce sufficient evidence, if he
wants to withdraw such admissions, on cogent materials,
indicating that the admission was done on account of a mistake
or misunderstanding. No such evidence has been adduced to
prove that the admission of the plaintiff has been withdrawn in
the factual circumstances of the case.
b) The first appellate court erred in finding that the burden to
prove that the plaintiff has embraced Sanyasa is on the
defendants, in spite of Exts.B3 to B10, which along with other
facts and circumstances brought out in evidence.
c) The first appellate court was not justified in ignoring the
principle of estoppel, as embodied in Section 115 of the Indian
Evidence Act, 1872 when pleadings and evidence on record
would disclose in abundance that, on the basis of the
declarations, acts and omissions intentionally done by the
plaintiff, he permitted the defendants to believe that he had
embraced sanyasa to be true, and induced them to act upon
such belief, to their detriment by executing Ext.A3 partition
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deed and developing the plaint schedule property by making
constructions and even selling portions thereof to strangers.
d) The first appellate court erred in finding that even if the plaintiff
declares that he has embraced sanyasa disentitling him to
claim any share in the joint property because of his
renunciation of the worldly affairs and severance of connection
with the natural family, there was no pleadings to that effect in
the written statement, when the written statement in its
original form and in the amended form, specifically plead
ingredients of Section 115 of the Indian Evidence Act, 1872.
e) The first appellate court misread the evidence of the case and
the exhibits, which definitely show that it is not disputed that
PW1 did not enter into sanyasa and it is also true that one who
enters sanyasa cannot terminate the sanyasa at his whims and
fancies and re-enter into the pre sanyasa period.
f) The first appellate court ought to have found that setting apart
a share for the plaintiff in Ext.A3 partition deed will not come
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in the way of the defendants, to claim that the plaintiff has
renounced the world by embracing the sanyasa and the setting
apart of a large share is done as per the legal advice obtained
and not because the defendants were not carried away and
acted upon the declaration of the plaintiff that he has embraced
sanyasa. This can be at the best, treated as an allotment/gift in
favour of the plaintiff who is a sanyasi, to be inherited by his
religious order on his demise. So even if the declaration by the
plaintiff that he accepted sanyasa is an erroneous one to
mislead the defendants or rest of the world or with any other
ulterior motives, with such declaration the plaintiff is estopped
from contending otherwise in view of Section 115 of the Indian
Evidence Act, 1872 coupled with Section 58 of the Indian
Evidence Act, 1872, especially when Ext.A3 partition deed is
executed by the defendants acting upon such declarations made
by the plaintiff.
g) Following precedents are cited on behalf of the appellants:
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i) S.Shanmugam Pillai And Others v. K.Shanmugam
Pillai And Others [(1973) 2 SCC 312],
ii) Kale and Others v. Deputy Director of
Consolidation And Others [(1976) 3 SCC 119],
iii) Sital Das v. Sant Ram and others [AIR 1954 SC
606],
iv) Anil Rishi v. Gurbaksh Singh [(2006) 5 SCC 558],
v) B.L.Sreedhar and others v. K.M.Munireddy (dead)
and others [(2003) 2 SCC 355] and
vi) Shri Krishna Singh v. Mathura Ahir and Ors.
[(1981) 3 SCC 689]
10. Per contra, Sri. C. Muralikrishnan (Payyannur), the learned
counsel appearing for the 1st respondent in RSA No.698 of 2015/ plaintiff
- the appellant in RSA No.624/2015- countered the submissions of the
learned Senior Counsel for the appellants in RSA No.698/2015, as
follows:
a) When the defendants set up a claim that the plaintiff has
become a Sanyasi, there cannot be any presumption
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regarding civil death, unless the entire ceremonies, including
the completion of Viraja Homa, are proved beyond doubt.
The various changes of becoming a Sanyasi are clearly spelt
out in the Hindu custom, and, therefore, it is the burden of
the defendants, who allege that the plaintiff has become a
Sanyasi, to prove the same.
b) The evidence adduced in the present case falls short of the
requirement of law as expounded by the Hon'ble Supreme
Court in Shri Krishna Singh v. Mathura Ahir and Ors
[(1981) 3 SCC 689].
c) The plea of the defendants that the plaintiff is estopped from
claiming his right over the plaint schedule property does not
hold good because, by mere words or conduct, a presumption
regarding the estoppel cannot be found out.
d) In order to constitute a valid relinquishment of the rights of
the plaintiff over the property, it must be proved that the
plaintiff had executed a relinquishment deed, without which,
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an inference cannot be drawn from the attendant facts and
circumstances.
e) The concept of civil death, on a person becoming Sanyasi,
though recognised under the ancient Hindu custom, no
longer applies in a case where the property rights are
governed by the law of succession under the provisions of the
Hindu Succession Act, 1956. Referring to Section 4 of the
Hindu Succession Act, 1956 the learned counsel appearing
for the plaintiff asserted that on coming into force of the
Hindu Succession Act, 1956, any law governed by custom will
have to necessarily give way to the provisions of the Act. He
would further point out that the decisions rendered by the
Supreme Court in Sital Das v. Sant Ram and others
[AIR 1954 SC 606] and Shri Krishna Singh v.
Mathura Ahir and Ors. [(1981) 3 SCC 689] no longer
hold the field because of the coming into force of the
provisions of the Hindu Succession Act, 1956.
f) The right to hold a property being a constitutional right
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guaranteed under Article 300A of the Constitution of India,
the said right cannot be taken away merely because the
plaintiff decided to adopt the life of a Sanyasi or choose to
accept a religion of his choice. The freedom to profess any
religion being the constitutional right guaranteed under
Article 25 would under no way affect the right of the plaintiff
to hold the property under Article 300A of the Constitution
of India.
g) On allotment of share, it is pointed out that the mother and
the sisters of the plaintiff had already relinquished their
rights, and therefore, including their rights, the property
opened up for partition.
h) The learned counsel concluded by saying that the trial court
had completely misunderstood the scope and the purport of
Section 115 of the Indian Evidence Act, 1872 and that it is
settled that if the truth of the matter is known to both of the
parties, there cannot be any estoppel by word or conduct.
Referring to the various exhibits and the communications
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addressed to the defendants by the plaintiff, the learned
counsel would contend that at no point of time, the
defendants had accepted the fact that the plaintiff had
completed the ceremonies and become a Sanyasi. Therefore,
there is no point in putting forward a case that the plaintiff is
estopped from claiming the right over the plaint schedule
property. In support of his contentions, relied on the
following decisions:
(i) Asa Beevi and others v. SKM Karuppan Chetty [1917 (41)
Indian Cases 361 : 1917 SCC OnLine Mad 356] - Madras
High Court,
(ii) Rai Sunil Kumar Mitra and others v. Thakur Singh and
others [AIR 1984 Patna 80],
(iii) Godaru Guptan Nambooripad v. Ittian Kochupilla
[AIR 1953 TRA-CO. 447 (Vol.40, C.No.177],
(iv) Shaikh Abdul Rahim v. Mst.Barira and others [AIR
1921 Patna 166 (2)],
(v) Sheo Tahal Ram v. Binaek Shukul [AIR 1931 Allahabad
689]
(vi) Chandi Charan Nath v. Srimati Somla Bibi [1918 (XLIV)
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Indian Cases 254],
(vii) K.Kochunni alias Muppil Nayar v. K.Kuttanunni @
Elaya Nayar and others [AIR (35) 1948 Privy Council
47],
(viii) R.S.Maddanappa (Deceased) After him by his legal
Representatives v. Chandramma & Anr [AIR 1965 SC
1812 : 1965 SCC OnLine SC 16],
(ix) Allahabad Dist. Co-op. Ltd. v. Hanuman Dutt Tewari
[AIR 1982 SC 120 : (1981) 4 SCC 431]],
(x) MSGR Xavier Chullickal and others v. CG Raphael and
Ors. [2017 (3) KHC 193] (DB) and
(xi) Sundari and others v. Laxmi and others [(1980) 1 SCC
19].
11. I have considered the rival submissions raised across the bar
and perused the judgments rendered by the courts below and also the
records of the case.
Whether the concept of civil death no longer holds the field on
coming into force of the Hindu Succession Act, 1956.
12. It is indisputable that when a person adopts "sanyasa" he
relinquishes the worldly affairs and enters a particular religious order.
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Mayne's Hindu Law, eleventh edition, page 675, paragraph
561, sets out the special rules of succession to the property of an ascetic.
It is pointed out therein that according to Yajnavalkya, the heirs who
take the wealth of an ascetic are in their order, the preceptor, the virtuous
pupil and one who is a supposed brother and belonging to the same order
and that, according to Mitakshara, a spiritual brother belonging to the
same hermitage takes the goods of a hermit and a virtuous pupil takes
the property of an ascetic and that on the failure of the above, anyone
belonging to the same order or hermitage takes the property, even
though sons and other natural heirs of the ascetic exist. At page 721, the
author has set out the legal effect of one entering into a religious order
that:
"606. One who enters into a religious order severs
his connection with the members of his natural
family. He is accordingly excluded from
inheritance. Neither he nor his natural relatives
can succeed to each other's properties. The
persons who are excluded on this ground come
under three heads, viz., the Vanaprastha, or
hermit; the Sanyasi or Yati or ascetic; and the
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Brahmachari, or perpetual religious student. In
order to bring a person under these heads, it is
necessary to show an absolute abandonment by
him of all secular property, and a complete and
final withdrawal from earthly affairs. The mere
fact that a person calls himself a Byragi, or
religious mendicant, or indeed that he is such,
does not of itself disentitle him to succeed to
property. Nor does any Sudra come under this
disqualification, unless by usage. This civil death
does not prevent the person who enters into an
order from acquiring and holding private
property which will devolve, not of course upon
his natural relations, but according to special
rules of inheritance. But it would be otherwise if
there is no civil death in the eye of the law, but only
the holding by a man of certain religious opinions
or professions." *
In Mulla's Hindu Law, 15th edition, page 183, the position of a person
who enters into a religious order with reference to his natural family is
set out thus:
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"Where a person enters into a religious order
renouncing all worldly affairs, his action is
tantamount to civil death, and it excludes him
altogether from inheritance and from a share on
partition.
All property which belongs to such a person at the
time of renunciation passes immediately on his
renunciation to his heirs, but property acquired
by him subsequent to the renunciation passes to
his spiritual heirs. A person does not become a
sanyasi by merely declaring himself sanyasi or by
wearing clothes ordinarily worn by a sanyasi. He
must perform the ceremonies necessary for
entering the class of sanyasis : without such
ceremonies, he cannot become dead to the world."
12.1 In Giyana Sambandha Pandara Sannadhi v.
Kandasami Tambiran [(1887) ILR 10 Mad. 375], a Division
Bench of the then Madras High Court referred to the notion of a spiritual
family as embodied in the Mitakshara law and to the special rule of
succession applicable to the individual property of an ascetic. While
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tracing the history of the mutts in Tamil Nadu, the learned Judges have
observed as follows (p. 385).
" If an ascetic or a hermit is a Brahmin, he is called
a Yati or Sanniyasi; if a Sudra, he is called a
Paradesi, and if the Sudra is attached to an
Adhinam, he is called a Tambiran, and if he is at
the head of the Adhinam, he is called the Pandara
Sannadhi. In its original sense, the term Mutt
signified the residence of an ascetic or sanniyasi
or a paradesi. Though normally in ancient days a
sanyasi or paradesi had no fixed residence and
moved from village to village, accepting such
lodgings and food as were provided for him by
pious laymen who were in their turn enjoined by
the Shastras to honor and support him, things
changed when Sankarachariyar, the founder of
the Advaita or non-dualistic school of philosophy
established some Mutts in order to maintain and
strengthen the doctrine and the system of
religious philosophy he taught and sanyasis were
placed at the head of those institutions. After
Sankarachariyar, the founders of Vaishnava,
Madhva and other schools of religious philosophy
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in this Presidency established mutts for a similar
purpose. Thus a class of endowed mutts came into
existence in the nature of monastic institutions,
presided over by ascetics or sanniyasis who had
renounced the world. Thus the ascetic who
originally owned little or no property came to own
the matam under his charge and its endowment,
in trust for the maintenance of the mutt and for the
purpose of religious and other charities in
connection therewith."
13. In Avasarala Kondal Row & Anr v. Iswara Sanyasi
Swamulavaru alias Avasarala Kamarozu & Ors [1911 (33)
MLJ 63], a Division Bench of the Madras High Court set out the
essentials of sanyasa and its incidents according to the Hindu law. The
court observed that a sanyasi after learning the duties of a sanyasi
should first perform his death ceremonies- this, however, is by some not
considered necessary - and the eight sradhas, the last of which is his own
sradha. He has to then perform Prajapathyesthi or Agneshti and the,
Viraja Homam which are sacrifices in fire and are purificatory
ceremonies and finally relinquish all property and abandon all worldly
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concerns, down to even a desire for them and that relinquishment need
not be in favour of any particular person but it may be a simple
abandonment of his property and that the mere adoption of the external
symbols of sanyasam as wearing of coloured cloth or the shaving of the
head, is not enough.
14. In Samasundaram Chettiar v. Vaithilinga Mudaliar
[1917 (40) ILR(Mad) 846], another Division Bench of the Madras
High Court has laid down that, according to the Hindu law texts, the rules
as to dis-inheritance applicable to a sanyasi do not apply to Sudra
ascetics or Tambirans unless a usage to this effect is established and in
support of the said view, the Bench has referred to two earlier decisions
in Dharmapuram Pandara Sannadhi v. Virapandiyam Pillai
[1899 (22) ILR (Mad) 302] and Harish Chandra Roy v. Atir
Mahmud [1913 (40) ILR(Cal) 545], wherein it has been held that a
Sudra cannot enter the order of sanyasis and as such a Sudra ascetic was
not excluded from inheritance to his family estate unless some usage is
proved to the contrary.
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15. The above being the position of law as per the Mitakshara
Law, the further question is, Has the concept of civil death on becoming
a Sanyasi or ascetic ceased to have effect on coming into force of the
Hindu Succession Act, 1956. In order to test the above argument, one
needs to look into the Preamble of the Hindu Succession Act, 1956 to find
out the purpose of the enactment. The preamble reads as follows: " The
Act to codify the law relating to intestate succession among Hindus."
Section 4 gives an overriding effect to the provisions of the Act. The
thrust of the argument of the learned Counsel for the 1st
respondent/plaintiff is that by virtue of the operation of the provision,
the concept of civil death has lost its relevance.
16. The above contention needs to be deliberated seriously
because, it has a far-reaching consequences since even in modern times,
the practice of adopting the sanyasa life continues to hold good.
17. Section 4 of the Hindu Succession Act, 1956 reads as under:
"4. Over-riding effect of Act.―(1) Save as otherwise
expressly provided in this Act,―
(a) any text, rule or interpretation of Hindu law or any
custom or usage as part of that law in force
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immediately before the commencement of this Act
shall cease to have effect with respect to any matter for
which provision is made in this Act;
(b) any other law in force immediately before the
commencement of this Act shall cease to apply to
Hindus in so far as it is inconsistent with any of the
provisions contained in this Act."
18 . A cursory glance at the aforesaid provision would make it
clear that any text or rule or interpretation of Hindu law or any custom
or usage of that law in force immediately before the commencement of
the Act shall cease to have effect as soon as coming into force of the
Hindu Succession Act, 1956. Therefore, it is contended that irrespective
of a person becoming a Sanyasi on or after the commencement of the
Hindu Succession Act, 1956, he/she does not cease to have any right over
the property because of the overriding provision under Section 4 of the
Act. At the first blush, it may appear that the contention raised on behalf
of the 1st respondent-plaintiff deserves serious consideration.
19. In Sundari and others v. Laxmi and others [(1980) 1
SCC 19], the scope of Section 4 of the Hindu Succession Act, 1956 was
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considered by the Supreme Court. Paragraph 9 of the said decision reads
as under:
"9. Before dealing with the contentions it is
necessary to briefly refer to the salient features of
Aliyasanthana law. In the well-known treatise on Malabar
and Aliyasanthana law by P.R. Sundara Aiyar, a
distinguished Judge of the Madras High Court, and edited
by B. Sitarama Rao, an eminent lawyer of the Madras High
Court who hailed from South Kanara, the Aliyasanthana law
is stated to imply a rule of inheritance under which property
descends in the line of nephews. The term "Aliyasanthana
law" is the exact Canarese equivalent of the Malayalam term
Marumakkathayam. Aliyasanthana law differs but slightly
from the Marumakkathayam system. In its main features viz.
impartibility, descent in the line of females and non-
recognition of marriage as a legal institution it completely
agrees with the Marumakkathayam law. In Aliyasanthana
law the males are equal proprietors with females and joint
management is recognised, while the Marumakkathayam
law does not recognise a right to joint management. The
succession to the separate property of an individual member
in Aliyasanthana law is to the nearest heirs and not to the
Tarwad as in the Marumakkathayam law. The succession of
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the heirs of the separate property is recognised by the
Madras Aliyasanthana Act, 1949, Sections 18 to 24. On the
facts of the present case it is not disputed that Defendants
22, 23 and 24 have enjoyed the interest as nissanthathi
kavaru and on partition are entitled only to life-interest in
the properties allotted to them under Section 36(3) of the
Madras Aliyasanthana Act. The question that arises for
consideration is how far the Aliyasanthana Act regarding
partition and succession has been affected by the Hindu
Succession Act. The Hindu Succession Act came into force
on June 17, 1956. The preamble states that the Act amends
and modifies the law relating to intestate succession among
Hindus. Though the preamble refers only to "Intestate
succession" as the title "Hindu Act" indicates it relates to the
law of succession among Hindus and not merely to intestate
succession as mentioned in the preamble. The law has
brought about radical changes in the law of succession. The
law is applicable to all Hindus as provided in Section 2 of the
Act. It is made clear that the law is applicable not only to
persons governed by Dayabhaga and Mitakshara law but
also to persons governed by Aliyasanthana,
Marumakkattayam and Nambudri systems of Hindu law.
Section 4 of the Act gives overriding application to the
provisions of the Act and lays down that in respect of any of
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the matters dealt with in the Act all existing laws whether in
the shape of enactment or otherwise which are inconsistent
with the Act are repealed. Any other law in force
immediately before the commencement of this Act ceases to
apply to Hindus insofar as it is inconsistent with any of the
provisions contained in the Act. It is therefore clear that the
provisions of Aliyasanthana law whether customary or
statutory will cease to apply, insofar as they are inconsistent
with the provisions of the Hindu Succession Act."
20. It is beyond doubt that the Hindu Succession Act, 1956 is
intended to codify the law relating to succession among Hindus. Can it
be said that Section 4 also governs the law relating to custom followed
among the Hindus? It is difficult for this Court to envisage a situation
and hold that Section 4 is primarily intended to give an overriding effect
on the law relating to succession, over other religious custom followed in
Hindu Religion.
21. In His Holiness Sri La-Sri Shanmugha Desika
Gnanasambanda Paramacharya Swamigal, Dharmapuram Vs
Controller of Estate Duty [1985 153 ITR 390] a Division Bench of
the Madras High Court considered the scope of Section 4 of the Hindu
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Adoptions and Maintenance Act, 1956 in order to decide whether a
Hindu after becoming a sanyasi is bound to maintain his mother, going
by the provisions of Section 4 of the Act. It was held as follows:
.......... "But the question is whether that well-established
principle will apply to a Hindu who has become an ascetic
by undergoing a civil death. Once the law assumes a civil
death on one becoming a sanyasi, he ceases to have any
right or obligation with reference to the members of the
natural family. The learned counsel for the accountable
person, then contends that once a person becomes a
sanyasi, he relinquishes his rights of inheritance but he
cannot unilaterally relieve himself of any obligations
which he is bound to perform either under his personal law
or under a contract. The learned counsel refers to s. 4 of
the Hindu Adoptions and Maintenance Act and contends
that it has got an overriding effect and, therefore, the son's
obligation to maintain the mother continues even after the
deceased became a sanyasi. It is not possible for us to
accept the said contention. The rule of Hindu law that
when a Hindu enters into a religious order, his connection
with the members of his natural family stands severed,
cannot be said to have been abrogated by the provisions of
the Hindu Adoptions and Maintenance Act, 1956. This is
because that rule is not one which is inconsistent with any
of the provisions of the Hindu Adoptions and Maintenance
Act, nor is there any provision in the said Act touching on
the above question. Therefore, the overall effect of s. 4 of
the Hindu Adoptions and Maintenance Act does not come
into play. Further, the provisions of the said Act cannot be
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applied to persons who are civilly dead. It is no doubt true,
becoming a sanyasi is renunciation of one's worldly life
and possessions, and neither the ancient texts nor the
judicial precedents refer to the concept of obligations.
However, having regard to the fact that on becoming a
sanyasi, the person suffers a civil death, it has to be taken
that after attaining sanyasa, he must be taken to have a
re-birth and as such all his earlier rights and obligations
should be taken to have come to an end. In this view of the
matter, we are inclined to agree with the view taken by the
Tribunal that the settlement deed was not supported by
consideration in money or moneys worth and, therefore,
it should be taken as a gift.
22. In Shri Krishna Singh v. Mathura Ahir and Ors. [(1981)
3 SCC 689], the Supreme Court categorically held that one who enters
into a religious order severs his connection with the members of his
natural family and he is accordingly excluded from inheritance. It was
also held that entering a religious order is tantamount to civil death so as
to cause a complete severance of his connection with his relations, as well
as with his property (See paras 29, 30, 33, 47, 67, 68, 69 and 70). This
decision also says that if ceremonies for the acceptance of sanyasa is
conducted and it is on record in the evidence, it will give rise to an
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irresistible conclusion that other ceremonies connected thereto would
have been completed.
23. Thus, it is beyond doubt that once a person adopts the ascetic
life, a civil death is inevitable. So long as the Hindu Succession Act, 1956
does not prohibit the customary law governing the Hindus, it cannot be
said that the Act intended to govern the field is not covered under it. Still
further, Section 4 of the Hindu Adoptions and Maintenance Act, 1956 is
in pari materia with the provisions of Section 4 of the Hindu Succession
Act, 1956. Therefore, once it is concluded that the Hindu Succession Act,
1956 is intended to largely govern the law of succession, it is imperative
for this Court to hold that Section 4 of the Hindu Succession Act, 1956
does not override the customary law governing the Hindu Religion unless
it conflicts with the Act. It must also be remembered that the
Hindu Succession Act, 1956 does not prohibit a person from becoming
a Sanyasi, which is by and large a personal decision of an individual.
At any rate, so long as the right to choose a particular religion or a caste
or a custom forms the basic secular feature of our Constitution, it is
beyond the scope of the legislative powers to prohibit a person from
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adopting a particular nature of religion or a custom. When we read the
basic principles governing the operation of Article 25 of the Constitution,
one cannot but notice the fact that irrespective of the nature of the
religion, the right to choose a particular religion is always protected in
our Constitution. Therefore, it would be far-fetched for the courts to hold
that as soon as the Hindu Succession Act, 1956 is enacted, the customary
law governing the ancient Hindu tradition is given a go-bye by the
Parliament. Hence, the argument based on the overriding effect of the
Hindu Succession Act, 1956 is only to be rejected. Pertinently, the Hindu
Succession Act, 1956 does not deal with any customary usage under the
Hindu law, but only deals with the manner of inheritance in respect of
the property of a Hindu male or a female. The custom, which is followed
if one chooses to become a Sanyasi, is not touched or governed by the
provisions of the Hindu Succession Act, 1956 and therefore, the
consequences following out of a person adopting an ascetic life, remain
untouched by the overriding provisions under Section 4 of the Hindu
Succession Act, 1956.
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24. Before this Court concludes on this issue, this Court should
also take note of the decision of the Division Bench of this Court in
MSGR Xavier Chullickal and others v. C.G. Raphael and Ors.
[2017 (3) KHC 193] (DB) relied on by the learned Counsel for the 1st
respondent/plaintiff. It is pointed out that the Division Bench of this
Court had held that the decision of the Supreme Court in Sital Das v.
Sant Ram and others [AIR 1954 SC 606] no longer applies after
coming into force of the Hindu Succession Act, 1956. It is pertinent to
mention that the Division Bench was not called upon to decide the
applicability of the Hindu Succession Act, 1956 qua a person becoming a
Sanyasi and the consequences of a civil death. Therefore, this Court is
inclined to think that the observations made by the Division Bench can
only be construed as obiter dicta and have no precedential value. At any
rate, the scope and effect of Section 4 of the Hindu Succession Act, 1956
having not been dealt with in detail, the decision of the Division Bench
can only be construed as per incurium, because that was not an issue
which the Division Bench was called upon to decide.
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25. Further conclusion reached by this Court that the decision in
MSGR Xavier Chullickal and others (supra) must be construed as
per incurium is fortified by the fact that the decision does not take note
of the decision of the Supreme Court in Shri Krishna Singh v.
Mathura Ahir and Ors. [(1981) 3 SCC 689 : AIR 1980 SC 707].
Therefore, the contention raised by referring to the provisions of the
Hindu Succession Act, 1956 must necessarily fail.
Whether, on adopting an ascetic life, a right to hold property
exists under Article 300A of the Constitution of India?
26. This issue, though not raised before the courts below, is
raised before this Court in the context of the right to hold property.
Article 300A of the Constitution of India provides that no person shall be
deprived of his right to hold property except in accordance with the law.
The legal impact of a person becoming a Sanyasi relates to the devolution
of his ancestral property after his civil death, and if the process is
completed, a complete and orthodox renunciation of all worldly ties as
per the customary law take place. It will be difficult to envisage a
situation, where on becoming an ascetic or a Sanyasi, his constitutional
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rights guaranteed under our Constitution will stand to lose. But then,
the right to hold the property under Article 300A of the Constitution of
India must be judged in the context of the nature of the right sought to
be asserted by a person, who is stated to have chosen an ascetic life by
becoming a Sanyasi. Right to profess a religion or a particular custom is
guaranteed under Article 25 of the Constitution of India.
27. What is sought to be projected is, even if a person chooses an
ascetic life, his right guaranteed under our Constitution is not lost.
Though there may be force in the above argument, the question remains
to be considered is whether such right is available against a private
individual and that too on an ancestral property. A reading of Article
300A shows that, no person shall be deprived of his property save by
authority of law. The Supreme Court in Jilubhai Nanbhai Khachar
and others Vs State of Gujarat and another [1995 Supp (1) SCC
596] held that the word " property" under Article 300A must be
understood in the context of sovereign power of eminent domain
exercised by the State and the property expropriated. Para 48 of the
decision is extracted as under:
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"48. The word 'property' used in Article 300-A
must be understood in the context in which the
sovereign power of eminent domain is exercised by
the State and property expropriated. No abstract
principles could be laid. Each case must be
considered in the light of its own facts and setting.
The phrase "deprivation of the property of a
person" must equally be considered in the fact
situation of a case. Deprivation connotes different
concepts. Article 300-A gets attracted to an
acquisition or taking possession of private
property, by necessary implication for public
purpose, in accordance with the law made by
Parliament or a State Legislature, a rule or a
statutory order having force of law. It is inherent
in every sovereign State by exercising its power of
eminent domain to expropriate private property
without owner's consent. Prima facie, State would
be the judge to decide whether a purpose is a public
purpose. But it is not the sole judge. This will be
subject to judicial review and it is the duty of the
court to determine whether a particular purpose is
a public purpose or not. Public interest has always
been considered to be an essential ingredient of
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public purpose. But every public purpose does not
fall under Article 300-A nor every exercise of
eminent domain an acquisition or taking
possession under Article 300-A. Generally
speaking preservation of public health or
prevention of damage to life and property are
considered to be public purposes. Yet deprivation
of property for any such purpose would not
amount to acquisition or possession taken under
Article 300-A. It would be by exercise of the police
power of the State. In other words, Article 300-A
only limits the powers of the State that no person
shall be deprived of his property save by authority
of law. There has to be no deprivation without any
sanction of law. Deprivation by any other mode is
not acquisition or taking possession under Article
300-A. In other words, if there is no law, there is no
deprivation. Acquisition of mines, minerals and
quarries is deprivation under Article 300-A."
28. The issue could be approached from another angle. In the
present case, admittedly, the right acquired by the plaintiff is the right
over the ancestral property, and a partition deed was executed in the year
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1954. The property remained as such without a further partition between
the Saka of the plaintiff to which the property was allotted. Inasmuch as
the devolution of the rights over the property is neither governed by
Article 300A nor under the provisions of the Hindu Succession Act, 1956
and since the deprivation has not happened at the hands of the State,
any other mode of deprivation of the individual rights can be remedied
only through civil proceedings, in which case, Article 300A of the
Constitution cannot have any application.
29. One school of thought which would prompt this Court to hold
that to apply Article 300A, the deprivation must happen at the hands of
the State when it chooses to exercise its powers under the doctrine of
eminent domain. At any rate, even if this Court were to conclude that the
right to hold property being a constitutional right, would still be available
to a person choosing to lead an ascetic life, it is beyond cavil that the said
right could be waived by him by express or implied conduct. Therefore,
notwithstanding the applicability of Article 300 A, the plaintiff could
only succeed if this Court were to hold that in the light of the evidence
adduced by the parties, an express intention to relinquish the proprietary
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rights held by him under the deed of partition of the year 1954 has been
made out.
30. This assumes significance because by unimpeachable
evidence, it has come out that the plaintiff himself has expressly
disowned his right over the property and that prompted the defendants
to deal with the property as their own. But then, the plaintiff appears to
have resiled from his act and raised a contention that despite his express
conduct in deciding to relinquish the right over the property, such
relinquishment is of no consequence because of the absence of any
registered document. This aspect will be dealt with by this Court later in
this judgment. Therefore, to conclude, though the rights of a person
adopting an ascetic life could still be governed by Article 300A of the
Constitution of India in so far it related to a property acquired by him
after becoming an ascetic and not to the ancestral property, if the
deprivation of his property, whether ancestral or obtained after
becoming a sanyasi, is done by a private individual, the Article can have
no application at all. To hold otherwise would certainly erode the
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customary law, which prevails between the parties, which is not intended
to be infringed in any manner by the provisions of our Constitution.
Estoppel by conduct
31. Both parties are at serious variance as regards the manner in
which the said issue is required to be addressed. The plaintiff had, on
one hand, contended that despite issuing letters specifically indicating
that he does not want any right over the property, he still holds right over
the ancestral property because the defendants failed to prove that he had
become a Sanyasi.
32. The defendants, on the other hand, contended that there are
enough materials before this Court to conclude that the plaintiff had
given up his right over the property, which led to the defendants
partitioning the property among themselves and subsequently, selling
the same to the 3rd defendant, and after eight years of execution of a
registered deed, the suit for partition is instituted.
33. While dealing with this issue, this Court will have to
incidentally address the question as on whom the burden lies to prove
that a person had adopted an ascetic life or become a Sanyasi.
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34. Certainly, the plaintiff was inclined to give up the worldly life
and to adopt the path of spirituality. The evidence adduced by the
defendants unequivocally shows that the plaintiff had gone to an
Ashramam in North India and had started living there and had
completed the procedures to become a Sanyasi. But then, the issue is
whether it has been satisfactorily proved beyond doubt that the
ceremonies required to complete the formalities of one becoming a
Sanyasi have been done in the present case or not. The evidence in the
form of DW2 would clearly dispel any doubt in the mind of the court as
regards the plea of the plaintiff that there were no ceremonies conducted
for transforming the life of the plaintiff to a Sanyasi. The photographs
produced before the courts below also indicate the same. Ext.B9, the
gazette notification issued at the instance of the plaintiff, also shows the
change of name of the plaintiff. These unimpeachable evidence
remained unexplained at the instance of the plaintiff. The only
contention raised on behalf of the plaintiff is placing reliance on the
decision of the Supreme Court in Shri Krishna Singh (supra) to fortify
his plea that a person to complete his transformation as a Sanyasi, one
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requires to perform the atma shraddha. Added to the above, it is also
pleaded that there is no evidence to show that the plaintiff had performed
the viraja homam ceremony.
35. No doubt, the Supreme Court, while dealing with the
customary rituals to be followed for one to complete the transformation
to a Sanyasi, had expressly stated that the two elements required to be
performed for the completion of the ceremonies are atma shraddha and
viraja homam. But then, one must remember that the plaintiff did not
have a case that he did not adopt the life of a Sanyasi or did never show
any inclination towards becoming a Sanyasi. The materials produced
before the Court would show that from leaving his tharavad house and
reaching an ashramam at North India, the plaintiff was in constant
touch with the family and had given enough indications to them that he
was renouncing worldly life. The certificate issued by the ashramam also
shows that he was inducted as a Sanyasi.
36. On contrary, the assertion of the plaintiff that, he had left the
ashramam because he could not ultimately reach the stage of atma
shraddha and perform the Biraja homam, thereby he renounced his life
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as a Sanyasi, and came back to the worldly life and had even married and
is living a family life, remained not proved with cogent evidence. Under
what circumstances the plaintiff renounced the life of a Sanyasi and
came back and became a "gruhastha" remained largely under a cloud.
Therefore, when the plaintiff asserts before the Court that he had
renounced his life as a Sanyasi and that the defendants had enough
materials produced before the court to indicate that the plaintiff had
chosen an ascetic life, necessarily this Court is inclined to think that it is
the burden of the plaintiff to prove that the last two ceremonies were not
conducted for the purpose of completing the process of becoming a
Sanyasi.
37. Even if it is assumed that in the present case, the materials
on record do not suggest the completion of ceremonies, it is beyond
doubt that by his own conduct, the plaintiff is estopped from claiming
right over the plaint schedule property based on the deed of partition in
the year 1954. This is more so when the conduct of the parties would
strongly indicate that, based on his request contained in various letters
written by him, the family had entered into an arrangement. If that is
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the case, the execution of the family arrangement would lead to an
inference from the conduct spread over several years and thus
constituting an estoppel under Section 115 of the Indian Evidence Act,
1872.
38. In Kale And Others v. Deputy Director of
Consolidation and Others [(1976) 3 SCC 119], the Supreme Court
considered a more or less similar situation and in paragraph Nos.42, 43
and 44, it was held as thus:
"42. Finally in a recent decision of this Court
in S.Shanmugam Pillai v. K.Shanmugam Pillai [(1973) 2 SCC
312] after an exhaustive consideration of the authorities on the
subject it was observed as follows:
"Equitable principles such as estoppel, election,
family settlement, etc. are not mere technical rules of
evidence. They have an important purpose to serve in
the administration of justice. The ultimate aim of the
law is to secure justice. In the recent times in order to
render justice between the parties, courts have been
liberally relying on those principles. We would hesitate
to narrow down their scope.
* * *
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As observed by this Court in T. V. R. Subbu
Chetty's Family Charities v. M.Gaghava Mudaliar
(AIR 1961 SC 797), that if a person having full
knowledge of his right as a possible reversioner enters
into a transaction which settles his claim as well as the
claim of the opponents at the relevant time, he cannot
be permitted to go back on that agreement when
reversion actually falls open."
In these circumstances there can be no doubt that even if
the family settlement was not registered it would operate as a
complete estoppel against Respondents 4 and 5. Respondent
No.1 as also the High Court, therefore, committed substantial
error of law in not giving effect to the doctrine of estoppel as
spelt out by this Court in so many cases. The learned counsel
for the respondents placed reliance upon a number of
authorities in Rachbha v. Mt Mendha [AIR 1947 All 177 : 1946
ALJ 409] ; Chief Controlling Revenue Authority v. Smt
Satyawati Sood [AIR 1972 Del 171 : ILR (1972) 2 Del 17 (FB)]
and some other authorities, which, in our opinion have no
bearing on the issues to be decided in this case and it is
therefore not necessary for us to refer to the same.
43. Finally, it was contended by the respondents that this
Court should not interfere because there was no error of law in
the judgment of the High Court or that of Respondent No. 1.
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This argument is only stated to be rejected.
44. In view of our finding that the family settlement did
not contravene any provision of the law but was a legally valid
and binding settlement in accordance with the law, the view of
Respondent No.1 that it was against the provisions of the law
was clearly wrong on a point of law and could not be sustained.
Similarly, the view of the High Court that the compromise
required registration was also wrong in view of the clear fact
that the mutation petition filed before the Assistant
Commissioner did not embody the terms of the family
arrangement but was merely in the nature of a memorandum
meant for the information of the court. The High Court further
erred in law in not giving effect to the doctrine of estoppel
which is always applied whenever any party to the valid family
settlement tries to assail it. The High Court further erred in not
considering the fact that even if the family arrangement was
not registered it could be used for a collateral purpose, namely,
for the purpose of showing the nature and character of
possession of the parties in pursuance of the family settlement
and also for the purpose of applying the rule of estoppel which
flowed from the conduct of the parties who having taken
benefit under the settlement keep their mouths shut for full
seven years and later try to resile from the settlement.
In Shyam Sunder v. Siya Ram [AIR 1973 All 382, 389 : ILR
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(1972) 2 All 368 : 1973 ALJ 53] it was clearly held by the
Allahabad High Court that the compromise could have been
taken into consideration as a piece of evidence even if it was
not registered or for that matter as an evidence of an
antecedent title. The High Court observed as follows:
"The decision in Ram Gopal v. Tulshi Ram [AIR
1928 All 641, 649 : 26 ALJ 952] is clear that such a
recital can be relied upon as a piece of evidence.
***
It is clear, therefore, that the compromise can be
taken into consideration as a piece of evidence.... To
sum up, therefore, we are of the view that the
compromise could have been relied upon as an
admission of antecedent title."
39. A similar question was considered by the Supreme Court in
S.Shanmugam Pillai & Ors v. K.Shanmugam Pillai & Ors [(1973)
2 SCC 312]. Paragraph Nos.12 and 13 of the said decision read as under:
"12. Exs. B-2 and B-5 read together may also be
considered as constituting a family arrangement. The
plaintiffs and the widows of V.Rm. Shanmugam Pillai are
near relations. There were several disputes between the
parties. The parties must have thought it wise that instead
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of spending their money and energy in courts, to settle
their disputes amicably. The father of Plaintiffs 1 and 2
and later on the plaintiffs were only presumptive
reversioners, as also was the third plaintiff. None of them
had any vested right in the suit properties till the death of
the widows. Hence first the father of Plaintiffs 1 and 2 and
later on the plaintiffs must have thought that a bird in
hand is worth more than two in the bush. If in the interest
of the family properties or family peace the close relations
had settled their disputes amicably, this Court will be
reluctant to disturb the same. The courts generally lean in
favour of family arrangements.
13. Equitable principles such as estoppel,
election, family settlement, etc. are not mere technical
rules of evidence. They have an important purpose to
serve in the administration of justice. The ultimate aim of
the law is to secure justice. In the recent times in order to
render justice between the parties, courts have been
liberally relying on those principles. We would hesitate to
narrow down their scope."
40. In B.L.Sreedhar and others v. K.M.Munireddy
(dead) and others [(2003) 2 SCC 355], the Supreme Court held that
the principle of estoppel will apply if a person either by words or by
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conduct consents to an act which lawfully would not have been done
without such consent, and others are thereby induced to do that which
they otherwise would not have done, and such a person cannot challenge
the legality of the act to the prejudice of those who have acted upon it.
(Paragraphs 18, 20, 22, 24, 25, 27, 28, 29 and 30).
41. In Anil Rishi v. Gurbaksh Singh [(2006) 5 SCC 558],
the Supreme Court held that the burden of proof ordinarily rests with the
party who substantially asserts the affirmative of the issue, but the onus
of proof changes in a suit depending upon the evidence adduced. In this
case, the evidence, oral as well as documentary, would speak volumes to
substantiate the case pleaded by the defendants in the written
statement.
Conclusion
42. The discussion as above persuades this Court to hold that the
trial court was justified in dismissing the suit. It is beyond doubt that the
plaintiff showed certain degree of inclination to adopt the life of an
ascetic, but later for obvious reasons, felt to leave out. No explanation is
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forthcoming, supported by cogent evidence to prove as to how and in
what circumstances he had renounced his ascetic life. Therefore, it is a
clear case where estoppel by conduct has been spelt out. The argument
that in order to constitute a proper relinquishment of right over the
property, an express relinquishment in the form of a deed should also be
there, does not impress this Court because of the close relationship
between the family members. The conscious silence of the plaintiff for
eight years after execution of the partition deed of the year 1994 leads to
an irresistible conclusion that the case set up by the plaintiff cannot be
believed.
43. Resultantly, the substantial questions of law framed in RSA
No.698/2015 are answered in favour of the appellants as follows:
(1) In the light of Exts.B4 to B8 letters, when the plaintiff himself
has admitted unambiguously that he has adopted the life of a
Sanyasi, in view of the mandate under Section 58 of the Indian
Evidence Act, 1872 the first appellate court was not justified in
overturning the decision of the trial court.
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(2) The finding of the first appellate court in reversing the dismissal
of the suit, despite the overwhelming evidence to prove that the
plaintiff has adopted the life of a sanyasi, is nothing but
perverse.
(3) The conscious silence on the part of the plaintiff despite
execution of Ext.A3 sale deed in favour of defendants 2 and 3
would lead to an irresistible conclusion that an estoppel by
conduct has been clearly made out.
(4) The silence on the part of the plaintiff and also his own request
to the brothers to partition the family property among
themselves would give a clear indication that his acts constitute
the principle of estoppel as provided under Section 115 of the
Indian Evidence Act, 1872 and that the silence on his part for
eight years is a clear indication that he has accepted the family
settlement between the parties.
(5) In the light of Exts.B4 to B8 letters, Ext.B9 gazette notification
and also Ext.B11 certificate issued by the ashramam and also in
the light of unimpeachable evidence of DW2, the first appellate
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court erred in reversing the judgment of the trial court holding
that it is the burden of the defendants to prove that the plaintiff
had adopted the life of a sanyasi.
44. Resultantly, the judgment and decree of the first appellate
court (Sub Court, Chengannur) dated 15.01.2015 in A.S.No.270/2008
reversing the judgment and decree of the trial court (Munsiff's Court,
Chengannur) dated 19.12.2007 in O.S.No.386/2002 are liable to be set
aside and I do so. Accordingly, RSA No.698/2015 is allowed by reversing
the judgment and decree dated 15.1.2015 in A.S.No.270/2008 of the Sub
Court, Chengannur and restoring the judgment and decree dated
19.12.2007 in O.S.No.386/2002 of the Munsiff's Court, Chengannur.
45. Consequent to the findings in RSA No.698/2015 as above,
nothing remains to be considered in RSA No.624/2015. Accordingly, the
said appeal is dismissed.
The parties shall suffer their respective costs.
Sd/-
EASWARAN S.
JUDGE
jg
