HIDAYATULLAH - (1.) , J.This is an appeal on a certificate by the High Court of Kerala against its judgment and decree dated 10/09/1957. The suit out of which this appeal arises, was filed by the appellant Kunju Kesavan to redeem an otti created by one Bhagavathi Parameswaran in favour of one Krishnan Marthandan on 5-5-1091 M. E., for 3500 fanams. Subsequently, Krishnan Marthandan created some chittoti. Bhagavathi Parameswaran made a gift of the property to his wife Bhagavathi Valliyamma on 9-3-1103 M. E., by Exh. III. Bhagavathi Valli died on 4-11-1105 M. E. She had an only son Parameswaran Sivaraman who was married to Paravathi Meenakshi and had a son named Vasudevan. Sivaraman, according to the plaintiff, left Travancorre in 1096 M. E., and both sides have taken it for granted that he died thereafter. Meenakshi and Vasudevan, claiming to be the heirs, jointly sold the jenmom rights on 12-4-1123 M. E., to the appellant Kunju Kesavan, and he brought the present suit for redemption of the otti, offering to pay 3500 fanams in equivalent money and for improvements, if any, as determined by the Court. The suit was valued at 3500 fanams (about Rs. 500.00) which was the amount of the otti and the claim was for redemption of the otti and possession of the fields from the defendants who were in possession. The suit was resisted by the first defendant (respondent No. 1). Defendants 2 and 3 (respondents 2 and 3) filed a written statement, but do not appear to have taken much interest thereafter.
(2.) THE first respondent admitted some of these facts. He, however, averred that the document executed by Bhagavathi Parameswaran was not meant to be acted upon and Bhagavathi Valli and others never obtained any rights in the jenmom by Exh. III. He also contended that if Bhagavathi Valli got any rights, they were subject to a prior charge of the decree of the District Court, Trivandrum in O. S. No. 36 of 1100 M. E., and that in an auction-sale held on 3-4-1114 M. E., the jenmom rights were purchased by the decree-holders, who were the heirs of Krishnan Marthandan and from whom the first respondent obtained the sale-deed. He claimed to have thus obtained the jenmom rights as also the otti rights. THE first respondent admitted that Sivaraman had left India in 1096 M. E., but denied the allegation that letters were received from him till 1100 M. E., or that till 1108 M. E., some information was being received about him. He asserted that right from 1096 M. E., none heard from him or of him, and submitted that Sivaraman must have died in 1096 M. E., or was not alive on 9-3-1103 M. E., the date of the gift to Bhagavathi Valli. According to him, on Bhagavathi Valli's death, her sister B. Narayani and Narayani's daughter Gouri were heirs and Meenakshi and Vasudevan were not her heirs and thus they never got the jenmom rights. Alternatively, he contended that even if they did obtain any jenmom rights, they lost them by the auction-sale in O. S. No. 36 of 1100 M. E., to the auction-purchaser. THE first respondent, therefore, submitted that the transaction by sale in favour of the present appellant gave him no rights; on the other hand as the auction-purchasers were allowed to continue in possession as full owners with the consent express or implied or the acquiescence of Vasudevan and Meenakshi, full title resulted to him. The parties are Ezhavas, and in the absence of a special exemption under the Act, they would be governed by the Travancore Ezhava Act, 1100 (Act III of 1100) in the matter of succession and partition. One of the contentions tried in the case relates to this exemption, it being contended that Bhagavathi Valli had applied for exemption from part IV of the Act, and was thus governed not by its terms but by the general Marumakkathayam law. The two Courts below decreed the suit. The Temporary District Munsiff of Trivandrum held that the plaintiff was entitled to redeem the otti and valued the improvements at Rs. 1367-13-4. An appeal was filed by the present first respondent, and the other side cross-objected. The appeal and the cross-objection were dismissed. On further appeal by the first defendant, the High Court reversed the decision of the two Courts below, holding that the plaintiff had not obtained a valid title to the equity of redemption by the sale deed in his favour, and was not entitled to redeem the property. The plaintiff has now appealed to this Court on a certificate by the High Court. A preliminary objection has been raised about the competency of the certificate granted by the High Court. It is contended that the suit was valued at 3500 fanams, and this valuation governs the suit for the purpose of the certificate, and the amount or value being below the mark, the certificate was wrongly issued by the High Court and ought to be cancelled. Alternatively, it is contended that if the valuation was more than Rs. 10,000, the trial Court had no jurisdiction to try the suit. The present appeal is against the judgment of the High Court which reversed the decision of the Court below, and if the valuation was above the mark, the certificate was properly granted by the High Court since an appeal as of right would lie. An appeal must satisfy two tests of valuation. The amount or value of the subject- matter of the suit in the Court of first instance and the amount or value of the subject-matter in dispute on appeal to this Court must both be above the mark. There are, however, cases in which the decree or final order involves directly or indirectly some claim or question to or respecting property above the mark. Such cases are also appealable. Ordinarily, the valuation in the plaint determines the valuation for the purposes of appeal. A plaintiff, who sets a lower value on claim which he is required to value according to the real or market value, cannot be permitted to change it subsequently, because this would amount to approbation and reprobation. But in those cases in which the plaint is not required to be valued in this way, a question may arise as to the proper value of the claim both in the Court of first instance and on appeal to this Court. The word 'indirectly' in such cases covers the real value of the claim which is required to be determined quite apart from the valuation given in the plaint.
(3.) IN this case, the High Court found the value to be Rs. 42,000 and Rs. 80,000 at the two material times. It is obvious that the plaintiff was not required to value his plaint on the real or market value of the property but on the price for redemption. He was not, therefore, concluded by the valuation given in the plaint. He had asked for possession of the property after redemption, and that property, as the High Court has found, is well above the mark in value. The certificate was, therefore, properly granted. The attack on the jurisdiction of the Court of first instance must also fail. The suit as valued was properly laid in the Court of first instance, and in any case, such an objection cannot be entertained now. The preliminary objection is, therefore, rejected. The main question in this appeal is whether Meenakshi and Vasudevan had any title to the property and whether they could transmit any title to the appellant. This depends on whether the Ezhava Act applies or the ordinary Marumakkathayam law. The ordinary Marumakkathayam law has a system of inheritance in which the descent is traced in the female line. It is conceded that if the Marumakkathayam law is applicable, Meenakshi and Vasudevan, who were the daughter-in-law and son's son of Bhagavathi Valli, were not heirs to her. The Ezhava Act was passed to define and amend, among others, the law of succession and partition among the Ezhavas. In its application, it exculded Ezhavas domiciled in Travancore, who were following makkathayam. By S. 2 of the Ezhava Act, the Act could be extended to Ezhavas who followed Makkathayam. No question has been raised before us that it was not so extended and the arguments proceeded on the assumption that it was. Indeed, the answering respondent claimed that Bhagwathi Valli had opted out of Part IV under S. 32 of the Act, and this could only be if the Act was applicable to her. The appellant contended, as we shall show presently, that Bhagavathi Valli was governed by the Ezhava Act. 'Makkathayam' means gift by the father. In the Ezhava Act, makkathayam property is defined to mean property obtained from the husband or father by the wife or child or both of them, by gift, inheritance or bequest. The property in suit was gifted by Bhagavathi Parmeswaran to his wife Bhagavathi Valli, and obtained the character of Makkathayam property. The first question, therefore, raised by Dr. Seyid Muhammed, counsel for the appellant, is that though the gift was to Bhagavathi Valli eonomine, it operated, under the law applying to Makkathayam property, to confer equal benefits upon Bhagavathi Valli and her issue how-low-so-ever. Reference in this connection is made to S. 32 of the Act which makes a special provision for the partition of Makkathayam property and provides : "32. Makkathayam property divisible among wife and children equally. Except where a contrary intention is expressed in the instrument of gift or bequest, if any, makkathayam property acquired after the date of the passing of this Act shall be liable to be divided among the wife and each of the children in equal shares: Provided that, in the partition of Makkathaya property, the issue how-low-so-ever of a deceased child shall be entitled to only such share as the child itself, if alive would have taken." ;