Case: Kandu and Five Others Vs. Kochi Others

HEGDE, J. 1. Some of the defendants in the suit have brought this appeal after obtaining certificate under Article 133(1)(a) of the Constitution. The suit was brought by one Kochi for partition and possession of an half share in the suit properties on the strength of her title to the same. Her case was that the suit-schedule properties were owned by two brothers by name Ittiri and Ittaman; each one of them had a half share of those properties; they were tenants in common; after the death of Ittiri she became entitled to his share. The suit was resisted by the defendants on two grounds namely (1) that the plaintiff had no title to the suit properties and (2) that even if she had any title, it was lost by ouster. The trial court accepted the defendants case and dismissed the suit. In appeal the High Court of Kerala partly allowed the plaintiffs claim. It came to the conclusion that in respect of some of the items mentioned in the plaint-schedule, Ittiri and Ittaiman were co-owners and Ittiris share after his death devolved on the plaintiff. As regards the other properties included in the plaint-schedule, the High Court came to the conclusion that they were of the exclusive ownership of Ittaman. Therefore the plaintiff cannot claim any share therein. 2. Aggrieved by that decision some of the defendants have brought this appeal. 3. We shall first take up the question as to the plaintiffs title to the properties decreed in her favour by the High Court. It was not disputed before us that Ittiri and Ittaman were co-owners of those properties during their life time. It was also not disputed that Kochi, the plaintiff in the suit was the daughter of Ittiri through his wife Kunji but her claim is resisted on the ground that she had an elder brother by name Ayyappankutty at the time of the death of her father and therefore Ittiris share devolved on Ayyappankutty. Hence the plaintiff is not entitled to claim the same. The essential question for decision is whether Ayyappankutty was the brother of the plaintiff. The plea advanced on behalf of the defendants is that Ittiri and his brother Ittaman had a common wife by name Kurumba and through her the two brothers got a son by name Ayyappankutty. Sometime after the birth of Ayyappankutty, Ittiri took Kunji as his wife. Thereafter Kurumba became the exclusive wife of Ittaman. Hence Ayyappankutty was the common son of Ittiri and Ittaman. That being so under the customary law governing the parties, Ayyappankutty was the sole heir to the estate of Ittiri. The plaintiff denied these allegations. According to her Kurumba was not the wife of Ittiri. She was the wife of Ittaman and therefore Ayyappankutty was not the son of Ittiri.4. The trial court held that Kurumba was the common wife of Ittiri and Ittaman and Ayyappankutty was the son of Ittiri and Ittaman through Kurumba whereas the High Court came to the conclusion that Kurumba was the wife of Ittaman alone and Ayyappankutty was the son of Ittaman through Kurumba. We have to decide which one of these two conclusions is the correct one. It is not denied that if Ayyappankutty is not the brother of the plaintiff, she was solely entitled to the properties left behind by Ittiri. 5. For coming to the conclusion that Ayyappankutty was the son of Kurumba through Ittiri and Ittaman, the trial court relied on certain circumstances. The first circumstance relied on is that in the community to which the parties belong, there was a custom permitting brothers taking a common wife; and further admittedly Ayyappankutty and his younger brother Kandu had taken a common wife by name Malu and their other two brothers Raman and Ittiri had taken one kochi as their wife; hence that court assumed that it was likely that Ittiri and Ittaman had taken a common wife. This, in our opinion, is fallacious reasoning. From the existence of the custom in question, it does not follow that Ittiri and Ittaman had taken a common wife. In fact it is seen from the evidence in the case that all the son of Kurumba did not take a common wife. Out of them Ayyappankutty and Kandu took one wife and Raman and Ittiri took another wife. It is also admitted that Kunji was not the common wife of Ittiri and Ittaman. The other circumstance relied on by the learned trial Judge in support of his conclusion is that Kurumba must have been the common wife of Ittiri and Ittaman is rather a strange one. It reasoned thus : Ayyappankutty is eight years older than the plaintiff; in the normal course Ittiri, the elder brother would have been married earlier than Ittaman; if that was so it was not likely that younger brothers first child would have been older than the elder brothers first child, hence Ayyappankutty must have been the son of Ittiri and Ittaman. According to the evidence of the plaintiff, her mother had given birth to two children before giving birth to her but both of them had died. She also deposed that the first child born to her mother was six years older than her. There is no reason to disbelieve this evidence. Apart from that the circumstance relied on by the trial court is rather fanciful. There is nothing strange if a younger brother gets a child earlier than his elder brother. Quite clearly the trial court has allowed itself to be influenced by irrelevant considerations. 6. The oral evidence bearing on the point under consideration is of inconclusive nature. It was not possible for the witnesses to speak to circumstances that were existing in the last quarter of the last century when Ittiri and Ittaman lived. Therefore naturally the witnesses could only given reputation evidence. Under those circumstances the High Court was right in not placing much reliance on the oral evidence adduced in this case. In its view the defendants had not come forward with the true version. There is good ground for coming to this conclusion. Before filing the suit the plaintiff caused a lawyers notice to be given. Therein it was stated that she was the daughter of Ittiri and his properties devolved on her after his death. To this notice the respondents caused a reply to be given through a lawyer. Therein it was not stated that as Ayyappankutty was her elder brother, she was not the heir of Ittiri. All that was stated in that reply was that the plaintiff had no right to the suit properties. The case that Ayyappankutty was the son of Ittiri was put forward for the first time in the written statement. That plea appears to be an after-thought. It is surprising that the learned trial judge accepted the tame explanation given on behalf of the defendants that the lawyer who issued the reply to the notice did not take proper instructions. The High Court has rightly rejected that plea. In the written statement, it was pleaded that both Ayyappankutty as well as Kundru (defendant No. 1) were the sons of Ittiri and Ittaman but while adducing evidence the case that Kandu was the son of Ittiri was given up. Evidently there was satisfactory evidence to show that Kandu was born long after the death of Ittiri. It was evident that the defendants have been changing their version from stage to stage. 7. In Ext. D-1, the partition deed, dated February 18, 1958, entered into amongst the descendants of Ittaman, 3rd and 4th defendants have been described as children of Ayyappankutty and the 1st defendant through their common wife Malu. Similarly defendants 5 and 6 have been described as the children of Raman and Ittiri, the two brothers. This shows that it was not uncommon in the family of the parties to describe an individual as the child of two fathers even though one of the fathers was dead at the time of the execution of the document. But in a large number of documents to which Ayyappankutty was a party viz., Ext. D-3, D-5, D-6, D-12, D-14, D-16, D-21, D-24 and D-25, he was described as the son of Ittaman. If he had been the son of Ittiri and Ittaman, it is natural to expect that he would have been described as such in those documents. This is an important circumstances to show that Ayyappankutty was likely to have been the son of Ittaman only and not of Ittiri as well. On an appreciation of evidence on record, the High Court has come to the conclusion that Ayyappankutty was not the son of ittiri. We see no reason to come to a different conclusion. 8. This takes us to the question whether the plaintiff lost her right by ouster. In support of the contention that the plaintiff had lost her right by ouster, our attention was invited to a large number of documents executed by the descendants of Ittaman during the last about 60 years prior to the institution of the suit wherein they dealt with the suit property as if they were the exclusive owners thereof. Admittedly the plaintiff was mostly living with her husband but she has sworn to the fact that she was coming to the family house for delivery and that she was being given a portion of the income of the suit property. This evidence has been believed by the high Court. We have been taken through the evidence and we see no reason to differ from the conclusion reached by the High Court. It has not been established by satisfactory evidence that the plaintiff had the knowledge of the alienations effected by the descendants of Ittaman. Evidence of a conclusive character is necessary to show that a co-sharers right has been lost by ouster. The fact that the plaintiff was given money now and then for expenses was not disputed before us. but what was stated on behalf of the appellants is that they were small amounts given out of affection and not because that she had any right to the property. We are unable to accept this explanation. There is sufficient evidence in the case to show that the plaintiff had participated in the income of the property. Hence the plea of ouster fails.

Decision:
0[ds]It was not disputed before us that Ittiri and Ittaman weres of those properties during their life time. It was also not disputed that Kochi, the plaintiff in the suit was the daughter of Ittiri through his wife Kunji but her claim is resisted on the ground that she had an elder brother by name Ayyappankutty at the time of the death of her father and therefore Ittiris share devolved on Ayyappankutty. Hence the plaintiff is not entitled to claim the same.5. For coming to the conclusion that Ayyappankutty was the son of Kurumba through Ittiri and Ittaman, the trial court relied on certain circumstances. The first circumstance relied on is that in the community to which the parties belong, there was a custom permitting brothers taking a common wife; and further admittedly Ayyappankutty and his younger brother Kandu had taken a common wife by name Malu and their other two brothers Raman and Ittiri had taken one kochi as their wife; hence that court assumed that it was likely that Ittiri and Ittaman had taken a common wife. This, in our opinion, is fallacious reasoning. From the existence of the custom in question, it does not follow that Ittiri and Ittaman had taken a common wife. In fact it is seen from the evidence in the case that all the son of Kurumba did not take a common wife. Out of them Ayyappankutty and Kandu took one wife and Raman and Ittiri took another wife. It is also admitted that Kunji was not the common wife of Ittiri and Ittaman. The other circumstance relied on by the learned trial Judge in support of his conclusion is that Kurumba must have been the common wife of Ittiri and Ittaman is rather a strange one. It reasoned thus : Ayyappankutty is eight years older than the plaintiff; in the normal course Ittiri, the elder brother would have been married earlier than Ittaman; if that was so it was not likely that younger brothers first child would have been older than the elder brothers first child, hence Ayyappankutty must have been the son of Ittiri and Ittaman. According to the evidence of the plaintiff, her mother had given birth to two children before giving birth to her but both of them had died. She also deposed that the first child born to her mother was six years older than her. There is no reason to disbelieve this evidence. Apart from that the circumstance relied on by the trial court is rather fanciful. There is nothing strange if a younger brother gets a child earlier than his elder brother. Quite clearly the trial court has allowed itself to be influenced by irrelevant considerations6. The oral evidence bearing on the point under consideration is of inconclusive nature. It was not possible for the witnesses to speak to circumstances that were existing in the last quarter of the last century when Ittiri and Ittaman lived. Therefore naturally the witnesses could only given reputation evidence. Under those circumstances the High Court was right in not placing much reliance on the oral evidence adduced in this case. In its view the defendants had not come forward with the true version. There is good ground for coming to this conclusion. Before filing the suit the plaintiff caused a lawyers notice to be given. Therein it was stated that she was the daughter of Ittiri and his properties devolved on her after his death. To this notice the respondents caused a reply to be given through a lawyer. Therein it was not stated that as Ayyappankutty was her elder brother, she was not the heir of Ittiri. All that was stated in that reply was that the plaintiff had no right to the suit properties. The case that Ayyappankutty was the son of Ittiri was put forward for the first time in the written statement. That plea appears to be an. It is surprising that the learned trial judge accepted the tame explanation given on behalf of the defendants that the lawyer who issued the reply to the notice did not take proper instructions. The High Court has rightly rejected that plea. In the written statement, it was pleaded that both Ayyappankutty as well as Kundru (defendant No. 1) were the sons of Ittiri and Ittaman but while adducing evidence the case that Kandu was the son of Ittiri was given up. Evidently there was satisfactory evidence to show that Kandu was born long after the death of Ittiri. It was evident that the defendants have been changing their version from stage to stage7. In Ext., the partition deed, dated February 18, 1958, entered into amongst the descendants of Ittaman, 3rd and 4th defendants have been described as children of Ayyappankutty and the 1st defendant through their common wife Malu. Similarly defendants 5 and 6 have been described as the children of Raman and Ittiri, the two brothers. This shows that it was not uncommon in the family of the parties to describe an individual as the child of two fathers even though one of the fathers was dead at the time of the execution of the document. But in a large number of documents to which Ayyappankutty was a party viz., Ext.4 and, he was described as the son of Ittaman. If he had been the son of Ittiri and Ittaman, it is natural to expect that he would have been described as such in those documents. This is an important circumstances to show that Ayyappankutty was likely to have been the son of Ittaman only and not of Ittiri as well. On an appreciation of evidence on record, the High Court has come to the conclusion that Ayyappankutty was not the son of ittiri. We see no reason to come to a different conclusionly the plaintiff was mostly living with her husband but she has sworn to the fact that she was coming to the family house for delivery and that she was being given a portion of the income of the suit property. This evidence has been believed by the high Court. We have been taken through the evidence and we see no reason to differ from the conclusion reached by the High Court. It has not been established by satisfactory evidence that the plaintiff had the knowledge of the alienations effected by the descendants of Ittaman. Evidence of a conclusive character is necessary to show that a right has been lost by ouster. The fact that the plaintiff was given money now and then for expenses was not disputed before us. but what was stated on behalf of the appellants is that they were small amounts given out of affection and not because that she had any right to the property. We are unable to accept this explanation. There is sufficient evidence in the case to show that the plaintiff had participated in the income of the property. Hence the plea of ouster fails.