IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 27TH JULY 2011 / 5TH SRAVANA 1933 SA.No. 886 of 2000(E) --------------------- AS.27/1995 of SUB COURT,NEYYATTINKARA OS.230/1993 of I ADDL.M.C.,NEYYATTINKARA .................... APPELLANT(S)/APPELLANT/PLAINTIFF: ------------------------------------------------------ CHELLAYYAN NADAR RAJAN, VENKA NINNA VADAKKARUKU PUTHEN VEEDU, KAZHUVOOR DESOM, KANJIRAMKULAM VILLAGE. BY ADV. SRI.G.GOPALAKRISHNAN NAIR SRI.R.BINDU (SASTHAMANGALAM) SRI.R.JAYAKRISHNAN RESPONDENT(S)/RESPONDENTS/DEFENDANTS 1 TO 3: ---------------------------------------------------------------------------- 1. KELAN NADAR NARAYANAN NADAR, CHURIKOTTY VILAKATHU PADIPPURA PUTHENVEEDU, VENKADAMPU DESOM, KULATHOOR VILLAGE. (DIED) 2. NARAYANAN NADAR PONNAYYAN, D.P.SADANAM, MAVILAKKADAVU OF DO. DO. 3. NARAYANAN NADAR SUDHAKARAN, CHRURIKOTTU VILAKATHUPADIPPURA PUTHEN VEEDU, OF DO. DO. R1 DIED. ADDL.RESPONDENTS 4 TO 6 IMPLEADED. ADDL. 4. PONNAYYAN, D.P. SADANAM, VALIYAILA, UCHAKKADA, THIRUVANANTHAPURAM. ADDL. 5. SUDHAKARAN, CHIRIKOTTU VILAKATH, PADIPPURA PUTHEN VEEDU, KULATHOOR VILLAGE, UCHAKKADA P.O. ADDL. 6. GOURI, CHIRIKKODU VILAKATHU PADIPPURA PUTHEN VEEDU, KULATHUR VILLAGE, UCHAKKADA. ADDL. R4 TO R6 IMPLEADED AS PER ORDER DATED 27.7.2011 IN I..A.1578 OF 2006. ADV. SRI.G.S.REGHUNATH FOR R1 TO R3 SRI.G.S.REGHUNATH FOR ADDL. R4, 5, 6 THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 30/06/2011, THE COURT ON 27/07/2011 DELIVERED THE FOLLOWING: P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 886 of 2000 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 27th day of July, 2011. JUDGMENT The plaintiff, who was non-suited by the lower appellate court is the appellant. 2. The facts absolutely essential for the disposal of this appeal are as follows: The plaintiff married Mary Syamala on 14.9.1987 as per the Christian rites in R.C.Church, Valiyavila. The first defendant is the father of said Mary Syamala and defendants 2 and 3 are her brothers. Two children were born to the couple in the wedlock. Unfortunately on 3.12.1990 Mary Syamala and the children committed suicide. According to the plaintiff, plaint A schedule item No.1 was purchased by the plaintiff utilizing his funds as per Ext.A1 dated 24.12.1987 though it contains the name of Mary Syamala also. It is asserted that she had no manner of right in the property. As far as item No.2 is concerned, it S.A.886/2000. 2 belonged to Mary Syamala as per Ext.A2 dated 21.7.1987, a settlement deed executed by the first defendant in favour of the late wife of the plaintiff. Alleging that the defendants have trespassed into the property, a suit for declaration of title and possession so also partition was laid. 3. The first defendant resisted the suit. It is contended that Mary Syamala though had married the plaintiff, continued to be a Hindu and at the time of her death she remained as a Hindu. According to this defendant, since the plaintiff was instrumental in forcing Mary Syamala and children to commit suicide, he is not entitled to succeed to the assets left behind by Mary Syamala. Several other contentions are taken, which are irrelevant for the present purpose. It is contended that plaint A schedule item No.1 was purchased utilizing the funds of Mary Syamala and the plaintiff had not contributed anything for the purchase. Infact he had no means of income and the purchase was made soon after the marriage. The funds were provided by the first defendant. As regards S.A.886/2000. 3 item No.2 was concerned, the settlement deed Ext.A2 had not come into effect. Mary Syamala had never accepted the gift of item No.2 of A schedule and it remained with the first defendant even after execution of Ext.A2. He continued to enjoy the property as if it exclusively belonged to him. Contending that the plaintiff cannot be treated as a legal heir of Mary Syamala, he prayed for a dismissal of the suit. 4. On the basis of the above pleadings issues were raised by the trial court. The evidence consists of the testimony of P.Ws. 1 to 3 and documents marked as Exts.A1 to A3 from the side of the plaintiff. The defendants had D.Ws. 1 and 2 examined and Exts. B1 to B4 marked. 5. The trial court on an evaluation of the evidence came to the conclusion that A schedule was the joint acquisition of Mary Syamala and the plaintiff. It also came to the conclusion that Mary Syamala had converted into Christianity. As regards plaint A schedule item No.2 was concerned, the trial court came to the conclusion that the gift had not taken effect and therefore the first defendant S.A.886/2000. 4 continued to be the owner of the property. On the basis of the above findings, a decree was passed in the following terms: “(1) The plaintiff's title and possession over the ¾ share in 'A' schedule item No.1 is here be declared. (2) He is allowed to take partition of his ¾ share from 'A' schedule item No.1 by metes and bounds. (3) He is entitled to apply for passing a final decree for partition by metes and bounds by appointing a commissioner to effect partition.” 6. The plaintiff carried the matter in appeal as A.S. 27 of 1995. The lower appellate court found that Mary Syamala had continued to be a Hindu till her death and if that be so, the plaintiff is not entitled to succeed to any of the assets left behind by Mary Syamala. The first defendant had filed a cross appeal, which was allowed. The result was that the lower appellate court found itself unable to sustain any of the findings of the trial court and accordingly allowed the appeal and dismissed the suit. S.A.886/2000. 5 7. Notice is seen issued on the following questions of law: “1. Whether the plaintiff is entitled to inherit the plaint schedule property as the legal heir of the deceased? 2. Whether the courts below have considered the evidence required to constitute a valid marriage in accordance with law? 3. Whether the defendants have proved that Ext.A2 gift deed was not accepted and acted upon by the deceased?” 8. Learned counsel appearing for the appellant pointed out that the lower appellate court was not justified in coming to the conclusion that Mary Syamala had continued to be a Hindu till her death and therefore the plaintiff was not entitled to succeed to her estate. According to the learned counsel, since the marriage had been undergone in a Church, it should be presumed that Mary Syamala had undergone Baptism and if that be so, she had converted into Christianity. Learned counsel relied on the evidence furnished by P.W.2, the person who had S.A.886/2000. 6 conducted the marriage ceremony, who deposed to the effect that Mary Syamala had been Baptized. It is also contended that the marriage between two persons in a Church will not be solemnized unless both are Christians and Baptized. At any rate, according to learned counsel, the lower appellate court was not justified in reversing the finding of the trial court regarding the half share which the plaintiff had over plaint A schedule item No.1. There was no convincing evidence, according to learned counsel, to show that acquisition of that item of property was with the sole funds provided by Mary Syamala and in the absence of any such evidence the lower appellate court was not justified in declining relief as regards item No.1 of A schedule. Learned counsel also assailed the finding regarding item No.2 of plaint A schedule to the effect that Ext.A2 gift deed had not taken effect. Learned counsel pointed out that at any rate there is no justification in holding that the plaintiff is not entitled to any relief as has been done by the lower appellate court. S.A.886/2000. 7 9. Per contra, learned counsel appearing for the respondents pointed out that the lower appellate court has correctly appreciated the facts, has applied the correct law and has come to the right conclusion. It is evident that at the time of marriage and soon thereafter amounts were provided by the father of late Mary Syamala, utilizing which the property covered by Ext.A1 was purchased. According to learned counsel, even though the name of the plaintiff is included therein, he had not contributed any funds since he had no funds to contribute. Drawing attention to the consideration paid in Ext.A1, learned counsel pointed out that it is very evident that the funds given to Mary Syamala were utilized for purchasing the property. Learned counsel went on to contend that the lower appellate court has given convincing reasons as to why it may be concluded that Mary Syamala continued to be a Hindu till her death. Merely saying that Mary Syamala had been Baptized will not suffice. The plaintiff was unable to produce any evidence to show that Mary Syamala has been Baptized or that she had S.A.886/2000. 8 converted into Christianity. In the absence of any such evidence, it will be presumed that Mary Syamala continued to be a Hindu. The law that governs the parties at the time of death of Mary Syamala is the Hindu Succession Act and going by the Hindu Succession Act, the plaintiff is not entitled to any share. As regards item No.2, it was contended that both the courts have concurrently found that Ext.A2 had not come into effect and the property is in the ownership and possession of the first defendant. Being a question of fact, no interference is called for. 10. As regards plaint A schedule item No.1, the trial court has found that the first defendant has not been successful in proving that the entire fund for the purchase of the item of property covered by Ext.A1 was provided by Mary Syamala. It is true that D.W.1 has stated that a sum of Rs.5,000/- and Rs.10,000/- were given to Mary Syamala and it was utilizing that fund that the purchase was made. It is contended on behalf of the contesting respondents that there is no evidence at all to show that the plaintiff had any S.A.886/2000. 9 saving from his employment. He was only a milker. His evidence was to the effect that he used to entrust amounts to his uncle and after marriage he had purchased the property from the uncle with the funds entrusted to his uncle. Of course, the plaintiff as P.W.1 speaks about the fact, emphasis is laid on the fact that the uncle has not been examined. 11. While the trial court has considered the entire evidence in this regard, the lower appellate court does not appear to have discussed the evidence at all with respect to this aspect. It simply allowed the cross appeal and has came to the conclusion that the plaintiff is not entitled to any relief as regards plaint A schedule item No.1 also. The finding does not appear to be based on an appreciation of the evidence at all. 12. It is true that D.W.1 has stated that an amount of Rs.15,000/- was provided to Mary Syamala, Rs.10,000/- was given to Mary Syamala for purchasing the property and that Rs.5,000/- was given at the time of S.A.886/2000. 10 marriage. As rightly noticed by the trial court, there is no convincing evidence regarding the payment said to have been made by D.W.1. It is also true that the plaintiff has not examined his uncle. But to say that he had no income whatsoever and he had no surplus with him is without basis and will not be justified. The marriage was on 14.9.1987 and the purchase as per Ext.A1 was on 24.12.1987. The finding of the lower appellate court in this regard is thoroughly unsatisfactory. 13. The more vexed question that arises for consideration is whether at the time of death Mary Syamala remained as a Hindu or whether she had converted into Christianity. If she had converted into Christianity, then probably the finding of the trial court may have to be upheld. If on the other hand, she remained as a Hindu as is found by the lower appellate court, the question arises as to what is the law of succession applicable to the parties and whether the plaintiff will be a legal heir. S.A.886/2000. 11 14. While the trial court took the view that Mary Syamala had converted into Christianity, the lower appellate court came to the finding that Mary Syamala had remained as a Hindu. 15. It is not disputed that the marriage between Mary Syamala and the plaintiff was solemnized as per the Christian rites in the R.C. Church at Valiyavila and P.W.2 had conducted the ceremony. P.W.1 in his evidence does say that Mary Syamala had converted into Christianity and she used to regularly attend the Church after marriage. He would also say that she had been Baptized. In this regard he gets support from the evidence of P.W.2 also. But it is significant to notice that no document whatsoever could be produced by the plaintiff to show that Mary Syamala was Baptized and inducted into Christianity. There is no independent evidence to show that Mary Syamala had converted into Christianity or had been following the Christian way of life after her marriage. It is true that P.W.1 S.A.886/2000. 12 deposed that Mary Syamala used to regularly attend the Church, but there is no evidence regarding the same. 16. The defendants on the other hand had produced Ext.B1 which is the S.S.L.C. Book relating to L.Syamala. In the said document her religion is shown as Hindu. Once it is shown that Syamala belonged to Hindu religion, thus the burden shifts to the plaintiff to show that she had converted into Christianity. 17. Before going further into this aspect, the contention as regards plaint schedule item No.2 may also be noticed. The plaintiff relies on Ext.A2 document which is a gift deed executed by the first defendant in favour of Mary Syamala. Both the courts have concurrently found that going by the evidence, it is clear that the gift had not been accepted and Mary Syamala was at no point of time in possession of the property. When examined as P.W.1 though he claimed that Mary Syamala was enjoying the property, he was unable to sustain his stand. He also deposed that the original of the gift deed had been lost from S.A.886/2000. 13 his possession. It turned out that the original has been produced by the Investigating Officer of the Crime in which the plaintiff was the accused and the document had been seized from the possession of the first defendant. It was the above factors which had persuaded the lower courts to come to the conclusion that the gift evidenced by Ext.A2 had never taken effect. There are no grounds made out to interfere with the said finding. 18. Coming back to the question regarding the law of succession applicable to Mary Syamala's estate at the time of her death, as already noticed there is no evidence to show that she had embraced Christianity. If that be so, it has to be necessarily said that she remained as a Hindu. 19. Then the question arises whether the plaintiff is entitled to succeed to the estate left behind by Mary Syamala. The lower appellate court gave no particular reason to disinherit the plaintiff. 20. Learned counsel appearing for the respondents though initially contended that the marriage S.A.886/2000. 14 between Mary Syamala and the plaintiff was void in law, later on conceded that going by the Canon Law a Christian can marry a non-Christian by following Christian ceremonies and the marriage can be conducted in a Church. There is no dispute in this case regarding the fact that the marriage between Mary Syamala and the plaintiff was conducted in a Church following the Christian rites and ceremonies. Going by the Canon Law, the marriage between a Christian and a non-Christian, following the ceremonies of the Christian faith and solemnized in a Church by the competent authority is valid in law. So far as the marriage between Mary Syamala and the plaintiff is concerned, it has necessarily to be held that it is a valid marriage. 21. Once it is found that there is a legal and valid marriage between Mary Syamala and the plaintiff, it necessarily follows that the plaintiff occupies the status of a husband. 22. Learned counsel appearing for the first respondent relied on the decision reported in Surjit Kaur v. S.A.886/2000. 15 Garja Singh ((1994) 1 SCC 407) to contend for the position that there is no valid marriage between Mary Syamala and the plaintiff. Learned counsel, relied on paragraphs 10 and 12 of the above decision in support of his claim. 23. That was a case where on the basis that the couple had been living together for a long time it was contended that it should be presumed that there is a legal marriage. It was also contended that a Karewa form of marriage had been undergone by the couple. In that context it was held that merely by staying together for a long time does not give the parties status of a husband and wife unless there is a legal and valid marriage. In the said case, it was also found that the custom relied on was not proved and the essential ceremonies of marriage that were claimed to have been undergone were not proved. The alleged marriage itself was rescinded. 24. Learned counsel also relied on the decision reported in Flg. Officer Rajiv Gakhar v. Ms. Bhavana (2011 (2) KLJ (NOC) 16) for the proposition that there should S.A.886/2000. 16 be a legal marriage for occupying the status of husband and wife under Hindu Marriage Act between two Hindus. 25. There can be no dispute regarding the above proposition. In the decision reported in Kali v. Kamalakshi Amma (1967 K.L.T. 1063) it was held as follows: “....As no marriage was ever solemnized between the parties through any form of marriage known to and recognized by law as capable of producing a valid marriage, we must hold that there was no marriage between the plaintiff and Narayanan Madhavan, in spite of the long and intimate relations that apparently obtained between them.” A reading of the above decision shows that 'to marry' means to go through a form of marriage known to law. It is true that in the decision reported in Leelamma v. Radhakrishnan (2005(2) K.L.T. 212) it was held that long co-habitation by two persons by itself is not sufficient to give the status of husband and wife. 26. In the case on hand, it has already been found that there was a marriage as per the Christian rites and S.A.886/2000. 17 ceremonies conducted in a Church and going by the Canon Law the marriage is a valid one. Therefore, it could not be said that Mary Syamala and the plaintiff did not have the status of husband and wife. There is no challenge to the claim made by P.W.1 and supported by the evidence of P.W.2 that Christian rites and ceremonies have been followed in the solemnization of the marriage between Mary Syamala and the plaintiff conducted in the Church. 27. It is true that a void marriage or invalid marriage cannot give the parties the status of husband and wife. 28. Having thus came to the conclusion that there was a valid marriage between Mary Syamala and the plaintiff and also that Mary Syamala had continued to be a Hindu at the time of her death, the question arises as to the law of succession applicable to the case on hand. 29. Learned counsel for the appellant advanced the argument on the basis that Mary Syamala had converted into Christianity and therefore the Indian Succession Act S.A.886/2000. 18 applies. It has already been found that the said assumption is incorrect and there is no evidence to show that Mary Syamala had converted into Christianity. If that be so, it follows that the law of succession applicable is the Hindu Succession Act. 30. In this regard, it appears that the lower appellate court has not considered the issue in the proper perspective. It would appear from a reading of the lower appellate court judgment that the said court was of the view that going by the provisions of the Hindu Succession Act the plaintiff is not entitled to succeed to any portion of the estate left behind by Mary Syamala. 31. The provision that is applicable in the case on hand is Sections 15 and 16 of the Hindu Succession Act, which read as follows: “15. General rules of succession in the case of female Hindus.- (1) The property of a female Hindu dying intestate shall devolve according to the rules set out in section 16,- S.A.886/2000. 19 (a) firstly, upon the sons and daughters (including the children of any pre-deceased son or daughter) and the husband; (b) secondly, upon the heirs of the husband; (c) thirdly, upon the mother and father; (d) fourthly, upon the heirs of the father; and (e) lastly, upon the heirs of the mother. (2) Notwithstanding anything contained in sub-section (1),- (a) any property inherited by a female Hindu from her father or mother shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre-deceased son or daughter) not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of the father; and (b) any property inherited by a female Hindu from her husband or from her father-in-law shall devolve, in the absence of any son or daughter of the deceased (including the children of any pre-deceased son or daughter) not upon the other heirs referred to in sub-section (1) in the order specified therein, but upon the heirs of the husband. S.A.886/2000. 20 16. Order of succession and manner of distribution among heirs of a female Hindu.- The order of succession among the heirs referred to in section 15 shall be, and the distribution of the intestates property among those heirs shall take place according to the following rules, namely:- Rule 1.- Among the heirs specified in sub-section (1) of section 15, those in one entry shall be preferred to those in any succeeding entry and those included in the same entry shall take simultaneously. Rule 2.- If any son or daughter of the intestate had pre-deceased the intestate leaving his or her own children alive at the time of the intestate's death, the children of such son or daughter shall take between them the share which such son or daughter would have taken if living at the intestate's death. Rule 3. The devolution of the property of the intestate on the heirs referred to in clauses (b), (d) and (e) of sub-section (1) and in sub-section (2) to section 15 shall be in the same order and according to the same rules as would have applied if the property had been the father's of the S.A.886/2000. 21 mother's or the husband's as the case may be, and such person had died intestate in respect thereof immediately after the intestate's death.” 32. Going by Section 15 extracted above, husband falls in the first entry as per Section 15(1)(a). The question that arises for consideration is whether it could be said that husband contemplated in the said provision must have been a Hindu at the time of marriage. 33. It does not appear that arguments had been advanced before the lower appellate court in this regard and since it would appear that everyone assumed that once it is shown that Mary Syamala was a Hindu at the time of her death, the plaintiff had no right to succeed to her estate. There appears to be nothing in the Hindu Succession Act which imposes a restriction that in order for a husband to succeed to the estate of his deceased wife, he has to be a Hindu. 34. The specific contention raised by the learned counsel for the respondent is