IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 27TH SEPTEMBER 2011 / 5TH ASWINA 1933 RSA.No. 858 of 2011() --------------------- AS.148/2004 of ADDL.DISTRICT COURT (ADHOC)-II, MANJERI OS.76/2001 of SUB COURT, TIRUR .................... APPELLANT/1ST APPELLANT/1ST DEFENDANT. ---------------------------------------------------------- VELAYUDHAN NAIR, AGED 69 YEARS, S/O.NEENDRA KARTHIAYANI AMMA,HOTEL BUSINESS, RESIDING AT WARD NO.8/221, IRIMBILLIYAM PANCHAYATH,IRIMBILLIYAM AMSOM, DESOM, TIRUR TALUK. BY ADV. SRI.T.A.RAJAN RESPONDENT(S): RESPONDENTS/PLAINTIFFS AND DEFENDANTS 2 TO 3. ------------------------------------------------------------ 1. PARVATHI, AGED 39 YEARS, D/O.NEENDRA BALAN NAIR, RESIDING AT WARD NO.8/382,IRIMBILLIYAM PANCHAYATH, IRIMBILLIYAM AMSOM, DESOM, TIRUR TALUK-679 572. 2. SUMATHI, AGED 37 YEARS, D/O.NEENDRA BALAN NAIR, RESIDING AT WARD NO.8/382, IRIMBILLIYAM PANCHAYATH,IRIMBILLIYAM AMSOM, DESOM, TIRUR TALUK-679 572. 3. PALLIYALIL CHINNU, AGED 59 YEARS, W/O.NEENDRA BALAN NAIR, RESIDING AT WARD NO.8/382, IRIMBILLIYAM PANCHAYATH,IRIMBILLIYAM AMSOM, DESOM TIRUR TALUK-679 572. 4. VIJAYALAKSHMI AMMA, AGED 54 YEARS, D/O.NEENDRA BALAN NAIR, RESIDING AT WARD NO.8/382,IRIMBILLIYAM PANCHAYATH,IRIMBILLIYAM AMSOM, DESOM, TIRUR TALUK-679 572. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 27/09/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J ........................................... RSA No.858 of 2011 ............................................ DATED THIS THE 27th DAY OF SEPTEMBER, 2011 JUDGMENT First defendant in O.S.76 of 2001 on the file of Sub Court, Tirur is the appellant. Respondents 1 and 2 are the plaintiffs, third respondent is the third defendant and fourth respondent, the second defendant in the suit. The suit was filed for partition and separation of 1/3 share in the plaint B schedule property due to respondents 1 and 2 as legal heirs of deceased Balan Nair @ Balakrishnan Nair. Appellant is the brother of Balan Nair. Appellant, Balan Nair and 4th respondent are the children of Karthiayani Amma. Balan Nair @ Balakrishnan Nair is no more. If respondents 1 and 2 are the children of Balan Nair, they are entitled to 1/3 share due to him and appellant and 4th respondent are entitled to the remaining two shares. Respondents 1 and 2 contended that third defendant was the wife of Balan Nair @ Balakrishnan Nair and appellant is his brother and on the death of Balan Nair, his rights devolved on the respondents 1 and 2 and therefore they are entitled to his share. Appellant and 4th RSA 858/2011 2 respondent resisted the suit admitting that plaint B schedule property belonged to Karthiayani Amma and Karthiayani Amma died on 6.1.2001. But it was contended that Karthiayani Amma had no son by name Balan Nair and apart from the appellant and 4th respondent, Karthiayani Amma had another son by name Krishnan Nair, who died intestate and as a bachelor and respondents 1 and 2 are not the children of said Krishnan Nair. It was contended that Balan Nair has not married the third respondent and respondents 1 and 2 are not the children of Balan nair and therefore they are not entitled to a share. 2. Learned Munsiff, on the evidence of PWs 1 and 2, DWs 1 and 2, Exts.A1 to A6, B1, C1 and C2 found that apart from appellants, Karthiayani Amma admittedly had a son and though appellant and 4th respondent contended that his name was Krishnan Nair, the said son was Balan Nair @ Balakrishnan Nair. It was also found that Balakrishnan Nair had married the third respondent and respondents 1 and 2 are the children of Balan Nair born to third respondent and on the death of Balan Nair, respondents 1 and 2 are entitled to 1/3 share due to Balan Nair. RSA 858/2011 3 A preliminary decree was passed finding that plaint B schedule property is available for partition and it is to be divided into three shares and respondents 1 and 2 together are entitled to 1/3 share and appellant and 4th respondent are entitled to one share each. Appellant challenged the decree and judgment before Additional District Court, Manjeri in A.S.148 of 2004. Learned Additional District Judge on re-appreciation of the evidence confirmed the findings of learned Munsiff and dismissed the appeal. It is challenged in the second appeal. 3. Learned counsel appearing for appellant was heard. The argument of the learned counsel is that plaint does not disclose the details of the alleged marriage between Balan Nair and third respondent and no specific issue was framed by the trial court whether third respondent is the legally wedded wife of Balan Nair and in such circumstances, courts below were not justified in granting a decree for partition. Learned counsel would also argue that the ceremonies regarding marriage was not pleaded or proved and therefore on the evidence, courts below were not justified in granting the decree for partition on the assumption RSA 858/2011 4 that respondents 1 and 2 are their children. 4. Appellant, fourth respondent and Balan Nair are members of Nair community. Third respondent admittedly belongs to Thiyya community. Though appellant raised a contention that Karthiayani Amma had no son by name Balan Nair @ Balakrishnan Nair, and apart from the appellant, she was having a son Krishnan Nair, who died as a bachelor intestate, courts below on the evidence found that the other son was Balan Nair @ Balakrishnan Nair. That factual finding is in accordance with evidence on record. Therefore it cannot be challenged in exercise of the powers under section 100 of Code of Civil Procedure. Respondents 1 and 2 are claiming that they are the children of Balan Nair born to third respondent and Balan Nair had married the third respondent in accordance with the religious custom and practise. The fact that respondents 1 and 2 are the children of third respondent is not disputed. The only case is that there was no marriage between Balan Nair and third respondent and respondents 1 and 2 are not the children born to Balan Nair. The argument of the learned counsel is that the details of RSA 858/2011 5 marriage between Balan Nair and third respondent was not pleaded and there is no evidence to prove a legal marriage and therefore finding of the courts below that respondents 1 and 2 are the children of Balan Nair is not sustainable. 5. True, no specific issue was framed on the question whether the third respondent is the legally wedded wife of Balan Nair. Courts below did not grant a share to third respondent on the basis that she is the legally wedded wife of Balan Nair. If only a share was alloted to the third respondent as widow of Balan Nair, it would have been necessary to consider whether third respondent is the legally wedded wife of Balan Nair. There was no claim for a share by third respondent. Therefore, the question whether third respondent is the legally wedded wife of Balan Nair is not relevant or to be settled. The only question is whether respondents 1 and 2 are the children of third respondent born to Balan Nair. Courts below on the evidence entered a factual finding that third respondent and Balan Nair were living under one roof as husband and wife for many years and respondents 1 and 2 were born to third respondent in that relationship. On RSA 858/2011 6 going through the judgment of the courts below, I do not find any reason to interfere with the factual finding of the courts below that Balan Nair and third respondent were living together as husband and wife, till the death of Balan Nair and respondents 1 and 2 are the children of third respondent born to Balan Nair. Exts.A4 and A5, the certified extracts of the school admission register of respondents 1 and 2 with the evidence of DW2 the third respondent establishes that Balan Nair was shown as the father of respondents 1 and 2. The evidence therefore establishes that respondents 1 and 2 are the children of Balan Nair. Therefore even if the argument of learned counsel appearing for appellant is to be accepted and it is to be held that there is no evidence to prove a legal marriage between third respondent and Balan Nair, when evidence establish that Balan Nair and third respondent were living together as husband and wife and respondents 1 and 2 were born in that relationship, finding of courts below that respondents 1 and 2 being the children of Balan Nair, on the death of Balan Nair, his rights devolved on respondents 1 and 2 is perfectly correct. Respondents 1 and 2 RSA 858/2011 7 are therefore entitled to 1/3 share due to Balan Nair in plaint B schedule property, which originally belonged to the mother Karthiayani Amma. In such circumstances, no substantial question of law is involved in the appeal. Appeal is dismissed. M.SASIDHARAN NAMBIAR, JUDGE lgk