IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN THURSDAY, THE 5TH FEBRUARY 2009 / 16TH MAGHA 1930 AS.No. 102 of 1996(A) --------------------- O.S..371/1990 of PRL.SUB COURT, KOZHIKODE .................... APPELLANT(S): (2ND DEFENDANT): ------------------------------------------------------ KANTTUKANDI EDATHIL **ACHUTHAN'S SON VALSAN,(CORRECTED) RESIDING IN CHERIYATTIDAM PARAMBU KASABA AMSOM AND DESOM IN KOZHIKODE TALUK. BY MR.M.C.SEN, SENIOR ADVOCATE, MR.M.P.SREEKRISHNAN, SMT.SHAHNA KARTHIKEYAN. RESPONDENT(S): (PLAINTIFFS): ------------------------------------------------- 1. KATTUKANDI EDATHIL KRISHNAN, SON OF DAMODARAN. 2. 1ST RESPONDENT'S SON GILSON (NOW MAJOR) 3. KATTUKANDI EDATHIL** ACHUTHAN'S WIDOW UMADEVI. 4. KATTUKANDI EDATHIL** ACHUTHAN'S DAUGHTER KASTHURI. 5. KATTUKANDI EDATHIL**ACHUTHAN'S DAUGHTER SARASWATHI BAI ** FATHER'S NAME OF THE APPELLANT, RESPONDENTS 4 AND 5 AND THE HUSBAND'S NAME OF THE 3RD RESPONDENT ARE CORRECTED AS KARUNAKARAN, INSTEAD OF ACHUTHAN AS PER ORDER DTD. 19/02/97 ON C.M.P.NO.486/97. R1 & R2 BY MR. P.N.KRISHNANKUTTY ACHAN, SENIOR ADVOCATE, MR.V.V.SURENDRAN, MR.P.A.HARISH. R3 TO R5 BY ADV. MR.K.ARAVINDAKSHA MENON, MR.P.SANJAY, SMT.PARVATHI A.MENON. THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 05/02/2009 ALONG WITH AS NO. 107 OF 1996, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss M.N. KRISHNAN, J. = = = = = = = = = = = = = = = A.S. NOs. 102 & 107 OF 1996 = = = = = = = = = = = = = = = Dated this the 5th day of February, 2009. J U D G M E N T Both these appeals are preferred against the judgment and decree in O.S.371/90 of the Subordinate Judge, Kozhikode. These appeals had arisen out of the case for partition where the plaintiff contends that the first plaintiff is the son of one Damodaran and the 2nd plaintiff is the son of the first plaintiff and that the first plaintiff had been born in the wedlock of Damodaran and Chiruthakutty and that the property belongs is in ancestral nature to the joint family of the plaintiffs and defendants and therefore prays for division of the property into two equal shares and to allot one such share. The first defendant died during the pendency of the suit and defendants 2 to 5 are his legal representatives. The 2nd defendant being a member of the co-parcenery had been impleaded as the 2nd defendant even at the inception of the suit. They have contended for the position that the first A.S. NO. 102 & 107 OF 1996 -2- plaintiff is not the son of Damodaran and Damodaran had never married Chiruthakutty and therefore the plaintiffs are not entitled to any right over the property and the suit is liable to be dismissed. 2. Various issues were raised before the trial Court. PWs.1 and 2 and DWs.1 to 3 were examined and Exts.A1 to A25, B1 and B2 were marked and on an analysis of the evidence the trial court granted a decree in favour of the plaintiff for partition of the property into two halves and to allot one such half to the plaintiffs. It is against that decision both these appeals are preferred, one by defendants 3 to 5 and the other by 2nd defendant. This matter was disposed of by this Court by judgment dated 18.12.03. This Court on a consideration of the materials found that an opportunity has to be given to the parties to amend the pleadings and also adduce additional evidence in the matter in order to prove the long cohabitation between Chiruthakutty and Damodaran which will give raise to a presumption regarding the marriage. A.S. NO. 102 & 107 OF 1996 -3- 3. The matter was taken up in Civil appeal No.6804 and 6805 of 2005 and the Hon'ble Supreme Court of India by its judgment dated 11.11.05 set aside the said direction and directed this Court to dispose of the appeal after re- appreciation of the evidence available before the Court. Accordingly, the matters have come up for consideration. The points that arise for determination are, (1) Whether there is evidence to establish the factum of marriage between Damodaran and Chiruthakutty? (2) Whether the first plaintiff, Krishnan is born in the wedlock of Damodaran and Chiruthakutty? (3) If not, if he is proved to be the son of Damodaran and Chiruthakutty what will be the legal consequence and (4) Whether there is anything to interfere with the decision of the trial Court? Points 1 to 4: 4. All these points are answered jointly for the reason it requires discussion of common materials. The crux of the issue is regarding the fact whether there was any marriage A.S. NO. 102 & 107 OF 1996 -4- between Damodaran and Chiruthakutty and whether the first plaintiff is the son born to them in the wedlock or otherwise. A perusal of large number of documents produced in this case would prima facie establish that Damodaran was born in the year 1892 and the first plaintiff Krishnan was born in the year 1942. Damodaran, according to the plaintiffs in some portion died in 1953 and in some portions would contend that he died three years after the first plaintiff joined the army service. But it appears that Damodaran had died prior to the first plaintiff joining the military service. A perusal of documents are necessary for evaluating the materials. 5. Ext.A1 is the lawyer notice claiming partition. Ext.A2 is the L.I.C. Policy wherein the name of Chiruthakutty is shown as N.V. Chiruthakutty and the residential house name is shown as Kattukandi Idathil house. That policy commenced in 1966. Ext.A3 is the Secondary School Leaving Certificate of Damodaran which would show that he was born in 1892 and it has also be stated that it has not been preserved as a document. It contains innumerable number of writings written A.S. NO. 102 & 107 OF 1996 -5- by small children and others and that itself would show it has not been kept in a proper custody at any point of time. Ext.A4 is the trade certificate issued to the first plaintiff wherein he was described as the son of K.E. Damodaran and his house address is shown as Idathil House. Ext.A5 is a paper report about the death of Chiruthakutty which I do not want to deal in detail for the reason the maker of the said news is not examined and it is really not legally admissible to peruse those endorsements without examining the party. Ext.A6 is an electoral card of 1970 wherein it is shown that Chiruthakutty was residing in H 869-D her initial is shown as K.E. and the name of the husband is shown as K.E.Damodaran and she was aged 58 years in 1970. Ext.A7 and A8 are applications filed for issuance of certain certificates wherein the Village Officer had endorsed that it is Kattukandi Idathil Krishnan son of Damodaran. Ext.A9 is the birth certificate of the first plaintiff wherein the name of the father is shown as Damodaran and his mother as Chiruthakutty and Ext.B1 which is another extract, the place of birth is shown as W & C Hospital but in A.S. NO. 102 & 107 OF 1996 -6- Ext.A9 it is scored off and written as K.E. Krishnan Chalappuram and date of birth as 7.8.42. Ext.A10 would show that Chiruthakutty died on 15.12.1985 and her husband's name is shown as Damodaran and the place of residence is shown as Puthiya Veedu Paramba. Exts.A11 and 17 are two documents regarding the electoral card wherein the information is furnished by the wife of the first plaintiff with respect to Chiruthakutty and Krishnan describing them as the wife and son of Damodaran. Ext.A13 is a community certificate which would show that the father's name of Krishnan is shown as Damodaran. Ext.A14 is a marriage certificate relating to the first plaintiff, Krishnan where he is described as K.E. Krishnan son of Damodaran. Exts.A15, 16, 17 and 18 are receipts of L.I.C of India where the address of Krishnan is shown as Kattukandi Idathil house. Ext.17 is also produced to show the same and the mother's initial is given as N.V. Chiruthakutty. Ext.A20 is a document relating to the military discharge certificate wherein there is a mention about the name of the father of Krishnan as Damodaran. Ext.A21 is A.S. NO. 102 & 107 OF 1996 -7- the Secondary School Leaving Certificate of Mr.Krishnan where the mother's name is shown as the guardian and place of residence is shown as Kattukandi. Ext.A22 and 23 are letters said to be written by Chiruthakutty to the first plaintiff where reference is made to defendants 3 and 4 as well as the house name Idathil. Ext.A24 relates to the third page of the S.S.L.C. Book relating to the 3rd plaintiff where the place of residence is shown as Puthiya Paramba. Ext.A25 is an invitation with reference to the 2nd defendant's marriage with one Greesha and it is said to be received by the first plaintiff for attending the marriage. Ext.B1 is the birth certificate issued by the Calicut Corporation wherein as referred to by me earlier the place of birth of Krishnan is shown as W & C Hospital and the address as shown in Ext.A9 is not available in Ext.B1. Ext.B2 is a partition deed entered into between the first defendant and others. 6. PW1 is the first plaintiff. He had deposed before the Court that he had resided in the plaint schedule house and mother died in the year 1985 and that Chiruthakutty had A.S. NO. 102 & 107 OF 1996 -8- married Mr. Damodaran and that Chiruthakutty does not know to write. In the cross-examination he would depose that he had seen his father and that he had joined service in the year 1963 and further that there are other houses in Chalappuram by name Kattukandi Idathil. According to him the expansion of N.V. Chiruthakutty is Nambiar Veedu Chiruthakutty and there is a custom among those people that after the marriage the initial is changed to that of the husband's house. K.E. represents Kattukandi Idathil. He has specifically stated that there are documents to show that Chiruthakutty and first plaintiff had lived in Kattukandi Idathil. According to him he lived along with her mother till 1963 and thereafter the mother shifted the residence to the next compound and the expenses were met by the first defendant. He would also depose there was no ration card for the mother during her residence in the plaint schedule from 1957 to 1963 and he does not no whether the voter's list include the name of the mother or him. A.S. NO. 102 & 107 OF 1996 -9- 7. The next witness is PW2. PW2 is examined to prove that he had seen Chiruthakutty and Damodaran living as husband and wife. In the cross-examination he would depose that after the marriage of Damodaran he lived for 10 more years and he does not know when the child was born to Damodaran. He would further depose that Damodaran was aged 45 or 50 years at the time of his death. It can be seen from the documents produced in this case that the first plaintiff was born in the year 1942, i.e. at the age of 50 years of Damodaran and even according to the plaintiff Damodaran died only in the year 1953 which means he would have been 61 years at the time of his death. Therefore the idea of PW2 with respect to the matters cannot be said to be correct. He would further depose that he does not know whether there was any ceremonies for the marriage. Further this witness does not state nothing about his participation in the alleged marriage. 8. DW1 is the 3rd defendant. She is the wife of the first defendant. She had been married only in the year 1947 and A.S. NO. 102 & 107 OF 1996 -10- she would depose that neither the first plaintiff nor Chiruthakutty had lived in that house and disputed about the marriage. Now it is in this backdrop the matter has to be analysed. For the purpose of analyzing the materials and to reach a conclusion it is desirable to understand the legal principles to be followed in these types of cases. 9. As submitted by the learned counsel for the respondents law is always in favour of legitimacy and the matter has to be analysed to find out the same. In order to establish the very said fact if there is direct evidence regarding the marriage, that is the end of it and no further proof is required. When there is no direct evidence or it is not possible to adduce evidence with respect to the marriage then the conduct of the parties and the long cohabitation together are positive indications to presume that the man and the woman had lived as husband and wife which in turn can lead to the conclusion regarding the marriage if there is the slightest evidence. So there must be either evidence regarding the marriage or positive proof regarding long cohabitation as man A.S. NO. 102 & 107 OF 1996 -11- and woman to draw the presumption of husband and wife. This has to be done or proved during the life time of those persons. So far as the marriage is concerned in this case there is absolutely no evidence worth mentioning of to prove that Chiruthakutty had been married by Damodaran. 10. Then the learned counsel for the plaintiffs in the case would strongly contend before me by relying upon the Supreme Court decision reported in Badri Prasad v. Dy. Director (AIR 1978 SC 1557). It was a case where for around 50 years a man and woman, as the facts in that case reveal, lived as husband and wife. Under those circumstances the Supreme Court held that when two persons had lived together as husband and wife for almost a half century the marriage cannot be thrown out. But so far as the present case is concerned it has to be stated there is absolutely no evidence anywhere in the plaint regarding the factum of marriage or regarding the place of marriage and regarding the cohabitation together in a particular place. If a man and woman had lived as husband and wife under the same roof at least there will be A.S. NO. 102 & 107 OF 1996 -12- one document to evidence the same. It is in this context I would like to state that, the plaintiff had produced S.S.L.C book of him to show that he joined high school section admittedly after the death of his father. But it is certain that he had joined the school during the life time of the father for the reason that he was born in 1942 and the earliest point of death of Damodaran was not earlier than 1953. So he was 11 years at the time of his father's death and if the husband and wife had lived together then under ordinary circumstances and that too in a society where there is male domination at that relevant point of time it must be the husband or normally the father who would have admitted the child in the school and there may be documents to establish the same. Strangely no document is forthcoming in that direction. Similarly there is not even a scrap of paper to evidence that Damodaran and Chiruthakutty lived under one and the same roof during the life time of Damodaran. All the documents we find is after the death of Damodaran. Except the birth certificate issued where the name of the father is shown as Damodaran there is A.S. NO. 102 & 107 OF 1996 -13- nothing to establish that the cohabitation existed to be proved in a case where marriage is not proved. The document referred to in the opening paragraphs of the judgment would certainly show that right from 1942 the name of the father of the first plaintiff is shown as Damodaran and in some of the documents the description of the house is named as Kattukandi Idathil and in some of them it is shown as somewhere in Puthiara and in some other documents it is shown as .......................... This ........................ is the name of wife house of the first plaintiff. Just because it is shown in the documents subsequent to the death of Damodaran that too after a period of 15 to 20 years of his death can one presume that Damodaran and Chiruthakutty lived as husband and wife under the same roof for long number of years. Certainly it cannot be and so the most positive evidence to draw the presumption u/s 114 of the Evidence Act, the preponderance of probability is lacking in this case and at the best I may say that the plaintiffs have only established the factum that the first plaintiff is born to A.S. NO. 102 & 107 OF 1996 -14- Damodaran in Chiruthakutty. In the absence of any materials to prove long cohabitation as man and woman and further in the absence of any evidence to prove the marriage one cannot find that the first plaintiff was born to Damodaran and Chiruthakutty in the wedlock. 11. Then the question would be with respect to the succession to the property. U/s 16 of the Hindu Marriage Act an illegitimate child is also not totally deprived of the right to get the father's property. But a reading of S.16 of the Hindu Marriage Act makes it clear that the child should have been born out of a marriage. The marriage may be void or voidable but the essential factum of marriage is a condition precedent. Further, if it is established that there is illegitimate son born in a void marriage as contemplated under the provisions of the Hindu Succession Act it can be only with respect to the separate property of the father and not of a joint family property. This has been decided in the decision reported in Krishnakumari Thampuram v. Palace Administration Board (2006(4) KLT 432) and Jinia Keotin v. Kumar A.S. NO. 102 & 107 OF 1996 -15- Sitaram (2003 (1) KLT 348). Therefore an analysis of the legal position would be as follows. 12. At the most it can be held that the plaintiffs have succeeded in proving that the first plaintiff Krishnan is born to Damodaran in Chiruthakutty. There is absolutely no evidence to show that Damodaran has married Chiruthakutty by direct evidence of marriage or any evidence to prove the long cohabitation to establish the relationship as valid which would draw a presumption under the provisions of law and lastly since the marriage is not proved S.16 of the Hindu Marriage Act also it would not come to the rescue of the plaintiffs. So the sum and substance of all these observations will only point out that the plaintiffs are not entitled to any share in the property and therefore the judgment and decree passed by the trial court has to be reversed and the suit for partition has to be dismissed and I do so. MMM 1 In the result A.S. Nos.102 and 107 of 1996 A.S. NO. 102 & 107 OF 1996 -16- are allowed and the judgment and decree of the trial court are set aside and the suit O.S.371/90 is dismissed but under the circumstances without any order as to costs. M.N. KRISHNAN, JUDGE. ul/- A.S. NO. 102 & 107 OF 1996 -17- M.N. KRISHNAN, J. = = = = = = = = = = A.S. NO. 102 & 107 OF 1996 = = = = = = = = = = = J U D G M E N T 5th January, 2009.