IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR WEDNESDAY, THE 6TH JULY 2011 / 15TH ASHADHA 1933 RSA.No. 855 of 2010() --------------------- AS.93/2004 of DISTRICT COURT, KASARAGOD OS.58/2001 of SUB COURT, HOSDRUG .................... APPELLANTS/APPELLANTS/DEFENDATNS 2 & 3. ---------------------------------------------------------- 1. K.E.RADHA, W/O.T.C.C.KRISHNAN VARMA RAJA AGED 74 YEARS,VADAKKAMADOM, NEAR NILESWARAM THALIYIL TEMPLE,POST NILESWARAM, KASARAGOD DISTRICT. 2. K.E.UMA, D/O.T.C.C.KRISHNAN VARMA RAJA, A0ED 47 YEARS,VADAKKAMADOM, NEAR NILESWARAM THALIYIL TEMPLE,POST NILESWARAM,KASARAGOD DISTRICT BY ADV. SRI.V.T.MADHAVANUNNI SRI.V.A.SATHEESH RESPONDENT(S): RESPONDENTS/PLAINTIFF & DEFENDATN NO.1. ------------------------------------------------------ 1. SUMANGALA.K, W/O.K.E.KRISHNARAJ, ANNUR, VELLUR VILLAGE, TALIPARAMBA TALUK. 2. THE BRANCH MANAGER, L.I.C. OF INDIA KANHANGAD BRANCH, POST KANHANGAD, HOSDURG TALUK. ADV. SRI.C.VIVEK FOR R2 SRI.MAHESH V RAMAKRISHNAN FOR R1 THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 06/07/2011, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J ........................................... RSA No.855 OF 2010 ............................................ DATED THIS THE 6th DAY OF JULY, 2011 JUDGMENT Defendants 2 and 3 in O.S.58 of 2001 on the file of Sub Court, Hosdurg are challenging the preliminary decree granted in favour of the first respondent plaintiff as confirmed by District Court, Kasargod in A.S.93 of 2004. First respondent instituted the suit for partition of insured the amount under six insurance policies, due to Krishna Raj contending that Krishna Raj married her on 13.11.2000 at Annur Sree Mahavishnu Temple in accordance with the custom prevailing among Hindus and she has been living as the wife of Krishna Raj and she left the house on 19.11.2000. Krishna Raj died on 27.6.2001 due to illness. First respondent contended that on his death, his rights devolved on the first respondent and first appellant, the mother, and they are entitled to equal shares and second appellant was the nominee of the insurance policies and second appellant has no right for that amount and first respondent is entitled to get her share due under the policies from second respondent insurance company. RSA 855/2010 2 Second respondent in the written statement admitted the insurance policies and contended that under Section 39 of the Insurance Act, the mother first appellant is the nominee and she had intimated the death of the policy holder Krishna Raj to the insurance company and claimed the amount and the second respondent on verification found that the nominee is entitled to receive the amount and therefore paid the amount to the first appellant and therefore first respondent is not entitled to the decree as against her. The appellants filed a written statement contending that first respondent has no right in the assets of the deceased Krishna Raj who is the son of Adv.Sri T.C.Krishnavarma Raja and Krishna Raj died on 26.6.2001 and in all insurance policies mentioned in the plaint the mother first appellant is the nominee and she alone is entitled to the amount. It is contended that first respondent is not the legally wedded wife of deceased Krishna Raj or the legal heir of Krishna Raj and she is an impostor and she has no right to claim the insurance amount or any assets of Krishna Raj and therefore the suit is to be dismissed. 2. Learned Sub Judge, on the evidence of Pws 1 and 2 and RSA 855/2010 3 Exts.A1 to A11 granted a preliminary decree finding that first respondent is the legally wedded wife of Krishna Raj and on the death of Krishna Raj, first respondent and first appellant, mother are the legal heirs who are entitled to equal rights and therefore first respondent is entitled to get half of the amount due under the insurance policies and held that first respondent is entitled to Rs.1,30,915.50 and the first appellant is entitled only for the balance amount. Appellants challenged the judgment before District Court, Kasargod in A.S.93 of 2004. Learned District Judge, on reappreciation of evidence confirmed the findings of learned Sub Judge and dismissed the appeal. It is challenged in the second appeal. 3. Learned counsel appearing for appellants was heard. 4. The argument of the learned counsel is that the courts below did not properly appreciate the law and the evidence. It was argued that when the marriage is disputed, it is for the first respondent to plead and prove that there was a legal marriage with deceased Krishna Raj. The argument is that apart from a vague allegation in the plaint that marriage was in accordance with the custom prevailing in the Hindu community, the details of RSA 855/2010 4 the ceremony was not pleaded. Learned counsel would argue that though Pws 1 and 2 were examined their evidence would not establish that there was a legal marriage. The argument is that the essential ingredient of a marriage under Hindu law is `sapthadi' which was not performed and in such circumstances, the finding of courts below that first respondent is the legally wedded wife of Krishna Raj is unsustainable. Reliance was placed on the decisions of the Honourable Supreme Court in Bhaurao Shankar Lokhande and another V. The State of Maharashtra (AIR 1965 SC 1564), Surjit Kaur V. Garja Singh and others (AIR 1994 SC 135) and the decisions of High Court of Punjab and Haryana in Garja Singh and another V. Surjit Kaur and another (AIR 1991 Punjab and Haryana 177) and Balwinder Kaur V. Gurmukh Singh (AIR 2007 Punjab and Haryana 74). The learned counsel would point out that the evidence of PW1 would only show that a ceremony was conducted but it does not satisfy the essential ceremonies to be performed and therefore there is no legal marriage. 5. The copy of the plaint made available shows that in paragraph 3 of the plaint, first respondent has specifically RSA 855/2010 5 pleaded that on 13.11.2000, at Annur Sree Mahavishnu Temple K.E.Krishna Raj, the son of the first appellant married her in accordance with the custom prevailing in the Hindu community and after marriage she was taken to the house of Krishna Raj at Neeleshwar and they resided there as husband and wife. This pleading was not seen denied in the written statement filed by appellants. The denial is in paragraph 4 of the written statement which is only to the effect that “ plaintiff is not the legally wedded wife of deceased Krishna Raj or the legal heir of Krishna Raj”. There is no specific denial that no marriage was conducted on 13.11.2000 at Annur Sree Mahavishnu Temple. There is also no denial of marriage being conducted in accordance with the custom prevailing in the community. The only case is that first respondent is not the legally wedded wife. If the argument of learned counsel appearing for appellant is true the contention is not that there was no marriage was conducted but at the time of marriage the essential ceremony to be performed was not performed and therefore there was no legal marriage. But such a contention is not taken in the written statement. The evidence has to be appreciated in the light of this pleading. RSA 855/2010 6 6. Copy of the deposition of Pws 1 and 2 made available would disclose that the evidence of PW1 that Krishna Raj married her at Annur Sree Mahavishnu Temple on 13.11.2000 or the details of the ceremonies performed or Ext.A4 photographs taken at the time of marriage ceremony showing even the presence of the father of Krishna Raj, were not denied. On the other hand, what was suggested to Pws 1 and 2 was that the relatives of first respondent persuaded Krishna Raj to marry her and due to the compulsion of Krishna Raj, his father agreed for the marriage. It is further suggested that for divorce the relatives of the first respondent had demanded Rs.5 lakhs. In the light of this evidence, it is not open to appellants to contend that there was no marriage. In the light of these contentions and evidence, I do not find any reason to interfere with the factual findings of the courts below that there was a lawful marriage. The decisions relied on by the learned counsel appearing for appellants has no application on the facts of this case, when the marriage conducted on 13.11.2000 at Annur Sree Mahavishnu Temple was not denied in the written statement or even when PW1 was examined and it was suggested that Krishna Raj had insisted for RSA 855/2010 7 the marriage with the first respondent and his father has agreed for the marriage and subsequent to the marriage, the relatives of the first respondent demanded money for agreeing for divorce. In such circumstances, no substantial question of law is involved. Appeal is dismissed. M.SASIDHARAN NAMBIAR, JUDGE lgk