IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 13TH OCTOBER 2010 / 21ST ASWINA 1932 AFA.No. 20 of 1999() -------------------- AGAINST THE JUDGEMENT/ORDER IN AS.471/1992 Dated 09/10/1998 OS.485/1988 of I ADDL.SUB COURT, THRISSUR .................... APPELLANT(S): RESPONDENT:DEFENDANT: ------------------------------------------------------------------ RAJAN, S/O.PUTHENVEETTIL GOVINDAN, THRITHALLOOR DESOM, VATANAPPILLY AMSOM, CHAVAKKAD TALUK. BY ADV. SMT.LEKHA SURESH RESPONDENT(S): APPELLANT:PLAINTIFF: ---------------------------------------------------------------- THANKAM, W/O. PUTHENVEETTIL RAJENDRA PRASAD, THRITHALLOOR DESOM, VATANAPPILLY AMSOM, CHAVAKKAD TALUK. BY SRI.P.G.PARAMESWARA PANICKER, SENIOR ADVOCATE, BY ADV. SRI.P.GOPAL. THIS APPEAL FROM FIRST APPEAL HAVING BEEN FINALLY HEARD ON 06/10/2010, THE COURT ON 13/10/2010 DELIVERED THE FOLLOWING: Kss ORDER ON CMP.NBO.2374/1999 IN AFA NO.20/1999 DISMISSED 13/10/2010 SD/- THOTTATHIL B.RADHAKRISHNAN,JUDGE SD/- P.BHAVADASAN, JUDGE /TRUE COPY/ P.A.TO JUDGE Kss THOTTATHIL.B.RADHAKRISHNAN & P.BHAVADASAN, JJ. ------------------------------------------------------------------------ AFA No.20 of 1999 ------------------------------------------------------------------------ Dated 13th October 2010 Judgment Bhavadasan, J. Having suffered a decree at the hands of the first appellate Court, the defendant in OS No.485/88 before the Sub Court, Thrissur, has come up in appeal. The parties and facts are hereinafter referred to, as they are available before the trial Court. 2. The plaintiff was married to the brother of the defendant, namely, late Rajendraprasad. The relationship between Rajendraprasad and his wife – the plaintiff, got strained and they decided to have a divorce. Prior to the divorce, there were some mediation talks and there was some transfer of properties and ornaments. It appears that the parties had agreed to have the divorce by mutual consent and they accordingly filed a petition under S.13B of the Hindu Marriage Act before the court concerned. While the petition was pending, Rajendraprasad left this AFA 20/1999 2 world. The property scheduled to the plaint belonged to Rajendraprasad. The plaintiff alleged that it was in the possession of the defendant, who was looking after the same and she sought recovery of the same from him. 3. The suit was resisted by the defendant, pointing out that at the relevant time, the plaintiff had lost the status of the wife of Rajendraprasad and therefore, she has no right over the suit property. It was also contended that since she was subsequently married, she is not entitled to any reliefs as prayed for in the suit. Several other contentions were also raised, which are not very relevant for the present purpose. 4. Before the trial Court, evidence was adduced from both sides. The trial Court was impressed by the defence set up and accordingly dismissed the suit. The matter was carried in appeal before this Court as AS No.471/92. This Court, on an appreciation of the evidence in the case, reversed the decree of the trial Court and decreed the suit as prayed for. Hence this appeal. AFA 20/1999 3 5. Before this court, the very same arguments were advanced as in the first appellate Court. It was vehemently contended that since the plaintiff had lost the status of the wife of Rajendraprasad at the time of his death and also since she had re-married subsequently, the plaintiff is not entitled to any relief. The learned counsel for the appellant also stressed that as a result of the mediation talks, the plaintiff had received the properties and thereafter, she had no manner of right over any property left behind by Rajendraprasad, her husband. 6. The learned counsel for the respondent, on the other hand, pointed out that merely because a petition had been filed for divorce, it does not mean that a divorce was, in fact, effected. No orders have been passed on that petition. For all practical purposes, therefore, the marriage will be deemed to have been subsisting as on the date of death of Rajendraprasad. It is also contended that re- marriage does not disinherit the plaintiff from succeeding to the property left behind by Rajendraprasad. AFA 20/1999 4 7. The learned single Judge has considered the matter in considerable detail and has held that the plaintiff is entitled to succeed. The said decision is reported as Thankam v. Rajan in AIR 1999 Kerala 62. The first appellate Court held in the said decision that (1) merely because a petition for divorce has been filed, it does not mean that a divorce has, in fact, been effected. (2) As on the date of death of Rajendraprasad, the plaintiff continued to retain the status of his wife and (3) Even if she was re-married later, that does not deprive her the right to succeed to the estate of Rajendraprasad. 8. We fail to see how any objection can be taken to any one of the above findings. Even assuming that the contention taken by the appellant before us that in pursuance of the mediation talks, preluding the divorce petition and in pursuance to which, the plaintiff had received properties, that could not in law, deprive her the right to inherit the estate left behind by Rajendraprasad, so long as she continued to be his wife. It is well settled AFA 20/1999 5 that unless a decree is obtained from a competent court of law, a divorce cannot be recognised. There is no dispute in this case that at the time of death of Rajendraprasad, no decree for divorce had been granted by any court and that the petition seeking divorce by mutual consent was pending. If that be so, as rightly held by the first appellate Court, the plaintiff continued to be the wife of Rajendraprasad. 9. Succession opens as on the date of death of the person. As on the date of death of Rajendraprasad, the plaintiff continued to be his wife and therefore, she succeeds to his estate. The mere fact that she has subsequently re-married, does not deprive of her right to inherit the property of her husband or to continue to hold the property as her own. On this aspect, the decision reported in Thankam v. Rajan (supra) was referred to with approval by the apex Court in the decision reported in Cherotte Sugathan v. Cherotte Bharathi (2008) 2 SCC AFA 20/1999 6 610). 10. No grounds are made out to interfere with the findings of the first appellate Court. This appeal is without any merits and it is accordingly dismissed. The parties will suffer their costs. THOTTATHIL.B.RADHAKRISHNAN, JUDGE P.BHAVADASAN, JUDGE sta AFA 20/1999 7