IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR MONDAY, THE 21ST JANUARY 2008 / 1ST MAGHA 1929 SA.No. 914 of 1994(A) ------------------------------- AS.1/1988 of SUB COURT, PATHANAMTHITTA OS.276/1984 of MUSNIFF COURT,ADOOR .................... APPELLANT / APPELLANT IN AS. 1/88/3RD & 4TH DEFENDANTS. ------------------- 1. SIVARMA PILLAI, AGED 46 YEARS, BUSINESS, RESIDING AT PALAKUNNIL THEKKETHIL HOUSE, IYCAUD MURI, DODUMON VILLAGE. 2. RAMANI, W/O. SIVARAMA PILLAI, AGED 39, HOUSE WIFE, RESIDING AT DO. DO. BY ADV. SRI.K.V.JAYACHANDRAN RESPONDENTS: RESPONDENTS IN A.S. 1/88/PLAINTIFFS & DEFENDANTS 1&2. ------------------------ 1. VELUMPIKUTTY, AGED 43, HOUSE WIFE, MADATHINAL MELE MURI HOUSE, IYCAUD MURI, KODUMON VILLAGE. 2. PODIP PENNU, AGED 53, RESIDING AT MANOORETHU HOUSE, ANGADICKAL , VADAKKEKARA MURI, ANGADICAL VILLAGE. 3. MURALI , AGED 23, AGRICULTURIST, RESIDING AT DO. DO. 4. KARTHYAYANI , AGED 43, RESIDING AT VELLAKUNNIL HOUSE , ERUMAKUZHY MURI, PALAMEL VILLAGE. 5. KALI, D/O. CHAKKI, AGED 58, RESIDING AT KOCHANTAYYATHU HOUSE, PONGALADI MURI, PANDALAM, THEKKEKARA VILLAGE. R4 & R5 BY ADV. SRI.A.K.R.ELAYEEDAM R1 BY ADV. SRI.M.NARENDRA KUMAR SRI.K.RADHAKRISHNAN (P) THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 21/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: SA. NO.914/1994 ORDER ON CMP. NO.2042/1994 IN SA. NO.914/1994 DISMISSED. 21.01.2008 SD/- M.SASIDHARAN NAMBIAR, JUDGE /TRUE COPY/ P.A. TO JUDGE tss M.SASIDHARAN NAMBIAR,J. ------------------------------------------ S.A.NO.914 OF 1994 ------------------------------------------ Dated 21st January 2008 J U D G M E N T Defendants 3 and 4 in O.S.276/1984 on the file of Munsiff court, Adoor are the appellants. Responds 1 to 3 are plaintiffs and other respondents the other defendants. Second appellant is the wife of first appellant. Suit was filed claiming partition and allotment of the share of respondents 1 to2. Plaint schedule property is 39 cents in R.S.96/21 of Kodumon village which is the part of 69 cents, in that survey number excluding the northern 30 cents which is covered under Ext.A1 settlement deed executed by Chandran and his wife Chakky in favour of first respondent, one of their daughters. Respondents 2 and 3 who are plaintiffs 2 and 3 claimed that second respondent is the legally wedded wife and third respondent the son born of Neelakantan, brother of respondents 4 and 5. Chandran and Chakky have five children. They are deceased Velumbi, deceased Karumbi, respondents 4 and 5, the defendants 1 and 2 and SA 914/94 2 Neelakantan. First respondent is the daughter of deceased Velumbi and her only legal heir. Karumbi admittedly died as a spinster. On her death her rights admittedly devolved on her mother and sisters and brother. According to the appellants and respondents, Neelakantan was not heard of for more than 20 years prior to the institution of the suit and is presumed to be dead. Respondents 1 to 3 claimed that Neelakantan had married second respondent and third respondent was born in that wedlock and they are entitled to the share due to Neelakantan. Respondents 1 to 3 contended that 69 cents in R.S.No.96/21 originally belonged to Chandran and he along with wife Chakky executed Ext.A1 and transferred the right in respect of the northern 30 cents in favour of first respondent and plaint schedule property is the remaining property out of that 69 cents and they are in joint possession of the property along with respondents 4 and 5 and therefore first respondent is entitled to one share and respondents 2 and 3 together are entitled to one share due to Neelakantan. Defendants 1 and 2, the respondents 4 and 5, resisted the suit contending that plaint schedule property did not belong to Chandran and it belongs to Chakky alone and under Ext.B1 settlement SA 914/94 3 deed dated 3/12/1973, she gifted the property in favour of the daughters, respondents 4 and 5 and first respondent being the legal heir of Velumbi is not entitled to claim any share. It was contended that Neelakantan did not marry second respondent and third respondent is not his son and Neelakantan was left the place as a bachelor and thereafter he was not heard of and respondents 1 to 3 are not entitled to claim any share. It was further contended that respondents 4 and 5 under Exts.B4 and B5 assignment deeds executed on 10/7/1985 and 23/7/1984 alienated their right in the property in favour of second appellant and therefore only second appellant is entitled to a right in the property and first appellant is her husband. 2. Learned Munsiff on the evidence of Pws.1 to 3 and Dws.1 to 3 found that plaint schedule property is part of 69 cents jointly belonged to Chandran and Chakky and under Ext.B1 Chakky is not entitled to transfer the rights of Chandran, which devolved on his legal heirs and therefore Ext.B1 is void ab initio as far as the one half share of Chandran is concerned. It was found that it is valid in respect of the remaining one half share of Chakky to the plaint schedule property and on the death SA 914/94 4 of Chandran his half right in the plaint schedule property devolved on the legal heirs and it is available for partition. Learned Munsiff also found that respondents 2 and 3 are claiming share to plaint schedule property as the wife and son of Neelakantan and first respondent who is the daughter of one of the daughters of Chandran and Chakky admitted that second respondent married Neelakantan and third respondent is the son of Neelakantan and evidence of PW2 establish that she is the widow of Neelakantan and the evidence of PW3 further strengthens that evidence. It was therefore held that respondents 2 and 3, being the widow and son of Neelakantan are entitled to his share. Holding that on the death of Chandran his one half right devolved on the legal heirs and under Exts.B4 and B5 respondents 4 and 5 alienated their right, which are not binding on respondents 1 to 3 plaint schedule property is liable to be divided into 8 equal shares and first respondent is entitled to get her 1/8 share and respondents 2 and 3 together are entitled to 1/8 share due to deceased Neelakantan and respondents 4 and 5 are entitled to the remaining 6/8 shares, learned Munsiff passed a preliminary decree directing allotment of 1/8 share SA 914/94 5 together to first respondent and 1/8 share to respondents 2 and 3. That preliminary decree was challenged before Sub court, Pathanamthitta in A.S.1/1988. Learned Sub Judge on re-appreciation of evidence confirmed the findings of learned Munsiff and dismissed the appeal. It is challenged in second appeal. 3. Second appeal was admitted formulating the following substantial questions of law. 1) Whether first appellate court was justified in not considering the facts and evidence independently and confirming the finding of the trial court, without independent appreciation of evidence and assigning reasons. 2) Whether Chakky being the widow of Chandran, is not entitled to inherit to the estate of her husband Chandran along with the children and if so, whether quantification of the shares by the courts below is correct. 3) When under Ext.B1 Chakky transferred her entire rights in favour of respondents 4 and 5 who in turn under Exts.B4 and B5 transferred it in favour of second appellant, whether courts below were SA 914/94 6 justified in not holding that fifth respondent is entitled to the remaining shares. 4. Though respondents 1 to 3 appeared through Adv.Narendrakumar, when the appeal was taken up the learned counsel was absent. Respondents 1 to 3 called, were absent. They were set ex-parte. 5. Learned counsel appearing for appellants was heard. 6. Though appellants contended that plaint schedule property belongs to Chakky, trial court and first appellate court on the evidence found that it jointly belonged to Chakky and her husband Chandran. Though in Ext.B1 executed by Chakky, whereunder her right in the property was settled in favour of respondents 4 and 5, asserted that the property belongs to her, Exts.A1 and A2 with Ext.B1 establish that plaint schedule property is the remaining 39 cents out of 69 cents, excluding 30 cents covered under Exts.A1 and A2. Under Ext.A1 executed on 25/11/1965 Chandran and his wife Chakky jointly transferred the northern 30 cents in favour of first respondent, who is none other than daughter of Velumbi, their deceased daughter. Ext.A2 was another settlement deed executed by them earlier in SA 914/94 7 respect of the said 30 cents, in favour of first respondent and Thankappan. It was cancelled under Ext.A1 and the property was thereafter settled in the name of first respondent. In Exts.A1 and A2 Chandran and Chakky asserted that the 69 cents jointly belonged to them. Though in Ext.B1, Chakky later asserted that property exclusively belonged to her, as is clear from Exts.A1 and A2 the property originally jointly belonged to Chakky and Chandran. Therefore Chakky has no absolutely right in the property. As rightly found by courts below Chakky had only one half right and the remaining one half right vested with Chandran. 7. On the death of Chandran his rights definitely devolved on his widow and children. Out of the children, it is admitted case that Karumbi died before marriage and without leaving any issues. Therefore on her death her rights devolved on other children of Chakky as well as Chakky. There is no evidence as to when exactly Neelakantan died. Courts below drawn inference on the death of Neelakantan as his whereabouts was not heard of for more than the requisite period. Courts below found that he is no more. That finding of courts below was not disputed by any of the parties. Admittedly Chandran died SA 914/94 8 in 1975 and Chakky died in 1976. In the absence of evidence to prove the exact date or year of death of Neelakantan, it cannot be found that Neelakantan died prior to the date of death of Chandran or Chakky. 8. Respondents 2 and 3 are claiming share due to Neelakantan on the edifice that second respondent is the legally wedded wife and third respondent the son of Neelakantan. Respondents 4 and 5 sisters of Neelakantan disputed that case and contended that Neelakantan was unheard of when he was bachelor and he had not marry second respondent. As respondents 2 and 3 are claiming right in the property as the legally wedded wife and son of Neelakantan and that fact was denied, it is for them to prove that Neelakantan had married second respondent and third respondent was born in that wedlock. Argument of the learned counsel is that though trial court upheld the case of plaintiffs, first appellate court did not independently consider the evidence and fact that trial court did not appreciate the evidence in the proper perspective was omitted to be taken note of by the first appellate court and therefore finding that second respondent is the widow and third respondent is the son of Neelakantan is not sustainable. There is force in the SA 914/94 9 submission of the learned counsel. 9. Judgment of first appellate court establish that learned Sub Judge did not re-appreciate the evidence as he is bound to, while considering first appeal. Being the final fact finding court first appellate court should have re-appreciated the evidence and decided the dispute on the evidence recording the reasons. Question whether respondents 2 and 3 are the legal heirs of deceased Neelakantan, which was decided in their favour by the trial court in para 14 of the judgment, was considered by the first appellate court in paragraph 7 as follows. “Trial court has considered the evidence regarding this points in detail. The trial court correctly accepted the case of the first plaintiff who is a legal representative of Chandran, in coming to the conclusion that plaintiffs 2 and 3 are the wife and child of Neelakantan. The evidence let in by PW2 (the second plaintiff) is a complete answer for the contention raised by the defendants. The trial court has relied on the evidence of PW2 come to a finding that the plaintiffs 2 and 3 are the wife and child of deceased Neelakantan. The conclusion of the trial court is based on the legal evidence tendered in this case and does not call for SA 914/94 10 any of interference by the appellate court.” As rightly argued by the learned counsel appearing for appellant there was no independent appreciation of evidence of Pws.2 and 3 or the effect of admission made by PW1 or the value of admission. True, first respondent who was examined as PW1 deposed that Neelakantan had married second respondent and third respondent was born in that wedlock. As rightly argued by learned counsel evidence of PW1 shows that though she claimed that Neelakantan married second respondent, her evidence is not based on her personal knowledge with regard to the marriage. According to PW1, Neelakantan left the place while he was aged about 8 or 10. When she was cross examined further, she deposed that she cannot say what was her age when Neelakantan left the place. She also deposed that Neelakantan had married second respondent about 20 years prior to the date of her examination and she did not attend the marriage and Neelakantan had left the place 10 years prior to Ext.A2. Ext.A2 was executed in 1963. If that be so, Neelakantan might have left the place in 1953. PW1 was aged 35 years when she was examined as PW1 in 1987. If that be so, she might have SA 914/94 11 been born in 1952. Evidence of PW2 who claim that he attended the marriage of Neelakantan and it was thirty years back. If so, marriage could have been in 1957. Both cannot go together. If so, she could not have any personal knowledge with regard to the marriage. Therefore, based on the admission of PW1 it is not possible to enter a factual finding that second respondent is the legally wedded wife of Neelakantan. 10. PW3 was examined to prove the marriage. Trial court accepted the evidence of PW3 holding that evidence of PW3 shows that he attended the marriage of Neelakantan. Learned counsel argued that veracity and acceptability of the evidence of PW3 was not properly considered by the trial court and first appellate court did not appreciate the evidence at all. Evidence of PW3 in chief examination was that he knows about the marriage of second respondent and Neelakantan and the marriage was at her house at Manissery and Neelakantan was a native of Iycaud and it was his father who had taken initiative for the marriage. In cross examination PW3 deposed that marriage was 30 years prior to the date of his examination and he was one of the persons who attended the marriage in the bride party and along with SA 914/94 12 bridegroom party about 25 people attended the marriage. If that be the case, marriage of second respondent was around about 1957 as he was examined in 1987. Evidence of second respondent when examined as PW2 was that her marriage with Neelakantan was 10 to 27 years before the date of her examination at her house at Angadickal. It was deposed by PW2 that Neelakantan deserted her 10 to 29 years back and after the marriage she was living with Neelakantan at his house at Iycaud and being the legal heirs she and her son are entitled to get a share. PW2 in cross examination deposed that third respondent son was studied in Angadickal school and he had studied up to second standard. As rightly argued by the learned counsel if that be so, if the school admission register was produced it would establish that third respondent is shown as son of Neelakantan. It would have supported the case of respondents 1 to 3 that second respondent had married Neelakantan. No acceptable evidence was placed before the court to prove the marriage or the paternity. Though it was deposed by PW2 that Neelakantan had written letters to her, they were not produced. True, PW2 also deposed that she lost those letters. On appreciation of the entire evidence it is clear that respondents 1 to 3 SA 914/94 13 did not adduce supplement evidence to establish that Neelakantan married second respondent and third respondent was born in that wedlock. Best evidence which should have been produced to establish that fact was not produced. In such circumstances, an adverse inference should have been drawn against respondents 1 to 3. On the evidence courts below were not justified in finding that respondents 2 and 3 are the wife and son of Neelakantan and they are entitled to his share. As Neelakantan is not heard of and there is no satisfactory evidence to prove that Neelakantan had married before he left the native place when it is presumed that Neelakantan is no more, that share would also devolve on other legal heirs including mother and sisters. 11. Even though Chakky is not entitled to transfer plaint schedule property, under Ext.B1, as if it is her absolute property, she is competent to transfer her right. Therefore Ext.B1 is valid in respect of her one half right. Respondents 4 and 5 are entitled to the share of Chakky under Ext.B1 as well as the share due to them as the legal heir of Chandran. Under Ext.B1 they are entitled to the 4/8 share due to Chakky and 2/8 shares as legal heirs of Chandran. Being their assignees under SA 914/94 14 Ext.B4 and B5 respondents 4 and 5 are entitled to that right. On the facts and evidence courts below were not justified in holding that second appellant is entitled to the independent shares of respondents 4 and 5 as well as share of Chakky obtained by them under Ext.B1. 12. Courts below found that on the death of Chandran his one half right in the plaint schedule property is to be divided among his legal heirs. It was found that first respondent is entitled to 1/8 share and respondents 2 and 3 together are entitled to 1/8 share. In view of the finding that they failed to establish that second respondent is the widow and third respondent is the son of Neelakantan, respondents 2 and 3 are not entitled to any share as granted by courts below. On the death of Chandran he had only one half right in the plaint schedule property. That right devolved on his wife Chakky and children Velumbi, Karumbi respondents 4 and 5 and Neelakantan. Right of Karumbi and Neelakantan also devolved on others. Therefore, on the death of Chandran Chakky, respondents 4 and 5 and first respondent the daughter Valumbi are entitled to one share each. They are thus entitled to 1/8 share each. First respondent is therefore entitled to 1/8 share as found by courts below. SA 914/94 15 In view of Ext.B1, respondents 4 and 5 are entitled to 1/8 share due to Chakky as well as their independent 1/8 share each. Those shares were alienated under Exts.B4 and B5. Second appellant is entitled to that shares. 13. Appeal is therefore allowed. Preliminary decree and judgment passed by Munsiff and confirmed by Sub Judge in O.S.276/1984 and A.S.1/1988 are modified as follows: Plaint schedule property is available for partition. It will be divided into eight equal shares. First respondent/first plaintiff is entitled to one share. Fourth defendant/second appellant is entitled to remaining shares due to defendants 4 and 5. First plaintiff is also entitled to the share profits, quantum of which shall be determined in the final decree. M.SASIDHARAN NAMBIAR, JUDGE. uj. SA 914/94 16 ============================= M.SASIDHARAN NAMBIAR,J. JUDGMENT S.A.NO.914 OF 1994 21st January 2008 ============================