IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.N.KRISHNAN MONDAY, THE 16TH AUGUST 2010 / 25TH SRAVANA 1932 AS.No. 680 of 1996() --------------------------- OS.9/1995 of SUB COURT, VADAKARA .................... APPELLANT(S): PLAINTIFFS ----------------------------------------- *1 T.A. MANIKKAM, PUTHUPPANAM AMSOM, DESOM, VADAKARA.(DIED LR'S RECORDED) 2. SON T.A. VIJAYAN DO. 3. SISTER LEELA DO. *IT IS RECORDED THAT 2ND AND 3RD APPELLANTS AS THE LEGAL HEIRS OF THE DECEASED IST APPELLANT VIDE ORDER DT.D 11.10.06 IN MEMO C.F. NO.3867/06. BY ADVS. SRI.R.K.MURALIDHARAN SRI.R.PARTHASARATHY SRI.B.KRISHNAN RESPONDENT(S): DEFENDANT -------------------------------------------- VAYALIL CHIRUTHA, KARAMGARATH MEETHALE AMSOM PARAMB, VADAKARA AMSOM, DESOM, VADAKARA TALUK.(DIED) *ADDL. R2 TO R7 IMPLEADED. 2. YESHODA, D/O. LATE CHIRUTHA, AGED 57 YEARS, VAYALIL HOUSE, VADAKARA P.O., KOZHIKODE. 3. SOMASUNDARAN, AGED 50 YEARS, S/O. LATE CHIRUTHA DO. DO. 4. RAJAN, AGED 48 YEARS, DO. DO. 5. ANILKUMAR, S/O. LATE MUKUNDAN, AGED 32 YEARS, DO. DO. A.S. NO.680/1996 6. SAJANA MUKUNDAN, D/O. LATE MUKUNDAN, AGED 25 YEARS. DO. DO. 7. K.SULOCHANA, W/O. LATE MUKUNDAN, GGII-75 R, VIKASPURI, NEW DELHI 110 018. *THE LEGAL HEIRS OF THE DECEASED SOLE RESPONDENT ARE IMPLEADED AS ADDITIONAL RESPONDENTS 2 TO 7 VIDE ORDER DTD. 17.6.2010 IN IA. 4611/2009. ADDL. R2 BY ADV. SRI.N.L.KRISHNAMOORTHY ADDL. R3,R4, R7 BY SRI.K.LAKSHMINARAYANAN, SMT.SATHYASHREE PRIYA,K.A.MAYA THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 16/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss M.N. KRISHNAN, J. ........................................... A.S.NO.680 OF 1996 ............................................. Dated this the 16th day of August, 2010. JUDGMENT This is an appeal preferred against the judgment and decree of the Subordinate Judge's Court, Vadakara in O.S.No.9/1995. The suit is one for partition and the court below had dismissed the case. Aggrieved by the same, the plaintiffs have come up in appeal. The brief facts necessary for the disposal of the appeal are stated as follows: 2. Admittedly the property belonged to one Matha. Matha had four children namely Kumaran, Sankaran, Balan and Chirutha. The three sons pre deceased Matha. Under Section 26 of the Madras Marumakkathayam Act, the legal representative will be Chirutha. But if the death has taken place after coming into force of the Hindu Succession Act, then the provisions of the Act will apply and the children of pre deceased son or daughter will be entitled to succeed by the provisions of the Hindu Succession Act. So the crucial point for consideration is the date of death of Matha. It has to be stated that the plaint is couched in such a way that the date of death is not given anywhere. It : 2 : A.S.NO.680 OF 1996 is just stated that the death has taken in 1956 whereas, the defendant has got a specific contention in the written statement that the death had taken in the year 1954. 3. The learned counsel for the appellants also would contend before me that the defendant had not proved that the death is in 1954. I think the method of approach is that the plaintiffs have to prove that the death took place after 1956, i.e., after coming into force of the Hindu Succession Act and therefore they will be entitled to share over the property. The plaintiffs cannot shift the burden to the defendant. The learned counsel would contend that there is evidence of the plaintiffs in this case. It has to be stated that plaintiff was only a 14 year old boy at the time of death of Matha and what is stated is 1956 . 4. The word is only a subsequent innovation in the case. The Hindu Succession Act came into force only on 17.6.1956 and therefore unless it is positively proved that Matha died after coming into force of the Hindu Succession Act, the plaintiffs are out of : 3 : A.S.NO.680 OF 1996 court. The plaintiffs have not moved their little fingers to produce any document or to adduce any acceptable evidence of persons who had seen Matha alive in 1956. Mere interested assertion of the plaintiffs is not a substitute especially in the backdrop of Ext.B1. Ext.B1 is a certificate of death issued under the provisions of the Registration of Birth and Death Act, 1969. It is a document issued under the statute. Here the date of death is shown as 1.8.1954. The name of the father is shown as Kurumban. The registration number is given as 19/54 and the date of registration is 4.8.1954. 5. Therefore the statutory authority entitled to issue the certificate had issued it in the ordinary course of business and it is a public document which requires some credence to be attached under Section 35 of the Evidence Act. If there had been two conflicting documents, certainly this Court would have directed for better materials in support of the contention. But here is a case where the plaintiffs' evidence is totally untrustworthy and the plaintiffs have not succeeded in proving that Matha died only : 4 : A.S.NO.680 OF 1996 after coming into force of the Hindu Succession Act. Therefore the approach made by the trial court is only proper and in the absence of any evidence that Matha died after the coming into force of Hindu Succession Act, it goes without saying that the plaintiffs are not entitled to any relief. 6. The learned counsel for the appellants wants me to note that Ext.B1 does not prove that it is Matha's death certificate. As stated by me earlier, the plaintiff have not produced any piece of paper worth of acceptance. Therefore I am not going to dwell deep into that matter. It has further to be stated that PW1 has admitted in Ext.B1 that . It seals the case of the plaintiffs. Therefore the judgment and decree of the trial court do not call for any interference and it is dismissed but under the circumstances without any order as to costs. M.N. KRISHNAN, JUDGE. cl : 5 : A.S.NO.680 OF 1996 M.N. KRISHNAN, J. ........................................... A.S.NO.680 OF 1996 ............................................. 16th day of August, 2010. J U D G M E N T