IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN WEDNESDAY, THE 8TH JUNE 2011 / 18TH JYAISHTA 1933 SA.No. 730 of 1997() -------------------- AS.25/1996 of SUB COURT,THODUPUZHA OS.76/1993 of MUNSIFF COURT, DEVIKULAM. .................... APPELLANT-APPELLANT-1ST DEFENDAT: ---------------------------------------------------------- RAMAKRISHNAN NAIR, SON OF NARAYANAN NAIR, CHAKKARAVELIL HOUSE, MANAKKAD, THODUPUZHA BY ADV. SRI.V.G.ARUN RESPONDENTS-RESPONDENTS-PLAINTIFFS AND 2ND DEFENDANT: ------------------------------------------------------------------------------------------------ 1. NARAYANAN NAIR, CHAKKARAVELIL HOUSE, MANAKKAD, THOUDUPUHA, DHANWANTHARI VAIDYASALA, BRANCH KILIMANOOR, TRIVANDRUM. 2. LEELAMANI, CHAKKARAVELIL HOUSE, NOW AT NEYYATTINKARA, TRIVANDRUM. 3. LALITHA, NOW RESIDING AT MAYOOR VIHAR, 59-D, POCKET 4, DELHI - 110091. R1 & R2 BY ADVS. SRI.G.UNNIKRISHNAN SRI.P.V.RAMESH SHANKAR SRI. G.P.SHINOD THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 08.06.2011, THE COURT ON 08/06/2011 DELIVERED THE FOLLOWING: VK P.BHAVADASAN, J. ------------------------------------- SA No.730 of 1997-C ------------------------------------- Dated this the 8th day of June 2011 Judgment The first defendant in OS No.76/93 before the Munsiff's Court, Devikulam, is the appellant. The parties and facts are hereinafter referred to as they are available before the trial court. 2. The suit was one for partition. The plaint schedule property admittedly belonged to one Bhavani Amma. She died on 28.06.1987. The first plaintiff is the husband of Bhavani Amma and the second plaintiff is her daughter. The defendants are also her legal heirs, who are entitled to ¼ share each. On the basis of these allegations, the suit was laid. 3. The suit was resisted by the first defendant, pointing out that the plaintiffs are not entitled to seek partition. The marriage between the first plaintiff and Bhavani Amma was disputed and as far as the second plaintiff was concerned, the contention was that at the time SA 730/97 2 of her marriage, her shares had already been granted and so, she is not entitled to any further share in the property. According to the first defendant, Bhavani Amma had legally married only once and the first defendant is the only son born to her in that marriage. On the basis of these contentions, he prayed for dismissal of the suit. 4. The second defendant supported the plaintiffs. 5. Issues were raised by the trial court and evidence was adduced. PWs 1 to 4 were examined and Exts.A1 and A2 were marked from the side of the plaintiffs. The defendants examined DW1 and had Exts.B1 and B2 marked. Ext.C1 commissioner's report was also marked. 6. The trial court found that Section 17 of the Hindu Succession Act is applicable and therefore, the first plaintiff is not entitled to any share in the property, but it was found that the second plaintiff is entitled to 1/3 share over the plaint schedule property. Accordingly, a preliminary decree was passed on the following terms : SA 730/97 3 “In the result, the suit decreed and a preliminary decree passed as follows : 1. 2nd plaintiff is entitled to get 1/3 share over plaint schedule property. 2. Actual division of the property by metes and bounds and separate possession are relegated to final decree proceedings. 3. 2nd plaintiff is entitled to costs.” 7. The defendant carried the matter in appeal as AS No.25/96 before the Sub Court, Thodupuzha and the first plaintiff chipped in with a cross appeal regarding denial of share to him. 8. The lower appellate court found the views of the trial court to be erroneous and held that the first plaintiff is also entitled to share. Accordingly, the preliminary decree of the trial court was modified and a modified decree was passed on the following terms : “In the result, the appeal is dismissed. Cross-objection is allowed. The decree passed by the lower court is set aside and a preliminary decree for partition is passed as SA 730/97 4 follows : 1. The plaintiffs' right to get separate possession on ¼ share each on partition of the plaint schedule property by metes and bounds is hereby declared. 2. The plaintiffs are entitled to get mesne profits from the first defendant. 3. The quantum of mesne profits shall be decided in final decree. 4. The plaintiff shall be entitled to get mesne profit proportionate to their share from the date of suit to the date they obtain possession of their share or till the expiry of three years from the date of decree whichever even first occurs. 5. The cost of the suit shall come out of the estate.” 9. The first defendant challenges the said decree in this second appeal. Notice is seen issued on the following questions of law raised in the second appeal : 1.When the plaintiffs have failed to prove the marriage set up by them, whether the court was legally correct in drawing a presumption of valid marriage on the basis of SA 730/97 5 the fact that the first plaintiff and deceased Bhavani Amma cohabited or some time ? 2.When a legal marriage is not prove whether the husband and illegitimate children could be legally created as legal heirs of the deceased Nair lady under Section 15 of the Hindu Succession Act ? 3.Whether the court below was legally correct in applying the principles o f Section 16 of the Hindu Marriage Act when the alleged marriage itself is not proved in the case? 10. The learned counsel for the appellant pointed out that the the plaint is totally silent regarding the marriage between the first plaintiff and Bhavani Amma and even the marriage between them was seriously disputed. There was a mention of the date in the evidence of PW1, but, that according to the learned counsel, was not sufficient to establish the marriage between them. According to the learned counsel for the appellant, the lower appellate court was not justified in holding that there SA 730/97 6 was a legal marriage between the first plaintiff and Bhavani Amma. 11. Per contra, the learned counsel for the respondents pointed out that even assuming that the date of marriage is not as such specified, long cohabitation between the parties as recognised by the society is evidence to their marriage and that is sufficient in law. Apart from the above presumption, there is a valid evidence by PW3, who speaks about the marriage. The learned counsel contended that the finding regarding the question of marriage is based on appreciation of evidence in the case and it is a question of fact and no substantial questions of law arise for consideration in the second appeal. 12. True, the plaint is silent regarding the date of marriage between the first plaintiff and Bhavani Amma. The parties and governed by the Hindu Succession Act. It is not in dispute that the plaint schedule property belongs to Bhavani Amma. It is true that PW3 speaks about the SA 730/97 7 marriage between the first plaintiff and Bhavani Amma. He speaks about the ceremonies carried out at the time of marriage. Apart from the above fact, it has come out in evidence that Bhavani Amma and the first plaintiff lived together for a long period and they were recognised as man and wife by people at large. Further, the evidence of PW1 would also evidence that there was a marriage between the first plaintiff and Bhavani Amma as a result of long cohabitation. The lower appellate court considered the evidence in considerable detail and came to the conclusion that there is a presumption of marriage between the first plaintiff and Bhavani Amma. As rightly pointed out by the learned counsel for the respondents, it is essentially a question of fact arrived at on appreciation of evidence. No substantial questions of law arise for consideration in this second appeal. The second appeal is devoid of any merits and it is accordingly dismissed. P.Bhavadasan, Judge SA 730/97 8 sta SA 730/97 9