IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN FRIDAY, THE 29TH AUGUST 2008 / 7TH BHADRA 1930 RSA.No.109 of 2008 (D) ---------------------------- AS.177/2005 of SUB COURT,KOTTARAKKARA OS.587/2002 of MUNSIFF COURT, KOTTARAKKARA .................... APPELLANTS IN R.S.A/APPELLANTS IN A.S./PLAINTIFFS ------------------------------------------------------------------ 1. SAVITHRI JAYARANI, EDAYILE VEEDU, IRUMPANANGADU MURI, EZHUKONE VILLAGE, KOTTARAKKARA TALUK, KOLLAM DISTRICT. 2. SAVITHRI, EDAYILE VEEDU, IRUMPANANGADU MURI, EZHUKONE VILLAGE, KOTTARAKKARA TALUK, KOLLAM DISTRICT. BY ADV. SRI.B.MOHANLAL SRI.SAIJU. S RESPONDENT IN R.S.A/RESPONDENT IN A.S/DEFENDANT ------------------------------------------------------------------- OMANASHYLAJA, BICHU BHAVAN, IRUMPANANGADU MURI, EZHUKONE VILLAGE FROM PAREKIZHAKKETHIL VEEDU, IRUMPANANGADU MURI, EZHUKONE VILLAGE, KOTTARAKKARA TALUK, KOLLAM DISTRICT. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 29/08/2008, ALONG WITH RSA NO.110 OF 2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ R. S. A. Nos.109 & 110 of 2008 ------------------------------------------------ Dated this the 29th day of August, 2008 JUDGMENT Both these appeals arise out of O.S.587/02 on the file of the Munsiff's Court, Kottarakkara and the plaintiffs are the appellants. They instituted O.S.587/02 aforesaid inter alia on the allegation that the first appellant is the sister and the second appellant is the mother of deceased Sudheer Kumar who passed away on 06/02/01; that Prasad/the father of the said Sudheer Kumar and husband of the second plaintiff was employed in Kallada Irrigation Project, Kottarakkara; that Prasad died on 17/09/92 leaving behind his widow Savithree, Sudheer Kumar Rani and the first plaintiff who are his children that on the death of Prasad his legal heirs consented for employment under the dying-in-harness scheme being given to Sudheer R. S. A. Nos.109 & 110 of 2008 -2- Kumar; that accordingly Sudheer Kumar who got employment joined as L.D. Clerk in Kallada Irrigation Project, Thenmala on 05/06/95; that on 06/02/01 he passed away unmarried and issueless; that under the provisions of Hindu Succession Act, the appellants/plaintiffs alone are the legal heirs and the first plaintiff is entitled to get job under dying- in harness scheme and she filed application before the Executive Engineer, Kallada Irrigation Project, Thenmala Division for the purpose on 29/01/02; that on 21/03/02 she was directed to produce a legal heirship certificate; that she filed an application before the Tahsildar, Kottarakkara on 25/03/02 for issuance of legal heirship certificate whereupon she came to know that heirship certificate was already issued to the respondent who claimed that she is the legally wedded wife of late Sudheer Kumar and the R. S. A. Nos.109 & 110 of 2008 -3- respondent is making preparation for getting the retirement benefits as well; and therefore, a declaration has to be granted that the defendant is not the legally wedded wife of Sudheer Kumar and plaintiffs alone are the legal heirs of deceased Sudheer Kumar. They also prayed for an injunction restraining defendants from claiming any service benefit of late Sudheer Kumar. 2. The suit was resisted by the respondent/defendant. She contended that Sudheer Kumar who was employed as L.D. clerk in Kallada Irrigation Project, Thenmala died in between 04/02/01 and 06/02/01 under suspicious circumstances and under the provisions of Hindu Succession Act, the defendant/her son and the second plaintiff alone are the legal heirs of Sudheer Kumar and first plaintiff is not a legal heir and she is not entitled to get employment under the R. S. A. Nos.109 & 110 of 2008 -4- dying-in-harness Scheme consequent on death of Sudheer Kumar; and further that the Tahsildar, Kottarakkara has already issued a legal heirship certificate in favour of herself and her son after conducing proper enquiry. According to her, the marriage between Sudheer Kumar and herself was solemnised as per Hindu Religious Customs existing in Pulaya community and the marriage certificate was also produced before the Tahsildar; and that the marriage was solemnised in the presence of also the plaintiffs and the father of Sudheer Kumar and the attempt of the plaintiffs is to exclude the defendants and her son from getting the retirement benefits. She also contended that the second plaintiff gave statement before the Tahsildar that she has no objection in giving employment to the defendant under the dying- in-harness Scheme. She also advanced a counter claim for a decree declaring that her son and R. S. A. Nos.109 & 110 of 2008 -5- herself along with the second plaintiff alone are the legal heirs of deceased Sudheer Kumar and that the heirship certificate issued by the Tahsildar is valid. 3. A replication also was filed by the appellants/plaintiffs disputing the status of the defendant and her son as widow and son of deceased Sudheer Kumar. 4. The trial court raised necessary issues for trial and considering the rival contentions in the light of the evidence adduced at trial which consisted of oral evidence of PW1 and DWs.1 to 4 and documentary evidence Ext.A1 and A2, Exts.B1 to B10 and Ext.X1 dismissed the suit, but allowed the counter claim and granted a decree to the respondent/defendant declaring that herself the second plaintiff and Bichu S. Kumar who is the son of the respondent are the legal heirs of late Sudheer Kumar and that the heirship R. S. A. Nos.109 & 110 of 2008 -6- certificate issued to her accordingly by the Tahslidar is valid. 5. The appellants/plaintiffs filed A.S.177/05 and A.S.176/05 respectively against the dismissal of their suit and assailing the decreeing of the counter claim. Both the appeals were dismissed by the first appellate court concurring with the findings of the trial court. R.S.A.109/08 is against decree and judgment in A.S.177/05 and R.S.A.110/08 is against the decree and judgment in A.S.176/05. 6. When these appeals came up for admission hearing, learned counsel for the appellant submitted that late Sudheer Kumar was having a LIC policy wherein the nominee is the second appellant and that the appellants are prepared to make payment of some amounts to the respondent and to settle the matter and for effectuating the settlement the case be adjourned granting two weeks' time. R. S. A. Nos.109 & 110 of 2008 -7- Accordingly, the case was adjourned to 30/07/08 granting two weeks' time and on his request further extension of time was granted by one month and it is accordingly, that this case is posted to this day. 7. Counsel reported that no settlement has been arrived at as the amount due from the LIC has not been received. There is no meaning in waiting for the LIC to disburse the amount for consideration of these two appeals for the purpose of admission. 8. Heard the counsel for the appellants on the merits of the case. It is fairly conceded by the counsel for the appellants that the first respondent and his son as also the second appellant/mother of deceased Sudheer Kumar will be the legal heir of deceased Sudheer Kumar to the exclusion of the first plaintiff as per Hindu Succession Act provided of course there is a valid marriage R. S. A. Nos.109 & 110 of 2008 -8- between Sudheer Kumar and the respondent. So, the only question is as to whether there was a valid marriage between Sudheer Kumar and the respondent. I Have gone through the judgments of both the trial court and the first appellate court and both the courts have considered this aspect in all meticulous details and it is on a proper evaluation of the evidence that the courts below have concurrently come to the conclusion that the respondent is the legally wedded wife of late Sudheer Kumar. 9. It is contended before me by the learned counsel for the appellant that the lower courts committed error in considering evidence of the alleged marriage evaluating Exts.B2 to B10 when in Ext.X1 extract of the register there is discrepancy in the corresponding Malayalam year with the date 10/04/92. According to the respondent, her R. S. A. Nos.109 & 110 of 2008 -9- marriage with Sudheer Kumar was solemnised on 10/04/92. The learned counsel is unable to say how the date of marriage shown as 10th April, 1992 in Ext.B2 with the corresponding date in Malayalam era as 19th Medam 1167 is wrong and that actually the corresponding Malayalam date would be 28/08/1167 and even if it be so, how Ext.B2 cannot be believed as a genuine document. The question is as to whether Ext.B2 certificate can be believed and not as to whether the corresponding Malayalam date stated in bracket therein really corresponds to 10th April, 1992. It has to be borne in mind that Ext.B2 is only one of the pieces of evidence relied on by the courts below. Ext.B3 birth certificate in relation to Bichu S. Kumar son of the defendant shows that the name of his father is Sudheer Kumar. Ext.B4 is certificate issued by the Village Officer, Ezhukone that the defendant is permanently R. S. A. Nos.109 & 110 of 2008 -10- residing at Edayile Veedu, Irumpanangad at Ezhukone. Ext.B5 is the identity card issued from the Service Co-operative Bank, Ezhukone. In Ext.B5 also the defendant's husband's name is shown as Sudheer Kumar. Ext.B6 is the ration card issued in the name of Sudheer Kumar. Therein also Sudheer Kumar is shown as the husband of the defendant and the defendant is also one of the persons mentioned in the said ration card as the wife of Sudheer Kumar. Ext.B7 is identity card of the defendant wherein also her husband's name is noted as Sudheer Kumar. Ext.B8 letter is issued to the respondent/defendant by the Assistant Executive Engineer, Kallada Irrigation Project sub division, Thenmala informing the respondent that she cannot be given employment under the dying-in-harness Scheme because of the objections of the first plaintiff. Ext.B9 is a letter issued by the Tahsildar, R. S. A. Nos.109 & 110 of 2008 -11- Kottarakkara to the respondent/defendant that the legal heirship certificate is objected to by the plaintiffs and that therefore, further action in the matter be stopped. Ext.B10 is the certificate issued from Little Flower Nursery School wherein the name of father of Bichu S. Kumar is noted as Sudheer Kumar. As rightly concluded concurrently by the courts below all these documents are sufficient to show that the deceased Sudheer Kumar was the husband of the respondent/defendant and that Bichu S. Kumar/the son born to the defendant is child born to her in her wedlock with Sudheer Kumar. In the circumstances, the judgments of the courts below cannot be faulted and the trial court has rightly granted a decree allowing the counter claim declaring that second plaintiff/the mother of Sudheer Kumar; the defendant who is the wife of Sudheer Kumar and Bichu S. Kumar who is his R. S. A. Nos.109 & 110 of 2008 -12- son are his legal heirs and that the certificate issued to that effect by the Tahsildar is valid. There is no merit at all in these appeals and there is no question of law and much less any substantial question of law arising for consideration in these appeals by this Court. 10. These Regular Second Appeals, in the circumstances are dismissed in limine refusing admission. K.P.BALACHANDRAN, JUDGE kns/- R. S. A. Nos.109 & 110 of 2008 -13- K.P.BALACHANDRAN, J. ------------------------------------------------ R. S. A. No.109 & 110 of 2008 ------------------------------------------------ Dated this the 15th day of July, 2008 ORDER Counsel for the appellants submits that deceased Sudheer Kumar was having an LIC policy wherein the nominee is the second appellant and that the appellants are prepared to make payment of some amounts to the respondent and settle the matter and for effectuating the settlement the case be adjourned granting two weeks time. Hence, adjourned to 30/07/08 granting one more chance. K.P.BALACHANDRAN, JUDGE kns/-