IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 29TH SEPTEMBER 2010 / 7TH ASWINA 1932 SA.No. 465 of 1999(E) --------------------- AS.3/1992 of SUB COURT, OTTAPPALAM OS.207/1989 of MUNSIFF COURT, OTTAPPALAM .................... APPELLANT: -------------- VIJAYALAKSHMI, W/O.KUNCHU UPTHAN, AND D/O.LATE APPU GUPTHAN, SREEKRISHNAPURAM AMSOM AND DESOM, OTTAPPALAM TALUK, PALAKKAD DISTRICT. BY ADV. MS.PREETHY KARUNAKARAN RESPONDENT: --------------- K.KUNHIMALU AMMAL, D/O.KULATHINGAL RAMA GUPTHAN, SREEKRISHNAPURAM AMSOM AND DESOM, SREEKRISHNAPURAM PO., OTTAPPALAM TALUK, PALAKKAD DISTRICT. ADV. MR.A.P.CHANDRASEKHARAN, SENIOR ADVOCATE MS.PRABHA R.MENON MR.PUSHPARAJAN KODOTH MR.M.KRISHNAKUMAR THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 29/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: SA.No. 465 of 1999(E) ORDER ON C.M.P.NO.2257/1999 DISMISSED. 29.9.2010 SD/- HARUN-UL-RASHID, JUDGE. // TRUE COPY // P.A TO JUDGE. HARUN-UL-RASHID, J. ------------------------ S.A.No.465 Of 1999 ---------------------- Dated this the 29th day of September, 2010. J U D G M E N T The plaintiff in O.S.No.207 of 1989 on the file of the Munsiff Court, Ottappalam is the appellant. The appeal is directed against the judgment and decree in A.S.No.3 of 2002. Suit was filed for recovery of possession on the strength of title. The trial court passed a decree for recovery of possession of plaint schedule property on the strength of plaintiff's title and directed the defendant to put the plaintiff in peaceful possession. The appellate court set aside the decree and judgment passed by the trial court and passed a preliminary decree for partition directing division of the plaint schedule property into two equal shares, one share to the plaintiff and allowing the plaintiff to share the profits. Parties hereinafter are referred to as the plaintiff and defendant as arrayed in the suit. 2. Plaintiff is the daughter of late Appu Gupthan. It is not disputed that the plaint schedule property belonged to Appu Gupthan. Appu Gupthan died in the year 1987. Plaintiff's mother S.A.No.465 Of 1999 ::2:: died in the year 1981. It is the plaintiff's case that the plaintiff inherited the plaint schedule property as the sole legal heir of deceased Appu Gupthan. It is averred in the plaint that plaintiff was residing along with her husband in her husband's house, that since her father was a cancer patient the defendant was appointed as a maid servant to look after her father and that the suit was instituted due to the failure of the defendant to vacate the plaint schedule property after the death of her father. Plaintiff filed the suit for recovery of plaint schedule property and also for an injunction to restrain the defendants from committing any waster in the plaint schedule property. 3. The defendant filed written statement denying the plaint averments and prayed for dismissal of the suit. According to the defendant she is the legally wedded wife of the deceased Appu Gupthan and therefore she is entitled to one half of the property left behind by deceased Appu Gupthan. She also denied the averment in the plaint that she is a maid servant. 4. Evidence in this case consists of oral evidence of PW1, DWs 1 & 2 and documentary evidence of Ext.A1 and Exts.B1 to S.A.No.465 Of 1999 ::3:: B10. The trial court examined the question as to whether there was a valid marriage took place between deceased Appu Gupthan and the defendant. Trial court held that the burden is on the defendant to prove the disputed relationship. The trial court did not place reliance on the oral evidence of DWs 1 & 2. DW1 is the defendant and DW2 is an aged man who testified that he had witnessed the marriage ceremony. The defendant also produced Exts.B1 to B10 documents in support of her case that she is the legally wedded wife of deceased Appu Gupthan. As per Ext.B9 death certificate it can be seen that the plaintiff's mother died on 16.11.1981. Defendant's case is that deceased Appu Gupthan married the defendant in 1982. The defendant also produced Exts.B2 to B8 documents. Ext.B2 is the passbook maintained with State Bank of Travancore. The joint account holders are deceased Appu Gupthan and the defendant. Exts.B3 & B4 are the electoral cards issued from the Panchayath. Ext.B5 is an agreement entered into between the deceased Appu Gupthan and a stranger. The trial court for one reason or other refused to rely on the above said documents. The trial court also did not place S.A.No.465 Of 1999 ::4:: reliance on the oral evidence of DWs 1 & 2 stating that there is discrepancies in their versions. The trial court also found fault with the defendant in not examining the poojari who offered worship of the thali and garland and non-examination of persons who attended the marriage. The trial court also found fault with the defendant in not examining the persons who attended the betrothal function. The trial court concluded that in the said circumstances, the solitary evidence of DW2 will not be sufficient to find that the marriage has been solemnized between deceased Appu Gupthan and the defendant. Trial court also discarded Exts.B2 to B6 and B10 documents stating one reason or other and finally dismissed the suit. 5. The lower appellate court re-appreciated the evidence. Lower appellate court also held that the burden is on the defendant to prove the disputed relationship. The lower appellate court discussed the oral evidence tendered by DWs 1 & 2. On appreciation of the oral evidence the lower appellate court held that the evidence tendered by DWs 1 & 2 are acceptable and therefore held that the fact of marriage is proved in this case. S.A.No.465 Of 1999 ::5:: The court also appreciated the documents namely, Exts.B2 passbook, B3 & B4 electoral cards, B5 agreement and other documents as supporting evidence. The lower appellate court found that DW2 is aged 65 years at the time of examination held that there is no disqualification for DW2 to speak about the conduct of marriage. Learned Munsiff failed to place reliance on DW2 stating that the solitary evidence of DW2 is not sufficient to prove the disputed marriage. The lower appellate court also held that there is nothing in evidence of DWs 1 & 2 to reject their evidence. 6. The lower appellate court relied on Ext.B2 passbook. The passbook is in the joint name of deceased Appu Gupthan and the defendant. It was endorsed therein in red ink that it was an “either or survivor” account. The lower appellate court took the view that Ext.B2 is certainly a circumstance favouring the husband and wife relationship between the parties. Ext.B5 is the agreement dated 11.3.1987 executed between the deceased Appu Gupthan and a third person. By the said agreement an extent of 10 cents out of the plaint schedule property is agreed to S.A.No.465 Of 1999 ::6:: be sold to the third person for a consideration of Rs.25,000/-, and that an amount of Rs.10,000/- was received by deceased Appu Gupthan as advance amount. The defendant relied on the endorsement in the agreement entered subsequently to the death of Appu Gupthan. It is the defendant's case that since the plaint schedule property is the only property wherein she is residing she requested the proposed vendee to cancel the agreement after receiving the advance amount. Proposed vendee agreed to such proposal and therefore Rs.10,000/- received as advance was repaid to him. The payment is recorded on the reverse page of Ext.B5 agreement. The endorsement on the back of Ext.B5 agreement is to the effect that Rs.10,000/- was received from Kunjumalu Amma, W/o. Appu Gupthan. The facts and circumstances that led to the execution of agreement and subsequent revocation are not accepted by the trial court. Trial court held that Ext.B5 creates serious suspicion. Ext.B5 document will lead to the conclusion that Ext.B5 is a document executed by deceased Appu Gupthan during his life time. S.A.No.465 Of 1999 ::7:: 7. The defendant also disclosed the source of Rs.10,000/-. Ext.B10 is the certificate issued by the Bank Manager certifying that Rs.5,000/- was deposited in term deposit which stood in the name of Appu Gupthan and the defendant which stands closed. The lower appellate court relied on the version of DW1 which would go to show that Rs.5,000/- was released from the bank which was utilised for making payment of the advance amount to the proposed vendee in Ext.B5 agreement. The lower appellate court held that the joint name of Appu Gupthan and defendant in the passbook is an evidence to accept the relationship between the parties. The lower appellate court also relied on the documents, Exts.B3 and B4, electoral cards. Entries therein suggest that the deceased Appu Gupthan and the defendant are husband and wife. After considering the oral and documentary evidence in detail the appellate court concluded that the evidence adduced by the defendant would prove the marriage. 8. The lower appellate court set aside the decree and judgment passed by the trial court and passed a decree and held S.A.No.465 Of 1999 ::8:: that the plaintiff and defendant are having equal rights over the property. The lower appellate court passed a preliminary decree for partition of plaint schedule property into two equal shares. As discussed in the preceding paragraphs the lower appellate court arrived at the findings based on facts and findings. The findings on the issues are recorded based on materials, both oral and documentary. I see no ground to interfere with the findings of facts recorded by the lower appellate court. No valid grounds are made out by the appellant to interfere with he decree and judgment passed by the court below. No question of law muchless any substantial question of law arises for consideration in this appeal. In the result, the appeal fails and accordingly dismissed. No order as to costs. HARUN-UL-RASHID, Judge. bkn/-