IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.RAMKUMAR MONDAY, THE 25TH MAY 2009 / 4TH JYAISHTA 1931 AS.No. 814 of 1996() -------------------- OS.31/1994 of SUB COURT, VADAKARA .................... APPELLANT(S): -------------- 1. PEEDIKAKANDIYIL THAMASIKKUM ADUVARI NARAYANI, VADAKARA AMSOM DESOM, PAZHANKAVU, KOZHIKODE DISTRICT 2. PEEDIKAKANDIYIL NIRMALA, -DO- 3. PEEDIKAKANDIYIL RAVEENDRAN, -DO 4. PEEDIKAKANDIYIL GIRIJA, -do- BY ADV. SRI.R.K.MURALEEDHARAN RESPONDENT(S): ------------- 1. MANDOTITHAZHAKUNIYIL K. GOURI, VADAKARA AMSOM, DESOM, VADAKARA TALUK 2. MANDOTITHAZHAKUNIYIL K. CHEERU, VADAKARA AMSOM, DESOM, PAZHAMKAVU 3. N. RAJAN MASTER, SECRETARY, KAIRALI VAYANASALA, PAZHAMKAVU, VADAKARA -:2:- 4. NAGATH THAZHA KUNIYIL BEEVI, THAYYULLATHIL HOUSE, NEAR PULINHOLI S.B. SCHOOL, PAZHAMKAVU, VADAKARA ADVS. SRI.C.VATHSALAN SRI.N.L.KRISHNAMOORTHY AND SRI.K.LAKSHMINARAYANAN THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 25/05/2009, ALONG WITH AS NO. 10 OF 1997 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: HARUN-UL-RASHID, J. ---------------------------------------- A.S.No. 814 of 1996 and A.S. No.10 of 1997 & Cross objection in A.S. No. 10 of 1997. ---------------------------------------- Dated this the 30th day of September, 2009 JUDGMENT The judgment and decree in O.S. No. 31/1994 is under challenge in the above appeals and cross objection. Defendants 2 to 5 in O.S. No. 31/1994 on the file of the Sub court, Vadakara are the appellants in A.S. No. 814/1996 The connected appeal viz. A.S. No. 10/1997 was filed by the plaintiff and 1st defendant in the above mentioned suit. The 7th defendant in the above suit has filed a cross objection challenging the findings in the said suit. . The parties hereinafter referred to as plaintiff and defendants as arrayed in the Suit. 2. The suit was filed for partition praying for the division of the plaint schedule property into 5 equal shares and allotting 1 such share to the plaintiff with mesne profits. A preliminary decree for partition was passed dividing the plaint schedule item Nos. 1 to 6 and 11 into 5 equal shares allotting 1 such share to the plaintiff and that defendants 2 to 5 are entitled to 1 such share each and they are liable to pay future share of profit to the plaintiff. Aggrieved by the said preliminary decree the parties to the Suit filed separate appeals and the 7th defendant filed a cross A.S.No. 814 of 1996 -2- & connected cases & Cross Objection objection. 3. According to the plaintiff she is the daughter of one deceased P.Gopalan through his second wife Cheeru who is the 1st defendant in the suit. Defendant No.2 is the first wife of said Gopalan and defendants 3 to 5 are the children of Gopalan through 2nd defendant. The said Gopalan died on 23.1.1979. According to the plaintiff on his death his right over the plaint schedule property devolved upon the plaintiff and defendants 1 to 5 jointly and that they are in joint possession of the same. The plaint schedule properties consists of item Nos. 1 to 11 The plaintiffs claims right over her share of property as daughter of deceased Gopalan born in his second marriage It is the plaintiff's case that after the death of her mother's/1st defendant's former husband Krishnan in the year 1954, the deceased Gopalan married her mother on 26.1.1965 in accordance with the customary rites prevailing in their community. 4. The 1st defendant filed a written statement supporting the contentions raised by the plaintiff. 5. Defendants 2 to 5 have filed joint written statement and denied the claim of the plaintiff. It is their case that deceased Gopalan had never married the 1st defendant in accordance with the customary rights prevailing in their community and that the deceased Gopalan and 1st defendant have never lived together as husband and wife. These A.S.No. 814 of 1996 -3- & connected cases & Cross Objection defendants also contended that the plaint schedule Item No. 11 did not belong to deceased Gopalan and the same was purchased by the 2nd defendant as per registered document dated 2.5.1975 and therefore the said item of property is not available for partition. They also denied the status of the plaintiff as the daughter of deceased Gopalan and the averments in the plaint to the effect that the plaintiff is having 1/5th share and 1st defendant is having 1/10th share in the plaint schedule properties. According to these defendants plaint items 7 to 10 originally belonged to deceased Gopalan and is the subject matter of the will dated 17.2.1967, that by the said will deceased Gopalan bequeathed plaint item No.7 in favour of 2nd defendant and item Nos. 8 to 10 in favour of defendants 3 to 5. it is their further case that the plaint items 1 to 6 belonged to deceased Gopalan and on his death the said items of properties were devolved among defendants 2 to 5 It is also stated in the written statement that subsequent to the death of Gopalan the defendants executed several documents regarding their respective items by way of lease deeds and assignment deeds in favour of other defendants and third persons as well. 6. Defendant Nos 6 and 7 are impleaded as supplemental defendants being transferees of some of the plaint schedule items, as per order of the court below in I.A. No. 1541/1994 dated 14.11.1994. 7. The 6th defendant filed written statement supporting the A.S.No. 814 of 1996 -4- & connected cases & Cross Objection contentions of defendant 2 to 5 The 7th defendant did not file any written statement. 8. Both sides adduced oral and documentary evidence.PW1 to PW4 and DW1 to DW8 were examined and Exts A1 to A15 and B1 to B13 were marked. 9. The important questions to be decided in these appeals and cross objection is that whether the deceased Gopalan has married the 1st defendant, whether the plaintiff is the daughter of deceased Gopalan , whether plaint item No. 11 of the plaint schedule property belonged to deceased Gopalan, the genuineness of will dated 17.2.1967 and the equities to be worked out in favour of 6th and 7th defendants etc. 10. I have gone through the oral and documentary evidence and the contentions of the parties. The factum of marriage between the deceased Gopalan and the 1st defendant is proved by the oral evidence of PW1 to PW4 and DWs 1 and 2 .Besides the above, the trial court found that in Ext.A13 assignment deed the father's name of plaintiff is shown as Gopalan and Gopalan shown as guardian of the plaintiff. . The trial court also noted that in Ext.B5 School admission register the father's name of the plaintiff is shown as Gopalan. 11. The plaintiff and her witnesses also spoken and narrated the A.S.No. 814 of 1996 -5- & connected cases & Cross Objection customary ceremonies performed at the time of the marriage of the 1st defendant with deceased Gopalan. PW1 has also narrated the customary ceremonies performed at the time of 1st defendant's marriage with deceased Gopalan. According to PW1, the customary ceremonies were performed in the “Panthal” arranged in the courtyard of her house and the marriage was solemnized at about 11.A.M by exchange of garlands in front of a lighted lamp and taking Predikshina around the lighted lamp for 3 times and after the ceremonies there was a feast. PW2 also testified that he had seen the performance of the marriage ceremonies which was solemnized at the house of the 1st defendant in the year 1965. PW3 is the relative of the 1st defendant and PW4 is the son of DW1 in her first marriage, have also given evidence that the marriage between the 1st defendant and deceased Gopalan took place about 10 years after the death of 1st defendant's former husband. 12. DW1 and DW2 were also examined to prove the validity of the marriage between the 1st defendant with deceased Gopalan. DW1 who is the son of the 1st defendant born in her first wedlock stated that since the first marriage of deceased Gopalan with the 2nd defendant subsists the 1st defendant was not taken to the house of deceased Gopalan after the marriage. DW1 has further stated that before her marriage with deceased Gopalan she was married to one Cheriya Krishnan who died about 10 A.S.No. 814 of 1996 -6- & connected cases & Cross Objection years prior to 1st defendant's marriage with deceased Gopalan.DW2 is the brother of DW1, has given evidence that deceased Gopalan had married DW1 from DW1's house at Puthukulangara Kuniyil and that at the time of that marriage he was residing in the house of DW1 and that he had participated in the marriage ceremonies solemnized at the house of DW1. He has also given evidence that plaintiff is the child born in the wedlock between deceased Gopalan and DW1. 13. On an analysis of the above oral evidence and other documentary evidence the trial court held that the deceased Gopalan and the 1st defendant had undergone a customary form of marriage, and plaintiff is the child born to them in that wedlock, that though the marriage between deceased Gopalan and the 1st defendant is null and void on account of the subsistence of the earlier valid marriage between deceased Gopalan and the 2nd defendant, by virtue of Section 16 of the Hindu Marriage Act, plaintiff is to be treated as the legitimate child of deceased Gopalan with right to share his property . The trial court also concluded that the deceased Gopalan had married the 1st defendant and plaintiff is the child born to them in that wedlock and she is therefore entitled to a share in the property of deceased Gopalan. To arrive at such a conclusion the trial court also relied on Ext.A11 notice and Ext.A12 reply notice The trial court also noted that the oral evidence of DW1 with A.S.No. 814 of 1996 -7- & connected cases & Cross Objection regard to the paternity of the plaintiff remain unshaken. 14. The question whether plaint item No.11 is available for partition or not, was also considered by the trial court and the trial court rightly held that plaint item No. 11 did not belong to deceased Gopalan The question regarding the validity of Ext.B6 registered will dated 17.2.1967 in respect of the plaint schedule item Nos. 7 to 10 was also examined by the trial court. To prove the execution of Ext.B6 registered will DW7, the scribe who prepared Ext.B6 will was examined and DW 5 and DW 6 to identify the signature of testator Gopalan in Ext.B6 will. DW5 and DW6 have identified the signature of the testator Gopalan. on the basis the oral evidence of DWs5 to 7 the trial court held that Ext.B6 is a true and genuine will executed by deceased Gopalan and as per Ext.B6 will deceased Gopalan had bequeathed plaint schedule items Nos. 7, 8,9 and 10 to defendants 2 to 5 and as such plaintiff has no right over the same and plaint schedule item Nos. 7 to 10 are not available for partition. 15. The 6th and 7th defendant in the suit are assignees of some of the plaint schedule items. The 7th defendant in the suit who is one of the transferee has filed across objection in A.S. No. 10/1997 contending that the trial court went wrong in leaving open the question of equity in respect of the 6th defendant in the suit alone and that the trial court should have A.S.No. 814 of 1996 -8- & connected cases & Cross Objection left open the relief of equity in respect of the all the transferees to be decided in final decree proceedings According to the cross appellant/7th defendant, she is the bonafide transferee of item No. 1 for consideration and she is entitled to protection under Section 43 of the Transfer of Property Act. But it is seen that no sale deed is seen produced nor she filed any written statement Since defendants 6 and 7 are admittedly transferees from the contesting defendants,the question as to whether the transferees (defendants 6 and 7 ) are entitled to the relief of equity, is left open to be decided in the final decree proceedings. The final decree court shall consider the relief of equity in allotting the properties, as far as possible the share of vendors to defendants 6 and 7 considering the fact the they are bonafide transferees 16. The learned counsel for the appellants in A.S. No. 840/1996 cited the decision viz.Syamalavalli Amma Vs. Kavalam Jisha reported in 2007 (3) KLT 270 and canvassed the position that an illegitimate child can claim share in the property of the father only under 16(1) of the Hindu Marriage Act, that section 16(1) makes it absolutely clear that an illegitimate child is entitled to inherit to the estate of the father only if the marriage of the parents was null and void as provided under Section 11 of the Act. The learned counsel relying on the decision in Leelamma A.S.No. 814 of 1996 -9- & connected cases & Cross Objection Vs. Radhakrishnan reported in 2005 (2) KLT 212. contended that in a case where the alleged second marriage is disputed, long co-habitation as man and wife even if true cannot come to the rescue of the plaintiff to contend for the position that a valid marriage has to be presumed. I am of the view that the above said decisions are not applicable to this case. Since the positive findings entered by the trial court as well as this Court to the effect that a marriage was solemnized between deceased Gopalan and 1st defendant in accordance with the customary rites prevailing in their community the decisions cited by the learned counsel have also no relevance. Since the findings of the trial court are purely based on oral and documentary evidence I also confirm the same. I find no reason to interfere with the findings entered by the court below In the result, the appeals are dismissed confirming the decree and judgment passed by the trial court. The cross objection is disposed of . There will be no order as to cots. (HARUN-UL-RASHID, JUDGE) es. HARUN-UL-RASHID, J. --------------------------- A.S.No. 814 of 1996 and A.S. No.10 of 1997 and Cross Objection in A.S. No.10 of 1997 ---------------------------- JUDGMENT 30th September, 2009