IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE R.BASANT & THE HONOURABLE MRS. JUSTICE M.C.HARI RANI WEDNESDAY, THE 27TH OCTOBER 2009 / 5TH KARTHIKA 1931 Mat.Appeal.No. 153 of 2008() ---------------------------- OS.21/1993 of FAMILY COURT,TRIVANDRUM .................... PETITIONER(S): --------------- AMMINI,D/O.BHAVANI RESIDING AT T..C.50/543 VALLIYARAKNNATHU VEEDU, KALADY, MANACAUD P.O.,THIRUVANANTHAPURAM. BY ADV. SRI.M.RAMASWAMY PILLAI SRI.P.M.JOSEPH RESPONDENT(S): --------------- J.MANI,W/O.LATE SOMAN T.C. 50/543, (NEW) OLD T.C. 50/1119 VALL AYARKONATHU VEEDU, KALADY MANACAUD VILLAGE, MANACAUD P.O,., THIRUVANANTHAPURAM. ADV. SRI.S.D.ASOKAN FOR R1 THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 27/10/2009, THE COURT ON 28/10/2009 PASSED THE FOLLOWING: R.BASANT & M.C.HARI RANI, JJ. * * * * * * * * * * * * * C.M.Appl.No. 458 of 2008 in Mat.Appeal No.153 of 2008 and Mat.Appeal No.153 of 2008 ---------------------------------------- Dated this the 27th day of October 2009 O R D E R & J U D G M E N T Basant,J This petition is to condone the delay of 406 days in filing a Mat. Appeal. The Mat. Appeal, in turn, challenges a decree declaring 1/6th right of the plaintiff over the plaint schedule property and granting a consequent order of injunction restraining the appellant herein from dispossessing the plaintiff from the plaint schedule property and also from alienating the same including the share of the plaintiff. 2. The delay is enormous and is not explained satisfactorily. We are not satisfied that the delay deserves to be condoned. However, in our anxiety to ensure that the rejection of the prayer for condonation of delay does not result in failure of justice, the learned counsel for the petitioner/appellant was requested to explain the nature of challenge. 3. The property scheduled to the plaint measuring of 5 cents admittedly belonged to one Kuttan. On the death of C.M.A.No.458/08 in M.A No.153/2008 2 Kuttan, he had three legal heirs. His wife i.e., the 1st defendant, his daughter i.e., the 2nd defendant and his son Soman. Kuttan predeceased Soman. Subsequently, Soman also expired. The plaintiff claims to be the wife of Soman. The defendants took up a plea that Soman had not married the plaintiff. Thus, the crux of the dispute was whether the plaintiff was the widow of late Soman. If the plaintiff is the wife of Soman, there is no dispute that the impugned decree is justified. 4. Parties went to trial. The plaintiff examined herself as PW1. An activist of Pulayar Mahasafa to which the deceased Soman belonged was examined as PW2. A neighbour was examined as PW3. Ext.A1 death certificate, Ext.A2 ration card, Ext.A3 settlement deed and Ext.A4 proceedings of the Tahsildar were marked by the plaintiff. Exts.A1, A2 and A4 reveal that public documents bore the fact that the plaintiff was the wife/widow of deceased Soman. The court below, on an anxious consideration of all the oral and documentary evidences, came to the conclusion that the claim of PW1 that she is the legally married wife of deceased Soman can safely be accepted and consequently she is entitled to 1/6th rights in the plaint schedule property - 1/2 of the 1/3rd right of deceased Soman. Accordingly, C.M.A.No.458/08 in M.A No.153/2008 3 the court below found that her title over 1/6th share in the plaint scheduled property deserves to be declared. Accordingly, the declaration was granted. 5. There was a contention that Ext.A3 settlement deed is not valid and binding on the plaintiff. Declaration to that effect was also granted. 6. We have heard the learned counsel for the appellant in detail. We find absolutely no worthwhile contention advanced to assail the finding of the court below that the plaintiff is the wife/widow of deceased Soman. The oral evidence of Pws 1 to 3 read in the light of Exts.A1, A2 and A4 clearly show that the plaintiff is the widow of deceased Soman. It is significant that the defendants - mother and sister of deceased Soman had not ventured to tender any evidence to show that there was no marital tie as claimed by the plaintiff between her and deceased Soman. In these circumstances, we find virtually no merit in the challenge against the said finding. We are satisfied that the appeal does not merit admission and dismissal of the prayer for condonation of delay does not result in any failure of justice. 7. The learned counsel for the appellant/2nd defendant raises a further contention. According to him, Ext.A3 has been C.M.A.No.458/08 in M.A No.153/2008 4 declared to be not valid and binding on the plaintiff. The learned counsel apprehends that this finding may affect the rights of the appellant/2nd defendant under Ext.A3 settlement deed. We find no merit in that contention at all. Ext.A3 settlement deed, needless to say, shall remain valid and binding on the executant and executee to the extent of the valid rights that the executant had. The declaration granted by the impugned judgment/decree is only that the rights of the plaintiff shall not be affected by Ext.A3 settlement deed. No further clarification is necessary that the appellant/2nd defendant's rights under Ext.A3 settlement deed will stand uneffected to the extent of the rights of deceased first defendant over the plaint scheduled property. That is 1/3rd share in her own right as the legal heir of Kuttan and 1/2 of 1/3rd rights as one of the two legal heirs of her pre-deceased son Soman. The plaintiff's 1/6th right as the legal heir of deceased Soman will be uneffected by Ext.A3 settlement deed and that alone was declared. 8. We are not persuaded to agree that to consider that question and to clarify that, the admission of this appeal is necessary. It follows from the above discussions that the prayer for condonation of delay only deserves to be dismissed. C.M.A.No.458/08 in M.A No.153/2008 5 C.M.Application is accordingly dismissed. Consequently, the Mat.Appeal shall stand rejected as barred by limitation. (R.BASANT, JUDGE) (M.C.HARI RANI, JUDGE) jsr C.M.A.No.458/08 in M.A No.153/2008 6 C.M.A.No.458/08 in M.A No.153/2008 7 R.BASANT & M.C.HARI RANI, JJ. .No. of 200 ORDER/JUDGMENT 29/07/2009