IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.BHAVADASAN MONDAY, THE 10TH JANUARY 2011 / 20TH POUSHA 1932 SA.No. 567 of 1996() -------------------- AS.107/1989 of ADDL.DISTRICT COURT, KOZHIKODE OS.91/1986 of PRINCIPAL SUB COURT, KOZHIKODE .................... APPELLANT(S): APPELLANT/PLAINTIFF: ------------------------------------------------------------- THALIYADATH PRABHAKARAN, AGED 53 YEARS, S/O. KUTTAPPU, THIRUVANAD AMSOM & DESOM OF TELLICHERRY TALUK IN CANNANORE DISTRICT. BY ADV. SRI.M.K.S.MENON RESPONDENT(S): RESPONDENTS/DEFENDANTS: ------------------------------------------------------------------------- 1. NAMBIAMBURATH ANANDAN, AGED 57 YEARS, S/O.NARAYANAN, LAKSHMI NILAYAM, KALAKANDY HOUSE, MAKKADA AMSOM DESOM, KOZHIKODE TALUK. 2. T.SUNDARAN, AGED 45 YEARS, S/O. NARAYANAN, LAKSHMI NILAYAM, KALAKANDY HOUSE, MAKKADA AMSOM, KOZHIKODE TALUK. 3. KOTTAKKAL MADHAVI, AGED 60 YEARS, D/O.PACHUKKUTTY, RESIDING AT KANDIYIL. 4. T.KALLIANI, AGED 58 YEARS, D/O. PACHUKUTTY, RESIDING AT KANDIYIL. 5. T.KARTHY, AGED 56 YEARS, D/O. PACHUKUTTY, RESIDING AT KANDIYIL. R1 TO R3 BY ADVS. SRI.SUNNY MATHEW, SRI.P.P.BALAN THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 10/01/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss P.BHAVADASAN, J. ------------------------------------------------- SA No.567 of 1996 ------------------------------------------------- Dated this the 10th day of January 2011 Judgment The suit is one for partition. The property, admittedly belonged to Kuttappu. According to the plaintiff, Kuttappu had two wives, namely Chirutha and Madhavi. It is averred that Madhavi, the mother of the plaintiff, was married to Kuttappu after the death of Chirutha, his first wife. Defendants 1 and 2 are the children of Lakshmi, the daughter of Kuttappu through Chirutha. Claiming half share of the suit property, the suit was laid. 2. Defendants 3 to 5 are assignees from defendants 1 and 2. They resisted the suit. They disputed both the marriage of Madhavi with Kuttappu and the paternity of the plaintiff. 3. On the above pleadings, necessary issues were raised by the trial court. The evidence consists of the SA 567/96 2 testimony of PWs 1 and 2 and documents marked as Exts.A1 to A6 from the side of the plaintiff. The defendants examined DWs 1 and 2 and had Exts.B1 to B22 marked. On an appreciation of the evidence, the trial court came to the following conclusions : (1) The marriage between Madhavi and Kuttappu had not been proved. (2) The paternity of the plaintiff was not established. The suit was accordingly dismissed. 4. The plaintiff carried the matter in appeal as AS No.107/89 before the District Court, Kozhikode. The lower appellate court held in favour of the plaintiff as regards paternity, but found that there was no evidence of marriage between Kuttappu and Madhavi and therefore, confirmed the dismissal of the suit by the trial court. Hence this second appeal. 5. Notice was ordered on the following questions of law : (1) Whether the courts below are right in coming to SA 567/96 3 the conclusion that the marriage between Kuttappu and the mother of the appellant is not legal and therefore, the appellant is not a legitimate son of Kuttappu. (2) Whether the findings of the court below that the appellant failed to prove the marriage between Madhavi and Kuttappu is factually correct ? (3) Whether the appellate court was right in coming to the conclusion that the appellant is not a legitimate son of Kuttappu, particularly in view of the fact that the appellate court specifically found that the appellant is the son of Kuttappu born in Madhavi ? (4) Whether the finding of the courts below that in a suit for partition, the rights of the third parties who purchased the right from certain co-sharers cannot be decided and a separate suit for possession will have to be filed, is legally sustainable when the principles of feed the grant by estoppal is applied and the relevant portion of the property could be set SA 567/96 4 apart towards the share of those sharers who alienated their share in the property ? (5) Whether the finding of the court below that the appellant is not a legitimate son, is legally sustainable in the light of the 1976 amendment to Section 16 of the Hindu Marriage Act 1955 ?” 6. After hearing the learned counsel for the appellant, it is felt that there is no merit in the appeal at all. Kuttappu admittedly died in 1950. Therefore, succession opens then. 7. Even though the trial court found that the paternity of the plaintiff had not been established and so also the marriage between Kuttappu and Madhavi, the lower appellate court was cautious enough to enter a finding regarding the paternity of the plaintiff in his favour. However, the lower appellate court found that there is no evidence at all to show that there was any marriage between Madhavi and Kuttappu. The lower appellate court, therefore, held that even if the plaintiff could be treated only SA 567/96 5 as an illegitimate child of Kuttappu, he would not succeed to the estate of Kuttappu, so long as he does not establish that Madhavi was the legally wedded wife of Kuttappu. 8. The evidence of PW1 shows that according to him, there are persons, who had participated in the marriage between Kuttappu and Madhavi. But, for reasons best known to the plaintiff, he has chosen not to examine any witness or adduce any evidence in that regard. 9. Of course, the lower appellate court has also considered the issue as to whether long co-habitation could be taken as a proof of marriage between Madhavi and Kuttappu. However, on facts, the lower appellate court found that there was absolutely no evidence in the case to show that Kuttappu had married Madhavi or there was long co-habitation between them. In spite of best efforts on the part of the learned counsel for the appellant, he was unable to disturb the finding of the lower appellate court that there was want of evidence to show that Madhavi was the legally wedded wife of Kuttappu. SA 567/96 6 The result is that no interference is called for with this appeal. The appeal is devoid of any merits and it is accordingly dismissed. There will be no order as to costs. P.Bhavadasan, Judge sta SA 567/96 7