IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN MONDAY, THE 16TH JUNE 2008 / 26TH JYAISHTA 1930 RSA.No. 265 of 2007(F) -------------------------- (A.S. No 193 of 2003 OF THE SUB COURT II(A),KOZHIKODE) (O.S. No 138 of 1999 of MUNSIFF'S COURT I(A) KOZHIKODE) APPELLANT : APPELLANT/PLAINTIFF ---------------------------------------- P.R.RATNAKUMARI, AGED 40 YEARS, D/O.RAMOTTY, PODIYATTIL HOUSE, PAYAM AMSOM AND DESOM, THALASSERI THALUK, KANNUR DISTRICT. BY ADV. SRI.MANJERI SUNDERRAJ RESPONDENTS: RESPONDENTS/DEFENDANTS --------------------------------------------------- 1. KAYYELIKKAL KARTHIYANI, AGED 66 YEARS, W/O.KORAPPAN, RAROTH AMSOM KEDAVOOR DESOM, KOZHIKODE THALUK. 2. KAYYELIKKAL MALATHI, AGED 48 YEARS, D/O.KORAPPAN, RAROTH AMSOM KEDAVOOR DESOM, KOZHIKODE THALUK. 3. KAYYELIKKAL MOHANAN, AGED 46 YEARS, S/O.KORAPPAN, RAROTH AMSOM KEDAVOOR DESOM, KOZHIKODE THALUK. 4. KAYYELIKKAL SATHIAGOPALAN, AGED 41 YEARS, S/O.KORAPPAN, RAROTH AMSOM KEDAVOOR DESOM, KOZHIKODE THALUK. 5. KAYYELIKKAL UNNIKRISHNAN, AGED 37 YEARS, S/O.KORAPPAN, RAROTH AMSOM KEDAVOOR DESOM, KOZHIKODE THALUK. 6. KAYYELIKKAL RADHA, AGED 49 YEARS, D/O.KORAPPAN, RAROTH AMSOM KEDAVOOR DESOM, KOZHIKODE THALUK. 7. KAYYELIKKAL CHANDRAMATHI, AGED 51 YEARS, D/O.KORAPPAN, RAROTH AMSOM KEDAVOOR DESOM, KOZHIKODE THALUK. THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 16/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. P. BALACHANDRAN, J. ------------------------------------------------------ R.S.A. No 265 of 2007 ------------------------------------------------------ Dated this the 16th June 2008 JUDGMENT The plaintiff in O.S. No 138 of 1999 on the file of the Munsiff's Court, Kozhikode who has lost her case concurrently in both the courts below is the appellant. She filed the said suit on the allegation that she is the wife of deceased Ravi and as such she is entitled to partition and separate possession of half right in item No. 1 property and 1/12 right in item No. 2 property. 2. The title to claim partition was disputed by the respondents- defendants contending that there is no valid marriage between the plaintiff and late Ravi. The allegation in the plaint is that the marriage between herself and Ravi was solemnized on 09.01.1991 in accordance with customary rights and also in accordance with the provisions of the Hindu Marriage Act and an agreement evidencing solemnization of the marriage was also registered as document No 9 of 1991 of Sub Registry Office, Koduvally. 3. It is not in dispute that item No. 1 property belonged to deceased Ravi. Plaint schedule item no. 2 property belonged to Korappan, father of deceased Ravi. On the death of Korappan the RSA 265/07 2 properties devolved upon the wife and children of Korappan including the said Ravi. Thus, according to the plaintiff, her husband late Ravi was having 1/6th share in plaint schedule item No. 2 and on the death of her husband Ravi the said 1/6th right devolved upon herself and the first defendant whereas in relation to item no.1, half the right devolved upon her and other half devolved upon the first defendant. 4. It cannot be disputed that if the plaintiff is the legally wedded wife of Ravi and legal heir she will be entitled to share as claimed. On the other hand, if she does not get the status of wife, as contended by the defendants, she will not be entitled to any share in the schedule properties and she will have no locus standi to claim partition. 5. The trial court on the pleadings of the parties raised necessary issues and after trial, considering the pleadings and the evidence adduced at trial which consisted of oral evidence of P.Ws 1 and 2 and documentary evidence of Exts. A1 to A6 and Ext B1, dismissed the suit holding that the appellant-plaintiff is not the legally wedded wife of late Ravi and as such she has no locus standi on title to claim partition. On appeal by the plaintiff the first appellate court also concurred with the findings of the trial court and dismissed the RSA 265/07 3 appeal. 6. It is contended before me by the learned counsel for the appellant that before the appellate court two documents were produced, but those were not admitted in evidence and those were an inland letter written by Murali, the brother of late Ravi's father Korappan and a letter issued by the Postmaster, Thamarassery in relation to a recurring deposit account maintained by Ravi wherein plaintiff was shown as nominee. It is submitted that a petition to receive the documents and also a petition to amend the plaint correcting the date of marriage so as to tally with the evidence adduced was filed and both the petitions were dismissed by the first appellate court and that an opportunity be afforded to the plaintiff to have the letters produced proved examining additional witnesses in the case to prove that she is the legally wedded wife of late Ravi. 7. It is worthy to note that what was pointedly in issue in the suit is the title of the plaintiff to claim partition. Title to claim partition enures to her in relation to properties of late Ravi only if a valid marriage is established between herself and late Ravi as that is disputed by the defendants. Obviously therefore, the appellant- plaintiff was expected to adduce all evidence that was required to RSA 265/07 4 establish her title to claim partition. She had tendered evidence as P.W.1 that late Ravi married her on 06.02.1991 in accordance with customary rites and thereafter on the same day a marriage agreement was also registered before the Sub Registry Office, Koduvally. Ext. A2 is the said document. Though she testified that herself and Ravi were living together as husband and wife and the said Ravi was missing from 18.08.1998 and his dead body was being found on 21.08.1998, there is nothing on record to show that a man missing complaint had been given by her which one would expect in the normal course in the event of husband of a lady missing as she will certainly know that her husband is missing. Ext A3 is the death certificate of Ravi. She further relied on Ext A4 telegram sent by the third defendant to her intimating the death of Ravi. The third defendant has not tendered evidence denying Ext A4. However, that is not sufficient to hold that the plaintiff is legally wedded wife of late Ravi. Exts A5 and A6 are notices sent by the Tahsildar to the appellant-plaintiff. Exts. A5 and A6 were also rightly found by the courts below as not documents sufficient to establish the status of the plaintiff as legally wedded wife of late Ravi. The courts below have observed that the allegation in the plaint is that Ravi married RSA 265/07 5 her on 09.01.1991 in accordance with customary rites. But when examined as P.W.1 the date of marriage was deposed by her as 06.02.1991. The plaintiff has no case in the plaint that her marriage was solemnized on 06.02.1991. It is too much to think that a woman will forget the date of her marriage in the normal course. She did not also have a case when examined that the date of solemnization of marriage mentioned in the plaint is a mistake. Ext A2 is the marriage agreement and that is dated 08.02.1991. The courts below have observed that in Ext A2 there is no whisper that their marriage was solemnized on any day earlier to 08.02.1991 and that on the other hand the recital in Ext a2 is to the effect that from that date onwards namely, the date of ext A2, the parties have agreed to reside together as husband and wife. If at all a marriage was solemnized on 08.01.991 as alleged in the plaint, or on 06.02.1991 as spoken to by P.Ws 1 and 2, naturally that would have found a place in Ext A2 agreement as rightly observed by the courts below. Further, the courts below also noticed a material defect that there was no whisper in the plaint as to where the alleged marriage was solemnized. In the proof affidavit also there is no whisper as to the place where the marriage was solemnized in accordance with RSA 265/07 6 customary rites, as alleged. Appellant-plaintiff was also not able to show that herself and late Ravi were residing together as husband and wife. The burden was heavy on the plaintiff to prove that there was performance of marriage in accordance with customary rites and that she is the legally wedded wife of late Ravi. For that purpose Ext A2 is not of any use. On the other hand Ext A2 belies the case of solemnization of a marriage according to customary rites alleged by the plaintiff. It is also observed by the courts below that when examined as P.W.1, plaintiff had deposed that there are documents like ration card, voters list, service book etc. showing Ravi as her husband. None of those documents was produced to substantiate the case of the appellant-plaintiff. Even before this court, counsel for the appellant has no case that those documents were produced before the courts below or were available. The contention advanced on the basis of Ext A4 telegram is not at all sufficient to confer the status of wife on the plaintiff. As observed by the courts below the plaintiff miserably failed to establish that there was valid marriage that has taken place as per customary rites or in any other manner recognised by law between herself and deceased Ravi so as to confer on her the status of wife of late Ravi. The result is that as RSA 265/07 7 found by the courts below, the plaintiff is not entitled to claim partition in her status as wife of late Ravi. The courts below have appreciated the entire case on evidence and have rightly come to the conclusion that there is no valid marriage and so plaintiff is not entitled to claim partition. There is no reason to interfere with the said finding and there is no merit in this appeal. There is no question of law and much less any substantial question of law to be decided in this R.S.A. This R.S.A is hence dismissed in limini refusing admission. Sd/- K.P. BALACHANDRAN Judge 16/06/2008 en [true copy]