IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN FRIDAY, THE 6TH JUNE 2008 / 16TH JYAISHTA 1930 SA.No.272 of 1995 (G) --------------------------- A.S.11/1988 of SUB COURT, OTTAPALAM O.S.30/1986 OF MUNSIFF COURT, OTTAPALAM .................... APPELLANTS/RESPONDENTS/PLAINTIFFS: -------------------------------------------------- 1. JANAKI AMMA, D/O PARAKKIL KUNHI AMMA, AGED 74 YEARS, RESIDING AT POTTASSERI AMSOM AND DESOM OF MANNARGHAT TALUK. 2. SARADA AMMA, D/O JANAKI AMMA, AGED 50 YEARS, RESIDING AT -DO -DO- BY ADV. SRI.KODOTH PUSHPARAJAN SMT.PRABHA R.MENON SRI.M.KRISHNAKUMAR(MOHANKUMAR ASSOCIATES) SRI.R.RAMACHANDRAN RESPONDENTS/APPELLANTS/DEFENDANTS: --------------------------------------------------- 1. DEVAKI AMMA, D/O THACHATT PUTHEN VEETTIL, DEVAKI AMMA, RESIDING AT PULAPPETTA AMSOM, UMMANEZHI DESOM OF OTTAPPALAM TALUK. 2. VIJAYALAKSHMI AMMA, D/O DEVAKI AMMA, RESIDING AT -DO- DO- BY ADV. SRI.KRISHNAKUMAR MANGOT FOR R1 & R2 SRI.K.MOHAMMED FAISAL NAHA FOR R1 & R2 THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 06/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 272 of 1995 - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 8th day of June, 2009. JUDGMENT The plaintiffs, who were unfortunate to have a decree in their favour reversed by the appellate court, are the appellants. 2. The facts fall within a narrow compass. Alleging that the first plaintiff is the wife of late Narayanan Nair and second plaintiff is their daughter, they claimed a share of the property owned and possessed by late Narayanan Nair. They did not however dispute that the first defendant was also the wife of late Narayanan Nair, so also that the second defendant was their daughter. The suit was resisted by the defendant by pointing out that late Narayanan Nair had never married the first plaintiff and also disputing the paternity of the second plaintiff. 3. The court below raised necessary issues. The evidence consists of the testimony of P.Ws. 1 to 4 and the documents marked as Exts.A1 to A4 from the side of the plaintiffs. The defendants had D.W.1 marked and Exts.B1 to B3 marked. Exts.T1 and T1(a) were marked as third party exhibits. On a consideration of the materials before it, the trial court found in favour of the plaintiffs and passed a preliminary decree for S.A. 272/1995. 2 partition. The defendants took up the matter in appeal. The first appellate court differed from the trial court and went on to hold that the marriage between the first plaintiff and late Narayanan Nair was not proved. The decree was reversed. 4. A very short question arises for consideration in this appeal. The only question is whether the first appellate court was justified in reversing the decree of the trial court. 5. At the time of admission, notice had been issued on all the questions raised in the memorandum of appeal. 6. Learned counsel appearing for the appellants pointed out that the first appellate court was not justified in reversing the decree of the trial court, which had considered all the aspects and it came to the conclusion that the plaintiffs are entitled to a preliminary decree. Learned counsel pointed out that the first appellate court was not justified in disbelieving P.Ws.2 and 3, who had spoken in favour of the plaintiffs and about the marriage of the first plaintiff with late Narayanan Nair. At any rate, according to learned counsel, there were sufficient materials on record to show that late Narayanan Nair and the S.A. 272/1995. 3 first plaintiff had lived together for a long time and the couple had begotten a female child, namely, the second plaintiff. Learned counsel also pointed out that the court below ought to have taken into consideration the entries in Exts.T1 and T1(a), which would clearly show that the second plaintiff was the daughter of late Narayanan Nair and the first plaintiff. 7. Learned counsel appearing for the respondents on the other hand pointed out that the first appellate court was justified in its conclusion and there was no evidence to show that there was infact a marriage between the first plaintiff and late Narayanan Nair. Learned counsel drew attention of this court to the fact that late Narayanan Nair was employed in Guruvayoor Devaswom and consequent on his death, after death benefits were given to the defendants. The plaintiffs had not claimed those benefits and that would conclusively show that they had no right. 8. It is true that the plaintiffs did not lay claim to any of the death benefits consequent on the death of Narayanan Nair. It is also true that in some other documents late Narayanan Nair had named the S.A. 272/1995. 4 defendants as his nominees. However, it needs to be noticed that there was no adjudication of the interse rights between the plaintiffs and the defendants in any of those proceedings. After death benefits consequent on the death of Narayanan Nair were disbursed to the defendants consequent on their application in that regard. 9. It appears that the exact date of marriage between late Narayanan Nair and the first plaintiff is not mentioned in the plaint. However, the evidence of P.Ws. 1, 2 and 3 were relied on to prove that there was in fact a marriage between late Narayanan Nair and the first plaintiff. 10. The lower appellate court appears to have been carried away by the fact that since the after death benefits were claimed by the defendants, that to a great extent shows that the claims set up by the plaintiffs are not true. The lower appellate court has also observed that Ext.A4 cannot be relied on for the simple reason that the relationship of the person shown as guardian of the second plaintiff is not clearly established. The lower appellate court feels that it could be the father guardian or grandfather. The lower appellate court also observed that S.A. 272/1995. 5 since Ext.A4 is only a copy and since there was no evidence as to the person who had made entries in Exts.T1 and T1(a), much reliance could not be placed on the same. 11. It would appear that the approach made by the lower appellate court is incorrect. It is true that there was only oral evidence regarding the marriage between the first plaintiff and late Narayanan Nair. The evidence of P.Ws.2 and 3 in this regard could not have been so easily brushed aside by the lower appellate court especially when the trial court chose to rely on those items of evidence. 12. The lower appellate court failed to note that the entries in Exts.A4 and T1 and T1(a) fall within the ambit of Section 35 of the Indian Evidence Act. The registers produced on behalf of the plaintiffs were kept in the usual course of business in the school and P.W.4 had spoken about the entries. It is significant to notice that the occupation of the guardian Narayanan Nair is shown as “elephant man” (Mahout). It is significant to notice that in several other documents produced by both sides, it could be seen that the occupation of Narayanan Nair is shown as “.................................”. The lower appellate court has also S.A. 272/1995. 6 omitted to note that P.W.1 had clearly stated that the entries in Exts.T1 and T1(a) were made on the basis of the information given by late Narayanan Nair. This does not appear to have been challenged in cross-examination. 13. The lower appellate court also has not considered the impact of Section 16 of the Hindu Marriage Act. True that the marriage has not been proved. As noticed already, the appreciation of the evidence by the lower appellate court does not appear to be proper and just. The vital items of evidence have not been considered in the proper perspective and that appears to have resulted in miscarriage of justice. It is therefore necessary to direct the lower appellate court to reconsider the issues afresh. In the result, this appeal is allowed and the judgment and decree of the lower appellate court is set aside and the matter is remanded to the lower appellate court for a fresh decision in accordance with law and in the light of what has been stated above. The lower appellate court may make every endeavour to dispose of the appeal as expeditiously as possible. The parties will appear before the S.A. 272/1995. 7 court below on 23.7.2009. Office is directed to send back the records to the lower appellate court forthwith. There will be no order as to costs. P. BHAVADASAN, JUDGE sb. S.A. 272/1995. 8 P. BHAVADASAN, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - S.A. No. 272 of 1995 - - - - - - - - - - - - - - - - - - - - - - - - - - - JUDGMENT 08.06.2009