Case: KATTUKANDI EDATHIL KRISHNAN &amp; ANR Vs. KATTUKANDI EDATHIL VALSAN &amp; ORS

the date of birth of the first plaintiff is shown as 12.05.1942. K.E. Damodaran and Chiruthakutty are described as father and mother. Ex.B-1 is the copy of the similar certificate produced by the defendants. On comparing Ex.A-9 and Ex.B-1, it is seen that some corrections have been made in Ex.A-9 with regard to the place of birth. However, it is to be noted that in both the documents, the name of the father and the mother of the first plaintiff are one and the same i.e. K.E. Damodaran and Chiruthakutty respectively. Ex.A2 is the Insurance Policy which shows name of his house as Kattukandy Edathil. Ex. A2 dated 26.04.1966. Ex.A3 is the Secondary School Leaving Certificate of K.E. Damodaran kept in his possession. According to him he got the same since he is the son of Damodaran. Ex. A4, dated 01.08.1963, is a Trade certificate issued in favour of the first plaintiff which was issued by the Secretary of State Council for training in vocational Trades, since he was a student of the Junior Technical School, Manjeri. In this certificate the name of the first plaintiff is shown as Krishnan K. S/o Sri. K.E. Damodaran. The name of the house is shown as Edathil house, Chalappuram. 24. The plaintiffs have produced Ex.A5, the Malayala Manorama Daily dated 16.02.1985. In this paper it is reported that Chiruthakutty, wife of Kattukandy Edathil Damodaran, aged 75 years had expired. The name of the first plaintiff is shown as the son of Chiruthakutty. Ex.A6 is the true copy of a voters list of the year 1970. In this document, the name of Chiruthakutty is shown as the wife of K.E. Damodaran. Ex.A7 dated 24.03.1980 is the petition filed by the first plaintiff before the village officer, Panniyankara. In this document the first plaintiff is certified as the son of Damodaran by the village officer. The same is dated 24.03.1980. Ex.A8 is also a similar certificate describing the first plaintiff as the son of Damodaran by the village officer. This is dated 04.05.1979. In the death certificate of Chiruthakutty dated 15.12.1985 (Ex.A10) the name of her husband is shown as Damodaran. Ex.A11 is the Electoral card of the first plaintiff in which the first plaintiff is described as the son of Damodaran and Chiruthakutty is described as the wife of Damodaran. Plaintiffs have also produced several other documents such as electoral card (Ex.A12) dated 02.11.1983, Ex.A13, a community certificate dated 07.11.1980, Ex.A14-Marriage certificate dated 29.04.1971, Ex.A15, the receipt issued by the Life Insurance Corporation of India in favour of the plaintiffs etc. Ex.A20 is an important document which is a Discharge Certificate of the first plaintiff from the Military Service wherein he is described as the son of K.E. Damodaran. Ex.A21 is the S.S.L.C. book of the first plaintiff. 25. There is also enough materials on record to show that Chiruthakutty was getting some money from the family of Damodaran, including in particular the letters at Exs.A22 and A23, which were addressed to the first plaintiff by his mother- Chiruthakutty long back in the year 1976. The Trial Court has discussed this aspect of the matter as under: …..There is sufficient evidence to prove that K.E. Damodaran, Kattukandy Edathil had married Chiruthakutty and the 1st plaintiff is the son of Damodaran. It is the pertinent to note that the definite case of the plaintiffs is that the family used to give income from the family property to Chiruthakutty till her death in the year 1985. The plaintiff has produced Exts. A22 and A23 letters, addressed to the 1st defendant. On going through Ext. A22 it is seen that the same has been addressed to the 1st plaintiff by his mother Chiruthakutty long back in the year 1976. Of course the date is not mentioned in the letter but from the seal affixed in the document it is seen that the same has been posted in the year 1976. In this letter it is seen recorded that the mother went to Edathil House and also the 3rd defendant is mentioned as Umadathi. It is also seen from the letter that she is getting some money from the family. In Ext. A23 also it is seen that she is getting money from the family and there is reference to the 3rd defendant and the other defendant i.e., the daughter of the 3rd defendant i.e. DW1 has admitted that she is called as Umadathi. So Exts. A22 and A23 supports the case of the plaintiffs. The letters are seen addressed to the 1st plaintiff while he was in military service. From the letters it is seen that the mother has written the same when the 2nd child was born to him and there is also enquiries with regard to the illness of the 1st plaintiff. On going through these letters it can be seen that the documents are genuine. I find it difficult to conclude the same has been created by the plaintiffs to support their case as contended by the defendants. 26. As noticed above, the contention of the plaintiffs is that the marriage of Damodaran and Chiruthakutty was performed in the year 1940. The first plaintiff was born on 12.05.1942 as is evident from Ext.A9. The documents produced by the plaintiffs were in existence long before the controversy arose between the parties. These documents, coupled with the evidence of PW-2, would show the long duration of cohabitation between Damodaran and Chiruthakutty as husband and wife. The first plaintiff joined military service in the year 1963 and retired in the year 1979. Thereafter he has taken the steps to file a suit for partition of the suit schedule property. 27. We have also perused the evidence of the defendants. We are of the view that the defendants have failed to rebut the presumption in favour of a marriage between Damodaran and Chiruthakutty on account of their long co-habitation. In the circumstances, the High Court was not justified in setting aside the said judgment of the Trial Court.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]14. It is not disputed that the suit property belongs to one Kattukandi Edathil family which is a Thiyya family of Calicut governed by the Mitakshara Law of Inheritance. The said property originally belonged to one Kattukandi Edathil Kanaran Vaidyar who had four sons, namely, Damodaran, Achuthan, Sekharan and Narayanan. It is also admitted that Achuthan married Kalyani and they had a son named Karunakaran (Defendant No.1). Karunakaran married Umadevi (Defendant No.3) and they had three children, namely, Valsan, Kasturi and Saraswati Bai (Defendant Nos.2, 4 and 5 respectively). Sekharan and Narayanan did not marry. The plaintiffs have contended that Damodaran married one Chiruthakutty and they had a son by the name of Krishnan (Plaintiff No.1). However, the defendants have contended that Damodaran never married Chiruthakutty. The court below has recorded a finding of fact that the first plaintiff was the son of Damodaran and Chiruthakutty, but not a legitimate son.15. It is well settled that if a man and a woman live together for long years as husband and wife, there would be a presumption in favour of wedlock. Such a presumption could be drawn under Section 114 of the Evidence Act. Although, the presumption is rebuttable, a heavy burden lies on him who seek to deprive the relationship of legal origin to prove that no marriage took place.16. In Andrahennedige Dinohamy and Anr. v. Wijetunge Liyanapatabendige Balahamy and Ors. AIR 1927 PC 185 , the Privy Council laid down the general proposition as under:…where a man and woman are proved to have lived together as man and wife, the law will presume, unless the contrary be clearly proved, that they were living together in consequence of a valid marriage and not in a state of concubinage.18. In Badri Prasad v. Dy. Director of Consolidation and Others (1978) 3 SCC 527,  it was held by this Court that a strong presumption arises in favour of wedlock where two partners have lived together for long spell as husband and wife. Although the presumption is rebuttable, a heavy burden lies on him who seek to deprive the relationship of legal origin. Law leans in favour of legitimacy and frowns upon the bastardy.19. In S.P.S. Balasubramanyam v. Suruttayan alias Andali Padayachi and Others (1994) 1 SCC 460,  this Court held as under:4. What has been settled by this Court is that if a man and woman live together for long years as husband and wife then a presumption arises in law of legality of marriage existing between the two. But the presumption is rebuttable. [See: Gokul Chand v. Parvin Kumari – AIR 1952 231 : 1952 SCR 825 ].20. Similar view has been taken by this Court in Tulsa and Others v. Durghatiya and Others (2008) 4 SCC 520 ; Challamma v. Tilaga and Others (2009) 9 SCC 299 ; Madan Mohan Singh and Others v. Rajni Kant and Another (2010) 9 SCC 209  and Indra Sarma v. V.K.V. Sarma (2013) 15 SCC 755 22. The first plaintiff was examined as PW-1 who deposed that his father-Damodaran and mother-Chiruthakutty resided in the suit schedule property. PW-1 further deposed that he shifted his residence along with his mother after the demise of his father when he obtained a job. PW-1 has also stated that the defendants gave a share of the income till the death of his mother in the year 1985. PW-2 is a neighbour. In his evidence he has stated that Kattukandi Edathil Damodaran had married Chiruthakutty. They had resided at Kattukandi Edathil House as husband and wife. They have a son by the name of Krishnan. In his cross-examination, he has stated that, as per custom, some persons had participated in their marriage. Even before marriage, Chiruthakutty had been at Kattukandi Edathil House. PW-2 has also stated that Chiruthakutty had rented a room at Chalapurram and after marriage, they had stayed in a rented house and that Damodaranas sister also participated in the marriage. The evidence of PW-2 also shows that the marriage between Damodaran and Chiruthakutty was a love marriage.On comparing Ex.A-9 and Ex.B-1, it is seen that some corrections have been made in Ex.A-9 with regard to the place of birth. However, it is to be noted that in both the documents, the name of the father and the mother of the first plaintiff are one and the same i.e. K.E. Damodaran and Chiruthakutty respectively. Ex.A2 is the Insurance Policy which shows name of his house as Kattukandy Edathil. Ex. A2 dated 26.04.1966. Ex.A3 is the Secondary School Leaving Certificate of K.E. Damodaran kept in his possession. According to him he got the same since he is the son of Damodaran. Ex. A4, dated 01.08.1963, is a Trade certificate issued in favour of the first plaintiff which was issued by the Secretary of State Council for training in vocational Trades, since he was a student of the Junior Technical School, Manjeri. In this certificate the name of the first plaintiff is shown as Krishnan K. S/o Sri. K.E. Damodaran. The name of the house is shown as Edathil house, Chalappuram.25. There is also enough materials on record to show that Chiruthakutty was getting some money from the family of Damodaran, including in particular the letters at Exs.A22 and A23, which were addressed to the first plaintiff by his mother- Chiruthakutty long back in the year 1976. The Trial Court has discussed this aspect of the matter as under:…..There is sufficient evidence to prove that K.E. Damodaran, Kattukandy Edathil had married Chiruthakutty and the 1st plaintiff is the son of Damodaran. It is the pertinent to note that the definite case of the plaintiffs is that the family used to give income from the family property to Chiruthakutty till her death in the year 1985. The plaintiff has produced Exts. A22 and A23 letters, addressed to the 1st defendant. On going through Ext. A22 it is seen that the same has been addressed to the 1st plaintiff by his mother Chiruthakutty long back in the year 1976. Of course the date is not mentioned in the letter but from the seal affixed in the document it is seen that the same has been posted in the year 1976. In this letter it is seen recorded that the mother went to Edathil House and also the 3rd defendant is mentioned as Umadathi. It is also seen from the letter that she is getting some money from the family. In Ext. A23 also it is seen that she is getting money from the family and there is reference to the 3rd defendant and the other defendant i.e., the daughter of the 3rd defendant i.e. DW1 has admitted that she is called as Umadathi. So Exts. A22 and A23 supports the case of the plaintiffs. The letters are seen addressed to the 1st plaintiff while he was in military service. From the letters it is seen that the mother has written the same when the 2nd child was born to him and there is also enquiries with regard to the illness of the 1st plaintiff. On going through these letters it can be seen that the documents are genuine. I find it difficult to conclude the same has been created by the plaintiffs to support their case as contended by the defendants.26. As noticed above, the contention of the plaintiffs is that the marriage of Damodaran and Chiruthakutty was performed in the year 1940. The first plaintiff was born on 12.05.1942 as is evident from Ext.A9. The documents produced by the plaintiffs were in existence long before the controversy arose between the parties. These documents, coupled with the evidence of PW-2, would show the long duration of cohabitation between Damodaran and Chiruthakutty as husband and wife. The first plaintiff joined military service in the year 1963 and retired in the year 1979. Thereafter he has taken the steps to file a suit for partition of the suit schedule property.27. We have also perused the evidence of the defendants. We are of the view that the defendants have failed to rebut the presumption in favour of a marriage between Damodaran and Chiruthakutty on account of their long co-habitation. In the circumstances, the High Court was not justified in setting aside the said judgment of the Trial Court.29. Before parting, we deem it necessary to address a concerning trend of delay in drawing up the final decrees under Rule 18 of Or- der XX of the Code of Civil Procedure, 1908 (for short, CPC). This provision deals with decrees in suits for partition or separate pos- session of share therein. It provides as under:18. Decree in suit for partition of property or sepa- rate possession of a share therein.- Where the Court passes a decree for the partition of property or for the separate possession of a share therein, then,-(1) if and in so far as the decree relates to an estate assessed to the payment of revenue to the Government, the decree shall declare the rights of the several parties interested in the property, but shall direct such partition or separation to be made by the Collector, or any gazetted subordinate of the Collector deputed by him in this behalf, in accor- dance with such declaration and with the provisions of section 54;(2) if and in so far as such decree relates to any other immovable property or to movable prop- erty, the Court may, if the partition or separation cannot be conveniently made without further in- quiry, pass a preliminary decree declaring the right of the several parties, interested in the property and giving such further directions as may be required.Sub section (2) of Section 2 defines the decree as under:(2) decree means the formal expression of an ad- judication which, so far as regards the Court ex- pressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either pre- liminary or final. It shall be deemed to include the rejection of a plaint and the determination of any question within section 144, but shall not include—(a) any adjudication from which an appeal lies as an appeal from an order, or(b) any order of dismissal for default.Explanation.—A decree is preliminary when fur- ther proceedings have to be taken before the suit can be completely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly preliminary and partly final;30. It is clear from the above that a preliminary decree declares the rights or shares of the parties to the partition. Once the shares have been declared and a further inquiry still remains to be done for actually partitioning the property and placing the parties in sep- arate possession of the divided property, then such inquiry shall be held and pursuant to the result of further inquiry, a final decree shall be passed. Thus, fundamentally, the distinction between pre- liminary and final decree is that:- a preliminary decree merely de- clares the rights and shares of the parties and leaves room for some further inquiry to be held and conducted pursuant to the directions made in preliminary decree and after the inquiry having been con- ducted and rights of the parties being finally determined, a final de- cree incorporating such determination needs to be drawn up.31. Final decree proceedings can be initiated at any point of time. There is no limitation for initiating final decree proceedings. Either of the parties to the suit can move an application for preparation of a final decree and, any of the defendants can also move application for the purpose. By mere passing of a preliminary decree the suit is not disposed of. [See : Shub Karan Bubna v. Sita Saran Bubna (2009) 9 SCC 689 ; Bimal Kumar and Another v. Shakuntala Debi and Others (2012) 3 SCC 548] .32. Since there is no limitation for initiating final decree proceed- ings, the litigants tend to take their own sweet time for initiating fi- nal decree proceedings. In some States, the courts after passing a preliminary decree adjourn the suit sine die with liberty to the par- ties for applying for final decree proceedings like the present case. In some other States, a fresh final decree proceedings have to be initiated under Order XX Rule 18. However, this practice is to be discouraged as there is no point in declaring the rights of the par- ties in one proceedings and requiring initiation of separate proceed- ings for quantification and ascertainment of the relief. This will only delay the realization of the fruits of the decree. This Court, in Shub Karan Bubna (supra), had pointed out the defects in the procedure in this regard and suggested for appropriate amendment to the CPC. The discussion of this Court is in paragraphs 23 to 29 which are as under:A suggestion for debate and legislative action23. The century old civil procedure contemplates judg- ments, decrees, preliminary decrees and final decrees and execution of decrees. They provide for a pause be- tween a decree and execution. A pause has also devel- oped by practice between a preliminary decree and a final decree. The pause is to enable the defendant to volun- tarily comply with the decree or declaration contained in the preliminary decree. The ground reality is that defen- dants normally do not comply with decrees without the pursuance of an execution. In very few cases the defen- dants in a partition suit voluntarily divide the property on the passing of a preliminary decree. In very few cases, defendants in money suits pay the decretal amount as per the decrees. Consequently, it is necessary to go to the second stage, that is, levy of execution, or applications for final decree followed by levy of execution in almost all cases.24. A litigant coming to court seeking relief is not in- terested in receiving a paper decree when he succeeds in establishing his case. What he wants is relief. If it is a suit for money, he wants the money. If it is a suit for property, he wants the property. He naturally wonders why when he files a suit for recovery of money, he should first engage a lawyer and obtain a decree and then again engage a lawyer and execute the decree. Similarly, when he files a suit for partition, he wonders why he has to first secure a preliminary decree, then file an application and obtain a final decree and then file an execution to get the actual relief. The commonsensical query is: why not a continuous process? The litigant is perplexed as to why when a money decree is passed, the court does not fix the date for payment and if it is not paid, proceed with the execution; when a preliminary decree is passed in a partition suit, why the court does not forthwith fix a date for appointment of a Commissioner for division and make a final decree and deliver actual possession of his sepa- rated share. Why is it necessary for him to remind the court and approach the court at different stages?25. Because of the artificial division of suits into pre- liminary decree proceedings, final decree proceedings and execution proceedings, many trial Judges tend to believe that adjudication of the right being the judicial function, they should concentrate on that part. Consequently, ade- quate importance is not given to the final decree proceed- ings and execution proceedings which are considered to be ministerial functions. The focus is on disposing of cases rather than ensuring that the litigant gets the re- lief. But the focus should not only be on early disposal of cases, but also on early and easy securement of relief for which the party approaches the court. Even among lawyers, importance is given only to securing of a decree, not securing of relief. Many lawyers handle suits only till preliminary decree is made, then hand it over to their ju- niors to conduct the final decree proceedings and then give it to their clerks for conducting the execution pro- ceedings.26. Many a time, a party exhausts his finances and energy by the time he secures the preliminary decree and has neither the capacity nor the energy to pursue the matter to get the final relief. As a consequence, we have found cases where a suit is decreed or a preliminary de- cree is granted within a year or two, the final decree pro- ceeding and execution takes decades for completion. This is an area which contributes to considerable delay and consequential loss of credibility of the civil justice sys- tem. Courts and lawyers should give as much importance to final decree proceedings and executions, as they give to the main suits.27. In the present system, when preliminary decree for partition is passed, there is no guarantee that the plain- tiff will see the fruits of the decree. The proverbial obser- vation by the Privy Council is that the difficulties of a liti- gant begin when he obtains a decree. It is necessary to remember that success in a suit means nothing to a party unless he gets the relief. Therefore, to be really meaningful and efficient, the scheme of the Code should enable a party not only to get a decree quickly, but also to get the relief quickly. This requires a conceptual change regarding civil litigation, so that the emphasis is not only on disposal of suits, but also on securing relief to the litigant.28. We hope that the Law Commission and Parliament will bestow their attention on this issue and make appro- priate recommendations/amendments so that the suit will be a continuous process from the stage of its initia- tion to the stage of securing actual relief.29. The present system involving a proceeding for dec- laration of the right, a separate proceeding for quantifica- tion or ascertainment of relief, and another separate pro- ceeding for enforcement of the decree to secure the relief, is outmoded and unsuited for present requirements. If there is a practice of assigning separate numbers for final decree proceedings, that should be avoided. Issuing fresh notices to the defendants at each stage should also be avoided. The Code of Civil Procedure should provide for a continuous and seamless process from the stage of filing of suit to the stage of getting relief.33. We are of the view that once a preliminary decree is passed by the Trial Court, the court should proceed with the case for drawing up the final decree suo motu. After passing of the preliminary de- cree, the Trial Court has to list the matter for taking steps under Order XX Rule 18 of the CPC. The courts should not adjourn the matter sine die, as has been done in the instant case. There is also no need to file a separate final decree proceedings. In the same suit, the court should allow the concerned party to file an appropri- ate application for drawing up the final decree. Needless to state that the suit comes to an end only when a final decree is drawn.