IN THE HIGH COURT OF KERALA AT ERNAKULAM
SA.No. 272 of 1995()
1. JANAKI AMMA
... Petitioner
Vs
1. DEVAKI AMMA
... Respondent
For Petitioner :SRI.KODOTH PUSHPARAJAN
For Respondent :SRI.KRISHNAKUMAR MANGOT
The Hon'ble MR. Justice P.BHAVADASAN
Dated :08/06/2009
O R D E R
P. BHAVADASAN, J.
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S.A. No. 272 of 1995
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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.
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P. BHAVADASAN, J.
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S.A. No. 272 of 1995
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JUDGMENT
08.06.2009