High Court Kerala High Court

Santha vs T R Viswanathan on 28 March, 2007

Kerala High Court
Santha vs T R Viswanathan on 28 March, 2007
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

SA No. 417 of 1990(G)



1. SANTHA
                      ...  Petitioner

                        Vs

1. T R VISWANATHAN
                       ...       Respondent

                For Petitioner  :SRI K R THAMPAN

                For Respondent  :SRI.K.P.ARAVINDAKSHAN

The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR

 Dated :28/03/2007

 O R D E R
                      M.SASIDHARAN NAMBIAR, J.

                        ...........................................

                          S.A.No. 417   OF   1990

                        ............................................

           DATED THIS THE  28th  DAY OF MARCH, 2007


                                   JUDGMENT

Plaintiffs in O.S.536 of 1976 on the file of Munsiff Court,

Paravur are appellants. First appellant is the mother and

second appellant, her minor child. Respondents are the

defendants. Sixth respondent is the mother and respondents 1

to 5 are her children. Apart from respondents 1 to 5, sixth

respondent had another son by name, Tyagarajan. The case of

the appellants was that Tyagarajan legally married her at her

house on 28.12.1974 in accordance with the custom prevailing

in their community and on 25.11.1975 while they were living as

husband and wife, Tyagarajan died and later second appellant

was born on 28.12.1975 to first appellant and Tyagarajan.

Appellants contended that plaint schedule property was

alloted to the share of Tyagarajan under Ext.A1 partition deed.

Appellants instituted the suit seeking declaration of their title

to the plaint schedule property as legal heirs of deceased

Tyagarajan and for recovery of possession with mesne profits

from respondents.

2. First respondent filed a written statement denying the

contentions raised in the plaint. It was contended that first

SA 417/1990 2

appellant is not the legally wedded wife of Tyagarajan and

second appellant is not the son born to Tyagarajan and there

was no marriage as alleged and they were not living as husband

and wife. It was also contended that when first appellant

become pregnant there was an attempt to settle the paternity

of second appellant and on 21.11.2005, Tyagarajan did not

reach home as usual and on enquiry it was found that he was

being detained by one Paramu at his house and first

respondent reached there and found appellants and others

attempting to obtain signature in the SNDP register and that

attempt was foiled by the timely intervention of first

respondent and on 25.11.1975, Tyagarajan on his way to

Paravur was taken away by appellants to the Police Station and

under threat he was compelled to execute a document and

appellants have no right to claim the properties of Tyagarajan

and therefore the suit is to be dismissed.

3. Learned Munsiff framed necessary issues. On the side

of appellants, first appellant was examined as PW1 and a

neighbour was examined as PW2. The husband of fourth

defendant was examined as PW3. Exts.A1 and A2 were marked.

On the side of first respondent, DW1 was examined and Ext.B1

was marked. Learned Munsiff, on the evidence found that

evidence of PWs 2 and 3 cannot be believed and their evidence

SA 417/1990 3

is insufficient to corroborate the evidence of PW1 with regard

to the marriage. Learned Munsiff, also found that appellants

failed to establish that first appellant is the legally wedded wife

and second appellant the son of deceased Tyagarajan and

therefore dismissed the suit. Appellants challenged the decree

and judgment before Sub Court, North Paravur in A.S.17/1982.

The first appellate court elaborately considered the evidence.

On re-appreciation of evidence, learned Sub Judge found that

evidence of Pws 2 and 3 cannot be believed and evidence of

PW1 does not establish any legal marriage or that second

appellant is the child born in her relationship with Tyagarajan

and therefore confirmed the decree and judgment passed by

learned Munsiff and dismissed the appeal. It is challenged in

this second appeal.

4. This court without formulating substantial questions

of law, as per judgment dated 17.11.1997, on reappreciating

facts and evidence, allowed the second appeal. It was

challenged before the Apex Court in Civil Appeal No.4394 of

2000. The Hon’ble Supreme Court, holding that the

concurrent findings of the trial court and first appellate court

were reversed without even formulating any substantial

question of law, set aside the judgment of this court and

remanded the second appeal for fresh disposal after

SA 417/1990 4

formulating substantial question of law, if any, arising in the

case.

5. Learned counsel appearing for appellants and

respondents were heard. The evidence was also perused.

6. The deceased Tyagarajan who admittedly died on

25.11.1975 under suspicious circumstances, is the son of sixth

respondent and brother of respondents 1 to 5. The evidence of

first respondent as DW1 that deceased Tyagarajan was living

with him till his death was not challenged at the time of

evidence. Therefore it is to be taken that deceased Tyagarajan

was living along with first respondent. The case of appellants

was that deceased Tyagarajan married her in in accordance

with the custom prevailing in their community, on 28.12.1974

and they were living as husband and wife and second appellant

was born in that lawful wedlock. The marriage and paternity

of second appellant and the fact that Tyagarajan and first

appellant were living together were all denied by respondents.

Definitely, burden is on the appellants to establish the legal

marriage and that second appellant was born in her

relationship with deceased Tyagarajan .

7. To prove the legal marriage apart from examining

herself as PW1, two witnesses were examined. Learned Munsiff

and learned Sub Judge elaborately considered the evidence of

SA 417/1990 5

each of them and found that their evidence cannot be believed.

PW2 was admittedly a neighbour of the appellants. According

to PW2, Tyagarajan was residing one and a half kms away

from his house. PW2 was examined to prove that he

participated in the marriage. Appreciating the evidence of

PW2, learned Munsiff and learned Sub Judge found that his

case that he was present at the time of marriage cannot be

believed. The question is whether there is any reason to hold

that appreciation of evidence was not proper and whether any

material was omitted to be appreciated or any fact was

misappreciated. Being a neighbour if there was a marriage as

claimed by the appellants, presence of PW2 at the marriage is

quite natural. But while considering the question whether

there was a marriage, evidence of PW2 has to be scrutinized in

the proper perspective. If the case of PW2 was that he was

present at the time of marriage, being a neighbour and being

invited by either first appellant or her parents, his case could

have been appreciated. But that is not the case of PW2.

According to PW2, he was present at the marriage, as he was

invited by deceased Tyagarajan . The further examination of

PW2 establish that he has no such close contact with PW2. If,

in fact the marriage of first appellant was conducted as

claimed by appellants, against the objection of family of

SA 417/1990 6

Tyagarajan and that too when the relatives of Tyagarajan did

not participate, this fact would have been definitely known to

PW2 and would have been deposed by PW2. On the other hand,

as rightly appreciated by courts below, PW2 expressed

ignorance about these matters. I find no reason to differ with

the appreciation of evidence of PW2 by the courts below.

8. PW3 is none other than the husband of fourth

respondent. It was argued that evidence of PW3 establishes

that first appellant and deceased Tyagarajan had stayed in the

house of fourth respondent and PW3 for four days as husband

and wife and evidence of a close relative of Tyagarajan cannot

be ignored and courts below should have accepted the

evidence. Both the courts have given cogent and sufficient

reason to disbelieve the evidence of PW3. It was brought out

from PW3 that the relationship between first respondent and

fourth respondent was strained. Evidence establish that even

before Ext.B1 partition relationship was strained. A suit for

partition was filed by fourth respondent and after execution of

Ext.B1 partition, that case was settled and even thereafter the

relationship continued to be strained. It was admitted by PW3

that Ext.B1 petition was filed by fourth respondent against first

respondent alleging that an areca tree was cut and damage was

caused by first respondent. In such circumstances the finding

SA 417/1990 7

of courts below that there are sufficient reasons for PW3 to

depose against the respondents is perfectly correct. Moreover,

evidence of PW3 does not inspire any confidence. Even though

PW3 deposed that Tyagarajan married first appellant, he has

no case that he was present at the time of marriage. According

to PW3, he was told about the marriage by Tyagarajan and that

too in January or February 1975, when according to appellants,

marriage was on 28.12.1974. PW3 also deposed that he did not

even see the deadbody of Tyagarajan. The explanation of PW3

for not attending the funeral was that his presence will be

resisted by respondents. That is sufficient to prove that his

relationship with Tyagarajan or respondents was not at all

cordial. A proper appreciation of evidence of PW3 establish

that he cannot be relied on to find either the fact of marriage

or the fact that the first appellant and deceased Tyagarajan

were living together as husband and wife. Even though PW3

deposed that deceased Tyagarajan along with first appellant

stayed in their house, for three or four days after marriage

even when examined as PW1 first appellant had no such case.

Therefore I find no reason to differ with the appreciation of

evidence of PW3.

9. Then what remains is only the evidence of PW1.

Though PW1 claimed that there was a marriage in accordance

SA 417/1990 8

with the custom prevailing in their community on appreciating

the evidence courts below found that there was no such

marriage. Though nothing was mentioned about Ext.A2

marriage agreement between the first appellant and

Tyagarajan in the plaint, at the time of evidence it was

brought out that Ext.A2 registered agreement was entered

into on 25.11.1975. Ext.A2 was executed and registered at 2.50

pm on 25.11.1975. Admittedly, Tyagarajan died on the same

day. According to PW1, Tyagarajan died at about 3 pm.

Whatever be the time, the fact that his deadbody was found, on

the way near a paddy field was admitted by both parties. When

examined as DW1, first respondent deposed that he consumed

poison and committed suicide. That aspect was also not cross

examined. It is true that though respondents challenged

Ext.A2 on the ground that it was vitiated by coercion and force

exerted by appellants, as no acceptable evidence was adduced

in support of that case, courts below rightly rejected that case.

Ext.A2 agreement only shows that deceased Tyagarajan and

first appellant, on the date of his death, had agreed to live

together as husband and wife and not to terminate the

relationship except through court or by mutually agreed

document. Ext.A2 will not create a legal marriage. If in fact

there was a marriage on 28.12.1974, as claimed by appellants,

SA 417/1990 9

and Tyagarajan and first appellant were living as husband and

wife, such a recital would have been shown in Ext.A2. Ext.A2

does not show that before that date, there was any relationship

between them or that they were living as husband and wife. On

the other hand, Ext.A2 only evidences a decision to live

together as husband and wife from that date onwards which is

contrary to the case pleaded and sought to be proved. When

the entire evidence is appreciated, I cannot agree with the

argument of the learned counsel appearing for the appellants

that appreciation of evidence by courts below was either

perverse or improper warranting interference in exercise of

powers of this court under Section 100 of Code of Civil

Procedure. I find no substantial question of law involved in the

appeal or any merit in the appeal. Appeal is dismissed.

M.SASIDHARAN NAMBIAR, JUDGE

lgk/-