IN THE HIGH COURT OF KERALA AT ERNAKULAM
AS.No. 875 of 1998(C)
1. MANNAT DEVI
... Petitioner
Vs
1. PUTHENVALAPPIL DEVU
... Respondent
For Petitioner :SRI.N.L.KRISHNAMOORTHY
For Respondent :SRI.R.PARTHASARATHY
The Hon'ble MR. Justice THOTTATHIL B.RADHAKRISHNAN
The Hon'ble MR. Justice P.BHAVADASAN
Dated :02/11/2010
O R D E R
Thottathil B.Radhakrishnan
&
P.Bhavadasan, JJ.
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A.S.No.875 of 1998-C
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Dated this the 2nd day of November, 2010.
Judgment
Thottathil B.Radhakrishnan, J.
1.Mannan died intestate on 19.8.1964. Matha,
admittedly, his wife, died intestate on 4.8.1990.
They had eight children. Of them, Devu and
Bhaskaran sued for partition. This appeal arises
from that. By that time, Kalliani, a daughter of
Matha, had died intestate on 12.6.1994. Her heirs
are arrayed defendants 5 to 9. Anandan, a son
died earlier, on 30.11.1983, again intestate. His
widow and children are defendants 10 to 14.
2.I.A.No.669/1995 filed by strangers to the suit
for impleadment was allowed as per order dated
30.8.1995 bringing in additional defendants 15 to
17. They claimed that Mannan had another wife
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Kalliani who died leaving behind defendants 15
and 16 and Bhaskaran of whom Bhaskaran also died
leaving behind defendant no.16.
3.With this, it appears that the plaintiffs did not
further prosecute the suit and their counsel
reported no instructions. Thereupon,
I.A.1296/1996 filed by those who were impleaded
as defendants 15 and 17, was allowed transposing
them as plaintiffs and Devu and Bhaskaran, the
original plaintiffs being transposed as
defendants 18 and 19.
4.Thereupon, the fundamental lis between the
parties revolved around the question as to
whether Mannan had a wife Kalliani and
consequently, whether defendants 15 to 17 whom we
shall refer by that status, were entitled to
share in the assets of Mannan.
5.Plaint A schedule admittedly belonged exclusively
to Mannan and plaint B schedule admittedly
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belonged to Matha, i.e., the mother of the
original plaintiffs Devu and Bhaskaran and
defendants 1 to 4, Kalliani and Anandan. No
arguments were addressed before us to the contra.
6.The trial court granted a preliminary decree of
plaint A and B schedule properties exclusively to
the children of Matha holding that no marriage
between Mannan and Kalliani is proved and
therefore, defendants 15 to 17 are not entitled
to any share even in plaint A schedule that
belonged to Mannan.
7.This appeal is by the transposed plaintiffs
(defendants 15 and 17 and defendant no.16),
meaning thereby, the heirs of Kalliani.
8.With the aforesaid, before proceeding further, we
affirm the preliminary decree for partition
granted by the trial court as regards Mannan’s
estate, i.e., plaint A schedule to be partitioned
among the original plaintiffs Devu and Bhaskaran
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and defendants 1 to 4, 5 to 9 as heirs of
Kalliani and defendants 10 to 14, heirs of
Anandan.
9.The only issue that would survive is as to
whether, in sharing B schedule that belonged to
Matha, defendants 15, 16 and 17 are entitled to
share as children of Mannan.
10.The existence of a marriage between Mannan and
Matha until 1964 when Mannan died, is not
disputed by the heirs of Kalliani. Obviously,
therefore, Kalliani’s alleged marriage with
Mannan, even if shown, would necessarily be void
or voidable in terms of the laws that governed
the parties who are Malabar Thiyyas, be it Madras
Aliyasantana Act or the Malabar Marriage Act,
1896 or the provisions of the Hindu Marriage Act,
1955. We are also not shown any other provisions
of law on the basis of which it could be
contended that Mannan, a Malabar Thiyya, could
have had two wives living at the same time.
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11.In the light of the above, the only question
that would survive for consideration is as to
whether the appellants, namely, the original
defendants 15 to 17 are entitled to any share in
the estate of Mannan on the basis of Section 16
of the Hindu Marriage Act.
12.In terms of Section 3(1)(j) of the Hindu
Succession Act, defining the word “related”
under the Hindu Succession Act and the proviso
thereto, the only room for any claim for
succession by any child of a marriage which is
null and void is only with reference to Section
16 of the Hindu Marriage Act. Reference is made
by the learned counsel for the appellants to the
decision of the Apex Court in Parayankandiyal
Eravath Kanapravan Kalliani Amma v. K.Devi,
(1996) 4 SSC 76 rendered with reference to the
provisions of Section 16 of the Hindu Marriage
Act recognizing the removal of distinction
between the child of void and voidable marriages
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and thereby putting it in tune with Article 14 of
the Constitution. As noticed by the Apex Court in
Bharatha Matha v. Vijaya Renganathan, [2010(2)
KLT SN 65(C.No.62)SC], recourse to Section 16 is
permissible only for the purpose of claiming
share in self acquired properties of the parents
and the said provision cannot be utilised to
claim inheritance in ancestral coparcenary
property, even by any dilution of the provisions
contained in Section 16 based on the equality
doctrine contained in Article 14 of the
Constitution.
13.On to the evidence, we find that additional 15th
defendant, who is the eldest among the children
of Kalliani, gave evidence as P.W.1. She proved
Exts.A1 to A3 which are the certificates of birth
issued as regards defendant 15, defendant 16 and
the father of defendant 17 recording their date
of births as 4.12.1927, 16.10.1934 and 3.7.1937
respectively. She also spoke that the persons
named in those certificates as the father and
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mother of the child in question is Mannan and
Kalliani. That assertion is not seriously denied
by any contra evidence, though there is cross-
examination on this point which, in our view, has
not affected the credibility of the evidence of
P.W.1 in this regard. With this, is Ext.A4, the
invitation letter for the marriage of defendant
no.17, the daughter of Bhaskaran. That invitation
is extended by the first defendant who gave
evidence as D.W.1. The first defendant is the
eldest son of Matha and Mannan. Exts.A5 and A6
are photographs taken at the marriage of
defendant no.17, the daughter of Bhaskaran. The
evidence of D.W.1, the eldest son of Matha is
that his father Mannan had two wives, namely,
Matha and Kalliani and that he is identifiable
from the photographs produced as Exts.A5 and A6.
He says that it was he who extended the
invitation for the said marriage, though in the
cross examination he also stated that he did so
as the elder in the locality.
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14.With the aforesaid evidence on record, we find
that there is no contra evidence either from the
original plaintiffs, namely, Devu and Bhaskaran
or from any among the heirs of Kalliani and
Anandan, whereas the only evidence is from D.W.1,
who is the first defendant, the eldest son of
Mannan. Though it is suggested that D.W.1 was
sailing along with the children of Kalliani, we
do not find any material on record to reasonably
infer to that effect. This is because, the
evidence of D.W.1, when used in favour of
Kalliani’s heirs, would result in depriving him
of his otherwise large share which he would have
got as an heir of Mannan. Under such
circumstances, we are not impressed to take the
evidence of D.W.1 as motivated, in any manner,
against the interest of the original plaintiffs.
We also take the setting in which D.W.1 gives
evidence; as the eldest son of Mannan; as the
eldest male member of the family; as the senior
person of the locality etc. D.W.1 having spoken
to the effect that Kalliani is the wife of
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Mannan, in the adjudication of the suit which was
filed in the year 1994, we do not find it
necessary to further probe for evidence relating
to a customary marriage of Mannan with Kalliani.
When Mannan admittedly died way back on 19.8.1964
and the eldest among the children of Mannan and
Kalliani (defendant no.15) was born on 4.12.1927,
it may be too far-fetched to expect any evidence
in that regard. Even if we were to assume that
there is no legal evidence to hold that there is
a proved and continued cohabitation between
Mannan and Kalliani, there is sufficient material
on record to hold that they lived as husband and
wife and they had three children and the children
born to Matha had also recognised the children
born to Kalliani as children of Mannan. This is
how we appreciate the evidence of D.W.1. It is in
this context that we have necessarily to
visualize the social acceptance that the
relationship between Mannan and Kalliani had
received. The evidence of D.W.1 vouchsafed that
defendant no. 17’s marriage was held inviting the
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public. Ext.A4 extended by D.W.1 (defendant no.1)
shows that it was he who extended the invitation
for the marriage of defendant no.17. D.W.1 was
the eldest among the children of Mannan and
defendant no.17 was the daughter of Bhaskaran. In
Ext.A4, D.W.1 Kunhikannan makes the invitation by
calling defendant no.17 Bindu as his brother’s
daughter. This, obviously, means that for all
intents and purposes, even on 30.12.1990, i.e.,
after the demise of Matha, even D.W.1 had treated
Bhaskaran, the father of defendant no.17 as his
brother, may be, a half brother.
15.On the aforesaid materials, we are unable to
agree with the decision of the trial court that
the heirs of Kalliani, defendants 15 to 17 are
not entitled to share in the plaint A schedule
property.
In the result, the impugned preliminary decree in
so far as it relates to A schedule property is
set aside. It is ordered that A schedule will be
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divided into 12 shares. From that, original
defendants, 15 , 16 and 17 (i.e., transposed
plaintiffs 3 and 4 and defendant no.16) will be
allotted one share each and original plaintiffs
Devu and Bhaskaran and defendants 1 to 4 would be
allotted one share each; defendants 5 to 9 would
be allotted one share jointly and defendant
nos.10 to 14 would be allotted one share jointly
and one share of Matha will be allotted jointly
to original plaintiffs Devu and Bhaskaran and
defendants 1 to 14. It is also clarified that the
children of Matha would be eligible to seek
allotment as regards Matha’s share in final
decree proceedings, if they so desire. The
preliminary decree passed by the trial court is
modified to the said effect. No costs.
Thottathil B.Radhakrishnan,
Judge.
P.Bhavadasan,
Judge.
Sha/09/2411
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Thottathil B.Radhakrishnan
&
P.Bhavadasan, JJ.
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A.S.875 of 1998-C
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Judgment
2nd November, 2010.