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/-