IN THE HIGH COURT OF KERALA AT ERNAKULAM
RSA No. 923 of 2007()
1. THOTTUNKARA KUNHIKRISHNAN @ KARUNAKARAN,
... Petitioner
2. ARAYAKKI KALYANI, W/O.KUNHIRAMAN,
3. THOTTUNKARA LAKSHMI, D/O. DO.
Vs
1. CHEMBAN JANAKI, D/O.SANKARAN,
... Respondent
2. THOTTUNKARA PRABHAKARAN,
3. THOTTUNKARA VIJAYAN, S/O.DO.
4. THOTTUNKARA KALLYANI @ CHANDRI,
5. THOTTUNKARA SHYAMALA, D/O. DO. DO.
6. THOTTUNKARA RADHA, D/O.DO. DO.
7. THOTTUNKARA SHYLAJA, D/O. DO. DO.
For Petitioner :SRI.K.V.SOHAN
For Respondent : No Appearance
The Hon'ble MR. Justice M.SASIDHARAN NAMBIAR
Dated :31/10/2007
O R D E R
M.SASIDHARAN NAMBIAR, J.
...........................................
R.S.A.No.923 OF 2007
............................................
DATED THIS THE 31st DAY OF OCTOBER, 2007
JUDGMENT
Plaintiff and defendants 1 and 2 in O.S.277 of 1998 before
Munsiff Court, Kuthuparamba are the appellants. Defendants are
respondents. First Appellant instituted the suit seeking a
decree for partition contending that second appellant/first
defendant is the widow and first appellant and third appellant/
second defendant are the children of deceased Thottumkara
Kunhiraman. The plaint schedule property originally belonged
to Thottumkara Kunhiraman. Appellants contended that
Thottumkara Kunhiraman was living with first respondent/third
defendant and respondents 2 to 7/defendants 4 to 9 are the
legitimate children of Kunhiraman in first respondent and they
did not inherit any right over the assets of Kunhiraman and
being the legally wedded wife, only second appellant is entitled
to a share along with their children appellants 1 and 3 and
respondents are not entitled to any share.
2. Respondents 1 to 7 filed a joint written statement
contending that Thottumkara Kunhiraman was not the husband
of second appellant and appellants 1 and 3 are not the children
RSA 923/2007 2
of Kunhiraman and there was no marriage between Kunhiraman
and second appellant and first respondent is the legally wedded
wife of Kunhiraman and their marriage was solemnised as per
the customary rights and rituals and respondents 2 to 7 were
born to first respondent in that relationship and respondents
alone are entitled to inherit the properties of Kunhiraman. It
was also contended that Kunhiraman had executed Ext.B17 will
whereunder properties were bequeathed to respondents 2 to 4
and 7 and later respondents 2 to 4 and 7 assigned their right in
favour of second respondent by release deed dated 14.10.1996
and appellants are not entitled to claim any share. Appellants 2
and 3 in their written statement admitted the plaint allegations
and reiterated the same and claimed their share.
3. Learned Munsiff, on the evidence of PWs 1 & 2, Dws 1
to 5 and Exts.A1 to A8 and Exts.B1 to B17 and Exts.X1 to X2(a),
dismissed the suit holding that first appellant failed to establish
that second appellant was the legally wedded wife of
Kunhiraman or that appellants 1 and 3 were born to second
appellant in that marital relationship and therefore they are not
entitled to inherit the properties of Kunhiraman. Appellants
together challenged the decree and judgment before Sub Court,
RSA 923/2007 3
Thalassery in A.S.40 of 2003. Learned Sub Judge, on
reappreciation of evidence, confirmed the findings of learned
Munsiff and dismissed the appeal. It is challenged by them in
the second appeal.
4. Learned counsel appearing for appellants was heard.
The argument of the learned counsel is that courts below did not
appreciate the evidence in the proper perspective and
appreciation of evidence was perverse. It was argued that there
is no documentary evidence to prove the marriage of
Kunhiraman either with second appellant or with first
respondent and fact that appellants admitted that Kunhiraman
was living with first respondent and respondents 2 to 7 were
born to Kunhiraman in first respondent does not establish that
there was a legal marriage between Kunhiraman and first
respondent or that respondents 2 to 7 are the legitimate children
of Kunhiraman. It was argued that marriage of Kunhiraman
with second appellant was in 1947 and evidence should have
been appreciated in the social set up prevailing at that period. It
was argued that Kunhiraman was having “punam” cultivation
and evidence of DW4, the brother of first respondent establish
that Kunhiraman had gone along with him for “punam”
RSA 923/2007 4
cultivation which was 65 kms away from the plaint schedule
property and at that time first respondent accompanied
Kunhiraman and respondents 2 to 7 the children were born in
that relationship and first respondent was only a concubine and
on the evidence courts below should have found that
Kunhiraman had married second appellant and appellants 1 and
3 were born in that wedlock. Learned counsel also argued that
Ext.A3 and A4 Birth Certificates of appellants 1 and 3 establish
that Thottumkara Kunhiraman was the father of appellants 1 and
3 and courts below should have granted the decree sought for.
5. What was contended by appellants was that
Thottumkara Kunhiraman had married second appellant Kalyani
and appellants 1 and 3 were born in that wedlock. That case
was denied by respondents. It was admitted by first appellant
even in the plaint and appellants 2 and 3 in their written
statement that respondents 2 to 7 were born to first respondent
in Kunhiraman, though they qualify respondents 2 to 7 as
illegitimate children of Kunhiraman and first respondent a
concubine. As appellants are claiming a share in the plaint
schedule property on the basis that second appellant is the
widow and appellants 1 and 3 are the legitimate children of
RSA 923/2007 5
Kunhiraman, burden is heavily on them to establish both the
facts. The argument of learned counsel is that even though
there is no documentary evidence to prove marriage of second
appellant, that is the same case with the case of marriage of first
respondent and courts below should not have relied on the
evidence on the side of respondents to uphold their claim.
6. There is clear distinction. When respondents denied in
toto the entire claim of appellants, both marriage of second
appellant with Kunhiraman and that appellants 1 and 3 are the
children of Kunhiraman, appellants unambiguously admitted
that Kunhiraman was living with first respondent and
respondents 2 to 7 were born to her in that relationship. The
evidence also establish Kunhiraman died while he was residing
with respondents and after the death of Kunhiraman, plaint
schedule property is in the possession of respondents. In such
circumstances, unless appellants establish the legal marriage
between Kunhiraman and second appellant, and that appellants
1 and 3 are the children of Kunhiraman, they cannot succeed in
the suit. Even the failure of first respondent to establish her
marriage with Kunhiraman will not enable appellants to get a
decree, on the facts and circumstances of the case.
RSA 923/2007 6
7. The only evidence adduced by appellants to establish
the marriage of Kunhiraman with second appellant is that of
PW2, the nephew of Kunhiraman. As rightly found by courts
below, even the year, month or date or place of the alleged
marriage was pleaded. The only evidence adduced to prove the
marriage was that of second appellant as DW1 and PW2 the
nephew of Kunhiraman. The evidence of PW2 establish that he
was only a boy aged 5 to 8 years at the time of alleged marriage.
Trial Court and first appellate court, on appreciation of evidence
of PW2, found that his evidence cannot be relied on and on his
evidence, it is not possible to uphold the marriage alleged.
Though learned counsel persuaded me to reappreciate the
evidence, I do not find that appreciation of evidence of PW2 by
courts below was perverse, warranting reappreciation of
evidence or substitution of finding of this court to that of the
courts below on such reappreciation of evidence, in exercise of
the powers of this court under Section 100 of Code of Civil
Procedure. It is clear that evidence of PW2 was appreciated in
the proper perspective.
8. So also evidence of DW1 was properly appreciated by
courts below. It was admitted by DW1 that there are documents
RSA 923/2007 7
like ration card, establishing the fact that Kunhiraman was living
with appellants. DW1 also deposed that Thottumkara
Kunhiraman was shown as the head of the family in the ration
card. In spite of this admission, no material was produced in
support of the claim. Courts below has rightly drawn adverse
inference for not producing the relevant records. The argument
of learned counsel is that Ext.A3 and A4 show that Thottumkara
Kunhiraman is the father of appellants 1 and 3. But courts below
relied on the evidence of DW1 herself to hold that there is
another Thottumkara Kunhiraman in the locality and identity of
Thottumkara Kunhiraman seen in Ext.A3 and A4 as the father of
respondents 2 to 7 was not established. It is in such
circumstances, courts below found that appellants did not
establish that second appellant is the widow of Kunhiraman or
that appellants 1 and 3 are the children of Kunhiraman. The
said factual finding entered into by courts below cannot be
interfered by reappreciation of evidence as sought for by the
learned counsel.
9. Though there is no documentary evidence to prove the
marriage of first respondent with Kunhiraman, courts below on
the admitted facts and evidence found that the long cohabitation
RSA 923/2007 8
of Kunhiraman and first respondent and fact that respondents 2
to 7 were born in that relationship, establish that first
respondent is the legally wedded wife and respondents 2 to 7 are
the children in that wedlock. On the admitted facts and
evidence, findings of the courts below on that aspect is also
correct. Moreover, evidence establish that plaint schedule
property is admittedly in the possession of respondents.
Appellants specifically submitted before the courts below that
they do not seek any relief as against respondents. No decree
for recovery of possession of the property from respondents was
also sought. In such circumstances, courts below rightly held
that appellants are not entitled to any share in the plaint
schedule property. As there is no substantial question of law
involved, appeal is dismissed in limine.
M.SASIDHARAN NAMBIAR, JUDGE
lgk/-