IN THE HIGH COURT OF KERALA AT ERNAKULAM
AS.No. 102 of 1996(A)
1. VALSAN
... Petitioner
Vs
1. KRISHNAN
... Respondent
For Petitioner :SRI.M.C.SEN (SR.)
For Respondent :SRI.P.N.KRISHNANKUTTY ACHAN(SR.)
The Hon'ble MR. Justice M.N.KRISHNAN
Dated :05/02/2009
O R D E R
M.N. KRISHNAN, J.
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A.S. NOs. 102 & 107 OF 1996
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Dated this the 5th day of February, 2009.
J U D G M E N T
Both these appeals are preferred against the judgment
and decree in O.S.371/90 of the Subordinate Judge,
Kozhikode. These appeals had arisen out of the case for
partition where the plaintiff contends that the first plaintiff is
the son of one Damodaran and the 2nd plaintiff is the son of
the first plaintiff and that the first plaintiff had been born in
the wedlock of Damodaran and Chiruthakutty and that the
property belongs is in ancestral nature to the joint family of
the plaintiffs and defendants and therefore prays for division
of the property into two equal shares and to allot one such
share. The first defendant died during the pendency of the
suit and defendants 2 to 5 are his legal representatives. The
2nd defendant being a member of the co-parcenery had been
impleaded as the 2nd defendant even at the inception of the
suit. They have contended for the position that the first
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plaintiff is not the son of Damodaran and Damodaran had
never married Chiruthakutty and therefore the plaintiffs are
not entitled to any right over the property and the suit is liable
to be dismissed.
2. Various issues were raised before the trial Court.
PWs.1 and 2 and DWs.1 to 3 were examined and Exts.A1 to
A25, B1 and B2 were marked and on an analysis of the
evidence the trial court granted a decree in favour of the
plaintiff for partition of the property into two halves and to
allot one such half to the plaintiffs. It is against that decision
both these appeals are preferred, one by defendants 3 to 5
and the other by 2nd defendant. This matter was disposed of
by this Court by judgment dated 18.12.03. This Court on a
consideration of the materials found that an opportunity has to
be given to the parties to amend the pleadings and also
adduce additional evidence in the matter in order to prove the
long cohabitation between Chiruthakutty and Damodaran
which will give raise to a presumption regarding the marriage.
A.S. NO. 102 & 107 OF 1996
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3. The matter was taken up in Civil appeal No.6804
and 6805 of 2005 and the Hon’ble Supreme Court of India by
its judgment dated 11.11.05 set aside the said direction and
directed this Court to dispose of the appeal after re-
appreciation of the evidence available before the Court.
Accordingly, the matters have come up for consideration. The
points that arise for determination are,
(1) Whether there is evidence to establish the factum
of marriage between Damodaran and Chiruthakutty?
(2) Whether the first plaintiff, Krishnan is born in the
wedlock of Damodaran and Chiruthakutty?
(3) If not, if he is proved to be the son of Damodaran
and Chiruthakutty what will be the legal consequence and
(4) Whether there is anything to interfere with the
decision of the trial Court?
Points 1 to 4:
4. All these points are answered jointly for the reason
it requires discussion of common materials. The crux of the
issue is regarding the fact whether there was any marriage
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between Damodaran and Chiruthakutty and whether the first
plaintiff is the son born to them in the wedlock or otherwise.
A perusal of large number of documents produced in this case
would prima facie establish that Damodaran was born in the
year 1892 and the first plaintiff Krishnan was born in the year
1942. Damodaran, according to the plaintiffs in some portion
died in 1953 and in some portions would contend that he died
three years after the first plaintiff joined the army service. But
it appears that Damodaran had died prior to the first plaintiff
joining the military service. A perusal of documents are
necessary for evaluating the materials.
5. Ext.A1 is the lawyer notice claiming partition.
Ext.A2 is the L.I.C. Policy wherein the name of Chiruthakutty
is shown as N.V. Chiruthakutty and the residential house name
is shown as Kattukandi Idathil house. That policy commenced
in 1966. Ext.A3 is the Secondary School Leaving Certificate of
Damodaran which would show that he was born in 1892 and it
has also be stated that it has not been preserved as a
document. It contains innumerable number of writings written
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by small children and others and that itself would show it has
not been kept in a proper custody at any point of time. Ext.A4
is the trade certificate issued to the first plaintiff wherein he
was described as the son of K.E. Damodaran and his house
address is shown as Idathil House. Ext.A5 is a paper report
about the death of Chiruthakutty which I do not want to deal
in detail for the reason the maker of the said news is not
examined and it is really not legally admissible to peruse those
endorsements without examining the party. Ext.A6 is an
electoral card of 1970 wherein it is shown that Chiruthakutty
was residing in H 869-D her initial is shown as K.E. and the
name of the husband is shown as K.E.Damodaran and she was
aged 58 years in 1970. Ext.A7 and A8 are applications filed
for issuance of certain certificates wherein the Village Officer
had endorsed that it is Kattukandi Idathil Krishnan son of
Damodaran. Ext.A9 is the birth certificate of the first plaintiff
wherein the name of the father is shown as Damodaran and
his mother as Chiruthakutty and Ext.B1 which is another
extract, the place of birth is shown as W & C Hospital but in
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Ext.A9 it is scored off and written as K.E. Krishnan
Chalappuram and date of birth as 7.8.42. Ext.A10 would show
that Chiruthakutty died on 15.12.1985 and her husband’s
name is shown as Damodaran and the place of residence is
shown as Puthiya Veedu Paramba. Exts.A11 and 17 are two
documents regarding the electoral card wherein the
information is furnished by the wife of the first plaintiff with
respect to Chiruthakutty and Krishnan describing them as the
wife and son of Damodaran. Ext.A13 is a community
certificate which would show that the father’s name of
Krishnan is shown as Damodaran. Ext.A14 is a marriage
certificate relating to the first plaintiff, Krishnan where he is
described as K.E. Krishnan son of Damodaran. Exts.A15, 16,
17 and 18 are receipts of L.I.C of India where the address of
Krishnan is shown as Kattukandi Idathil house. Ext.17 is also
produced to show the same and the mother’s initial is given as
N.V. Chiruthakutty. Ext.A20 is a document relating to the
military discharge certificate wherein there is a mention about
the name of the father of Krishnan as Damodaran. Ext.A21 is
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the Secondary School Leaving Certificate of Mr.Krishnan where
the mother’s name is shown as the guardian and place of
residence is shown as Kattukandi. Ext.A22 and 23 are letters
said to be written by Chiruthakutty to the first plaintiff where
reference is made to defendants 3 and 4 as well as the house
name Idathil. Ext.A24 relates to the third page of the S.S.L.C.
Book relating to the 3rd plaintiff where the place of residence is
shown as Puthiya Paramba. Ext.A25 is an invitation with
reference to the 2nd defendant’s marriage with one Greesha
and it is said to be received by the first plaintiff for attending
the marriage. Ext.B1 is the birth certificate issued by the
Calicut Corporation wherein as referred to by me earlier the
place of birth of Krishnan is shown as W & C Hospital and the
address as shown in Ext.A9 is not available in Ext.B1. Ext.B2
is a partition deed entered into between the first defendant
and others.
6. PW1 is the first plaintiff. He had deposed before
the Court that he had resided in the plaint schedule house and
mother died in the year 1985 and that Chiruthakutty had
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married Mr. Damodaran and that Chiruthakutty does not know
to write. In the cross-examination he would depose that he
had seen his father and that he had joined service in the year
1963 and further that there are other houses in Chalappuram
by name Kattukandi Idathil. According to him the expansion
of N.V. Chiruthakutty is Nambiar Veedu Chiruthakutty and
there is a custom among those people that after the marriage
the initial is changed to that of the husband’s house. K.E.
represents Kattukandi Idathil. He has specifically stated that
there are documents to show that Chiruthakutty and first
plaintiff had lived in Kattukandi Idathil. According to him he
lived along with her mother till 1963 and thereafter the
mother shifted the residence to the next compound and the
expenses were met by the first defendant. He would also
depose there was no ration card for the mother during her
residence in the plaint schedule from 1957 to 1963 and he
does not no whether the voter’s list include the name of the
mother or him.
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7. The next witness is PW2. PW2 is examined to
prove that he had seen Chiruthakutty and Damodaran living as
husband and wife. In the cross-examination he would depose
that after the marriage of Damodaran he lived for 10 more
years and he does not know when the child was born to
Damodaran. He would further depose that Damodaran was
aged 45 or 50 years at the time of his death. It can be seen
from the documents produced in this case that the first
plaintiff was born in the year 1942, i.e. at the age of 50 years
of Damodaran and even according to the plaintiff Damodaran
died only in the year 1953 which means he would have been
61 years at the time of his death. Therefore the idea of PW2
with respect to the matters cannot be said to be correct. He
would further depose that he does not know whether there
was any ceremonies for the marriage. Further this witness
does not state nothing about his participation in the alleged
marriage.
8. DW1 is the 3rd defendant. She is the wife of the first
defendant. She had been married only in the year 1947 and
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she would depose that neither the first plaintiff nor
Chiruthakutty had lived in that house and disputed about the
marriage. Now it is in this backdrop the matter has to be
analysed. For the purpose of analyzing the materials and to
reach a conclusion it is desirable to understand the legal
principles to be followed in these types of cases.
9. As submitted by the learned counsel for the
respondents law is always in favour of legitimacy and the
matter has to be analysed to find out the same. In order to
establish the very said fact if there is direct evidence regarding
the marriage, that is the end of it and no further proof is
required. When there is no direct evidence or it is not possible
to adduce evidence with respect to the marriage then the
conduct of the parties and the long cohabitation together are
positive indications to presume that the man and the woman
had lived as husband and wife which in turn can lead to the
conclusion regarding the marriage if there is the slightest
evidence. So there must be either evidence regarding the
marriage or positive proof regarding long cohabitation as man
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and woman to draw the presumption of husband and wife.
This has to be done or proved during the life time of those
persons. So far as the marriage is concerned in this case
there is absolutely no evidence worth mentioning of to prove
that Chiruthakutty had been married by Damodaran.
10. Then the learned counsel for the plaintiffs in the
case would strongly contend before me by relying upon the
Supreme Court decision reported in Badri Prasad v. Dy.
Director (AIR 1978 SC 1557). It was a case where for
around 50 years a man and woman, as the facts in that case
reveal, lived as husband and wife. Under those circumstances
the Supreme Court held that when two persons had lived
together as husband and wife for almost a half century the
marriage cannot be thrown out. But so far as the present case
is concerned it has to be stated there is absolutely no evidence
anywhere in the plaint regarding the factum of marriage or
regarding the place of marriage and regarding the cohabitation
together in a particular place. If a man and woman had lived
as husband and wife under the same roof at least there will be
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one document to evidence the same. It is in this context I
would like to state that, the plaintiff had produced S.S.L.C
book of him to show that he joined high school section
admittedly after the death of his father. But it is certain that
he had joined the school during the life time of the father for
the reason that he was born in 1942 and the earliest point of
death of Damodaran was not earlier than 1953. So he was 11
years at the time of his father’s death and if the husband and
wife had lived together then under ordinary circumstances and
that too in a society where there is male domination at that
relevant point of time it must be the husband or normally the
father who would have admitted the child in the school and
there may be documents to establish the same. Strangely no
document is forthcoming in that direction. Similarly there is
not even a scrap of paper to evidence that Damodaran and
Chiruthakutty lived under one and the same roof during the
life time of Damodaran. All the documents we find is after the
death of Damodaran. Except the birth certificate issued where
the name of the father is shown as Damodaran there is
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nothing to establish that the cohabitation existed to be proved
in a case where marriage is not proved. The document
referred to in the opening paragraphs of the judgment would
certainly show that right from 1942 the name of the father of
the first plaintiff is shown as Damodaran and in some of the
documents the description of the house is named as
Kattukandi Idathil and in some of them it is shown as
somewhere in Puthiara and in some other documents it is
shown as …………………….. This …………………… is the
name of wife house of the first plaintiff. Just because it is
shown in the documents subsequent to the death of
Damodaran that too after a period of 15 to 20 years of his
death can one presume that Damodaran and Chiruthakutty
lived as husband and wife under the same roof for long
number of years. Certainly it cannot be and so the most
positive evidence to draw the presumption u/s 114 of the
Evidence Act, the preponderance of probability is lacking in
this case and at the best I may say that the plaintiffs have
only established the factum that the first plaintiff is born to
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Damodaran in Chiruthakutty. In the absence of any materials
to prove long cohabitation as man and woman and further in
the absence of any evidence to prove the marriage one cannot
find that the first plaintiff was born to Damodaran and
Chiruthakutty in the wedlock.
11. Then the question would be with respect to the
succession to the property. U/s 16 of the Hindu Marriage Act
an illegitimate child is also not totally deprived of the right to
get the father’s property. But a reading of S.16 of the Hindu
Marriage Act makes it clear that the child should have been
born out of a marriage. The marriage may be void or voidable
but the essential factum of marriage is a condition precedent.
Further, if it is established that there is illegitimate son born in
a void marriage as contemplated under the provisions of the
Hindu Succession Act it can be only with respect to the
separate property of the father and not of a joint family
property. This has been decided in the decision reported in
Krishnakumari Thampuram v. Palace Administration
Board (2006(4) KLT 432) and Jinia Keotin v. Kumar
A.S. NO. 102 & 107 OF 1996
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Sitaram (2003 (1) KLT 348). Therefore an analysis of the
legal position would be as follows.
12. At the most it can be held that the plaintiffs have
succeeded in proving that the first plaintiff Krishnan is born to
Damodaran in Chiruthakutty. There is absolutely no evidence
to show that Damodaran has married Chiruthakutty by direct
evidence of marriage or any evidence to prove the long
cohabitation to establish the relationship as valid which would
draw a presumption under the provisions of law and lastly
since the marriage is not proved S.16 of the Hindu Marriage
Act also it would not come to the rescue of the plaintiffs. So
the sum and substance of all these observations will only point
out that the plaintiffs are not entitled to any share in the
property and therefore the judgment and decree passed by the
trial court has to be reversed and the suit for partition has to
be dismissed and I do so.
MMM 1
In the result A.S. Nos.102 and 107 of 1996
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are allowed and the judgment and decree of the trial court are
set aside and the suit O.S.371/90 is dismissed but under the
circumstances without any order as to costs.
M.N. KRISHNAN, JUDGE.
ul/-
A.S. NO. 102 & 107 OF 1996
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M.N. KRISHNAN, J.
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A.S. NO. 102 & 107 OF 1996
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J U D G M E N T
5th January, 2009.