{"id":134155,"date":"2007-03-28T00:00:00","date_gmt":"2007-03-27T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/santha-vs-t-r-viswanathan-on-28-march-2007"},"modified":"2017-03-07T10:16:13","modified_gmt":"2017-03-07T04:46:13","slug":"santha-vs-t-r-viswanathan-on-28-march-2007","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/santha-vs-t-r-viswanathan-on-28-march-2007","title":{"rendered":"Santha vs T R Viswanathan on 28 March, 2007"},"content":{"rendered":"
Kerala High Court<\/div>\n
Santha vs T R Viswanathan on 28 March, 2007<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nSA No. 417 of 1990(G)\n\n\n\n1. SANTHA\n                      ...  Petitioner\n\n                        Vs\n\n1. T R VISWANATHAN\n                       ...       Respondent\n\n                For Petitioner  :SRI K R THAMPAN\n\n                For Respondent  :SRI.K.P.ARAVINDAKSHAN\n\nThe Hon'ble MR. Justice M.SASIDHARAN NAMBIAR\n\n Dated :28\/03\/2007\n\n O R D E R\n                      M.SASIDHARAN NAMBIAR, J.\n\n                        ...........................................\n\n                          S.A.No. 417   OF   1990\n\n                        ............................................\n\n           DATED THIS THE  28th  DAY OF MARCH, 2007\n\n\n                                   JUDGMENT\n<\/pre>\n
       Plaintiffs in O.S.536 of 1976 on the file of Munsiff Court,<\/p>\n
Paravur   are   appellants.       First   appellant   is   the   mother   and<\/p>\n
second   appellant,   her   minor   child.     Respondents   are   the<\/p>\n
defendants.  Sixth respondent is the mother and respondents 1<\/p>\n
to   5   are   her   children.     Apart   from   respondents   1   to   5,   sixth<\/p>\n
respondent had another son by name, Tyagarajan.   The case of<\/p>\n
the appellants was that Tyagarajan   legally married her at her<\/p>\n
house on 28.12.1974 in accordance with the custom prevailing<\/p>\n
in their community and on 25.11.1975 while they were living as<\/p>\n
husband and  wife,  Tyagarajan  died and  later  second  appellant<\/p>\n
was   born   on   28.12.1975   to     first   appellant   and   Tyagarajan.<\/p>\n
Appellants   contended   that   plaint   schedule   property     was<\/p>\n
alloted to the share of Tyagarajan under Ext.A1 partition deed.<\/p>\n
Appellants  instituted the suit seeking declaration of their title<\/p>\n
to   the   plaint   schedule   property   as   legal   heirs   of   deceased<\/p>\n
Tyagarajan    and for  recovery  of possession  with  mesne  profits<\/p>\n
from respondents.\n<\/p>\n<\/p>\n
      2. First  respondent filed a written statement denying the<\/p>\n
contentions   raised   in   the   plaint.     It   was   contended   that   first<\/p>\n
SA 417\/1990                            2<\/span><\/p>\n
appellant   is   not   the   legally   wedded   wife   of     Tyagarajan     and<\/p>\n
second   appellant   is   not   the   son   born   to   Tyagarajan   and   there<\/p>\n
was no marriage as alleged and they were not living as husband<\/p>\n
and   wife.       It   was   also   contended   that   when   first   appellant<\/p>\n
become   pregnant   there  was  an   attempt   to   settle   the   paternity<\/p>\n
of   second   appellant   and   on   21.11.2005,     Tyagarajan   did   not<\/p>\n
reach home   as usual and on enquiry it was found that he was<\/p>\n
being   detained   by   one   Paramu   at   his   house   and   first<\/p>\n
respondent   reached   there   and   found   appellants   and   others<\/p>\n
attempting   to   obtain   signature   in   the   SNDP   register   and   that<\/p>\n
attempt   was   foiled   by   the   timely   intervention   of   first<\/p>\n
respondent   and   on   25.11.1975,     Tyagarajan   on   his   way   to<\/p>\n
Paravur was taken away by appellants to the Police Station and<\/p>\n
under   threat   he   was   compelled   to   execute   a     document   and<\/p>\n
appellants have no right to claim the properties of  Tyagarajan<\/p>\n
and therefore the suit  is to be dismissed.\n<\/p>\n<\/p>\n
      3.  Learned Munsiff framed necessary issues.  On the side<\/p>\n
of   appellants,   first   appellant   was   examined     as   PW1   and   a<\/p>\n
neighbour   was   examined   as   PW2.     The   husband   of   fourth<\/p>\n
defendant was examined as PW3.  Exts.A1 and A2 were marked.<\/p>\n
On the side of first respondent, DW1 was examined and Ext.B1<\/p>\n
was   marked.       Learned   Munsiff,   on   the   evidence   found   that<\/p>\n
evidence of PWs 2 and 3  cannot be believed and their evidence<\/p>\n
SA 417\/1990                            3<\/span><\/p>\n
is insufficient  to corroborate  the evidence  of PW1 with regard<\/p>\n
to   the   marriage.     Learned   Munsiff,   also   found   that   appellants<\/p>\n
failed to establish that first appellant is the legally wedded wife<\/p>\n
and   second   appellant   the   son   of   deceased     Tyagarajan   and<\/p>\n
therefore dismissed the suit.  Appellants challenged the decree<\/p>\n
and judgment before Sub Court, North Paravur in A.S.17\/1982.<\/p>\n
The   first   appellate   court   elaborately   considered   the   evidence.<\/p>\n
On   re-appreciation   of   evidence,   learned   Sub   Judge   found   that<\/p>\n
evidence   of   Pws   2   and   3   cannot   be   believed   and   evidence   of<\/p>\n
PW1   does   not   establish   any   legal   marriage   or   that   second<\/p>\n
appellant is the child born in her relationship with  Tyagarajan<\/p>\n
and   therefore   confirmed   the   decree   and   judgment   passed   by<\/p>\n
learned Munsiff and dismissed the appeal.   It is challenged  in<\/p>\n
this second appeal.\n<\/p>\n<\/p>\n
      4.     This   court   without   formulating   substantial   questions<\/p>\n
of   law,   as   per   judgment   dated     17.11.1997,   on   reappreciating<\/p>\n
facts   and   evidence,   allowed   the   second   appeal.     It   was<\/p>\n
challenged   before   the   Apex   Court   in   Civil   Appeal   No.4394   of<\/p>\n
2000.        The   Hon’ble   Supreme   Court,   holding   that   the<\/p>\n
concurrent findings of the trial court and first appellate  court<\/p>\n
were   reversed   without   even   formulating   any   substantial<\/p>\n
question   of   law,   set   aside   the   judgment   of   this   court     and<\/p>\n
remanded   the   second   appeal   for   fresh   disposal   after<\/p>\n
SA 417\/1990                            4<\/span><\/p>\n
formulating   substantial   question   of   law,   if   any,   arising   in   the<\/p>\n
case.\n<\/p>\n<\/p>\n
         5.   Learned   counsel   appearing   for   appellants   and<\/p>\n
respondents were heard.  The evidence was also perused.<\/p>\n
         6.   The   deceased     Tyagarajan   who   admittedly   died   on<\/p>\n
25.11.1975 under suspicious circumstances, is the son of sixth<\/p>\n
respondent and brother of respondents 1 to 5.  The evidence of<\/p>\n
first  respondent   as   DW1   that   deceased     Tyagarajan   was   living<\/p>\n
with   him   till   his   death   was   not   challenged   at   the   time   of<\/p>\n
evidence. Therefore it is to be taken that deceased  Tyagarajan<\/p>\n
was living along with first respondent.  The case  of  appellants<\/p>\n
was   that     deceased   Tyagarajan     married   her   in   in   accordance<\/p>\n
with the custom  prevailing  in their  community,  on  28.12.1974<\/p>\n
and they were living as husband and wife  and second appellant<\/p>\n
was born in that lawful wedlock.     The marriage and   paternity<\/p>\n
of   second   appellant   and   the   fact   that   Tyagarajan     and   first<\/p>\n
appellant were living together were all denied by  respondents.<\/p>\n
Definitely,   burden   is   on   the   appellants   to   establish   the   legal<\/p>\n
marriage   and   that   second   appellant   was   born   in   her<\/p>\n
relationship with deceased Tyagarajan .\n<\/p>\n<\/p>\n
         7.     To   prove   the   legal   marriage   apart   from   examining<\/p>\n
herself as PW1, two witnesses were examined.  Learned Munsiff<\/p>\n
and learned Sub Judge   elaborately considered the evidence of<\/p>\n
SA 417\/1990                             5<\/span><\/p>\n
each of them and found that their evidence cannot be believed.<\/p>\n
PW2 was admittedly  a neighbour of the appellants.  According<\/p>\n
to     PW2,   Tyagarajan     was   residing   one   and   a   half   kms   away<\/p>\n
from   his   house.       PW2   was   examined   to   prove   that   he<\/p>\n
participated   in   the   marriage.     Appreciating   the   evidence   of<\/p>\n
PW2,   learned   Munsiff   and   learned   Sub   Judge   found   that   his<\/p>\n
case   that   he   was   present   at   the   time   of   marriage   cannot   be<\/p>\n
believed.   The question is   whether there is any reason to hold<\/p>\n
that   appreciation of evidence was not proper and whether any<\/p>\n
material   was   omitted   to   be   appreciated   or   any   fact   was<\/p>\n
misappreciated.   Being a neighbour if there was a marriage as<\/p>\n
claimed by the appellants, presence of PW2 at the marriage is<\/p>\n
quite   natural.       But     while   considering   the   question   whether<\/p>\n
there was a marriage, evidence of PW2 has to be scrutinized in<\/p>\n
the   proper   perspective.     If   the   case   of   PW2   was   that   he   was<\/p>\n
present  at  the time  of marriage,  being   a neighbour  and  being<\/p>\n
invited  by  either   first  appellant   or  her   parents,   his  case could<\/p>\n
have   been   appreciated.     But   that   is   not   the   case   of   PW2.<\/p>\n
According   to   PW2,   he   was   present   at   the   marriage,   as   he   was<\/p>\n
invited   by   deceased   Tyagarajan   .     The   further   examination   of<\/p>\n
PW2 establish that he has no such close contact with PW2.  If,<\/p>\n
in   fact   the   marriage   of   first   appellant   was   conducted   as<\/p>\n
claimed   by   appellants,   against   the   objection   of   family   of<\/p>\n
SA 417\/1990                            6<\/span><\/p>\n
Tyagarajan   and that too when the relatives of Tyagarajan   did<\/p>\n
not   participate,   this   fact   would   have   been   definitely   known   to<\/p>\n
PW2 and would have been deposed by PW2.  On the other hand,<\/p>\n
as   rightly   appreciated   by   courts   below,   PW2   expressed<\/p>\n
ignorance  about  these  matters.  I find no  reason  to  differ  with<\/p>\n
the appreciation of evidence of PW2 by the courts below.<\/p>\n
      8.     PW3   is   none   other   than   the   husband   of   fourth<\/p>\n
respondent.   It   was   argued   that   evidence   of   PW3   establishes<\/p>\n
that first appellant and deceased Tyagarajan   had stayed in the<\/p>\n
house of fourth respondent and PW3 for four days as husband<\/p>\n
and wife and evidence of a close relative of Tyagarajan  cannot<\/p>\n
be   ignored   and   courts   below   should   have   accepted   the<\/p>\n
evidence.     Both   the   courts   have   given   cogent   and   sufficient<\/p>\n
reason  to  disbelieve  the  evidence  of PW3.    It  was  brought  out<\/p>\n
from   PW3   that   the   relationship   between   first   respondent   and<\/p>\n
fourth   respondent   was   strained.     Evidence   establish   that   even<\/p>\n
before   Ext.B1   partition   relationship   was   strained.     A   suit   for<\/p>\n
partition was filed by fourth respondent and after execution of<\/p>\n
Ext.B1 partition, that case was settled and even thereafter the<\/p>\n
relationship continued to be strained.  It was admitted by PW3<\/p>\n
that Ext.B1 petition was filed by fourth respondent against first<\/p>\n
respondent alleging that an areca tree was cut and damage was<\/p>\n
caused by first respondent.   In such circumstances the finding<\/p>\n
SA 417\/1990                             7<\/span><\/p>\n
of   courts   below   that   there   are   sufficient   reasons   for   PW3   to<\/p>\n
depose against the respondents  is perfectly correct. Moreover,<\/p>\n
evidence of PW3 does not inspire any confidence.   Even though<\/p>\n
PW3   deposed   that   Tyagarajan     married   first   appellant,   he   has<\/p>\n
no case that he was present at the time of marriage.  According<\/p>\n
to PW3, he was told about the marriage by Tyagarajan  and that<\/p>\n
too in January or February 1975, when according to appellants,<\/p>\n
marriage was on 28.12.1974.  PW3 also deposed that he did not<\/p>\n
even see the deadbody of Tyagarajan.   The explanation of PW3<\/p>\n
for   not   attending   the   funeral   was   that   his   presence   will   be<\/p>\n
resisted   by   respondents.     That   is   sufficient   to   prove   that   his<\/p>\n
relationship   with   Tyagarajan   or   respondents   was   not   at   all<\/p>\n
cordial.     A   proper   appreciation   of   evidence   of   PW3   establish<\/p>\n
that he cannot be relied on to find either the fact of marriage<\/p>\n
or   the   fact   that   the   first   appellant   and   deceased   Tyagarajan<\/p>\n
were   living   together   as   husband   and   wife.     Even   though   PW3<\/p>\n
deposed   that   deceased   Tyagarajan     along   with   first   appellant<\/p>\n
stayed   in   their   house,     for   three   or   four   days   after   marriage<\/p>\n
even when examined  as PW1 first appellant had no such case.<\/p>\n
Therefore   I   find   no   reason   to   differ   with   the   appreciation   of<\/p>\n
evidence of PW3.\n<\/p>\n<\/p>\n
      9.   Then   what   remains   is   only   the   evidence   of   PW1.<\/p>\n
Though PW1 claimed that there was a marriage  in accordance<\/p>\n
SA 417\/1990                             8<\/span><\/p>\n
with the custom prevailing in their community on appreciating<\/p>\n
the   evidence   courts   below   found   that   there   was   no   such<\/p>\n
marriage.     Though   nothing   was   mentioned   about   Ext.A2<\/p>\n
marriage   agreement   between   the   first   appellant   and<\/p>\n
Tyagarajan       in   the   plaint,   at   the   time   of   evidence   it   was<\/p>\n
brought   out   that     Ext.A2     registered   agreement   was   entered<\/p>\n
into on 25.11.1975.  Ext.A2 was executed and registered at 2.50<\/p>\n
pm on  25.11.1975.    Admittedly,   Tyagarajan    died  on  the   same<\/p>\n
day.       According   to   PW1,   Tyagarajan     died   at   about   3   pm.<\/p>\n
Whatever be the time, the fact that  his deadbody was found, on<\/p>\n
the way near a paddy field was admitted by both parties.   When<\/p>\n
examined as DW1, first respondent deposed that he consumed<\/p>\n
poison  and committed suicide.  That aspect was also not cross<\/p>\n
examined.     It   is   true   that   though   respondents   challenged<\/p>\n
Ext.A2 on the ground that it was vitiated by coercion and force<\/p>\n
exerted   by  appellants,   as  no  acceptable   evidence   was   adduced<\/p>\n
in support of that case, courts below rightly rejected that case.<\/p>\n
Ext.A2   agreement   only   shows   that   deceased   Tyagarajan     and<\/p>\n
first   appellant,   on   the   date   of   his   death,   had   agreed   to   live<\/p>\n
together   as   husband   and   wife   and   not   to   terminate   the<\/p>\n
relationship   except   through   court   or   by   mutually   agreed<\/p>\n
document.   Ext.A2 will not create a legal marriage.      If in fact<\/p>\n
there was a marriage on 28.12.1974,  as claimed by appellants,<\/p>\n
SA 417\/1990                            9<\/span><\/p>\n
and Tyagarajan and first appellant  were  living as husband and<\/p>\n
wife,   such   a  recital   would   have   been   shown   in   Ext.A2.     Ext.A2<\/p>\n
does not show that before that date, there was any relationship<\/p>\n
between them or that they were living as husband and wife.  On<\/p>\n
the   other   hand,   Ext.A2   only   evidences   a   decision   to   live<\/p>\n
together as husband and wife from that date onwards which is<\/p>\n
contrary   to   the   case   pleaded   and   sought   to   be   proved.     When<\/p>\n
the   entire   evidence   is   appreciated,   I   cannot   agree   with   the<\/p>\n
argument   of  the   learned   counsel   appearing   for   the   appellants<\/p>\n
that   appreciation   of   evidence   by   courts   below   was   either<\/p>\n
perverse   or   improper   warranting   interference   in   exercise   of<\/p>\n
powers   of   this   court   under   Section   100   of   Code   of   Civil<\/p>\n
Procedure. I find no substantial question of law involved in the<\/p>\n
appeal or any merit in the appeal.  Appeal is dismissed.<\/p>\n
                                 M.SASIDHARAN NAMBIAR, JUDGE<\/p>\n
lgk\/-\n<\/p><\/p>\n","protected":false},"excerpt":{"rendered":"
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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,21],"tags":[],"class_list":["post-134155","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nSantha vs T R Viswanathan on 28 March, 2007 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/santha-vs-t-r-viswanathan-on-28-march-2007\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Santha vs T R Viswanathan on 28 March, 2007 - 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