{"id":199612,"date":"2009-02-05T00:00:00","date_gmt":"2009-02-04T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/valsan-vs-krishnan-on-5-february-2009"},"modified":"2014-02-23T02:36:43","modified_gmt":"2014-02-22T21:06:43","slug":"valsan-vs-krishnan-on-5-february-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/valsan-vs-krishnan-on-5-february-2009","title":{"rendered":"Valsan vs Krishnan on 5 February, 2009"},"content":{"rendered":"
Kerala High Court<\/div>\n
Valsan vs Krishnan on 5 February, 2009<\/div>\n
       \n\n  \n\n  \n\n \n \n  IN THE HIGH COURT OF KERALA AT ERNAKULAM\n\nAS.No. 102 of 1996(A)\n\n\n\n1. VALSAN\n                      ...  Petitioner\n\n                        Vs\n\n1. KRISHNAN\n                       ...       Respondent\n\n                For Petitioner  :SRI.M.C.SEN (SR.)\n\n                For Respondent  :SRI.P.N.KRISHNANKUTTY ACHAN(SR.)\n\nThe Hon'ble MR. Justice M.N.KRISHNAN\n\n Dated :05\/02\/2009\n\n O R D E R\n                       M.N. KRISHNAN, J.\n                = = = = = = = = = = = = = = =\n                 A.S. NOs. 102 & 107       OF 1996\n                = = = = = = = = = = = = = = =\n         Dated this the 5th day of February, 2009.\n\n                         J U D G M E N T\n<\/pre>\n
      Both these appeals are preferred against the judgment<\/p>\n
and decree in O.S.371\/90 of the Subordinate Judge,<\/p>\n
Kozhikode.    These appeals had arisen out of the case for<\/p>\n
partition where the plaintiff contends that the first plaintiff is<\/p>\n
the son of one Damodaran and the 2nd plaintiff is the son of<\/p>\n
the first plaintiff and that the first plaintiff had been born in<\/p>\n
the wedlock of Damodaran and Chiruthakutty and that the<\/p>\n
property belongs is in ancestral nature to the joint family of<\/p>\n
the plaintiffs and defendants and therefore prays for division<\/p>\n
of the property into two equal shares and to allot one such<\/p>\n
share. The first defendant died during the pendency of the<\/p>\n
suit and defendants 2 to 5 are his legal representatives. The<\/p>\n
2nd defendant being a member of the co-parcenery had been<\/p>\n
impleaded as the 2nd defendant even at the inception of the<\/p>\n
suit.  They have contended for the position that the first<\/p>\n
A.S. NO. 102 & 107 OF 1996
\n                                -2-<\/span><\/p>\n
plaintiff is not the son of Damodaran and Damodaran had<\/p>\n
never married Chiruthakutty and therefore the plaintiffs are<\/p>\n
not entitled to any right over the property and the suit is liable<\/p>\n
to be dismissed.\n<\/p>\n
       2.   Various issues were raised before the trial Court.<\/p>\n
PWs.1 and 2 and DWs.1 to 3 were examined and Exts.A1 to<\/p>\n
A25, B1 and B2 were marked and on an analysis of the<\/p>\n
evidence the trial court granted a decree in favour of the<\/p>\n
plaintiff for partition of the property into two halves and to<\/p>\n
allot one such half to the plaintiffs. It is against that decision<\/p>\n
both these appeals are preferred, one by defendants 3 to 5<\/p>\n
and the other by 2nd defendant. This matter was disposed of<\/p>\n
by this Court by judgment dated 18.12.03. This Court on a<\/p>\n
consideration of the materials found that an opportunity has to<\/p>\n
be given to the parties to amend the pleadings and also<\/p>\n
adduce additional evidence in the matter in order to prove the<\/p>\n
long cohabitation between Chiruthakutty and Damodaran<\/p>\n
which will give raise to a presumption regarding the marriage.<\/p>\n
A.S. NO. 102 & 107 OF 1996
\n                                -3-<\/span><\/p>\n
      3.   The matter was taken up in Civil appeal No.6804<\/p>\n
and 6805 of 2005 and the Hon’ble Supreme Court of India by<\/p>\n
its judgment dated 11.11.05 set aside the said direction and<\/p>\n
directed this Court to dispose of the appeal after re-<\/p>\n
appreciation of the evidence available before the Court.<\/p>\n
Accordingly, the matters have come up for consideration. The<\/p>\n
points that arise for determination are,<\/p>\n
      (1) Whether there is evidence to establish the factum<\/p>\n
of marriage between Damodaran and Chiruthakutty?<\/p>\n
      (2) Whether the first plaintiff, Krishnan is born in the<\/p>\n
wedlock of Damodaran and Chiruthakutty?\n<\/p>\n
      (3) If not, if he is proved to be the son of Damodaran<\/p>\n
and Chiruthakutty what will be the legal consequence and<\/p>\n
      (4) Whether there is anything to interfere with the<\/p>\n
decision of the trial Court?\n<\/p>\n
      Points 1 to 4:\n<\/p>\n
      4.   All these points are answered jointly for the reason<\/p>\n
it requires discussion of common materials. The crux of the<\/p>\n
issue is regarding the fact whether there was any marriage<\/p>\n
A.S. NO. 102 & 107 OF 1996
\n                                 -4-<\/span><\/p>\n
between Damodaran and Chiruthakutty and whether the first<\/p>\n
plaintiff is the son born to them in the wedlock or otherwise.<\/p>\n
A perusal of large number of documents produced in this case<\/p>\n
would prima facie establish that Damodaran was born in the<\/p>\n
year 1892 and the first plaintiff Krishnan was born in the year<\/p>\n
1942. Damodaran, according to the plaintiffs in some portion<\/p>\n
died in 1953 and in some portions would contend that he died<\/p>\n
three years after the first plaintiff joined the army service. But<\/p>\n
it appears that Damodaran had died prior to the first plaintiff<\/p>\n
joining the military service.      A perusal of documents are<\/p>\n
necessary for evaluating the materials.\n<\/p>\n
     5.     Ext.A1 is the lawyer notice claiming partition.<\/p>\n
Ext.A2 is the L.I.C. Policy wherein the name of Chiruthakutty<\/p>\n
is shown as N.V. Chiruthakutty and the residential house name<\/p>\n
is shown as Kattukandi Idathil house. That policy commenced<\/p>\n
in 1966. Ext.A3 is the Secondary School Leaving Certificate of<\/p>\n
Damodaran which would show that he was born in 1892 and it<\/p>\n
has also be stated that it has not been preserved as a<\/p>\n
document. It contains innumerable number of writings written<\/p>\n
A.S. NO. 102 & 107 OF 1996
\n                                -5-<\/span><\/p>\n
by small children and others and that itself would show it has<\/p>\n
not been kept in a proper custody at any point of time. Ext.A4<\/p>\n
is the trade certificate issued to the first plaintiff wherein he<\/p>\n
was described as the son of K.E. Damodaran and his house<\/p>\n
address is shown as Idathil House. Ext.A5 is a paper report<\/p>\n
about the death of Chiruthakutty which I do not want to deal<\/p>\n
in detail for the reason the maker of the said news is not<\/p>\n
examined and it is really not legally admissible to peruse those<\/p>\n
endorsements without examining the party.           Ext.A6 is an<\/p>\n
electoral card of 1970 wherein it is shown that Chiruthakutty<\/p>\n
was residing in H 869-D her initial is shown as K.E. and the<\/p>\n
name of the husband is shown as K.E.Damodaran and she was<\/p>\n
aged 58 years in 1970. Ext.A7 and A8 are applications filed<\/p>\n
for issuance of certain certificates wherein the Village Officer<\/p>\n
had endorsed that it is Kattukandi Idathil Krishnan son of<\/p>\n
Damodaran. Ext.A9 is the birth certificate of the first plaintiff<\/p>\n
wherein the name of the father is shown as Damodaran and<\/p>\n
his mother as Chiruthakutty and Ext.B1 which is another<\/p>\n
extract, the place of birth is shown as W & C Hospital but in<\/p>\n
A.S. NO. 102 & 107 OF 1996
\n                                 -6-<\/span><\/p>\n
Ext.A9 it is scored off and written as K.E. Krishnan<\/p>\n
Chalappuram and date of birth as 7.8.42. Ext.A10 would show<\/p>\n
that Chiruthakutty died on 15.12.1985 and her husband’s<\/p>\n
name is shown as Damodaran and the place of residence is<\/p>\n
shown as Puthiya Veedu Paramba. Exts.A11 and 17 are two<\/p>\n
documents      regarding   the   electoral    card  wherein  the<\/p>\n
information is furnished by the wife of the first plaintiff with<\/p>\n
respect to Chiruthakutty and Krishnan describing them as the<\/p>\n
wife and son of Damodaran.            Ext.A13 is a community<\/p>\n
certificate which would show that the father’s name of<\/p>\n
Krishnan is shown as Damodaran.            Ext.A14 is a marriage<\/p>\n
certificate relating to the first plaintiff, Krishnan where he is<\/p>\n
described as K.E. Krishnan son of Damodaran. Exts.A15, 16,<\/p>\n
17 and 18 are receipts of L.I.C of India where the address of<\/p>\n
Krishnan is shown as Kattukandi Idathil house. Ext.17 is also<\/p>\n
produced to show the same and the mother’s initial is given as<\/p>\n
N.V. Chiruthakutty.    Ext.A20 is a document relating to the<\/p>\n
military discharge certificate wherein there is a mention about<\/p>\n
the name of the father of Krishnan as Damodaran. Ext.A21 is<\/p>\n
A.S. NO. 102 & 107 OF 1996
\n                                  -7-<\/span><\/p>\n
the Secondary School Leaving Certificate of Mr.Krishnan where<\/p>\n
the mother’s name is shown as the guardian and place of<\/p>\n
residence is shown as Kattukandi. Ext.A22 and 23 are letters<\/p>\n
said to be written by Chiruthakutty to the first plaintiff where<\/p>\n
reference is made to defendants 3 and 4 as well as the house<\/p>\n
name Idathil. Ext.A24 relates to the third page of the S.S.L.C.<\/p>\n
Book relating to the 3rd plaintiff where the place of residence is<\/p>\n
shown as Puthiya Paramba.          Ext.A25 is an invitation with<\/p>\n
reference to the 2nd defendant’s marriage with one Greesha<\/p>\n
and it is said to be received by the first plaintiff for attending<\/p>\n
the marriage.    Ext.B1 is the birth certificate issued by the<\/p>\n
Calicut Corporation wherein as referred to by me earlier the<\/p>\n
place of birth of Krishnan is shown as W & C Hospital and the<\/p>\n
address as shown in Ext.A9 is not available in Ext.B1. Ext.B2<\/p>\n
is a partition deed entered into between the first defendant<\/p>\n
and others.\n<\/p>\n
     6.    PW1 is the first plaintiff. He had deposed before<\/p>\n
the Court that he had resided in the plaint schedule house and<\/p>\n
mother died in the year 1985 and that Chiruthakutty had<\/p>\n
A.S. NO. 102 & 107 OF 1996
\n                               -8-<\/span><\/p>\n
married Mr. Damodaran and that Chiruthakutty does not know<\/p>\n
to write. In the cross-examination he would depose that he<\/p>\n
had seen his father and that he had joined service in the year<\/p>\n
1963 and further that there are other houses in Chalappuram<\/p>\n
by name Kattukandi Idathil. According to him the expansion<\/p>\n
of N.V. Chiruthakutty is Nambiar Veedu Chiruthakutty and<\/p>\n
there is a custom among those people that after the marriage<\/p>\n
the initial is changed to that of the husband’s house. K.E.<\/p>\n
represents Kattukandi Idathil. He has specifically stated that<\/p>\n
there are documents to show that Chiruthakutty and first<\/p>\n
plaintiff had lived in Kattukandi Idathil. According to him he<\/p>\n
lived along with her mother till 1963 and thereafter the<\/p>\n
mother shifted the residence to the next compound and the<\/p>\n
expenses were met by the first defendant.       He would also<\/p>\n
depose there was no ration card for the mother during her<\/p>\n
residence in the plaint schedule from 1957 to 1963 and he<\/p>\n
does not no whether the voter’s list include the name of the<\/p>\n
mother or him.\n<\/p>\n
A.S. NO. 102 & 107 OF 1996
\n                                -9-<\/span><\/p>\n
     7.    The next witness is PW2.       PW2 is examined to<\/p>\n
prove that he had seen Chiruthakutty and Damodaran living as<\/p>\n
husband and wife. In the cross-examination he would depose<\/p>\n
that after the marriage of Damodaran he lived for 10 more<\/p>\n
years and he does not know when the child was born to<\/p>\n
Damodaran. He would further depose that Damodaran was<\/p>\n
aged 45 or 50 years at the time of his death. It can be seen<\/p>\n
from the documents produced in this case that the first<\/p>\n
plaintiff was born in the year 1942, i.e. at the age of 50 years<\/p>\n
of Damodaran and even according to the plaintiff Damodaran<\/p>\n
died only in the year 1953 which means he would have been<\/p>\n
61 years at the time of his death. Therefore the idea of PW2<\/p>\n
with respect to the matters cannot be said to be correct. He<\/p>\n
would further depose that he does not know whether there<\/p>\n
was any ceremonies for the marriage. Further this witness<\/p>\n
does not state nothing about his participation in the alleged<\/p>\n
marriage.\n<\/p>\n
     8.    DW1 is the 3rd defendant. She is the wife of the first<\/p>\n
defendant. She had been married only in the year 1947 and<\/p>\n
A.S. NO. 102 & 107 OF 1996
\n                                 -10-<\/span><\/p>\n
she would depose that neither the first plaintiff nor<\/p>\n
Chiruthakutty had lived in that house and disputed about the<\/p>\n
marriage. Now it is in this backdrop the matter has to be<\/p>\n
analysed. For the purpose of analyzing the materials and to<\/p>\n
reach a conclusion it is desirable to understand the legal<\/p>\n
principles to be followed in these types of cases.<\/p>\n
      9.   As submitted by the learned counsel for the<\/p>\n
respondents law is always in favour of legitimacy and the<\/p>\n
matter has to be analysed to find out the same. In order to<\/p>\n
establish the very said fact if there is direct evidence regarding<\/p>\n
the marriage, that is the end of it and no further proof is<\/p>\n
required. When there is no direct evidence or it is not possible<\/p>\n
to adduce evidence with respect to the marriage then the<\/p>\n
conduct of the parties and the long cohabitation together are<\/p>\n
positive indications to presume that the man and the woman<\/p>\n
had lived as husband and wife which in turn can lead to the<\/p>\n
conclusion regarding the marriage if there is the slightest<\/p>\n
evidence.   So there must be either evidence regarding the<\/p>\n
marriage or positive proof regarding long cohabitation as man<\/p>\n
A.S. NO. 102 & 107 OF 1996
\n                               -11-<\/span><\/p>\n
and woman to draw the presumption of husband and wife.<\/p>\n
This has to be done or proved during the life time of those<\/p>\n
persons.   So far as the marriage is concerned in this case<\/p>\n
there is absolutely no evidence worth mentioning of to prove<\/p>\n
that Chiruthakutty had been married by Damodaran.<\/p>\n
     10. Then the learned counsel for the plaintiffs in the<\/p>\n
case would strongly contend before me by relying upon the<\/p>\n
Supreme Court decision reported in Badri Prasad v. Dy.<\/p>\n
Director (AIR<\/a> 1978 SC 1557). It was a case where for<\/p>\n
around 50 years a man and woman, as the facts in that case<\/p>\n
reveal, lived as husband and wife. Under those circumstances<\/p>\n
the Supreme Court held that when two persons had lived<\/p>\n
together as husband and wife for almost a half century the<\/p>\n
marriage cannot be thrown out. But so far as the present case<\/p>\n
is concerned it has to be stated there is absolutely no evidence<\/p>\n
anywhere in the plaint regarding the factum of marriage or<\/p>\n
regarding the place of marriage and regarding the cohabitation<\/p>\n
together in a particular place. If a man and woman had lived<\/p>\n
as husband and wife under the same roof at least there will be<\/p>\n
A.S. NO. 102 & 107 OF 1996
\n                               -12-<\/span><\/p>\n
one document to evidence the same.       It is in this context I<\/p>\n
would like to state that, the plaintiff had produced S.S.L.C<\/p>\n
book of him to show that he joined high school section<\/p>\n
admittedly after the death of his father. But it is certain that<\/p>\n
he had joined the school during the life time of the father for<\/p>\n
the reason that he was born in 1942 and the earliest point of<\/p>\n
death of Damodaran was not earlier than 1953. So he was 11<\/p>\n
years at the time of his father’s death and if the husband and<\/p>\n
wife had lived together then under ordinary circumstances and<\/p>\n
that too in a society where there is male domination at that<\/p>\n
relevant point of time it must be the husband or normally the<\/p>\n
father who would have admitted the child in the school and<\/p>\n
there may be documents to establish the same. Strangely no<\/p>\n
document is forthcoming in that direction. Similarly there is<\/p>\n
not even a scrap of paper to evidence that Damodaran and<\/p>\n
Chiruthakutty lived under one and the same roof during the<\/p>\n
life time of Damodaran. All the documents we find is after the<\/p>\n
death of Damodaran. Except the birth certificate issued where<\/p>\n
the name of the father is shown as Damodaran there is<\/p>\n
A.S. NO. 102 & 107 OF 1996
\n                                   -13-<\/span><\/p>\n
nothing to establish that the cohabitation existed to be proved<\/p>\n
in a case where marriage is not proved.                The document<\/p>\n
referred to in the opening paragraphs of the judgment would<\/p>\n
certainly show that right from 1942 the name of the father of<\/p>\n
the first plaintiff is shown as Damodaran and in some of the<\/p>\n
documents the description of the house is named as<\/p>\n
Kattukandi Idathil and in some of them it is shown as<\/p>\n
somewhere in Puthiara and in some other documents it is<\/p>\n
shown as ……………………..  This …………………… is the<\/p>\n
name of wife house of the first plaintiff.         Just because it is<\/p>\n
shown in the documents subsequent to the death of<\/p>\n
Damodaran that too after a period of 15 to 20 years of his<\/p>\n
death can one presume that Damodaran and Chiruthakutty<\/p>\n
lived as husband and wife under the same roof for long<\/p>\n
number of years.       Certainly it cannot be and so the most<\/p>\n
positive evidence to draw the presumption u\/s 114 of the<\/p>\n
Evidence Act, the preponderance of probability is lacking in<\/p>\n
this case and at the best I may say that the plaintiffs have<\/p>\n
only established the factum that the first plaintiff is born to<\/p>\n
A.S. NO. 102 & 107 OF 1996
\n                                 -14-<\/span><\/p>\n
Damodaran in Chiruthakutty. In the absence of any materials<\/p>\n
to prove long cohabitation as man and woman and further in<\/p>\n
the absence of any evidence to prove the marriage one cannot<\/p>\n
find that the first plaintiff was born to Damodaran and<\/p>\n
Chiruthakutty in the wedlock.\n<\/p>\n
      11. Then the question would be with respect to the<\/p>\n
succession to the property. U\/s 16 of the Hindu Marriage Act<\/p>\n
an illegitimate child is also not totally deprived of the right to<\/p>\n
get the father’s property. But a reading of S.16 of the Hindu<\/p>\n
Marriage Act makes it clear that the child should have been<\/p>\n
born out of a marriage. The marriage may be void or voidable<\/p>\n
but the essential factum of marriage is a condition precedent.<\/p>\n
Further, if it is established that there is illegitimate son born in<\/p>\n
a void marriage as contemplated under the provisions of the<\/p>\n
Hindu Succession Act it can be only with respect to the<\/p>\n
separate property of the father and not of a joint family<\/p>\n
property. This has been decided in the decision reported in<\/p>\n
Krishnakumari Thampuram v. Palace Administration<\/p>\n
Board<\/a> (2006(4) KLT 432) and Jinia Keotin v. Kumar<\/p>\n
A.S. NO.<\/a> 102 & 107 OF 1996
\n                                -15-<\/span><\/p>\n
Sitaram (2003 (1) KLT 348). Therefore an analysis of the<\/p>\n
legal position would be as follows.\n<\/p>\n
      12. At the most it can be held that the plaintiffs have<\/p>\n
succeeded in proving that the first plaintiff Krishnan is born to<\/p>\n
Damodaran in Chiruthakutty. There is absolutely no evidence<\/p>\n
to show that Damodaran has married Chiruthakutty by direct<\/p>\n
evidence of marriage or any evidence to prove the long<\/p>\n
cohabitation to establish the relationship as valid which would<\/p>\n
draw a presumption under the provisions of law and lastly<\/p>\n
since the marriage is not proved S.16 of the Hindu Marriage<\/p>\n
Act also it would not come to the rescue of the plaintiffs. So<\/p>\n
the sum and substance of all these observations will only point<\/p>\n
out that the plaintiffs are not entitled to any share in the<\/p>\n
property and therefore the judgment and decree passed by the<\/p>\n
trial court has to be reversed and the suit for partition has to<\/p>\n
be dismissed and I do so.\n<\/p>\n
                           MMM                          1<\/span><\/p>\n
                  In the result A.S. Nos.102 and 107 of 1996<\/p>\n
A.S. NO. 102 & 107 OF 1996
\n                             -16-<\/span><\/p>\n
are allowed and the judgment and decree of the trial court are<\/p>\n
set aside and the suit O.S.371\/90 is dismissed but under the<\/p>\n
circumstances without any order as to costs.<\/p>\n
                              M.N. KRISHNAN, JUDGE.\n<\/p>\n
ul\/-\n<\/p>\n
A.S. NO. 102 & 107 OF 1996
\n                          -17-<\/span><\/p>\n
                               M.N. KRISHNAN, J.\n<\/p>\n
                              = = = = = = = = = =
\n                            A.S. NO. 102 & 107 OF 1996
\n                            = = = = = = = = = = =<\/p>\n
                                J U D G M E N T<\/p>\n
                               5th January, 2009.<\/p>\n","protected":false},"excerpt":{"rendered":"
Kerala High Court Valsan vs Krishnan on 5 February, 2009 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. = […]<\/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-199612","post","type-post","status-publish","format-standard","hentry","category-high-court","category-kerala-high-court"],"yoast_head":"\nValsan vs Krishnan on 5 February, 2009 - 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\/valsan-vs-krishnan-on-5-february-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Valsan vs Krishnan on 5 February, 2009 - 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