Amrutha and others v. Ayesha

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **THURSDAY ,THE 06TH DAY OF SEPTEMBER 2018 / 15TH BHADRA, 1940** **RSA.No. 841 of 2008** **AGAINST THE JUDGMENT AND DECREE DATED 28-03-2008 IN AS 182/2005 of IST ADDL.DISTRICT COURT, THRISSUR** **AGAINST THE JUDGMENT AND DECREE DATED 28-01-2005 IN OS 3092/2001 of III ADDL.MUNSIFF COURT, THRISSUR** **APPELLANTS/APPELLANTS/DEFENDANTS:** - **1 AMRUTHA, AGED 19 YEARS, D/O LATE THOTTATHIL MADHAVAN, CHELAKOTTUKARA DESOM, CHIYYARAM VILLAGE, THRISSUR TALUK.** **2 ATHIRA MINOR AGED 16 YEARS D/O LATE THOTTATHIL MADHAVAN, BY GUARDIAN AND MOTHER PADMINI, WIDOW OF LATE THOTTATHIL MADHAVAN, CHELAKOTTUKARA DESOM, CHIYYARAM VILLAGE, THRISSUR TALUK.** **3 PADMINI, WIDOW OF LATE THOTTATHIL MADHAVAN, CHELAKOTTUKARA DESOM, CHIYYARAM VILLAGE, THRISSUR TALUK.** **BY ADVS. SRI.K.RAMACHANDRAN SRI.S.SREEDEV** ## **RESPONDENT/RESPONDENT/PLAINTIFF:** **AYEESHA, W/O VAZHOOR RAJEEVAN VALAPPAD P.O., VALAPPAD VILLAGE,, CHAVAKKAD TALUK, THRISSUR DISTRICT, PIN 680 567.** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 06.09.2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **RSA.No. 841 of 2008** **2** ## **JUDGMENT** **The defendants in the suit are the appellants in the second appeal.** **2. Defendants 1 and 2 are the daughters of one Madhavan. The third defendant is the mother of defendants 1 and 2. The plaintiff is another daughter of Madhavan born in his wife Alli. Madhavan died on 05/07/2000. The case set out by the plaintiff in the plaint is that the plaint schedule properties belonged to Madhavan and the same devolved on the plaintiff and defendants 1 and 2 on his death. The suit was for partition of the one third share of the plaintiff in the plaint schedule properties. It was alleged by the plaintiff in the plaint that there was no marriage between Madhavan and the third defendant and she is, therefore, not entitled to any share in the plaint schedule properties. The suit was resisted by the defendants contending that Madhavan had executed Exhibit-B1 settlement deed in favour of the third defendant in respect of plaint schedule item No.3 property and the said item of property, therefore, belongs exclusively to the third defendant. As regards** **RSA.No. 841 of 2008** **3** **the remaining items, it was contended by the defendants that the plaintiff was born to Madhavan before his marriage with Alli and that she, being an illegitimate daughter of Madhavan, is not entitled to any share in his properties. It was also contended by the defendants that Madhavan married the third defendant after the death of his first wife Alli and that, therefore, plaint schedule items 1 and 2 properties devolved on the defendants exclusively on the death of Madhavan. Though the plaintiff preferred an interlocutory application before the trial court in the course of the proceedings stating that defendants 1 and 2, being illegitimate children of Madhavan, are not entitled to any share in the plaint schedule properties; that the plaint schedule properties consequently devolved on her exclusively on the death of Madhavan and that, therefore, the plaintiff shall be permitted to amend the suit as one for recovery of possession of the plaint schedule properties on the strength of her title, the said application was, however, dismissed by the trial court. Thereupon, on a consideration of the materials on record, the trial court rejected the case of the defendants that the plaintiff is** **RSA.No. 841 of 2008** **4** **a daughter born to Madhavan before his marriage with Alli. It also rejected the case of the defendants that Madhavan married the third defendant. It refused to consider the claim raised by the third defendant on the basis of Exhibit-B1 settlement deed in respect of plaint schedule item No.3 property on the ground that there was no pleading in the written statement filed by the defendants in support of the said claim. Consequently, the trial court passed a preliminary decree in favour of the plaintiff for partition of one third share of the plaint schedule properties holding that the plaint schedule properties devolved on the plaintiff and defendants 1 and 2 on the death of Madhavan. Though the defendants challenged the decision of the trial court in appeal, the appellate court confirmed the decision of the trial court. The defendants are aggrieved by the decisions of the courts below.** **3. Heard the learned counsel for the** **appellants.** **4. The learned counsel for the appellants contended that insofar as the plaintiff did not challenge Exhibit-B1 settlement deed, it was obligatory for the** **RSA.No. 841 of 2008** **5** **courts below to consider the claim raised by the third defendant on the basis of Exhibit-B1 settlement deed. It was pointed out by the learned counsel that since the trial court refused to consider the said claim on the ground that there was no pleading, an interlocutory application was filed by the defendants in the appeal preferred by them for amendment of the written statement to incorporate the said claim in the written statement and the impugned judgment was rendered without taking note of the said application. According to the learned counsel, the appellate court, in the facts and circumstances, ought to have allowed the application for amendment of the written statement filed by the defendants in the appeal and upheld the claim raised by the third defendant on the basis of Exhibit-B1 settlement deed. It was also contended by the learned counsel that the marriage between Madhavan and the third defendant was proved by the defendants by examining DW2. Even otherwise, according to the learned counsel, the materials on record indicate beyond doubt that the third defendant was residing with Madhavan ever since 1988 till his death as his wife and in the absence of any material** **RSA.No. 841 of 2008** **6** **to show that there was no marriage between them, the courts below ought to have presumed that the third defendant is the wife of Madhavan. The findings of the courts below that there was no marriage between Madhavan and the third defendant, according the learned counsel, are therefore perverse.** **5. Having perused the records and having heard the learned counsel for the defendants, the substantial questions of law arising for consideration in the second appeal have been re-framed thus:** **(1) Is the appellate court justified in rejecting the claim of the third defendant over plaint schedule item No. 3 property on the basis of Exhibit B1 settlement deed on the ground that there was no pleading in support of the said claim in the written statement filed by them when the application preferred by the defendants for amendment of the written statement to incorporate such a claim was pending consideration?** **(2) Are not the findings of the courts below that there was no marriage between Madhavan and third defendant, perverse in law?** **6. Exhibit-B1 settlement deed is a document** **RSA.No. 841 of 2008** **7** **admitted in evidence in the suit. It is beyond doubt that in terms of the said document, Madhavan had settled plaint schedule item No.3 property in favour of the third defendant. True, the third defendant has not raised any claim in respect of the said property on the basis of Exhibit-B1 settlement deed in the written statement filed by her in the suit. If the third defendant had raised a claim in respect of plaint schedule item No.3 property on the basis of Exhibit-B1 settlement deed in the written statement filed by her, it is beyond dispute that the plaintiff could not have claimed any right over the said property without challenging the said document. It is seen that though the said document was admitted in evidence in the suit, the plaintiff did not take any steps to challenge the same. There is nothing on record also to indicate that the said document is invalid for any reason whatsoever. As noted, as the trial court refused to consider the claim of the third defendant based on Exhibit-B1 settlement deed for want of pleadings, the defendants preferred an interlocutory application for amendment of the written statement filed by them to incorporate such a claim as I.A. No.792 of** **RSA.No. 841 of 2008** **8** **2007. No objection is seen filed to this application by the plaintiff. As rightly pointed out by the learned counsel for the appellants, the appellate court also refused to consider the said claim on the very same ground without taking note of the fact that an application for amendment of the written statement to incorporate such a claim is pending. In a case of this nature, in the absence of any challenge against ExhibitB1 settlement deed and in the absence of any objection to the interlocutory application preferred by the defendants for amendment of their written statement, the appellate court, according to me, ought to have allowed the application for amendment of the written statement and upheld the claim of the third defendant based on ExhibitB1 settlement deed. Question No.1 is thus answered in favour of the appellants.** **7. The specific case of the defendants is that Madhavan married the third defendant on 06/03/1987 at Guruvayur Temple in accordance with the religious rights. The main reason on which the courts below rejected the said case of the defendants is that in an earlier suit namely O.S. No. 151 of 1995 the issue as to whether** **RSA.No. 841 of 2008** **9** **Madhavan married the third defendant arose for** **consideration and the issue was decided in the said suit against the third defendant. It is seen that there was an appeal against the decision in the said suit before this Court as RFA No.435 of 2003 and this Court vacated the finding rendered by the court below in the said suit on the aforesaid issue as unnecessary. The correctness of the finding rendered by the courts below on the issue relating to the marriage of the third defendant with Madhavan is, therefore, to be examined independent of the finding in O.S. No.151 of 1995.** **8. The third defendant gave evidence in the suit as DW1 in support of the case of the defendants that she married Madhavan on 06/03/1987 at Guruvayur Temple in accordance with the religious rights. In addition, a witness was also examined as DW2 on the side of the defendants to prove the said marriage. DW2 deposed that he witnessed the marriage that took place at Guruvayur Temple as claimed by the third defendant. He also stated that Madhavan married the third defendant by tying '** _**thali**_ **' and by the couple garlanding each other. The courts below rejected the said evidence on the ground** **RSA.No. 841 of 2008** **10** **that the defendants have not pleaded in their written statement that there was such a marriage on 06/03/1987. The evidence tendered by DW2 was brushed aside by the courts below on the ground that had he been a genuine witness, he would have certainly been examined by the defendants in O.S. No.151 of 1995. In other words, according to the courts below, insofar as the said witness did not give evidence in the earlier suit in which the issue arose for consideration, his evidence cannot be accepted. True, the defendants have not specifically pleaded in their written statement that the marriage between Madhavan and third defendant took place on 06/03/1987. They have only pleaded that Madhavan married third defendant. The stand taken by the courts below that the case set up by the defendants as to the marriage of the third defendant cannot be considered since the date of marriage was not pleaded by the third defendant is too technical a stand which, according to me, the courts below should not have adopted when the defendants have specifically denied the averment of the plaintiff that Madhavan had not married the third defendant and stated that Madhavan had married the third** **RSA.No. 841 of 2008** **11** **defendant. Further, Section 155 of the Evidence Act deals with the manner in which the credit of a witness is to be impeached. The said provision provides that the credit of a witness may be impeached either by the evidence of persons who testify that they, from their knowledge of the witness, believe him to be unworthy of credit, or by proof that the witness has been bribed, or has accepted the offer of a bribe, or has received any other corrupt inducement to give his evidence or by proof of former statements inconsistent with any part of his evidence which is liable to be contradicted. In the light of the said provision, the reason stated by the courts below that the evidence tendered by DW2 cannot be accepted as he was not examined in O.S. No.151 of 1995 is patently unsustainable. Be that as it may, it has come out in evidence that Madhavan and third defendant have cohabited continuously from the year 1988 till the death of Madhavan. Ext.B1 is a settlement deed executed by Madhavan in favour of the third defendant on 28-10-1991 by which plaint schedule item No.3 property was settled in favour of the third defendant. In Ext.B1, it was recited by Madhavan that the third defendant is his wife.** **RSA.No. 841 of 2008** **12** **Ext.B3 is a mortgage deed executed by third defendant on 23/11/1991 in favour of a Co-operative Society for the purpose of availing a loan. In the said document, the third defendant is described as the wife of Madhavan. Exts.B4 and B4(a) are the ration cards of the third defendant. In the said documents also, the third defendant is shown as the wife of Madhavan. Ext.B6 is the registration certificate issued by the Small Scale Industries Department in favour of the third defendant. In the said document also, the third defendant is shown as the wife of Madhavan. Ext.B7 is a notice issued by the Commercial Taxes Department to the third defendant. In the said document also, the third defendant is described as the wife of Madhavan. Ext.B8 is another notice issued by the District Co-operative Bank to the third defendant. In the said document also, the third defendant is shown as the wife of Madhavan. Ext.B9 is a release deed executed by one Sudha Krishnankutty wherein also the third defendant is shown as the wife of Madhavan. It has come out in evidence that the third defendant has discharged some of the debts of Madhavan also in her capacity as his widow. The fact that** **RSA.No. 841 of 2008** **13** **defendants 1 and 2 are the daughters born to Madhavan in the third defendant is not disputed. Defendants 1 and 2 were aged 12 and 9 years respectively during 2001 when the suit was filed. The courts have consistently held that law presumes in favour of marriage and against concubinage, when a man and woman cohabited continuously for a number of years. Of course, this presumption can be defeated by leading unimpeachable evidence. The said principle has been reiterated by the Apex Court in** _**Madan Mohan Singh & Others v. Rajni Kant & Another [AIR 2010 SC 2933]**_ **. Paragraph 21 of the judgment of the Apex Court in the said case reads thus:** _**“The courts have consistently held that the law presumes in favour of marriage and against concubinage, when a man and woman have cohabited continuously for a number of years. However, such presumption can be rebutted by leading umimpeachable evidence. (vide:Mohabbat Ali Khan v. Mohd.Ibrahim Khan (AIR 1929 PC 135); Gokalchand v. Parvin Kumar (AIR 1952 SC 231); S.P.S.Balasubramanyam v. Suruttayan ((1994) 1 SCC 460); (AIR 1994 SC 133: 1993 AIR SCW 3765; Ranganath Parmeshwar Panditrao Mali v. Eknath Gajanan Kulkarni ((1996) 7 SCC 681): (AIR 1996 SC 1290: 1996 AIR SCW 1389; and Sobha Hymavathi Devi v.**_ **RSA.No. 841 of 2008** **14** _**Setti Gangadhara Swami & Ors. ((2005) 2 SCC 244) : (AIR 2005 SC 800: 2005 AIR SCW 718).”**_ **9. There is nothing on records to indicate that the case of the defendants that Madhavan married the third defendant on 06-03-1987 is incorrect. In the light of the aforesaid facts and circumstances, according to me, the findings rendered by the courts below that there was no marriage between Madhavan and third defendant is perverse. On the facts and circumstances of the case, I also deem it appropriate to hold that Madhavan married the third defendant as claimed by the defendants. Question No.2 is thus answered in favour of the appellants.** **10. In the light of the finding rendered by this Court on question No.1, the plaintiff cannot claim any right over plaint schedule item No.3 property. Likewise, in the light of the finding rendered by this court on question No.2, the share of the plaintiff over plaint schedule item Nos.1 and 2 properties is liable to be modified as one fourth, instead of one third.** **In the result, the second appeal is allowed and the decree passed by the trial court as confirmed in** **RSA.No. 841 of 2008** **15** **appeal is modified to the effect that the plaintiff will not have any right over plaint schedule item No.3 property and that her share over plaint schedule item Nos.1 and 2 properties is not one third, but only one fourth.** **Sd/-** **P.B.SURESH KUMAR** **SKS** **JUDGE**