Gopalakrishnan v. Subbakke and others

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SATHISH NINAN** **FRIDAY, THE 15[TH] DAY OF JULY 2022 / 24TH ASHADHA, 1944** **RSA NO. 42 OF 2007** **AGAINST THE JUDGMENT DATED 13.10.2006 IN AS 13/2004 OF SUB COURT,** ## **KASARAGOD** **AGAINST THE JUDGMENT DATED 21.11.2003 IN OS 318/1996 OF ADDITIONAL** ## **MUNSIFF'S COURT, KASARAGOD** ## **---** ## **APPELLANT/APPELLANT/DEFENDANT:** GOPALAKRISHNAN, AGED 52 YEARS, S/O.THIMMAPPA POOJARY, HINDU, CULTIVATOR, RESIDING AT CHIGURUPADE OF KULOOR VILLAGE, KASARGOD TALUK, P.O.CHERLA, VIA MANJESWAR. BY ADV SRI.KODOTH SREEDHARAN ## **RESPONDENTS/RESPONDENTS/PLAINTIFFS:** 1 SMT.SUBBAKKE, AGED 67 YEARS, W/O.LATE KOCHU PERGADE, HINDUS, R/AT KANILE OF BADAJE VILLAGE, KASARAGOD TALUK, P.O.MANJESHWAR. 2 SMT.LALITHA, AGED 37 YEARS, D/O.LATE KOCHU PERGADE, HINDUS, R/AT KANILE OF BADAJE VILLAGE, KASARAGOD TALUK, P.O. MANJESHWAR. 3 PUSHPA, AGED 33 YEARS D/O.LATE KOCHU PERGADE, HINDUS, R/AT KANILE OF BADAJE VILLAGE, KASARAGODE TALUK, P.O.MANJESHWAR. **RSA NO. 42 OF 2007 -2-** 4 SADASHIVA, AGED 31 YEARS, S/O.LATE KOCHU PERGADE, HINDUS, R/AT KANILE OF BADAJE VILLAGE, KASARAGOD TALUK, P.O.MANJESHWAR. BY ADVS. PUSHPARAJAN KODOTH SRI.M.HARISHARMA SRI.D.KRISHNA PRASAD SRI.D.NARENDRANATH SMT.O.K.SANTHA K.JAYESH MOHANKUMAR VANDANA MENON VIMAL VIJAY THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 15.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **SATHISH NINAN, J.** **= = = = = = = = = = = = = = = = = = R.S.A. No.42 of 2007** **= = = = = = = = = = = = = = = = = = Dated this the 15[th] day of July, 2022** ## **J U D G M E N T** The concurrent preliminary decree in a suit for partition, is assailed by the defendant in the suit. 2. The plaint schedule property belonged to late Kochu Pargade. Plaintiffs 1 to 4 claim to be the wife and children respectively, of Kochu Pargade. According to the plaintiffs, Kochu Pargade had married yet another lady named Poovakke. Kochu Pargade died in the year 1983. He had no issues in Poovakke. In the year 1992, Poovakke, claiming to be the sole legal heir of Kochu Pargade, conveyed the plaint schedule to one Sadasiva Rao as per Ext.B6. As per Ext.B1 Sale Deed of the year 1993, Sadasiva Rao conveyed the property to the defendant. The plaintiffs contend that the sale deeds are not binding on their share over the plaint schedule property, and has accordingly laid the suit for partition. The defendant disputes the status of ## **R.S.A. No.42 of 2007** -: 2 :- plaintiffs as the wife and children of Kochu Pargade. Thus, he denied the right claimed by the plaintiffs over the plaint schedule property. 3. The suit was originally decreed by the trial court. Challenging the said decree, the defendant filed appeal. The appellate court held that there is no sufficient material to prove the marriage of the first plaintiff with Kochu Pargade, and set aside the decree of the trial court and remanded the matter back for disposal de novo. Both parties were permitted to adduce fresh evidence. 4. Pursuant to the order of remand, further evidence was adduced by both sides. The trial court on appreciation of the evidence held that the plaintiffs are the wife and children of Kochu Pargade. A preliminary decree for partition was passed, declaring the 4/5 shares of the plaintiffs over the plaint schedule property. The decree was affirmed by the first appellate court. It is aggrieved thereby that this **R.S.A. No.42 of 2007** -: 3 :- second appeal is preferred by the defendant. 5. Heard learned senior counsel Sri.Kodoth Sreedharan assisted by Adv.Sri.Chackochen Vithayathil, on behalf of the appellant, and Sri.Kodoth Pushparajan on behalf of the respondents-plaintiffs, on the following substantial questions of law:- (1) Is the defendant entitled to challenge the status of the plaintiffs as the widow and children of late Kochu Pargade? (2) Were the courts below justified in relying on Exts.A3 to A6 documents to find that the plaintiffs are the legal heirs of late Kochu Pargade? (3) Is the suit maintainable before the Civil Court in view of the bar of jurisdiction under Section 7 and 8 of the Family Court’s Act ? 6. The respondents-plaintiffs challenge the right of the defendant to dispute the marriage of the first plaintiff with Kochu Pargade on the reasoning that the defendant is a total stranger. I am unable to agree with ## **R.S.A. No.42 of 2007** -: 4 :- the said contention. The defendant claims title over the plaint schedule property tracing title to Ext.B6 Sale Deed executed by Poovakke. Ext.B6 was executed by Poovakke on the assertion that she is the wife and sole legal heir of Kochu Pargade. So, when a rival claim of title is urged by the plaintiffs, claiming to be the wife and children of Kochu Pargade, definitely the defendant is entitled to challenge the same. The objection of the respondents is thus without substance. Substantial question of law No.1 is answered accordingly. 7. Whether the evidence on record establishes that the plaintiffs are the wife and children of late Kochu Pargade, is the question. The first plaintiff as PW2 has deposed that her marriage with Kochu Pargade was in the year 1945. It is in tune with the plaint averments. The details regarding the ceremony of marriage was spoken to by her. While evaluating the evidence of the plaintiffs regarding the marriage of the first plaintiff with Kochu ## **R.S.A. No.42 of 2007** -: 5 :- Pargade, it is to be borne in mind that, in the year 2003, the plaintiffs are called upon to prove the marriage conducted in the year 1945 i.e. 58 years prior to the examination of PW2. It is to be appreciated that, at such distance of time, production of evidence regarding a marriage held 58 years back would be very difficult. In the cross-examination of PW2 it is suggested that, if the marriage was in the year 1945 she would have been aged only nine years then. However, going by the voter's list ExtA6, it is seen that she was aged around fifteen years at that time. Exts.A3 to A5 are the school admission registers of plaintiffs 2 to 4 viz. the children born to the first plaintiff in Kochu Pargade. In Exts.A3 and A4 the name of the father is shown as “Kochu Pargade”. In Ext.A5, the name of the father is shown as “Kochanna Shetty”. The first plaintiff as PW2 has deposed that Kochu Pargade is also known as Kochanna Shetty, and that “Shetty” is the community name. In the cross-examination of the **R.S.A. No.42 of 2007** -: 6 :- defendant, who was examined as DW1, it is admitted that Shetty community is the same as Bunt community to which Kochu Pargade belonged. Ext.A6 is the voter's list of the plaintiffs. Therein also the name of the father is shown as Kochanna Shetty. There is no suggestion to PW2the first plaintiff, or by the defendant as DW1 that Kochu Pargade and Kochanna Shetty are different persons. Exts.A3 and A4 School Admission Registers of plaintiffs 2 and 3 are of the year 1966 and Ext.A5 School Admission Register is of the year 1976. The first plaintiff as PW2 has deposed that the details of the School Admission Register were given by her. There is no reason why the first plaintiff should have provided wrong or false details at that point of time. 8. The evidentiary value of School Admission Registers and Ext.A6 voter's list cannot be disputed, they being public documents. Exts.A3 to A5 School Admission Registers have been proved by examination of PW2 viz. the mother, who provided the details for entry ## **R.S.A. No.42 of 2007** -: 7 :- in the register. Added to that is Ext.A6 voter's list relating to the family. 9. The learned counsel for the appellant would refer to the judgments in _**Leelamma v. Radhakrishnan [2005**_ _**(2) KLT 212] and Mini and others v. Suseela and others [2019 (2)**_ _**KLT 649]**_ to contend that when the factum of marriage is disputed, it is for the party who asserts marriage to prove marriage according to the customary rites. No person who witnessed the marriage has been examined, contends the learned counsel. While it is true that the plaintiffs could not examine any witness to prove the marriage between the first plaintiff and Kochu Pargade, as noticed earlier, it has to be borne in mind that the marriage was in the year 1945 and the evidence is being adduced in the year 2003. In the circumstances as above, requiring the plaintiffs to adduce direct evidence regarding the marriage would be practically requiring them to do an impossibility. The circumstantial evidence ## **R.S.A. No.42 of 2007** -: 8 :- brought on record, especially through documentary evidence, suggest that the first plaintiff was married to Kochu Pargade and that the plaintiffs 2 to 4 are their children. Both the courts below have appreciated the evidence available on record in detail and have arrived at a finding that the first plaintiff was married to Kochu Pargade and that plaintiffs 2 to 4 were born in that wedlock. The appreciation of evidence by the courts below cannot be said to be perverse. The courts below cannot be faulted with for having relied on Exts.A3 to A6 and also the evidence of PW2, the first plaintiff to arrive at a finding regarding the marriage. Substantial question of law No.2 is thus answered in favour of the plaintiffs. 10. Finally, confessing the absence of a contention in the Courts below and even in the memorandum of appeal, the learned counsel for the appellant raised a contention that, the dispute involved in the suit being regarding the marriage of the 1[st] respondent with Kochu **R.S.A. No.42 of 2007** -: 9 :- Pergade, the suit was not maintainable before the Civil Court. It ought to have been transferred to the Family Court in the light of Section 8 of the Family Court’s Act, 1984, it is contended. Such a contention was not urged in the Courts below or even in the appeal memorandum for the obvious reason that the Family Court was established at Kasargod only on 06.10.2005, as per Gazette notification No.2211 dated 06.10.2005. The suit was tried and disposed of by the trial Court, after remand, on 21.11.2003. In _**Ali Haji v. Alima (1996 (2) KLT 997)**_ , this Court held that Family Court becomes established only when the notification naming the Presiding Officer is published. Therefore, when the suit was tried and disposed of by the trial Court, it had jurisdiction to try the same. The bar of jurisdiction can apply only to an original proceeding. _**[See Josekutty Joseph v. Aniamma Thomas (2006(3) KLT 114)]**_ . As per Section 8 of the Family Courts Act, the pending proceedings are to be transferred to the Family Court. It makes it clear that **R.S.A. No.42 of 2007** -: 10 :- the bar applies only to original proceedings. Even till the disposal of the suit by the trial Court after remand, it had the jurisdiction to try and dispose of the suit. Substantial question of law No.3 is thus answered as above. Though contentions are urged as to whether the claim will fall within the ambit of Explanation to Section 7(1) of the Family Courts Act, the same are not being adverted to as being not relevant in view of the finding on jurisdiction. 11. The defendant purchased the property from one Sadasiva Rao in the year 1993 as per Ext.B1. The prior title relied on is Ext.B6, the sale deed executed by Poovakke in favour of Sadasiva Rao in the year 1992. The sale deed was executed asserting exclusive title in her, claiming to be the sole legal heir of Kochu Pargade. The defendant claims that he had no reason to disbelieve the assertions while purchasing the property and that he had bonafide effected improvements in the property. In the written statement, the defendant has raised a claim for ## **R.S.A. No.42 of 2007** -: 11 :- value of improvements. It is seen that the said claim has not been considered. The plea for value of improvements is left open to be considered at the final decree stage. 12. Thus leaving open the claim for value of improvements, to be considered in the final decree proceedings, the Regular Second Appeal is dismissed. 13. The trial Court shall proceed with final decree proceedings in terms of the preliminary decree without requiring any fresh application in the said regard, though it may be open for the parties to seek for passing of final decree. It is ordered so in the light of the judgment of the Apex Court in _**Kattukandi Edathil Krishnan and another v. Kattukandi Edathil Valsan and others [2022 LiveLaw(SC) 549]**_ wherein, at paragraph 33 of the judgment, it is held thus:- _“We are of the view that once a preliminary decree is passed by the Trial Court, the court should proceed with the case for drawing up the final decree suo motu. After passing_ **R.S.A. No.42 of 2007** ## -: 12 :- _of the prelimary decree, the Trial Court has to list the matter for taking steps undr Order XX Rule 18 of the CPC. The courts should not adjourn the matter sine die, as has been done in the instant case. There is also no need to file a separate final decree proceedings. In the same suit, the court should allow the concerrned party to file an appropriate application for drawing up the final decree. Needless to state that the suit comes to an end only when a final decree is drawn. Therefore, we direct the Trial Courts to list the matter for taking steps under Order XX Rule 18 of the CPC soon after passing of the preliminary decree for partion and separate possession of the property, suo motu and without requiring initiation of any separate proceedings.”_ ## 14. Let steps be taken accordingly. The parties shall appear before the trial court on ## 25.07.2022. Sd/- **SATHISH NINAN JUDGE** kns/- //True Copy// P.S. to Judge