PUNNAKKUZHIYIL JOY ALIAS VARKEY v. VALAYANGADAN MANNI ALIAS DEVI

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT: THE HONOURABLE MR.JUSTICE N.K.BALAKRISHNAN** **THURSDAY, THE 11TH DAY OF JULY 2013/20TH ASHADHA, 1935** **SA.No. 773 of 1997 (A)** **-----------------------** **AGAINST THE JUDGMENT IN AS 182/1993 of ADDL.SUB COURT THALASSERY DATED 30-03-1996** **AGAINST THE JUDGMENT IN OS 163/1988 of MUNSIF COURT, KUTHUPARAMBA DATED 30-01-1993** **APPELLANTS/ RESPONDENTS/DEFENDANTS 2,3,4,6,8,10,11 & 12:** **---------------------------------------------------------------------------------------------** **1. PUNNAKKUZHIYIL JOY ALIAS VARKEY, S/O. JOSEPH, AGED 39 YEARS, AGRICULTURIST, MUZHAKKUNNU AMSOM, PALA DESOM, THALASSERY TALUK, MUZHAKKUNNU PANCHAYAT, WARD NO.6 HOUSE NO.22.** **2. VALAKKANDY BHASKARAN, S/O. RAMUNNI, 34 YEARS, AGRICULTURIST, MUZHAKKUNNU AMSOM, PALA DESOM, THALASSERY TALUK, KUZHAKKUNNU PANCHAYAT, M.5/164** **3. CHOYAN GOVINDA KURUP, S/O. RAMA KURUP, AGED 54 YEARS, AGRICULTURIST, MUZHAKUUNNU PANCHAYAT, M. 6/282, MUZHAKKUNNU AMSOM DESOM, THALASSERY TALUK.** **4. VELUKKARA GOPINATHAN, S/O.KARUNAKARAN NAIR AGED 49 YEARS CLERK, AGRICULTURIST, MUZHAKUUNNU PANCHAYAT, M. 6/156, MUZHAKKUNNU AMSOM, PALA DESOM, THALASSERY TALUK.** **5. PALLIKKANDY KHALID, S/O.ABBAS, AGED 39 YEARS, AGRICULTURIST, MUZHAKKUNNU AMSOM, PALA DESOM, MUZHAKKUNNU PANCHAYAT, M.6/305, THALASSERRY TALUK.** **6. THANGATT MANI MANUAL, AGED 10 YEARS (MINOR) REP. BY FATHER THANGATT BABY, AGED 49 YEARS, AGRICULTURIST, MUZHAKKUNNU PANCHAYAT, MUZHAKKUNNU AMSOM, PALA DESOM, THALASSERRY TALUK.** **7. ABDULKHADER ALIAS ABOOBACKER, S/O. ABDULLAH MUSALIAR, AGED 34 YEARS, BUSINESS, RESIDING AT KANNOTH NAFEES MANZIL MUZHAKKUNNU AMSOM PALA DESOM, THALASSERY TALUK.** **8. POOVARAN CHATHUKUITTY, S/O.KANNAN, AGED 36 YEARS, TAILOR, RESIDING AT MUZHAKKUNNU AMSOM, PALA DESOM, THALASSERRY TALUK.** **BY ADV. SRI.M.C.NAMBIAR** **...2** **-2-** ## **SA.No. 773 of 1997 (A)** **RESPONDENTS/APPELLANTS& RESPONDENT 1,5,7 & 9/PLAINTIFFS & DEFENDANTS 1,5,7 & 9:** - **------------------------------------------------------------------------------------------------------------------------** **1. VALAYANGADAN MANNI ALIAS DEVI, W/O. KUNHIRAMAN, AGED 49 YEARS, MUZHAKKUNNU AMSOM, PALA DESOM, THALASSERRY TALUK** **2. DAUGHTER VALAYANGADAN SANTHA, AGED 32 YEARS, WORKING AT ARALAM FARM, MUZHAKKUNNU AMSOM, PALA DESOM, THALASSERY TALUK.** **3. VELAKKANDY KUNHIKANNAN, S/O.KOTTAN, AGED 59 YEARS, AGRICULTURIST, MUZHAKKUNNU AMSOM, PALA DESOM THALASSERRY TALUK (DIED) *i (RECORDED)** **4. THANKACHAN ALIAS ULAHANNAN, S/O. VAZHAKKOTH VARGHESE, AGHED 48 YEARS, AGRICULTURIST, MUZHAKKUNNU PANCHAYAT, MIUZHAKKUNNU AMSOM, PALA DESOM, THALASSERRY TALUK.** **5. KULLIKKANDY BALAN, S/O. KUNHIKANNAN, AGED 40 YEARS, AGRICULTURIEST, MUZHAKKUNNU AMSOM PALA DESOM, MUZHAKKUNNU PANCHAYAT, M.4/10, THALASSERRY TALUK. (DIED) *ii (RECORDED)** **6. THANGATT SWAPNA MANUAL, AGED 12 YEARS (MINOR) REP. BY FATHER THANGATT BABY, AGED 49 YEARS, AGRICULTURIST, MUZHAKKUNNU PANCHAYAT, MUZHAKKUNNU AMSOM, PALA DESOM, THALASSERRY TALUK** - ***iii (DECLARED AS MAJOR AND THEN DELETED)** - ***i IT IS RECORDED THAT PETITIONERS ARE NOT CLAIMING ANY RELIEF AGAINST R3 AND NO NEED TO IMPLEAD THE LRS OF DECEASED 3RD RESPONDENT AS PER THE ORDER DATED 18.1.2013 IN IO.A. 201/2013** - ***ii IT IS RECORDED THAT DECEASED RESPONDENT NO.5 HAS NO LEGAL HEIRS AND THEREFORE THEY ARE NOT CLAIMING ANY RELIEF AGAINST HIM AS PER THE ORDER DATED 11.1.2013 VIDE MEMO C.F.8100/2013** - ***iii THE 6TH RESPONDENT IS DECLARED AS MAJOR AS PER THE ORDER DATED 5.3.2013 IN I.A.728/2013 AND SHE IS DELETED FROM PARTY ARRAY AS PER THE ORDER DATED 5.3.2013 IN I.A. 783/2013** **R1 & R2 BY ADV. SRI.R.PARTHASARATHY R3 BY ADV. SRI.V.RAJAGOPAL** **THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 11-07-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **JJJ** ## **N.K. BALAKRISHNAN, J.** ------------------------------------------ S.A. No: 773 of 1997 -----------------------------------------Dated this the 11[th] day of July, 2013 ## **J U D G M E N T** Defendants are the appellants. The suit was for partition. The plaint schedule property originally belonged to the 1[st] defendant and Velakandi Kunhiraman. It is contended that the 1[st] plaintiff was the legally wedded wife of Kunhiraman, mentioned above ,and the 2[nd] plaintiff is the daughter born out of that wedlock. Kunhiraman died in 1960. The 1[st] defendant is the elder brother of Kunhiraman. It is contended that after the death of Kunhiramn, the plaintiffs and D1 were in joint possession of the plaint schedule property. Hence, it is contended that the plaintiffs are entitled to half share in the plaint schedule property and the 1[st] defendant is entitled to the other half share. ## **S.A. No: 773/1997** **-2-** 2. The 1[st] defendant filed written statement contending that Kunhiraman died as a bachelor and that the 1[st] plaintiff was neither married by Kunhiraman nor is the 2[nd] plaintiff daughter of Kunhiraman. It was further stated that Kunhiraman and the 1[st] plaintiff – Manni never lived together as husband and wife and the 2[nd] plaintiff was not born through Kunhiraman. It is admitted that Kunhiraman died in 1960. He had no wife and children. His rights devolved upon his father Kottan, who transferred portions of the property to strangers – Mani, Varghese etc. As per the Will executed by Kottan in 1980, the suit property devolved upon the 1[st] defendant, it is contended. 3. The 1[st] plaintiff was examined as PW1 and three other witnesses were examined as PWs 2 to 4. The 1[st] defendant was examined as DW1 and two other witnesses were examined as DWs 2 and 3. Exhibits A1 to A5 and B1 to B17 were marked. The assignees and other interested ## **S.A. No: 773/1997** **-3-** persons were subsequently impleaded as Supplemental defendants 2 to 10 and they also filed written statement in line with the statement filed by the 1[st] defendant. 4. The learned Munsiff, after analysing the evidence, found that PW1 was not the legally wedded wife of Kunhiraman and that the plaintiffs could not prove that the 2[nd] plaintiff was born to the 1[st] plaintiff through Kunhiraman. The fact that PW1 had another daughter by name Rohini, born to the 1[st] plaintiff through Poovadan Govindan was taken note of to hold that PW1 was actually married to Govindan and so in the absence of any other evidence to show that the said marital relationship was severed, the 2[nd] plaintiff must be held to be the child born to Govindan. Discrepancy as regards the birth of the 2[nd] plaintiff with reference to the alleged date of marriage was also pointed out as a ground to hold that the evidence adduced on the side of the plaintiff is unacceptable. Hence, it was held that **-4-** ## **S.A. No: 773/1997** the 1[st] plaintiff was not the wife and the 2[nd] plaintiff is not the daughter of deceased Kunhiraman. Hence, the suit was dismissed. The lower appellate court reversed the finding of the trial court and granted a preliminary decree for partition. 5. It is argued by the learned counsel for the appellant that the lower appellate court has gone wrong in holding that there was long cohabitation between PW1 and deceased Kunhiraman and so it should be presumed that there was a marriage and that the 2[nd] plaintiff was borne to PW1 in that relationship. It is further pointed out that the courts below should not have been swayed by the oral evidence of PWs 1 to 4 as the same was mutually contradictory and thus unworthy of credence. The learned Munsiff had the opportunity to assess the evidence, as that court had the opportunity to watch the demeanour of the witnesses and other aspects so as to test the credibility. Hence, the view taken by the trial court should have been **-5-** ## **S.A. No: 773/1997** given weight and unless there was strong material to hold otherwise, the appellate court cannot reverse the findings entered by the trial court, the appellants further contend. 6. It is the admitted fact that PW1 had another daughter by name Rohini, who was elder to the 2[nd] plaintiffShantha by two years. Admittedly Rohini was born to PW1 through Poovadan Govindan. If there was marital relationship between PW1 and Poovadan Govindan then unless it is proved that the said marital tie was snapped it should be presumed that the said relationship continued and if that be so, the 2[nd] plaintiff should also be the daughter of Poovadan Govindan and not of Kunhiraman. 7. The following substantial questions of law have been framed. - (i) As admittedly the 1[st] plaintiff had a daughter by name Rohini born through one Govindan, in the absence of any acceptable legal ## **S.A. No: 773/1997** **-6-** evidence, is the lower appellate court right in holding that the 2[nd] plaintiff was the daughter of the 1[st] plaintiff, born through deceased Kunhiraman? (ii) Is the lower appellate court right in holding that there was long cohabitation between the 1[st] plaintiff and the deceased Kunhiraman especially in view of the fact that the 1[st] plaintiff was married to or was having relationship with Govindan? 8. According to PW1 she was married by Kunhiraman in 1958. The date of birth of the 2[nd] plaintiff, as could be seen from Ext.A2, is 6.4.1960. The trial court has observed that if PW1 was married by Kunhiraman in 1958 and if she became pregnant after about two months of the marriage, as stated by PW1, the birth of the 2[nd] plaintiff could not have taken place in 1960. Such a computerised appreciation of ## **S.A. No: 773/1997** **-7-** evidence cannot be had, the learned counsel for the plaintiffs submits. PW1 has given evidence pertaining to the marriage which took place about 30 years ago and so certainly there would be some discrepancy in the evidence given by her. But such discrepancies cannot be projected out of proportion to hold that the evidence so given by PW1 cannot be accepted at all if it is otherwise found acceptable. The trial court has also pointed out certain discrepancies in the evidence regarding the custom of marriage which was allegedly followed in the instant case. 9. According to PW1 and others there was sprinkling of rice on the head of the bride (PW1) and the bridegroom - and that was the ceremony that took place on the day of the alleged marriage which took place in the house of PW1. One witness has stated that here was no sprinkling of rice. It was also stated that there was no handing over of 'pudava' (cloths) and that it was actually deferred to a ## **S.A. No: 773/1997** **-8-** future date. Thus it is contended by the defendants that there was no customary marriage at all, for, handing over of cloths is the essential and indispensable ceremony of marriage of 'Thiyya' Community of north Malabar. Though, according to PW1 there was a fixation ceremony about four days prior to the marriage, in which PW2, PW3 and others had participated, PW2 and PW3 would state that there was no fixation ceremony. Kottan – the father and DW1 - the elder brother of Kunhiraman were alive at that time. According to the witnesses they were not present at the time of fixation or marriage. Therefore, this would also unravel the fallacy of the case, or at any rate improbabilise the case put forward by the plaintiffs that there was a marriage between PW1 with Kunhiraman. 10. The plaintiffs contended that the customary marriage that took place was one called as 'Veettusamandham' and that was why the husband and ## **S.A. No: 773/1997** **-9-** party went to the house of the woman (bride) and had the marriage. The fact that PW1 had a daughter by name Rohini in the relationship she (PW1) had with Govindan is also a strong circumstance to hold that there was no marriage between PW1 and Kunhiraman, but PW1 says that there was no marriage between she and Govindan but they were only in love and it was in that relationship Rohini was born to PW1. In such circumstances, one will certainly think that the 2[nd] plaintiff might have been born to PW1 in such relationship which she had with Kunhiraman. In other words, Rohini might have been born to PW1 in her relationship when there was no marriage between she and Govindan and 2[nd] plaintiff might have been born to PW1 in similar relationship which she had with Kunhiraman. 11. Exhibit A2 is the extract of the birth register of 2[nd] plaintiff – Shantha which shows that her date of birth is 6.4.1960. It is seen that the birth was registered on ## **S.A. No: 773/1997** **-10-** 8.4.1960 and her father's name is shown as Kunhiraman and mother's name is shown as Manni. The defendants would contend that such an entry must have been made subsequently. The original register was not caused to be summoned to see whether it was a subsequent insertion. However, it is seen that a certified extract was issued by the Panchayath on 21.2.1987. Ext.A5 is the extract of the School Admission Register issued on 14.8.1989 which shows that Shantha – the 2[nd] plaintiff was admitted to school on 23.5.1966 where her date of birth is shown as 1.6.1959. The date of leaving the school is shown as 12.3.1973. The fact that the date of birth shown in Ext.A2 is different from Ext.A5 is not of much consequence since during olden days it was the practice of the headmaster to admit a boy or girl in school showing the date convenient to him to show that the boy or girl had completed the required age. Sometimes simply a date, as told by the parent or guardian, without ## **S.A. No: 773/1997** **-11-** insisting for a birth certificate, also used to be shown. When the parents are illiterate or not that much literate to remember the date of birth, a date would be given to suit the convenience. It may not be the exact date. 12. The appellate court has observed that since the witnesses deposed before court after about 30 years of the alleged marriage there will certainly be inconsistencies in their evidence because of lapse of memory and so, such inconsistencies cannot be projected out of proportion to hold that the witnesses were unworthy of credence. It is true that it would be difficult for a party to get witnesses to speak regarding a marriage that took place more than 30 years back. True that three aged persons were brought to the court to give evidence regarding the same. But their evidence was not acceptable to the trial court which had the opportunity to assess the evidence in the correct perspective, watching the demeanour and other aspects. ## **S.A. No: 773/1997** **-12-** If there were only some minor contradictions in their evidence that could have been certainly explained away stating that since those witnesses happened to give evidence after about 30 years, there would certainly be such contradictions and inconsistencies with regard to the actual marriage ceremony that took place or performed somewhere in 1958. According to PW1, the marriage took place towards the end of 1958. She also says that she became pregnant after about two months of the marriage. According to the witnesses after the marriage, Kunhiraman remained in the house of PW1 and the parties who attended the marriage left the place. That also is unusual, for, after the marriage usually the wife would be taken to the husband's house. The further fact that the father and elder brother of deceased Kunhiraman did not participate in the marriage also would tell upon the acceptability of the case of marriage pleaded by PW1. ## **S.A. No: 773/1997** **-13-** 13. There is yet another aspect which also cannot be lost sight of. A specific denial was made in the written statement contending that there was no marriage between PW1 and deceased Kunhiraman and that the 2[nd] plaintiff was not born to PW1 through Kunhiraman. In spite of that specific denial, the plaintiffs did not choose to cause amendment to the plaint or to have a replication so as to add the particulars regarding the alleged marriage that took place. Therefore, as it stands the evidence regarding the custom and marriage is without any pleading. According to PW1, her husband Kunhiraman died when she was pregnant by eight months. If that be so, Kunhiraman might have died in 1959 itself. The fact that no 'pudava' (cloths) was handed over by Kunhiraman to PW1 is also a strong circumstance against the case of marriage set up by PW1. The lower appellate court proceeded to hold that a presumption of marriage can be drawn from the evidence of **-14-** ## **S.A. No: 773/1997** long co-habitation, for which, the appellate court has also relied upon the decision of the Supreme Court. But so far as the case on hand is concerned, admittedly there was no long co-habitation. The long co-habitation must be such that the man and woman must have lived together for a continuous period proclaiming themselves by their conduct that they are husband and wife and people must have been taken to believe that they are husband and wife and that they were living together for so many years. But, here admittedly, Kunhiraman stayed in the house of PW1 only for a short while. Therefore, the contention that presumption should have been drawn because of long co-habitation, is misplaced and misconceived, since there is no evidence of long co-habitation. 14. Since the name of the mother of the girl was shown as Manni and since the name of the grandmother of PW1 was shown as Manni, arguments were addressed to the ## **S.A. No: 773/1997** **-15-** effect that birth certificate and the school admission register cannot be made use of to contend that it pertains to the 2[nd] plaintiff. But there was no case for the defendants that PW1 had another sister by name Manni. It is true that during cross examination it was stated by PW1 that she had no name by Manni, but in the cause title of the plaint her name was shown as Manni alias Devu. In re-examination it was clarified that what was stated in the plaint is correct. Be that as it may, the fact that 2[nd] plaintiff is the daughter of PW1 born through Kunhiraman could be well established. 15. There is one more aspect which assumes much significance in this case. PW3, one of the witnesses, who was examined to speak regarding the marriage, has deposed before court that he came to know that PW1 was pregnant at the time of the alleged marriage. He had also come to know that PW1 was having relationship with Govindan. Of course, since PW1 asserts that 2[nd] plaintiff ## **S.A. No: 773/1997** **-16-** was the daughter born to her through Kunhiraman that part of the evidence can be accepted. But at the same time the evidence given by PW3 that at the time of the marriage itself PW1 was pregnant would scuttle the plea raised by PW1 that she became pregnant after about two months of the marriage. These are circumstances which would run counter to the case advanced by the plaintiff that there was a legal/customary marriage between PW1 and deceased Kunhiraman. Therefore, the lower appellate court was not justified in holding that there was customary marriage and that 2[nd] plaintiff was born to PW1 in that lawful wedlock. Kunhiraman was shown as the father of 2[nd] plaintiff when the birth of that child was registered in the Panchayat Office. He was also shown as the father when 2[nd] plaintiff was admitted in the school. It was done at an undisputed point of time. Hence, the evidence given by PW1 that 2[nd] plaintiff was born to PW1 through deceased Kunhiraman, is ## **S.A. No: 773/1997** **-17-** found to be acceptable. Even though the plaintiffs failed to prove that there was lawful marriage between PW1 and deceased Kunhiraman, it could be proved that 2[nd] plaintiff is the daughter of Kunhiraman born to PW1. 16. If there was no legal marriage, then PW1 and 2[nd] plaintiff cannot claim any share in the immovable property left behind by Kunhiraman. Admittedly the plaint schedule properties were purchased by Kunhiraman and first defendant. If the plaintiffs are not the legal heirs, then certainly on the death of Kunhiraman his right over the property would devolve upon his father Kottan. He had transferred some properties to others and the remaining property was bequeathed by him. In the joint written statement filed by defendants 2 to 5 and D7 and D8, it was stated that the 2[nd] defendant had purchased 24 cents of land as per a registered document of 1985 and that the 3[rd] defendant purchased 3½ cents of land as per a registered ## **S.A. No: 773/1997** **-18-** deed of 1983. It was stated that 4[th] defendant purchased 2 cents of land as per document of 1987 and that the 8[th] defendant had purchased 15 cents of land as per an assignment deed of 1987. It was further contended that defendants 5 & 7 who had obtained assignment of a portion of the suit property, transferred the same in favour of one Abdul Khader, Poovalan Chathukutty etc. and they are in possession of those items. Hence, that Abdul Khader was subsequently impleaded as D11 and Chathukutty was impleaded as supplemental 12[th] defendant. 17. The 9[th] and 10[th] defendant filed another joint written statement stating that property measuring 1.50 Acres, which is portion of the suit property, is in the possession of the guardian of minor defendants 9 and 10. It was further contended that the 11[th] defendant had purchased 80 cents of land in 1986 from Ulahannan, who had obtained the same from deceased Kottan. The 12[th] ## **S.A. No: 773/1997** **-19-** defendant has filed statement contending that he purchased 10 cents of land from Kottan in 1987 as per a registered assignment deed. 18. Even though the plaintiffs could not prove the customary marriage, the court had to hold that plaintiffs are not the legal heirs of deceased Kunhiraman. Still the fact remains that the 2[nd] plaintiff is the daughter of Kunhiraman. Though it could not be proved that there was a marriage, the court has to do justice for which equity has to be worked out. The deceased Kunhiraman had undivided half right in the suit properties as on the date of his death. 19. The decision of the Honourable Supreme Court in **Vidhyadhari and others v. Sukhrana Bai and others –** **(2008) 2 SCC 238** , though was on a different set of facts, can certainly be relied upon in this connection. It is true that the facts are entirely different in that case. Though it ## **S.A. No: 773/1997** **-20-** was held that Sukhrana Bai was the only legitimate wife, yet the Hon'ble Supreme Court chose to grant the Succession Certificate in favour of Vidhyadhari, who was the nominee of deceased Sheetaldeen and the mother of his four children. Thus the Hon'ble Supreme Court balanced the equities and held Sukhrana Bai as one of the legal heirs and also the four children born through Vidhyadhari. 20. The plaint schedule property is shown to be measuring 65 x 50 six feet koles. It would be equivalent to 2 acres 70 cents. In order to balance the equities, I find it is just and proper that the 2[nd] appellant is granted some relief, even though she is not proved to be the legitimate daughter born to the 1[st] plaintiff through deceased Kunhiraman in the lawful wedlock. Therefore, applying the equitable principle enunciated by the Honourable Supreme Court in **Vidhyadhari** 's case, I find that the defendants can be directed to pay certain amount so as to meet the ends of ## **S.A. No: 773/1997** **-21-** justice. 21. The learned counsel for the 1[st] defendant/1[st] appellant submits that the entire property has been sold away and he is not in possession of any extent of land. From the submissions made by both sides and from the pleading, it could be found that D2 is now in possession of 24 cents, D3 is in possession of 3 ½ cents, D4 is in possession of 2 cents, D6 is in possession of 20 cents and D8 is in possession of 15 cents. D9 and D10 are together in possession of 1.50 acres. D11 is in possession of 80 cents and D12 is in possession of 10 cents, on assignment from D1 or from his assignees. Though D1 is not in possession of any extent of land now, since he had executed the documents of assignment he cannot be totally absolved of the liability to pay some amount to the 2[nd] plaintiff. 22. Hence, the defendants are directed to pay the amounts as shown below to the 2[nd] plaintiff. ## **S.A. No: 773/1997** **-22-** D1 shall pay Rs.10,000/-; D2 shall pay Rs.20,000/-; D3 shall pay Rs.3,000/-; D4 shall pay Rs.2,000/-; D6 shall pay Rs.15,000/-; D8 shall pay Rs.10,000/-; D9 and D10 shall pay Rs.50,000/-; D11 shall pay Rs.30,000/- and D12 shall pay Rs.15,000/-. The amounts payable by D2, D3, D4, D6, D8, D9 & D10, D11 and D12 shall be a charge on the respective properties obtained assignment by those defendants from the 1[st] defendant or from the assignees of the 1[st] defendant. Except for the provision regarding payment as aforesaid, in all other respects this Second Appeal will stand allowed dismissing the suit. Sd/- N.K. BALAKRISHNAN, JUDGE //True Copy// P.A. to Judge jjj