RSA No. 1146 of 2004

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE P.SOMARAJAN** **THURSDAY ,THE 14TH DAY OF MARCH 2019 / 23RD PHALGUNA, 1940** **RSA.No. 1146 of 2004** **AGAINST THE DECREE AND JUDGMENT IN AS 90/1992 of ADDITIONAL DISTRICT COURT II, MAVELIKKARA DATED 04-03-2004** **AGAINST THE DECREE AND JUDGMENT IN OS 169/1989 of MUNSIFF COURT, MAVELIKKARA DATED 28-11-1991** ## **APPELLANTS/RESPONDENTS 1 TO 4/DEFENDANTS 1 TO 4:** - **1 VELUMBAN CHELLAPPAN KALATHINTE MELETHIL VEETTIL, PULIMEL MURI, NOORANADU VILLAGE, ALAPPUZHA.** - **2 BHASKARAN, KOCHUTHUNDIL PULIMEL MURI NOORANADU VILLAGE, ALAPPUZHA.** - **3 VELUTHAPENNU, DO. DO. 4 BHASKARAN VIJAYAN, DO. DO.** **BY ADV. SRI.R.RAMADAS** ## **RESPONDENTS/APPELLANT AND 5TH RESPONDENT/5TH DEFENDANT:** - **1 VELUMBI, D/O.MALA KONNAKKOTTU VEETTIL, THEKKUMANKUZHI MURI, BHARANICAVU VILLAGE.** - **2 BHASKARAN SIVANKUTTY, KOCHUTHUNDIL PULIMEL MURI, NOORANADU VILLAGE, ALAPPUZHA.** **BY ADV. SRI.C.RAJENDRAN FOR R1** **THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 12.03.2019, THE COURT ON 14.03.2019 DELIVERED THE FOLLOWING:** R.S.A.No.1146/2004 2 ## **JUDGMENT** A suit for declaration of title over plaint schedule property and recovery of possession with mesne profits based on title was dismissed by the trial court, but in first appeal, the appellate court decreed the suit, against which the defendants came up with this appeal. 2. The dispute is pertaining to the property left out by one Karumpan Thevan belongs to Pulaya Community. The plaint schedule item consists of 69 cents of property which was obtained by Karumpan Thevan as per order in O.A.No.94/1973. Item No.2 property was purchased by him. After his death on 26.11.1982, the properties were devolved on the sole legal heir, the plaintiff. The first defendant is the nephew of the deceased. Earlier she filed a suit in O.S.No.215/1983 against the first defendant and others for a permanent injunction. That suit was dismissed on the finding that the plaintiff failed to prove her possession over the property. After the dismissal of the suit, the defendants have trespassed into the properties and have taken possession thereof. 3. The suit was contested by the defendants disputing that Karumpan Thevan is not the father of the plaintiff. He married to one Mala Thali and died issue less on 26.11.1982. There is no marriage in between Karumpan Thevan and the mother of plaintiff one Karumpi Mala. She was R.S.A.No.1146/2004 3 married to one Thevan of Pallikkal Orickel House and the plaintiff is his daughter born to Karumpi Mala. The First Appellate court decreed the suit by relying on Section 18(2) of Evidence Act and found that the plaintiff is the only daughter of deceased Karumpan Thevan based on the admission in Ext.A1 gift deed executed on 6.8.1981 regarding the status of plaintiff as his daughter. 4. The question raised by the appellant in this appeal is : Whether the lower appellate court justified in holding that Section 16(1) of the Hindu Marriage Act is applicable to the facts of this case when there is no evidence to prove the alleged marriage of the mother of the plaintiff with deceased Thevan ? 5. In fact, the question whether there is any valid marriage does not arise for consideration in this case on the reason that the best persons who are competent to speak about the paternity of the child are the mother and father of the child and when father declares the status of the plaintiff as his daughter in a registered document, Ext.A1 gift deed, as early as in the year 1981, it would be sufficient to show her status as the daughter of deceased and no one else can challenge it. A mere perusal of Ext.A1 gift deed would show that it was executed by Karumpan Thevan in favour of his daughter, the plaintiff herein. If that be so, the question came up is what else is required to show R.S.A.No.1146/2004 4 her status as the daughter of deceased Karumpan Thevan. It is the first defendant, the nephew of Karumpan Thevan came up with a case disputing her status as the daughter of deceased Karumpan Thevan, though he has no business with the paternity of the child admitted by her father by way of a registered instrument Ext.A1 gift deed. Inter alia another contention was raised by the nephew, the first defendant, that in the plaint there is no pleading with respect to any valid marriage or any marriage either void or voidable and in the absence of such a pleading, the plaintiff cannot take the benefit under Section 16(1) of Hindu Marriage Act. Needless to say that Section 16(1) of Hindu Marriage Act would come into play giving the status of a legitimate son or daughter who became illegitimate on account of declaration of marriage as either void or voidable by virtue of Section 11 of the Act. When the father himself, the deceased Karumpan Thevan made a declaration by a registered document regarding the status of plaintiff as his daughter, it is binding on all the person litigating under him. Then comes the question who says that she is an illegitimate daughter, interestingly, none else, the nephew the defendant who had no business with the paternity of the child. In other words, it is the case of the first defendant, the nephew, as an alternative contention, that even if it was found that she is the daughter, she would be an illegitimate daughter. Certainly and necessarily, when there is a R.S.A.No.1146/2004 5 declaration by the father with respect to the status of his child, the person who disputes it should prove and establish atleast to show that she is not the legitimate daughter born to deceased Karumpan Thevan. The plaintiff has not taken any contention that she is an illegitimate child born to Karumpan Thevan and not relied on the benefit conferred under Section 16 of the Hindu Marriage Act. It is the contention raised by the nephew, the first defendant along with the other defendants that if she is found to be the daughter, she would be an illegitimate daughter and the benefit conferred under Section 16 of the Hindu Marriage Act alone can be claimed, for which there should be a pleading of a marriage solemnized. No such pleading of marriage was raised and hence she cannot claim the benefit conferred under Section 16 of the Act. But no claim was raised by the plaintiff based on the benefit conferred under Section 16 of the Act. Then the defendant cannot impose a benefit on the plaintiff by way of defence. The defence set up by the defendant disputing the status of the plaintiff overlooking the declaration made by her father under a registered document, has to be established by the person who claimed it. The burden heavily lies on the defendant to show and prove that she is only an illegitimate child. Then only the question of benefit conferred under Section 16 of the Hindu Marriage Act would come into play. So the crucial question to be answered at first is whether the defendant has R.S.A.No.1146/2004 6 discharged his burden to show the status of plaintiff as an illegitimate child born to Karumpan Thevan, when her father declared her status as his daughter. The documents relied on by the defendant exhibited as Exts.B1 to B4 do not discharge the initial burden lies on him. Ext.B4, the deed No.2623/1981 was registered on the same day on which Ext.A1 deed was executed and registered. Though the first defendant as DW1 deposed that when Ext.B4 document was executed by Karumpan Thevan, he was very much with him in the sub registry office, he pleaded ignorance regarding execution and registration of Ext.A1 document. The witness to both the documents are one and the same, which would show the execution of these two documents simultaneously one after another and it was registered at the very same sub registry office on the same day. Though he had advanced a case that Et.A1 document is vitiated, no suit was filed to set aside the same or to declare the same as invalid. The time available for it, stood as hopelessly barred by limitation. Further the falsity of the case advanced by the defendant is writ large on its face. These two documents were executed by Karumpan Thevan on the same day with same witnesses and registered at the sub registry office on the same day. So there is no much merits in the contention that Ext.A1 is vitiated. In Ext.B4 document, there is nothing to support the contention raised by the defendant. Two other documents also R.S.A.No.1146/2004 7 relied on by the defendant - Exts.B1 and B2. In Ext.B2 gift deed, there is a reference that the mother of plaintiff is the second wife of deceased Karumpan Thevan, based on which it was contended that the husband of plaintiff's mother is the Thevan referred in Ext.B2, which according to him is a different person, for which no satisfactory evidence was adduced. In one of the documents, the name of father is not shown. In Ext.A1 document, the name is shown as Karumpan Thevan . In fact there is nothing to show that these are the two different persons. Further it has no much relevance when the father Karumpan Thevan himself has admitted and declared the status of the plaintiff as his daughter and the normal presumption is that she is the daughter born to him with his wife. It would be otiose for the plaintiff to claim any benefit conferred under Section 16 of the said Act when her status as the daughter of deceased was declared by her father. The normal presumption is that she is the daughter born in the wedlock with her mother to deceased Karumpan Thevan. Of course, the presumption is rebuttable when the nephew, the first defendant along with the other defendants came up with an alternative case advancing her status as an illegitimate daughter. The case advanced by the defendant is by disputing the status of plaintiff as the daughter of deceased Karumpan Thevan. Then turn round and advanced a case that even if it is found that she is the daughter, she would be an R.S.A.No.1146/2004 8 illegitimate daughter . In both the counts, when there is a declaration by the father regarding her status, the burden is heavily on the defendants to prove the contrary and that has not been done by the defendants. The learned counsel for the appellant canvassed the attention of this court in **Neelamma** **and Others v. Sarojamma and Others [(2006) 9 SCC 612], Jayachandran v. Valsala ( 2016 (2) KLT 81), Kalliani Amma v. K.Devi [1996 (2) KLT 42 (SC)]** and **Narayani v. Aravindakshan ( 2005 (4) KLT 1)** in support of his argument that there should be pleading of solemnization of marriage in order to get the benefit conferred under Section 16 of the Act. As discussed earlier, no benefit under Section 16 of the Act claimed by the plaintiff and hence the question of pleading would not arise for consideration. 6. Needless to say that since the plaintiff is not claiming any benefit conferred under Section 16 of the Act, there is no necessity to plead and prove the soleminization of marriage of her parents. From the circumstance and facts involved in the case, there is no application of Section 16 of the Act. Hence the appeal deserves no merit. Appeal is dismissed with cost of second appeal to the plaintiff/first respondent from the defendants/appellants. The appeal is dismissed with costs. Sd/- sv P.SOMARAJAN JUDGE