R.S.A. No. 688 of 2020

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE C.S. SUDHA WEDNESDAY, THE 10[TH] DAY OF JULY 2024 / 19TH ASHADHA, 1946** **RSA NO. 688 OF 2020** **AGAINST THE JUDGMENT AND DECREE DATED 24.01.2020 IN AS NO.42 OF 2018 OF DISTRICT COURT, ALAPPUZHA ARISING OUT OF THE JUDGMENT AND DECREE DATED 10.01.2018 IN OS NO.436 OF 2011 OF MUNSIFF COURT, ALAPPUZHA** ## **APPELLANTS/APPELLANTS/DEFENDANTS:** - **1 RUGMINI AMMA, AGED 80 YEARS, W/O.LATE RAJAPPA KURUP P.N., PUTHANPURACKAL VEEDU, KOMALAPUREAM VILLAGE, NORTH ARYADU MURI, NORTH ARYADU P.O., AMBALAPPUZHA TALUK, ALAPPUZHA-688 538.** - **2 RAJAKUMARI, AGED 60 YEARS D/O.LATE RAJAPPA KURUP P.N., THOTTAYAPPALLY HOUSE, VAIKOM VILLAGE, VAIKOM P.O., NORTH GATE, VAIKOM, KOTTAYAM-686 141.** - **3 RAMESH KUMAR, AGED 55 YEARS S/O.LATE RAJAPPA KURUP P.N., PUTHANPURACKAL VEEDU, KOMALAPUREAM VILLAGE, NORTH ARYADU MURI, NORTH ARYADU P.O., AMBALAPPUZHA TALUK, ALAPPUZHA-688 538.** - **4 RATHI KUMARI, AGED 51 YEARS D/O.LATE RAJAPPA KURUP P.N., PUTHANPURACKAL VEEDU, KOMALAPUREAM VILLAGE, NORTH ARYADU MURI, NORTH ARYADU P.O., AMBALAPPUZHA TALUK, ALAPPUZHA-688 538.** **5 RESHMIRAJ, AGED 45 YEARS, D/O.LATE RAJAPPA KURUP P.N., PUTHANPURACKAL VEEDU, KOMALAPUREAM VILLAGE, NORTH ARYADU MURI, NORTH ARYADU P.O., AMBALAPPUZHA TALUK, ALAPPUZHA-688 538.** 2 ## **R.S.A.No.688 of 2020** **BY ADVS. K.N.VENUGOPALA PANICKER S.SREEKUMAR (SR.)(S-571)** ## **RESPONDENT/RESPONDENT/DEFENDANT:** **THILAKAKUMARI, AGED 65 YEARS, D/O.LATE RAJAPPA KURUP P.N., KALOPPADATHU VEEDU, NORTH ARYADU P.O., NOW RESIDING AT PARALIL VELI, NORTH ARAYADU P.O.,AMBALAPPUZHA TALUK, ALAPPUZHA-688 538. BY ADVS. PADMALAYAN.P.P. P.RAHIM P.A.JOSEPH (J-1448)** **THIS REGULAR SECOND APPEAL HAVING COME UP FOR FINAL HEARING ON 03/07/2024, THE COURT ON 10.07.2024 DELIVERED THE FOLLOWING:** 3 ## **R.S.A.No.688 of 2020** ## **C.S.SUDHA, J.** ## **---------------------------------R.S.A.No.688 of 2020 ---------------------------------------------** ## **Dated this the 10th day of July 2024** ## **J U D G M E N T** This second appeal under Section 100 read with Order XLII Rule 1 CPC filed by the defendants/appellants is against the judgment and decree dated 24/01/2020 in A.S.No.42/2018 on the file of the District Court, Alappuzha, which appeal in turn is against the judgment and decree dated 10/01/2018 in O.S.No.436/2011 on the file of the Munsiff Court, Alappuzha. The parties and the documents will be referred to as described in O.S.No.436/2011. 2. The suit was one for partition. The plaint schedule property belonged to late Rajappa Kurup. According to the plaintiff, she is the eldest daughter of Rajappa Kurup in his first marriage with Devaki Amma. The first defendant is the second 4 ## **R.S.A.No.688 of 2020** wife of late Rajappa Kurup and defendants 2 to 5, their children. On the death of Rajappa Kurup, the plaint schedule property devolved on the plaintiff and defendants and they are in joint possession and enjoyment of the same. On 31/05/2004, the defendants executed a partition deed in respect to the property without including the plaintiff in the deed. The plaintiff came to know about the partition deed only on 20/04/2011. As the defendants are not amenable for giving the plaintiff her share in the property, the suit seeking her 1/6 share in the property. 3. Defendants 1 to 3 and 5 filed written statement denying the claim of the plaintiff that she is the daughter of Rajappa Kurup. According to the defendants, Rajappa Kurup had never married Devaki Amma and there was never any relationship between Devaki Amma and Rajappa Kurup till he passed away in the year 1992. The plaintiff had never staked any claim in the property or that she is the daughter of Rajappa Kurup 5 ## **R.S.A.No.688 of 2020** during his lifetime. She had never visited Rajappa Kurup during his lifetime or attended his cremation. The first defendant alone is the widow of Rajappa Kurup and it is the defendants who are the owners of the plaint schedule property. The allegation that the plaintiff came to know about the partition deed only on 20/04/2011 is incorrect and false. The plaintiff and defendants are neighbours and residing in the same village and therefore she cannot allege or contend that she was unaware of the execution of the partition deed. The suit is also barred by limitation. 4. The fourth defendant filed written statement adopting the contentions of defendants 1, 3 and 5. 5. Necessary issues were framed by the trial court. The parties went to trial on the basis of the aforesaid pleadings. Initially, the trial court on 12/06/2013 decreed the suit and a preliminary decree was passed as sought for in the plaint. The defendants filed A.S.No.53/2013. The first appellate court as per 6 ## **R.S.A.No.688 of 2020** judgment dated 30/01/2016 set aside the judgment and decree of the trial court and remanded the matter to the trial court giving an opportunity to the plaintiff to prove the marriage between Rajappa Kurup and Devaki Amma. The parties were also given the liberty to make necessary amendment to their respective pleadings. After the remand, the plaint was amended. The defendants also filed additional written statement. Initially, PW1 to PW4 were examined and Exts.A1 to A11 were marked. After the remand, PW5 was examined. DW1 to DW3 were examined and Ext.B1 was marked on behalf of the defendants. 5.1. In the second round, the trial court on a consideration of the oral and documentary evidence and after hearing both sides, again accepted the case of the plaintiff and decreed the suit by which the plaintiff was allotted 1/6 share in the property. Aggrieved, the defendants filed A.S.No.42/2018. The first appellate court confirmed the judgment and decree of the trial 7 ## **R.S.A.No.688 of 2020** court and dismissed the appeal. Hence, the defendants have come up in second appeal. ## 6. This Court by order dated 04/06/2024, admitted the appeal on the following substantial questions of law- _i) Did the courts go wrong in interpreting Section 16 of the Hindu Marriage Act, 1955?_ _ii) Whether the documents relied on by the plaintiff to prove paternity are sufficient to establish the same? iii) Did the courts go wrong in decreeing the suit despite the absence of specific pleadings of custom in the plaint?_ iv) _Did the courts go wrong in finding the issue of paternity in favour of the plaintiff by gross misappreciation of the oral and documentary evidence on record?_ ## 7. Heard both sides. ## 8. It would be apposite to refer to Section 16 of the Hindu Marriage Act, 1955 (the HMA) which reads thus - _“16. Legitimacy of children of void and voidable marriages.—(1) Notwithstanding that marriage is null and void under section 11, any child of such marriage who would have been legitimate if the marriage had been valid, shall be legitimate, whether such child is born before or_ 8 ## **R.S.A.No.688 of 2020** _after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976), and whether or not a decree of nullity is granted in respect of that marriage under this Act and whether or not the marriage is held to be void otherwise than on a petition under this Act._ (2) _Where a decree of nullity is granted in respect of a voidable marriage under section 12, any child begotten or conceived before the decree is made, who would have been the legitimate child of the parties to the marriage if at the date of the decree it had been dissolved instead of being annulled, shall be deemed to be their legitimate child notwithstanding the decree of nullity._ _(3) Nothing contained in sub-section (1) or sub-section (2) shall be construed as conferring upon any child of a marriage which is null and void or which is annulled by a decree of nullity under section 12, any rights in or to the property of any person, other than the parents, in any case where, but for the passing of this Act, such child would have been incapable of possessing or acquiring any such rights by reason of his not being the legitimate child of his parents.”_ (Emphasis Supplied) 8.1. Section 16 apparently is applicable only to marriages solemnized after commencement of the Act, which came into effect w.e.f. 18/05/1955. (See **Karthi Pankajakshy v. Lalitha** 9 ## **R.S.A.No.688 of 2020** **Sujatha, 1990 KHC 57** ). Let me therefore consider whether both the courts were right in giving the benefit of Section 16 of the HMA to the plaintiff. 9. Initially, the plaint was silent about the date of marriage between Devaki Amma and Rajappa Kurup. There was also no pleadings that they had cohabited or lived together. The first appellate court in A.S.No.53/2013 had remanded the matter solely to enable the plaintiff to prove the marriage. In ground (L) of the appeal memorandum, it is contended by the defendants/appellants that after the remand, the plaint was amended and pleading brought in to the effect that the marriage had been solemnized on 22/08/1957. Thereafter the plaint was again amended and the date of marriage corrected as 22/08/1954. According to the defendants, this itself shows the lack of _bona fides_ of the case of the plaintiff and that it is a cooked up story, and hence requires to be rejected. 10 ## **R.S.A.No.688 of 2020** 9.1. On going through the plaint, I find that the plaint was amended only once. As per order dated 22/06/2017, the plaint was amended and the following pleading brought in - “ _Their marriage was solemnized as per the religious rites in the Nair community in the house of Devaki Amma on 22/08/1954. After the marriage they lived together as husband and wife and during the wedlock the plaintiff was born._ ” If that be so, the alleged marriage between Devaki Amma and Rajappa Kurup took place before 18/05/1955, that is, before the HMA came into force. If that be so, the plaintiff cannot claim the benefit of Section 16 of the HMA. 10. Another interesting aspect that has come out in evidence is that Devaki Amma had two other children also. However, the plaintiff has no case that Rajappa Kurup is their father. This is yet another aspect which raises doubts regarding the plaintiff's case. 11 ## **R.S.A.No.688 of 2020** 11. Further, the documents relied on by the plaintiff also would not entitle her to the benefit of Section 16 of the HMA. Both the courts relied on Ext.A2, the admission register of the plaintiff showing her date of birth to be 10/08/1955 and her father to be Rajappa Kurup as well as Exts.A7 and A8, the voters list of the year 1995 and 2000 respectively. These documents would not in anyway prove the marriage between Rajappa Kurup and Devaki Amma. These documents were rejected by the first appellate court in A.S.No.53/2013 by finding that the said documents do not establish the case of marriage. After remand, the trial court as well as the first appellate court relied on the very same documents, that is, Exts.A2, A7 and A8 and the testimony of PW5 to conclude that there was infact a marriage between Rajappa Kurup and Devaki Amma. These documents would not in anyway show that there had been a void or voidable marriage between the parties. 12 ## **R.S.A.No.688 of 2020** 12. Now coming to Ext.A11, a letter alleged to have been written by Rajappa Kurup to the plaintiff. The defendants dispute Ext.A11 and contended that Ext.A11 was never written by their father to the plaintiff. The first appellate court in the second round of litigation concluded that the defendants failed to disprove Ext.A11. This finding is apparently incorrect in the light of Sections 101 and 102 of the Indian Evidence Act, 1872. As per Section 101, whoever desires the Court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the existence of any fact, the burden of proof lies on that person. Section 102 says that the burden of proof in a suit or proceeding lies on the person who would fail if no evidence at all were given on either side. Therefore, it was the burden of the plaintiff to prove that Ext.A11 was infact a letter written by Rajappa Kurup to her. 13 ## **R.S.A.No.688 of 2020** 12.1. Further, Section 47 of the Evidence Act says that when the Court has to form an opinion as to the person by whom any document was written or signed, the opinion of any person acquainted with the handwriting of the person by whom it is supposed to be written or signed that it was or was not written or signed by that person, is a relevant fact. The Explanation to the Section says that a person is said to be acquainted with the handwriting of another person when he has seen that person write, or when he has received documents purporting to be written by that person in answer to documents written by himself or under his authority and addressed to that person, or when, in the ordinary course of business, documents purporting to be written by that person have been habitually submitted to him. The plaintiff has no case that she is acquainted with the hand writing of Rajappa Kurup as she had seen the latter writing or that she had received documents written by Rajappa Kurup in answer to documents written by herself or under her authority. She has no 14 ## **R.S.A.No.688 of 2020** case that she had ever an occasion to witness Rajappa Kurup writing. None of the other witnesses who are stated to be acquainted with Rajappa Kurup were shown Ext.A11 in order to identify the handwriting in the same. No attempt was made by the plaintiff to get Ext.A11 examined by an expert and to prove it. Moreover, it has come out in evidence that plaintiff and Rajappa Kurup were neighbours. The witnesses of the plaintiff testified that they had on many occasions seen Rajappa Kurup visiting the temple accompanied by the plaintiff. In such circumstances what was the necessity for Rajappa Kurup to write Ext.A11 letter? The same has also not been satisfactorily explained by the plaintiff. 13. As noticed earlier, initially there was no pleading in the plaint regarding the custom or the ceremonies that were purported to have been followed in the solemnization of marriage. The matter was remanded solely for enabling the plaintiff to bring in necessary pleadings relating to the solemnization of marriage. 15 ## **R.S.A.No.688 of 2020** On going through the judgment of the first appellate court in A.S.No.53/2013 dated 30/01/2016, I find that the court was persuaded to remand the matter as it was submitted on behalf of the plaintiff that there were documents available with the N.S.S.Karayogam for proving solemnization of the marriage. However, after remand no such document(s) were produced. PW5 was examined to prove that marriage had infact been solemnized between Devaki Amma and Rajappa Kurup at the residence of the former. According to PW5, the marriage was solemnized by Rajappa Kurup by tying thali and handing over pudava after lighting a lamp. This according to the plaintiff was the custom followed in the Nair Community for solemnization of marriage. It was submitted by the learned counsel for the defendants/appellants that when a person puts forward a case of custom, he must prove by leading satisfactory evidence regarding the existence of the custom pleaded, its continuity and consistency relying on the dictum of the Apex Court in **Kochan** 16 ## **R.S.A.No.688 of 2020** ## **Kani Kunjuraman Kani vs Mathevan Kani Sankaran Kani,** **AIR 1971 SC 1398** . The defendants had also taken up a contention that there was no performance of sapthapathi, an essential requirement of valid marriage and as the same was not performed, there was no valid marriage. 13.1. In **Kochan Kani Kunjuraman Kani** ( _Supra_ ) it has been held that it is well established that in the matter of custom, a party has to plead in specific terms as to what is the custom that he is relying on and he must prove the custom pleaded by him. He cannot be permitted to prove a custom not pleaded by him. A party against whom a custom is pleaded must have notice as to what case he has to meet. The opposite party may apart from rebutting the evidence adduced by the plaintiff may be able to prove that the custom in question was not invariably followed. He cannot get ready with the evidence without knowing the nature of the custom relied on by the plaintiff. 17 ## **R.S.A.No.688 of 2020** 13.2. Therefore, all that the court has to see is whether the plaintiff has established the custom pleaded by her, that is, the custom of the Nair community to which the deceased belonged. The trial court rejected the contention of the defendants regarding sapthapathi finding that the same is a ritual followed in North India and not in Kerala. According to the trial court, marriage customs that prevailed in Kerala among communities differed drastically. But relying on the testimony of PW5 and DW3 found that the custom followed among Nair community was just handing over of pudava and tying of thali in front of a lighted lamp. When the trial court itself was of the opinion that customs/rituals followed in solemnization of marriage among communities differed, it was certainly the duty of the court to see whether there were specific pleadings regarding the custom/rituals followed in the solemnization of the marriage in question. I have already referred to the pleading in the plaint which is silent about the custom that was followed or the 18 ## **R.S.A.No.688 of 2020** religious rites or ceremonies followed. That being the position, no amount of evidence can be looked into upon a plea that was never put forward. 14. There is yet another reason to doubt the case set up by the plaintiff. Rajappa Kurup admittedly passed away in 1992. The suit is seen filed on 14/07/2011. No reasons are given by the plaintiff as to why she did not stake her claim in the property for all these 19 years. It has come out in evidence that Rajappa Kurup had never attended her marriage and that she had also not attended any of the functions or marriages in the family of Rajappa Kurup. It has also come out in evidence that the plaintiff had not attended the cremation of Rajappa Kurup. 15. For the reasons stated aforesaid, I find that the plaintiff is not entitled to the benefit under Section 16 of the HMA as even going by her case, the marriage between her mother Devaki Amma and Rajappa Kurup was solemnized before the HMA 19 ## **R.S.A.No.688 of 2020** came into force on 18/05/1955. Hence, both the courts certainly went wrong in accepting the case of the plaintiff and decreeing the suit. Therefore, the substantial questions of law are answered in favour of the defendants/appellants. 16. In the result, the appeal is allowed and the judgment and decree of both the courts are set aside and the suit shall stand dismissed. Interlocutory applications, if any pending, shall stand closed. **Sd/-** **C.S.SUDHA JUDGE** Jms