Suseela Amma v. Santha Kumari Antharjanam & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE P.BHAVADASAN** **THURSDAY, THE 24TH DAY OF JULY 2014/2ND SRAVANA, 1936** ## **RSA.No. 1369 of 2012** **-----------------------AS NO.47/2010 OF SUB COURT,ATTINGAL OS NO. 268/2007 OF MUNSIFF'S COURT,VARKALA** **........** ## **APPELLANT/APPELLANT IN A.S./1ST DEFENDANT IN O.S.:** **------------------------------------------------------------------------------------------** **SUSEELA AMMA, AGED 52 YEARS, D/O. SAROJINI AMMA, SAJI BHAVAN, CHANGAYILKONAM, MADAVOOR DESOM AND VILLAGE, CHIRAYINKIL TALUK, THIRUVANANTHAPURAM DISTRICT.** **BY ADVS.SRI.M.RAJENDRAN NAIR SMT.TISSY ROSE K. CHERIYAN** ## **RESPONDENTS/RESPONDENTS IN A.S./PLAINTIFF AND 2ND DEFENDANT:** **-------------------------------------------------------------------------------------------------------------** **1. SANTHA KUMARI ANTHARJANAM, AGED 53 YEARS, W/O. SASIDHARA BATTATHIRI, VALAMPIRI PALLI MADOM, CHANGAYILKONAM,** **MADAVOOR DESOM AND VILLAGE FROM THENBAMANA MADOM, PALLICKAL DESOM, MAILOM VILLAGE, KOTTARAKKARA TALUK, KOLLAM DISTRICT.** ## **2. MANJUSHA , AGED 25 YEARS** ## **D/O. SASIDHARA BHATTTHIRI, -DO-** ## **3. SAJI,** ## **S/O. SUSEELA AMMA, SAJI BHAVAN, CHANGAYILKONAM, MADAVOOR DESOM AND VILLAGE, CHIRAYINKIL TALUK, THIRUVANANTHAPURAM DISTRICT.** ## **R1 & R2 BY ADV. SRI.G.S.REGHUNATH** **THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 24-07-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Kss** ## **P.BHAVADASAN, J.** - - - - - - - - - - - - - - - - - - - - - - - - R.S.A. No. 1369 of 2012 - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 24[th] day of July, 2014 ## **J U D G M E N T** Here is a case where two women fight against each other seeking to establish their rights over the plaint schedule properties. 2. The plaintiffs instituted a suit for declaration that Ext.A7 executed by the defendants styling themselves as legal heirs of deceased Sasidhara Bhattathiri is invalid in law and conferred no right on them. The plaintiffs asserted that the defendants had no relationship with Sasidhara Bhattathiri and that the first plaintiff was the legally wedded wife and the second plaintiff was his daughter. 3. The defendants resisted the suit by pointing out that the first defendant was married at an earlier point of time to Sasidhara Bhattathiri and she was the legally wedded wife of Sashidhara Bhattathiri and the second defendant was born in that wedlock. They therefore had ## **R.S.A. No. 1369 of 2012** **-2-** absolute right over the properties left behind by the Sashidhara Bhattathiri and it was also contended that the plaintiffs had no right to Sasidhara Bhattathiri. 4. Based on the above pleadings, issues were raised and the parties went to trial. The evidence consists of the testimony of PWs 1 to 7 and documents marked as Exts. A1 to A13 from the side of the plaintiffs. The defendants examined DWs 1 to 4 and had Exts. B1 to B9 marked. Exts. X1 to X3 are the third party exhibits. Ext. C1 is the Commissioners report. 5. On an appreciation of the evidence in the case, both the courts below came to the conclusion that there was no evidence to show that the first defendant was married to Sasidhara Bhattathiri and the second defendant was his son. In fact, the documents relied on by them were not accepted by the courts below and it was found that there was tampering with documents and the trial court even went to the extent of directing initiating proceedings against ## **R.S.A. No. 1369 of 2012** **-3-** defendants under Section 340 of Cr.P.C. Finally, both the courts below came to the conclusion that there was no subsisting marriage between Sasidhara Bhattathiri and the first defendant and the legally wedded wife of Sasidhara Bhattathiri was the first plaintiff and consequently, the suit was decreed which was confirmed in appeal. 6. The main contention raised by the learned counsel for the appellant is that the courts below ought to have seen that the core issue involved was regarding the marital status between the first plaintiff and the first defendant and if that be so, going by Section 7 Explanation (B) of the Family Courts Act, proceedings should have been before the Family Court and the Civil Court had no jurisdiction. In support of his contention, the learned counsel relied on the decisions reported in **Syamaladevi** v. **Saraladevi** [2009 (1) KLT 892], **Vasumathi** v. **Valsan** [2011 (3) KLT 638]. Elaborating on the above aspect, it was contended that the voluminous evidence adduced by both parties related to the marriage **R.S.A. No. 1369 of 2012** **-4-** between Sasidhara Bhattathiri and the first plaintiff and the first defendant and that would clearly establish that the main issue was one of marriage between the respective parties. Merely because, in the plaint, the challenge is against the document executed by the defendants, that will not cover up the real issue involved in the suit and the courts below were not justified in coming to the conclusion that the Civil Court had jurisdiction to entertain the suit. 7. It was then contended that three circumstances would clearly reveal that the case set up by the defendants is true. They are (1) the evidence shows that the defendants were residing in the building which was alloted to Sasidhara Bhattathiri in a partition and also that soon after the death of Sasidhara Bhattathiri, they had entered into a partition between themselves. (2) The evidence also shows that Sasidhara Bhattathiri was ill and he was being looked after by the defendants during the final stages. (3) It was conceded that Sasidhara Bhattathiri was removed to the **R.S.A. No. 1369 of 2012** **-5-** Hospital by the first defendant and looked after by her. These aspects have been omitted to be noticed by the court below and they have been carried away by the fact that in the two of the documents produced by the defendants, the name of Sasidhara Bhattathiri is shown as Sasidhara Pillai and that belies the version given by the defendants. The learned counsel went on to point out that merely because of this slight difference, it was to harsh on the part of the courts below to have found against the defendants. 8. The learned counsel appearing for the respondents on the other hand pointed out that though in the decision reported in **Syamaladevi** v. **Saraladevi** [2009 (1) KLT 892], on the facts of that case, it was held that the matter ought to be tried by the Family Court, the said decision has also been careful enough to mention that each case depends on the facts of the said case. Referring to the facts of the case in **Syamaladevi'** s case (cited supra), that suit was for a declaration that the petitioner was a legally wedded wife ## **R.S.A. No. 1369 of 2012** **-6-** and a child was born in that wedlock. According to the learned counsel in that case, the marriage was directly in issue and it was not a question regarding the competency of the parties to execute a particular document claiming right over immovable properties. 9. On facts, the learned counsel pointed out that both the courts below have elaborately considered the evidence on record and have come to the identical conclusion that the evidence adduced by the plaintiffs is overwhelming to show that the first plaintiff was the legally wedded wife of Sasidhara Bhattathiri and the first defendant had no legal marital life with Sasidhara Bhattathiri. It was also pointed out by the learned counsel that in fact some of the records produced before the court below on which considerable reliance was placed by defendants showed that the name of Sasidhara Bhattathiri was shown as Sasidhara Pillai and that would show that the case set up by the defendants is false and untrue. **R.S.A. No. 1369 of 2012** **-7-** 10. The learned counsel went on to point out that the question as to whether there was a legal marriage or not between Sasidhara Bhattathiri and the first plaintiff or the first defendant is essentially a question of fact arrived at by the courts below and on appreciation of the evidence in the case and since it is not shown that finding is perverse, no interference is called for under Section 100 of C.P.C. The learned counsel even went to the extent of pointing out that even assuming that a different view may be possible, it will not probable for this Court to interfere in a concurrent finding on facts. 11. The relief sought for in the suit reads as follows: “a. ¥ÈcÞÏMGßµ ÕØñáAæ{ Ø¢Ìtߺîí dÉÄßµZ ºÎºîí ø¼ßØíd¿ÞAßÏßøßAáK µß{ßÎÞÈâV ØÌí ø¼ßØíd¿ÞËàØßæÜ 2466/07_Þ¢ ÈOV ¦ÇÞø¢ ©qÕJßçÜ ¥ØÞÇáÕÞæÃKá µIí ¥Õ·Ãߺîᢠ¦ÕÖcæÎCßW ¥ØíÅßøæM¿áJßÏᢠ¥ÈcÞÏ¢ A B ÏᢠÏᢠÉGßµ ÕØñáA{ßW ÕÞÆßµZAáU µâGá¿ÎØíÅÄÏᢠµâGáèµÕÖÕᢠdeclare æºÏñᢠb. ¥ÈcÞÏMGßµ ÕØñáA{ßW dÉÄßµç{Þ **-8-** ## **R.S.A. No. 1369 of 2012** ¥ÕVAá µàÝÞÏß ÎxÞæøCßÜáçÎÞ ÌÜÞW dÉçÕÖßAøáæÄKᢠÉGßµ ÕØñáÕßÈᢠ¥ÄßÜáU çÆÙmBZAᢠæµGß¿¢, çfdÄ¢ ®KßÕµZAᢠÈÞÖÈ×í¿BZ Ø¢ÍÕßMßAøáæÄKᢠdÉÄßµæ{ ÈßçøÞÇߺîí ÖÞÖbÄ ÈßçøÞÇÈ ©JøÕí ÉáùæM¿áÕߺîᢠc. ÕcÕÙÞø Îçic ÉGßµ ÕØñáA{áç¿ ¯æÄCßÜᢠÍÞ·çJÞ, ÉGßµ ÕØñáA {ßWJæKçÏÞ dÉÄßµZ dÉçÕÖßAÞçÈÞ èµÕÖæM¿áJÞçÈÞ §¿ÕøßµçÏÞ dÉÄßµZAá èµÕÖÎáæIKá µÞÃáµçÏÞ æºÏîáK Éf¢ ¥dɵÞøÎáU ÍÞ·Já ÈßKᢠdÉÄßµæ{ ÕßæGÞÝßMߺîí èµÕÖæM¿áJßæAÞUáKÄßÈá ÕÞÆßµæ{ ¥ÈáÕÆߺîᢠd. ÕÞÆßµ{áæ¿ çµÞ¿ÄßæºîÜÕÈáÕÆߺîᢠe. ÕÞÆßµZ ÕßØñÞøÎçic ¦ÕÖcæM¿áKÄᢠÈcÞÏÏáµñæÎKá ÌÙᣠçµÞ¿Äß µøáÄáKÄáÎÞÏ §Äø ÉøßÙÞøBZ µâ¿ß ¥ÈáÕÆߺîᢠÕßÇßÏáIÞµÃæÎKçÉfßAáKá.” 12. True, it appears that the first defendant as well as the first plaintiff claim to be the legally wedded wife of Sasidhara Bhattathiri. The first plaintiff claimed that she was married by Sasidhara Bhattathiri on 14.05.1981 and the ## **R.S.A. No. 1369 of 2012** **-9-** second plaintiff was born in that wedlock. The claim put forward by the first defendant was that she was married on 16.01.1979 and the second defendant was born in that wedlock. 13. Except for saying that the suit is not maintainable, there were no specific contentions in the written statement regarding the jurisdiction of the Civil Court to entertain the suit. It was not specifically contended that the Civil Court has no jurisdiction and the issue being one related to marriage, the proper forum to decide the issue was the Family Court. 14. As already noticed, going by the relief sought for in the plaint, it is for a declaration that the document namely Ext.A7 alleged to have been executed by the defendants is invalid in law. The issue therefore is regarding the competency of defendants to enter into the partition deed with respect to the property of Sasidhara Bhattathiri. It is no doubt true that it was on the basis of the claim made by the ## **R.S.A. No. 1369 of 2012** **-10-** first defendant that she was the legally wedded wife of Sasidhara Bhattathiri. 15. The bulk of the evidence adduced is regarding the marriage between Sasidhara Bhattathiri and the first plaintiff and the first defendant and it appears that the core issue involved is regarding the marital status though in fact the relief sought for was with regard to the competency of the first defendant to enter into Ext.A7 partition deed. In considering the legality of the documents so executed, necessarily the issue of marriage has to be gone into and it can be treated only as an incidental issue going by the averments in the plaint. 16. The learned counsel for the appellant pointed out that by an ingenious drafting of the plaint and formulating the relief in such a manner, the plaintiffs cannot be allowed to avoid the jurisdiction of the Family Court. 17. May be so. But it has to be noticed that the challenge was to Ext.A7 document and regarding the ## **R.S.A. No. 1369 of 2012** **-11-** competency to execute the said document claiming to be the legal heirs of Sasidhara Bhattathiri. Both the courts below have considered this matter in considerable detail and have also considered the decisions cited by the learned counsel on both sides and have come to the conclusion that the suit is maintainable before the Civil Court. 18. Though it may apparently appear that marital status is the real issue, the challenge, as already noticed, was to the competency to execute Ext.A7 document. Going by the decisions relied on by the learned counsel for the appellant i.e. **Syamaladevi'** s case (cited supra), as rightly pointed out by the learned counsel for the respondents before this Court that each case has to be decided on the facts of the said case and being so, it could not be said that the Civil Court has no jurisdiction to entertain the suit. 19. As regards the issue regarding marriage, both sides have examined witnesses and both sides have tried to establish that they are the respective wives of late ## **R.S.A. No. 1369 of 2012** **-12-** Sasidhara Bhattathiri. But both the courts below have considered the issue in considerable detail and have found the evidence of the defendants to be unconvincing regarding the marriage. It is also found that two of the documents Exts. B3 and B4 and Exts. X2 and X3 which are produced from the side of defendants betray the claim put forward by them. It is seen that in two of the documents, the name of Sasidhara Bhattathiri is shown as Sasidhara Pillai and that according to both the courts below is sufficient to show that the claim made by the defendant is false. 20. Both the courts below have referred to Ext.X3 document to show that the entries in S.S.L.C. Book of the second defendant, the name of father is shown as Sasidhara Pillai. A contention was raised by the learned counsel for the appellant that the defendants were not given an opportunity to explain the entry in the said document. 21. The said contention is without any basis as it was available in court that nothing prevented the defendants ## **R.S.A. No. 1369 of 2012** **-13-** from offering any explanation if they wanted to and there is no case for the defendants that they were precluded from adducing evidence in that regard. Both the courts below have found that the Exts. B3 and B4 cannot be relied on and have come to the conclusion the second defendant is not the son of Sasidhara Bhattathiri. As regards the entries in Exts. B5, B6 and B7 are concerned, which are the identity cards issued by the Election Commission of India, it was found that in Ext.B6, the address shown is entirely different than what is shown in Exts. B5 and B7. The courts below have given cogent and convincing reason as to why the entry regarding the name of Sasidhara Bhattathiri appearing in Ext.B5 and B7 cannot be accepted in view of the other documents got produced before the court and the courts below came to the conclusion that there could not have been legal marriage between Sasidhara Bhattathiri and the first defendant. 22. On the other hand, the evidence of PW7, the Secretary of Mailam Panchayat who produced Ext.X1 ## **R.S.A. No. 1369 of 2012** **-14-** document which is a copy of the original document maintained by the Panchayat, showed the entry regarding the marriage of Sasidhara Bhattathiri with the first plaintiff. There is no case for the first defendant that her marriage was similarly registered. The courts below have found the evidence of PWs 1 to 6 sufficient to come to the conclusion that there was a legal marriage between Sasidhara Bhattathiri and the first plaintiff. 23. It is true that on going through the evidence of PWs 1 and 2, it would appear that the relationship between PW1 and Sasidhara Bhattathiri was far from pleasant. In fact the evidence of PW2 would show that her marriage was not attended to by Sasidhara Bhattathiri and she had little knowledge about her father. But that cannot be taken as a ground to doubt the case put forward by the plaintiffs. 24. As rightly pointed out by the learned counsel for the respondents, two courts have concurrently found that the defendants had no authority to execute Ext.A7 ## **R.S.A. No. 1369 of 2012** **-15-** document and that document cannot confer any right on them. Probably, finding was based on facts that there was no evidence to show that the first defendant was the legally wedded wife of Sasidhara Bhattathiri and that there was nothing to show that the second defendant was his son. 25. Further the litigation started in 2007 and seven years have elapsed. Two courts on the basis of evidence determined the rights of parties. After all that exercise and determination of rights, it will be a travesty of justice now to hold that the matter ought to have been tried by the family court especially when it is not shown that there was absolute want of jurisdiction for the civil court to decide the issue involved in the suit. It will be cruel to let the parties fight for another decade in respect of issues which stand concluded and determined by the courts. No prejudice is seen caused to the defendant in this regard. 26. Even though as rightly pointed out by the learned counsel for the respondents, a different view may be **-16-** ## **R.S.A. No. 1369 of 2012** possible exercising the jurisdiction under Section 100 of C.P.C. unless it is shown that the finding of the courts below are so very perverse or so much against the voluminous evidence adduced in the case, this court will not be able to justify in taking a different view. The question relating to the marriage and the right to execute the document being one on facts, when both the courts below having concurrently found that defendants have no right to execute a document, this Court while exercising jurisdiction under Section 100 of C.P.C., will not be justified in interfering with the said decision. The result is that this appeal is without merits and is liable to be dismissed. I do so, however, there will be no order as to costs. Sd/- **P.BHAVADASAN JUDGE** //True Copy// P.A. tco Judge ds