UMMER MASTER v ALI and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE THOMAS P.JOSEPH** ## **WEDNESDAY, THE 18TH DAY OF JANUARY 2012/28TH POUSHA 1933** ## **RSA.NO. 902 OF 2011 ( )** **-----------------------------------AS.156/2003 OF SUB COURT, OTTAPPALAM OS.49/1997 OF MUNSIFF-MAGISTRATE COURT, PATTAMBI** ## **APPELLANT(S)/APPELLANT/1ST DEFENDANT:** **-------------------------------------------------------------------** **UMMER MASTER, AGED 79 YEARS, S/O.KUNHAYAMMU MUSALIYAR, KALLADIPATTA OTTAPPALAM TALUK.** **BY ADVS.SRI.K.P.BALASUBRAMANYAN SRI.NIRMAL. S** ## **RESPONDENT(S)/RESPONDENTS/PLAINTIFF & DEFENDANTS 3 TO 29 :** - **------------------------------------------------------------------------------------------------------** **1. ALI, AGED 34 YEARS, S/O.ALANNUR KUNJAYAMU MUSALIAR, IRINGALLUR AMSOM AND DESOM TIRUR TALUK-676101.** ## **2. HASSANKUTTY, AGED 38 YEARS, RESIDING AT -DO-, PIN-676101.** ## **3. KADEEJA, AGED 36 YEARS, -DO-, PIN-676101** **4. SAIDALAVI, AGED 32 YEARS,** - **-DO-, PIN-676101.** ## **5. RUKIYA, AGED 28 YEARS,** - **-DO-, PIN-676101.** **-2-** ## **6. NABEESA, AGED 56 YEARS, W/O.ALLANNUR DECEASED MUHAMMEDKUTTY, -DOPIN-676101.** ## **7. KUBARA, AGED 43 YEARS, W/O.HAMSA, MURIKKALAYIL HOUSE, PATTIKKAD IN OTTAPALAM TALUK679101.** **8. LAILA, AGED 39 YEARS, W/O.IBRAHIM, KALLUVETTY HOUSE, -DOPIN-676101.** **9. SUHARABI, AGED ABOUT 33 YEARS, W/O.MUHAMMEDKUTTY, MELANGADI HOUSE NETHIRIMANGALAM AMSOM AND DESOM IN OTTAPPALAM TAUK-679101.** **10. SAYAFU, AGED ABOUT 29 YEARS, W/O.KHALID, KALATHIL HOUSE, PATTAMBI PALLIPRAM AMSOM, 679303, KONDURKARA DESOM.** **11. KAMARUNNISA, AGED ABOUT 27, W/O.ABDURAHIMAN, VAYATTUKAVIL HOUSE PATTAMBI PALLIPRAM AMSOM, KIZHAYUR DESOM-679303.** **12. SAJITHA, AGED ABOUT 25 YEARS, W/O.MUSLIM VEETTIL HYDER, PATTAMBI PALLIPRAM, AMSOM KARAKKAD DESOM IN OTTAPPALAM TALUK-679101.** **13. ABIDA, AGED ABOUT 26 YEARS, W/O.RAZAQ, MARIYYATHODI HOUSE, KURUVATTUR VIA VALLAPPUZHA IN OTTAPPALAM TALUK-, 679101.** **14. MUHAMMEDALI, AGED ABOUT 36, S/O.MUHAMMEDKUTTY, NETHIRIMANGALAM AMSOM AND DESOM IN OTTAPPALAM TALUK-679101.** **-3-** **15. ASHARAFF, AGED ABOUT 28, ALLANNUR MUHAMMEDKUTTY, -DO-, PIN-676101.** **16. BADAR-BIN-MUHAMMED, AGED ABOUT 36 YEARS, S/O.-DO-, PB NO.4330, ABUDHABI.** **17. ASYA, AGED ABOUT 51 YEARS, W/O.ALANNUR DECEASED ABU, NETHIRIMANGALAM AMSOM AND DESOM IN OTTAPPALAM TALUK-679101.** **18. KADIJATHUL KUBARA, AGED ABOUT 36, W/O.ABDUL MALIK, IBRAHIM MANZHIL, CHUDUVALATHUR P.O. SHORANUR, OTTAPALAM TALUK-, 679101.** **19. SUHARABI, AGED ABOUT 32 YEARS, D/O.ALLANNUR ABU, NETHIRIMANGALAM AMSOM AND DESOM IN OTTAPALAM TALUK-679101.** **20. KAMARUNNISA, AGED ABOUT 30 YEARS, W/O.SHAMSUDDIN, E.P.HOUSE, -DO- 679101.** **21. ANWAR, AGED ABOUT 24 YEARS, S/O.ALLANNUR ABU, -DO- 679101.** **22. REJI, AGED ABOUT 25 YEARS, W/O.MUTHAPPA, KANDATHODI HOUSE, MEPPARAMBU P.O.KALLEKKAD, PALAKKAD-678001.** **23. SAJITHA, AGED ABOUT 28, W/O.MON, MANNEKKARA HOUSE, NELLIKKAD P.O. KALLEKKAD, PALAKKAD-678001.** **24. RAFI, AGED ABOUT 26, W/O.NAZAR, MAK COLONY, P.O.KALLEKKAD, PALAKKAD-678001.** **25. MUHAMMEDALI, AGED ABOUT 38 YEARS, PB NO.80328, AL-AIN, U.A.E.** **-4-** **26. ALLANNUR USMAN, S/O.ABU, NETHIRIMANGALAM AMSOM AND DESOM IN OTTAPALAM TALUK-679101.** **27. RABEENA RAIHANATH, AGED ABOUT 33, D/O.ALLANNUR, ABU, -DO-679101.** **28. FATHIMABI, AGED ABOUT 34, D/O.ALLANNUR KUNJALAN, -DO-, PIN-676101.** **THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 18-01-2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **THOMAS P.JOSEPH, J.** **==================================== R.S.A. No.902 of 2011 ==================================== Dated this the 18[th] day of January, 2012** ## **J U D G M E N T** In challenge of the concurrent finding and decree passed by the courts below for partition of the suit property, first defendant has preferred this Second Appeal raising the following by way of substantial questions of law. i) Whether the oral evidence of P.Ws.2 and 3, which is inconsistent and contradictory and Exhibits A-3, the ration card and X1, file relating to family pension alone are sufficient under law to establish the alleged marriage between Kunhayammu Musaliyar and second defendant, Thithumma? ii) Whether the ingredients of a marriage under Mohammedan Law have been established in this case? **R.S.A. No.902 of 2011** ## -: 2 :- iii) In the absence of birth certificates and the certificates from the school of plaintiff and defendants 3 to 6 whether the finding of the courts below that Kunhayammu Musaliyar married Thithumma and plaintiff and defendants 3 to 6 are their children can be sustained under law? 2. First respondent-plaintiff filed the suit for partition. He claimed to be the son born to the late Kunhayammu Musaliyar in his second wife, deceased second defendant. Plaintiff and defendants 3 to 6 are brothers and sisters of first defendant. Appellant-first defendant is a son born to the said Kunhayammu Musaliyar in his first marriage. According to the first respondent, after the death of first wife in October, 1962 Kunhayammu Musaliyar married deceased second defendant and in that wedlock, first respondent and defendant 3 to 6 were born. He claimed that property of Kunhayammu Musaliyar is partible among the parties to the suit. Appellant denied that Kunhayammu Musaliyar married deceased second defendant and that first respondent and defendants 3 to 6 are the children born ## **R.S.A. No.902 of 2011** ## -: 3 :- in that wedlock. He pleaded that Kunhayammu Musaliyar, by way of oral gift transferred right, title and interest in the suit property in his favour and hence the property is not partible. Courts below found against the said plea and passed a preliminary decree. Hence this Second Appeal. 3. So far as the oral gift is concerned, it is the version of appellant as D.W.1 that Kunhayammu Musaliyar gifted the property to him about 12 years before his death. But appellant was not able to say what is the extent or boundary of the property gifted to him by his father. He was not able to say whether he had paid revenue for the said property. Courts below pointed out that though certain receipts are produced showing payment of land revenue, that did not tally. For, in Ext.B1, jenm right of the property is said to have been with Kannannur Kunnathu Mana while in Ext.B2 series, jenmy is shown as Mozhikunnathu Mana. Courts below also observed that the version of appellant regarding the oral gift is not sufficient. 4. On the question whether Kunhayammu Musaliyar married the second defendant and whether first respondent and defendants 3 to 6 are born in that wedlock, P.W.2 claimed to have attended that marriage after the death of first wife. P.W.2 ## **R.S.A. No.902 of 2011** ## -: 4 :- was aged 66 at the time of his examination and the alleged marriage was about 40 years back, sometimes in 1962. He was not able to say the exact month or date of marriage. P.W.3 gave similar evidence. Exhibit X1 is the pension payment order summoned from the appropriate authority where the deceased second defendant is described as wife of Kunhayammu Musaliyar. Courts below acting upon the evidence of P.Ws.2 and 3, Ext.X1 and Ext.A3 accepted the case of first respondent that Kunhayammu Musaliyar had married the deceased second defendant. 5. It is contended by learned counsel that the best possible evidence which the first respondent and defendants 3 to 6 could have produced is withheld. According to the learned counsel, first respondent admitted that there are records to show that himself and defendants 3 to 6 are children of Kunhayammu Musaliyar but those records are not produced. Learned counsel has placed reliance on the decision in **Gopal Krishnaji Ketkar v. Mohamed Haji Latif and Others** (AIR 1968 SC 1413) to contend that when relevant documents are not produced, adverse inference is to be drawn. But it has also been held that when the case is proved by other evidence, non- ## **R.S.A. No.902 of 2011** ## -: 5 :- production of a document is not fatal. Argument is that documents from the school first respondent and defendants 3 to 6 were admitted are not produced. Versions of Pws.2 and 3 justified the plea of first respondent that Kunhayammu Musaliyar married the second defendant after the death of his first wife. Learned counsel pointed out that the marriage spoken by Pws.2 and 3 was performed somewhere near Kadalundi river which is far away from the place of residence of Kunhayammu Musaliyar. But it is not clear where exactly was the paternal home of deceased second defendant. In Ext.X1, deceased second defendant is described as wife of Kunhayammu Musaliyar. It is contended that Ext.X1 must have come into force only after the death of Kunhayammu Musaliyar. But the entries in Ext.X1 could have been made even if it is assumed it was after the death of Kunhayammu Musaliyar, after the Government officials conducted appropriate enquiry. True those officials were not cross-examined. The fact that Ext.X1, pension payment order describes the second defendant as wife of Kunhayammu Musaliyar is a circumstance which corroborates the evidence of PWs.2 and 3. I must also bear in mind that according to P.W.2, marriage of Kunhayammu Musaliyar with deceased second ## **R.S.A. No.902 of 2011** ## -: 6 :- defendant took place sometimes in the year 1962. It may not be possible to expect documentary evidence regarding a marriage performed during that time. Courts below have accepted the evidence of P.Ws.2 and 3 corroborated by Exts.A3, and X1 and found in favour of the marriage. That finding being one on fact and evidence, no interference is required in this Second Appeal. The finding that oral gift pleaded by the appellant is not proved is also based on evidence. On hearing learned counsel for appellant and going through the judgments under challenge, I do not find any substantial question of law involved for a decision. Second Appeal is dismissed. All pending Interlocutory Applications will stand dismissed. ## **THOMAS P. JOSEPH, JUDGE.** vsv