Victoria Xavier v. V. Radhamony and Others (MFA No. 1610 of 1996; A.S. No. 251 of 2002)

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE KURIAN JOSEPH & THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID MONDAY, THE 10TH MARCH 2008 / 20TH PHALGUNA 1929 MFA.No. 1610 of 1996() ---------------------OS.75/1993 of FAMILY COURT,THIRUVANANTHAPURAM .................... APPELLANT/PLAINTIFF: ----------- VICTORIA XAVIER, W/O. LATE XAVIER, X'AN, AGED 60 YEARS, RESIDING IN XAVIER'S HOUSE, SREEKARIAM, PANGAPPARA VILLAGE, THIRUVANANTHAPURAM. BY ADV. SRI.G.S.REGHUNATH RESPONDENTS/DEFENDANTS 1 TO 3 ------------- 1.V. RADHAMONY, HINDU, AGED 45 YEARS, RESIDING AT T.C. 1805, UDAYAGIRI NAGAR, THIRUMALA, THIRUVANANTHAPURAM, REPRESENTED BY HER SISTER AND NEXT FRIEND, SMT. V. RETHNA BAI, T.C. 18/1802, THIRUMALA, UDAYAGIRI NAGAR, THIRUVANANTHAPURAM. 2.THE TAHSILDAR, THIRUVANANTHAPURAM TALUK, OFFICE OF THE THE TAHSILDAR, THIRUVANANTHAPURAM FORT, THIRUVANANTHAPURAM. 3.THE STATE OF KERALA, REPRESENTEDBY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF MINOR IRRIGATION, SECRETARIATE, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER SRI. K.V. MANOJ KUMAR -R2 AND R3 SRI.SAJAN VARGHEESE K. SRI.L.MOHANAN -R1 SRI.D.SAJEEV SRI. S. SREEKUMAR. THIS MISC. FIRST APPEAL HAVING BEEN FINALLY HEARD ON 4/02/2008 ALONG WITH AS NO. 251 OF 2002, THE COURT ON 10.3.2008 DELIVERED THE FOLLOWING: ## **KURIAN JOSEPH & HARUN-UL-RASHID, JJ.** ## **---------------------------------------------------------------M.F.A.NO. 1610 OF 1996 & A.S. NO.251 OF 2002 ----------------------------------------------------------------** Dated this the 10th day of March, 2008. ## **JUDGMENT** ## **Harun-Ul-Rashid, J.** The appellant in M.F.A. No.1610 of 1996 is the plaintiff in O.S. No.75 of 1993 on the file of the Family Court, Thiruvananthapuram. The appellant in A.S. No.251 of 2002 is the defendant in O.S. No.109 of 1996 on the file of the Principal Sub Court, Thiruvananthapurm. The appellant in M.F.A. No.1610 of 1996 and the first appellant in A.S. No.251 of 2002 is one and the same person. The respondent in A.S. No.251 of 2002 is the plaintiff in O.S.No.109 of 1996 and the first defendant in O.S. No.75 of 1993. The appellant in both these appeals is the mother of one deceased K.X. Joseph who was a Government employee in the Minor Irrigation Department. O.S. No.75 of 1993 was filed by the appellant as plaintiff for a declaration that she is entitled to draw the family pension and other service benefits of deceased Joseph and also for injunction restraining the third defendant/State of Kerala from disbursing the service benefits of deceased Joseph to the first defendant on the strength of the heirship certificate obtained by her. O.S. No.109 of 1996 against which A.S. _M.F.A. NO.1610/1996 & A.S. NO.251/2002_ 2 No.251 of 2002 arises is a suit filed by the respondent herein as plaintiff claiming one-half right in the residential house known as 'Mini house' and one cent of property in which it is situated. The parties herein are referred to as the plaintiff and defendants respectively as in O.S. No.75 of 1993. ## 2. The brief facts of the case is as follows: The plaintiff in O.S. No.75 of 1993 is the mother of deceased Joseph who died on 20.3.1992 at the age of 47 years while working as Lower Division Clerk in the Irrigation Department. He was undergoing treatment for Psychic disorder. According to the plaintiff, the deceased Joseph was unmarried till his death and lived along with her and her other children. The first defendant in the suit put forth a claim for the assets of the deceased. The deceased had put in a service of about 15 years. The first defendant filed a petition to receive the amount covered by the Life Insurance Policy in the name of the deceased claiming that she is the wife of the deceased. It is alleged by the plaintiff that the second defendant, Tahsildar, without considering the claims and objections filed by her, issued heirship certificate to the plaintiff and first defendant jointly stating that they are entitled to draw the pensionary benefits of the deceased. According to the plaintiff, the first defendant being a Hindu by birth, she cannot be the legally wedded wife of a Christian. The plaintiff apprehends _M.F.A. NO.1610/1996 & A.S. NO.251/2002_ 3 that the third defendant may disburse the death benefits of deceased Joseph to the first defendant. Hence, she filed the suit for declaration that she is entitled to the family pension and other service benefits of the deceased. 3. The first defendant in the suit inter alia contended that she is the wife of deceased Joseph, that she was married to the deceased on 15.9.1977, that the marriage was registered in the Sub Registry Office, Kazhakkuttam as per document No.134/77 under the Special Marriage Act and that thereafter they have been living together as husband and wife till his death. According to the first defendant, she is the legal heir of deceased Joseph and that since the Tahsildar had issued a legal heirship certificate, she is entitled to receive the family pension and other service benefits of the deceased from the third defendant. 4. O.S. No.109 of 1996 was filed by the first defendant in O.S. No.75 of 1993 for partition and separate possession. The defendants in the suit are the mother and two brothers of deceased Joseph. It is the case of the plaintiff in the above suit that she is the wife of deceased Joseph who is the son of the first defendant and brother of defendants 2 and 3. According to her, she and deceased Joseph were living together as husband and wife till his death. The plaintiff and the first defendant repeated the _M.F.A. NO.1610/1996 & A.S. NO.251/2002_ 4 same pleadings as in O.S. No.75 of 1993. The plaintiff in O.S. No.109 of 1996 further contended that the plaint schedule property in O.S. No.109 of 1996 belongs to deceased Joseph who acquired the same as per a gift deed executed by his mother and that the deceased constructed a residential building in the one cent with the financial assistance of his wife. According to the plaintiff in the above suit, after the death of Joseph, the defendants forcibly evicted her from the residential building and took possession of the same. She further contended that as per the Indian Succession Act, one-half of the property devolved on her and the other half devolved on the mother of the deceased. The suit was thus filed for partition and separate possession of one-half right. 5. The first defendant in the above suit, the mother of deceased Joseph inter alia contended that no customary or ceremonial marriage was performed between deceased Joseph and the plaintiff nor was the marriage registered under the Special Marriage Act. According to her, the plaintiff has not acquired the legal status of the wife of deceased Joseph entitling her to inherit his property. The first defendant also denied the averment that the plaintiff and deceased Joseph lived together as husband and wife. She also contended that the suit for partition is not maintainable, that the settlement deed executed in favour of the deceased was not acted upon, _M.F.A. NO.1610/1996 & A.S. NO.251/2002_ 5 that she executed gift deed No.1393/92 in favour of the third defendant who constructed a shop building in the property where he is running a studio. 6. The plaintiff in O.S. No.75 of 1993 was examined as PW.1 and Exts.A1 to A5 were marked on her side. The first defendant in the above suit and another person were examined as DWs.1 and 2 and Exts.B1 to B23 were marked .One witness was examined, each on the side of the plaintiff and the defendants in O.S. of 109 of 1996. Exts.A1 to A17 were marked on the side of the plaintiff and Exts.B1 to B12 were marked on the side of the defendants in the said suit. The trial court dismissed O.S. No.75 of 1993 filed by the mother of the deceased Joseph and decreed O.S. No.109 of 1996 filed by the alleged wife of the deceased declaring onehalf right of the plaintiff over the plaint schedule property. The defendants in the suit were allowed to pay one-half value of the plaint schedule property to the plaintiff since the property was not partible. The parties were given the liberty to apply for final decree. It was also made clear that the decree shall be subject to the final judgment in O.S.No.75 of 1993. 7. Joseph died on 20.3.1992. The plaintiff in O.S. No.75 of 1993, _M.F.A. NO.1610/1996 & A.S. NO.251/2002_ 6 the mother of the deceased, claims to be the sole legal heir of the deceased who died in harness while working as Lower Division Clerk in the Irrigation Department. The first defendant claimed that she is the legally wedded wife of deceased Joseph. The first defendant who was examined as DW.1 in O.S. No.75 of 1993 deposed that she married deceased Joseph on 15.9.1977. Ext.B3 is the copy of the marriage agreement. According to her, since the parents of deceased Joseph were not agreeable to the marriage, she and the deceased had entered into a registered deed and lived together as husband and wife. It is her further case that while she and the deceased were living together, the plaintiff executed a gift deed in respect of a portion of the property in favour of the deceased wherein he had constructed a building by name "Mini home". According to her, she and deceased Joseph lived together in "Mini home" and that she left Mini home only after the death of her husband. She further deposed that she had applied for legal heirship certificate before the Tahsildar and that after necessary enquiries and publication of Ext.B1 gazette notification inviting objections from the persons interested in the assets of the deceased, Ext.B2 heirship certificate was issued to her. She also produced Ext.B4 Life Insurance Policy which would go to show that she is the nominee. She is also described as the wife of the deceased. Ext.B6 is the acceptance letter-cum-first premium receipt issued by the Life Insurance Corporation _M.F.A. NO.1610/1996 & A.S. NO.251/2002_ 7 of India which also shows that the first defendant is the wife of deceased Joseph. Ext.B7 voters list, B8 pass book and B9 Insurance Policy taken by deceased Joseph also show that the first defendant is the wife of the deceased. Ext.B11 is the gazette notification whereby objections were invited for issuing legal heirship certificate to the plaintiff, Ext.B13 is the legal heirship certificate issued by the Tahsildar and Ext.B23 is the gift deed executed by the plaintiff in favour of the deceased whereby she had transferred one cent of land in favour of the deceased. 8. The trial court, after appreciating the entire evidence, concluded that there is no legal marriage between the first defendant and deceased Joseph. At the same time, the court below found that the first defendant had proved that she was residing with deceased Joseph at Mini home from 1977 onwards till his death in 1992. The court below also found that they have been living as husband and wife for a period of 15 years and that deceased Joseph had nominated the first defendant to draw the amount of the Life Insurance Policy. DW.2, a family friend of the deceased and the first defendant was examined to prove that the deceased and the first defendant lived together. Placing reliance on the oral and documentary evidence adduced by the first defendant, the court below concluded that deceased Joseph and the first defendant, V. Radhamony were living _M.F.A. NO.1610/1996 & A.S. NO.251/2002_ 8 together at Mini home for 15 years and that the deceased had admitted and accepted the first defendant as his wife. After considering all the facts and circumstances of the case, the court below entered the finding that the plaintiff/mother is not entitled to a declaration that she is entitled to get the family pension and other service benefits of deceased Joseph and that the first defendant, being the wife of the deceased, alone is entitled to get the family pension. The Supreme Court in the decisions reported in **S.P.S. Balasubramanyam v. Suruttayan(1994)1 S.C.C. 460** and **Shoba Hymavathi Devi v. Setti Gangadhara Swamy (2205) 2 S.C.C. 244** held that if a man and woman live together for long years as husband and wife, then a presumption arises in law of legality of marriage existing between the two. 9. The oral and documentary evidence discussed above conclusively prove that Radhamony and deceased Joseph lived together as husband and wife from 1977 to 1992 till his death. There is evidence of long cohabitation between the parties and they were treated as husband and wife by the society. The factum of long co-habitation between the parties has been established. In such circumstances, the court can presume that there was a valid and legal marriage. There are also materials to hold that the parties were accepted and recognised by others as husband and wife. In _M.F.A. NO.1610/1996 & A.S. NO.251/2002_ 9 such circumstances, the court can justifiably presume that there was legal marriage between the parties on account of the long co-habitation between them. The decisions of the Supreme Court reported in **Dwarika Prasad Satpathy v. Bidyut Prava Dixit, A.I.R. 1999 S.C. 3348** and **Captain Ramesh Chander Kaushal V. Mrs. Veena Kaushal and Ors., A.I.R. 1978 S.C.1807** are also relevant in this regard. This Court in the decision reported in **Karthiyayani Amma v. Narayanan Nair, 1997 (1) K.L.T. 862** held that where a man and woman lived together as man and wife, the law will presume, unless the contrary is proved, that they were living together by virtue of a legal marriage and not in concubinage. Learned counsel appearing for the appellants, placing reliance on the decision reported in **Surjit Kaur v. Garja Singh(1994)1 S.C.C. 407,** contended that if the marriage is not a valid marriage, it is no marriage in the eye of law. The bare fact of a man and a woman living as husband and wife does not, at any rate, normally give them the status of husband and wife even though they may hold themselves out before society as husband and wife and the society treats them as husband and wife. This was a case where the alleged wife claimed valid marriage between her and Gulaba Singh on 28.10,1965. Admittedly, Gulaba Singh died on 5.9.1969. The period during which they lived together is less than four years. The contention of the alleged wife was that the ceremonies of marriage were performed in the _M.F.A. NO.1610/1996 & A.S. NO.251/2002_ 10 village and gur was distributed. According to the plaintiffs in the suit, the ingredients of the alleged custom and the essential ceremonies of the marriage were neither set out nor pleaded. Custom must be proved to be ancient, certain and reasonable if the court of law were to accept the same. It was also contended that the status of wife cannot be conferred merely because they lived as husband and wife. This decision is distinguishable from the decisions cited supra. Co-habitation between the parties in this case is short lived. Therefore, the presumption of a valid marriage cannot be applied. In the facts and circumstances of the case, the judgment and decree passed by the court below in O.S. No.75 of 1993 stands confirmed. 10. The first defendant in O.S. No.75 of 1993 is the plaintiff in O.S. No.109 of 1996. The defendants in the suit are the mother and the two brothers of deceased Joseph. The suit is for partition and separate possession. It is the plaintiff's case that the suit property of one cent comprised in Survey Nos. 863 and 870 of Pangappara Village belonged to deceased Joseph who acquired the property as per gift deed No.1422/84 executed by his mother. According to the plaintiff, the deceased Joseph had constructed a residential house in the said one cent of land where they lived together and that after the death of deceased Joseph, the defendants forcibly evicted her from the residential building and took possession of _M.F.A. NO.1610/1996 & A.S. NO.251/2002_ 11 the same. The suit was resisted by the defendants contending inter alia that the suit is bad for non-joinder of parties and barred by res judicata. The first defendant contended that the plaintiff is not the wife of deceased Joseph and that she has not acquired the legal status as wife. It is also contended that the settlement deed of 1984 did not take effect and was not acted upon and therefore the first defendant had executed a registered gift deed No. 1393/92 in favour of the third defendant who is possession and enjoyment of the property. 11. The plaintiff and the deceased Joseph started living together after executing Ext.B3 produced in the connected case. They lived together till the death of the deceased in 1992. The status of the plaintiff as the wife of deceased Joseph was declared by the Family Court, Thiruvananthapuram in O.S. No.75 of 1993 and it was confirmed by this Court by this common judgment in M.F.A. No.1610 of 1996. The plaintiff claimed one-half right in the plaint schedule property. 12. The trial court found that pursuant to the gift deed of 1992 in favour of the third defendant, the third defendant had constructed a building in the entire plot and is running a studio. The plan produced in the case shows that the new structure was constructed after demolishing a _M.F.A. NO.1610/1996 & A.S. NO.251/2002_ 12 part of the old structure. So, the building described in the plaint schedule property was not available for partition by metes and bounds. The trial court held that Radhamony is entitled to receive the market value of onehalf share. 13. The court below rightly held that the issues in Ext.B1 suit and the cause of action are different and, therefore, the right of the plaintiff is not barred by virtue of Ext.B1 suit. The preliminary decree for partition of one-half share in favour of the plaintiff requires no interference in appeal. The appeal, therefore fails. In the result, M.F.A. No.1610 of 1996 and A.S. No.251 of 2002 are dismissed. There will be no order as to costs. ## **(KURIAN JOSEPH, JUDGE)** ## **(HARUN-UL-RASHID, JUDGE)** ## **sp/** _M.F.A. NO.1610/1996 & A.S. NO.251/2002_ 13 **KURAIN JOSEPH & HAURN-UL-RASHID, JJ.** **M.F.A.NO.1610/1996 & A.S. NO.251/2002** **JUDGMENT** **10TH MARCH, 2008**