Vijayamma v. Devayani and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** ## **&** ## **THE HONOURABLE MR.JUSTICE N.ANIL KUMAR** **THURSDAY, THE 22ND DAY OF AUGUST 2019 / 31ST SRAVANA, 1941** **Mat.Appeal.No.164 OF 2012** **AGAINST THE JUDGMENT IN OP 845/2008 DATED 25-11-2011 OF FAMILY COURT, ALAPPUZHA** ## **APPELLANT/PETITIONER IN OP.NO.845/2008:** **VIJAYAMMA, AGED 60 YEARS, W/O.LATE NEELAMBARAN, JAGRIYAPARAMBU PAZHAVEEDU VILLAGE, KAITHAVANA, SANATHANAPURAM P.O., ALAPPUZHA.** **BY ADVS. SRI.T.C.SURESH MENON SRI.P.S.APPU SRI.A.R.NIMOD** ## **RESPONDENTS/RESPONDENTS IN OP.NO.845/2008:** - **1 DEVYANI, AGED ABOUT 73 YEARS, W/O.LATE KOCHUCHERUKAN, ENPATILCHIRA HOUSE, VAYATHUPAKKA, KAINAKARY P.O., CHERUKARA, KUTTANADU TALUK, ALAPPUZHA DISTRICT688501.** - **2 THE DISTRICT MEDICAL OFFICER NEAR IRON BRIDGE, ALAPPUZHA-688001.** - **3 THE TREASURY OFFICER (PENSION) ANNEX OF THE OFFICE OF THE SUPERINTENDENT OF POLICE, ALAPPUZHA-688001.** - **4 THE STATE OF KERALA REPRESENTED BY THE DISTRICT COLLECTOR, ALAPPUZHA688001.** - **R1 BY ADV. SRI.NIDHI BALACHANDRAN** - **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON** - **22.08.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 Mat.A.No.164/2012 ## **JUDGMENT** ## **Dated this the 22nd day of August 2019** ## **SHAFFIQUE, J** This appeal is filed by the petitioner in O.P.No.845/2008 challenging an order passed by the Family Court, Alappuzha dismissing the petition wherein she claimed to be the legally wedded wife of Neelambaran who died on 1.11.2000. The petition was filed for a declaration that she is the legally wedded wife of Neelambaran. According to her, she was living with Neelambaran based on a registered agreement of 1975 and thereafter a customary marriage ceremony was conducted on 20.08.1998 at SNDP Branch, Kaithavanam in the presence of their relatives and friends. A girl child is born in the wedlock and she has already attained the age of 38. 2. In the meantime, it was understood that Soudamini, sister of Neelambaran had obtained a decree for specific performance of an agreement for sale against Neelambaran. The suit was filed by Soudamini as O.S.No.257/1995 before the Munsiff's Court, Alappuzha alleging that Neelambaran has executed an agreement with her for assigning certain item of property belonging to Neelambaran. Against the decree passed in the said case, Neelambaran filed A.S.No.91/1998 3 Mat.A.No.164/2012 before the Sub Court, Alappuzha which came to be dismissed. The petitioner and her daughter filed S.A.No.601/2001 before the High Court. During that time, the 1[st] respondent herein filed I.A.No.957/2004 for impleading her in the second appeal as the legal heir of late Neelambaran. The issue was referred to the trial court under Order XXII Rule 5 of the Code of Civil Procedure to decide as to who is the legal heir of late Neelambaran. The trial court after taking evidence found that the 1[st] respondent is the legally wedded wife of Neelambaran and accordingly the second appeal was dismissed as per order dated 14.11.2007. Subsequently, the petitioner and her daughter filed R.P.No.632/2008 seeking review of judgment. The judgment had been reviewed and the appeal was posted for hearing. In fact, the 1[st] respondent had also filed O.P.No.1162/2005 before the Family Court, Alappuzha for declaring her status as legally wedded wife of Neelambaran. In the second appeal, when there came a finding that she was the legal heir of the deceased Neelambaran, an application was filed to withdraw O.P.No.1162/2005 and accordingly the same was dismissed as withdrawn. Thereafter, the petitioner filed the aforesaid original petition seeking to declare her status as the legally wedded wife of Neelambaran on the ground that the finding by the trial court under Order XXII Rule 5 of the CPC is only summary in nature and said finding will not become resjudicata. 4 Mat.A.No.164/2012 3. The evidence in the case consists of the oral testimony of PW1 to PW6 and RW1 to RW3. Exts. A1 to A18 and B1 to B5 were the documents relied upon. Exts.X1 to X8 were the documents summoned and marked before court. After analysing the evidence in the case, the court below dismissed the petition. 4. The learned counsel for the appellant submits that the Family Court committed serious error in not considering the matter on merits. It proceeded on the basis that the High Court had already taken a decision in the second appeal that the 1[st] respondent is the legally wedded wife of Neelambaran. It is submitted that there is no evidence to prove that the 1[st] respondent had married Neelambaran and her pleadings and evidence would clearly indicate that she has no consistent case regarding the marriage as to when the marriage was conducted and the details of the said marriage has not been disclosed and it is not in evidence at all. 5. On the other hand, the learned counsel appearing for the 1[st] respondent would submit that the issue had become final when the High Court had decided the second appeal. The second appeal had been reviewed only to consider the question as to whether the daughter of the petitioner (Rajikala) is one of the legal representative of the deceased Neelambaran. As far as the petitioner (Vijayamma) is concerned, issue has become final and therefore there is no necessity 5 ## Mat.A.No.164/2012 to take a different view in the matter. That apart, it is submitted that evidence in the case clearly discloses that the petitioner/appellant had even admitted the fact that there was an earlier marriage between the 1[st] respondent and Neelambaran. Ext.B1 is the objection filed by her in O.P.No.1162/2005 wherein she admits that there was a marriage between Neelambaran and Devayani, the 1[st] respondent. But the case was that subsequently they divorced. Though an attempt was made to contend that she had no knowledge about such an admission, no evidence had been adduced to prove the said fact. 6. It is true that under Order XXII Rule 5 of the CPC, this Court had directed the trial court to consider as to who is the actual legal heir. But it is settled law and as held by this Court in **Govindan Nair v. Janaki Amma** (2001 (2) KLT 360), placing reliance upon a Full Bench judgment of Punjab & Haryana High Court in **Mohinder Kaur v. Piara Singh** (AIR 1981 Punjab & Haryana 130) that, in essence a decision under Order XXII Rule 5 of the CPC is only directed to answer an orderly conduct of the proceedings with a view to avoid the delay in the final decision of the suit till the persons claiming to be the representatives of the deceased party get the question of succession settled through a different suit and such a decision does not put an end to the litigation in that regard. 7. Therefore, the finding by the trial court which was 6 ## Mat.A.No.164/2012 confirmed by this Court regarding enquiry under order XXII Rule 5 will not preclude the petitioner from seeking a declaratory decree, which she had done by filing O.P.No.845/2008. Of course, while considering the case, it is possible that details of such an enquiry also can be treated as a piece of evidence. 8. First of all, we have to see whether the evidence in the case would enable the petitioner to contend that she is the legally wedded wife of Neelambaran. In order to prove the said fact, she examined six witnesses and relied upon substantial documents. Ext.A1 is the copy of an agreement dated 8.12.1975 which indicates that the petitioner/appellant was residing with Neelambaran since 1968. Ext.A7 is the certificate dated 25.11.2000, wherein the Village Officer, Pazhaveedu has certified that the petitioner is the legally wedded wife of Neelambaran. Ext.A10 is the birth certificate dated 19.6.2009 which indicated that Rajikala was born on 21.05.1969 and the name of father is shown as V.K. Neelambaran. Ext.A14 is the family pension book in which petitioner and Neelambaran were shown as husband and wife. Ext.A15 is the copy of ration card standing in the name of Neelambaran which would also show that they were residing as family. Evidence in the case indicates that the petitioner was living with Neelambaran and they had a daughter. PW7, Secretary, SNDP Kaithavana was summoned to prove the marriage, which would prove 7 ## Mat.A.No.164/2012 the fact that the marriage between the petitioner and Neelambaran was registered on 20.8.1998. At the relevant time, the age of the petitioner was shown as 48 and that of Neelambaran as 65 and in the column stating as to whether it was their first marriage, they have stated that it is so. Thumb impression of Neelambaran was affixed. Apparently, from the facts evident from what is stated above would indicate that there was a marriage between the petitioner and Neelambaran. 9. But the contention urged by the 1[st] respondent is that there was a marriage between the 1[st] respondent and Neelambaran several years back and a son was born in the wedlock. In O.P.No.1162/2005 filed by Devayani she had taken up a contention that she had married Neelambaran in 11.5.1957 and there was no divorce. She alleged that, if at all there was a second marriage, it is null and void as there was no legal divorce between them. The 1[st] respondent had relied upon Ext.B1 which is an objection filed by the petitioner in O.P.No.1162/2005, wherein she admits that there was a marriage with Devayani, but then Neelambaran had divorced her and thereafter she had married Neelambaran on 20.8.1998 as per customary marriage. When confronted with Ext.B1, while being examined as PW1, the petitioner contended that those pleadings were prepared by one Unni, who is an Advocate Clerk and she had not made any such submission. 8 ## Mat.A.No.164/2012 Unni was examined as PW6 at the instance of the petitioner. But no question is seen asked with reference to Ext. B1 and his explanation is not clear with reference to the the contents of Ext.B1. 10. When there is an admission in a case which is filed between the same parties, it is not possible for the parties to the lis to take a different view in yet another proceedings between the very same parties. The pleadings in a case act as an estoppel or an admission. But if there is any mistake in the pleadings, definitely it shall be open for the said parties to the lis to adduce evidence that it was a mistake or the pleadings happened to be occurred, on account of misrepresentation of facts. But when the specific case of the petitioner is that, Unni, the Advocate Clerk had prepared the pleadings without her knowledge and she had to sign it without reading the contents thereof, the same cannot be believed as such. Still, Unni has no such case when he was examined as PW6 that Ext.B1 was prepared by him and that such a factual admission was wrongly made. The admission itself will operate as an estoppel against the petitioner, and she cannot content, in any other proceedings that there was no valid marriage between Neelambaran and Devayani. Once said marriage stands proved by the aforesaid admission, the second marriage between Neelambaran and petitioner becomes void in the eye of law. It was for the petitioner to prove that there was a valid divorce 9 Mat.A.No.164/2012 between Devayani and Neelambaran. Divorce should be in accordance with law and by an order of court in terms of the Hindu Marriage Act, 1955. In the absence of any such evidence, the court below was justified in dismissing the plea. 11. The leanred counsel for the appellant further placed reliance upon **Nizar v. Raseena** [2018 (5) KHC 356 (DB)], wherein this Court while considering a family dispute held at paragraph 13 as under: “13. An admission by a party in a previous suit or proceedings is admissible in evidence in a subsequent suit or proceedings. What a party himself admits to be true may reasonable be presumed to be so. The burden is upon the party who has made the admission to show that it was wrong or erroneous. Admission is only a piece of evidence to prove a fact. It does not operate as estoppel unless the other party has acted upon it.” This is also a case in which there is admission in pleadings. Once the admission is proved by adducing evidence, then definitely it is a piece of evidence which proves a particular fact. As far as the present case is concerned, the dispute is regarding the factum of marriage between the petitioner and Neelambaran. When the said fact is admitted and in the absence of any evidence to disprove the said fact, that itself is enough to decide the case. That apart, the parties had also adduced evidence while considering the matter under under Order XXII Rule 5 of the CPC, wherein also a similar view had been taken by the said 10 ## Mat.A.No.164/2012 court. Though the said decision is not binding on this Court, taking into account the factual circumstances that has arisen in the case, we don't think that a different view could be taken than what has been taken by the Family Court. The appeal is dismissed. No costs. ## **Sd/-** **A.M.SHAFFIQUE, JUDGE** **Sd/-** kp True copy **N.ANIL KUMAR, JUDGE** P.A. To Judge