Kerala High Court
Kunhavulla vs Radha Amma on 4 December, 2000
Equivalent citations: I(2001)DMC549
Author: D. Sreedevi
Bench: D. Sreedevi
JUDGMENT D. Sreedevi, J.
1. This Second Appeal is directed against the decree and judgment in A.S. No. 77 of 1986 of the District Court, Kozhikode which was filed against the decree and judgment in O.S. No. 88 of 1983 of the Sub Court, Badagara. The third defendant before the trial court is the appellant and plaintiffs are the respondents. The plaintiffs-respondents filed the above suit for partition. Plaintiff's case in brief is this. The plaint schedule properties originally belonged to Kunjiraman Nambiar. He died in 1971. Plaintiff's case is that after the death of Kunjiraman Nambiar his property devolved on plaintiffs 1 and 2 and the first defendant as they are the widow and sons of the deceased Kunjiraman Nambiar. It is alleged that the second defendant claiming to be the widow of Kunjiraman Nambiar executed certain documents under which defendants 3 to 6 and 8 to 15 claim possession over the property. Plaintiffs claim 2/3 share over the plaint schedule properties as the first defendant is entitled to 1/3 share. Defendants 1 and 2 remained ex parte. The third defendant filed a written statement contending that the first plaintiff is not the wife of deceased Kunjiraman Nambiar and the second plaintiff is not her son through him. The second defendant is the wife and after the death of Kunjiraman Nambiar his rights devolved on defendants 1 and 2 and his mother Mani Amma. This Mani Amma executed a sale deed in favour of the 16th defendant, her daughter. Thus the property belongs to defendants 1, 2 and 16. The third defendant purchased item No. 2 under a document of the year 1976 and is in possession. According to her Mani Amma is a necessary party to the suit. The 4th defendant claims 3 cents of property from one Narayana Kurup who had obtained the same from defendants 1, 2 and 16. The 5th defendant contended that his wife Ayishabi is in possession of a portion of the property under documents executed by the legal heirs of Kunjiraman Nambiar. Defendants 8 and 9 claim that they are in possession of a portion of item No. 1 under defendants 1, 2 and 16. The other defendants also claim right under defendants 1, 2 and 16.
2. The trial court after taking evidence dismissed the suit holding that the plaintiffs failed to prove that there was a marriage between the first plaintiff and Kunjiraman Nambiar. Aggrieved by the said decree and judgment the plaintiffs filed A.S. No. 77 of 1986. The learned District Judge allowed the appeal and passed a preliminary decree for partition holding that the second plaintiff is entitled to a share in the property as legal heir of deceased Kunjiraman Nambiar. Aggrieved by the said decree and judgment defendants 1 to 6 and 8 to 17 filed this appeal.
3. The question of law involved in this case for the purpose of this appeal is this.
Whether the lower appellate court is correct in law in applying S. 16 of the Hindu Marriage Act to award share to the second plaintiff on the pleadings and evidence in the case.
4. Admittedly the plaint schedule properties originally belonged to Kunjiraman Nambiar. He passed away. According to the plaintiffs after the death of Kunjiraman Nambiar his property devolved on plaintiffs 1 and 2 and the first defendant. The plaintiffs would allege that the second defendant claims to be the widow of Kunjiraman Nambiar. Even though it is alleged in the plaint that she claims to be the wife of Kunjiraman Nambiar at the time of hearing it was admitted that the second defendant was the legally wedded wife of deceased Kunjiraman Nambiar. It is also an admitted fact that a son was born to Kunjiraman Nambiar through the second defendant. The first plaintiff claims to be the legally wedded wife of deceased Kunjiraman Nambiar. It is in evidence that on the date of the alleged marriage of the first plaintiff with Kunjiraman Nambiar, Kunjiraman Nambiar had a son, who is the first defendant herein. The status of the first defendant is admitted by the plaintiffs. To prove that there was a valid marriage between the first plaintiff and deceased Kunjiraman Nambiar the plaintiffs relied on Exts. A1 to A6. Ext. A1 is the extract of the certificate of birth of the second plaintiff issued by Purameri Panchayat wherein the dale of birth of the second plaintiff is noted as 1.5.1970. But the birth was registered in the Panchayat only on 6.6.1984 which is after the date of suit. On that ground the court below rejected the said document. Ext. A2 is the voters list relating to Purameri Panchayat of the year 1978. wherein the name of the first plaintiff is entered. 4th column in the voters list is for nothing the names of either the father, or karanavan or husband. Against the name of the first plaintiff Kunjiraman Nambiar's name is mentioned. First plaintiff is seen residing in House No. 377. Ext. A3 is a paper report regarding the murder of Kunjiraman Nambiar. It is reported in the papers that he has left behind his widow Radha Amma who is the first plaintiff herein and son Gopalan the first defendant. This paper report also shows the photograph taken after the murder of Kunjiraman Nambiar. The second plaintiff is seen carried by the then Chief Minister Karunakaran. Exts.A4 and A5 are notices issued from the office of the Circle Officer of Co-operative Societies, Badagara demanding remittance of loan amounts taken by Kunjiraman Nambiar. These letters were addressed to the first plaintiff. Ext. A6 is a relinquishment deed executed by the first plaintiff and also the other members of Kunjiraman Nambiar's family. These documents go to show that plaintiffs 1 and 2 and defendants 1 and 2 along with other members of Kunjiraman Nambiar's family executed a surrender deed in respect of their right over the property in 1979. This would go to show that plaintiffs 1 and 2 were recognised as wife and son of deceased Kunjiraman Nambiar by the present defendants 1 and 2. They are signatories to the document. There is nothing on record to show that the second defendant has ever challenged that document. The first plaintiff as PW. 1 has deposed that her marriage with Kunjiraman Nambiar was solemnised at Guruvayoor temple. To prove that there was a marriage between Kunjiraman Nambiar and 1st plaintiff, the plaintiffs examined PW. 2. The 2nd defendant has not come forward either to file a written statement or to give evidence denying the marriage of the 1st plaintiff with Kunjiraman Nambiar.
The 4th defendant was examined as DW. 1. He has purchased a portion of the property under an assignment deed executed by Narayana Kurup who obtained the property from defendant 1, 2 and 16. The defendants have not adduced any evidence to disprove the statement of the 1st plaintiff that she was married to Kunjiraman Nambiar. PW.1 was desposeed that her marriage with Kunjiraman Nambiar was performed at Guruvayoor temple and thereafter they lived together in his house and while so the second plaintiff was born. It is admitted that the 1st defendant is the son of Kunjiraman Nambiar. So the plaintiffs have to admit that his mother DW.1 was the wife of Kunjiraman Nambiar on the date of marriage. The 2nd defendant who was the wife of Kunjiraman Nambiar is alive. To prove that there was a valid customary marriage between the 1st plaintiff and Kunjiraman Nambiar, no evidence is forthcoming. But it is evident from Ext. A6 that the members of Kunjiraman Nambiar's family accepted the 1st plaintiff as his wife and 2nd plaintiff as his son and as the legal representatives of Kunjiraman Nambiar they surrendered the right in respect of a property belonging to Kunjiraman Nambiar. From this document it is clear that the members of Kunjiraman Nambiar's family treated the plaintiffs as his legal heirs. Ext. A2 voters list goes to show that plaintiffs 1 and 2 are residing in house No. 377 and against the name of the 1st plaintiff the name of Kunjiraman Nambiar is shown. It is also shown by the plaintiffs that Kunjiraman Nambiar and the 1st plaintiff were residing together at his house from the alleged date of marriage till the date of his death. Therefore, it is submitted for the appellants that the marriage between the 1st plaintiff and Kunjiraman Nambiar has to be presumed. The learned counsel for the appellants submitted that in the absence of any evidence to prove that there was a customary marriage, living together as husband and wife will not confer the status of husband and wife. But this Court in Janaki Amma v. Rama Warier (1985 KLT 283) held that the marriage has been recognised as a socially relevant and important institution. It is referred to as the chief foundation on which the superstructure of society rests. It is in the above background that a strong presumption in favour of marriage is raised where there has been cohabitation of spouses, particularly for a long period. Such presumption has been drawn irrespective of the country or religion of the people. So the rebuttal evidence must be strong distinct satisfactory and conclusive. The plaintiffs have proved that for about 3 years there was cohabitation between Kunjiraman Nambiar and the 1st plaintiff and the 2nd plaintiff was born in that relationship. It is true that mere cohabitation will not create the status of husband and wife. But strong presumption can be drawn in favour of a valid marriage. The burden is on the defendants to rebut the said presumption. The rebuttal evidence must be strong and conclusive. Here neither the 1st defendant nor the 2nd defendant filed any written statement denying the allegation that the 1st plaintiff is the legally wedded wife of deceased Kunjiraman Nambiar. In the absence of any rebuttal evidence, I can only find that there was a marriage between Kunjiraman Nambiar and the 1st plaintiff. Since it is proved that the 2nd defendant who was the legally wedded wife of Kunjiraman Nambiar was alive on the date of marriage with the 1st plaintiff, the marriage is void and the child is an illegitimate child. Therefore, the 1st plaintiff cannot get the status of the wife of deceased Kunjiraman Nambiar. But the 2nd plaintiff who is the son born out of a void marriage is entitled to protection under S. 16 of the Hindu Marriage Act. The Apex Court in Kalliani Amma v. K. Devi ((1996) 2 KLT 42) held that such children are entitled to succeed to the assets of their putative father, S. 16 reads as follows:
"16. Legitimacy of children of void and voidable marriages-
(1) Notwithstanding that a marriage is null and void under S. 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 after the commencemeny of the Marriage Laws (Amendment) Act, 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 S. 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-s. (1) or sub-s. (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 S. 12, any right 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."
In the light of the above provision the 2nd plaintiff who is the son of deceased Kunjiraman Nambiar is entitled to succeed to the assets of Kunjiraman Nambiar. The learned District Judge correctly appreciated the evidence on record and passed a preliminary decree for partition allowing the 2nd plaintiff his 1/4th share over the property. At the lime of death Kunjiraman Nambiar has left behind his wife, the 2nd defendant, son, the 1st defendant, his mother Mani Amma and the 2nd plaintiff as his legal heirs. Mani Amma's right devolved on the 16th defendant. Therefore each is entitled to 1/4th right over the property. The appellate court has correctly passed a preliminary decree for partition allowing the plaintiffs to divide the property into 4 and to allot 1/4th share to the 2nd plaintiff and to allot the remaining extent to defendants 1, 2 and 16. I do not find any reason to interfere with the said finding of the learned District Judge.
In the result, the appeal is dismissed confirming the judgment of the learned District Judge.