Kerala High Court
Kizhakkeveetil Kamalakshi Amma vs Rajalakshmi on 16 October, 2025
2025:KER:79671
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE EASWARAN S.
THURSDAY, THE 16TH DAY OF OCTOBER 2025/24TH ASWINA, 1947
RSA NO. 1543 OF 2012
AGAINST THE JUDGMENT DATED 05.09.2012 IN AS NO.34
OF 2011 OF THE SUB COURT, KOYILANDY ARISING OUT OF THE
JUDGMENT AND DECREE DATED 30.09.2011 IN OS NO.221 OF
2009 OF THE MUNSIFF COURT, KOYILANDY
APPELLANTS/APPELLANTS/PLAINTIFFS:
1 KIZHAKKEVEETIL KAMALAKSHI AMMA
AGED 79 YEARS, W/O.PADMANABHA KURUP, PANANGAD
AMSOM DESOM, KOYILANDY TALUK-KOZHIKODE.
2 VASANTHA
AGED 50 YEARS, D/O.KAMALAKSHI AMMA,
KIZHAKKEVEETTIL, PANANGAD AMSOM DESOM,
KOYILANDY TALUK, KOZHIKODE.
BY ADVS.
SRI.SANTHARAM.P
SMT.REKHA ARAVIND
RESPONDENTS/RESPONDENTS/DEFENDANTS:
1 RAJALAKSHMI
AGED 53 YEARS, W/O.RAVEENDRAN, PALASSERY VEEDU,
KARAKKOD AMSOM DESOM, VAZHIKKADAVU, NILAMBUR,
PALAKKAD, PIN - 678001
2 PRABHAVATHI
AGED 58 YEARS, W/O.UNNIKRISHNAN, MAATHIL VEEDU,
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R.S.A No.1543 of 2012
2
PANANGAD AMSOM DESOM, KOYILANDY TALUK.
PIN-673 101
3 JAYAKRISHNAN
AGED 39 YEARS, S/O.PADMANABHAKURUP, PADMASREE,
THERUVATH, PANANGAD AMSOM DESOM, KOYILANDY
TALUK, PIN-673 101
4 JAYASREE
AGED 36 YEARS
W/O.LATE SUDHEEK, -DO-, -DO-, PIN-673 101
5 JAYARAJAN
AGED 33 YEARS
S/O.PADMANABHA KURUP, -DO-, -DO-, PIN-673 101
6 RUGMINI AMMA (DIED)(LRS RECORDED)
PADMASREE, THERUVATH, PANANGAD AMSOM DESOM,
KOYILANDY TALUK, PIN-673 101
7 MANAGER
STATE BANK OF TRAVANCORE, BALUSSERY P.O.
PIN-673 375
[IT IS RECORDED THAT RESPONDENT 6 DIED ON
20.12.2020 AND RESPONDENTS 3 TO 5 ARE RECORDED
AS THE LEGAL HEIRS OF RESPONDENT No.6 AS PER
ORDER DATED 02.02.2021 IN MEMO DATED
16.01.2021]
BY ADVS.
SHRI.R.PARTHASARATHY, FOR R3 TO R6
SMT.SEEMA, FOR R3 TO R6
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY
HEARD ON 16.10.2025, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
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R.S.A No.1543 of 2012
3
EASWARAN S., J
--------------------------------
R.S.A No.1543 of 2012
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Dated this the 16th day of October, 2025
JUDGMENT
The plaintiffs in a suit for partition and injunction has come up with this appeal challenging the concurrent findings of the Munsiff Court, Koyilandy in O.S No.221/2009 and affirmed by the Sub Court, Koyilandy in A.S No.34/2011.
2. The brief facts necessary for the disposal of the appeal are as follows:-
The 1st plaintiff is the wife and the 2 nd plaintiff and defendants 1 and 2 are born in the wedlock with deceased Chathoth Padmanabha Kurup. Defendants 3 to 5 are children of Padmanbha Kurup, born in relationship with supplemental 6th defendant. Chathoth Padmanabha Kurup died on 21.01.2000 and on his death, the plaint 2025:KER:79671 R.S.A No.1543 of 2012 4 schedule property devolved upon the plaintiffs and defendants 1 to 5. The plaintiffs are thus entitled to get 2/7 shares, whereas defendants are entitled to get 5/7 shares. Though plaintiffs sought for partition, the same was refused and hence the suit. Defendants 3 to 5 resisted the suit by contending that the plaint schedule property was in exclusive possession of Rugmini Amma, the mother of defendants 3 to 5 by virtue of partition deed No.1664/2009 of SRO Balussery. Rugmini Amma being the legally wedded wife of Padmanbha Kurup is a necessary party to the suit and hence the suit is bad for non-joinder of necessary parties. Faced with this objection, Rugmini Amma was impleaded subsequently as supplemental 6th defendant. Defendants 3 to 5 further contended that the marriage between the 1st plaintiff and the deceased Padmanabha Kurup was dissolved as per document No.27/1965 dated 27.01.1965 of SRO Balussery and on the same date a gift deed was executed 2025:KER:79671 R.S.A No.1543 of 2012 5 nd in favour of the 2 plaintiff including D1 and D2 as document No.242/1965 of SRO Balussery. The properties at the hands of Padmanabha Kurup was subsequently partitioned by a preliminary decree of the Sub Court, Koyilandy in O.S No.56/2009 and later by a deed of partition dated 01.08.2009. The supplemental 6th defendant filed a separate written statement by contending that the marriage between her and late Padmanabha Kurup was solemnized as per family custom prevalent among the Nairs of North Malabar in the year 1972 and that the marriage between the 1 st plaintiff and late Padmanabha Kurup was dissolved under the provisions of Madras Marumakkathayam Act. The properties gifted to the plaintiffs, D1 and D2 were partitioned in the year 1987 by document No.2838/1987.
Padmanabha Kurup executed a registered Will dated 21.07.1973 in favour of the 6th defendant. The plaintiffs filed a replication and contended that there is no validity 2025:KER:79671 R.S.A No.1543 of 2012 6 for the preliminary decree obtained by defendants 3 to 5 and also the partition deed. They also questioned the Will executed by late Padmanabha Kurup. On behalf of plaintiffs, Exts.A1 to A8 documents were produced and PW1 and PW2 were examined. On behalf of the defendants, Exts.B1 to B27 documents were produced and DW1 was examined. The trial court framed the following issues for consideration:-
1) Whether the suit is maintainable in view of Section 7 of the Family Court Act?
2) Whether there is valid dissolution of marriage between the first plaintiff and Padmanabha Kurup?
3) Whether supplemental D6 is the legally wedded wife of Padmanabha Kurup?
4) Whether the plaint schedule properties are available for partition ? If so, what is the quantum of share to which parties are entitled?
5) Whether the Will bearing No 293/73 of SRO Balussery is true and genuine ?
6) Whether the plaintiffs and D1 and D2 are entitled to get share in respect of plaint schedule property as claimed?
7) Whether the prayer for share of profits allowable?, If so what is the quantum ?
8) Whether the injunction prayed for is 2025:KER:79671 R.S.A No.1543 of 2012 7 allowable ?
9) Reliefs and costs ?.
3. On appreciation of the oral and documentary evidence the trial court dismissed the suit finding that there is a presumption attached to Ext.B25 Will, because the same is more than 30 years old and thus drawing a presumption under Section 90 of the Evidence Act, 1872. Aggrieved, the plaintiffs preferred A.S No.34/2011 before the Sub Court, Koyilandy, and by judgment dated 05.09.2012, the appeal was also dismissed. Aggrieved, the plaintiffs preferred the present appeal.
4. On 20.12.2012, when the appeal was admitted to file, this Court framed the following substantial questions of law:-
1)Whether the presumption under Section 90 of the Evidence Act is available to a Will of 30 years old?
2) Are the courts below right in holding that Ext.B25 need not be proved following the modes prescribed in Sections 68 and 69 of the Evidence Act ?
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3) Are the courts below right in assuming that the marriage of 6th defendant with Padmanabha Kurup is valid without establishing the customary marriage propounded by the 6th defendant which was prevailed among Nairs in North Malabar ?
5. Heard Shri.P.Santharam, the learned counsel appearing for the appellants and Shri.R.Parthasarathy, the learned counsel appearing for respondents 1 and 3.
6. The learned counsel appearing for the appellants contended that the courts below erred egregiously in drawing a presumption as regards the validity of Ext.B25 Will, since the defendants 3 to 5 could not prove the dissolution of the marriage of late Padmanabha Kurup and the 1st plaintiff and further could not prove that the 6th defendant was the legally wedded wife of late Padmanabha Kurup, the presumption regarding the existence of a valid second marriage ought not have been drawn by the courts below. Once the presumption regarding the old documents having more 2025:KER:79671 R.S.A No.1543 of 2012 9 than 30 years is not drawn to uphold the validity of Ext.B25 Will, necessarily, the Will has to fail, since it fails to comply the mandate under Section 68 of the Indian Evidence Act, 1872. The suspicious circumstances surrounding the Will has not been dispelled by defendants 3 to 6 and therefore the courts below ought to have granted the decree for partition as sought for by the appellants. In support of his contentions, the learned counsel for the appellants placed reliance on the following decisions:-
H.Venkatachala Iyengar v. B.Ν. Thimmajamma and others [AIR 1959 SC 443], Kalidindi Venkata Subbaraju and others v. Chintalapati Subbaraju and others [AIR 1968 SC 947], Bharpur Singh and others v. Shamsher Singh [AIR 2009 SC 1766], Narayanan Radhakrishna Menon v. Narayanan Sukumara Menon and others [2018(1)KHC 412], Ashutosh Samantha (D) by LRs and Others v. S.M.Ranjan 2025:KER:79671 R.S.A No.1543 of 2012 10 Bala Dasi and others [2023 Live Law (SC) 190], Chinu Rani Ghosh v. Subhash Ghosh [2025 KHC 7044], Rajendhiran Vs Muthaiammal @ Muthayee [2025 KHC 6351], Rajeev Gupta v. Prasanth Garg [2025 KLT OnLine 1867 (SC)], Leela Devi K.R. (Dr) v. K.R. Rajaram [2025(4) KHC 287], Kanjiramullakandy Sarada Amma v. P.T. Sreenivasan Nair [2025 KHC 620].
7. Per contra, Shri.R.Parthasarathy, the learned counsel appearing for respondents 1 and 3 countered the submissions of the learned counsel for the appellants and contended that the courts below were correct in drawing presumption regarding the validity of Ext.B25 Will. It is further contended that going by Ext.B20, dissolution deed, the marriage of late Padmanabha Kurup with the 1st plaintiff was dissolved and on the same day a registered gift deed was executed in favour of plaintiffs 2 and defendants 1 and 2. It is 2025:KER:79671 R.S.A No.1543 of 2012 11 thereafter that late Padmanabha Kurup executed a registered Will in favour of the 6 th defendant and subsequently the properties having been partitioned between them, the claim for partition is unsustainable under law. In support of his contention relied on the following decisions:-
Munnalal minor and others v. Mst. Kashibai and others [AIR 1947 PC 15], Narayanan Radhakrishna Menon v. Narayanan Sukumara Menon and others [2018(1)KHC 412], Kalidindi Venkata Subbaraju and others v. Chintalapati Subbaraju and others [ AIR 1968 SC 947], Kanjanavalli v. Chiruthaamma and others [1992 KHC 574], Narambrath Ramadasan and others v. N.Leela and others [2019 (5) KHC 964], Satyanarayana v. Seetharatnam [2005 KHC 1828]
8. This Court will first answer the question as regard, whether a presumption under Section 90 of the Indian Evidence Act is available to a registered Will.
2025:KER:79671 R.S.A No.1543 of 2012 12 Section 90 of the Indian Evidence Act, provides for a presumption to be drawn in respect of a document which is more than 30 years old. The question before this Court is whether the said presumption is available to a registered Will.
9. It is trite law that a Will is required to be proved by examining atleast one attesting witness under Section 68 of the Evidence Act. But then, the larger question would be whether the mandate is required to be followed in respect of a Will, which is more than 30 years old.
10. Though the learned counsel for the appellants relied on the decision of the Hon'ble Supreme Court in Bharpur Singh and others v. Shamsher Singh [AIR 2009 SC 1766] to contend that the presumption as regards the document having more than 30 years cannot be drawn in respect of a Will, this Court finds that the observations contained in the said 2025:KER:79671 R.S.A No.1543 of 2012 13 judgment cannot be applied as a binding principle. It is true that the decision of the Hon'ble Supreme Court in Bharpur Singh (supra) was followed in Ashutosh Samantha (D) by LRs and Others v. S.M.Ranjan Bala Dasi and others [ 2023 Live Law (SC) 190]. But then, both these decisions failed to take note of the earlier decision of the Hon'ble Supreme Court in Munnalal, minor and others v. Mst. Kashibai and others [AIR 1947 PC 15] and also the Three Bench decision of the Hon'ble Supreme Court in Kalidindi Venkata Subbaraju and others v. Chintalapati Subbaraju and others [ AIR 1968 SC 947].
11. The question whether the decision of the Hon'ble Supreme Court in Bharpur Singh (supra) and Asuthosh Samantha(D) by LRs and others (supra) would constitute a binding precedent on this Court, is an incidental question, which this court may have to address.
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12. In Sundeep Kumar Bafna v. State of Mahrashtra and another [2014(16) SCC 623] the Hon'ble Supreme Court considering the principles of per incuriam, held that if a subsequent bench rendering a decision fails to takes note of the earlier binding principle, it does not constitute as a binding precedent. But, then this Court is faced with a difficult situation wherein, this Court is now called upon to decide the precedential value of the decision of the Hon'ble Supreme Court in Bharpur Singh (supra) and Ashutosh Samantha(D) by LRs and others (supra).
13. Fortunately, this Court is guided by the decision of the Single Bench of this Court in Narayanan Radhakrishna Menon v. Narayanan Sukumara Menon and others [2018(1) KHC 412] , wherein a Single Bench of this Court was called upon to decide the very same issue and this Court held that in the light of the decision of the Hon'ble Supreme Court in Kalidindi 2025:KER:79671 R.S.A No.1543 of 2012 15 Venkata Subbaraju (supra) and the decision of the Privy Council in Munnalal minor (supra), the subsequent decision of the Hon'ble Supreme Court in Bharpur Singh (supra) will not constitute as a binding precedent. This Court is in complete agreement with the decision rendered in Narayanan Radhakrishna Menon (supra) and therefore it is held that the presumption under Section 90 of the Evidence Act is available to Ext.B25 Will and therefore the same falls outside the mandate of Section 68 of the Evidence Act.
14. As a result of the above, this Court is inclined to answer the substantial questions of law 1 and 2 as follows:-
(a) The presumption under Section 90 of the Evidence Act is available to a Will more than 30 years old.
(b) In view of the above, the courts below were rightly holding that Ext.B25 need not be proved, 2025:KER:79671 R.S.A No.1543 of 2012 16 following the procedure prescribed under Sections 68 and 69 of the Evidence Act.
15. What remains is the final substantial question of law framed by this Court. The learned counsel for the appellants vehemently argued that Ext.B20 cannot constitute as a valid document showing dissolution of marriage. In order to test the sustainability of the statement, one needs to carefully construe the contents of Ext.B20 agreement. Ext.B20 is a registered document by which the marriage of the 1st plaintiff with late Padmanabha Kurup was dissolved. The parties are admittedly governed by the provisions of the Madras Marumakkathayam Act, 1932. Section 6 of the Madras Marumakkathayam Act, 1932, provides the modes of dissolution of a marriage can be by execution of a registered instrument. But then, after the promulgation of the Hindu Marriage Act, 1955, the larger issue would be as to whether the mode of dissolution as now found 2025:KER:79671 R.S.A No.1543 of 2012 17 under Ext.B20 agreement can be construed as a recognized method of dissolution.
16. Section 29(2) of the Hindu Marriage Act reads as under:-
(2) Nothing contained in this Act shall be deemed to affect any right recognized by custom or conferred by any special enactment to obtain the dissolution of a Hindu Marriage, whether solemnized before or after commencement of Act.
17. Therefore when the Hindu Marriage Act recognizes the customary method of dissolution of marriage, the right to obtain a divorce under the Madras Marumakkathayam Act is protected. Therefore, if a custom of usage is accepted under a law, which is in consistent with the Hindu Marriage Act and the said custom is given recognition under the Hindu Marriage Act, this Court sees no reason as to why the method of dissolution as agreed between the parties by way of a registered document shall not be recognized by the 2025:KER:79671 R.S.A No.1543 of 2012 18 court.
18. Pertinently by the trial court relied on the decision of full bench of this Court in Ayyappa Kurup Krishna Pillai v. Parukutty Amma Subhadra Amma [1970 KLT 442 (FB)] and a Division Bench decision of this Court in Madhavikutty v. Bhaskar [AIR 1976 Ker. 71], which was rendered in the context of a pari materia provision under the Travancore Nair Act. Therefore, this Court sees no reason as to why the principles as aforesaid could not be applied to the fact of the present case. Therefore, this Court has no hesitation to hold that Ext.B20 is a valid of dissolution of marriage recognized under the customary law, which has been saved under the provisions of Section 29(2) of the Hindu Marriage Act, 1955. Resultantly, the concurrent findings of the courts below on the validity of Ext.B20 will have to be necessarily upheld. Consequently, the third substantial question of law is also answered against the 2025:KER:79671 R.S.A No.1543 of 2012 19 appellants.
Having answered the substantial questions of law framed by this Court against the appellants, the appeal must necessarily fail and accordingly, the same is dismissed. The parties shall suffer respective costs.
Sd/-
EASWARAN S. JUDGE AMR