Kerala High Court
Kaithavalappil Thamasikkum Ramani vs Malathi Alias Ammu on 7 June, 2001
IN THE HIGH COURT OF KERALAAT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE ANTONY DOMINIC
&
THE HONOURABLE MR. JUSTICE A.HARIPRASAD
THURSDAY,THE 19TH DAY OF MAY 2016/29TH VAISAKHA, 1938
AS.No. 590 of 2001 (D)
-----------------------
AGAINST THE JUDGMENT AND DECREE IN OS NO. 118/1997 of PRINCIPAL SUB COURT,
KOZHIKODE DATED 07-06-2001
APPELLANTS/DEFENDANTS 2 TO 5:
------------
1. KAITHAVALAPPIL THAMASIKKUM RAMANI, AGED 47 YEARS,
D/O.VELLAYIKOTTU SANKARAN, W/O.THATANKANDI BALAN,
PARAPPANANGADI AMSOM, CHETTIPPADI DESOM, TIRUR TALUK.
2. MUKUNDAN, AGED 43 YEARS, S/O.VELLAYIKKOTTU SANKARAN,
VELLAYIKOTTU HOUSE, NADUVATTOM AMSOM DESOM,
KOZHIKODE TALUK.
3. SARAVANAN, AGED 41 YEARS, S/O.VELLAYIKKOTTU SANKARAN,
VELLAYIKOTTU HOUSE, NADUVATTOM AMSOM DESOM,
KOZHIKODE TALUK.
4. SUMUGHAN, AGED 39 YEARS, S/O.VELLAYIKKOTTU SANKARAN,
VELLAYIKOTTU HOUSE, NADUVATTOM AMSOM DESOM,
KOZHIKODE TALUK.
BY ADVS.SRI.S.V.BALAKRISHNAIYER (SENIOR ADVOCATE)
SRI.K.JAYAKUMAR (SENIOR ADVOCATE)
SRI.P.B.KRISHNAN
RESPONDENTS/PLAINTIFF AND DEFENDANT NO.1:
--------------
1. MALATHI ALIAS AMMU, AGED 51 YEARS, D/O.SANKU @ THANKAPPAN,
(D/O.VELLAYIKOTTU SANKARANAS PER THE CAUSE TITLE OF THE
JUDGMENT AND DECREE), W/O.PERIYAMBRA RAMADASAN,
NADUVATTOM AMSOM DESOM, KOZHIKODE TALUK.
2. RATNAVALLY, AGED 53 YEARS, D/O.SANKU ALIAS THANKAPPAN,
(D/O.VELLAYIKOTTU SANKARANAS PER CAUSE TITLE OF THE
JUDGMENT AND DECREE), W/O.PUTHANPURAYILSIDHARTHAN,
NADUVATTOM AMSOM DESOM, KOZHIKODE TALUK.
R1 BY ADV.SRI.T.SETHUMADHAVAN (SENIOR ADVOCATE)
R1 BY ADV.SMT.PRABHA R.MENON
R1 BY ADV.SRI.PUSHPARAJAN KODOTH
R1 BY ADV.SRI.M.KRISHNAKUMAR
R1 BY ADV.SRI.K.JAYESH MOHANKUMAR
R2 BY ADV.SRI.ANIL SIVARAMAN
THIS APPEAL SUITS HAVING BEEN FINALLY HEARD ON 09.03.2016, THE COURT
ON 19-05-2016 DELIVERED THE FOLLOWING:
ANTONY DOMINIC & A.HARIPRASAD, JJ.
--------------------------------------
A.S.No.590 of 2001
--------------------------------------
Dated this the 19th day of May, 2016
JUDGMENT
Hariprasad, J.
Defendants 2 to 5 in a suit for partition are the appellants. Plaintiff and 1st defendant are the respondents. For the sake of clarity, parties to this appeal are hereinafter referred to in the rank as shown in the suit.
2. Relevant facts for disposal of this appeal are as follows: Plaint A schedule properties along with other items originally belonged to deceased Vellayikot Sankaran. Plaint B schedule are the movable properties of Sankaran and therefore liable to be partitioned. Sankaran died on 12.10.1995. According to the plaintiff, she and the defendants are the surviving children of Sankaran. Deceased Kousalia was their mother, who predeceased Sankaran. Plaintiff claims 1/6th share in plaint A and B schedule properties. Plaintiff also claimed a perpetual injunction to restrain defendants 2 to 5 from committing any sort of waste in plaint A schedule and with respect to plaint B schedule movables.
3. 1st defendant filed a written statement admitting the plaint averments and also praying for her 1/6th share to be separated. AS No.590/2001 2
4. Defendants 2 to 5 filed a joint written statement. They denied the right claimed by the plaintiff and 1st defendant over plaint A and B schedule properties. According to their contentions, deceased Sankaran was not the father of the plaintiff and 1st defendant. In otherwords, the dispute raised by the contesting defendants is in respect of the paternity of the plaintiff and the 1st defendant. They allege that their mother Kousalia was hailing from North Paravur. During her youth, she developed intimacy with one Thankappan @ Sanku and eloped with him. They went to various places. Contesting defendants contended that the plaintiff as well as the 1st defendant are the children born to Kousalia in that relationship. Subsequently, he abandoned Kousalia and her children. Thereafter, deceased Sankaran married Kousalia and in that relationship, defendants 2 to 5 were born. Having admitted that the properties belonged to deceased Sankaran, the plaintiff and 1st defendant have no right to claim partition, as they are not the children of deceased Sankaran. With these allegations, they prayed for dismissal of the suit.
5. The suit was amended subsequent to the filing of written statement. Movable properties have been shown in plaint B schedule and valuation have been corrected by the amendment. The contesting defendants filed an additional written statement challenging the amended pleadings. That apart, they filed an additional written statement raising a AS No.590/2001 3 counter claim seeking a declaration that the plaintiff and the 1st defendant are not the children of deceased Sankaran and also seeking a prohibitory injunction restraining them from trespassing into the plaint schedule property. It is worthwhile to notice that in spite of raising a counterclaim, the trial court did not frame an issue in respect of the reliefs claimed by way of counter claim. Apart from filing a written statement with a counter claim, testimony of DW5 Mukundan (3rd defendant) clearly shows that they were pressing the reliefs in the counter claim even at the stage of evidence. Yet another infirmity in the judgment of the trial court is that the court failed not only to raise an issue relating to the reliefs in the counter claim, but also omitted to specifically state that the reliefs claimed in the counterclaim stood rejected. However, the law on the point is well settled that any relief claimed, but not granted, should be deemed to have been rejected. After hearing both sides, we reserved the case for judgment. Then we found out that there is no challenge against the denial of the counter claim reliefs. The case, therefore, was again posted for hearing. Heard both sides. The appellants thereafter filed an application to amend the appeal memorandum with a petition to condone delay of 14 years 2 months and 25 days. We shall deal with that matter in the succeeding paragraphs.
6. We heard Shri S.V.Balakrishna Iyer, learned Senior Counsel for the defendants and Shri T. Sethumadhavan, learned Senior Counsel for AS No.590/2001 4 the plaintiff.
7. Shri Balakrishna Iyer vehementally argued that the court below failed to read the oral evidence in the correct perspective. It also failed to appreciate the clinching documents indicating that the plaintiff and 1st defendant are not the children of deceased Vellayikkot Sankaran. We have been taken through the oral evidence exhaustively. Shri Iyer contended that the court below should have seen from the evidence that Kousalia had given birth to ten children and out of them, the plaintiff and defendants are the only ones surviving. But, the plaintiff and 1st defendant were born to Kousalia in a relationship with deceased Thankappan @ Sanku. It is therefore contended that the plaintiff and 1st defendant have no right to claim any share in deceased Sankaran's property.
8. Per contra, Shri Sethumadhavan contended that the defence case that Kousalia eloped with Thankappan @ Sanku and in that relationship the plaintiff and 1st defendant were born is false. He would rely on documents to show that deceased Sankaran himself described the plaintiff and 1st defendant as his children in various documents. That apart, till his death, deceased Sankaran was holding out to the world that the plaintiff and 1st defendant were his daughters. The documents produced on the side of the plaintiff and 1st defendant would convincingly prove that they are entitled to get shares in the properties of deceased Sankaran. AS No.590/2001 5
9. The court below, after considering the oral and documentary evidence, found that the plaintiff and 1st defendant are the children of deceased Sankaran and the case of the contesting defendants that they were born to Kousalia through Thankappan @ Sanku could not be established.
10. Admittedly, the immovable properties shown in A schedule to the plaint belonged to deceased Sankaran. B schedule gold ornaments also allegedly belonged to deceased Sankaran and those ornaments were pledged in the State Bank of Travancore, Beypore branch, during his life time. At the time of trial, defendants 2 to 5 developed a contention that those ornaments did not belong to Sankaran and in fact they belonged to his daughters-in-law. On an analysis of evidence, the trial court found that both A and B schedule properties belonged to deceased Sankaran and the plaintiff and 1st defendant, along with other children of deceased Sankaran, are entitled to shares in the said properties. Relief sought in respect of plaint B schedule properties was included by way of an amendment to the plaint. 1st defendant had filed an additional written statement claiming her 1/6th share in the plaint schedule properties. It is pertinent to note that the contesting defendants, ie., defendants 2 to 5, did not file any additional written statement opposing the plaint claim in respect of B schedule movables. Court below therefore rightly held that there is no denial of plea AS No.590/2001 6 raised by the plaintiff regarding her co-ownership over plaint B schedule movables. On that reasoning and also on the basis of evidence, the trial court found that B schedule gold ornaments belonged to deceased Sankaran. As mentioned earlier, there is no dispute regarding deceased Sankaran's ownership over plaint A schedule immovable properties.
11. According to the case in the plaint, deceased Sankaran married Kousalia and in that wedlock, eight children were born. Out of the eight children, two had predeceased their father. Contesting defendants raised a contention that their mother Kousalia had eloped with Thankappan @ Sanku and in that relationship, the plaintiff and 1st defendant were born. According to them, Thankappan @ Sanku later deserted Kousalia, thereafter Sankaran married her and in that relationship, the contesting defendants were born.
12. Learned Senior Counsel for the appellants contended that the court below failed to consider the importance of testimony of DW1.
13. DW1 claimed to be the brother of Kousalia. DW1, in chief examination, testified that Kousalia and himself are the children of Koman and Kurumba. DW1 deposed that Kousalia developed intimacy with Thankappan @ Sanku, who was a carpenter by caste and went missing. It is his version that the parties are natives of Puthanvelikkara in North Paravoor Taluk. Admittedly the parties are Hindu Ezhavas. It is his further AS No.590/2001 7 version that after sometime, he received a letter from Kousalia, seeking pardon for bringing disrepute to the family and also requested to send `50/- as Thankappan @ Sanku had deserted Kousalia and children by that time. It is the definite version of DW1, in chief examination, that the plaintiff and 1st defendant are children born to Kousalia through Thankappan @ Sanku. Later deceased Sankaran married Kousalia and in that relationship, four children were born. Ext.B1 photograph was identified by DW1 wherein deceased Kousalia, his wife Chandramathi and parties to the suit were seen. Ext.B2 is the electoral card of DW1. According to DW1, Ext.B3 is the photograph taken at the time of 3rd defendant's marriage. He deposed that it was taken when he was blessing the bridegroom. Ext.B4 is another photograph wherein he along with the parties to the proceedings could be seen. This witness was cross-examined at length. The tenor of cross- examination is suggestive of the case that DW1 was not related to Kousalia. His relationship with Kousalia was challenged by contending that he could not produce any document to show that they were siblings. At the time of cross-examination, he conceded that he was unable to produce any document to show that Kousalia eloped with Thankappan @ Sanku, that as to when was the marriage between Sankaran and Kousalia and as to what kind of enquiry was made after Kousalia went missing with Thankappan @ Sanku. He even conceded that he had no direct knowledge about AS No.590/2001 8 Kousalia's marriage with Thankappan. Although he deposed that he received a letter from Kousalia in a state of distress, understandably he could not produce the letter, as it could have happened long before. Fact that deceased Sankaran married Kousalia is admitted by DW1. But, he was not aware as to the year of marriage. Ext.B3 photograph shows the presence of DW1 and Mukundan (3rd defendant). Deceased Sankaran and Kousalia were not present on that occasion. This witness was confronted with certain documents wherein deceased Sankaran was depicted as father of the plaintiff and 1st defendant. He feigned ignorance about those documents. It was suggested to this witness that he was uttering falsehood in order to unduly help the contesting defendants, which of course he denied. Totality of evidence of this witness would show that he could not precisely state as to when Kousalia eloped with Thankappan @ Sanku and when Sankaran married Kousalia. His assertion that he is the direct brother of Kousalia also went unestablished. As observed by the court below, it may be unsafe to rely on the testimony of DW1 alone, ignoring the relevant documents, to hold that the plaintiff and 1st defendant were the children of Thankappan @ Sanku.
14. Another independent witness relied on by the learned Senior Counsel for the defendants is DW6 Karthiayani. She was examined by deputing a commissioner. She was cited to prove that deceased Kousalia AS No.590/2001 9 was residing with Thankappan @ Sanku in a small house situated in a land called 'Thachattu thodiyil paramba'. DW6 belonged to Chelari. She was married to one Raru. Her children are Baburajan and Prakasan. Exts.B25 and B27 are letters proved through this witness to show that name of the paramba in which she was residing is either Thachattu paramba or Thachattu thodi. Although there is some discrepancy in the name, it may not be very material for our purpose. Learned Senior Counsel for the plaintiff contended that testimony of DW6 cannot be relied on to hold that the plaintiff and 1st defendant are children born to Kousalia through Thankappan @ Sanku. Certain glaring discrepancies in the evidence of DW6, elicited at the time of cross-examination, have been pointed out by the learned Senior Counsel for the plaintiff. DW6 admitted that she deposed in accordance with the directions of defendants 2 to 5. It is also admitted by this witness that she used to get help from defendants 2 to 5 as they are neighbours. During cross-examination, this witness admitted that she was not aware of the year in which many important events in her life had taken place. This witness also admitted that deceased Sankaran was looking after the plaintiff and 1st defendant as his own children. DW6 deposed that after the death of Sankaran, all the children performed obsequies and defendants 1 and 3 did the rituals during the first ten days. It is also admitted by this witnesses that deceased AS No.590/2001 10 Sankaran did all necessary things in connection with the marriage of 1st defendant's daughter. She further deposed that deceased Sankaran loved all the children alike. As contended by the learned Senior Counsel for the plaintiff, testimony of this witness will not prove that the plaintiff and 1st defendant were not children of deceased Sankaran.
15. DW7 is yet another witness cited to prove the living in relationship between Sanku and Kousalia. DW7's father was Kannu. Kannu had four sisters. Kurumba was one among them. According to him, Kurumba was the mother of DW1 and Kousalia. He also deposed that Kousalia eloped with Thankappan @ Sanku and was not heard for a long time. It is his version that after knowing the predicament of Kousalia, he went to Baypore to meet her. At that time, DW6 informed him that Kousalia had gone for work. Two children of Kousalia were taken care of by DW6 at that time. According to DW7, those children are the plaintiff and 1st defendant. Later Sankaran married Kousalia and other children were born. It is come out in evidence that the 1st defendant, though claimed that she is the legal heir of deceased Sankaran, withdrew her application for heirship certificate. Ext.X1 is said to be a document signed and presented by the 1st defendant relinquishing her claim as legal heir of deceased Sankaran. Of course, this document is disputed by the 1st defendant. She would contend that she was caused to execute this document by AS No.590/2001 11 misrepresentation. DW7 was cross-examined at length. According to DW7, factum of marriage between Kousalia and Thankappan @ Sanku was known to him through Kousalia herself. When did he come to Calicut in search of Kousalia has not been specifically stated. This witness would depose that the plaintiff and 1st defendant did not take part in the obsequies of deceased Sankaran. But this deposition is in direct conflict with that of DW6. He admitted in cross-examination that he used to come to court on many occasions as requested by defendants 2 to 5. Regarding execution of Ext.X1 document, it was suggested to DW7 that he along with the contesting defendants falsely created a document to show that the 1st defendant withdrew her claim for heirship. It was actually represented to the 1st defendant that her signature was required for redeeming gold ornaments from a bank. This is the defence case with regard to Ext.X1. It is come out in evidence through this witness that 1st defendant's husband Sidharthan married DW7's niece earlier and that relationship was severed on account of incompatibility. It is the case of the plaintiff and 1st defendant that DW7 was enmical to them on account of this reason. Court below correctly found that the oral evidence of this witness will not establish the case of the contesting defendants.
16. DW4 is the 2nd defendant. Exts.B16 to B46 have been proved through this witness. DW5 is the 3rd defendant. They adhere to the case AS No.590/2001 12 that the plaintiff and 1st defendant are not the children of deceased Sankaran. Oral evidence of these witnesses have been effectively controverted by the testimony of PW1, the plaintiff and DW2, the 1st defendant. Through DW2, Exts.B5 to B15 were proved. Oral evidence tendered by the parties to the proceedings, asserting each one's contentions, will have to be evaluated in order to appreciate the preponderance of probabilities. That can be done with reference to the relevant documents in the following paragraphs. It is apposite to note that the testimony of DW3 supported the 1st defendant and the plaintiff as she stated that they were born to deceased Sankaran through Kousalia. DW3 denied the case of the contesting defendants that when Sankaran married, Kousalia had two surviving children. According to DW3, at the time of marriage, Kousalia had no issues and all the children were born to her in the wedlock with Sankaran. By way of recapitulation, it can be stated that it may be highly unsafe to rely only on the oral testimony of the witnesses in this case either to uphold the contentions of the plaintiff and 1st defendant or that of the contesting defendants.
17. Now we shall refer to the documents. Ext.B5 is the extract of admission register of Govt. H.S., Beypore. Name of the pupil is Retnavally. Admittedly, this pertains to the 1st defendant. Her house name shown in Ext.B5 is Vellayikot. Name and address of parent or guardian of the pupil, AS No.590/2001 13 as per Ext.B5, is Vellayikot Sankaran. Her caste, as per Ext.B5, is Hindu - Thiyya. Learned Senior Counsel for the contesting defendants contended that from Ext.B5, it is not discernible that deceased Sankaran was the parent of the 1st defendant, as he could be the guardian as well. It is the case of the contesting defendants that Sankaran was loving and caring both the plaintiff and 1st defendant as his own children. But, the fact remains that they are not the biological children of Sankran. It is to be noticed that she was admitted to school on 27.05.1960 and her date of birth as per Ext.B5 is 10.07.1947. There is no reliable material, apart from the shaky oral testimony of DWs 1, 6 and 7, to hold that Kousalia was married to Sankaran only after 1947. On going through Ext.B5, it can only be seen that Sankaran himself held out to be the parent of the 1st defendant when she was admitted in school at the age of 13 years. Ext.B5 further shows that the 1st defendant was admitted to the said school on the basis of a transfer certificate dated 17.05.1960 from another school. We can only presume legally that the informations in Ext.B5 could have been reproduction of the informations shown in the transfer certificate referred to in Ext.B5. Therefore, even before Ext.B5, deceased Sankaran proclaimed himself to be the father of the 1st defendant.
18. Ext.B6 is a registered document dated 21.04.1976 evidencing execution of an agreement between the 1st defendant and her husband AS No.590/2001 14 Sidhardhan to perform marriage in accordance with customary rites. It is produced only to show that deceased Sankaran was shown as father of the 1st defendant. The document came into existence long prior to eruption of disputes between the parties. Ext.B7 is a copy of the plaint filed by deceased Sankaran and 1st defendant's daughter Rani. In paragraph 3(2) of Ext.B7 plaint, it is clearly stated that the 2nd plaintiff in the suit is the granddaughter (ie. daughter's daughter) of the 1st plaintiff and from her birth onwards, the 2nd plaintiff was residing with her grandfather, the 1st plaintiff. That was a suit for injunction restraining the defendant therein from contracting any marriage other than the one fixed between the 2nd plaintiff and the defendant. The only point sought to be proved through Ext.B7 is that deceased Sankaran asserted in a judicial proceeding that the 1st defendant was his daughter. Ext.B8 is an invitation card in connection with the marriage of 1st defendant's daughter Rani. As grandfather of the bride, deceased Sankaran had invited guests. Ext.B9 is a marriage certificate issued by Cheruvannur Subrahmania Kshethra Samrakshna Samithi on 30.03.1996. It shows that C.K.Rani, daughter of the 1st defendant had been married to one Sreenivasan from the temple. In Ext.B9 also, she is depicted as the granddaughter of Vellayikot Sankaran. Ext.B10 is the copy of voters list produced to show that deceased Sankaran, his wife Kousalia and the 1st defendant were residing in the same house. AS No.590/2001 15 Ext.B11 is the obituary report in a news paper after the death of Kousalia. That may not have much significance as there is no dispute that the contesting parties are the children of Kousalia. Ext.B12 is another obituary report published on 13.10.1995 when Sankaran died. In that report, the plaintiff and 1st defendant are shown as the children of deceased Sankaran. Ext.B13 is an application filed by the 1st defendant before the Village Officer, Beypore claiming inclusion of her name in the legal heirship certificate, which was about to be issued on the death of Sankaran. Ext.B14 series are the applications filed before the Tahsildar for the same purpose. Ext.B15 series are the letters given by the 1st defendant to the State Bank of Travancore, Beypore branch, intimating that she is also a legal heir of deceased Sankaran.
19. Shri Balakrishna Iyer, on behalf of the contesting defendants, strongly relied on Exts.B16 to 46. Ext.B16 is the extract of birth register in respect of the 2nd defendant Remani. Father's name shown in Ext.B16 is Vellayikot Sankaran and mother's name is Kousalia. There is one column indicating as to the number of delivery. Ext.B16 shows that the 2nd defendant was the 6th child of Sankaran and Kousalia. Learned Senior Counsel for the appellants contended that if Kousalia had given birth to the 2nd defendant as 6th child, she should have given birth to five children earlier. In that case, the defence case that she had four previous AS No.590/2001 16 deliveries, when she lived with Thankappan @ Sanku, is probabilised. It is also argued that details regarding the number of delivery by a mother was insisted in the birth register by virtue of a statute. However, no such statute or rule is brought to our notice to hold that it was the duty of the parents to inform as to the number of delivery. It is also not clear as to who gave the information entered in Ext.B16. Ext.B17 is the certificate of birth in respect of Mukundan. His date of birth is 25.06.1957. In this certificate, his rank among the children is not shown. Ext.B18 is the certificate of birth in respect of one Ammu. Said Ammu was born on 14.08.1951. Place of birth mentioned in Ext.B18 is 'Thachattu parkum'. Ammu's father's name is shown as Thankappan and that of mother is shown as Kousalia. On the basis of this document, the contesting defendants wanted this Court to accept, coupled with the oral evidence of DWs 1, 6 and 7, that Ammu is another name of the plaintiff and Thankappan referred to in Ext.B18 was the person with whom Kousalia had eloped. None of the material witnesses relied on by the contesting defendants convincingly deposed that Malathy, the plaintiff, is also known as Ammu. It is well settled that a mere production of an extract of birth register will not establish the factum of date of birth of a particular person. It should be clearly shown that the entries in the certificate related to a particular person and therefore, identity of the person named in the certificate becomes greatly relevant. It can only AS No.590/2001 17 be held that there is no reliable material to hold that Ammu shown in Ext.B18 is Malathy, the plaintiff.
20. Ext.B19 is the extract of register maintained by Beypore Grama Panchayat for the year 1951. Therein, it is mentioned that Ammu is the name of a daughter born to Thankappan, a carpenter by profession and Kousalia. Their address was "Thachattu Parkum". Exts.B18 and B19 cannot be relied on, in the absence of proof that Ammu is yet another name of the plaintiff. Ext.B20 is the certificate of birth regarding Remani, the 2nd defendant. Exts.B21 and B22 are the certificates of birth of two children born to Sankaran and Kousalia though their names are not mentioned in it. Ext.B23 is the extract of birth register in respect of 3rd defendant Mukundan. He is shown as 8th child of Sankaran and Kousalia. Therefore, these documents will not prove the case of contesting defendants that the plaintiff and 1st defendant are not the children of deceased Sankaran. Ext.B29 would show that Ext.B7 suit was dismissed as not pressed. However, that will not wipe out the evidenciary value of Ext.B7. Ext.B31 is the proceedings of the Tahsildar, Kozhikode showing that the contesting defendants are the legal heirs of deceased Sankaran. However, this is a fact challenged in the suit. In this context, Ext.X1 is relevant. Ext.X1 contains a statement alleged to have been given by the 1st defendant in a proceeding relating to the issuance of a legal heirship certificate after the AS No.590/2001 18 death of Sankaran. The statement therein is strongly opposed by the 1st defendant. To prove the same, DW7 was examined. As per the disputed statement, the 1st defendant purported to have stated that herself and plaintiff are not the children of deceased Sankaran, although they were brought up by deceased Sankaran as his own children. At the time of examination as DW2, the 1st defendant repudiated the statement. That apart, testimony of DW7 is not convincing as to the circumstance under which Ext.X1 happened to be made. 1st defendant has a specific case that she was made to sign on a stamp paper in connection with the redemption of gold ornaments pledged by her father Sankaran in a bank. Learned counsel for the plaintiff contended that even if 1st defendant gave such a statement, it will not bind the plaintiff. Therefore, in the factual situation of this case, much reliance cannot be placed on Ext.X1. Ext.B34, notice issued from the State Bank of Travancore, Beypore branch, would show that the gold ornaments in B schedule were pledged by deceased Sankaran.
21. Exts.A2 and A3 are the newspaper reports showing death of Sankaran and Kousalia. Ext.A5 is the plaintiff's horoscope to show that her date of birth is 14.08.1951. That was disbelieved by the court below for want of proof. Ext.A6 school admission certificate shows that her date of birth is 25.06.1951. Ext.A7 is a registered document dated 29.03.1974, ie., AS No.590/2001 19 much before the controversy, describing the plaintiff as the daughter of deceased Sankaran. These documents would show that deceased Sankaran was holding out to the world that the plaintiff and 1st defendant along with the contesting defendants were his children. What is the effect of deceased Sankaran himself describing the plaintiff and 1st defendant as his children in the documents can be now considered.
22. In this case, there is no evidence as to the date of marriage between Sankaran and Kousalia. The contentions of contesting defendants that Kousalia eloped with Thankappan @ Sanku, that they had begotten four children in that relationship, that two of them died and that surviving children are the plaintiff and 1st defendant could not be established by oral or documentary evidence. It is all the more so because deceased Sankaran himself was treating them as his own children. This has to be viewed in the context of adducing no evidence as to the date, or at least year, of marriage between Sankaran and Kousalia, which could have been a crucial factor for determining paternity. Supreme Court in S.Ajarma Bi @ S.Hajaram Bibi and another v. S.Khurshid Begum and others (AIR 1996 SC 1663), relying on Sections 112 and 114 of the Evidence Act, held that the provisions give rise to presumption against concubinage and permit raising of presumption of legitimacy of the children born during the period of continuous cohabitation. Absence of proof to show that Sankaran AS No.590/2001 20 married Kousalia subsequent to the birth of 1st defendant and plaintiff is a vital factor in deciding their paternity. Law always favours legitimacy. Bastardity of a person is always viewed with a disfavour. We have to bear in mind the fact that deceased Sankaran proclaimed himself to be the father of plaintiff and 1st defendant long time before starting of the controversy. Therefore, we are in agreement with the trial court's view that plaintiff and 1st defendant are the children born to Kousalia through Vellayikot Sankaran.
23. The above discussion lead us to an irresistible conclusion that the court below was perfectly justified in decreeing the suit in favour of the plaintiff.
24. Now, coming to the legal effect of not filing an appeal against the rejection of the counter claim raised by the contesting defendants seeking a declaration that plaintiff and 1st defendant are not the children of deceased Sankaran and also for a prohibitory injunction, learned Senior Counsel for the contesting defendants would contend that the court below failed to raise an issue in respect of the reliefs claimed in the written statement by way of counter claim. True, the court below should have framed an issue and should have adjudicated the matter. The decisions rendered by Privy Council and various High Courts would clearly show that a court commits a grave irregularity in proceeding to adjudicate a suit AS No.590/2001 21 without settling proper issues or in deciding a case on an issue not raised on the basis of the pleadings. In some cases, it has been held that failure to frame issues would be a highest form of judicial impropriety on the part of a court. But, equally prominent is the line of thinking that when the parties are fully aware of their respective cases and lead all evidence not only in support of their case, but also in refutation of claims of other side, the non-framing of issues cannot be held to be a ground for remanding the case, unless it is fatal to the case or resulted in a mistrial, vitiating the proceedings. In this case, the contesting defendants have raised a consistent plea that the plaintiff and 1st defendant are not the children of deceased Sankaran and therefore, they have no partible right over the property and to prove that contention they have not only raised a counter claim but also adduced evidence - both oral and documentary - at the time of trial. Mere non-framing of an issue in respect of the reliefs sought in the counter claim, at least in this case, will not vitiate the trial nor will it warrant a remand. Therefore, that contention of the contesting defendants cannot be accepted in this case, that too, after elapse of 14 years.
25. Another legal flaw in the case of the contesting defendants is that they have not challenged the denial of reliefs in the counter claim. It is true that the court below did not specifically mention that the relief claimed by way of counter claim stood denied. However, that will amount to refusal AS No.590/2001 22 of a relief. This proposition is indubitable. The contesting defendants should have challenged the denial of reliefs claimed in the counter claim. As mentioned earlier, after reserving the case for judgment, two applications are filed, viz., C.M.Application No.185 of 2016 and I.A.No.832 of 2016 seeking condonation of delay in amending the appeal memorandum and for allowing the contesting defendants to add new grounds to the appeal memorandum. We have carefully gone through the applications. We do not find any merit in those applications. That apart, proper court fee thereunder is also not paid. Hence, we are of the view that both the applications are devoid of any merit and deserve dismissal only. Hence, we do so.
26. If that be so, the appeal should fail, not only for the lack of merits, but also for the fact that the claim of contesting defendants is barred by res judicata. It has been held by this Court in Mathew v. Rajan (2016 (1) KLJ 526) that unless the decree in a counter claim was challenged, it will operate as res judicata. The contention of the contesting defendants that the court below did not draft proper decree rejecting the counter claim is no answer to application of the rule of res judicata, as the aggrieved parties should have approached the court below for correcting the decree. We are of the view that after the expiry of more than 14 years, the contesting defendants cannot be heard to say that they should be AS No.590/2001 23 allowed to amend the appeal memorandum and adjudicate the matter afresh.
27. We find no reason to interfere with the finding of the court below that the plaintiff and 1st defendant are the legal heirs of deceased Vellayikot Sankaran and therefore, they are entitled to partition of the properties. The finding of the court below is legally justifiable on the basis of evidence adduced. Hence, the appeal is found to be one without any merit.
In the result, the appeal is dismissed. Considering the relationship between the parties, there is no order as to costs.
All pending interlocutory applications will stand dismissed.
ANTONY DOMINIC, JUDGE.
A. HARIPRASAD, JUDGE.
cks AS No.590/2001 24 ANTONY DOMINIC & HARIPRASAD, JJ.
A.S.No.590 of 2001 JUDGMENT 19th May, 2016