Allowed

V.Santhakumari v. N.Vasanthakumari Amma and Others

Kerala HC6 Feb 2013Mat.Appeal/15/2012

Case brief

AI extract

What is this about?

The Court allowed the matrimonial appeal against the Family Court's order, declaring the appellant as the sole surviving widow of the deceased Sasidharan Pillai and holding that she along with two children of the first respondent are his legal heirs, setting aside the lower court's dismissal.

What did the court decide?

The impugned order by the Family Court is set aside; declaration that the appellant is the sole surviving widow and that she and the children of the 1st respondent are legal heirs of the deceased is g

V.Santhakumari Vs N.Vasanthakumari Amma and Others — Succession and Inheritance | Kerala HC (2013)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE PIUS C.KURIAKOSE &

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THE HON'BLE MR. JUSTICE P.D.RAJAN

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WEDNESDAY, THE 6TH DAY OF FEBRUARY 2013/17TH MAGHA 1934

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Mat.Appeal.No. 15 of 2012 ()

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AGAINST THE ORDER/JUDGMENT IN OP.162/2011 of FAMILY COURT,KOZHIKODE DATED 05-11-2011

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APPELLANT/PETITIONER:

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V.SANTHAKUMARI AGED 60 YEARS W/O.LATE SASIDHARAN PILLAI, RESIDING AT SANTHA NIVAS CHEVARAMBALAM, CALICUT.

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BY ADVS.SRI.V.V.SURENDRAN

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SRI.P.A.HARISH

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SMT.RESMI NANDANAN RESPONDENT(S)/RESPONDENTS:

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1. M.V.VASANTHAKUMARI AMMA, D/O.RUKMINI AMMA, VIJAYAMANDIRAM, POZHIKKARACHERIYIL PARAVOOR VILLAGE, KOLLAM-691301.

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2. MADHUSOODANAN PILLAI S/O.BHASKARAN PILLAI, VIJAYAMANDIRAM POZHIKKARACHERIYIL, PARAVOOR VILLAGE, KOLLAM-691301.

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(DELETED FROM THE PARTY ARRAY AT THE RISK OF THE APPELLANT AS PER ORDER DATED 05.09.12 IN MA 15/12)

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3. OFFICER IN CHARGE OF SIGNAL ABHILAKH KARYALAYA SIGNALS RECORD (NER GROUP), POST BAG NO.5, JABALPUR MADHYAPRADESH.

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4. THE MANAGER INDION OVERSEAS BANK, MEDICAL COLLEGE BRANCH KOZHIKODE-673008.

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SUDHEER S/O.VASANTHAKUMARI AMMA, RESIDING AT VIJAYAMANDIRAM POZHIKKARACHERIYIL, PARAVOOR VILLAGE, KOLLAM-691301.

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SUDHA @ SEENA D/O.VASANTHAKUMARI AMMA, RESIDING AT VIJAYAMANDIRAM POZHIKKARACHERIYIL, PARAVOOR VILLAGE, KOLLAM-691301.

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R1 BY ADV. SRI.V.VENUGOPALAN NAIR R BY ADV. SRI.P.PARAMESWARAN NAIR,ASG OF INDIA

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THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 06-02-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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Mat.Appeal.No. 15 of 2012 ()

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APPENDIX

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Ext.A24: MARRIAGE RELEASE DEED DATED 21.1.1992 REGISTERED AS DOCUMENT NO.8/1992.

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TRUE COPY

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PA TO JUDGE.

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PIUS.C. KURIAKOSE &

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P.D. RAJAN, JJ.

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Mat.Appeal No.15 of 2012

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Dated this the 6^th day of February, 2013

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JUDGMENT

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Pius.C. Kuriakose, J.

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This appeal is filed against the order passed by the Family Court, Kollam dismissing O.P.No.162/2011 filed by the appellant. The 1^st respondent in the original petition is one Vasantha Kumari, who held herself out to be the wife of one Sasidharan Pillai. Additional respondent Nos.5 and 6 are the children of the above Sasidharan Pillai born to him in the 1^st respondent. The prayer in the O.P. filed by the appellant was that the appellant be declared as the only widow of late Sasidharan Pillai and as the only legal heir of late Sasidharan Pillai. The contention urged by the appellant regarding validity of the relationship between late Sasidharan Pillai and the 1^st respondent was that the so called marriage agreement executed between Sasidharan Pillai and the 1^st respondent and registered with Paravoor Sub Registry as

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Mat. Appeal No.15/12

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document No.55/1971 will not constitute a valid marriage and therefore, the relationship between late Sasidharan Pillai and the 1^st respondent can only be that of the man and concubineillicit cohabitation. According to the appellant, she is the lawfully wedded wife of Sasidharan Pillai and she relies on certificate of marriage No. 10/1993 issued by the Marriage Officer, Kozhikode, which shows that the marriage between Sasidharan Pillai and the appellant is solemnized on 10.11.1993 under the provisions of the Special Marriage Act. The appellant relied on a marriage release deed dated 21.1.1992 executed between late Sasidharan Pillai and the 1^st respondent registered with the Paravoor Sub Registry as document No.8/1992 so that whatever relationship was there between late Sasidharan Pillai and the 1^st respondent, the same has been terminated on 20.1.1992 and that it was thereafter only that Sasidharan Pillai married her under the provisions of the Special Marriage Act. Even though the learned counsel for the appellant submitted before us that the marriage release deed No.8/92 was marked in evidence, we find that, even though the above document is referred to in the proof affidavit submitted by PW1 as the very first document,

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Mat. Appeal No.15/12 3

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actually, the above document has not been marked in evidence. This is obviously on account omission on the part of the court. But, in the pleadings raised by the 1^st respondent, we find that, the existence of that document is not in dispute. The contention raised by the 1^st respondent is that she subscribed her signature to that document on the representation of her husband that the document is executed for facilitating the obtainment of a job for her son in the army. In other words, the contention regarding this document is one of non est factum. We are justified in marking the above document as additional item of evidence on the side of the appellant. This is because we find that the above document was produced along with the original petition itself. The 1^st respondent had an opportunity to peruse that document and deny the same. The contention raised by her, as already indicated is non est factum. The document is therefore, marked by us as Ext.A24.

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We have carefully gone through the impugned order. We find that before the court below, there is evidence only on the side of the appellant. Not even formal counter evidence was adduced by the respondents. The court below

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Mat. Appeal No.15/12

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denied reliefs to the appellant mainly on the basis of a finding that the paternity of the two children, additional respondents 5 and 6, born to the 1^st respondent was not disputed even by the appellant. Therefore, according to the court below, the appellant's prayer that she is the sole legal heir of deceased Sasidharan Pillai cannot be granted, as in law, even illegitimate children are entitled to succeed to the estate of their father. The view of the court below that the appellant cannot be the sole legal heir of the deceased Sasidharan Pillai is quite correct. But, on that reason alone, the appellant should not have been completely non suited. The appellant had a further prayer for a declaration that she is the only widow in the sense that she is the only lawfully wedded wife of the deceased Sasidharan Pillai.

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We have carefully gone through Ext.A2 document under which the so called marriage between Sasidharan Pillai and the 1^st respondent is conducted. What is stated therein is that Sasidharan Pillai and the 1^st respondent have become husband and wife by virtue of the above document. The above document is only a contract of marriage. That document does not reveal any customary marriage. In Ext.A24 also, there is

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Mat. Appeal No.15/12

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no reference to any customary marriage or marriage in any other lawful form having taken place between Sasidharan Pillai and the 1^st respondent before or after Ext.A2. The above discussion will lead us to the inevitable conclusion that the appellant is entitled to have the following declarations:

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i) That she is the sole surviving widow of deceased Sasidharan Pillai.

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ii) That she along with respondents 5 and 6 are legal heirs of deceased Sasidharan Pillai.

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The appeal is allowed. The impugned order is set aside. O.P.No.162/2011 is allowed to the following extent declaring that the appellant is the sole surviving widow of deceased Sasidharan Pillai and declaring further that the appellant along with respondents 5 and 6 are legal heirs of deceased Sasidharan Pillai. The parties will suffer their respective costs .

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PIUS.C.KURIAKOSE,JUDGE

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P.D. RAJAN, JUDGE.

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acd

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Mat. Appeal No.15/12 6

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Mat. Appeal No.15/12 7

V.Santhakumari v. N.Vasanthakumari Amma and Others

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V.Santhakumari v. N.Vasanthakumari Amma and Others

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