Allowed

Valliyamma v. Velayudhan

Kerala HC7 Feb 2013SA/723/2000

Case brief

AI extract

What is this about?

In a second appeal regarding a partition suit, the Kerala High Court restored the trial court's preliminary decree. The court held that respectable witnesses established the marriage and paternity, and admitted additional school admission records to corroborate the evidence, allowing the appellants their shares. The second appeal was allowed.

What did the court decide?

The second appeal was allowed and the preliminary decree granted by the trial court was restored.

Valliyamma Vs Velayudhan — Partition | 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 N.K.BALAKRISHNAN

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THURSDAY, THE 7TH DAY OF FEBRUARY 2013/18TH MAGHA 1934

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SA.No. 723 of 2000 (C)

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---------------------AGAINST THE JUDGMENT IN AS.77/1999 of I ADDL.SUB COURT, THRISSUR DATED 22-12-1999

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AGAINST THE JUDGMENT IN OS.479/1992 of MUNSIFF COURT,CHAVAKKAD DATED 19-06-1995

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APPELLANT(S):

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1 VALLIYAMMA, W/O. THOTTAPPILLY CHANDRAN THANAVEEDI DESOM, MULLASSERY AMSOM CHAVAKKAD TALUK

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2 PRASHEETHA, D/O. VALLIYAMMA THANAVEEDI DESOM, MULLASSERY AMSOM CHAVAKKAD TALUK

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BY ADVS.SRI.P.K.ASHOKAN SRI.RAJESH NAIR SRI.M.R. VENUGOPAL SMT.SEENA RAMAKRISHNAN

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RESPONDENT(S):

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1 VELAYUDHAN, S/O. PARAN, THOTTAPPILLY HOUSE THANAVEEDHI DESOM, MULLASSERRY AMSOM CHAVAKKAD TALUK

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2 SANTHA, W/O. GOPI, THACHAPPILLY PARAYIL HOUSE MULLASSRRY AMSOM, CHAVAKKAD TALUK

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3 KALLYANI, D/O. SANKARAN, KOTTAKKAL POOVASSERY HOUSE, MULLASSERRY AMSOM CHAVAKKAD TALUK

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R, BY ADV. SRI.N.J.JOHNSON

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THIS SECOND APPEAL HAVING BEEN FINALLY HEARD ON 07-02-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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das

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N.K.BALAKRISHNAN, J.

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================== S.A. No. 723 of 2000

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========================= Dated this the 7^th day of January, 2013

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JUDGMENT

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Plaintiffs in a suit for partition are the appellants. A preliminary decree was passed by the trial court. In the appeal filed by the defendants, it was reversed. The case of the plaintiffs can be stated thus:

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The plaint schedule property belonged to Chandran. According to the plaintiff, she was married by Chandran and in that wedlock the second plaintiff was born to her. When Chandran died his mother was alive. Hence, the right over the plaint schedule property devolved upon the plaintiffs 1 and 2 (the wife and daughter of Chandran) and the mother. Chandran's mother died subsequently. Her right over the property devolved upon the defendants who are the father and sisters of Chandran (the husband and daughters of the

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S.A No.723/2000

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deceased mother of Chandran). Thus defendants would be entitled to get 1/6 share each. The plaintiffs are entitled to get 2/6 share each. The plaint schedule property measures about 68 cents. Plaintiffs sought for partition of the same.

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The defendants contended that Chandran died as a bachelor and that the first plaintiff was not the wife and the second plaintiff was not the daughter of Chandran and as such the plaintiffs have no right to seek for partition and thus prayed for dismissal of the suit.

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PW1 to PW5 were examined and Exts.A1 to A4

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were marked on the side of the plaintiffs. The first defendant was examined as DW1 and two other witnesses were examined as DW2 and DW3. Ext.B1 the ration card was also marked on the side of the defendants.

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The learned Munsiff after analysing the evidence, held that the plaintiffs are the wife and daughter of deceased Chandran and accordingly a

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preliminary decree for partition was passed. In the preliminary decree, the trial court found that the wife and daughter of the deceased Chandran were together entitled to get 21/27 shares and the defendants 1 and 2 were together entitled to get 6/27 shares.

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The appellate court found that there is inconsistency in the evidence given by PW1 regarding the marriage. It was also found that the plaintiffs did not produce any document to show that the first plaintiff was living with Chandran in his house. Ext.B1 ration card did not show the names of plaintiffs as the persons residing in that house. The fact that the extract of the school admission register showing the admission of PW2 in the school was not produced was also taken note of to hold against the appellants.

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The following substantial question of law has been framed:

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Is the lower appellate court right in

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reversing the finding entered by the trial court regarding the factum of marriage and the paternity of PW2 ignoring the acceptable evidence of PWs 3 to 5 ?

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The learned counsel for the appellants submits that the evidence given by PWs 1 and 3 to 5 regarding the marriage between PW1 and Chandran could not be effectively controverted by the defendants. DW1 himself has admitted that PWs 3 to 5 are respectable persons of that locality. There was no reason for PWs 3 to 5 to speak against the defendants. There was also no reason for making a false entry in the school admission register, evidenced by Ext.B1 in the year 1989, and prior to that. It is also submitted that there is no case for the defendants that plaintiffs had any animosity towards the defendants or that some other persons having animosity towards the defendants had persuaded PWs 1 and 2 to file a suit against the defendants. It is further argued that the marriage in this case took place somewhere in

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At that point of time, there was no practice of registration of marriage and as such there was no occasion for having any document pertaining to the marriage. Therefore, the fact that there was no document evidencing marriage cannot be a reason to hold that there was no legal marriage between PW1 and Chandran.

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Though a vague contention was raised by the defendants during the examination of PW1 that PW1 was elder to Chandran when PWs 1 and 3 to 5 were examined no specific question was put to the effect that PW1 was elder to Chandran or that it was highly improbable that a marriage would have taken place. PW5 has stated that at the time of marriage Chandran might have been aged 2425 years and when questions were put later PW5 stated that PW1 might have been aged 25-27 years at the time of marriage. The learned counsel submits that, that slight inconsistency cannot be projected to contend that

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PW1 was elder to Chandran. In the absence of any specific pleading regarding the same and when no specific question was put to PWs 1, 3 and 4 it cannot be projected as a circumstance improbabilising the case of marriage put forward by PW1, the learned counsel submits.

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PW3 has stated that PW2 is the daughter of deceased Chandran. PWs 3 to 5 also deposed that PW2 is the daughter of deceased Chandran born to PW1. An attempt was made by the defendants to contend that PW2 was the daughter born to PW1 through her first husband. But the evidence would show that Vazhappally Apputty, the first husband of PW1 was alive at the time when PW2 was born or when PW2 might have been conceived. It was asserted by PW1 that Apputty died about 25 years prior to her examination in Court. She was examined in Court on 02.06.1995. PW2 was aged about 22 years as on that date. Those aspects could not be effectively

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controverted. Therefore, the attempt made by the defendants to contend that PW2 is not the daughter of Chandran born to PW1 cannot be accepted. These aspects were highlighted by the trial court to hold that the evidence given by PWs 1 and 3 to 5 regarding the marriage infuses confidence and that PW2 is the legitimate daughter of Chandran born to PW1 and as such, the argument to the contrary advanced by the defendants is found unacceptable.

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It is argued by the learned counsel for the appellant that the evidence regarding the marriage and the birth of PW2 was mainly based on the oral evidence given by the respectable persons who are examined as PWs 3 to 5. The trial court had the opportunity to watch the demeanor of those witnesses and to assess their evidence properly and so the appellate court was not justified in upsetting that finding without any valid reason. When the decision in a particular case depends

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upon the credibility and acceptability of the oral evidence tendered by the witnesses, primacy should be given to the finding entered by the trial court on those aspects since the trial court would be in a better position to assess the evidence correctly watching the demeanor and conduct of the witnesses and also from such attendant circumstances. Therefore, the learned counsel for the appellants would submit that the lower appellate court was not justified in toppling the case of the appellants.

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It is true that Ext.A2 the birth certificate was obtained by the plaintiff after the filing of the suit and hence, much credence cannot be attached to that document.

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Before this court an application has been filed by the appellants to receive in evidence the extract of School Admission Register. The learned counsel submits that this document would show that PW2 the daughter of Chandran was admitted in the Hindu L.P.School,

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Mullassery East on 25.05.1978 and that her date of birth was 15.04.1973. This has been produced to show that even in 1978 when PW2 was got admitted in the school, her father was shown as Chandran mentioned above and that PW1 was shown as her mother. It is further argued that the evidence would show that based on the Transfer Certificate issued from the U.P.School mentioned above, she was admitted in Govt. High School Mullassery. There also, the date of birth of PW2 was shown as 15.04.1973. PW2 had her education at Government High School, Mullassery as evidenced by Ext.A4, that is, the extract of Administration Register, issued by the Head Master. That fact does reconcile with the factors noted in Ext.A5 as well. Though usually at the stage of the second appeal, such a document should not be received, since even to receive additional evidence before the first appellate court, the requirements under Rule 27 of Order 41 are to be satisfied, considering the exceptional

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circumstance pointed out in this case and also to have a proper adjudication of the issue and to do complete justice to the parties the document filed as per I.A.435/2013 has been received in evidence and is marked as Ext.A5. It is made clear that this judgment is not founded on Ext.A5 which is marked today, but it has been received only as an additional piece of evidence to fortify the plaintiff's case.

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As has been mentioned earlier, the evidence given by PWs 3 to 5 the respectable persons in the locality who corroborated the evidence of PW1 regarding the marriage between PW1 and Chandran and the birth of PW2 in that wedlock is found reasonable and acceptable as found by the trial court.

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Hence, this second appeal is allowed. Preliminary decree granted by the trial court will stand restored.

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N.K.BALAKRISHNAN, JUDGE

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das

Valliyamma v. Velayudhan

Case brief

What is this about?

What did the court decide?

Valliyamma v. Velayudhan

Case brief

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