SA/417/1989 of KUMARAN Vs SREEDHARAN on 11 February 1998

JUDGMENT

Plaintiffs in O.S.536 of 1976 on the file of Munsiff Court,Paravur are appellants. First appellant is the mother andsecond appellant, her minor child. Respondents are thedefendants. Sixth respondent is the mother and respondents 1to 5 are her children. Apart from respondents 1 to 5, sixthrespondent had another son by name, Tyagarajan. The case ofthe appellants was that Tyagarajan legally married her at herhouse on 28.12.1974 in accordance with the custom prevailingin their community and on 25.11.1975 while they were living ashusband and wife, Tyagarajan died and later second appellantwas born on 28.12.1975 to first appellant and Tyagarajan.Appellants contended that plaint schedule property wasalloted to the share of Tyagarajan under Ext.A1 partition deed.Appellants instituted the suit seeking declaration of their titleto the plaint schedule property as legal heirs of deceasedTyagarajan and for recovery of possession with mesne profitsfrom respondents.

2. First respondent filed a written statement denying thecontentions raised in the plaint. It was contended that first

appellant is not the legally wedded wife of Tyagarajan andsecond appellant is not the son born to Tyagarajan and therewas no marriage as alleged and they were not living as husbandand wife. It was also contended that when first appellantbecome pregnant there was an attempt to settle the paternityof second appellant and on 21.11.2005, Tyagarajan did notreach home as usual and on enquiry it was found that he wasbeing detained by one Paramu at his house and firstrespondent reached there and found appellants and othersattempting to obtain signature in the SNDP register and thatattempt was foiled by the timely intervention of firstrespondent and on 25.11.1975, Tyagarajan on his way toParavur was taken away by appellants to the Police Station andunder threat he was compelled to execute a document andappellants have no right to claim the properties of Tyagarajanand therefore the suit is to be dismissed.

3. Learned Munsiff framed necessary issues. On the sideof appellants, first appellant was examined as PW1 and aneighbour was examined as PW2. The husband of fourthdefendant was examined as PW3. Exts.A1 and A2 were marked.On the side of first respondent, DW1 was examined and Ext.B1was marked. Learned Munsiff, on the evidence found thatevidence of PWs 2 and 3 cannot be believed and their evidence

is insufficient to corroborate the evidence of PW1 with regardto the marriage. Learned Munsiff, also found that appellantsfailed to establish that first appellant is the legally wedded wifeand second appellant the son of deceased Tyagarajan andtherefore dismissed the suit. Appellants challenged the decreeand judgment before Sub Court, North Paravur in A.S.17/1982.The first appellate court elaborately considered the evidence.On re-appreciation of evidence, learned Sub Judge found thatevidence of Pws 2 and 3 cannot be believed and evidence ofPW1 does not establish any legal marriage or that secondappellant is the child born in her relationship with Tyagarajanand therefore confirmed the decree and judgment passed bylearned Munsiff and dismissed the appeal. It is challenged inthis second appeal.

4. This court without formulating substantial questions of law, as per judgment dated 17.11.1997, on reappreciatingfacts and evidence, allowed the second appeal. It waschallenged before the Apex Court in Civil Appeal No.4394 of2000. The Hon'ble Supreme Court, holding that theconcurrent findings of the trial court and first appellate courtwere reversed without even formulating any substantialquestion of law, set aside the judgment of this court andremanded the second appeal for fresh disposal after

formulating substantial question of law, if any, arising in thecase.

5. Learned counsel appearing for appellants andrespondents were heard. The evidence was also perused.

6. The deceased Tyagarajan who admittedly died on 25.11.1975 under suspicious circumstances, is the son of sixthrespondent and brother of respondents 1 to 5. The evidence offirst respondent as DW1 that deceased Tyagarajan was livingwith him till his death was not challenged at the time ofevidence. Therefore it is to be taken that deceased Tyagarajanwas living along with first respondent. The case of appellantswas that deceased Tyagarajan married her in in accordancewith the custom prevailing in their community, on 28.12.1974and they were living as husband and wife and second appellantwas born in that lawful wedlock. The marriage and paternityof second appellant and the fact that Tyagarajan and firstappellant were living together were all denied by respondents.Definitely, burden is on the appellants to establish the legalmarriage and that second appellant was born in herrelationship with deceased Tyagarajan .

7. To prove the legal marriage apart from examiningherself as PW1, two witnesses were examined. Learned Munsiffand learned Sub Judge elaborately considered the evidence of

each of them and found that their evidence cannot be believed.PW2 was admittedly a neighbour of the appellants. Accordingto PW2, Tyagarajan was residing one and a half kms awayfrom his house. PW2 was examined to prove that heparticipated in the marriage. Appreciating the evidence ofPW2, learned Munsiff and learned Sub Judge found that hiscase that he was present at the time of marriage cannot bebelieved. The question is whether there is any reason to holdthat appreciation of evidence was not proper and whether anymaterial was omitted to be appreciated or any fact wasmisappreciated. Being a neighbour if there was a marriage asclaimed by the appellants, presence of PW2 at the marriage isquite natural. But while considering the question whetherthere was a marriage, evidence of PW2 has to be scrutinized inthe proper perspective. If the case of PW2 was that he waspresent at the time of marriage, being a neighbour and beinginvited by either first appellant or her parents, his case couldhave been appreciated. But that is not the case of PW2.According to PW2, he was present at the marriage, as he wasinvited by deceased Tyagarajan . The further examination ofPW2 establish that he has no such close contact with PW2. If,in fact the marriage of first appellant was conducted asclaimed by appellants, against the objection of family of

Tyagarajan and that too when the relatives of Tyagarajan didnot participate, this fact would have been definitely known toPW2 and would have been deposed by PW2. On the other hand,as rightly appreciated by courts below, PW2 expressedignorance about these matters. I find no reason to differ withthe appreciation of evidence of PW2 by the courts below.

8. PW3 is none other than the husband of fourthrespondent. It was argued that evidence of PW3 establishesthat first appellant and deceased Tyagarajan had stayed in thehouse of fourth respondent and PW3 for four days as husbandand wife and evidence of a close relative of Tyagarajan cannotbe ignored and courts below should have accepted theevidence. Both the courts have given cogent and sufficientreason to disbelieve the evidence of PW3. It was brought outfrom PW3 that the relationship between first respondent andfourth respondent was strained. Evidence establish that evenbefore Ext.B1 partition relationship was strained. A suit forpartition was filed by fourth respondent and after execution ofExt.B1 partition, that case was settled and even thereafter therelationship continued to be strained. It was admitted by PW3that Ext.B1 petition was filed by fourth respondent against firstrespondent alleging that an areca tree was cut and damage wascaused by first respondent. In such circumstances the finding

of courts below that there are sufficient reasons for PW3 todepose against the respondents is perfectly correct. Moreover,evidence of PW3 does not inspire any confidence. Even thoughPW3 deposed that Tyagarajan married first appellant, he hasno case that he was present at the time of marriage. Accordingto PW3, he was told about the marriage by Tyagarajan and thattoo in January or February 1975, when according to appellants,marriage was on 28.12.1974. PW3 also deposed that he did noteven see the deadbody of Tyagarajan. The explanation of PW3for not attending the funeral was that his presence will beresisted by respondents. That is sufficient to prove that hisrelationship with Tyagarajan or respondents was not at allcordial. A proper appreciation of evidence of PW3 establishthat he cannot be relied on to find either the fact of marriageor the fact that the first appellant and deceased Tyagarajanwere living together as husband and wife. Even though PW3deposed that deceased Tyagarajan along with first appellantstayed in their house, for three or four days after marriageeven when examined as PW1 first appellant had no such case.Therefore I find no reason to differ with the appreciation ofevidence of PW3.

9. Then what remains is only the evidence of PW1.Though PW1 claimed that there was a marriage in accordance

with the custom prevailing in their community on appreciatingthe evidence courts below found that there was no suchmarriage. Though nothing was mentioned about Ext.A2marriage agreement between the first appellant andTyagarajan in the plaint, at the time of evidence it wasbrought out that Ext.A2 registered agreement was enteredinto on 25.11.1975. Ext.A2 was executed and registered at 2.50pm on 25.11.1975. Admittedly, Tyagarajan died on the sameday. According to PW1, Tyagarajan died at about 3 pm.Whatever be the time, the fact that his deadbody was found, onthe way near a paddy field was admitted by both parties. Whenexamined as DW1, first respondent deposed that he consumedpoison and committed suicide. That aspect was also not crossexamined. It is true that though respondents challengedExt.A2 on the ground that it was vitiated by coercion and forceexerted by appellants, as no acceptable evidence was adducedin support of that case, courts below rightly rejected that case.Ext.A2 agreement only shows that deceased Tyagarajan andfirst appellant, on the date of his death, had agreed to livetogether as husband and wife and not to terminate therelationship except through court or by mutually agreeddocument. Ext.A2 will not create a legal marriage. If in factthere was a marriage on 28.12.1974, as claimed by appellants,

and Tyagarajan and first appellant were living as husband andwife, such a recital would have been shown in Ext.A2. Ext.A2does not show that before that date, there was any relationshipbetween them or that they were living as husband and wife. Onthe other hand, Ext.A2 only evidences a decision to livetogether as husband and wife from that date onwards which iscontrary to the case pleaded and sought to be proved. Whenthe entire evidence is appreciated, I cannot agree with theargument of the learned counsel appearing for the appellantsthat appreciation of evidence by courts below was eitherperverse or improper warranting interference in exercise ofpowers of this court under Section 100 of Code of CivilProcedure. I find no substantial question of law involved in theappeal or any merit in the appeal. Appeal is dismissed.

M.SASIDHARAN NAMBIAR, JUDGE

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