Research › Browse › Judgment

Kerala High Court · body

1985 DIGILAW 155 (KER)

THOMAS P. VARGHESE v. SUKESH THOMAS VARGHESE

1985-06-04

BALAKRISHNA MENON, SUKUMARAN

body1985
Judgment :- 1. This appeal at the instance of the 2nd defendant is directed against the preliminary decree passed by the lower court for partition and separate allotment of 1/5 share in the suit properties to the plaintiffs. 2. The suit properties belonged to one Thomas Pookoyikal. Kora Eapen Varghese and George Varghese (both deceased), and defendants 1 to 3 are his sons. Defendants 5 to 7 are his daughters of whom the 7th defendant is even now a spinster. The plaintiffs and the 12th defendant claim to be the legal heirs of deceased Kora Eapen Varghese and seek partition and separate allotment of one out of 5 shares in the suit properties that would fall to the share due to him. The suit is contested by defendants 2 and 5 to 8, the 8th defendant being the alienee of item 4 from the 4th defendant. The 4th defendant is the son and legal heir of deceased George Varghese. According to the contesting defendants, the 12th defendant was not the wife and plaintiffs 1 to 3 are not the legitimate children of Kora Eapen Varghese entitled to inheritance under the Travancore Christian Succession Act, 1092. They set up a partition Ext. Al dated 7-3-1973 among defendants-1 to 7 as per which some properties have been allotted to the plaintiffs in consideration of the fact that they are the children of Kora Eapen Varghese. The defendants contend that the plaintiffs have no legal right to claim partition and seek to uphold Ext. Al as a reasonable settlement among the legal heirs of Thomas Pookoyikal. The court below found that the plaintiffs are the legal heirs of deceased Kora Eapen Varghese and they are not bound by Ext. Al partition to which they are not parties. A preliminary decree was therefore passed declaring the plaintiffs' right to partition and separate allotment of 1/5 share in the plaint schedule properties subject to a charge for Sthreedhanam due to defendants 5 to 7, under S.28 of the Travancore Christian Succession Act. A provision is made in the preliminary decree permitting defendants 5 to 7 to pay the requisite court-fee to enforce the charge. There is a further direction that in making division, plaint item 4 will not be allotted to the share of the plaintiffs as far as possible for the reason that the said item bad been alienated to the 8th defendant. There is a further direction that in making division, plaint item 4 will not be allotted to the share of the plaintiffs as far as possible for the reason that the said item bad been alienated to the 8th defendant. The plaintiffs were allowed proportionate share of profits from those among the defendants found to be in possession of the plaint items. The quantum of profits was left to be decided at the stage of passing the final decree. The plaintiffs' right to the 1/5 share was made subject to the rights of their mother the 12th defendant under the Travancore Christian Succession Act. It is against the preliminary decree declaring the plaintiffs' right to 1/5 share in the suit properties that the 2nd defendant has come up in appeal. 3. The 5th defendant has filed a memorandum of cross-objections in so far as the decree of the court below has set aside the allotment of properties to defendants 5 to 7 under Ext. Al. 4. Learned Counsel Sri. C M. Kuruvilla submits that the plaintiffs are not shown to be the legal heirs of deceased Kora Eapen Varghese. It is however conceded that plaintiffs 1 to 3 are the children of the 12th defendant born to Kora Eapen Varghese. The submission is that the 12th defendant was a Hindu female living with Kora Eapen Varghese and children born, in the absence of a valid marriage are not legal heirs of the deceased under the Travancore Christian Succession Act. 5. Counsel relies on S.5 of the Act which defines the expressions 'son', 'daughter' etc. as relating only to the legitimate relatives. Reliance is also placed on Exts. X1 and X2 in support of the submission that the plaintiffs are not the legitimate children of Kora Eapen Varghese. Ext.X2 is an extract of the Baptism Register, maintained in the Marthoma Church, Chengannur, which would show that the 12th defendant and plaintiffs 1 and 2 were baptised on 30-10-1958. Ext X1 is the extract of the marriage register maintained in the same Church produced to show that the marriage between Kora Eapen Varghese and the 12th defendant was only on 30-10-1958. As per S.25 of the Christian Succession Act, sons and daughters are legal heirs in the first group entitled to inherit the estate of a deceased Christian. Ext X1 is the extract of the marriage register maintained in the same Church produced to show that the marriage between Kora Eapen Varghese and the 12th defendant was only on 30-10-1958. As per S.25 of the Christian Succession Act, sons and daughters are legal heirs in the first group entitled to inherit the estate of a deceased Christian. S.28 however restricts the right of the daughter to get only Sthreedhanam fixed at one fourth the value of the share of a son or Rs.5.000/-whichever is less. In the absence of a son however, the daughter is entitled loan absolute estate by way of inheritance under S.25 of the Act. The evidence in the case clearly shows that Kora Eapen Varghese and the 12th defendant were living together as man and wife until his death in 1959 and plaintiffs 1 to 3 are the children born to them We have not been told of anything in the Christian Law prohibiting a Christian male from marrying a female following any other religion. 6. A Full Bench of the Travancore High Court in the decision in Sirkar v. Matthu Kuruvila and another (1895) 11 T.L.R. 33) has stated that so far as the Syrian Christians in Travancore are concerned, there is cogent evidence that they do not consider the Canon law as binding on them. There is a presumption of marriage when the evidence shows that the man and woman concerned were living together for a considerable length of time The Supreme Court in Gokul Chand v. Parvin Kumari (A.I R.1952 SC.231) said: "It is well-settled that continuous cohabitation for a number of years may raise the presumption of marriage." The same view is reiterated in Badri Prasad v. Dy. Director Consolidation (A.I.R.1978 SC. 1557) in the following words: "A strong presumption arises in favour of wedlock where the parties have lived together for a long spell as husband and wife". One of us (Sukumaran J.) in a recent decision in Janaki Amnia v. Rama Warrier (1985 KLT. 283) had occasion to apply the above presumption following the aforesaid decisions of the Supreme Court. 1557) in the following words: "A strong presumption arises in favour of wedlock where the parties have lived together for a long spell as husband and wife". One of us (Sukumaran J.) in a recent decision in Janaki Amnia v. Rama Warrier (1985 KLT. 283) had occasion to apply the above presumption following the aforesaid decisions of the Supreme Court. In the present case the evidence is only one way and it is not disputed by the contesting defendants that Kora Eapen Varghese and the 12th defendant were living together for a considerable length of time until his death in 1959 and plaintiffs 1 to 3 are the children born to them. The mere fact that at a late stage they thought it necessary for the 12th defendant to have a conversion into Christianity and to go through a form of marriage in church does not in any way detract the presumption arising out of long cohabitation of the parties concerned. Ext.A1 dated 7-3-1973 is a registered document of partition to which defendants 1 to 7 are parties. They have in unmistakable terms admitted the status of the plaintiffs as legal heirs of deceased Kora Eapen Varghese and some properties are seen allotted towards their share even though they are not parties to the document. The admission contained in Ext. Al as to the status of the 12th defendant and the plaintiffs as wife and children of Kora Eapen Varghese is not explained by any of the parties to the document. The 5th defendant examined as D.W.5 has clearly admitted the status of the plaintiffs as children of deceased Kora Eapen Varghese. We therefore overrule the contention that the plaintiffs are not the legitimate children of deceased Kora Eapen Varghese. 7. The 3rd plaintiff was born only on 29.5.1959 after the marriage evidenced by Ext. Al was gone through by Kora Eapen Varghese and the 12th defendant on 30-10-1958. Her legitimacy cannot at all be questioned for the reason that she admittedly is born under a valid marriage between Kora Eapen Varghese and the 12th defendant. Even if the submission on behalf of the appellants that plaintiffs 1 and 2 are not proved to be the legitimate sons of Kora Eapen Varghese is to be accepted, the 3rd. plaintiff and the 12th defendant will nevertheless be bis legal heirs entitled to an absolute estate in the inheritance. Even if the submission on behalf of the appellants that plaintiffs 1 and 2 are not proved to be the legitimate sons of Kora Eapen Varghese is to be accepted, the 3rd. plaintiff and the 12th defendant will nevertheless be bis legal heirs entitled to an absolute estate in the inheritance. The preliminary decree passed by the court below for partition and separate allotment of 1/5 share in favour of plaintiffs 1 to 3 subject to the rights of the mother the 12th defendant under the Travancore Christian Succession Act, is perfectly valid and cannot be interfered with. 8. Counsel for the cross-objector the 5th defendant submits that even if the plaintiffs and the 12th defendant are not bound by Ext. Al and the allotment of properties thereunder cannot affect their right to claim partition, defendants 1 to 7 being the executants of the document are bound by the same and the allotment of properties to defendants 5 to 7, cannot be annulled for the benefit of defendants 1 to 4, in granting a decree for partition in favour of the plaintiffs. There is force in this submission. The plaintiffs are entitled to their 1/5 share separately allotted ignoring the partition Ext. Al. Ext. Al however is binding on the parties thereto. The allotment of properties to defendants 5 to 7 cannot be interfered with except to the extent required to give relief to the plaintiffs. We need hardly state that the plaintiffs will be entitled to their 1/5 share separately allotted irrespective of the mode of allotment of properties made under Ext. Al. Now that we have found that defendants 1 to 7 are bound by Ext. Al, the allotment of properties to defendants 5 to 7 under the said document need not be disturbed except to the extent found necessary for allotment of properties to the plaintiffs' share at the final decree stage. The decree granting a charge for Sthreedhanam admissible under S.28 of the Travancore Christian Succession Act in favour of defendants 5 to 7 is to be deleted and we do so. The preliminary decree is modified accordingly. We dismiss the appeal and allow the memorandum of cross objections to the above extent. There will be no order as to costs.