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2016 DIGILAW 1090 (KER)

Prabhavini Devi v. Sudha

2016-12-13

K.HARILAL

body2016
JUDGMENT : K. Harilal, J. The appellants are the plaintiffs in O.S. No.148 of 1985 on the files of the Munsiff's Court, Parappanangadi, and the appellants in A.S. No.55 of 1995 on the files of the Sub Court, Tirur, which was filed challenging the judgment and decree, dismissing O.S. No.148 of 1985. 2. The aforesaid Original Suit was one for partition. According to the plaintiffs, the plaint 'B' schedule property belonged to 'Menath Karunakaran Nair', the father of the 1st plaintiff and the defendants and husband of the 2nd plaintiff. The said 'Karunakaran Nair' died in the year 1974 and his legal heirs are the plaintiffs and the defendants. According to the plaintiffs, 'Karunakaran Nair' married 2nd plaintiff in accordance with the customs and law and the 1st plaintiff was born in the said wedlock. Thereafter, 'Karunakaran Nair' cohabited with 'Punathil Devi' and the defendants were born to them. The said 'Devi' was not the legally wedded wife of the deceased 'Karunakaran Nair'. Thus, the 1st plaintiff and the defendants alone are the legal heirs of the deceased 'Karunakaran Nair'. Hence, the property has to be divided into five shares and each of them are entitled to get one share each. The plaintiffs and the defendants are in joint possession of the property. When the plaintiffs demanded partition of the said property, the defendants refused the same. Hence, the suit was filed claiming ? share in the plaint 'B' schedule property. 3. In the written statement, the defendants contended that 'Karunakaran Nair' was neither the father of the 1st plaintiff nor the husband of the 2nd plaintiff. The said 'Karunakaran Nair' did not marry the 2nd plaintiff and the 1st plaintiff is not the daughter of the deceased 'Karunakaran Nair'. 'Karunakaran Nair' died on 16.04.1972 and not in the year 1974, as averred in the plaint. Thus, the legal heirs of the deceased 'Karunakaran Nair' are the defendants and their mother only and the plaintiffs are not the legal heirs of 'Karunakaran Nair'. So, they are not entitled to get any share in the plaint 'B' schedule property. According to the defendants, plaint 'B' schedule property is in the exclusive possession of the defendants alone for the last 12 years. Since the plaintiffs are not entitled to get any share, the defendants prayed for dismissal of the suit. 4. So, they are not entitled to get any share in the plaint 'B' schedule property. According to the defendants, plaint 'B' schedule property is in the exclusive possession of the defendants alone for the last 12 years. Since the plaintiffs are not entitled to get any share, the defendants prayed for dismissal of the suit. 4. On the rival pleadings, both parties adduced evidence in abundance consisting of the oral testimony of P.Ws.1 to 6 and D.Ws.1 to 3 and Exts.A1 to A9, B1 to B7. After evaluating the evidence, on record, the trial court found that the plaintiffs failed to prove that the 1st plaintiff is the daughter of 'Karunakaran Nair' or the 2nd plaintiff is the legally wedded wife of 'Karunakaran Nair'. In Appeal, the appellate court also concurred with the findings of the trial court and dismissed the appeal. Thus, the concurrent findings of the trial court that the 1st plaintiff is not the daughter of 'Karunakaran Nair' and the 2nd plaintiff is not the legally wedded wife of said 'Karunakaran Nair', are under challenge in this Regular Second Appeal. 5. Heard the learned counsel for the appellants and the learned counsel appearing for the respondents. 6. The sum and substance of the arguments advanced by the learned counsel for the appellants is that the courts below have miserably failed to appreciate the oral and documentary evidence in its correct perspective. More specifically, it is contended that the courts below have not considered Exts.B1 to B7 in its correct perspective and according to the learned counsel, it is well inferable from Ext.B1 to B7 that the deceased 'Karunakaran Nair' is the father of the 1st plaintiff and the husband of the 2nd plaintiff. 7. On the other hand, the learned counsel for the respondents submits that the courts below have appreciated the evidence, on record, in its correct perspective. The learned counsel further submits that neither oral evidence nor documentary evidence proved the existence of a valid marriage between the 2nd plaintiff and the deceased 'Karunakaran Nair'. According to the learned counsel for the respondents, even if it is found that the 1st plaintiff was born out of the relationship between the 2nd plaintiff and 'Karunakaran Nair', she is not entitled to get a share in the plaint schedule property. According to the learned counsel for the respondents, even if it is found that the 1st plaintiff was born out of the relationship between the 2nd plaintiff and 'Karunakaran Nair', she is not entitled to get a share in the plaint schedule property. Unless a valid or void or voidable marriage of the parents has been proved, the children are not entitled to get succession to the property of the father, under the Hindu Succession Act. 8. In the absence of any kind of evidence, proving a marriage ceremony, in accordance with the Hindu customs, claimed by the plaintiffs, it cannot be held that the second plaintiff is the wife of Karunakaran Nair and the first plaintiff is a daughter entitled to succession to the property of Karunakaran Nair, even if she was born to the second plaintiff from Karunakaran Nair. In support of the above argument, the learned counsel for the respondents cited the decision reported in Shyamalavalli Amma v. Kavalam Jisha [ 2007 (3) KLT 270 ] and Jayachandran v. Valsala [ 2016 (2) KLT 81 ]. Per contra, the learned counsel for the appellants cited Revanasiddappa v. Mallikarjun [2011 (2) KLT 176(SC). 9. In view of the arguments advanced by the respective counsel appearing for the parties at the Bar, the interesting question that arises for consideration in this appeal is, whether an illegitimate child born out of an illicit relationship of parents, without a solemnised marriage, is entitled to get right to succession to the property of the father, under the Hindu Succession Act, if paternity stands proved? 10. I have carefully gone through the decisions cited by the learned counsel for the parties at the Bar. Going by Shyamalavalli Amma 's case (Supra), I find that the question raised above is considered elaborately by the learned Single Judge of this Court and held as follows:- "11. Under Section 8 of Hindu Succession Act, the property of a male Hindu dying intestate shall devolve on the relatives provided under class 1 or 2 or the agnates or cognates of the deceased if there is no class I or class II heirs. Under Section 3(1)(j) of Hindu Succession Act "related" means "related by legitimate kinship". Under Section 8 of Hindu Succession Act, the property of a male Hindu dying intestate shall devolve on the relatives provided under class 1 or 2 or the agnates or cognates of the deceased if there is no class I or class II heirs. Under Section 3(1)(j) of Hindu Succession Act "related" means "related by legitimate kinship". In fact to safeguard the rights of the illegitimate children, proviso thereunder was added to the effect that legitimate children shall be deemed to be related to their mother and to one another and their legitimate descendants shall be deemed to be related to them and to one another. The deeming provision is not extended to the father of the illegitimate children. It is therefore absolutely clear that only a legitimate kinship is a relative, who is entitled to inherit to the properties of a male Hindu, as provided under the Hindu Succession Act. If so an illegitimate child cannot be a relative under class one, like a legitimate son or daughter. 12. An illegitimate child can claim a share in the property of the father only under Section 16(1) of the Hindu Marriage Act (hereinafter referred to as the Act). 19. In law, in order to attract Section 16(1) of the Act there should have been a solemnization of marriage between Padmanabhan Nambiar and second respondent and that marriage should have been null and void for contravention of any of the conditions specified in clause (i) or clause (iv) or clause (v) of Section 5 as provided under Section 11 of the Act. When on the evidence, Courts below found that there was no solemnization of marriage whatsoever between Padmanabhan Nambiar and second respondent, first respondent is not entitled to claim that she is entitled to inherit to the properties of the father as provided under Section 16 (1) of the Act. She would have been entitled to a share if there was a solemnization of marriage between Padmanabhan Nambair and second respondent and that marriage was void as provided under Section 11 for the reason that it violated either of the conditions specified in clauses (i), (iv) or (v) of Section 5. When there was no solemnization of marriage at all, Section 16(1) has no application. When there was no solemnization of marriage at all, Section 16(1) has no application. Therefore first respondent being an illegitimate daughter is not entitled to a share in the property of her father Padmanabhan Nambiar as found by the first Appellate Court. The decree and judgment passed by the first Appellate Court is therefore set aside and it is found that first respondent is not entitled to a share. Appeal is allowed. The decree and judgment passed by first Appellate Court is aside and the suit stands dismissed." 11. Further, it is seen that the aforesaid decision was referred to the Division Bench of this Court in a reference and the Division Bench again elaborately considered the decision laid down by the learned Single Judge in Jayachandran's case (cited supra), which was held as follows: "Therefore, we answer the reference as follows: There is no conflict between the legal principles stated in Shyamalavalli Amma and Narayani's cases. The principles in Shyamalavalli Amma's case do not militate against the ratio in Kalliani Amma's case. We also find that the principles in Shyamalavalli Amma's case, that in order to attract Section 16 of the Act, a ceremony of marriage, whether void or voidable, will have to be pleaded and proved, are correctly laid and we approve the same." 12. In the light of the decisions referred above, the principle that can be culled out from the aforesaid decisions is that an illegitimate child is entitled to inherit to the estate of the father only if the marriage of the parents was null and void, as provided under Section 11 of the Act. Needless to say, a marriage either void or voidable is required to claim right of succession under Section 8 of the Hindu Succession Act. In other words, if there is no marriage, even if it is proved that the child is born out of the relationship between a male and a female Hindu, the child is not entitled to legal heirship with respect to the property of the father. When applying the aforesaid proposition, the question to be considered is, whether the plaintiffs have succeeded in proving that the second plaintiff is the wife of the deceased Karunakaran Nair? Put it differently, the question is, whether the plaintiffs succeeded in proving that Karunakaran Nair married the second plaintiff, in accordance with the Hindu Customary Law, as claimed by the plaintiffs. Put it differently, the question is, whether the plaintiffs succeeded in proving that Karunakaran Nair married the second plaintiff, in accordance with the Hindu Customary Law, as claimed by the plaintiffs. 13. Coming to the evidence, on record, the plaintiffs have examined P.Ws.1 to 6 to prove that Karunakaran Nair married the second plaintiff in accordance with the Hindu custom. Admittedly, there is no documentary evidence to show the marriage between the second plaintiff and Karunakaran Nair. So, the question to be considered is, whether there is any oral evidence to show that a marriage ceremony was held, as claimed by the second plaintiff. P.Ws.1 to 4 were examined to prove the said marriage. The second plaintiff was examined as P.W.1 and she stated that she is the legally wedded wife of Karunakaran Nair and she has also stated that her marriage took place, in accordance with the Hindu customary ceremonies, which, according to her, are giving a piece of cloth and tying 'Thali' before the lighted lamp. Except the oral assertion of P.W.1, going by the evidence of P.Ws.2 and 3, who are said to have attended the marriage, there is no evidence as to the custom narrated by P.W.1 in her evidence. P.W.2 was a cook, who prepared the feast in connection with the marriage. According to P.W.1, the marriage was solemnised in the year 1953. What is stated by P.W.2, who claims that he had prepared the feast for the marriage, is that he started working as a cook for the last 20 years only. Thus, the evidence of P.W.2 shows that he had not been there as a cook when the alleged marriage took place in 1953. Besides, he admitted that he is a relative of P.W.1. When the evidence of P.W.3 is taken into consideration, as rightly found by the court below, it can be seen that he was not a witness to the ceremony and he attended the feast only after the marriage. Thus, he is a person who had got no opportunity to witness the ceremony allegedly took place in connection with the marriage. After evaluating the evidence of P.W. 4, the courts below concurrently arrived at a finding that no reliance can be placed on the evidence of P.W. 4, as he is a habitual litigant and his evidence cannot be acted upon. After evaluating the evidence of P.W. 4, the courts below concurrently arrived at a finding that no reliance can be placed on the evidence of P.W. 4, as he is a habitual litigant and his evidence cannot be acted upon. Being a second appeal, this Court is not inclined to re appreciate the entire oral testimony of the witnesses. This Court cannot interfere with such findings, unless it is proved that the appreciation of evidence is vitiated by perversity. I do not find any kind of perversity in the appreciation of evidence of P.Ws. 1 to 4. Thus, it can be safely concluded that the courts below are justified in finding that the plaintiffs have miserably failed to prove that the second plaintiff is the legally wedded wife of the deceased Karunakaran Nair. It follows that even if it is found that the first plaintiff is the child born out of the illicit relationship between the second plaintiff and Karunakaran Nair, she is not entitled to get a share in the property, as the legal heir coming under class I of Section 8 of the Hindu Succession Act, 1956, in the light of the decisions referred above. Thus, I do not find any reason to interfere with the findings of the courts below. There is no illegality or impropriety in any of the findings whereby the courts below rejected the claim of the plaintiffs that the second plaintiff is the legally wedded wife of the deceased Karunakaran Nair and the first plaintiff is the child born out that legally valid marriage. No further question of law arises for consideration in this appeal. This Regular Second Appeal will stand dismissed. All pending Interlocutory Applications will also stand closed.