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2017 DIGILAW 1489 (KER)

Devaki v. Gopalan

2017-12-07

K.ABRAHAM MATHEW

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JUDGMENT : K. Abraham Mathew, J. 1. This appeal arises from the suit filed for partition of the plaint B-schedule which belonged to one Cheriya Ayyappan. The appellants and the 5th respondent were the defendants in the suit filed by respondents 1 to 4. The parties are referred to as plaintiffs and defendants. In the plaint it is alleged that the third defendant was the first wife of Cheriya Ayyappan and defendants 1, 2 and one Sasidharan are their children. It is further alleged that Cheriya Ayyappan married one Madhavi and plaintiffs 1 to 4 are the children born to them. Cheriya Ayyappan died in 1984. The plaintiffs claim a share in the plaint B-Schedule property. The Trial Court found that "suppressing his marriage to the third defendant, Cheriya Ayyappan married Madhavi and so plaintiffs 1 to 4 are entitled to a share in the plaint B-Schedule property. Accordingly, it passed a preliminary decree for partition. The matter was taken up in appeal. The Appellate Court found that there was no 'solemnisation' of marriage between Cheriya Ayyappan and Madhavi. Still it held that the plaintiffs being children of Cheriya Ayyappan are entitled to a share in the property. The substantial questions of law formulated by the Court in relate to the contention that in the absence of 'solemnisation' of marriage between Cheriya Ayyappan and Madhavi the plaintiffs are not entitled to a share in his property. It is well-settled that illegitimate children of a male Hindu are not entitled to a share in his property unless they would have been legitimate if the marriage had been valid as provided under Section 16 of the Hindu Marriage Act. Section 16 is attracted where the marriage would be valid but for the alleged contravention. It is a matter to be pleaded and proved. The learned Sub-Judge found that Madhavi was only a concubine of Cheriya Ayyappan. If that finding of the learned Judge is correct, there cannot be any doubt that the plaintiffs are not entitled to a share in the property of Cheriya Ayyappan. 2. The first defendant is one of the children of Cheriya Ayyappan in his wife Mundi. He admitted that there was a marriage between Cheriya Ayyappan and Madhavi. But this admission is not binding of the other defendants. 3. Cheriya Ayyppan was a native of Parappanagadi in Malappuram District. 2. The first defendant is one of the children of Cheriya Ayyappan in his wife Mundi. He admitted that there was a marriage between Cheriya Ayyappan and Madhavi. But this admission is not binding of the other defendants. 3. Cheriya Ayyppan was a native of Parappanagadi in Malappuram District. Madhavi was a native of Panathadi in Kasargod District. Cheriya Ayyappan was a sawyer by occupation. The plaintiffs would say that he was doing some work in Kasargod, when his marriage to Madhavi took place in 1957. In the plaint it is stated that the marriage was solemnised in accordance with the practice of the Ezhava community, to which Cheriya Ayyappan and Madhavi belonged. 4. Madhavi was examined as PW 2. One neighbour was examined as PW 3 and a cousin of Cheriya Ayyappan as PW 4. The plaintiffs rely on the evidence of these three witnesses to prove the marriage. PW 2 deposed that his marriage to Cheriya Ayyappan was solemnised in 1957. PW 4 has even mentioned the date of marriage. It was 12.5.1957. PW 3 and PW 4 claimed to have attended the marriage. 5. PW 2 Madhavi testified that the marriage of Cheriya Ayyappan to Mundi was suppressed from her and she knew about that marriage one year later when she went to the house of Cheriya Ayyappan to attend the marriage of PW 4 there she claimed to have met Mundi. The marriage of PW 4 was on 14.5.1960 as testified by him. That was three years after the alleged marriage of PW 2 to Cheriya Ayyappan. Her evidence that one year after her marriage to Cheriya Ayyappan, she went to the native place of Cheriya Ayyappan to attend the marriage of PW 4 and there she met the third defendant and thus she came to know about Cheriya Ayyappan's marriage to the 3rd defendant is false. 6. PW 4 would say that he knew about the proposed marriage of Madhavi to Cheriya Ayyappan four days before the marriage. According to him Cheriya Ayyappan asked him not to disclose to his relatives his proposed marriage to Madhavi. Even if it is taken for granted that this statement is true, there is no reason for not disclosing to PW 2 or her parents that Cheriya Ayyappan had already been married to Mundi. The conduct of PW 4 is not normal. According to him Cheriya Ayyappan asked him not to disclose to his relatives his proposed marriage to Madhavi. Even if it is taken for granted that this statement is true, there is no reason for not disclosing to PW 2 or her parents that Cheriya Ayyappan had already been married to Mundi. The conduct of PW 4 is not normal. It is to be mentioned that according to PW 2 his parents had enquired with PW 4 about the relatives of Cheriya Ayyappan. On his own showing PW 2 is not a reliable man. The evidence of PW 2 that relatives of Cheriya Ayyappan and some people from his native place had attended the marriage can never be true. It is difficult to believe that the relatives of Cheriya Ayyappan and people from his native place attended his alleged marriage to PW 2. In the cross-examination PW 2, in complete negation of what she had stated earlier, deposed that the only two or three persons came from the native place of Cheriya Ayyappan. She added that no ladies came from his native place. The evidence given by PW 3, who claimed to have attended the marriage, that two days before the marriage two ladies came from the native place of Cheriya Ayyappan and they were said to be his sisters is nothing but false. The evidence of PW 4 on this point is also relevant. He pretended that he did not know whether anyone from the family of Cheriya Ayyappan attended the marriage. But he had no doubt that no ladies came from the native place of Cheriya Ayyappan. The facts discussed above leave no room for doubt that the allegation that Cheriya Ayyappan 'married' Madhavi is false. Even if it is assumed that the plaintiffs are the children of Cheriya Ayyapan, they are not entitled to the benefit of Section 16 of the Hindu Marriage Act. The learned Sub-Judge went wrong in holding that they are entitled to a share in his property. The decree passed by the Court below and confirmed by the Appellate Court is liable to be set aside. In the result, this appeal is allowed. The judgments and the decree of the lower Courts are set aside. The suit is dismissed. The parties shall bear the costs.