Hebsiba, vs Varghese,

Type Court Judgment Court Kerala Decided Jan 17, 2023

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Citation: sooperkanoon.com/1338431
Court: Kerala High Court
Judge: Honourable Mr. Justice P.Somarajan
Decided On: Jan 17, 2023
Case Number: RFA/38/2022

Parties & Advocates

Appellant / Petitioner

Hebsiba,

Respondent

Varghese,

Excerpt

.....marriage certificate showing solemnization of the marriage under the special marriage act. ext.b3 is the certificate issued by the church evidencing the marriage between the deceased christy joy and the first defendant. on the other hand, no satisfactory evidence was adduced to show the solemnization of marriage between the first and second defendant. the admission, if any, that the third defendant is the son born to the first defendant with the second defendant cannot be substituted in the place ofevidence showing solemnization of marriage between them. in the matter of solemnization of marriage, the oral evidence adduced by pw2 cannot be relied on as there is documentary evidence showing the marriage of first defendant with deceased christy joy. hence, the party cannot be permitted to rely on section 50 of the evidence act especially when there is documentary evidence to show the contrary.4. the inclusion of name of third defendant asthe nominee under item no. 1 and 2 of b schedule may not be sufficient to prove the marital relationship, if any existed between the first and second defendant. in so far as item no.3 and 4 of b schedule are concerned, the nomination made therein will have the effect of valid discharge when it was given to the nominee by the insurer by virtue of section 39 of the insurance act, 1938 irrespective of whether the nominee is the sole person entitled to receive the amount or not and it will stand subject to the law of succession. the legal position is very much settledby the apex court in vishin n.khanchandani and another v. vidya lachmandas khanchandani and another [(2000) 6 scc 724] and challamma v tilaga and others [(2009) 9 scc 299]. as such, the trial court ought to have granted a decree for partition inclusive of item no.3 and 4 of b schedule in favour of the plaintiff. the decree granted by the trial court will stand modified to that extent.5. yet another aspect was also brought to thenotice of this court with respect to a will.....

Full Judgment

IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR. JUSTICE P.SOMARAJAN TUESDAY, THE 17TH DAY OF JANUARY 2023 / 27TH POUSHA, 1944 AGAINST THE COMMON DECREE AND JUDGMENT DATED 30.09.2021 IN O.S.NO.171/2006 AND O.S.NO.313/2011 OF SUB COURT,NEYYATTINKARA APPELLANT/PLAINTIFF: HEBSIBA, D/O.SUMATHY, AGED 66 YEARS, BATHEL MOOLAKKONAM, MARANALLOOR DESOM, MARANALLOOR PAKUTHI-695 512. BY ADVS. V.JAYA RAGI V.G.ARUN R.HARIKRISHNAN NEERAJ NARAYAN RESPONDENTS/DEFENDANTS: 1 VARGHESE, S/O.PONNAYYAN NADAR,AGED 66 YEARS KALLAMAM, ELANCHIRA, THEKKUMKARA PUTHEN VEEDU, 2 RENJITHA BHAI, AGED 61 YEARS. W/O.VARGHESE, KALLAMAM, ELANCHIRA THEKKUMKARA PUTHEN VEEDU, 3 ARUNKUMAR, S/O.VARGHESE,AGED 31 YEARS, KALLAMAM, ELANCHIRA THEKKUMKARA PUTHEN VEEDU, BY ADV SEBASTIAN JOSEPH - FOR R1 & R3 THIS REGULAR FIRST APPEAL HAVING COME UP FOR HEARING ON 17.01.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

JUDGMENT

The suit was filed claiming exclusive title over the scheduled property and to declare the same or in the alternative for a partition of one half right over the property. The suit was decreed in part granting partition of one half right over the property in favour of the plaintiff.

2. The plaintiff is the sister of one Christy Joy.

She passed away on 19/09/2006. There are four items of plaint schedule property. The item No.1 constitutes three separate properties A1, A2 and A3. All are immovable properties having an extent of 11 cents, 1 Acre and 15 cents respectively. B schedule is the movables. B schedule item No.1 is the amount covered by LIC policy. Item No.2 is yet another amount covered by LIC policy and item No.3 is the Provident Fund amount stands in the name of Christy and item No.4 is the gratuity amount.

3. The case of the plaintiff is that the second

defendant in the suit is the legally wedded wife of the first defendant and third defendant is the son born in the wedlock. Hence, the contention raised by the defendant that he is the husband of deceased Christy Joy is denied and disputed. Based on Exts.B1, B2 and B3, it was found by the trial court that the first defendant is the husband of deceased Christy. Ext.B1 is the document showing registration of marriage in the Sub-Registry office. Ext.B2 is the marriage certificate showing solemnization of the marriage under the Special Marriage Act. Ext.B3 is the certificate issued by the Church evidencing the marriage between the deceased Christy Joy and the first defendant. On the other hand, no satisfactory evidence was adduced to show the solemnization of marriage between the first and second defendant. The admission, if any, that the third defendant is the son born to the first defendant with the second defendant cannot be substituted in the place of

evidence showing solemnization of marriage between them. In the matter of solemnization of marriage, the oral evidence adduced by PW2 cannot be relied on as there is documentary evidence showing the marriage of first defendant with deceased Christy Joy. Hence, the party cannot be permitted to rely on Section 50 of the Evidence Act especially when there is documentary evidence to show the contrary.

4. The inclusion of name of third defendant as

the nominee under item No. 1 and 2 of B Schedule may not be sufficient to prove the marital relationship, if any existed between the first and second defendant. In so far as item No.3 and 4 of B schedule are concerned, the nomination made therein will have the effect of valid discharge when it was given to the nominee by the insurer by virtue of Section 39 of the Insurance Act, 1938 irrespective of whether the nominee is the sole person entitled to receive the amount or not and it will stand subject to the law of succession. The legal position is very much settled

by the Apex Court in Vishin N.Khanchandani and Another v. Vidya Lachmandas Khanchandani and Another [(2000) 6 SCC 724] and Challamma v Tilaga and Others [(2009) 9 SCC 299]. As such, the trial court ought to have granted a decree for partition inclusive of item No.3 and 4 of B schedule in favour of the plaintiff. The decree granted by the trial court will stand modified to that extent.

5. Yet another aspect was also brought to the

notice of this Court with respect to a Will - Ext.B9 alleged to have been left out by the deceased Christy Joy, by which the entire property was bequeathed to the third defendant - Arunkumar. But the trial court rejected the claim based on Ext.B9 and passed a decree of partition of one half right, to which, no appeal was preferred by any of the defendants and cannot be brought under the purview of Order XLI Rule 33 C.P.C.. The legal position is very much settled by the Apex Court in Banarsi and Ors. v. Ram Phal (AIR 2003 SC 1989).

The appeal will stand allowed in part by confirming the decree and judgment of the trial court in granting a preliminary decree of partition of one half right over item No.1 and 3 properties and one fourth share in item No.2 of plaint A schedule property and one half share over item No.1 and 2 of B schedule property to the plaintiff and also one half right over B schedule item No.3 and 4 property.

Sd/- P.SOMARAJAN JUDGE rkr-17/01

Same Court & Year Kerala · 2023 Same Parties Hebsiba, vs Varghese, Same Judge Honourable Mr. Justice P.Somarajan