Madhavan Balasundaram and ors. Vs. Madhavan Sarasamma and ors. - Court Judgment

Excerpt:
- code of civil procedure, 1908.[c.a. no. 5/1908]. order 9, rule 4: [v.k. bali, cj, kurian koseph & k. balakrishnan nair, jj] restoration of petition for enhancement of maintenance dismissed for default held, application under order 9, rule 4 c.p.c., is not maintainable. reason being while exercising powers under section 7(2)(a) and entertaining maintenance petition under section 125 of cr.p.c., family court cannot be deemed or treated as civil court. proceedings for maintenance before the family court under section &(2)(a) is criminal in nature. [kunhimohammammed v nafeesa, 2003 (1) klt 364; 2004 cri lj 1000 (ker) overruled]. reference to full bench; held, single judge cannot refer the case to full bench. he can refer the case to division bench. power to refer to full bench is expressly reserved to division bench. merely because a single judge/division bench entertains another view or merely because another view is possible, the judgment shall not be distinguished. ordera. lekshmikutty, j.1. the appellants are the review petitioners herein. second appeal is filed by the appellants against the judgment and decree in a. s. no. 134/1983 on the file of the sub-court. attingal, which was filed by the plaintiffs against the decree and judgment in o.s. no. 44/1979 of the munsiff court, varkala. the suit was filed by the plaintiff for declaration of title and possession over the plaint schedule property. the property was in the possession of a receiver appointed in o.s. no. 116 of 1969. as per the plaintiffs, the plaintiffs and the 6th defendant alone are the legal heirs of deceased velayudhan madhavan. velayudhan - madhavan married kaliyamma muthamma nearly 70 years ago and the plaintiffs and sixth defendant are the children of madhavan and muthamma. madhavan died in 1968. after the death of madhavan, his right over the property devolved on the plaintiffs and 6th defendant. madhavan never married the first defendant and hence defendants 2 to 5 are not his children. the suit is filed at the time when defendants 1 to 5 have taken steps to get delivery of the plaint schedule property from the 7th defendant.2. defendants 1 to 5 contested the suit. o. s. no. 116 of 1969 was filed by defendants 1 to 5 as plaintiffs for declaration of their title and possession over the plaint schedule property against the 6th defendant. the suit was decreed. the 6th defendant filed a. s. no. 16/1974 against the judgment and decree passed by the trial court. the appeal was allowed and against which defendants 1 to 5 filed s.a. no. 664/1976 before this court and this court allowed the appeal declaring title and possession of defendants 1 to 5 and allowed to evict the 6th defendant from the property. in pursuance of the decree passed by this court, the decree holders, defendants 1 to 5 in the suit took steps to take delivery of the property. it was at that time the plaintiffs filed the suit against the defendants. the trial court held that the plaintiffs and defendants 1 to 6 are the legal heirs of the deceased velayudhan madhavan and accordingly preliminary decree for partition of 1/8th share of the plaint schedule property was passed. against the said judgment and decree, the plaintiffs filed a.s. no, 134/1983 and the defendants filed cross-objection. the first appellate court held that plaintiffs and 6th defendant are not the legal heirs and defendants 1 to 5 are the legal heirs of de-ceased madhavan. the appellate court also held that the plaintiffs and 6th defendant have no right over the plaint schedule property as there was no legal marriage between the plaintiffs mother and madhavan. thereby the appeal was dismissed and the cross-objection filed by the defendants were allowed. against which the present second appeal is filed by the plaintiffs in the suit. this court dismissed the appeal on the ground that there was no substantial question of law. against the said judgment, this review petition is filed by the plaintiffs.3. argument advanced by the learned counsel for the review petitioners is that the finding of this court that there is no substantial question of law involved in this appeal is an error apparent on the face of the records. the plaintiffs and 6th defendant are the legal heirs of deceased madhavan. their mother kaliyamma muthamma was married to madhavan nearly 70 years ago after undergoing the connected religious ceremonies and they lived together as husband and wife. the plaintiffs and 6th defendant were born in that wedlock. according to the plaintiffs, the 1st defendant is not the legally wedded wife of madhavan and defendants 2 to 5 are not his children. the mother of plaintiffs and 6th defendant kaliyamma muthamma was not a member of ezhava community, but belongs to dhobi community. so according to the defendants, there could not be a valid marriage between madhavan, who belonged to ezhava community, and muthamma, who belonged to dhobi community especially 70 years back there could not be a valid marriage between two different communities. sammandham was not permissible between intercaste persons if it was before 1100 m. e. according to the defendants, sammandham could be only between two ezhavas. since kaliyamma muthamma did not belong to ezhaava community, there is no presumption that a valid marriage could have taken place at that time. both the first defendant and kaliyamma muthamma claim to be the legally wedded wife of deceased madhavan. the trial court after considering the entire evidence found that muthamma and 1st defendant are the wives of madhavan and after his death in 1968, his right over the plaint schedule property devolved on plaintiffs and defendants 1 to 6 and passed a preliminary decree granting l/8th share to the 1st plaintiff and l/8th share to plaintiffs 3 to 6 and the 6th defendant is entitled to 1/8th share and remaining property shall be that of defendants 1 to 4. the lower appellate court reversed the decree of the trial court and dismissed the suit and allowed cross objection filed by the defendants.4. now the only question rests with the legal marriage between deceased madhavan and deceased muthamma. with regard to the maternity, there is no dispute. the case of the plaintiffs is that madhavan married their mother muthamma 70 years back as per the religious custom. the fact that muthamma belonged to dhobi community is not disputed. so according to the defendants, there is no possibility of solemnizing a customary form of marriage between madhavan and muthamma during the relevant time. the plaintiffs have produced exts. a-1 to a-20, madhavan's personal diaries, which would show that the plaintiffs are the children of deceased madhavan. but the defendants deny it. according to the first defendant, she is the legally wedded wife of madhavan and defendants 2 to 5 are the children in that wedlock. there was dispute between the defendants and others in respect of the plaint schedule property. defendants 1 to 5 plaintiffs have filed o. s. no. 116/1969 before the munsiff court, varkala for declaration of title and possession and for recovery from the defendants. the suit was decreed, against which the 6th defendant therein filed a. s. no. 16/74 before the first appellate court and the first appellate court reversed the decree and judgment of the first trial court and the appeal was allowed. against the same, defendants 1 to 5 preferred s.a. no. 664/1976 before this court and this court set aside the judgment and decree passed by the first appellate court and confirmed the decree passed by the trial court. so according to them, there is judicial pronouncement with regard to the legal marriage between the first defendant and deceased madhavan and defendants 2 to 5 as their children in the said wedlock. the contention was that defendants 1 to 5 in the present suit are not the wife and children of deceased madhavan. this argument of the learned counsel for the defendants seems to be sound.5. the next question to be considered is whether kaliyamma muthamma was the legally wedded wife of deceased madhavan. there is ample evidence to show that deceased madhavan and kaliyamma muthamma were living as husband and wife. the plaintiffs and 6th defendant are the children of madhavan and muthamma. the legal marriage is disputed by the defendants. the available evidence would show that madhavan and kaliyamma muthamma were living as husband and wife for a very long time. so there is a legal presumption that there is a marriage between madhavan and muthamma. even in the absence of any evidence in respect of the customary form of marriage, it is to be presumed that they are husband and wife for all purposes because of the long living as husband and wife.6. it is submitted by learned counsel for the review petitioners that even if the marriage between muthamma and madhavan was not legal, the plaintiffs are entitled to get share in the property of their father as per section 16 of the hindu marriage act. exts. a-4 to a-11 are the personal diaries of madhavan. it would show that the plaintiffs are his children. he is the most competent person to say about the relation between the plaintiffs and himself. exts. a-4 to a-11 would show that they are the children of madhavan and muthamma. if the marriage was before 70 years back, it would be very difficult to produce oral evidence of witnesses. the presumption that there could not be a valid intercaste marriage at the relevant time also cannot be accepted. if actually there was no legal marriage with first defendant, their long giving together as husband and wife lead to a presumption that muthamma was the wife of madhavan and the plaintiffs are their children. if actually, there was no marriage between the first defendant and the deceased madhavan, the presumption would be that muthamma and madhavan are husband and wife and the plaintiffs and 6th defendant are his children born in their cohabitation are the legitimate children of madhavan. section 16 of the hindu marriage act begins with notwithstanding that a marriage is null and void under section 11, any child of such marriage who would have been legitimate if the marriage had been valid, shall be legitimate, whether such child is born before or after the commencement of the marriage laws (amendment) act, 1976 and whether or not a decree of nullity 13 granted in respect of that marriage under this act and whether or not the marriage is held to be void otherwise than on a petition under this act. the argument advanced by the learned counsel for the respondents is that the said section would not apply in the present case since there is no evidence of marriage between muthamma and madhavan. but the legal presumption that muthamma is the wife of madhavan cannot be ignored. the plaintiffs gave evidence that the marriage between the mother and madhavan was solemnized 70 years back. it is further proved through exts. a-4 to a-11. if at all there is a marriage between the 1st defendant and madhavan that could only be long after the birth of the plaintiffs and 6th defendant. once there was a presumption of marriage between madhavan and muthamma, their status cannot be disturbed by a subsequent marriage which was permissible before 1100 m.e. there is a substantial question of law involved in the second appeal regarding the presumption of marriage between deceased muthamma and deceased madhavan and the legitimacy of plaintiffs and 6th defendant. so there is an error apparent on the face of the record in the finding that no question of law is involved in this appeal.7. in such circumstances, i am constrained to review the judgment passed by this court and find that the plaintiffs and 6th defendant are also the legal heirs of deceased madhavan along with defendants 1 to 5 and the trial court has rightly passed a preliminary decree. the judgment and decree of the first appellate court are set aside and the judgment and decree of the trial court are upheld. the review petition is disposed of as above.

Judgment:
ORDER

A. Lekshmikutty, J.

1. The appellants are the review petitioners herein. Second appeal is filed by the appellants against the judgment and decree in A. S. No. 134/1983 on the file of the Sub-Court. Attingal, which was filed by the plaintiffs against the decree and Judgment in O.S. No. 44/1979 of the Munsiff Court, Varkala. The suit was filed by the plaintiff for declaration of title and possession over the plaint schedule property. The property was in the possession of a receiver appointed in O.S. No. 116 of 1969. As per the plaintiffs, the plaintiffs and the 6th defendant alone are the legal heirs of deceased Velayudhan Madhavan. Velayudhan - Madhavan married Kaliyamma Muthamma nearly 70 years ago and the plaintiffs and sixth defendant are the children of Madhavan and Muthamma. Madhavan died in 1968. After the death of Madhavan, his right over the property devolved on the plaintiffs and 6th defendant. Madhavan never married the first defendant and hence defendants 2 to 5 are not his children. The suit is filed at the time when defendants 1 to 5 have taken steps to get delivery of the plaint schedule property from the 7th defendant.

2. Defendants 1 to 5 contested the suit. O. S. No. 116 of 1969 was filed by defendants 1 to 5 as plaintiffs for declaration of their title and possession over the plaint schedule property against the 6th defendant. The suit was decreed. The 6th defendant filed A. S. No. 16/1974 against the judgment and decree passed by the trial Court. The appeal was allowed and against which defendants 1 to 5 filed S.A. No. 664/1976 before this Court and this Court allowed the appeal declaring title and possession of defendants 1 to 5 and allowed to evict the 6th defendant from the property. In pursuance of the decree passed by this Court, the decree holders, defendants 1 to 5 in the suit took steps to take delivery of the property. It was at that time the plaintiffs filed the suit against the defendants. The trial Court held that the plaintiffs and defendants 1 to 6 are the legal heirs of the deceased Velayudhan Madhavan and accordingly preliminary decree for partition of 1/8th share of the plaint schedule property was passed. Against the said judgment and decree, the plaintiffs filed A.S. No, 134/1983 and the defendants filed cross-objection. The first appellate Court held that plaintiffs and 6th defendant are not the legal heirs and defendants 1 to 5 are the legal heirs of de-ceased Madhavan. The appellate Court also held that the plaintiffs and 6th defendant have no right over the plaint schedule property as there was no legal marriage between the plaintiffs mother and Madhavan. Thereby the appeal was dismissed and the cross-objection filed by the defendants were allowed. Against which the present second appeal is filed by the plaintiffs in the suit. This Court dismissed the appeal on the ground that there was no substantial question of law. Against the said judgment, this Review Petition is filed by the plaintiffs.

3. Argument advanced by the learned counsel for the Review Petitioners is that the finding of this Court that there is no substantial question of law involved in this appeal is an error apparent on the face of the records. The plaintiffs and 6th defendant are the legal heirs of deceased Madhavan. Their mother Kaliyamma Muthamma was married to Madhavan nearly 70 years ago after undergoing the connected religious ceremonies and they lived together as husband and wife. The plaintiffs and 6th defendant were born in that wedlock. According to the plaintiffs, the 1st defendant is not the legally wedded wife of Madhavan and defendants 2 to 5 are not his children. The mother of plaintiffs and 6th defendant Kaliyamma Muthamma was not a member of Ezhava community, but belongs to dhobi community. So according to the defendants, there could not be a valid marriage between Madhavan, who belonged to Ezhava community, and Muthamma, who belonged to dhobi community especially 70 years back there could not be a valid marriage between two different communities. Sammandham was not permissible between intercaste persons if it was before 1100 M. E. According to the defendants, sammandham could be only between two Ezhavas. Since Kaliyamma Muthamma did not belong to Ezhaava community, there is no presumption that a valid marriage could have taken place at that time. Both the first defendant and Kaliyamma Muthamma claim to be the legally wedded wife of deceased Madhavan. The trial Court after considering the entire evidence found that Muthamma and 1st defendant are the wives of Madhavan and after his death in 1968, his right over the plaint schedule property devolved on plaintiffs and defendants 1 to 6 and passed a preliminary decree granting l/8th share to the 1st plaintiff and l/8th share to plaintiffs 3 to 6 and the 6th defendant is entitled to 1/8th share and remaining property shall be that of defendants 1 to 4. The lower appellate Court reversed the decree of the trial Court and dismissed the suit and allowed cross objection filed by the defendants.

4. Now the only question rests with the legal marriage between deceased Madhavan and deceased Muthamma. With regard to the maternity, there is no dispute. The case of the plaintiffs is that Madhavan married their mother Muthamma 70 years back as per the religious custom. The fact that Muthamma belonged to Dhobi community is not disputed. So according to the defendants, there is no possibility of solemnizing a customary form of marriage between Madhavan and Muthamma during the relevant time. The plaintiffs have produced Exts. A-1 to A-20, Madhavan's personal diaries, which would show that the plaintiffs are the children of deceased Madhavan. But the defendants deny it. According to the first defendant, she is the legally wedded wife of Madhavan and defendants 2 to 5 are the children in that wedlock. There was dispute between the defendants and others in respect of the plaint schedule property. Defendants 1 to 5 plaintiffs have filed O. S. No. 116/1969 before the Munsiff Court, Varkala for declaration of title and possession and for recovery from the defendants. The suit was decreed, against which the 6th defendant therein filed A. S. No. 16/74 before the first appellate Court and the first appellate Court reversed the decree and judgment of the first trial Court and the appeal was allowed. Against the same, defendants 1 to 5 preferred S.A. No. 664/1976 before this Court and this Court set aside the judgment and decree passed by the first appellate Court and confirmed the decree passed by the trial Court. So according to them, there is judicial pronouncement with regard to the legal marriage between the first defendant and deceased Madhavan and defendants 2 to 5 as their children in the said wedlock. The contention was that defendants 1 to 5 in the present suit are not the wife and children of deceased Madhavan. This argument of the learned counsel for the defendants seems to be sound.

5. The next question to be considered is whether Kaliyamma Muthamma was the legally wedded wife of deceased Madhavan. There is ample evidence to show that deceased Madhavan and Kaliyamma Muthamma were living as husband and wife. The plaintiffs and 6th defendant are the children of Madhavan and Muthamma. The legal marriage is disputed by the defendants. The available evidence would show that Madhavan and Kaliyamma Muthamma were living as husband and wife for a very long time. So there is a legal presumption that there is a marriage between Madhavan and Muthamma. Even in the absence of any evidence in respect of the customary form of marriage, it is to be presumed that they are husband and wife for all purposes because of the long living as husband and wife.

6. It is submitted by learned counsel for the review petitioners that even if the marriage between Muthamma and Madhavan was not legal, the plaintiffs are entitled to get share in the property of their father as per Section 16 of the Hindu Marriage Act. Exts. A-4 to A-11 are the personal diaries of Madhavan. It would show that the plaintiffs are his children. He is the most competent person to say about the relation between the plaintiffs and himself. Exts. A-4 to A-11 would show that they are the children of Madhavan and Muthamma. If the marriage was before 70 years back, it would be very difficult to produce oral evidence of witnesses. The presumption that there could not be a valid intercaste marriage at the relevant time also cannot be accepted. If actually there was no legal marriage with first defendant, their long giving together as husband and wife lead to a presumption that Muthamma was the wife of Madhavan and the plaintiffs are their children. If actually, there was no marriage between the first defendant and the deceased Madhavan, the presumption would be that Muthamma and Madhavan are husband and wife and the plaintiffs and 6th defendant are his children born in their cohabitation are the legitimate children of Madhavan. Section 16 of the Hindu Marriage Act begins with notwithstanding that a marriage is null and void under Section 11, any child of such marriage who would have been legitimate If the marriage had been valid, shall be legitimate, whether such child is born before or after the commencement of the Marriage Laws (Amendment) Act, 1976 and whether or not a decree of nullity 13 granted in respect of that marriage under this Act and whether or not the marriage is held to be void otherwise than on a petition under this Act. The argument advanced by the learned counsel for the respondents is that the said section would not apply in the present case since there is no evidence of marriage between Muthamma and Madhavan. But the legal presumption that Muthamma is the wife of Madhavan cannot be ignored. The plaintiffs gave evidence that the marriage between the mother and Madhavan was solemnized 70 years back. It is further proved through Exts. A-4 to A-11. If at all there is a marriage between the 1st defendant and Madhavan that could only be long after the birth of the plaintiffs and 6th defendant. Once there was a presumption of marriage between Madhavan and Muthamma, their status cannot be disturbed by a subsequent marriage which was permissible before 1100 M.E. There is a substantial question of law involved in the Second Appeal regarding the presumption of marriage between deceased Muthamma and deceased Madhavan and the legitimacy of plaintiffs and 6th defendant. So there is an error apparent on the face of the record in the finding that no question of law is Involved in this appeal.

7. In such circumstances, I am constrained to review the judgment passed by this Court and find that the plaintiffs and 6th defendant are also the legal heirs of deceased Madhavan along with defendants 1 to 5 and the trial Court has rightly passed a preliminary decree. The judgment and decree of the first appellate Court are set aside and the judgment and decree of the trial Court are upheld. The review petition is disposed of as above.