Madhavi Amma Vs. Velu Pillai - Court Judgment

D. Sreedevi, J.

1. This appeal is directed against the decree and judgment in A.S. No. 237/77 of the District Court, Kollam, which was filed against the decree and judgment in OS. No. 20/74 of the Munsiff's Court, Adoor. The defendants are the appellants.

2. The suit was filed by the plaintiff one Velu Filial claiming himself to be the only legal heir as brother, to the estates of one C.K. Thankappan Pillai, who according to the plaintiff, was a bachelor and died intestate. The suit is for declaration of title and recovery of possession of plaint schedule properties. Plaint 'A' schedule properties belonged to the deceased absolutely and 'B' schedule properties were jointly owned by the deceased and his elder brother Ramakrishna Pillai who predeceased him. The defendants are the widow and children of this Ramakrishna Pillai. According to the plaintiff, Ramakrishna Pillai and the deceased Thankappan Pillai were the children of one Parameswaran Pillai and Karthiyayani Amma. As the deceased Thankappan Pillai had no other nearer legal heir to succeed to his estates, the plaintiff alone is entitled to be declared as the heir to the assets of the deceased.

3. The defendants filed written statement contending that Velu Pillai and Ramakrishna Pillai were born to Parameswaran Pillai through Karthiyayani Amma. But the deceased Thankappan Pillai was born to Krishna Pillai through Karthiyayani Amma and as such the plaintiff was only a uterine brother of the deceased and was not entitled to succeed as his legal heir. It was also contended that there was a half sister of the deceased Thankappan Pillai alive and that she alone would be entitled to the estates of the deceased as she would exclude the plaintiff's claim as brother.

4. The Trial Court decreed the suit declaring that the plaintiff is the sole heir of deceased Thankappan Pillai and that he is entitled to inherit the property of Thankapppan Pillai. He was allowed to recover possession of items 2 to 5 of the plaint A schedule property from the defendants and also for partition and separate possession of half of the plaint 'B' schedule properties. The plaintiff has also filed O.P. 33/74 for getting the succession certificate. In view of the decision in O.S. No. 20/74 he was granted the succession certificate. Aggrieved by the said decree and judgment the defendants filed A.S. No. 93/78 before the District Court Quilon. The plaintiff filed O.P. 33/74 for issue of a succession certificate in respect of certain amounts insured by the Life Insurance Corporation of India in a policy of insurance taken by deceased Thankappan Pillai. As the matter involved in both the suit and the original petition are same, they were tried jointly and disposed of the same by a common judgment.

5. Against the said decree and judgment S. A. No. 452/79 was filed before this Court. This Court, by judgment dated 27.7.1982 set aside the decree and judgment and remanded the matter to the Court below for fresh disposal. Accordingly, the learned District Judge on 30.11.1982 dismissed the appeal confirming the decree and judgment of the Trial Court. As against this, this appeal has been filed.

6. This Court dismissed the appeal on 26.9.1989 holding that the decision in O.P. 33/74 granting succession certificate has become final between the parties and hence the appeal is not maintainable as the appeal is hit by Section 11, CPC.

7. As against this, the plaintiff has filed Civil Appeal No. 1544/90 before the Supreme Court. The Apex Court by judgment dated 27.4.2000 set aside the judgment of this Court and remanded the matter for deciding the same afresh on merits in accordance with law. The Apex Court held that the decision in O.P. 33/ 74 will not be res judicata in this case.

8. The following questions of law are involved in this case :

(i) Whether the District Court acted legally in shutting out evidence sought to be tendered as per I. A. 1084/1982 having regard to the terms of the remand order in S.A. 452/1979 and Order 41 Rule 27 of the Code of Civil Procedure?

(ii) Whether the presumption under Section 112 of the Evidence Act has not been rebutted by the available evidence on record?

(iii) Whether on the facts and circumstances of the case the plaintiff has been proved to be the direct brother of deceased Thankappan Pillai, entitled to succeed his estate?

(iv) Whether the onus of proof to establish that he is the legal heir of deceased Thankappan Pillai is on the plaintiff and whether the plaintiff has discharged the said onus by acceptable evidence Points Nos. 1 to 4:

9. According to the plaintiff, the deceased Thankappan Pillai, Ramakrishna Pillai and himself are the sons of Parameswara Pillai and Karthiyayani Amma. The defendants denied the said case. They would contend that Thankappan Pillai is not the son of Parameswaran Pillai, but he is the son of Kochuthundil Krishna Pillai through Karthiyayani Amma. The defendants also would contend that Karthiyayani Amma and Parameswaran Pillai fell out and she lived with her cousin Kochuthundil Krishna Pillai and Thankappan Pillai was born to her through Krishna Pillai. Thankappan Pillai was born in the year 1105 M.E. To substantiate the contention the defendants produced some documents Exts. B12, B30, X12 and X13. Ext. B30 was produced by the defendants to show that the deceased Thankappan Pillai is the son of Kochuthundil Krishna Pillai. DW4, the Insurance Field Officer, who prepared Ext. B30 proposal form, has deposed that his name is noted as. 'K. Thankappan Pillai'. 'K', according to respondents in 'Kochuthundil Krishna Pillai'.

10. According to the plaintiffs, K. Krishna Pillai mentioned in the proposal form is Kizhanguvilayil Krishna Pillai. Admittedly, Karthiyayani Amma had a brother by name Krishna Pillai. He is Kesava Pillai Krishna Pillai of Kizhanguvilayil House. After the death of Thankappan Pillai's father his uncle Kizhanguvilayil Krishna Pillai was the guardian of Thankappan Pillai. To prove this, the plaintiff relied on the admission register of Thankappan Pillai in the primary school, the copy of which is marked as Ext. A2. In Ext. A2, in the column showing the name of father or guardian what is written is K. Krishna Pillai (uncle), Charuvila Veedu. Thus, it is seen that K. Krishan Pillai is his uncle and guardian. There is absolutely nothing on record to show that the marriage between Karthiyayani Amma and Parameswara Pillai has been dissolved. If the relationship between Karthiyayani Amma and Parameswaran Pillai got strained and infact she was living separately in her family house, the presumption is that the marriage subsists. Thankappan Pillai's uncle died in the year 1956. Therefore, Krishna Pillai mentioned in the proposal form Ext. B30 can never be Kochuthundil Krishna Pillai, but only Kesava Pillai Krishna Pillai. Hence, 'K' mentioned in Ext. B30 proposal form and Ext. XII indemnity bond can only be Kesava Pillai Krishna Pillai, who is the uncle of Thankappan Pillai, This Krishna Pillai died in the year 1956 at the age of 72 years.

11. DW8, Gopala Pillai has deposed that deceased Ramakrishna Pillai was brought up in Udayamvilayil House, which is the house of Parameswaran Pillai. If Thankappan Pillai was born to Karthiyayani Amma through her alleged second husband who is allegedly Kochuthundil Krishna Pillai, after she had separated from Parameswaran Pillai, there is no reason why Thankappan Pillai was brought up alongwith Ramakrishna Pillai at the house of Parameswaran Pillai. Therefore, the evidence of DW8 is sufficient to come to the conclusion that Thankappan Pillai was the son of Karthiyayani Amma through Parameswaran Pillai. The voters list Ext. B26 goes to show that Thankappan Pillai and Ramakrisha Pillai are the sons of Parameswaran Pillai. So long as the marriage between Parameswaran Pillai and Karthiyayani Amma is not dissolved, it has to be presumed that the marrige is subsisting and the children born during the subsistence of the marriage have to be presumed to be the children of Parameswaran Pillai. Therefore, the Courts below held that Section 8 of the Hindu Succession Act applies for the purpose of inheritance. Section 8 provides that when a Hindu dies, the property will devolve upon the heirs being the relatives specified in Class (1) of Schedule, then upon the heirs of Class (2). The plaintiff being his brother comes in Class (2), Even if it is assumed that Velu Pillai is the uterine brother of Thankappan Filial, he is entitled to succeed the assets of Thankapan Pillai as he shall be deemed to be 'related' to his mother.

12. In order to rebut the said presumption, no evidence has been let in by the defendants. The evidence of DW1 that Thankappan Pillai was the son of Kochuthundil Krishna Pillai is only hearsay. The defendants could not adduce any evidence to show that Parameswaran Pillai has no access to Karthiyayani Amma during the period when they were living separately. Therefore, the conclusions arrived at by the Courts below are correct.

13. Learned Counsel for the plaintiff relied on the decision reported in Venkateswarlu v. Venkatanarayana, AIR 1954 SC 176, where the Apex Court held that non-access can be established not merely by positive or direct evidence, it can be proved undoubtedly by any other physical fact by evidence either direct or circumstantial which is relevant to the issue though as the presumption of legitimacy is highly favoured by law. It is necessary that proof of non-access must be clear and satisfactory. This is followed by another decision in Perumal v. Ponuswami, AIR 1971 SC 2352. In Rudrani v. Baby, 1979 KLT 513, this Court held as follows :

'A child born during wedlock is presumed to be the legitimate child of the husband because sexual intercourse is presumed to have taken place between the husband and the wife who is the mother of the child. This presumption of access can be rebutted by proof of non-access at the material time, by any form of legal evidence direct or circumstantial sufficient to satisfy the deciding Authority that there could have been non-access for either of the parties to the other. If non-access is not proved wherefore access is presumed, no enquiry will be permitted as to whether the husband or someone else is the father of the child in question and in such cases presumption of legitimacy is conclusive.'

14. The plaintiff being the brother of Thankappan Pillai, as per Section 8 of the Hindu Succession Act, 1956, on the death of Thankappan Pillai his right will devolve on firstly upon the heirs being the relatives specified in Class I of the Schedule and secondly if there is no heir of Class I, then upon the heirs being the relatives specified in Class II of the Schedule. The plaintiff being a heir coming under Class II, he is entitled to succeed to the assets of Thankappan Pillai. Even assuming that he is the uterine brother of Thankappan Pillai, he is entitled to succeed to the estate of deceased Thankappan Pillai by virtue of Section 8 of Hindu Succession Act read with Sections 12, 13 and 17.

15. Another contention raised by the defendants is that Thankappan Pillai and Ramakrishna Pillai accepted the first defendant as the common wife and hence the defendants are their children and as such they alone are entitled to succeed to the estate of Thankappan Pillai. This was found against by both the Courts. On going through the judgment, I do not find any reason to set aside the said finding.

16. Another contention raised is that the properties were acquired in the name of Thankappan Pillai by Ramakrishna Pillai Benami for him. This was also found against by both the Courts on sufficient grounds. Therefore, I do not find any reason to upset the said finding.

17. The plaint schedule item 1 in 'A' schedule is the property comprised in Sy. 518/13, which takes in a Rice Mill. Four items of properties comprised in Survey Nos. 518/12, 554/1, 622/5B and 563/7 of Sasthamkotta Village are plaint 'A' schedule items 2 to 5. Four items of movable properties are scheduled as Items 1 to 9 of 'B' schedule. As per the plaint allegations, 'A' schedule absolutely belong to Thankappan Pillai and 'B' schedule properties were purchased in the name of deceased Thankappan Pillai and Ramakrishna Pillai. It is contended that Ramakrishna Pillai purchased the properties as Benamidar. To prove this, there is no evidence. So each of them has one-half right. It is admitted that Items 2 to 5 of 'A' schedule belong to Thankappan Pillai. Regarding Item Nos. 6 to 9 of 'A' schedule, there is no evidence to show that they belong to Thankappan Pillai. The Courts below found on evidence that the building wherein the mill was installed was the absolute property of Ramakrishna Pillai. There is ample evidence, Exts. B2 to B4, to show that the Rice Mill was installed by Ramakrishna Pillai. There is nothing to show that Thankappan Pillai installed the mill with his funds. The Trial Court held that Thankappan Pillai has no right over Items 1 and 6 to 8 of plaint 'A' schedule; that he had absolute title to Items 2 to 5 of 'A' schedule and that he has one-half right over Items 1 to 9 of plaint 'B' schedule. I do not find any reason to upset the said finding. As the plaintiff is the legal heir to succeed to the assets of Thankappan Pillai, the decree of the first Appellate Court dismissing the appeals are only to be confirmed.

In the result, this second appeal is dismissed.