Judgment · High Court · 2012

R.S.A. No.1084 of 20032.SIDHIK ALIAS MAIDEEN PASHA RAWTHER,RESIDING AT KANJIRAMVILA THEKKEVEETTIL,PATHANAPURAM VILLAGE AND TALUK.3.MUHAMMED SAILABDEEN (PADIYAN), S/O.MAIDEEN PASHA RAWTHER, RESIDING ATKANJIRAMVILA THEKKEVEETTIL,PATHANAPURAM VILLAGE AND TALUK.4.MUHAMMED BEEVI, SAITHUL BEEVI,MOOLAKKADAYIL, MANJALLOORMURI,PATHANAPURAM TALUK.5.SULAIMAN RAWTHER, MOOLAKKADAYIL,MANJALOOR MURI, PATHANAPURAM TALUK. R2 AND R3 ARE RECORDED AS THE LEGAL REPRESENTATIVESOF THE DECEASED FIRST RESPONDENT AS PER ORDER DATED10.3.2011 IN MEMO BEARING CF.1569/11 DATED 4.3.11. BY ADV. SRI.T.M.ABDUL LATHEEF)R1 & R2 BY ADV. SRI.ANEESH JAMES)R4 & R5 THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON03-09-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J.====================================R.S.A. No.1084 of 2003 ====================================Dated this the 03rd day of September, 2012J U D G M E N TAfter one round of litigation, respondents 1 to 3/plaintiffswere able to get a preliminary decree for partition of the suit property as if they are also legal heirs of the late Maideen BashaRawther. The learned Munsiff, Punalur passed a preliminary decree in O.S. No.83 of 1981. That judgment and preliminary decree were confirmed by the learned Sub Judge, Kottarakkara inA.S. No.78 of 1992. Hence this Second Appeal at the instance of the appellants-additional defendants 5 to 8 who are the legal representatives of the deceased 1st defendant.

The following substantial question of law is framed for adecision: When there is no evidence of marriage and continued cohabitation much less cohabitation at all, can a presumption of marriage be drawn and whether the courts below were justified in holding that there was a valid marriage when the admitted evidence R.S.A. No.1084 of 2003 -: 2 :-disproves the same?Parties are referred as plaintiffs and defendants as in the trial court.

According to the the plaintiffs, the late MaideenBasha Rawther married the 1st plaintiff and in that wedlock, plaintiffs 2 and 3 and the late Abdul Azeez are born. Defendants1 to 3 are the children born to the said Maideen Basha Rawther in his first marriage. Maideen Basha Rawther acquired item Nos.1and 2 as per settlement deed No.2353 of 1107 and sale deedNo.942 of 1114. The said properties are partible among the plaintiffs and defendants 1 to 3.

Defendants 1 to 3 denied that the 1st plaintiff is the wife of the late Maideen Basha Rawther. They also denied that plaintiffs 2 and 3 are born to the said Maideen Basha Rawther. Plaintiffs have no right or interest in the suit property to claim partition.

The trial court (after the first dismissal of the suit andits remand) held that there is evidence of long cohabitation of Maideen Basha Rawther and the 1st plaintiff as man and wife which would raise a presumption of valid marriage between R.S.A. No.1084 of 2003 -: 3 :-them, accepted the evidence let in by the plaintiffs as to the paternity of plaintiffs 2 and 3 with the said Maideen BashaRawther and granted a preliminary decree for partition. That was confirmed by the first appellate court.

The learned counsel for the appellants (additional defendants 5 to 8) would contend that there is no reliable evidence to prove the alleged marriage between Maideen BashaRawther and the first plaintiff. Evidence of P.W.2 is not reliable and at any rate contradicts that of the 1st plaintiff as P.W.1. It is further contended that the evidence of P.W.7 examined to prove the alleged long cohabitation of Maideen Basha Rawther and the1st plaintiff as man and wife is not acceptable. The trial court has proceeded as if Exts.X16 and X16(a) are sufficient to prove acknowledgment by the late Maideen Basha Rawther that AbdulAzeez (brother of plaintiffs 2 and 3) is born to the said MaideenBasha Rawther in the 1st plaintiff. According to the learned counsel there is no valid acknowledgment binding MaideenBasha Rawther. The learned counsel has invited my attention of Section 344 of Mulla on the Principles of Mahomedan Law to contend that an acknowledgment to be valid under the said provision must be of a legitimate son. Further argument the R.S.A. No.1084 of 2003 -: 4 :-learned counsel has advanced is that Ext.X16 series, Exts.X17,X19, A1 and A2 relied on by the trial and first appellate courts cannot be accepted or acted upon. The mere fact, assuming so, that a portion of the award amount for acquisition of item No.1 of the plaint schedule was awarded to plaintiffs 2 and 3 is not by itself sufficient to show that they are the children of the lateMaideen Basha Rawther.

The learned counsel for the plaintiffs has contended that since marriage of the 1st plaintiff with Maideen BashaRawther took place long back, sufficient documentary evidence to prove that marriage could not be expected. It is argued that the available evidence is sufficient to show long cohabitation of Maideen Basha Rawther and the 1st plaintiff as husband and wife. That, coupled with the acknowledgment made by Maideen BashaRawther concerning paternity of Abdul Azeez is sufficient to raise the presumption regarding valid marriage. The learned counsel has placed reliance on the decision in Chowdegowda v.Nagaraju (AIR 1996 SC 3485).

The 1st plaintiff has given evidence as P.W.1 as to her(alleged) marriage with Maideen Basha Rawther. P.W.2 (aged about 75 years at the time of giving evidence in the trail court) R.S.A. No.1084 of 2003 -: 5 :-claimed to have attended that marriage. He has deposed to the marriage. Another witness examined by the plaintiffs is P.W.7who claims to have been doing business near to the residence of Maideen Basha Rawther and the 1st plaintiff. He has given evidence that Maideen Basha Rawther and the 1st plaintiff lived as husband and wife. Exhibit A1 is a certificate and Ext.A2, copy of aletter (signed by D.W.1, the then Secretary of the NadukkunnuMahal as a true copy) referring to the marriage of the 1st plaintiff and Maideen Basha Rawther. Exhibit X16 is the birth certificate of the 3rd plaintiff. Exhibit X16(a) is the relevant entry in the register maintained by the local authority. That document is produced to show that information regarding parents of the 3rdplaintiff (contained in Ext.X16) was given by the late MaideenBasha Rawther and that he has signed Ext.X6(a). Exhibit X17 is the Nikah register of the 2nd plaintiff where according to the plaintiffs, the 1st defendant is shown as guardian describing himself as “brother” (സഹ(cid:3)(cid:4)ദരന ). Exhibit X19 was proved throughP.W.

It is an application for admission of the 2nd plaintiff to theL.P. School. There, the date of birth of the 2nd plaintiff is stated as02.05.1952. According to the plaintiffs, that application is signed by the paternal uncle of plaintiffs 2 and 3 and defendants 1 to 3. R.S.A. No.1084 of 2003 -: 6 :-9.It is argued by the learned counsel for additional defendants 5 to 8 that Exts.X16 and X16(a) are of no use since the signature appearing to be that of Maideen Basha Rawther in Ext.X16(a) is not proved. It is also argued by the learned counsel that While Ext.X16 and X16(a) state the place of residence of the persons referred to therein as “Moolathundil veedu”, there is no evidence to show that at any point of time the late MaideenBasha Rawther and the 1st plaintiff resided in the said house. Itis argued by the learned counsel that no attempt is made to prove the signature, allegedly of Maideen Basha Rawther in Ext.X16(a).

So far as Ext.X17 is concerned, the argument of the learned counsel is that though Ext.X17 shows that all the persons referred to therein have subscribed their signatures, the 1stdefendant who is said to have signed as guardian of the 3rdplaintiff has not signed the register. It is pointed out that there are additions in Ext.X17 making that document unreliable. It is further pointed out that the word “brother” (സഹ(cid:3)(cid:4)ദരന ) is inserted in Ext.X16 in a different ink.

So far as the evidence of P.Ws1 and 2 is concerned, true that they were not able to give the date of the alleged R.S.A. No.1084 of 2003 -: 7 :-marriage of the 1st plaintiff with Maideen Basha Rawther. Theevidence of the 1st plaintiff as P.W.1 is that her marriage with Maideen Basha Rawther was about 47-48 years back (of her giving evidence in the trial court) when she was aged about 17 years. True that P.W.2 was not able to give specific answers for many of the questions put to him in cross-examination. That could be attributed to his old age and the fact that he was deposing abouta marriage which according to him took place long back. I aminclined to think that some allowance, having regard to his age and the fact that he was deposing something which according to him occurred several years back has to be given. I must notice that P.W2 was cross-examined at length and on the core issue asto the marriage, he withstood the cross-examination. Whileappreciating evidence of P.Ws.1 and 2, the court cannot forget the hard realities of life – the old age of P.Ws.1 and 2 and the fact that they were giving evidence about something which happened long back.

P.W.7 who claimed to have been engaged in business near the residence of Maideen Basha Rawther and the 1st plaintiff has given evidence regarding their living together as husband and wife. The courts below have found the evidence of P.Ws.1, 2 R.S.A. No.1084 of 2003 -: 8 :-and 7 acceptable. There is no reason why this Court should hold otherwise.

P.W8, the Panchayath Secretary has proved Exts.X16and X16(a). In Ext.X16, the birth certificate of the 3rd plaintiff, parents of the 3rd plaintiff are mentioned as Maideen Basha and Iysha Beevi and their place of residence as 'Moolathundil veedu'.In Ext.X16(a), the relevant entry in the register it is stated that the above said information was given by Maideen Basha Rawther. The said person is seen to have signed the register (of course, disputed by the defendants). True, no admitted signature of the late Maideen Basha Rawther is before the court for comparison of that signature with the signature in Ext.X16(a). But I must notice that the place of residence of the informant is given as'Moolathundil veedu'.

No doubt the defendants have a contention that there is no evidence to show that Maideen Basha Rawther ever resided in the said house. The 1st plaintiff in her evidence asP.W.1 has stated that herself and Maideen Basha Rawther after their marriage lived in 'Moolathundil veedu'. That evidence is acceptable. Exhibit X16(a) is a register maintained by the local authority as required by law. There is no reason to think that R.S.A. No.1084 of 2003 -: 9 :-somebody else has signed it. Viewed in that line there is no reason to think that the signature in Ext.X16(a) is of somebody other than Maideen Basha Rawther.

Exhibit X17, true, is not signed by the 1st defendant who, it is alleged, acted as guardian of the 3rd plaintiff at the time of his marriage. It is also true that the word “brother” occurring in Ext.X17 is written in a different ink. But I find that there are several other matters also written in Ext.X17 in the same ink.

Exhibit X17 by itself may not be sufficient to hold that the 1st defendant has acted as guardian of the 3rd plaintiff at the time of marriage of the latter. Exhibit X17 has to be considered in the light of other evidence the plaintiffs have adduced.

The same is the position so far as Ext.X19 is concerned. There, according to the plaintiffs, paternal uncle of the plaintiffs 2 and 3 and defendants 1 to 3 has signed the application for admitting the 2nd plaintiff to the L.P. School. I must notice that in Ext.X19, the date of birth of the 2nd plaintiff is shown as 02.05.1952. True signature of the person who signed Ext.X19as guardian is not proved by other evidence. But it is not disputed by the defendants also that the person referred to in Ext.X19 is R.S.A. No.1084 of 2003 -: 10 :-the paternal uncle of defendants 1 to 3. There is no reason why adocument like Ext.X19 should be fabricated so many years back.

Exhibit A2 is another document which would throw some light into the controversy. Exhibit A2 is the true copy ofa letter (signed by D.W1 as true copy) which the Secretary of Nadukkunnu Mahal (as on the date of original of Ext.A2) had issued in reply to an application made by the 1st plaintiff on19.06.1964. Though Ext.A2 was originally proved through the 1stplaintiff as P.W.1, the Secretary of the Nadukkunnu Mahal who signed Ext.A2 as true copy has owned it in his evidence as D.W.1.In Ext.A2 it is stated that records revealed that on the request made by Maideen Basha Rawther for a second marriage (after the death of his first wife in whom defendants 1 to 3 are born),permission was granted for such second marriage with the 1stplaintiff and that accordingly the marriage was performed on 27thPainkuni, 1122.

The learned counsel for the defendants would contend that if there was no register maintained during the relevant time showing that any such marriage took place, there was no possibility of any certificate like the original of Ext.A2 being issued to the 1st plaintiff. R.S.A. No.1084 of 2003 -: 11 :-

Exhibit A2 does not say that any register was maintained in connection with the marriage. The learned counselfor the plaintiffs submitted that during that time it was not necessary that a marriage register should have been maintained and if at all there be, that all the marriages were entered in that register.

No register is available to prove the marriage of the 1stplaintiff with Maideen Basha Rawther. The available evidence is Ext.A2 which shows that the said Maideen Basha Rawther had sought permission of the Mahal Committee for a second marriage(after the death of his first wife), permission was granted and consequent thereto, he married the 1st plaintiff on the 27thPainkuni 1122. Exhibit A2 would support the evidence of P.Ws.1and 2.

Exhibits X4 to X15 relate to the acquisition of a portion of item No.1 for Kallada Irrigation project and distribution of compensation for such acquisition. Compensation was apportioned by the Land Acquisition Officer and a portion of the compensation was awarded to the plaintiffs 2 and 3 as well(sometime in the year 1979).

The defendants did not object to the Land Acquisition R.S.A. No.1084 of 2003 -: 12 :-Officer apportioning compensation and awarding a portion of the same to the plaintiffs 2 and 3. Unless plaintiffs 2 and 3 were the legal heirs of Maideen Basha Rawther entitled to succeed to his estate, no such apportionment or distribution of compensation would have been made and if the defendants really had a contest, they would have challenged the apportionment of the amount. Nothing of that sort has happened. That indicates that in 1979,none of the defendants had any challenge to the entitlement of plaintiffs 2 and 3 to a portion of the compensation. It is also come in evidence from the report of the Advocate Commissioner that the 2nd plaintiff is residing in a portion of the suit property. There isno case or evidence that the 2nd plaintiff trespassed into the suit property. The residence of the 2nd plaintiff in the suit property indicates his relationship with Maideen Basha Rawther.

In Chowdegowda v. Nagaraju (supra) the customary marriage had taken place about 40 years back and there was difficulty in proving the marriage at that distant point of time. Evidence revealed that parties lived together as husband and wife. There was also some evidence let in to show that the father had described the appellant therein as his son born in his first wife. Based on the above the Supreme Court applied the R.S.A. No.1084 of 2003 -: 13 :-presumption of valid marriage. The decision applies to the facts of this case.

It is pointed out by the learned counsel for the defendants that in the evidence of the 1st plaintiff as P.W1 she stated that she had married a second time and P.W.2 in his evidence stated that the 1st plaintiff has a husband living (as on the date of giving evidence) and that three children are born in that wedlock. But the plaint does not mention about any such second marriage of the 1st plaintiff. The learned counsel argues that it amounts to suppression of the material facts which affects the credibility of the evidence which the 1st plaintiff has given asP.W.1.

True that it is not so pleaded in the plaint. But going by the evidence of P.W2 it would appear that the 1st plaintiff has altogether six children – three in her wedlock with Maideen BashaRawther (of whom one is Abdul Azeez who expired) and three areborn in her second marriage (with one Thangal Rawther).Possibility is only that the second marriage of the 1st plaintiff is after the death of Maideen Basha Rawther in the year, 1952. Ifthat be so, the second marriage of the 1st plaintiff is of no consequence so far as the present claim for partition is R.S.A. No.1084 of 2003 -: 14 :-concerned. In that view of the matter I am inclined to think that the second marriage of the 1st plaintiff was not a relevant matter which was required to be pleaded by the plaintiffs in the plaint. Hence there could be no suppression of material fact.

It is with reference to the evidence on record that the courts below held that evidence of long cohabitation of the 1stplaintiff with Maideen Basha Rawther is sufficient to raise presumption of valid marriage. I found that there is sufficient and reliable evidence regarding cohabitation between MaideenBasha Rawther and the 1st plaintiff and that the presumption regarding valid marriage would arise. In that view of the matter, Ido not find any substantial question of law involved though framed by this Court for a decision. Sub-sec. (5)of Section 100 of the Code of Civil Procedure would enable the plaintiffs to argue that the appeal does not involve any substantial question of law.

So far as argument advanced by the learned counsel that Exts.X16 and X16(a) would not operate as acknowledgment of paternity of the 3rd plaintiff is concerned I stated that thoughthere is no direct evidence that the signature in Ext.X16(a) is that of the late Maideen Basha Rawther, having regard to the facts and circumstances there is no reason to think that the R.S.A. No.1084 of 2003 -: 15 :-signature is of somebody other than Maideen Basha Rawther. Ialso referred to the evidence which gave rise to the presumption regarding valid marriage. It follows that the 3rd plaintiff whose paternity is referred to in Ext.X16 by Maideen Basha Rawther is the legitimate son of Maideen Basha Rawther. In that view of the matter courts below are correct in observing that Maideen BashaRawther has acknowledged paternity of the 3rd plaintiff.