The third defendant in the suit for partition filed by the first respondent herein, wherein preliminary decree for partition was passed declaring one-half right in favour of the plaintiff, challenges the preliminary decree in this appeal. 2. The plaint schedule properties admittedly belonged to Kuttan alias Kottan (hereinafter referred to as Kuttan). Defendants 1 and 2 are the brothers of Kuttan. The plaintiff claims that she was married by Kuttan on 3.7.1978 according to the customary rites and that they lived together as man and wife for quite some time. According to her, on 5.8.1978, Kuttan left the house without informing her and his whereabouts were not known thereafter. Plaintiff stated that she was constrained to presume that her husband Kuttan was dead. On the death of Kuttan, his rights in the plaint schedule properties devolved on the plaintiff and Battichi, the mother of Kuttan. The one-half right of Battichi devolved on her death in favour of defendants 1 and 2. Thus the plaintiff claimed one-half right in the plaint schedule properties.
3. The contention of defendants 1 and 2 is that Kuttan never married the plaintiff. They also disputed the case of the plaintiff that Kuttan was not heard of since 5.8.1978. Kuttan was available in the village till about 1985 and his whereabouts were not known since 1985. On the death of Battichi, her rights devolved on defendants 1 and 2. Plaintiff was never in joint possession of the property at any point of time. Defendants 1 and 2 sold the properties to the third defendant and he is now in possession of the property. It was contended that the plaintiff is the wife of one Venugopalan Maniyani and there are three children in that wedlock. The defendants contended that the plaintiff has no right to claim any share in the plaint schedule properties. Third defendant also supported the contentions of defendants 1 and 2.
4. To substantiate the contention that Kuttan married her, the plaintiff relies mainly on Ext.A1 certificate and Ext.X1 marriage register maintained by Kundamkuzhi Sri Panchalingeshwara Temple and the oral evidence of PWs.2 and 3. PW2 is the Secretary of the Temple who proved Ext.X1 register and Ext.A1 certificate. Ext.A1 certificate shows that Kuttan married K.N.Meenakshi, D/o.Kunhikannan on 3.7.1978 at the aforementioned temple and that the marriage was registered as per the records of the temple. Ext.X1, which is the register for the period from 28.2.1977 to 20.12.1978, shows that on 3.7.1978 marriage between Kuttan and K.N.Meenakshi took place. There are several entries of marriages after 3.7.1978 entered in the register. PW3 attended the wedding and he stated that he acted as `moonnan' and accompanied the bridegroom in that capacity. According to PW3, the ceremony of marriage consist of presentation of cloth and garlanding and the bride and bridegroom conducting 'pradakshinam' around the temple. PW1 also stated that these ceremonies were held. According to DW1, the first defendant, presentation of cloth and garlanding are the ceremonies of marriage in their community. The court below also relied on Ext.A6 statement given by DW1 to the police in respect of a complaint filed by him. DW1 admitted in evidence that he filed a petition before the police when attempt was made by Kunhikannan, father of the plaintiff, to prevent the defendants from entering into the plaint schedule property and the police recorded his statement. When the statement given by DW1 was read over to him, he resiled from his earlier statement. A portion of the statement was marked as Ext.A6. In Ext.A6, DW1 (the first defendant) stated to the police that when he went to the property having an extent of 62 cents which belonged to his younger brother, one Kunhikannan, retired PWD Work Superintendent, and his children threatened him with death. It is also stated that the accused persons are relatives of his brother's wife.
5. The defendants contended that the plaintiff is the wife of one Venugopalan Maniyani and there are three children born to them in that wedlock. The evidence of the plaintiff shows that at the time of giving birth to her first child, she was only 26 years old. Her marriage with Venugopalan Maniyani was on 19.5.1987. According to her, Kuttan married her on 3.7.1978. In the plaint, age of the plaintiff is shown as 36 years. On the basis of these materials, it was contended by the defendants that at the time of her alleged marriage with Kuttan, her age would not have been more than fifteen years and, therefore, the marriage is invalid under the Hindu Marriage Act.
It is also submitted by the learned counsel for the defendants that the court below was not justified in relying on Ext.A6 statement.
6. The court below held that the evidence of PW1 to PW3 can be relied on. PW2 proved Ext.X1 register. Ext.A1 certificate of marriage was issued by PW2. PW3, a neighbour, attended the marriage of Kuttan and the plaintiff. He was invited for the marriage. He stated that the brothers and father of Kuttan and others were present. He also spoke about the ceremonies of the marriage. He stated that he had accompanied Kuttan as “moonnan”. PW2 and PW3 are independent witnesses. The evidence of PW3 was believed by the court below. There is also nothing to disbelieve the evidence of PW1.
7. DW1, the first defendant stated in evidence that he does not know about the marriage certificate produced in the case and that he had not made any enquiries at the temple with respect to the marriage. According to him, he did not make any enquiries because there was no such marriage. DW1 stated that he had nothing to say about the marriage register.
8. It is relevant to note here that the specific case of the plaintiff is that the whereabouts of Kuttan were not known since 5.8.1978, on which date Kuttan left the house. It has come out in evidence that he had been working in Orissa. The specific case of defendants 1 and 2 in the written statement is that the whereabouts of Kuttan were not heard of only since 1985 and not since 5.8.1978 as stated by the plaintiff. But in evidence as DW1, the first defendant stated thus:
“After 5.8.78 Kuttan's whereabouts are not seen. Thereafter he did not come to our house. I had not seen him.”
The admissions made by DW1 in evidence would fortify the case of the plaintiff that whereabouts of Kuttan were not known as stated by the plaintiff. The plaintiff produced basic tax receipts in respect of the properties. In Ext.A2 basic tax receipt dated 23.7.1984 the name of the plaintiff appears and she is described as the wife of Kuttan. In Ext.A3 dated 12.11.1984 issued by the Panchayat for having paid the building tax, the person who remitted the tax is shown as “K.Kuttan, son of Ambu, paid by Meenakshi”. There is no explanation as to how the name of the plaintiff was entered in the revenue receipt and building tax receipt. DW1 stated in evidence as follows:
“I have nothing to say about the tax receipts produced by plaintiff.”
9. It is an admitted case that the whereabouts of Kuttan were not known for the last several years. Battichi was the mother of Kuttan. According to the plaintiff, after the death of Kuttan, his property devolved on his mother Battichi and the plaintiff. According to the defendants, on the death of Kuttan, the property devolved on Battichi. It is specifically stated in paragraph 5 of the written statement that Kuttan shall be presumed to be dead. It is also contended in the written statement that after the death of Battichi, her rights devolved on defendants 1 and 2, the children of Battichi. In paragraph 6 of the written statement, it is stated that defendants 1 and 2 sold the property to the third defendant. Ext.B1 shows that defendants 1 and 2 sold the property to Ramachandran. As per Ext.B2, Ramachandran sold the property to the third defendant.
10. It is contended that the marriage, if any, between the plaintiff and Kuttan would be void since the plaintiff had not attained majority at the time of the alleged marriage. Section 5(iii) of the Hindu Marriage Act provides that a marriage may be solemnized between any two Hindus, if at the time of marriage the bridegroom has completed the age of 21 years and the bride has completed the age of 18 years. Section 5(iii) was amended by Act 2 of 1978 with effect from 1.10.1978 and the age of 21 years and 18 years was prescribed. Before the amendment of Section 5(iii) by Act 2 of 1978, the age prescribed was 18 years for the bridegroom and 15 years for the bride. The marriage alleged in the present case was on 3.7.1978, before the commencement of Act 2 of 1978. Even assuming that the plaintiff had not attained the marriageable age as per Section 5(iii) of the Hindu Marriage Act, that would not make the marriage void and her right to succeed to the property of Kuttan would not be affected by the Act.
11. The court below considered the pleadings and documentary and oral evidence in detail. It was found that the evidence adduced on behalf of the plaintiff was reliable and acceptable. On going through the pleadings and documentary and oral evidence in the case, it cannot be said that the findings arrived at by the court below are erroneous or illegal. I do not find any ground to interfere with the judgment and decree passed by the court below.
For the aforesaid reasons, the appeal fails and it is, accordingly, dismissed. No order as to costs.
ahz/ (K.T.SANKARAN) Judge K.T.SANKARAN, J.
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------------------------------------- A.S.NO.788 OF 1997 E
JUDGMENT
28th October, 2014