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SUPREME COURT OF INDIA
S. Abdul Nazeer, Vikram Nath, JJ.
Kattukandi Edathil Krishnan & Anr. – Appellants
Versus
Kattukandi Edathil Valsan & Ors. – Respondents
Civil Appeal No(S). 6406-6407 OF 2010
Decided On : 13-06-2022
(A) Indian Evidence Act, 1872 – Section 114 – Presumption of marriage – If a man and a woman live together for long years as husband and wife, there would be a presumption in favour of wedlock – Such a presumption could be drawn under Section 114 of Evidence Act – Although, presumption is rebuttable, heavy burden lies on him who seek to deprive relationship of legal origin to prove that no marriage took place. (Para 15)
(B) Civil Procedure Code, 1908 – Order XX Rule 18 – Decree in partition suit – Preliminary decree declares rights or shares of parties to partition – Once shares have been declared and a further inquiry still remains to be done for actually partitioning property and placing parties in separate possession of divided property, then such inquiry shall be held and pursuant to result of further inquiry, a final decree shall be passed – Fundamentally, distinction between preliminary and final decree is that preliminary decree merely declares rights and shares of parties and leaves room for some further inquiry to be held and conducted pursuant to directions made in preliminary decree and after inquiry having been conducted and rights of the parties being finally determined, a final decree incorporating such determination needs to be drawn up. (Para 30)
(C) Civil Procedure Code, 1908 – Order XX Rule 18 – Partition suit – Final decree proceedings can be initiated at any point of time – There is no limitation for initiating final decree proceedings – Either of parties to suit can move application for preparation of a final decree and any of defendants can also move application for the purpose – By mere passing of a preliminary decree the suit is not disposed of – Since there is no limitation for initiating final decree proceedings, litigants tend to take their own sweet time for initiating final decree proceedings – In some States, courts after passing a preliminary decree adjourn suit sine die with liberty to parties for applying for final decree proceedings – In some other States, a fresh final decree proceedings have to be initiated under Order XX Rule 18 – However, this practice is to be discouraged as there is no point in declaring rights of parties in one proceedings and requiring initiation of separate proceedings for quantification and ascertainment of relief – This will only delay realization of fruits of decree. (Paras 31 and 32)
(D) Civil Procedure Code, 1908 – Order XX Rule 18 – Partition suit – Final decree – Once preliminary decree is passed by Trial Court, court should proceed with case for drawing up final decree suo motu – After passing of preliminary decree, Trial Court has to list the matter for taking steps under Order XX Rule 18 of CPC – Courts should not adjourn the matter sine die – There is also no need to file a separate final decree proceedings – In same suit, court should allow concerned party to file appropriate application for drawing up final decree – Suit comes to an end only when a final decree is drawn – Trial Courts directed to list the matter for taking steps under Order XX Rule 18 of CPC soon after passing of preliminary decree for partition and separate possession of property, suo motu and without requiring initiation of any separate proceedings. (Para 33)
Facts of the case:
Instant appeals arise out of the judgment and decree dated 05.02.2009 passed by the High Court of Kerala at Ernakulam in A.S. No.102 of 1996(A) and A.S. No.107 of 1996 whereby High Court has allowed the appeals and set aside the decree for partition passed by the Trial Court. The appellants were the plaintiffs and Kattukandi Idathil Karunakaran was the defendant who died during the pendency of suit. Therefore, his legal representatives were brought on record as defendants no.2 to 5.
Findings of Court:
Defendants have failed to rebut the presumption in favour of a marriage between Damodaran and Chiruthakutty on account of their long cohabitation. In the circumstances, High Court was not justified in setting aside the said judgment of Trial Court.
Result : Directions issued.
The legal document indicates that Damodaran and Chiruthakutty lived together for more than 50 years prior to the filing of the suit. Specifically, it is mentioned that their marriage took place in the year 1940, and the suit was filed with the first plaintiff born in 1942. The evidence and documents produced by the parties, along with the court's findings, support the conclusion that their cohabitation spanned several decades, well over 50 years.
JUDGMENT :
S. ABDUL NAZEER, J.
1. The instant appeals arise out of the judgment and decree dated 05.02.2009 passed by the High Court of Kerala at Ernakulam in A.S. No.102 of 1996(A) and A.S. No.107 of 1996 whereby the High Court has allowed the appeals and set aside the decree for partition passed by the Trial Court.
2. The appellants were the plaintiffs and Kattukandi Idathil Karunakaran was the defendant who died during the pendency of the suit. Therefore, his legal representatives were brought on record as defendants no.2 to 5. For the sake of convenience, the parties are referred by their respective ranking before the Trial Court.
3. In the suit, the plaintiffs contended that the suit property belonged to one Kattukandi Edathil Kanaran Vaidyar who had four sons viz. Damodaran, Achuthan, Sekharan and Narayanan. The first plaintiff is the son of Damodaran, born in the wedlock with one Chiruthakutty, and the second plaintiff is the son of the first plaintiff. Achuthan had one son by name Karunakaran, the predecessor in-interest of the defendants. Sekharan was a bachelor and died without any issue. Narayanan married one Lakshmi and they had a daughter by the name of Janaki, who also died as a spinster. The plaintiffs claimed half share in the suit schedule property.
4. It is the case of the defendants that all the children except Achuthan died as bachelors and Karunakaran is the only son of Achuthan. They denied the contention of the plaintiffs that Damodaran had married Chiruthakutty and that the first plaintiff was the son born to them in the said wedlock. Their further contention was that Chiruthakutty was not the wife of Damodaran. Thus, it was pleaded that the plaintiffs are not entitled for any share in the suit schedule property.
5. On the basis of the pleadings of the parties, the Trial Court framed relevant issues. The Trial Court on examination of the evidence on record held that Damodaran had a long cohabitation with Chiruthakutty and that due to such cohabitation, it could be concluded that Damodaran had married Chiruthakutty and that the first plaintiff was the son born in the said wedlock. The Trial Court accordingly passed a preliminary decree for partition of the suit property into two shares and one such share was allotted to the plaintiffs.
6. Aggrieved by the said judgment and decree, the first defendant filed an appeal, A.S. No.102 of 1996, and the other defendants filed another appeal A.S.No.107 of 1996 before the High Court. While the matter was being argued, yet another contention was put forward by the defendants that if the first plaintiff was born to Damodaran through Chiruthakutty, he could only be an illegitimate child. As long as the marriage between Damodaran and Chiruthakutty is not proved, the plaintiffs cannot claim the right over the coparcenary property. This plea of the defendants was without any pleading to that effect and no such contention was put forth by the defendants before the Trial Court.
7. The High Court, on appreciation of the evidence on record, held that the first plaintiff was the son of Damodaran. However, the documents produced before the Court would not go to show that Damodaran actually married Chiruthakutty and that no presumption of a pre-existing valid marriage between Damodaran and Chiruthakutty could arise. The High Court opined that the position of the first plaintiff to be of an illegitimate child. That being so, the plaintiffs would not be entitled for a share in the coparcenary property since the marriage between Damodaran and Chiruthakutty was not a valid one. On the basis of this conclusion, the High Court remitted the matter back to the Trial Court for fresh consideration. The Trial Court permitted the parties to adduce additional evidence and, if necessary, to amend the pleadings so as to consider the factum of marriage.
8. The plaintiffs challenged the above order of remand before this Court and this Court allowed the appeals by setting aside the order of remand with
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