J U D G M E N T

The concurrent preliminary decree in a suit for partition, is assailed by the defendant in the suit. 2. The plaint schedule property belonged to late Kochu Pargade. Plaintiffs 1 to 4 claim to be the wife and children respectively, of Kochu Pargade. According to the plaintiffs, Kochu Pargade had married yet another lady named Poovakke. Kochu Pargade died in the year 1983. He had no issues in Poovakke. In the year 1992, Poovakke, claiming to be the sole legal heir of Kochu Pargade, conveyed the plaint schedule to one Sadasiva Rao as per Ext.B6. As per Ext.B1 Sale Deed of the year 1993, Sadasiva Rao conveyed the property to the defendant. The plaintiffs contend that the sale deeds are not binding on their share over the plaint schedule property, and has accordingly laid the suit for partition. The defendant disputes the status of plaintiffs as the wife and children of Kochu Pargade. Thus, he denied the right claimed by the plaintiffs over the plaint schedule property.

3. The suit was originally decreed by the trial court. Challenging the said decree, the defendant filed appeal. The appellate court held that there is no sufficient material to prove the marriage of the first plaintiff with Kochu Pargade, and set aside the decree of the trial court and remanded the matter back for disposal de novo. Both parties were permitted to adduce fresh evidence.

4. Pursuant to the order of remand, further evidence was adduced by both sides. The trial court on appreciation of the evidence held that the plaintiffs are the wife and children of Kochu Pargade. A preliminary decree for partition was passed, declaring the 4/5 shares of the plaintiffs over the plaint schedule property. The decree was affirmed by the first appellate court. It is aggrieved thereby that this second appeal is preferred by the defendant.

5. Heard learned senior counsel Sri.Kodoth Sreedharan assisted by Adv.Sri.Chackochen Vithayathil, on behalf of the appellant, and Sri.Kodoth Pushparajan on behalf of the respondents-plaintiffs, on the following substantial questions of law:-

(1) Is the defendant entitled to challenge the status of the plaintiffs as the widow and children of late Kochu Pargade?

(2) Were the courts below justified in relying on Exts.A3 to A6 documents to find that the plaintiffs are the legal heirs of late Kochu Pargade?

(3) Is the suit maintainable before the Civil Court in view of the bar of jurisdiction under Section 7 and 8 of the Family Court’s Act ?

6. The respondents-plaintiffs challenge the right of the defendant to dispute the marriage of the first plaintiff with Kochu Pargade on the reasoning that the defendant is a total stranger. I am unable to agree with the said contention. The defendant claims title over the plaint schedule property tracing title to Ext.B6 Sale Deed executed by Poovakke. Ext.B6 was executed by Poovakke on the assertion that she is the wife and sole legal heir of Kochu Pargade. So, when a rival claim of title is urged by the plaintiffs, claiming to be the wife and children of Kochu Pargade, definitely the defendant is entitled to challenge the same. The objection of the respondents is thus without substance. Substantial question of law No.1 is answered accordingly.

7. Whether the evidence on record establishes that the plaintiffs are the wife and children of late Kochu Pargade, is the question. The first plaintiff as PW2 has deposed that her marriage with Kochu Pargade was in the year 1945. It is in tune with the plaint averments. The details regarding the ceremony of marriage was spoken to by her. While evaluating the evidence of the plaintiffs regarding the marriage of the first plaintiff with Kochu Pargade, it is to be borne in mind that, in the year 2003, the plaintiffs are called upon to prove the marriage conducted in the year 1945 i.e. 58 years prior to the examination of PW2. It is to be appreciated that, at such distance of time, production of evidence regarding a marriage held 58 years back would be very dif