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IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE P.SOMARAJAN TUESDAY, THE 22nd DAY OF NOVEMBER 2022 / 1ST AGRAHAYANA, 1944 AS NO. 875 OF 1998 (C)
AGAINST THE JUDGMENT & DECREE DATED 30.03.1998 IN OS No.132/1994 OF SUB COURT, VADAKARA APPELLANTS/DEFENDANTS 15 & 17 (TRANSPOSED AS 3 r d AND 4 t h PLAINTIFFS)
AND DEFENDANT 16:
1 MANNAT DEVI, DARMADAM AMSOM DESOM, THALASSERY TALUK (DIED)
2 MANNAT BINDHU BHASKARAN, B.J. 3, GOVERNMENT QUARTER LANSPET, PONDICHERI.
3 MANNAT JANAKI, C/o RANJITH VELANDI, P.B. NO. 772, SHARJAH. (DIED)
ADDL.A4 M.K.RAJENDRAN, THUSHARAM, NEAR KALAMANDIRAM, MELUR-670 661.
ADDL.A5 RETHI K, KRISHNA, NEAR DHARMADAM POST OFFICE, P.O.DHARMADAM-670 106.
THIRUVANANTHAPURAM ADDL.A6 PRASANNA K, KAMBIL, KONDOTHU HOUSE, NEAR ANGANVADI, P.O DHARMADAM-670 106.
ADDL.A7 JAYA DINAKARAN, UMMAL QUAIN, POST BOX NO.475, UNITED ARAB EMIRATES.
(LEGAL HEIRS OF DECEASED IST APPELLANT ARE IMPLEADED AS ADDITIONAL APPELLANTS 4 TO 7 VIDE ORDER DATED 6.3.17 IN I.A.281/17)
ADDL.A8 SHOBANA K.O., D/o LATE MANNAT JANAKI, “GURUCHARAN”, ORUPURATH, BEHIND MANDOLA TEMPLE, AZHIYUR- 673309.
ADDL.A9 ARUN A.P., S/o LATE RAJI, RAJAMMA NIVAS, NEAR MAHE INDOOR STADIUM, THATHAKULAM, MAHE ADDL.A10 ANUP.A.P., S/o LATE RAJI, RAJAMMA NIVAS, NEAR MAHE INDOOR STADIUM, THATHAKULAM, MAHE ADDL.A11 AMRITHA.A.P., D/o LATE RAJI, RAJAMMA NIVAS, NEAR MAHE INDOOR STADIUM, THATHAKULAM, MAHE.
(LEGAL HEIRS OF DECEASED 3RD APPELLANT ARE IMPLEADED AS ADDITIONAL APPELLANTS A8 TO A11 VIDE ORDER DATED
11/02/19 IN IA 4/19)
BY ADVS. SRI.N.L.KRISHNAMOORTHY SRI.K.LAKSHMINARAYANAN SMT.SATHYASHREE PRIYA EASWARAN RESPONDENTS/PLAINTIFFS 1 & 2 (TRANSPOSED AS 1 8 t h AND 1 9 t h DEFENDANTS) AND DEFENDANTS 1 TO 14:
1 PUTHANVALAPPIL DEVU, AZHIYOOR AMSOM, CHOMBAL DESOM, VADAKARA TALUK. (DIED)
2 BHASKARAN, “REENA NIVAS”, KANDIYIL THAZHA, (DIED)
AZHIYUR AMSOM, CHOMBAL DESOM, VADAKARA TALUK.
3 P.V. KUNHIKANNAN, CHERUMADATHIL, NO.III RAILWAY GATE, AZHIYOOR AMSOM, DESOM, VADAKARA TALUK. (DIED)
4 CHEROOTTY ALIAS LEELA, KUTTIPPUNAM KUNIYIL VEEDU, VIYYUR AMSOM, PULIYANCHERI DESOM, P.O. KOLLAM, KOYILANDY TALUK. (DIED).
5 P.V. MUKUNDAN, REETHA NILAYAM, NEAR KUNHIPALLY, AZHIYOOR AMSOM, CHOMBAL DESOM, VADAKARA TALUK. (DIED)
6 P.V. KRISHNAN, ARATHI, MAHE COMMUNE, P.O. MAHE.
7 P.V. VASANTHA, W/o LATE K.K. BALAN, THAZHA PUTHUR HOUSE, PAYANTHONG, KUTTIPRAM AMSOM, DESOM, P.O. KALLACHI.
8 K.K. DEVARAJ, BOMBAY TEENCHALLANGE, K.IV GROUP INDUSTRIES, SUN MILL COMPOUND, LOWER PAREL, BOMBAY -400013.
9 SWARNALATHA, PARVATHY GOVIND NIVAS, NEAR G.G.H.S., P.O. MAHE.
10 P.V. PUSHPAN, C/o K.K. DEVARAJ, BOMBAY TEEN CHALLENGE, K. IV INDUSTRIES, SUN MILL COMPOUND, LOWER PAREL, BOMBAY-400013.
11 PUTHANVALAPPIL USHA, AZHIYOOR AMSOM, (DIED)
CHOMBAL DESOM, NEAR THEEPPATTI CO., P.O. CHOMBALA, VADAKARA TALUK.
12 PUTHANVALAPPIL JANU, AZHIYOOR AMSOM, (DIED)
CHOMBAL DESOM, NEAR THEEPPATTI CO., VADAKARA TALUK.
(IT IS RECORDED THAT 12TH RESPONDENT DIED AND THE RESPONDENTS R13 TO R16 ALREADY IN THE PARTY ARRAY ARE HER LEGAL REPRESENTATIVES VIDE ORDER DATED 06/03/2017 IN MEMO DATED 03/02/2017 IN CF.NO.758/2017)
13 PUTHANVALAPPIL SUDHAKARAN, AZHIYOOR AMSOM, CHOMBAL DESOM, NEAR THEEPPATTI CO., VADAKARA TALUK.
14 PUTHANVALAPPIL PRADEEPAN, AZHIYOOR AMSOM, CHOMBAL DESOM, NEAR THEEPPATTI CO., VADAKARA TALUK.
15 PUTHANVALAPPIL VINODAN, AZHIYOOR AMSOM, CHOMBAL DESOM, NEAR THEEPPATTI CO., VADAKARA TALUK.
16 PUTHANVALAPPIL SANTHOSHAN, AZHIYOOR AMSOM, CHOMBAL DESOM, NEAR THEEPPATTI CO., VADAKARA TALUK.
ADDL.R17 PURUSHOTHAMAN, S/o LATE PUTHANVALAPPIL DEVU, DEVIKA, CHOMBAL AMSOM, VATAKARA TALUK.
(LEGAL HEIR OF DECEASED IST RESPONDENT IS IMPLEADED AS ADDITIONAL 17TH RESPONDENT VIDE ORDER DATED 18.7.17 IN I.A.708/17.
ADDL.R18 PUSHPA, D/o LATE P.V.KUNHIKANNAN, CHERUMADATHIL, NO.III, RAILWAY GATE, AZHIYOOR AMSOM DESOM, (P.O) KOLLAM, KOYILANDY TALUK-673 307.
ADDL.R19 DINESH, S/o LATE P.V.KUNHIKANNAN, CHERUMADATHIL, (DIED)
NO.III, RAILWAY GATE, AZHIYOOR AMSOM DESOM, (P.O) KOLLAM, KOYILANDY TALUK-673 307.
ADDL.R20 SWARNALATHA, D/o LATE P.V.KUNHIKANNAN, CHERUMADATHIL, NO.III, RAILWAY GATE, AZHIYOOR AMSOM DESOM, (P.O) KOLLAM, KOYILANDY TALUK-673 307.
(LEGAL HEIRS OF DECEASED 3RD RESPONDENT ARE IMPLEADED AS ADDITIONAL RESPONDENTS 18 TO 20 VIDE ORDER DATED
18.7.2017 IN I.A.706/17).
ADDL.R21 AJITHA, D/o LATE CHERROTY @ LEELA, KUTTIPURAM KUNIYIL VEEDU, VIYYUR AMSOM, PULIYANCHERI DESOM, (P.O) KOLLAM, KOYILANDY TALUK-673 307.
ADDL.R22 GIRIJA, D/o LATE CHERROTY @ LEELA, KUTTIPURAM KUNIYIL VEEDU, VIYYUR AMSOM, PULIYANCHERI DESOM, (P.O) KOLLAM, KOYILANDY TALUK-673 307.
ADDL.R23 GIREESHAN, S/o LATE CHERROTY @ LEELA, KUTTIPURAM KUNIYIL VEEDU, VIYYUR AMSOM, PULIYANCHERI DESOM, (P.O) KOLLAM, KOYILANDY TALUK-673 307.
ADDL.R24 UNNI, S/o LATE CHERROTY @ LEELA, KUTTIPURAM KUNIYIL VEEDU, VIYYUR AMSOM, PULIYANCHERI DESOM, (P.O) KOLLAM, KOYILANDY TALUK-673 307.
(LEGAL HEIRS OF DECEASED 4TH RESPONDENT ARE IMPLEADED AS ADDITIONAL RESPONDENTS 21 TO 24 VIDE ORDER DATED
18.7.17 IN IA. 710/17.
ADDL.R25 RAJALAKSHMI, W/o LATE P.V.MUKUNDAN, REETHA NILAYAM, NEAR KUNHIPALLY, AZHIYOOR AMSOM, CHOMBAL DESOM, VATAKARA TALUK.
ADDL.R26 REETHA, D/o LATE P.V.MUKUNDAN, REETHA NILAYAM, NEAR KUNHIPALLY, AZHIYOOR AMSOM, CHOMBAL DESOM, VATAKARA TALUK.
(LEGAL HEIRS OF DECEASED 5TH RESPONDENT ARE IMPLEADED AS ADDITIONAL RESPONDENTS 25 AND 26 VIDE ORDER DATED
8.12.17 IN I.A.2030/17)
ADDL.R27 PUTHANVALAPPIL JAYADEVAN, PUTHANVALAPPIL, AZHIYUR AMSOM, CHOMBAL DESOM, NEAR THEEPATTI P.O., P.O.CHOMBALA, VATAKARA TALUK, PIN – 673 308 ADDL.R28 PUTHANVALAPPIL VASANTHA, PUTHANVALAPPIL, AZHIYUR AMSOM, CHOMBAL DESOM, NEAR THEEPATTI P.O., P.O.CHOMBALA, VATAKARA TALUK-673308 ADDL.R29 PUTHANVALAPPIL DEVARAJAN, PUTHANVALAPPIL, AZHIYUR AMSOM, CHOMBAL DESOM, NEAR THEEPATTI P.O., P.O.CHOMBALA, VATAKARA TALUK-673308 ADDL.R30 PUTHANVALAPPIL SWARNA, PUTHANVALAPPIL, AZHIYUR AMSOM, CHOMBAL DESOM, NEAR THEEPATTI P.O., P.O.CHOMBALA, VATAKARA TALUK-673308 ADDL.R31 PUTHANVALAPPIL PUSHPARAJAN, PUTHANVALAPPIL, AZHIYUR AMSOM, CHOMBAL DESOM, NEAR THEEPATTI P.O., P.O.CHOMBALA, VATAKARA TALUK-673308 ADDL.R32 KAMALA, W/o LATE BHASKARAN, AGED YEARS, “REENA NIVAS”, KANDIYIL THAZHA, AZHIYUR AMSOM, CHOMBAL DESOM, VATAKARA TALUK.
ADDL.R33 RADHIKA, D/o LATE BHASKARAN, AGED YEARS, “REENA NIVAS”, KANDIYIL THAZHA, AZHIYUR AMSOM, CHOMBAL DESOM, VATAKARA TALUK.
ADDL.R34 REENA, D/o LATE BHASKARAN, AGED YEARS, “REENA NIVAS”, KANDIYIL THAZHA, AZHIYUR AMSOM, CHOMBAL DESOM, VATAKARA TALUK.
ADDL.R35 USHA, D/o LATE BHASKARAN, AGED YEARS, “REENA NIVAS”, KANDIYIL THAZHA, AZHIYUR AMSOM, CHOMBAL DESOM, VATAKARA TALUK.
ADDL.R36 SHEREENA, D/o LATE BHASKARAN, AGED YEARS, “REENA NIVAS”, KANDIYIL THAZHA, AZHIYUR AMSOM, CHOMBAL DESOM, VATAKARA TALUK.
(THE LRs OF DECEASED 2nd AND 11th RESPONDENT ARE IMPLEADED AS ADDL.RESPONDENTS 27 TO 36 VIDE ORDER DATED
30.09.2019 IN IA 01/18 AND 01/19)
ADDL.R37 ROOPA, W/o LATE DINESH, AGED 56 YEAS, 'CHERUMADATHIL', No.111, RAILWAY GATE, AZHIYOOR AMSOM DESOM, P.O. KOLLAM, KOYILANDY TALUK – 673 305.
ADDL.R38 RUTHIN, S/o LATE DINESH, AGED 29 YEAS, 'CHERUMADATHIL', No.111, RAILWAY GATE, AZHIYOOR AMSOM DESOM, P.O. KOLLAM, KOYILANDY TALUK – 673 305.
ADDL.R39 DEEKSHITH, S/o LATE DINESH, AGED 27 YEAS, 'CHERUMADATHIL', No.111, RAILWAY GATE, AZHIYOOR AMSOM DESOM, P.O. KOLLAM, KOYILANDY TALUK – 673 305.
(THE LEGAL HEIRS OF DECEASED R19 ARE IMPLEADED AS ADDITIONAL RESPONDENTS 37 TO 39 VIDE ORDER DATED
08.11.2022 IN IA 1/2022)
BY ADVS. SRI.K.P.DANDAPANI (SR)
SRI.MILLU DANDAPANI SRI.R.PARTHASARATHY THIS APPEAL SUITS HAVING COME UP FOR HEARING ON 22.11.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
JUDGMENT
It is fairly conceded by the learned counsel for the appellants that the remand by the Apex Court is for denovo consideration regarding entitlement under Section 16 of the Hindu Marriage Act. It is well settled that any illegitimate son born in the wedlock which was found to be illegal or defective or void on any ground would be entitled to succession only with respect to the self acquired property of the deceased father and not with respect to any family property held by him either by succession or otherwise. The legal position is very much settled by the Apex Court in Neelamma and Others v. Sarojamma and Others [(2006) 9 SCC 612]. Regarding the additional defendants 15 and 17 are concerned, the marriage of their parents i.e. Mannan with his second wife Kalliani, was solemnized early in the year 1960s and as such, no documentary evidence is available to prove the alleged solemnization of marriage. The school register produced clearly indicates the paternity of the child. The question as to how far the civil court can go into the question of solemnization of marriage under Section 16 of the Hindu Marriage Act was taken up and considered by this Court in Thachambath Padmini Amma v. Kizhakke Thachambath Karthiyani Amma and Others [2019 (5) KHC 225]. By virtue of amendment of Section 16 of the Hindu Marriage Act in 1976, benefit is extended to all legitimate children born out of wedlock even in the absence of decree of nullity of marriage or void marriage. If the marriage is ancient and old not capable of proving the same by direct evidence, either documentary or oral, presumption based on long cohabitation can be safely applied when there is evidence to show marital cohabitation. As discussed earlier, in the school register, the paternity of the children was made mentioned and this would discharge the initial burden. Then it is upon the opposite party to prove the contrary by evidence. Paragraphs 7, 10 and 11 of the said judgment are extracted below for reference:
“7. All these would show that Section 16 is really a
of the benefit conferred under Section 16 of the Hindu Marriage Act,1955 to legitimize children even in the absence of a decree of nullity of marriage or void marriage. But Section 16 of the said Act by its nature is principally an incidence attached to the decree of nullity of marriage or void marriage and the extension of benefit even in the absence of a decree of nullity will not change its original character as an incidence attached to a decree of nullity of marriage or void marriage as it is an additional measure incorporated by amendment so as to protect the interests of illegitimate children in the absence of such a decree. The reason is well evident that there cannot be an annulment of marriage after the death of one of the spouse and it would virtually deny the benefit conferred under Section 16 of the Act to the children born, in the absence of a decree of annulment of marriage during the life time of the spouse. It will not change the very principle under Section 16 of the Act as a consequence to a decree of nullity of marriage or void marriage under the provisions of Hindu Marriage Act, 1955. In the absence of a decree of nullity of marriage or void marriage, the civil court can go into the question of nullity or voidability of the marriage when the question of legitimacy and benefit conferred under Section 16 of the Hindu Marriage Act came up for consideration. The question of solemnization of marriage would arise on two occasions that (1) at the time of adjudication of validity of the marriage either under Section 11 or under Section 12 of Hindu Marriage Act by the competent court under that Act or (2) at the time when the matter came up as
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