Proof of marriage is essential for legitimacy and property rights under the Hindu Marriage Act.

1. Both these appeals are preferred against the judgment and decree in O.S.371/90 of the Subordinate Judge, Kozhikode. These appeals had arisen out of the case for partition where the plaintiff contends that the first plaintiff is the son of one Damodaran and the 2nd plaintiff is the son of the first plaintiff and that the first plaintiff had been born in the wedlock of Damodaran and Chiruthakutty and that the property belongs is in ancestral nature to the joint family of the plaintiffs and defendants and therefore prays for division of the property into two equal shares and to allot one such share. The first defendant died during the pendency of the suit and defendants 2 to 5 are his legal representatives. The 2nd defendant being a member of the co-parcenery had been impleaded as the 2nd defendant even at the inception of the suit. They have contended for the position that the first plaintiff is not the son of Damodaran and Damodaran had never married Chiruthakutty and therefore the plaintiffs are not entitled to any right over the property and the suit is liable to be dismissed.

2. Various issues were raised before the trial Court. PWs.1 and 2 and DWs.1 to 3 were examined and Exts.A1 to A25, B1 and B2 were marked and on an analysis of the evidence the trial court granted a decree in favour of the plaintiff for partition of the property into two halves and to allot one such half to the plaintiffs. It is against that decision both these appeals are preferred, one by defendants 3 to 5 and the other by 2nd defendant. This matter was disposed of by this Court by judgment dated 18.12.03. This Court on a consideration of the materials found that an opportunity has to be given to the parties to amend the pleadings and also adduce additional evidence in the matter in order to prove the long cohabitation between Chiruthakutty and Damodaran which will give raise to a presumption regarding the marriage.

3. The matter was taken up in Civil appeal No.6804 and 6805 of 2005 and the Hon'ble Supreme Court of India by its judgment dated 11.11.05 set aside the said direction and directed this Court to dispose of the appeal after re-appreciation of the evidence available before the Court. Accordingly, the matters have come up for consideration. The points that arise for determination are,
(1) Whether there is evidence to establish the factum of marriage between Damodaran and Chiruthakutty?
(2) Whether the first plaintiff, Krishnan is born in the wedlock of Damodaran and Chiruthakutty?
(3) If not, if he is proved to be the son of Damodaran and Chiruthakutty what will be the legal consequence and
(4) Whether there is anything to interfere with the decision of the trial Court?

4. Points 1 to 4:
All these points are answered jointly for the reason it requires discussion of common materials. The crux of the issue is regarding the fact whether there was any marriage between Damodaran and Chiruthakutty and whether the first plaintiff is the son born to them in the wedlock or otherwise. A perusal of large number of documents produced in this case would prima facie establish that Damodaran was born in the year 1892 and the first plaintiff Krishnan was born in the year 1942. Damodaran, according to the plaintiffs in some portion died in 1953 and in some portions would contend that he died three years after the first plaintiff joined the army service. But it appears that Damodaran had died prior to the first plaintiff joining the military service. A perusal of documents are necessary for evaluating the materials.

5. Ext.A1 is the lawyer notice claiming partition. Ext.A2 is the L.I.C. Policy wherein the name of Chiruthakutty is shown as N. V. Chiruthakutty and the residential house name is shown as Katt