Kerala High Court
Omanakunjamma vs V.R.Vinayachandran on 11 June, 2025
RSA No.935 of 2006
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE M.A.ABDUL HAKHIM
WEDNESDAY, THE 11TH DAY OF JUNE 2025 / 21ST JYAISHTA, 1947
RSA NO. 935 OF 2006
AGAINST THE JUDGMENT & DECREE DATED 31.01.2006 IN AS NO.219 OF 2002
OF PRINCIPAL SUB COURT, ALAPPUZHA ARISING OUT OF THE JUDGMENT & DECREE
DATED IN OS NO.1281 OF 1999 OF PRINCIPAL MUNSIFF COURT, ALAPPUZHA
APPELLANT/APPELLANT/PLAINTIFF:
OMANAKUNJAMMA, D/O VIJAYAPPA PANICKER
VADAYAKKATTIL, RESIDING AT THAIPARAMBIL VEEDU,,
PATHIRAPPALLY P.O.,, PATHIRAPPALLY VILLAGE.ALAPPUZHA
BY ADVS.
SHRI.P.B.KRISHNAN (SR.)
SRI.P.B.SUBRAMANYAN
SRI.SABU GEORGE
SMT.B.ANUSREE
SRI.MANU VYASAN PETER
RESPONDENTS/RESPONDENTS/DEFENDANTS:
1 V.R.VINAYACHANDRAN
VELIYILAYA VADAYAKKATTU CHETTUKADU,, PATHIRAPPALLY P.O.,
PATHIRAPPALLY P.O.,, PATHIRAPPALLY VILLAGE.
2 V.R.JAYACHANDRAN OF DO. DO.
3 V.R.CHANDRA RAJI
DO. DO.
4 LYLA DO.VIJAYALEKSHMI OF DO. DO.
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5 THANKAMANY W/O.VISWANATHAN
NILAM NIKARTHU VADUKODU, SOUTH OF JAYACHANDRA LODGE,
MULLACKAL, ALAPPUZHA.
6 JANAMONIAMMA W/O.HARIDAS
PUTHENVELI, NEAR KALAVOOR H.S.,, KALAVOOR, ALAPPUZHA.
7 PRANAV S/O.JAYAMONI AMMA
DO. DO.
8 PRAMADA D/O.JAYAMONI AMMA
DO. DO.
BY ADVS.
SHRI.K.I.MAYANKUTTY MATHER (SR.)
SRI.T.GOPALAKRISHNAN
THIS REGULAR SECOND APPEAL HAVING BEEN FINALLY HEARD ON 02.06.2025 ,
THE COURT ON 11.06.2025 DELIVERED THE FOLLOWING:
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JUDGMENT
RSA No.935 of 2006
(Dated this the 11th day of June, 2025)
1. Plaintiff is the appellant. There are two items of property
scheduled in the plaint. Plaint schedule Item No.1 is 76 cents
of land and the trees & buildings therein. Plaint Schedule Item
No.2 is 8.72 cents of land. The suit was filed for partition of Plaint
Schedule Item No. 1 property allotting ¼ share to the plaintiff
with mesne profits and also for permanent prohibitory injunction
restraining the defendants from trespassing into Plaint Schedule
Item No.2 property or cutting and removing trees standing in
Item Nos.1 and 2 properties and from committing any act of
waste and from registering any Partition Deed regarding Item
No.1 property without joining the plaintiff as a party.
2. The claim of the plaintiff is that Plaint Schedule Item No.1
property was allotted to one Vijayappa Panicker and his
siblings, Viswappa Panicker, Kunjamma, Vijayalekshmi Amma,
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Thankamony and Jayamoni Amma as per Ext.A1 Partition Deed
of the year 1961. Plaintiff is the only daughter of the deceased
Vijayappa Panicker. The defendants 1 to 4 are the legal heirs of
the deceased Vijayalekshmi Amma. Defendants 5 and 6 are
Thankamony and Jayamoni Amma. Defendants 7 and 8 are the
children of the 6th defendant. Viswappa Panicker died unmarried
and issueless. Hence, the Plaint Schedule Item No.1 Property
is liable to be partitioned allotting ¼ share to the plaintiff, ¼
share to the defendants 1 to 4, ¼ share to the 5th defendant and
¼ share to the 6th defendant. Plaint schedule Item No.2 property
exclusively belonged to Vijayappa Panicker. After his death, the
plaintiff as his daughter and only legal heir is in possession of
Plaint Schedule Item No.2 property.
3. The defendants 1 to 8 filed joint Written Statement contending,
inter alia, that Vijayappa Panicker was a bachelor till his death;
that the allegation that the plaintiff is the daughter and only legal
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heir of Vijayappa Panicker is false; that plaintiff is not the
daughter of Vijayappa Panicker, and she is not the legal heir of
Vijayappa Panicker; that the plaintiff is the daughter of Smt.
Annamma; that her husband is Joseph; that the plaintiff is not
the legitimate daughter of Vijayappa Panicker and hence not
entitled to any interest in the properties of Vijayappa Panicker;
that the defendants 5, 6 and mother of defendants 1 to 4 are the
legal heirs of the deceased Vijayappa Panicker.
4. On the side of the plaintiff, the plaintiff was examined as PW1,
her mother was examined as PW2 and three other witnesses
were examined as PWs 3 to 5 to prove the cohabitation of
Vijayappa Panicker with PW2. Exts.A1 to A10 were marked
from the side of the plaintiff. The 1st defendant was examined as
DW1 and marked Exts. B1 and B2.
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5. The Trial Court dismissed the suit finding that there is no
convincing evidence that the plaintiff was born in a legal wedlock
entered into by Vijayappa Panicker and PW2.
6. The plaintiff filed Appeal before the First Appellate Court and the
First Appellate Court dismissed the Appeal confirming the
judgment and decree passed by the Trial Court finding that there
is no sufficient pleading regarding the valid marriage between
the Vijayappa Panicker and mother of the plaintiff who was
examined as PW2; that no sufficient credible and legal evidence
is adduced to prove the marriage between Vijayappa Panicker
and PW2; that when the defendants have pleaded that the
plaintiff is not the legitimate daughter of Vijayappa Panicker, the
plaintiff ought to have filed a Reply and evidence should have
been adduced to prove that there was a valid marriage between
Vijayappa Panicker and her mother; that in the absence of
pleading there is no place for evidence on the question of
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legitimacy of the plaintiff; that there is no credible and legal
evidence to prove the marriage between Vijayappa Panicker
and PW2; that there is no credible and legal evidence regarding
the living together of Vijayappa Panicker and PW2; that Section
16 of the Hindu Marriage Act, 1955 arises only if there is a
marriage and it is available only to children born out of
marriages which are void under S.11; that the present case is a
case of no marriage; that the plaintiff has not succeeded to
prove that she was born in a wedlock between Vijayappa
Panicker and her mother and therefore S.16(1) of the Hindu
Marriage Act cannot come to the assistance of the plaintiff.
7. This Court admitted the above Regular Second Appeal on the
following substantial questions of law as per the order dated
21.11.2023:
1. Is not the benevolent provision of S.16 of the Hindu Marriage Act
extended to cover cases in which the offspring failed to prove the
factum of marriage by satisfactory evidence?
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2. Are the Courts below correct in coming to the conclusion that
there is no valid marriage on the basis that the spouses belong
to different religions at the time of marriage? Is there any bar for
a Hindu marrying a Christian who has been converted into
Hinduism in accordance with the Hindu Rites?
3. Has not the definition of legitimate kinship defined under S.2(j) of
the Hindu Succession Act circumscribed by amendment of S.16
of the Hindu Marriage Act?
8. I heard the learned Senior Counsel Sri.P.B.Krishnan instructed
by Adv.Sri. Manu Vyasan Peter for the appellant and learned
counsel for the respondents Smt.Parvathi.S.
9. The learned Senior counsel for the appellant contended that
long cohabitation between Vijayappa Panicker and PW2 mother
of the plaintiff, is proved by Exts.A2, A3 &A5. It would prove that
Vijayappa Panicker and PW2 had been residing together from
1977 to 1992. As per Ext.A5, the plaintiff was born on
15.03.1977. Ext.A2 SSLC Book of the plaintiff is dated
30.03.1992. In both these documents, Vijayappa Panicker is
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shown as the father of the plaintiff. Vijayappa Panicker was
shown as the father of the plaintiff only due to the fact that he
had been in cohabitation with PW2 from 1977 to 1992. Marriage
is to be presumed by long cohabitation. If such a marriage is
found to be void, the plaintiff is entitled to get the benefit of the
statutory presumption under S.16 of the Hindu Marriage Act.
The learned Senior Counsel relied on the decisions of the
Hon’ble Supreme Court in Kalliani Amma v. K. Devi [1996 (4)
SCC 76], Tulsa and others v.Durghatiya and others [2008 (4)
SCC 520], Bharatha Matha and another v. R.Vijaya
Renganathan and others [2010 (11) SCC 483],
Revanasiddappa and others v. Mallikarjun and others [2023
(10) SCC 1] and Shiramabai and others v. The Captain,
Record Officer for O.I.C Records and others [AIR 2023 SC
3920] in support of his contentions.
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10. On the other hand, the learned counsel for the respondents
contended that the specific claim of the plaintiff is that she is the
daughter of Vijayappa Panicker. The said allegation is
specifically denied by the defendants in their Written Statement.
In such case, the burden is entirely upon the plaintiff to prove
that she is the daughter of Vijayappa Panicker. It is well settled
by the decision of this Court in Prabhavini Devi and another v.
Sudha and others [2017 (2) KHC 452] that an illegitimate child
born out of an illicit relationship of parents without a
solemnisation of marriage is not entitled to get succession to the
property of the father under the Hindu Succession Act even if
paternity stands proved.
11. I have considered the rival contentions. In the plaint the specific
case of the plaintiff is that she is the daughter of Vijayappa
Panicker and only heir of Vijayappa Panicker entitled to get ¼
share belonged to him in Plaint Schedule Item No.1 property.
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She had not disclosed the details of her mother in the plaint.
The plaint is filed as if she is the legitimate daughter of
Vijayappa Panicker. If PW2 was the legally wedded wife of
Vijayappa Panicker, she also would have been a legal heir of
Vijayappa Panicker. When the plaintiff claims that she is the only
legal heir of Vijayappa Panicker, the necessary implication is
that PW2, who is her mother, was not a legally wedded wife of
Vijayappa Panicker to become his legal heir. In the Written
Statement, at one stage, the defendants contended that the
plaintiff is not the daughter of Vijayappa Panicker. At another
stage, it is stated that plaintiff is not the legitimate daughter of
Vijayappa Panicker. Such pleadings in a way do admit that the
plaintiff is the illegitimate child of Vijayappa Panicker. In
Exts.A2,A3,A5 and A9 the name of the father of the plaintiff is
shown as Vijayappa Panicker. It probabilizes that Vijayappa
Panicker had accepted the plaintiff as his daughter. But that
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alone is not sufficient for the plaintiff to inherit the estate of the
deceased Vijayappa Panicker.
12. It is held in the decision of the Hon’ble Supreme Court in Tulsa
(supra) that continuous cohabitation of a woman with a man as
husband and wife and their treatment as such for a number of
years, may rise to a presumption of marriage; that such a
presumption drawn from long cohabitation is rebuttable and if
there are circumstances which weaken and destroy that
presumption, court cannot ignore them. The Hon’ble Supreme
Court specifically referred to the principle laid down by the Privy
Council that Law presumes in favour of marriage and against
concubinage when a man and woman have cohabited
continuously for a number of years and that such presumption
could be drawn under S.114 of the Evidence Act. In the decision
in Bharatha Matha (supra), the Hon’ble Supreme Court held
that S.16 of the Hindu Marriage Act intends to bring about social
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reforms, conferment of social status of legitimacy on a group of
children otherwise stated as illegitimate, as its prime object. In
the decision in Kalliani Amma (supra) the Hon’ble Supreme
Court held that Hindu Marriage Act, 1955 is a beneficial
legislation and therefore it has to be interpreted in such a
manner as advances the object of the legislation; that the Act
intends to bring about social reforms; that conferment of social
status of legitimacy on a group of innocent children who are
otherwise treated as bastards, is the prime object of S.16. It is
further held that in view of the legal fiction contained in S.16 the
illegitimate children, for all practical purposes including
succession to the properties of their parents have to be treated
as legitimate. It is held in Revanasiddappa(supra) by the
Hon’ble Supreme Court that while conferring legitimacy in terms
of sub-section (1) on a child born from a void marriage and
under sub-section (2) to a child born from voidable marriage
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which has been annulled, the legislature has stipulated sub-
section (3) of S.16 that such child will have right to or in the
property of parents and not in the property of any other person
and that a child who is legitimate under Sub-Section 1 or 2 of
Section 16 of Hindu Marriage Act would for the purpose of
Section 3(1)(j) of the Hindu Succession Act fall within the ambit
of explanation ‘related by legitimate kinship’ and cannot be
regarded as an illegitimate child for the purposes of the proviso.
In Prabhavini Devi (supra) this Court held that when there was
no solemnization of marriage at all, Section 16(1) has no
application; that an illegitimate child is entitled to inherit to the
estate of the father only if the marriage of parents was null and
void as provided under S.11 of the Act.
13. In the light of the legal propositions laid down in the aforesaid
decisions, if the plaintiff wants to succeed in the suit, she has
to prove either that (1) she was born out of a lawful marriage
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between Vijayappa Panicker and PW2 or that (2) there had
been long cohabitation between Vijayappa Panicker and PW2
in order to presume marriage or that (3) there was a marriage
between Vijayappa Panicker and PW2 and the same was void
so as to attract S.16(1) of the Hindu Marriage Act.
14. Since the plaintiff failed to prove a valid marriage between
Vijayappa Panicker and PW2, the plaintiff could not be treated
as a legitimate child of Vijayappa Panicker.
15. The learned Senior Counsel relies on Exts. A2, A3 & A5 to prove
long cohabitation between Vijayappa Panicker and PW2.
According to the learned Senior Counsel since Ext.A5
Certificate of birth of the plaintiff is dated 21.03.1977 and Ext.A2
SSLC Book is dated 30.03.1992 and in both these documents,
Vijayappa Panicker is shown as father of the plaintiff, long
cohabitation from 1977 to 1992 between Vijayappa Panicker
and PW2 is proved and hence marriage could be presumed. As
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rightly found by the Trial court as well as the First Appellate
Court, if Vijayappa Panicker and PW2 had been residing
together for such a long period, there would have been some
documents to prove their cohabitation. Ext.B1 Ration Card and
Ext.B2 Voters List would prove that they had not been residing
together. That apart, the question whether Vijayappa Panicker
and PW2 had been in cohabitation or not is a question of fact
on which the Trial Court as well as the first Appellate Court
entered a specific finding. This Court can interfere with the said
finding only if such a finding is perverse. There is no material
before this Court to hold that the finding of the Trial Court as well
as the First Appellate Court with respect to it is perverse. When
there is no evidence to prove the long cohabitation of Vijayappa
Panicker and PW2, there is no question of presumption of their
marriage to hold that the plaintiff is the legitimate child in their
marital relationship.
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16. Even though the defendant has stated that the plaintiff is not the
daughter of Vijayappa Panicker, in the subsequent part of the
Written Statement, they have stated that the plaintiff is not the
legitimate daughter of Vijayappa Panicker. It is seen from
Ext.A2, A3, A5 and A9 that Vijayappa Panicker had accepted
the plaintiff as his daughter. But that alone is not sufficient for
the plaintiff to claim inheritance of the property of Vijayappa
Panicker. In the absence of any valid marriage, the plaintiff has
to be treated as an illegitimate child of Vijayappa Panicker.
Section 16 of the Hindu Marriage Act provides for the legitimacy
of children of void and voidable marriages. As held in the
decision in Prabhavini Devi (supra), S.16 has no application
where there was no solemnization of marriage. Only if there was
a marriage and the same is null and void under Section 11,
Section 16(1) will be available to legitimize the child born out of
the marriage. In the case at hand, there is no proof of any
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marriage to hold it as valid or void. There is not even a long
cohabitation to presume marriage. In such circumstances, the
plaintiff cannot claim inheritance from the property of Vijayappa
Panicker. The substantial Question No.1 is answered in
negative and against the appellant. Substantial question Nos. 2
and 3 do not arise for consideration in the matter and no
argument was addressed with respect to the same.
17. I do not find any ground or reason to interfere with the judgment
and decree passed by the Trial Court, which is confirmed by the
First Appellate Court. The Regular Second Appeal is dismissed
without costs.
SD/-
M.A.ABDUL HAKHIM
JUDGE
jma