MADHAVAN BALASUNDARAM Vs. MADHAVAN SARASAMMA
HIGH COURT OF KERALA
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(1.) The appellants are the review petitioners herein. Second appeal is filed by the appellants against the judgment and decree in A. S. No. 134/1983 on the file of the Sub-Court. Attingal, which was filed by the plaintiffs against the decree and Judgment in O.S. No. 44/1979 of the Munsiff Court, Varkala. The suit was filed by the plaintiff for declaration of title and possession over the plaint schedule property. The property was in the possession of a receiver appointed in O.S. No. 116 of 1969. As per the plaintiffs, the plaintiffs and the 6th defendant alone are the legal heirs of deceased Velayudhan Madhavan. Velayudhan - Madhavan married Kaliyamma Muthamma nearly 70 years ago and the plaintiffs and sixth defendant are the children of Madhavan and Muthamma. Madhavan died in 1968. After the death of Madhavan, his right over the property devolved on the plaintiffs and 6th defendant. Madhavan never married the first defendant and hence defendants 2 to 5 are not his children. The suit is filed at the time when defendants 1 to 5 have taken steps to get delivery of the plaint schedule property from the 7th defendant.
(2.) Defendants 1 to 5 contested the suit. O. S. No. 116 of 1969 was filed by defendants 1 to 5 as plaintiffs for declaration of their title and possession over the plaint schedule property against the 6th defendant. The suit was decreed. The 6th defendant filed A. S. No. 16/1974 against the judgment and decree passed by the Trial Court. The appeal was allowed and against which defendants 1 to 5 filed S.A. No. 664/1976 before this Court and this Court allowed the appeal declaring title and possession of defendants 1 to 5 and allowed to evict the 6th defendant from the property. In pursuance of the decree passed by this Court, the decree holders, defendants 1 to 5 in the suit took steps to take delivery of the property. It was at that time the plaintiffs filed the suit against the defendants. The Trial Court held that the plaintiffs and defendants 1 to 6 are the legal heirs of the deceased Velayudhan Madhavan and accordingly preliminary decree for partition of 1/8th share of the plaint schedule property was passed. Against the said judgment and decree, the plaintiffs filed A.S. No, 134/1983 and the defendants filed cross objection. The first appellate Court held that plaintiffs and 6th defendant are not the legal heirs and defendants 1 to 5 are the legal heirs of de - ceased Madhavan. The appellate Court also held that the plaintiffs and 6th defendant have no right over the plaint schedule property as there was no legal marriage between the plaintiffs mother and Madhavan. Thereby the appeal was dismissed and the cross objection filed by the defendants were allowed. Against which the present second appeal is filed by the plaintiffs in the suit. This Court dismissed the appeal on the ground that there was no substantial question of law. Against the said judgment, this Review Petition is filed by the plaintiffs.
(3.) Argument advanced by the learned counsel for the Review Petitioners is that the finding of this Court that there is no substantial question of law involved in this appeal is an error apparent on the face of the records. The plaintiffs and 6th defendant are the legal heirs of deceased Madhavan. Their mother Kaliyamma Muthamma was married to Madhavan nearly 70 years ago after undergoing the connected religious ceremonies and they lived together as husband and wife. The plaintiffs and 6th defendant were born in that wedlock. According to the plaintiffs, the 1st defendant is not the legally wedded wife of Madhavan and defendants 2 to 5 are not his children. The mother of plaintiffs and 6th defendant Kaliyamma Muthamma was not a member of Ezhava community, but belongs to dhobi community. So according to the defendants, there could not be a valid marriage between Madhavan, who belonged to Ezhava community, and Muthamma, who belonged to dhobi community especially 70 years back there could not be a valid marriage between two different communities. Sammandham was not permissible between intercaste persons if it was before 1100 M. E. According to the defendants, sammandham could be only between two Ezhavas. Since Kaliyamma Muthamma did not belong to Ezhava community, there is no presumption that a valid marriage could have taken place at that time. Both the first defendant and Kaliyamma Muthamma claim to be the legally wedded wife of deceased Madhavan. The Trial Court after considering the entire evidence found that Muthamma and 1st defendant are the wives of Madhavan and after his death in 1968, his right over the plaint schedule property devolved on plaintiffs and defendants 1 to 6 and passed a preliminary decree granting 1/8th share to the 1st plaintiff and 1/8th share to plaintiffs 3 to 6 and the 6th defendant is entitled to 1/8th share and remaining property shall be that of defendants 1 to 4. The lower appellate Court reversed the decree of the Trial Court and dismissed the suit and allowed cross objection filed by the defendants.;
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