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Mahammadunni's Son Kappatta Kathokandath Bava Vs. Kunhoosa's Son Ampalath Veettil Kunnathodath Mahammadunni and 20 Ors. (02.12.1975 - SC) - Court Judgment

LegalCrystal Citation
SubjectFamily;Property
CourtSupreme Court of India
Decided On
Case NumberCivil Appeal No. 1268 of 1970
Judge
Reported inAIR1976SC224; (1976)1SCC359; [1976]2SCR858; 1976(8)LC89(SC)
ActsEvidence Act - Sections 11 and 13
AppellantMahammadunni's Son Kappatta Kathokandath Bava
RespondentKunhoosa's Son Ampalath Veettil Kunnathodath Mahammadunni and 20 Ors.
Appellant Advocate T.S. Krishnamoorthy layar,; N. Sudhakaran and; P.K. Pillai,
Respondent AdvocateA.S.Nambiyar Advs.
Cases ReferredAmanchi Seshamma v. Amanchi Padmanabha Rao
Prior historyFrom the Judgment and Order dated July 17, 1969 of the Kerala High Court in A.S. No. 217 of 1964
Excerpt:
.....- thrust of fir was against uncle and aunt of victims husband inconsistencies and improvements in evidence of victim and her relatives - improvements primarily relating to other relations of husband than his uncle and aunt held, acquittal as yet only of aunt and uncle of husband is improper. all relaltives are liable to be acquitted. as evidence as regards husband is clear and cogent, conviction of husband is proper. sections 498-a & 304-b: cruelty to wife held, cruelty to wife is a distinct offence from offence of dowry death. however, cruelty is a common essential to both offences. section 498-a, 306 : cruelty to wife-. distinction from abetment of suicide held, difference is of intention . section 498-a: cruelty to wife possibility of misuse held, it is not a ground to hold..........married defendant no. 3 on 30 august, 1959.6. the trial court allotted to defendant no. 3 3/6th share in properties mentioned in schedules a and b to the plaint. the plaintiff and defendant no. 1 and defendant no. 2 were each given 1/6th share in properties in schedules a and b to the plaint. with regard to schedule c properties the plaintiff and defendant no. 1 and defendant no. 2 were each given 9/96th share and defendant no. 3 was given 51/96th share and defendant no. 4 was given 18/96th share.7. the trial court found that defendant no. 4 was alone entitled to the share of defendant no. 3 on the ground that marriage of defendant no. 3 with defendant no. 1 was not proved. the trial court also found that defendant no. 3 was mentally unbound to enter into any marriage.8. defendant no......
Judgment:

A.N. Ray, C.J.

1. This is an appeal by certificate from the judgment dated I7th July, 1969 of the High Court of Kerala.

2. The question in this appeal is whether defendants No. 1 and 4 are each entitled to share in the property allotted to defendant No. 3 in a partition decree. Defendant No. 4 is the appellant.

3. This appeal arises out of a suit instituted on 19 November, 1957 for partition of properties. Properties mentioned in Schedules A and B to the plaint belonged to the mother of defendant No. 3. Properties mentioned in Schedule G to plaint were joint properties of the father and the mother of defendant No. 3.

4. The plaintiff and defendant No. 2 are the sons of one of the brothers of the mother of defendant No. 3. Defendant No. 1 is the son of another brother of the mother of defendant No. 3. Defendant No. 4 is the son of defendant No.3's father's brother.

5. Defendant No. 3 died during the pendency of the suit. Thereafter defendant No. 1 filed his additional written statement and claimed half share in the property of defendant No. 3 on the ground that defendant No. 1 had married defendant No. 3 on 30 August, 1959.

6. The Trial Court allotted to defendant No. 3 3/6th share in properties mentioned in Schedules A and B to the plaint. The plaintiff and Defendant No. 1 and defendant No. 2 were each given 1/6th share in properties in Schedules A and B to the plaint. With regard to Schedule C properties the plaintiff and defendant No. 1 and defendant No. 2 were each given 9/96th share and defendant No. 3 was given 51/96th share and defendant No. 4 was given 18/96th share.

7. The Trial Court found that defendant No. 4 was alone entitled to the share of defendant No. 3 on the ground that marriage of defendant No. 3 with defendant No. 1 was not proved. The Trial Court also found that defendant No. 3 was mentally unbound to enter into any marriage.

8. Defendant No. 1 preferred an appeal. The High Court set aside the judgment of the Trial Court and held that defendant No. 1 was married to defendant No. 3 and defendant No. 3 was in a lucid interval at the time of marriage.

9 Counsel for the appellant defendant No. 4 impeached the finding of the High Court both with regard to the fact of marriage and the finding that defendant No. 3 was married in a lucid interval.

10. Defendant No. 4 relied on three documents in support of the submission that defendant No. 3 was not a sane person to enter into marriage with defendant No. 1. The first document is Exhibit B-34 which is an order dated 8 November, 1958 declaring defendant No. 3 to be a person of unsound mind. In that order defendant No. 4 was appointed guardian of the property of defendant No. 3 and defendant No. 1 was appointed guardian of the person of defendant No. 3. The second document is Exhibit B-8 dated 7 September, 1959. The appellant submitted that on 7 September, 1959 defendant No. 3 wanted to get herself declared as a person of sound mind. By an order dated 5 February, i960 being Exhibit B-31 the District Judge dismissed the application of defendant No. 3. The third document on which the appellant relied is the suit in this appeal where defendant No. 3 on 19 November, 1957 was impleaded as a person of unsound mind.

11. The appellant contended that though Ex. B-34, namely, order dated 8 November, 1958 declaring defendant No. 3 as a person of unsound mind was not a judgment in rem but it was a judgment inter-parties and it would, therefore, be admissible under Sections 11 and 13 of the Evidence Act. The appellant also contended relying on the decision in Amanchi Seshamma v. Amanchi Padmanabha Rao (1) I.L.R. 40 Mad. 660 that once a person is adjudged insane it is presumed that state of unsoundness will continue until proved to the contrary.

12. Counsel for the appellant therefore contended that the conclusion of the High Court that defendant No. 3 was in a lucid interval at the time of marriage was against the overwhelming documentary evidence.

13. The documents relied on by the appellant do not rule out lucid interval at the time of marriage on 30 August, 1959. The High Court relied on the evidence of D.W. 4. who attended the marriage. D.W. 4 was a teacher. His evidence was that defendant No. 3 at the time of marriage talked with Musaliar. His further evidence was that Musaliar called defendant No. 3 and she went near him and told him that he was being authorised by her to give her in marriage to defendant No. 1. The High Court rightly found that defendant No. 3 gave her consent to the marriage and was in her lucid interval.

14. The High Court reversed the finding of the Trial Court and held that the marriage took place. The High Court relied on the oral evidence and found that marriage in fact was held. The conclusion of the High Court on both the questions is correct. The appeal is therefore dismissed. No order as to costs.


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