MALAYIMMAL RAVEENDRAN Vs. MALAYIMMAL M VIMALA

JUDGEMENT

(1.) King Solomon renowned for his wisdom, when called upon to decide the rival claims of maternity over a new born baby by two harlots, adopting a clever tactic based on his profound knowledge of human nature, resolved the literally unsolvable dispute with ease. The decision rendered by King Solomon identifying the true mother from the two rival claimants and handing over the infant to her, acclaimed as "The Judgment of Solomon", showing his outstanding wisdom, depicted in Kings 3:16-28, most probably may be the first case over an issue of maternity. Certainly, it is not the last, though the factual scenario over the dispute may be different, as seen from the present case. King Solomon was blessed with the "Wisdom of God", but the courts manned by little mortals, not endowed with the wisdom of King Solomon nor of having his profound human knowledge, cannot follow or adopt any tactic to resolve the issue, but have to determine and render a decision applying the settled legal principles, but, necessarily having due regard to the human course of conduct while evaluating the evidence and pleadings of the parties to the case. Plaintiff is the appellant. Suit was one for partition. His claim for division and separate possession of the suit property claiming equal share with the two defendants alleging that all of them are the children of late Madhavi, to whom, admittedly, the suit property belonged, was resisted by the defendants/respondents contending that the plaintiff is not the son of Madhavi. Negativing that contention, the trial court passed a preliminary decree and judgment holding that he is entitled to equal share with the defendants in the suit property, which was directed to be divided into three equal shares, and, allotting one such share to him. However, in the appeal preferred by the defendants, that decree was set aside and the plaintiff was non-suited. Feeling aggrieved, he has preferred this appeal.

(2.) Before the trial court, plaintiff was examined as PW 2 and a lady, who lived next door when he was brought up by his parents at Bombay, as PW 1. A family photograph of the plaintiff while he was an infant, in which, PW 1 and her husband also joined, was exhibited through that witness, apart from tendering Exts. A2 to A7 documents to sustain the suit claim for partition. On the side of the defendants, the 2nd defendant was examined as DW 1 and another witness, a retired police personnel, as DW 2, and Exts. B1 and B2 were exhibited. The trial court, mainly relying upon the evidence of PW 1, whose sworn testimony was found trustworthy and credible, accepted the case of the plaintiff that he is the son of Madhavi through Kumaran, which had been challenged by the defendants contending that his progenitress was a Maharashtrian lady with whom Kumaran, their father, had an illicit affair. The conclusion so formed by the trial court to pass a preliminary decree declaring that the plaintiff is entitled to an equal share with the defendants in the suit property, which belonged to Madhavi, was interfered with in the appeal preferred by the defendants by the lower appellate court, which after considering the materials tendered in the case, took a different view on the disputed issue of maternity of the plaintiff. Non-production of the hospital records relating to the birth of the plaintiff, voters list or ration card showing that his mother is Madhavi and non-examination of the close relatives of Madhavi in the case appeared to the lower appellate court as decisive and fatal to the claim of the plaintiff based on his status as the son of Madhavi. PW 1, who was examined as a close by neighbor was unable to give an unequivocal answer, but, feigned ignorance when she was confronted with the question that the plaintiff was born through a Maharashtrian lady to Kumaran, according to that court, rendered her evidence as wholly unacceptable. Challenge raised by the defendants that the trial court lacked pecuniary jurisdiction to entertain the suit, which was raised as one among the two points for determination in the appeal, the other being the dispute over the status of the plaintiff as the son of Madhavi, was also found to be appealing to the lower appellate court, to conclude that the claim of the plaintiff was not entertainable, with the result of non-suiting him, reversing the decision of the trial court, by allowing the appeal.

(3.) The following substantial questions of law have been formulated for hearing in the appeal: