SHYLAJA Vs. RESHMA SATHEESAN

JUDGEMENT

(1.) Defendants 11,12 and 13 in O.S. No. 539 of 2006 on the file of the Additional Munsiff-II, Kozhikode are the appellants. The suit was for partition. The 10th defendant remained ex parte. After trial the suit was dismissed. In the appeal, A.S. No. 111 of 2010, filed by the plaintiff the learned Additional District Judge allowed I.A. No. 2418 of 2012 filed by the 10th defendant to receive her written statement and he set aside the judgment and decree and remanded the suit for fresh disposal. The trial court has been directed to give opportunity to both sides to adduce further evidence. This order of remand is challenged in this appeal.

(2.) The plaint schedule property belonged to one Sankaran. Defendants 1 to 5 are his children. Defendants 6 and 9 are the children of his deceased son Sreedharan. Sankaran had another son by name Ramachandran. In the plaint it is stated that he married the 10th defendant and the plaintiff is their daughter. It is further stated in the plaint that the 11th defendant is the second wife of Ramachandran and defendants 12 and 13 are their children. According to the plaintiff, she and her mother, 10th defendant along with defendants 12 and 13 are entitled to the share Ramachandran was entitled to in the plaint schedule property; and the 11th defendant is not.

(3.) The 10th defendant who is said to be the first wife of Ramachandran and mother of the plaintiff did not file written statement. The trial court found that the evidence of the plaintiff is not sufficient to prove the marriage between Ramachandran and the 10th defendant, which is the reason why it dismissed the suit. The trial court observed that the witnesses examined by the plaintiff to prove the marriage are interested witnesses and their evidence is not acceptable. The failure of the 10th defendant to enter the witness box was found to be fatal by the trial court. The learned District Judge is of the view that the trial court should have invoked the provisions in Order 16 Rule 14 CPC to examine the 10th defendant. As mentioned earlier, he allowed I.A. No. 2418 of 2012 filed by the 10th defendant to receive her written statement and consequently it remanded the case.