NANGU AMMA DEVAKI AMMA Vs. APPI PARAMESWARAN

JUDGEMENT

(1.) S.4 of the Travancore Nayar Act, II of 1100 provides that a marriage may be dissolved by (among other ways) mutual consent evidenced by a registered instrument. This does not mean that mutual consent by itself can effect a dissolution, the registered instrument being only the prescribed mode of proof. The word, evidenced is not used in the section in the sense of serving as evidence in a court of law but as meaning, made evident or manifest. Both the mutual consent and a registered instrument evidencing, in other words, manifesting this mutual consent must be there before there can be a dissolution. Both are conditions precedent and it follows that the dissolution is effected only when the registered instrument has come into being, (In this connection see 1917 TLJ 242 where it was observed, with great respect rightly, that the mutual consent of the parties is by itself not sufficient to put an end to the relation between the parties as husband and wife and that there must be mutual consent as well as a registered document embodying the mutual consent). Where the construction placed that the parties would cease to be husband and wife the moment the mutual consent came into being, the impossible position would be reached that, while the parties had in truth ceased to be husband and wife, they would be precluded from acting accordingly until the registered instrument, which either spouse could withhold at will, also came into being, that being the only mode of proof. An instrument evidencing mutual consent need not necessarily be an instrument of dissolution, but, otherwise we think that the words, by mutual consent evidenced by a registered instrument mean much the same thing as, by a registered instrument of dissolution executed by the parties thereto, the formula used by the Madras Marumakkathayam Act, 1933 - such an instrument must necessarily be preceded by mutual consent.

(2.) The 1st defendant in this case was admittedly married to one Ramakrishnan Nair before, according to her case, she married Govindan Nair (since deceased) to whom the property in suit belonged. This was in 1117 M.E. at a time when Ramakrishnan Nair was alive. This subsequent marriage to Govindan Nair would be void under S.8(1) of the Act if it was performed during the continuance of the prior marriage with Ramakrishnan Nair. It was the 1st defendants case that in 1116, a year before this subsequent marriage with Govindan Nair, there was a dissolution of her prior marriage with Ramakrishnan Nair by mutual consent evidenced by a registered instrument. But the registered instrument, Ext. X, which she put forward as evidencing this mutual consent - this document is a receipt executed by her in favour of Ramakrishnan Nair who is not himself an executant and it is more than doubtful whether it evidences a mutual consent though it states that there was such consent in 1116 - was executed only on 17-7-1118 on which very day it was registered. It follows from what we have already said that the dissolution if there was one, of the 1st defendants marriage with Ramakrishnan Nair was effected only on that date and that her alleged marriage with Govindan Nair in 1117 was during the continuance of the prior marriage with Ramakrishnan Nair and was therefore void.

(3.) If there was no valid marriage between the 1st defendant and Govindan Nair, it is not disputed that the 1st defendant and her children defendants 2 and 3 (who she claims were born to Govindan Nair) are not Govindan Nairs heirs and that the defendants who claim as his heirs have therefore no title to the property in suit. The plaintiff, who claims through Govindan Nairs mother who was his sole heir, has title and the lower appellate court rightly granted a decree in his favour.