CHODON PUTHIYOTH SHYAMALAVALLI AMMA Vs. KAVALAM JISHA

JUDGEMENT

(1.) Whether an illegitimate child is entitled to a share in the property of his father is the interesting question to be decided in the appeal.

(2.) Peringali Padmanabhan Nambiar was a document writer. He married first appellant/second defendant in 1966. Appellants 2 to 4 who are defendants 3 to 5 were born in that wedlock. Fifth respondent who was the sixth defendant is the mother of padmanabhan Nambiar. Appellants 6 to 8 are the assignees of the properties from appellants 1 to 5. First respondent is the daughter of second respondent who was the first defendant in the suit. According to respondents, padmanabhan Nambiar married second respondent on 21-6-1975 at her residence and first respondent was born in that wedlock on 8-10-1976. It. was contended that plaint schedule properties which originally belonged to deceased Padmanabhan nambiar on his death devolved on appellants 1 to 5 and respondents being his legal heirs and each of them is entitled to a share. First respondent instituted the suit seeking separation of her share. Second respondent in the written statement also claimed her share of the property contending that she is the legally wedded wife of Padmanabhan nambiar. She also contended that the marriage of Padmanabhan Nambiar with first appellant was not in accordance with the custom and therefore she is not entitled to a share. Appellants in their written statement contended that there was no marriage between Padmanabhan Nambiar and second respondent is not the legally wedded wife of Padmanabhan Nambiar and is therefore not entitled to any share. It was also contended that first respondent is not the legitimate daughter of Padmanabhan Nambiar and therefore she is not entitled to a share as the legal heir of deceased Padmanabhan nambiar. It was therefore contended that respondents are not entitled to any share in the plaint schedule properties. Learned munsiff, on the evidence of DWs. 1 and 2 and Exts. A1 and A2 and B1 to B8, dismissed the suit holding that respondents did not establish the marriage between padmanabhan Nambiar and second respondent and therefore they are not the legal heirs and are not entitled to any share in the properties. Second respondent did not challenge the decree and judgment rejecting her claim for a share on the basis that she was the legally wedded wife of padmanabhan Nambiar. First respondent alone filed an appeal (AS 159 of 1990) contending that under Section 16 of Hindu marriage Act, even if first respondent is an illegitimate child, she is entitled to a share and Courts below should have granted her a share.

(3.) The learned Sub Judge in A. S. 159 of 1990, on re-appreciation of evidence, upheld the finding of trial Court that there was no marriage between Padmanabhan Nambiar and second respondent. But following the decision of this Court in Janu v. Yesoda (1989 (1) KLT 392) it was held that first respondent even though the illegitimate daughter is entitled to a share in the plaint schedule property. A preliminary decree was passed. Second Appeal is filed challenged the said preliminary decree and judgment.