1. Additional defendants 3 and 4 have filed this appeal against the judgment and decree dated 31st July 2014 in O.S No.465 of 2011, a suit filed by the 1st respondent herein for declaration that plaintiff is the sole legal heir of deceased Usha Devi entitled to inherit the plaint schedule property, to record possession of the same and to declare sale deed No.2370 of 2011 of S.R.O, Ernakulam as null and void and for a consequential injunction.

2. The 1st respondent plaintiff and the deceased Usha Devi are the children of one Lakshmikutty Amma. As per sale deed No.1341 of 2007, Usha Devi purchased the plaint schedule property. The plaintiff alleges that the 1st defendant misrepresented that he was unmarried, and, believing the same, the plaintiff's sister, Usha Devi, married him. Usha Devi died on 10.11.2009, and the mother of the plaintiff died on 06.10.2010. The 1st defendant, who was residing in the property, was asked to vacate, but he did not do so.

3. As the 1st defendant had married Usha Devi during the subsistence of marriage with the 2nd defendant, the marriage between the plaintiff's sister and the 1st defendant is void, and the 1st defendant will get no right over the properties of the plaintiff's sister. It is also alleged that the plaintiff had given a complaint to the Cheranalloor Police on 24.04.2011 regarding the illegal possession of the 1st defendant. The Police instructed the plaintiff to take appropriate legal action. To defeat the rights of the plaintiff, the 1st defendant on 27.05.2011 executed sale deed No.2370 of 2011 of S.R.O, Ernakulam in favour of the 3rd and 4th defendants, which forced the plaintiff to file the suit for the reliefs mentioned above.

4. The 1st defendant filed a written statement denying the averment that he had misrepresented that he was unmarried. It is alleged that the 1st defendant married Usha Devi as per customary rites at Shri Krishan Swami Temple, Alwaye, in the presence of the family members, including the plaintiff. He also contended that he was looking after the mother of Usha Devi and the plaintiff. He denied the allegation of marriage with the 2nd defendant. The 1st defendant had admitted the execution of the sale deed No. 2370 of 2011 of S.R.O, Ernakulam.

5. Defendant Nos 2 and 3 filed a written statement contending that Usha Devi married the 1st defendant as per customary rites, and they also denied the marriage with the 2nd defendant.

6. The Trial Court framed issues as to whether the 1st defendant had any right or title over the plaint schedule property and also whether the plaintiff obtained exclusive title over the same. On the side of the plaintiff, PWs 1 to 5 were examined, and Exts.A1 to A12 were marked. On the side of the defendant, Exts.B1 to B19 were marked, and an additional issue was also raised regarding the sufficiency of the court fee.

7. The Trial Court held the issues in favour of the plaintiff and found that the 1st defendant had married 2nd defendant before he married Usha Devi, and accordingly the marriage of the 1st defendant with Usha Devi was declared void. Consequently, it was found that defendant No.1 had no right over the plaint schedule property and the sale deed No.2370 of 2011 of S.R.O, Ernakulam, transferring the plaint schedule property in favour of defendant Nos.3 and 4 was also found to be invalid, holding that the plaintiff is entitled to recover the plaint schedule property from defendants. To protect the rights of the plaintiff, the injunction as sought for was also granted.

8. Sri.R.Divakaran, the learned counsel for the appellants (defendants 3 and 4), impugning the judgment and decree, would contend that the basis of the judgment is the finding of a valid marriage between D1 and D2 on the strength of Ext.A3 Marriage Certificate, which was not proved in accordance with law. It is further submitted that the marriage with the sister of the plaintiff is admitted by both sides, and accordingly, the 1st defendant is a legal heir entitled to have a share in the plaint schedule property.

9. It is also argued that since Ext.A3 was not proved by examining the custodian of the register, based on which the certificate was issued, no reliance could have been placed on the same. It is argued that in any view of the matter, defendants 3 and 4 are bonafide purchasers of the plaint schedule property and their rights are to be protected. It is also argued that the plaintiff is not the only legal heir of Usha Devi and the suit should have been dismissed for non-joinder of necessary parties.

10. The learned counsel for the appellants also relied on the judgments in PRS Hospital (M/s.), Thiruvanthapuram and Another Vs. P.Anil Kumar [2021 KHC 1], Smt.J.Yashoda Vs. Smt.K.Shobha Rani [2007 KHC 3494], Siddiqui H.(dead) by Lrs. Vs. A.Ramalingam [2011 KHC 4217] Assistant Commissioner of Customs Vs. Edwin Andrew Minihan [2023 (7) KHC 512] and Rajan K.C Vs. State of Kerala [2021 KHC 375].

11. The learned counsel for the respondent, Smt.Rosy P.F, would argue that marriage between D1 and D2 is proved by Ext.A3. D3 and D4 are the children born in the said wedlock. The entire documents produced on the side of the plaintiff clearly prove beyond doubt the earlier marriage with D2 and also that D3 and D4 were their children, and accordingly the finding of the Trial Court calls for no interference. It is also argued that Ext.A7 Sale deed is a sham document intended to deny the rights of the plaintiff, the sole surviving legal heir of Usha Devi. The learned counsel for the respondents also relied on the judgment in Devendra Kumar and Others Vs. State of U.P and Others [2011 KHC 2714].

12. Heard the learned counsel appearing on both sides and perused the records.

13. The point for determination in this appeal is whether the marriage between D1 and D2 was proved, in which case whether the marriage of D1 with the sister of the plaintiff was valid.

14. It is undisputed that Usha Devi, the sister of the plaintiff, purchased the plaint schedule, 7 cents of property, as per document No.1341/2007 of S.R.O, Edappally. It is also not disputed that the 1st defendant married Usha Devi, who later died on 10.11.2009. The mother of Usha Devi also died on 06.10.2010. The fact that D1 had transferred the plaint schedule property to defendant Nos.3 and 4, as per sale deed No.2370 of 2011 of S.R.O, Ernakulam, is also not disputed.

15. Based on the above undisputed facts, a question arises as to whether the plaintiff has successfully proved that when D1 married Usha Devi, the first marriage of the 1st defendant with defendant No.2 was subsisting. The evidence on record also shows that defendant Nos.3 and 4 are the son and the son-in-law of the 1st defendant.

16. The learned counsel for the appellants strenuously argued that Ext.A3 is not legally proved, as the Officer who issued the Certificate was not examined. It is argued that, but for Ext.A3, the other documents will not prove the marriage of D1 and D2 and further that proof of a valid marriage between D1 and D2 was completely absent in the case. It is also argued that the plaintiff had other legal heirs, who were not impleaded. As regards the contention of non-impleadment of the necessary parties, no issue was raised by the Trial Court, nor did the defendants request framing of additional issues. The defendant, who did not even bother to request the Court to frame additional issues or to recast the same, cannot at this stage be permitted to contend that the issue of non-joinder of necessary parties was not considered by the trial court.

17. Coming to the question of proof of the marriage between D1 and D2, the Trial Court did not rely on the evidence of PWs 1, 2, 3 and 4, as it found that their evidence does not prove the first marriage of D1. It was also found that Ext.A9, a declaration form submitted by D1 before the Employees' State Insurance Corporation, which shows D3 and D4 as his children or Ext.A10 issued from the Directorate of Health Department, which shows that D1 had married one Baby Amma on 12.04.1978, cannot also be relied as they were not issued based on any direct information but only hearsay information. However, the Trial Court found that PW5, the Secretary of the local authority, who issued Ext.A4 marriage certificate of D3 and Ext.A5 certificate of D4 as well as documents marked as Ext.A11 series, described the names and details of D1 and D2.

18. As regards Ext.A3, the Marriage Certificate shows the name of D1 as N. Krishnan Nair and not Krishna Pillai and Baby Amma as S.Baby. At this juncture, it has to be noticed that Ext.A7 sale deed, which is undisputed, shows the name of the 1st defendant's father as Narayana Pillai, and the affidavit filed by the 1st defendant also shows that his father's name is Narayana Pillai. Since the father's name of D1 in Ext.A3 and in the affidavit filed are the same, and in particular when Ext.A7 undisputed sale deed shows that the father's name of defendant No.3 is shown as Krishnan Nair @ Krishna Pillai, it has to be held that Ext.A3 Marriage Certificate pertain to the marriage of D1 and D2. Likewise, Ext.A4 Marriage Certificate of defendant No.3 had a similar description. Ext.A11(b) certificate issued from the auditorium, in which the marriage of D3 was solemnised, also shows the address of D3 as Paravila Veedu, Venjaramoodu, which is the same as one shown in Ext.A4 marriage certificate.

19. Ext.A11(c), copy of the first page of the SSLC Book of defendant No.3 also shows the father's name as Krishna Pillai and mother's name as Baby Krishnan and the house name is also shown as Paravila Veedu, Venjaramoodu. Ext.A11(e), invitation card of the marriage of the 3rd defendant also shows the parents' names as N.Krishnan Nair and Baby Krishnan. All these facts clearly prove that Baby, Paravila House had married N.Krishnan Nair, S/O Narayana Pillai, on 12.04.1978, and that defendant No.3 is the son of Baby Pravila and Krishnan Nair, and that Krishnan Nair is also known as Krishna Pillai.

20. In view of the above unimpeachable evidence, it has to be held definitely that Ext.A3 is the Marriage Certificate of D1 and Baby. This will also show that the marriage of the plaintiff's sister happened during the subsistence of the marriage with the 2nd defendant. The contention on behalf of the defendants that the marriage has still to be proved as a valid one cannot be accepted, as it was a case of total denial of the defendants regarding the marriage, and when confronted with the ample evidence adduced by the plaintiff on the factum of marriage, the contention of the defendants that there was no valid marriage cannot be countenanced. Further, there is no plea in the written statement that the marriage between the 1st defendant and D1 was void for some reason. The 1st defendant had also not examined himself to disprove the evidence let in on behalf of the plaintiff.

21. Regarding the admissibility of Ext A3 marriage certificate, it is to be noted that Section 8(4) of the Hindu Marriage Act expressly provides that the Hindu Marriage Register shall be admissible in evidence in respect of the statements contained therein and that certified extracts thereof shall be issued by the Registrar on payment of the prescribed fee. The words “for the purpose of facilitating the proof of Hindu Marriages” occurring in Section 8(1) and the words “the Hindu Marriage Register………..shall be admissible as evidence of the statements therein contained” occurring in Section 8(4) of Hindu Marriage Act are significant and they would definitely indicate that the Hindu Marriage Register extract is admissible in evidence with regard to the statements made therein.

22. Under Sub-section 4 of Section 8, the legislature intended to make the Hindu Marriage Register a public document within the meaning of Section 74 of the Evidence Act, as the official act of a public authority is to enter the said statements in the Marriage Register kept by him and therefore certified extract of such public document can be produced in proof of contents of the Register in view of Sections 8(1) and 8(4) of Hindu Marriage Act, 1995. Therefore, the certified extract of the Marriage Register (Ext.A3) was admissible by itself to prove the statements recorded therein, and its admissibility did not depend upon the examination of the Marriage Registrar. In the absence of any plea challenging the legality of the marriage or the genuineness of Ext.A3, and particularly when the document stood corroborated by unimpeachable documentary evidence and remained unrebutted by the first defendant, the trial Court rightly accepted Ext.A3 as sufficient proof of the earlier marriage.

23. Under such circumstances, once marriage with Usha Devi is to be held as void, as it was during the subsistence of a valid marriage, the first defendant will get no right over the plaint schedule property. Consequently, the sale deed executed by him in favour of the defendant Nos. 3 and 4 also must be held to be invalid. There is nothing on record to show that Usha Devi had any other legal heir other than the plaintiff.

Given the above, the findings of the Trial Court as regards the marriage between D1 and D2 on the strength of the documentary evidence are perfectly in order. The reliefs/decree granted were based on the pleadings and the evidence on record and call for no interference. In the result, the judgment of the Trial Court is only to be upheld, and the appeal is accordingly dismissed.