Order
1. Leave granted.
2. The dispute in this case arises out of the suit for partition filed by the appellant. The appellants claim to be the son and grandson of one Damodaran. Damodaran was one of four brothers holding ancestral property. It is the common case of the parties before us that of these four brothers two of them, namely, Narayan and Shekharan no longer have any interest in the property. The dispute as to the shares is really between the appellants and the heirs of Achuthan, the third brother of Damodaran.
3. In the written statement filed by the respondents to the appellant's suit for partition, the respondents had denied that Damodaran had married Chiruthakutty, who was claimed to be the mother/grandmother of Appellants 1 and 2. It was also denied that Appellant 1 was the son or that Appellant 2 was the grandson of Damodaran and Chiruthakutty.
4. The trial court came to the conclusion on the basis of the evidence before it that Damodaran had married Chiruthakutty and that Appellant 1 was the son from that marriage. Being aggrieved, the respondents appealed before the High Court. The High Court held that as a matter of law in the absence of proof of marriage of Damodaran with Chiruthakutty there may yet be a presumption of law regarding the marriage arising out of long cohabitation. The High Court did not itself come to the conclusion that there was no proof of marriage but was of the view that on the aspect of long cohabitation, it was necessary to remand the matter back to the trial court so as to enable the parties to “raise appropriate pleas” and to adduce additional evidence in the matter. The parties were also granted the liberty to amend the pleadings, if necessary.
5. We are of the view that the High Court misdirected itself. It should have considered whatever evidence was on record for the purpose of disposing of the appeals and either confirmed or reversed the order of the trial court after reappreciation of the evidence. Accordingly, we set aside the decision of the High Court and the matter is remanded back to it for the purpose of redetermination of the disputes between the parties. We make it clear that we have not gone into the merits of the dispute in any manner whatsoever and it will be open to the High Court to proceed with and dispose of the appeals in such manner as it thinks fit.
6. The appeals are allowed but without any order as to costs.