Bhagavathi Amma Thankamma and Another vs Aiyappan Pillai Mathevan Pillai

Govinda Pillai, J.—Defendants 1 and 6 are the Appellants. Defendant 1 is represented by his power of attorney-holder, the additional 28th Defendant. The suit was filed by the members of a Nair Sub-tarwad, the first of them being the Karnavan and the second the senior Anandiravan. Plaintiff 1 had two elder brOrs. by name Aiyappan Pillai and Padmanabha Pillai of whom Aiyappan Pillai died in 1112 and Padmanabha Pillai in 1118. The plaint properties are the self-acquisitions of Padmanabha Pillai. The Plaintiffs state that Padmanabha Pillai died unmarried and that his properties were therefore inherited by his Marumakkatha-yam heirs. But, after the death of Padmanabha Pillai, these properties were secured possession of by Defendants 1 and 2 and Ors. Aiyappan Pillai had married one Kaliamma Parvathy Amma and she died in 1086.

Four children were born to Aiyappan Pillai by that union of whom Defendants 1 and 2 are the only surviving sons. Though Padmanabha Pillai and Kaliamma Parvathy Amma also conducted themselves as husband and wife during the lifetime of the latter''s husband Aiyappan Pillai, Padmanabha Pillai could never be considered to be Parvathy Amma''s legal husband so that Defendants 1 and 2 would not be Padmanabha Pillai''s children. The Plaintiffs further state that even if Defendants 1 and 2 were Padmanabha Pillai''s children, they were not born of lawful wedlock and that they could not therefore inherit Padmanabha Pillai''s properties. After the death of Parvathy Amma, Aiyappan Pillai married Defendant 3 and Aiyappan Pillai and Padmanabha Pillai were keeping her also like Parvathy Amma as their common wife. Defendant 3 has no children, and she could not also inherit Padmanabha Pillai''s properties. The Defendants'' possession of the plaint properties which really belonged to Padmanabha Pillai was unauthorised. The suit was, therefore, for a declaration of title of the Plaintiff''s sub-tarwad over the plaint properties and for the recovery of possession of the same with mesne profits.

Defendants 1,12,14,22 and 24 filed a joint written statement. Defendants 2 and 3 filed" Anr. written statement. In the written'' statement of Defendant 1 and Ors., it was admitted that Aiyappan Pillai was the person who had married Parvathy Amma. But it was contended that Defendants 1 and 2 are the children of Aiyappan Pillai and Padmanabha Pillai so that they are entitled to the properties of Padmanabha Pillai. They stated that they got plaint items 1 to 8 and 21 under a gift deed, of 1116 executed by Padmanabha Pillai and the rest of the plaint properties as his legal heirs. Defendants 2 and 3 also admitted the relationship mentioned in the plaint; but stated that Parvathy Amma and Defendant 3 were the common wives of Aiyappan Pillai and Padmanabha Pillai and that the parties were conducting themselves in that manner. It was contended that the acquisitions in the names of Aiyappan Pillai and Padmanabha Pillai were effected with the help of the money they got from Parvathy Amma''s original tarwad.

After the death of Aiyappan Pillai there was a partition in 1116 and though Defendants 1 nnd 2 were the real heirs of those properties, they were divided among Marumakkathayam heirs and Defendants 1 and 2 in the year 1116. To keep a common wife by two brOrs. was in accordance with law so that the children born out of that wedlock could inherit the properties of the husbands. It was not correct to say that Defendants 1 and 2 are not the children of Padmanabha Pillai. They are the children of Aiyappan Pillai and Padmanabha Pillai. Padmanabha Pillai himself had admitted that Defendants 1 and 2 and their deceased brother were Padmanabha Pillai''s children and for this there were documents from 1088. These documents had been admitted by the Plaintiffs and their tarwad so that they could not now contend against what Padmanabha Pillai himself had admitted. The mesne profits claimed by the Plaintiffs were excessive and the Plaintiffs were not entitled to question the alienations effected by Defendants 1, 2 and Ors. The suit was therefore pressed to be dismissed with costs.

The Plaintiffs filed a replication in which they asserted that Parvathy Amma was married only once and that by Aiyappan Pillai, that Parvathy Amma could not therefore be the legal wife of Padmanabha Pillai, that Defendants 1 and 2 are the children of Aiyappan Pillai and not of Padmanabha Pillai, that even if Padmanabha Pillai had admitted in some documents that Defendants 1 and 2 are his children that will not in any way improve the status of Defendants 1 and 2 and make them the legal heirs of Padmanabha Pillai and that the Plaintiffs are entitled to all the relief''s asked for in the plaint.

The lower Court found that Defendants 1 and 2 are in law the legitimate children of Aiyappan Pillai and not the children of both Aiyappan Pillai and Padmanabha Pillai, that they are therefore not entitled to Padmanabha Pillai''s properties, that the gift deed Ext III executed by Padmanabha Pillai on 20-7-1116 in favour of Defendant 3 and Ors. was no gift in the eye of the law, that the several alienations impeached in the plaint were therefore liable to be set aside and that the Plaintiffs were entitled to all the reliefs claimed in the plaint. The rights of the Plaintiffs'' tarwad to the plaint properties were declared and the Plaintiffs were allowed to recover possession of the properties from the Defendants with mesne profits. The rate of mesne profits was directed to be settled in execution. The Plaintiffs'' costs were allowed from Defendants 1, 2 and 3. The suit was therefore decreed.

The two main questions argued before us by the Appellants'' learned Advocate were, (i) are Defendants 1 and 2, the legal heirs of the deceased Padmanabha Pillai so that they could inherit his separate properties and (ii) whether Ext. III the gift-deed relating to plaint items 1 to 8 and 21 by Padmanabha Pillai to Defendants 3 to 8 is valid.

''First question: It is admitted by all parties concerned that Parvathy Amma the mother of Defendants 1 and 2 had been married by Aiyappan Pillai and that Aiyappan Pillai and Padmanabha Pillai were themselves treating Parvathy Amma as their common wife. This fact is admitted by all the adult members of the Plaintiffs'' tarwad, by Defendants 1 and 2 and by the deceased Padmanabha Pillai in a partition deed Ext. A or I that had been executed on 29-4-1116 as regards the self-acquisitions of Aiyappan Pillai and the tarwad properties of the Plaintiffs. The present Defendants 1 and 2 are the executants Nos. 4 and 5 there. Padmanabha Pillai is the second executant and Defendant 3 is the third executant. Defendants 1 and 2 are described there as the sons of Padmanabha Pillai. Aiyappan Pillai and Padmanabha Pillai were conducting themselves towards Defendant 3 also in the same manner after Aiyappan Pillai married Defendant 3. In some other documents also Padmanabha Pillai had admitted that Defendants 1 and 2 and their deceased brother Parameswaran Pillai were his sons.

In Ext. C the partition deed of 1088 in the tarwad of Defendants 1 and 2, their brother Parameswaran Pillai had been directed to pay certain moneys to Padmanabha Pillai and take a release, Padmanabha Pillai executed Ext. II release describing Parameswaran Pillai as his son and surrendering his right over the money in favour of his children. On 20-7-1116 also Padmanabha Pillai had executed Ext. III gift deed in favour of Defendants. 3 to 8 where also he had described that the present Defendants 1 and 2 are his sons. But in spite of all these admissions, the question is how far the same would help Defendants 1 and 2 to inherit Padmanabha Pillai''s properties. It is admitted and it is beyond doubt that Parvathy Amma had entered into a lawful wedlock with Aiyappan Pillai and that the same relationship continued till she died in 1086. It was true that Aiyappan Pillai''s younger brother Padmanabha Pillai and Parvathy Amma were conducting themselves as husband and wife during the lifetime of Aiyappan Pillai and presumably with Aiyappan Pillai''s consent.

It was argued by the Appellants'' learned Advocate that the social custom of the parties had allowed polyandry among Nairs, that this practice had existed in older days and this is evident from what Mr. Nagam Aiyar has stated at page 359 of the Travancore State Manual of 1906, Vol. II. He had also mentioned therein that polyandry was not heard of except in remote country parts and among some poor families where a number of brOrs. were keeping a common wife on economical grounds and that the community as a whole had shaken off this practice. At any rate, it has now become obsolete and it has been made an offence if a woman had more than one husband. Even if polyandry had been allowed by custom in olden days, the question is where the children born of such union would inherit the properties of the husbands of the mother. There was no occasion to consider this question before Act 1 of 1088 came into force as regards the Nairs. Before that there was no question of the children inheriting the father''s properties and so this question could not have been the subject-matter of any decision before 1088.

There is also no decision on the question so far as we know nor was any decision brought to our notice by the learned Advocates on both sides. The Act 1 of 1088 conferred on Nairs, the right to inherit the father''s properties and definite provisions were laid down in that Act to indicate the features of a valid marriage. It is only the children by such a valid and legal union who could claim inheritance to the father''s properties. A female could have therefore only one husband and the issues by that union alone could inherit the father''s properties. This has to be extended further back so that in cases of marriages contracted before 1088 also, the same principle has to be made to apply. In this case, Parvathy Amma died in 1086 so that the marriage itself had dissolved before Act 1 of 1088 came into force. So under Act 1 of 1088 even the children were not entitled to succeed to the father''s properties; for Section 26 was against that. Section 26(1) of that Act laid down that nothing in that Act would confer any rights on the parties to or off-spring of, a marriage dissolved before it came into force.

This provision was adopted and laid down as Section 44(b) in the later Nair Act 2 of 1100. But the words "or off-spring of" were omitted in that section. So if the succession opened after Act 2 of 1100 came into force then the children by a marriage which dissolved before 1088 could also inherit the properties of the father. Among the Nairs, it was by the provisions of Section 11 of Act 2 of 1100 and Section 12 of Act 1 of 1088 that the children were allowed to inherit the properties of the father. There was therefore the necessity to have a valid marriage between the parents of the claimants in order to claim a share in the father''s properties.

It was admitted by all parties concerned that it was Aiyappan Pillai who entered into a valid marriage with Parvathy Amma. It is immaterial whether Padmanabha Pillai had any connection with Parvathy Amma. The children born while the marriage between Parvathy Amma and Aiyappan Pillai subsisted will be considered to be the children of Aiyappan Pillai. Section 112, Evidence Act lays down the presumptions as to the legitimacy of children born in lawful wedlock. It lays down a rule of prudence and it is also in accordance with the rule of natural justice. Being so, Defendants 1 and 2 could be considered to be the children of Aiyappan Pillai. It was true that Padmanabha Pillai had in some documents described Defendants 1 and 2 and their deceased brother Parameswaran Pillai as his sons. That could not give them a status enabling them to claim Padmanabha Pillai''s properties also Legitimacy is, as pointed out in - AIR 1922 159 (Privy Council) , a status which results from certain facts. Legitimacy is a proceeding which creates a status which did not exist before.

The report at page 161 further goes on to say as follows:

The term ''wife'' necessarily connote marriage; but as marriage may be constituted without any ceremonial, the existence of a marriage in any particular case may be an open question. Direct proof may be available, but if there be no such indirect proof may suffice. Now one of the ways of indirect proof is by an acknowledgment to legitimacy in favour of a son. This acknowledgment must be not merely of sonship, but must be made in such a way that it shows that the acknowledgor meant to accept the other not only as his son, but as his legitimate son. It must not be impossible upon the face of it, i.e., it must not be made when the ages are such that it is impossible in nature for the acknowledger to be the father of the acknowledged, or when the mother spoken to in an acknowledgment, being the wife of Anr., or within prohibits ed degrees of the acknowledger, it would be apparent that the issue, would be the issue of adultery or incest.

So long as Aiyappan Pillai and Parvathy; Amma remained as husband and wife and unit-ed in lawful wedlock, the children born during that period could be treated as the children of Aiyappan Pillai and not of anyone else. Being so, it is not possible to hold that Defendants 1 and 2 are the children of Padmanabha Pillai though the latter had in more documents than one described them as his children. They could not therefore inherit Padmanabha Pillai''s separate and self-acquired properties. The finding of the lower Court on this point is confirmed.

Second question : Padmanabha Pillai had during his lifetime executed Ext. III gift-deed in favour of Defendants 3 to 8 as regards the plaint schedule items 1 to 8 and 21. Subsequently he cancelled the same under Ext. D dated 2-6-1118. He died on 2-8-1118. It was the finding of the Court below that Ext. III is not a gift in the eye of the law. Ext. III purports to be an absolute gift allowing the donees the full title to the properties subject however to certain rights reserved in favour of the donor. It is mentioned there that the donors car alienate or encumber the properties and that such alienation or encumbrance could be anything except an absolute sale deed. The donees are allowed full title to the properties subject to this restriction. The original document was produced for registration by Padmanabha Pillai and he got it back from the Sub-Registrar''s office and handed over the same to the donees. The donees had accepted the same. The gift had therefore become complete and there did not lie any right or power in Padmanabha Pillai to cancel the same on a subsequent date.

Though Defendant 1 and Ors. in para 12 of the written statement specifically set forth their contentions relating to this gift-deed, there was no answer to the same in the replication filed by the Plaintiffs. Since the gift had become a complete transaction, it was incompetent for Padmanabha Pillai to cancel the same by executing Ext. D. The gift-deed Ext. III has therefore to be upheld and the Plaintiffs suit has to be dismissed as regards plaint items 1 to 8 and 21.

In the result, we modify the decree of the lower Court by dismissing the Plaintiffs'' suit as regards plaint items 1 to 8 and 21. The Plaintiffs will be allowed to get recovery of possession of the remaining properties and the declaration of their right to the same is confirmed. The suit itself was necessary because of certain admissions made by the Plaintiffs and all the adult members of their tarwad along with the deceased Padmanabha Pillai as to the status of Defendants 1 to 3. The Plaintiffs had also claimed all the plaint schedule properties whereas according to us they are not entitled to any relief as regards plaint items 1 to 8 and 21. The proper order as to costs would therefore be to direct the parties to bear the same in both the Courts. The appeal is partly allowed in the above terms.