Chandrammal and Others vs S. Sankar (died) and Others

M. Chockalingam, J.—This appeal has arisen from the judgment of the learned Single Judge in C.S. No. 616 of 1987 whereby a suit filed

for partition by the appellants/plaintiffs was dismissed.

The plaintiffs sought the said relief with the following allegations:

(a) The marriage between T.E. Sivanesan Chettiar and the first plaintiff took place in the year 1948. The plaintiffs 2 to 8 were the children of the

first plaintiff and Sivanesan Chettiar. They have got another son namely the 10th defendant, who, at the time of filing the suit, was outside India.

The said Sivanesan Chettiar already married one Amirthavalli Ammal alias Babi Ammal as his first wife even prior to 1945. He had children

through the said Amirthavalli Ammal who were shown as defendants 1 to 8. The first plaintiff is the daughter of a leading lawyer of Nagapattinam

by name one V. Venkatachari, who was financially affluent. At the time of marriage, lot of jewels and various gifts were given to her apart from

huge sums of money. After the marriage, she handed over the moneys which she received from her father, to him for the purpose of investing in his

business and also for the purchase of properties. Except item 1 in ''A'' Schedule, all the properties were purchased though in the name of

Sivanesan Chettiar, but out of the moneys given by the first plaintiff. She had also given a sum of Rs. 40,100/- to him in the year 1976 for the

purchase of property. Sivanesan Chettiar received the said sum representing that the property would be purchased in both their names; but,

subsequently, the first plaintiff came to know that the same was purchased only in his name. Thus, she was able to see the attitude of Sivanesan

Chettiar thoroughly changed.

(b) Though she was residing in the house shown as item No.1 of ''A'' Schedule, Sivanesan Chettiar executed a Will in Document No.39/77 in

respect of item No.1 of ''A'' Schedule in order to satisfy his first wife. Having executed the Will, without her knowledge, he has subsequently

revoked the same also. In both the documents, the first plaintiff is referred to as wife of Sivanesan Chettiar. The 9th defendant had filed a suit for

ejectment in O.S. No. 116/86 alleging that item No.1 of ''A'' Schedule was sold to him by a registered sale deed on 24.2.1983. Sivanesan

Chettiar died intestate in the year 1985, and by operation of law, the plaintiffs are entitled to 21/85th share in the schedule mentioned properties.

They were enjoying the same, and hence, the suit was to be decreed.

The suit was contested by the defendants inter alia stating that Sivanesan Chettiar never married the first plaintiff in 1948 as the second wife; that

it was a deliberate falsehood; that even assuming that such a marriage has gone through, it was a void one, and hence, it would not entitle her to the

status of a wife in law conferring any rights as claimed by her; that even as per the plaintiffs'' case, Sivanesaan Chettiar already married one

Amirthavalli Ammal even before 1945, and the defendants 1 to 8 are the children born out of the lawful wedlock; that under the circumstances, the

said Amirthavalli Ammal and the children who are the defendants herein, were the legal heirs of Sivanesan Chettiar to the exclusion of all others;

that it was a tissue of falsehood to state that there was a marriage between Sivanesan Chettiar and the first plaintiff and at the time of the marriage,

lot of jewels, gifts and sums of money were given to her, and she gave all those amounts to him for improving the business of Sivanesan Chettiar

and also for the purchase of properties in her name; that it is true that Door No.7 (New Door No.31), Sivaraman Street, Triplicane, Madras, is an

ancestral property, and hence, the plaintiffs have no right and could not lay any claim over the same; that the averments that Sivanesan Chettiar was

living with the first plaintiff and he executed a Will in 1977 bequeathing the property in her favour and subsequently the same was also revoked

were all nothing but false; that the first plaintiff was not having any good relationship with Sivanesan Chettiar; that the first plaintiff having already

secured as much as she could from him, taking advantage of his death has adopted different kinds of tactics in order to secure properties belonging

to the defendants, and thus, either the plaintiffs or the 10th defendant cannot claim any right over the suit properties; that it is true that she was

permitted to live in a portion of the property mentioned as item No.1 in ''A'' Schedule, for enabling him to visit in proximity of neighbourhood; that

taking advantage of the same, now she has come along with the children with the false suit claiming that she was the second wife of Sivanesan

Chettiar; that all the plaintiffs were out of possession of the plaint Schedule properties; that under such circumstances, the averment found that they

were in joint possession of the property was nothing but false, and hence, the suit was to be dismissed.

On the above pleadings, four issues were framed. During trial, 3 witnesses were examined on the side of the plaintiffs, and 2 were examined on

the side of the defendants. The plaintiffs have marked 10 documents, while the defendants have marked 11 documents. On consideration of the

evidence available both oral and documentary, the learned Single Judge took the view that the plaintiffs are not entitled for the claim and hence,

dismissed the suit. Hence, this appeal at the instance of the plaintiffs.

The only point which would arise for determination in this appeal, is whether the plaintiffs are entitled for a partition of the suit mentioned

properties along with the vacant possession as claimed by them.

Advancing the arguments on behalf of the appellants, the learned Senior Counsel Mr. T.R. Rajagopalan would submit that the plaintiffs adduced

sufficient proof in order to establish the factum of marriage between the first plaintiff and Sivanesan Chettiar; that the first plaintiff herself was

examined as a witness; that from her evidence, it would be quite clear that the marriage between herself and Sivanesan Chettiar had actually taken

place in 1954; that she is the best person to speak about that fact; that she has deposed to that fact; that though the defendants have pleaded in the

written statement that the marriage was void, they had not disputed about the factum of marriage; that even D.W.1 had not disputed the marriage

in his evidence; that the first plaintiff and Sivanesan Chettiar had lived for nearly three decades; that the long cohabitation was also proved, which

would be indicative of the factum of marriage; that Sivanesan Chettiar had executed a Will as found in Ex.P2; that subsequently, he has also

revoked the same under Ex.P3; that a perusal of Ex.P2 would indicate that the 7th item of property was reserved for the second wife namely the

first plaintiff herein; that while he revoked the same by Ex.P3, on more than one occasion he has referred to Chandrammal, the first plaintiff, as his

wife; that both these documents would clearly indicate the factum of marriage; that apart from that, D.W.1 has categorically admitted the execution

of the Will and also the revocation; that he has also deposed that they were in possession of the property pursuant to the revocation made under

Ex.P3; that admittedly, the first plaintiff had 8 children who are the plaintiffs 2 to 8 and the 10th defendant, through Sivanesan Chettiar; that the

marriage invitation cards were placed which would clearly indicate that it was in the name of Sivanesan Chettiar inviting for the marriage of the

plaintiffs 2 to 6 at different points of time describing them as daughter or son as the case may be; that the learned Single Judge has placed undue

weight to the inconsistencies found as to the year and place of marriage; that even during the life time of Sivanesan Chettiar, the first plaintiff had

issued a notice under Ex.D1 wherein she was described as the wife of Sivanesan Chettiar; that he has issued a reply wherein he has not denied that

fact; that she has also filed a maintenance case making a demand of maintenance for herself and for her four minor children before the Judicial

Magistrate; that it went in their favour; and that Sivanesan Chettiar took it on revision before this Court wherein the maintenance in respect of the

minor children was ordered, though it was denied to the first plaintiff stating that she has not acquired the status of wife.

Added further the learned Senior Counsel that there was sufficient proof adduced by the plaintiffs'' side as to the factum of marriage between

Sivanesan Chettiar and the first plaintiff; that it is true that since the marriage had taken place in the year 1954 when the first wife was alive, she

could not claim the status of wife or ask for a partition in the properties of her husband; that so long the factum of marriage between herself and

Sivanesan Chettiar was proved by sufficient evidence, she was the second wife and the children born to her who are the plaintiffs 2 to 8 and the

10th defendant, were illegitimate children who are entitled to have the respective share by operation of law, and hence, the suit has got to be

decreed to that extent.

In support of his contention, the learned Senior Counsel relied on the following decisions:

(i) 100 L.W. 58 (Seerangammal (Died) and Ors. v. E.B. Venkatasubramanian and Ors.);

(ii) Subby Reddy @ Subbareddy Vs. Leelavathy Ammal and 2 others, and

(iii) A. Murugesan Vs. Angamuthu Gounder, Manickam Gounder and Palanisami Gounder,

Arguing for the for the respondents 1 to 8 and 13 to 15, the learned Counsel would submit that the plaintiffs have not proved their case; that it is

true that the first plaintiff was examined as P.W.1; but, as far as the factum of marriage is concerned, it remained disproved by her own evidence;

that when the plaintiffs came forward to get a decree of partition alleging that there was a marriage between the first plaintiff and Sivanesan Chettiar

in the year 1948, a duty was cast upon the plaintiffs to prove the marriage; that so long there is no proof or material to substantiate the fact that the

first plaintiff was the legally wedded wife of Sivanesan Chettiar, she could not make any claim since she had no status of wife; that as far as the

other plaintiffs 2 to 8 and the 10th defendant were concerned, if they were to make a claim for partition, they must prove the factum of marriage;

but, in the instant case, not only the proof placed was insufficient, but also there was no proof at all; that the only evidence that was adduced was

P.W.1 and her own sister P.W.3; that as far as the evidence of P.W.1 is concerned, according to her, Sivanesan Chettiar married her in June

1954; but, as could be seen from the averments in the plaint, it was specifically stated that the marriage had taken place in the year 1948; that at

the time of the maintenance proceedings, it was mentioned as July 1954; that the marriage is an important and significant incident in a human life,

and certainly it should have caused a dent in the memory; that if to be so, there was no possibility of coming out with such inconsistency; that even

the place of marriage at one place is mentioned as Tiruporur, and in the other, as Tiruthani; that it is also found to be different; that under the

circumstances, the time and place of marriage is found to be discrepant with full inconsistency, and hence, the learned Single Judge thought it fit to

reject the evidence and found that the factum of marriage as put forth by the plaintiffs could not be accepted.

The learned Counsel would further add that the plaintiffs in order to substantiate their case, relied on number of invitations alleged to have been

issued by Sivanesan Chettiar for the marriages of the plaintiffs 2 to 6; but, these invitations should have been produced in order to prejudice the

mind of the Court; that if such a marriage has actually taken place as put forth by the appellants, at least one could have been examined in that

regard, but not done so; that these are all created for the purpose of getting such a relief; that apart from that, as far as the factum of marriage is

concerned, had it taken place as put forth by the plaintiffs'' side between the first plaintiff and Sivanesan Chettiar, at least either the third person or

the relations who attended the marriage, should have been examined, but not done so; that the plaintiffs before the trial Court placed much reliance

on Ex.P2, the Will, and also Ex.P3, the revocation of the Will; that these documents have been rightly rejected by the learned Single Judge for the

simple reason that they were not probated; that even for the collateral purpose, they cannot be taken as evidence; that the evidence of D.W.1 even

if it is taken as an admission, cannot have any evidentiary value, and that has got to be rejected.

Added further the learned Counsel that there was originally a notice issued by Chandrammal, the first plaintiff, to her husband Sivanesan

Chettiar through a lawyer wherein it was stated ""your wife""; that merely because that has not been denied by him, it cannot be taken as a proof of

marriage; that there was originally a case of maintenance filed by the first plaintiff for herself and for minor children in the year 1979; that the same

was challenged before this Court by Sivanesan Chettiar; that the status of wife could not be considered as per the orders passed by this Court in

the civil revision petition; that even assuming that the said proceedings have been challenged by Sivanesan Chettiar, he has not recognized the first

plaintiff as his wife; that in the instant case, there is no proof for long cohabitation; that it is true that 8 children were born; that the same would

indicate that she is only a concubine; and that in the absence of any proof of marriage, they cannot make a claim as illegitimate children.

Relying on a decision of this Court reported in K. Munuswami Gounder and Another Vs. M. Govindaraju and Others, the learned Counsel

would submit that to get the relief for the plaintiffs 2 to 8 under Sec.16 of the Hindu Marriage Act in a case where the marriage is void, as

illegitimate children, they must clearly prove the factum of marriage; that so long the factum of marriage is not proved, they could not have the

benefit of that provision; that in the instant case, there was no proof at all; that it was actually considered by the learned Single Judge, and the entire

case was rejected, and accordingly, the judgment has got to be sustained.

13.The learned Counsel appearing for the 9th defendant would submit that the property was actually sold to him before the litigation by way of a

sale deed executed by Sivanesan Chettiar along with the other children; that the property actually stood in the name of Sivanesan Chettiar; that

under the circumstances, the plaintiffs have unnecessarily dragged the 9th defendant to the Court; that the trial Court has recorded a finding that the

title originally vested as per the sale deed on the 9th defendant would continue to have its force, and hence, it has got to be sustained.

The Court paid its anxious consideration on the submissions made and looked into all the materials available.

As could be seen above, the plaintiffs who are the appellants herein, sought the relief of partition in ''A'' and ''B'' Schedule properties annexed

to the plaint. The only property shown in ''B'' Schedule is, admittedly, an ancestral property, and hence, the plaintiffs could not lay any claim over

the same. Though it is averred by the plaintiffs in the plaint that at the time of marriage, the first plaintiff had received lot of moneys and gifts, and

after the marriage of the first plaintiff with Sivanesan Chettiar, all those moneys and gifts were handed over to him for augmentation of his business

and also for the purchase of property, it is further averred that the properties purchased have become joint family properties, and hence, no claim

was made. Therefore, that part of the plaint does not arise for consideration.

Even as per the averments, the said Sivanesan Chettiar married one Amirthavalli Ammal prior to 1945, and she was also alive at the time of the

alleged marriage between Sivanesan Chettiar and the first plaintiff. Hence, the first plaintiff could not make the claim as wife. So long as she is not

able to prove that either she is the wife or having the status of wife, she could not make any claim as wife in the property of Sivanesan Chettiar. In

such circumstances, her claim for the property has got to be negatived. Accordingly, it is rejected.

As far as the other plaintiffs 2 to 8 are concerned, they could make a claim under Sec.16 of the Hindu Marriage Act, if they were able to show

that they were illegitimate children, and whether the factum of marriage between Sivanesan Chettiar and the first plaintiff is proved. It would be fit

and proper to reproduce Section 16(1) of the Hindu Marriage Act as follows:

Legitimacy of children of void and voidable marriages:(1) Notwithstanding that marriage is null and void u/s 11, any child born of such

marriage, who would have been legitimate if the marriage had been valid, shall be legitimate, whether such child is born before or after the

commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976), and whether or not a decree of nullity is granted in respect of that

marriage under this Act and whether or not the marriage is held to be void otherwise than on a petition under this Act.

In order to get the benefit of the above provision, the plaintiffs 2 to 8 have to prove the factum of marriage between the said Sivanesan Chettiar

and the first plaintiff. In the instant case, the plaintiffs came forward with the specific allegations that the marriage had taken place in the year 1948.

But, some discrepancy is found in the evidence as to the time and place of marriage. The Court has to see the totality of the circumstances which

attended over the case. This Court is able to see number of circumstances which would indicate that such a marriage should have taken place

between Sivanesan Chettiar and the first plaintiff.

Firstly, in one of the properties which belonged to Sivanesan Chettiar, she was permitted to reside and that too in near vicinity. It is also

categorically stated in paragraph 11 of the written statement ""permitting her to live in a portion of the property mentioned as item 1 in Schedule ''A''

of the plaint for enabling him to visit in proximity of neighbourhood"". According to the first plaintiff examined as P.W.1, the marriage had taken

place between herself and Sivanesan Chettiar. The best piece of evidence could be from the mouth of the first plaintiff or from Sivanesan Chettiar.

Admittedly, Sivanesan Chettiar died in the year 1985, and he was not alive at the time of the proceedings. It is also an admitted position that the

first plaintiff had got 8 children who were plaintiffs 2 to 8 and also the 10th defendant through Sivanesan Chettiar. The factum of parentage though

specifically averred, is not denied in the entire written statement, and thus, the fact that those children were born to the first plaintiff through

Sivanesan Chettiar stood proved. It could also be seen that for nearly 3 decades they have been living together, and this would be indicative of the

long cohabitation between them.

According to the plaintiffs, Sivanesan Chettiar executed Ex.P2, the Will, and also Ex.P3, the revocation. The plaintiffs relied on the documents

to show that as far as Ex.P2, the Will, was concerned, it is found that the 7th item of property was reserved for his second wife namely the first

plaintiff herein, and as far as Ex.P3, the revocation, is concerned, in more than one place the first plaintiff Chandrammal is shown as his wife, and

thereby, Sivanesan Chettiar clearly expressed his mind that he has got other wife also. As far as these two documents are concerned, the learned

Counsel for the respondents 1 to 8 and 13 to 15 vehemently opposed that it cannot have any evidentiary value for the reason that the Will was not

probated and therefore, no evidentiary value could be attached. This contention cannot be countenanced for the simple reason that originally

Sivanesan Chettiar had executed a Will, and subsequently, the Will had become revoked. Once the Will has become revoked, thereafter there was

no reason or circumstance to approach a Court for probating the same. This Court is able to see an admission made by D.W.1. He has

categorically deposed that Sivanesan Chettiar executed Ex.P2, the Will, and also revoked by Ex.P3, and they have been in possession pursuant to

the revocation made under Ex.P3. To this extent, this admission would be available to the plaintiffs to indicate that Sivanesan Chettiar had executed

the Will and also the revocation.

Now, at this juncture, it is pertinent to point out that it is not in controversy that the plaintiffs 2 to 8 and the 10th defendant were born to the

first plaintiff through Sivanesan Chettiar. During the life time of Sivanesan Chettiar, the marriage of the plaintiffs 2 to 6 had taken place. The

invitation cards have been placed and marked which were actually in the name of Sivanesan Chettiar as the invitor and issued to the third parties

wherein those plaintiffs have been mentioned as the son or the daughter as the case might be.

Apart from the above, during the life time of Sivanesan Chettiar due to the strained relationship, the first plaintiff filed a maintenance case in

M.C. No. 1181/79 before the XII Metropolitan Magistrate, Madras, and it was also for herself and on behalf of four minor children. The same

was ordered on contest, and it also culminated in CRP proceedings before this Court. The order in that revision is also perused which would

clearly indicate that nowhere it was to the effect that Sivanesan Chettiar has in any way denied the marriage or has challenged the status. Further,

Ex.P2, the Will, Ex.P3, the revocation, all the invitations issued by Sivanesan Chettiar and the maintenance proceedings were all anterior in point of

time, and they have come into existence even before the controversy that has arisen between the parties. This Court is of the considered opinion

that those documents have got to be given due weight to which they deserve.

In the instant case, it is true that there are certain discrepancies found in the evidence of P.W.1 as to the date and place of marriage. Now, at

this juncture, it is pertinent to point out that the earliest proceedings initiated by the plaintiffs, was the maintenance case against the husband of the

first plaintiff Sivanesan Chettiar where there was a specific averment that the marriage had taken place in July 1954. Now, in the evidence before

the Court, she has stated that the marriage has taken place in June 1954. The learned Counsel for the respondents 1 to 8 and 13 to 15 took the

Court to the plaint averment that the marriage between Sivanesan Chettiar and the first plaintiff took place in the year 1948, and thus there is a

discrepancy. At this juncture, it has to be pointed out that the first plaintiff was an uneducated lady. That apart, putting it as if the marriage had

taken place in 1948 was an attempt made as if the marriage was a valid marriage though it was the second marriage, and to have the benefit of the

legislation to get a share in the properties. But, at the time of her evidence, she has stated that the marriage had taken place in 1948 which was

incorrect. This Court is of the considered opinion that even assuming that there are discrepancies, much weight need not be attached to defeat the

claim of the plaintiffs.

Added further, there was a notice issued by the first plaintiff to Sivanesan Chettiar through the Counsel wherein the first plaintiff was shown as

the wife of Sivanesan Chettiar. There was a reply that emanated from Sivanesan Chettiar whereby all contents in the notice were denied, excepting

the fact that the first plaintiff was the wife of Sivanesan Chettiar. In any one of the notices or proceedings, nowhere Sivanesan Chettiar had actually

denied the factum of marriage or the fact that the first plaintiff is the second wife. It remains to be stated that the best person who has to recognize

the first plaintiff as wife is only Sivanesan Chettiar. The recognition and acknowledgement also made by him, and the fact that they have also been

treated by the society as husband and wife would also be very clear by the issuance of invitations which have been referred to above. Further, they

have been treated so, and also there was long cohabitation.

It is true that there are certain discrepancies which were brought to the notice of the learned Single Judge, and they have been relied upon to

non-suit the plaintiffs, which, in the opinion of the Court, cannot be done. This Court is of the view that the decision of this Court reported in Subby

Reddy @ Subbareddy Vs. Leelavathy Ammal and 2 others, has got more application to the present facts of the case, wherein it has been held

thus:

The question will be in each case to consider on the facts of the case whether the admission by the concerned party was actuated by ulterior

motive or not. If there was no occasion for such an admission being with vitiated by any ulterior motive, then the admission is conclusive as against

that party, unless it is explained by the party himself. In the present case, about 33 years prior to the dispute T, had admitted in a solemnly

registered document that A, the mother of the plaintiffs, was his wife. There was absolutely no motive for him to make a false statement in the sale

deed at that time. Hence, that admission made in the sale deed, Ex.A4, proves, conclusively that A was the wife of T. No evidence is required to

prove that A was the legally wedded wife of T in the circumstances of the case.

Further, in the decision relied on by the learned Senior Counsel for the appellants and reported in 100 L.W. 58 (Seerangammal (Died) and

Ors. v. E.B. Venkatasubramanian and Ors.), this Court has held thus:

R has stated in the will that first plaintiff was the devoted wife to him. In describing her, in contradistinction to B, the first wife of R, in Ex.A33, he

had used the expression (sic) in the opening part of the Will, but in ever so many places, he had stated categorically and in unmistakable words that

first plaintiff was his wife. Hence, when he had used the expression (sic) for a very limited purpose, she had not strength to speak anything different

from the manner in which he had stated in the will in a particular context. She must have honestly thought that if she was to claim that she was

''wife'' even during B''s life time, evil would befall upon her. It was not improbable. Hence in the opening part of her evidence, she repeated what

he had said in the will.

From all the above, it could be well seen that except those discrepancies found, this Court is unable to notice any other defect when the

evidence what was adduced are looked into. In the case on hand, all the materials which have come into existence during the life time of Sivanesan

Chettiar, as narrated above, would be pointing to the fact that marriage should have taken place between the first plaintiff and Sivanesan Chettiar.

In such circumstances, a presumption of marriage from long cohabitation, other evidence and averments as narrated above, could be drawn.

Hence, this Court is of the considered opinion that the factum of marriage is proved.

Now, at this juncture, the learned Counsel for the respondents much laboured that the first plaintiff did not have the status of wife. It remains to

be stated that it is true that she has not derived the status of wife; but, the question in the instant case is not as to the status of wife, but the factum

of marriage. As far as the factum of marriage is concerned, all the circumstances and the piece of evidence as narrated above, would clearly

indicate that without a marriage between Sivanesan Chettiar and the first plaintiff, these documents would not have come into existence at all, nor

such recitals found therein. Therefore, the judgment of the trial Judge has got to be set aside. Since the factum of marriage is proved, the plaintiffs 2

to 8 and the 10th defendant are entitled to their respective share in respect of ''A'' Schedule excepting item No.1 which should go to the 9th

defendant, and in respect of ''B'' Schedule ancestral property, by operation of law. There is no impediment for the 9th defendant in further

prosecuting the execution proceedings, which, according to him, is pending before the Court of Small Causes.

As far as the claim made by the 9th defendant is concerned, it is an admitted position that the first item of property in ''A'' Schedule was sold

by way of a sale deed executed in his favour by Sivanesan Chettiar himself during his life time along with the other children. The learned Single

Judge has pointed out that it is his exclusive property which belonged to him, and he has executed the document, and therefore, the title would pass

on. This Court is of the opinion that that part of the judgment is not to be disturbed. Accordingly, it is sustained.

The next contention put forth by the learned Counsel for the 9th defendant that he is entitled for costs has got to be discountenanced for the

simple reason that when the plaintiffs came forward to have partition over the properties including the first item in ''A'' Schedule, and a sale deed

has actually been found to have been executed by Sivanesan Chettiar and other children, it is also the subject matter of partition suit, and he

became necessary party. That apart, without his presence, the question could not be decided in respect of the first item to ''A'' Schedule. Under

the circumstances, the question as to the payment of costs as claimed by the 9th defendant, does not arise for consideration. Accordingly, that

contention is rejected.

In the result, this original side appeal is allowed, setting aside the judgment of the learned Single Judge to the extent indicated above. No costs.