D. Nagamani and D. Amsadurai vs The Chief Educational Officer, The Assistant Educational Officer, Educational Department of Tamil Nadu, The Union Bank of India and Santhamani

S. Palanivelu, J.—This appeal has been preferred against the judgment and decree in A.S. No. 91 of 2001 on the file of the Subordinate

Judge, Pollachi, dated 26.04.2002, confirming the judgment and decree in O.S. No. 362 of 1996, on the file of the District Munsif Court, Pollachi,

dated 30.09.1999.

The following are the allegations in the plaint succinctly stated:

2.1. The first Plaintiff and her husband Natarajan @ Damodharan loved each other from the year 1972. Even before solemnization of marriage,

they lived as husband and wife. Hence, she became pregnant and delivered a male child on 10.06.1973, who is the second Appellant.

Subsequently, on 02.02.1975, in her parents house at Pethanaickanur, they got married. Both of them were living together in several places in and

around Pollachi, till the said Damodharan was unfortunately murdered on 11.03.1992. Prior to his death, he registered the marriage with the Sub-

Registrar Office, Anamalai, on 10.02.1989. He deposited totally Rs. 75,000/-with the third Defendant in the fixed deposit. He worked as a

Secondary Grade Assistant Teacher in Government School, Kalathur Village, at the time of his death. The death cum gratuity and family benefit

funds payable on the death of Damodharan are available with the first and second Defendants. He executed a deed of undertaking on 17.03.1988,

by means of which, he bequeathed his whole estate in favour of the Plaintiffs. Hence, the Plaintiffs are entitled to succeed to his estate as legal heirs.

2.(ii) The Plaintiffs applied for the payment to the Defendants, but the second Defendant by his letter dated 27.03.1992, refused to pay the amount

by stating that one Santhamani, the fourth Defendant herein, has also made a claim for the amount alleging that she is also wife of Damodharan. The

second Defendant has asked the Plaintiffs and the fourth Defendant to prove their heirship through Court of law. Hence, the suit has been filed for

declaration that the Plaintiffs are the legal heirs of Damodharan.

In the written statement filed by the fourth Defendant, the allegations are as follows:

3.1. It is incorrect to state that Damodharan and the first Plaintiff lived together and the second Plaintiff was born to them. The first Plaintiff was

married to a different person by name Natarajan and the second Plaintiff was born through him. Damodharan did not have any other name except

Damodharan. The Plaintiffs have no communication at all with him. They never lived together and the alleged marriage dated 02.02.1975 is an utter

false. It is denied that the marriage was registered on 10.02.1989 in Anamalai. The fourth Defendant is the legally wedded wife of Damodharan

and their marriage took place on 10.04.1978, at Palani as per Hindu rites and rituals. Out of wedlock, she had got two issues. They were born on

23.09.1979 and 16.02.1981 respectively. The alleged deed of undertaking dated 17.03.1988 is not true. It is nothing but a forged document.

Damodharan was working as a School Teacher and he was transferred from place to place and ultimately, he was murdered. The Plaintiffs might

have closely wathced the movements of Damodharan and have come with a false claim. They are not legal heirs of the said Damodharan and the

first Plaintiff, is not his legally wedded wife. The suit has not been properly valued for the purpose of Court fees and jurisdiction and there is no

cause of action and the same may be dismissed.

The learned District Munsif, Pollachi, after analysing the evidence on record dismissed the suit. The Appellants carried the matter before the

Sub-Court, Pollachi, in A.S. No. 91 of 2001 and the same also suffered dismissal, on 26.04.2002. Hence, the second appeal.

At the time of admitting the second appeal, the following substantial question of law have been framed by this Court:

Whether the Court below is right in coming to the conclusion that the fourth Respondent is legally wedded wife as against the documentary

evidence Ex.A1, which is a public record which was not challenged by the fourth Respondent.

As far as the factual aspects are concerned, both the Court below have throughly scrutinized oral evidence on record and the documentary

piece of evidence and come out with a categorical finding that the first Appellant is not the legally wedded wife of Damodharan and both the

Appellants are not entitled to get any relief as to the estate of the deceased Damodharan. When the Court finds, any lapse on the part of the Court

below in appreciation of evidence in proper perspective, then, it can reappraise. If the particular piece of evidence was not appreciated by the

Court below, in an appropriate manner, then this Court may interfere. Failure on the part of the Court below to appreciate the material evidence

also would constitute a ground for this Court to interfere with decisions of the Courts below. As far as this case is concerned, this Court is of the

view that the Courts below have properly discussed the evidence on record and reached conclusion. However, certain vital documents and certain

parts of oral evidence may be reappraised by this Court in order to reach a correct conclusion.

Ex.A.1 is the marriage register extract, dated 10.02.1989, issued by the Sub-Registrar, Anamalai. It is stated therein that the marriage was

solemnized on 02.02.1975. However, it was registered on 10.02.1989 and there is no explanation from the side of the Appellants for what reason

the marriage was registered after 14 years. The other documents would show that Damodharan has been describing the first Appellant as his wife.

But, this Court has to see whether such reference is valid in the presence of other documents which are forthcoming from the side of the fourth

Respondent. The Madras (Hindu Marriage Registration) Rules, 1967, provides for the intimation of the factum of marriage to the Registrar

concerned by prescribed Form within 30 days from the date of marriage and in case, if it was not done, then the Marriage Registrar may entertain

an application within three months thereafter. Even if it could not be done, then the reasons for delay along with the application to register the

marriage must be submitted to the Registrar General and only after special permission was accorded by the said Authority, the marriage shall be

registered. The relevant provision reads thus:

Rule 5 Application for registration of marriage and mode of presentation: An application for the registration of a Hindu marriage shall be in Form 1.

It shall be presented to the Marriage Registrar either in person by the husband or wife at any time during office hours on a working day or be sent

to him by registered post, acknowledgment due, so as to reach him within thirty days from the date of marriage:

Provided that the Marriage Registrar may entertain an application whether presented in person or sent by registered post after the expiry of the

said period of thirty days but within a period not exceeding three months from the date of marriage, if he is satisfied that the husband or wife was

prevented by sufficient cause from filing the application in time. Where such application is filed after the expiry of the period of three months

aforesaid, a copy of the application together with a copy of the reasons for the delay shall be submitted by the Marriage Registrar to the Registrar-

General and entertained after obtaining his special permission.

In this case, It has not been pleaded nor brought to oral evidence that procedures stipulated in Rule 5 were observed. The marriage has been

registered after a long period of 14 years and the Marriage Registrar has also registered without any demur. In the absence of observance of the

procedures contemplated under Rule 5, it can also be stated that violative of the prescribed procedures, it ought to be unhesitatingly held that

Ex.A.1 has no evidentiary value.

Ex.A.3 is the Certificate issued by the Tahsildar, Pollachi, which shows that the first Appellant is the widow of Damodharan. The first Appellant

relies upon very much Ex.A.4, which is an unregistered undertaking reportedly executed by Damodharan in favour of the Appellant wherein he has

stated that his wife Nagamani and his son Amsadurai are entitled to claim the benefits payable on his retirement from service.

P.W.3 is sister of the first Appellant, who has attested Ex.A.4. It was suggested to her that Ex.A.4 does not bear the signature of

Damodharan. Since she is closely related to the sole Appellant, her evidence has to be scrutinized in a careful manner. The proof of execution of

Ex.A.4 depends upon the legal validity of other evidence on record. Ex.A.6 and A.7 are the photographs of Damodharan and the fourth

Defendant. Ex.A.11 is the letter of authorisation given to Life Insurance Corporation in which Damodharan has undertaken to pay a premium by

deduction from his salary every month. In this document below, besides the signature of Damodharan, the signature of the first Appellant is also

found. In the bottom portion of this document, certain particulars have been filled up on carbon sheet but the policy holder''s name in full and short

name for correspondence have been written by pen. These are the features which would improbablise the truthfulness of this document and it is to

be seen that he has not mentioned in his letter that for the LIC premium payable for the first Appellant, he undertook to pay premium by deduction

of salary. Ex.A.12 is another letter given by Damodharan to LIC, in which he has stated that already he has applied for deduction of premium

payable for the policy standing in the name of wife and presently, it may be changed for payment of quarterly premium.

In maturity claim data sheet Exs.A.15 and 16, issued by the Life Insurance Corporation of India, the first Appellant is described as the wife of

Damodharan. Life Insurance Corporation transactions, as per records, started from the year 1987 alone. Exs.B1 and B.2, Birth Register extracts

evidencing birth of one female and one male children born to the spouses Damodharan and the fourth Respondent on 23.09.1979 and

16.02.1981. Ex.B3 is the family card issued for the year 1988-1992 in which it is stated that the fourth Respondent is the wife of Damodharan.

The deceased has nominated the fourth Respondent mentioning her as his wife in his service record.

It is evident from the letter he addressed to the Assistant Educational Officer, Pollachi, nominating her for Employees Provident Fund cum

Gratuity Scheme. He has also nominated Jeyakumar and Shanmugapriya, their children for TNGESP Fund Scheme. They come to existence in the

year 1987. Even though it is stated by the fourth Defendant that the marriage took place between her and Damodharan, on 10.04.1978, at Palani,

documents on her side are forthcoming from 1984 showing that she was the wife of Damodharan.

On the contrary, the documents produced by the first Appellant would show that from 1987 onwards, she was described as his wife.

Admittedly, their alleged marriage was registered on 10.02.1989 long after Damodharan nominated his wife and children in his service record for

the purpose of getting benefits on his death. In this context, it is incumbent upon the first Appellant to establish that she and Damodharan had been

co-habitating for a long time so as to presume lawful marriage between them.

It is alleged by her that in 1971 they had contact and 1972 the second Appellant was born. In order to establish long co-habitation so as to

secure a legal sanction, there shall not be any interference by the marriage by any of the spouses. P.W.2 claims that he leased his house to

Damodharan and the first Appellant says that in 1975, that she and her husband celebrated their marriage in Pethanaickanur, that in Anamali Sub-

Registrar Office, the marriage was registered and that she has also signed in the Marriage Registrar. In the cross-examination, she has stated that

even though they were aware of the fact that both of them were not married, without any objection they rented the house. The evidence of P.W.2

is available to show that in 1972 both of them were living together. No reliance can be placed upon the oral evidence of P.W.2 for the reason that

she cannot say how long Damodharan was living in her house, that Nagamani, while occupying her house was conceived and that she cannot say

that when their marriage was celebrated after the birth of the child. When she states that she is the owner of the house let out to Damodharan and

the first Appellant and when she is able to furnish the particulars as to the year of occupation of house and other particulars, she is unable to reply

for the said questions.

Excepting the oral evidence of P.W.2, there is no material to show that both the first Appellant and Damodharan had been living together for a

long time. Even though there is no record to show that in 1979, the marriage and the fourth Respondent with Damodharan was celebrated, still

from 1984 onwards the documents were available to establish that she had been living with him, whereas from 1987 alone, the records are in

favour of the first Appellant. Hence, no presumption of any marriage on the grounds of long co-habitation would arise in this case.

The learned Counsel for the Appellant would draw the attention of this Court to the decision reported in(2009) 1 MLJ 104, Jayammal and 9

Ors. v. V. Kumar and 4 Ors. in which it is held that the parties cannot produce direct and precise evidence relating to a marriage that took part

decades ago. Under such circumstances, continued cohabitation as husband and wife and society and relatives recognizing them as husband and

wife would be sufficient proof of marriage between the two. A Supreme Court decision has also been followed in the said decision which goes

thus:

In view of the Supreme Court''s decision in Jinia Keotin Kumar v. Sitaram Manjhi (2003) 1 CTC 250 : 2003 3 L.W. 197, it is settled law that in

respect of two ancestral property obtained by V.S.V. in the partition among his brothers and himself, the Plaintiffs, being V.S. V''s illegitimate

children, cannot claim a share invoking Section 16 of the Hindu marriage Act but they can claim a share in V.S.V''s self-acquired properties.

A Division Bench of this Court in a decision reported in Chandrammal and Others Vs. S. Sankar (died) and Others, , has held that if it could

be seen that for decades together both the man and woman have been living together, it would be indicating the long cohabitation between them.

There is no evidence in the present case to show that both of them were recognised as husband and wife in the society.

In the case of Jinia Keotin Kumar''s case, the Supreme Court while considering legitimacy of a child u/s 16(3) of the Act has dealt with the

scope of the provision which is as follows:

4.... The Hindu Marriage Act underwent important changes by virtue of the Marriage Laws (Amendment) Act, 1976 which came into force with

effect from 27.05.1976. Under the ordinary law, a child for being treated as legitimate must be born in lawful wedlock. If the marriage itself is void

on account of contravention of the statutory prescriptions, any child born of such marriage would have the effect, per se, or on being so declared

or annulled, as the case may be, of bastardizing the children born of the parties to such marriage. Polygamy, which was permissible and widely

prevalent among the Hindus in the past and considered to have evil effects on society, came to be put an end to by the mandate of the parliament in

enacting the Hindu Marriage Act, 1955. The legitimate status of the children which depended very much upon the marriage between their parents

being valid or void, thus turned on the act of parents over which the innocent child had no hold or control. But, for no fault of it, the innocent baby

had to suffer a permanent set back in life and in the eyes of society by being treated as illegitimate. A laudable and noble act of the legislature

indeed in enacting Section 16 to put an end to a great social evil. At the same time, Section 16 of the Act, while engrafting a rule of fiction in

ordaining the children, though illegitimate, to be treated as legitimate, notwithstanding that the marriage was void or voidable chose also to confine

its application, so far as succession or inheritance by such children are concerned to the properties of the parents only.

As for the legitimacy of the son, the second Appellant born to the first Appellant and Damodharan, no law has been formulated so far as to

legitimacy of a child which was born earlier to the lawful marriage or void marriage. In this case, there is no evidence for long cohabitation.

Even though any presumption is drawn without conceding if a child was born much earlier to their continuous cohabitation, the legitimacy of the

child could not relate back to the earlier point of time before they started cohabitation. Section 16 of the Hindu Marriage Act provides as to

legitimacy of children of void and voidable marraiges. In order to consider whether a child is an illegitimate child, it should have born out of void or

voidable marriage. No law is prevailing as to the legitimacy of the child, born earlier to such marriage. In the case on hand, it is admitted by the first

Appellant that second Appellant was born in 1972, that she married Damodharan in 1975 and their marriage was registered in the year 1989. As

already indicated at the threshold, Ex.A.1 marriage extract has no legal enforceability. Hence, legitimacy of the second Appellant could not be

decided and he cannot be made competent to get any benefit from his father''s estate, even u/s 16 of the Hindu Marriage Act, 1955, which reads

thus:

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

(2) Where a decree of nullity is granted In respect of a voidable marriage u/s 12, any child begotten or conceived before the decree is made, who

would have been the legitimate child of the parties to the marriage if at the date of the decree it had been dissolved instead of being annulled, shall

be deemed to be their legitimate child notwithstanding the decree of nullity.

(3) Nothing contained in Sub-section (1) or Sub-section (2) shall be construed as conferring upon any child of a marriage which is null and void or

which is annulled by a decree of nullity u/s 12, any rights in or to the property of any person, other than the parents, in any case, whether, but for

the passing of this Act, such child would have been incapable of possessing or acquiring any such rights by reason of his not being the legitimate

child of his parents.

In order to acquire rights under the above said provisions, there should have been a marriage, even it might have been an invalid marriage.

When there was no marriage and the child was born much earlier to the marriage, the question of legitimacy does not arise and such child cannot

be even held to be illegitimate for the purpose of inheritance of his fathers estate.

To sum up, the burden is heavy on the Appellants to show that presumption of marriage could be drawn on long cohabitation of Damodharan

and first Appellant which has not been discharged. There exists no marital relationship between them. Further, the Marriage Register Ex.A.1 does

not support the version of the first Appellant. As such, no question of entitlement to inherit the estate of the deceased Damodharan would arise as

far as the second Appellant is concerned.

The substantial question of law framed by this Court is answered as indicated above and the Second Appeal is liable to be dismissed.

In such circumstances, no ground is made out to upset the concurrent findings of the Court below which have to be confirmed and they are

confirmed. The second appeal is devoid of merits.

In fine, the Second Appeal stands dismissed. Consequently, connected M. Ps. are closed. No costs.