Sarojini Ammal and four others vs Navamani and four others

Srinivasan, J.—Venkatapathy Reddiar of Virkravandi, South Arcot District, married his sister''s daughter Rajalakshmi, the fifth plaintiff in the

suit, out of which this appeal arises, in or about 1935 and begot on her two daughters and two sons, who are plaintiffs 1 to 4. It is claimed by the

first defendant that he married her in 1947 and defendants 2 to 5 were born to them. Venkatapathy Reddiar died on 11-9-1966. Disputes arose

between the parties in 1974, which resulted in the present suit. The plaintiffs, who are the appellants herein, prayed for a declaration of their

exclusive title to the suit properties and for permanent injunction restraining the defendants/respondents from interfering with their possession of the

properties. The plaintiffs denied not only the marriage between the first defendant and Venkatapthy, but also the status of exclusively kept

concubine for the first defendant. According to them, Venkatapathy had only some ""illicit intimacy"" with her. Reference was placed in the plaint to

an admission made by the first defendant in several proceedings that she was only a concubine of the deceased and that she never asserted any

status as his wedded wife. It was also asserted in the plaint that the first defendant being a Christian, there could not be a valid marriage between

her and Venkatapathy. In the written statement it was pleaded that the first defendant settled in Vikravandi in about 1944 and she completed her

18th year and started doing milk business. According to the written statement, she abandoned Christianity and converted to Hindu faith openly

declaring herself to be a Hindu and since then observing all the religious rites, which behoved a Hindu woman. It was stated that Venkatapathy

Reddiar courted her which led to the marriage between them according to Hindu rites and they were living together as husband and wife along with

the plaintiffs in amity as members of a Hindu joint family. Defendants 2 to 5 were born of lawful wedlock and all the defendants would be entitled

to a share in the estate of Venkatapathy Reddiar as much as the plaintiffs. An explanation was given in the written statement that Venkatapathy

Reddiar was ill-advised after the passing of Hindu Marriage Act of 1955 that he would be guilty of bigamy and, therefore, he started describing the

first defendant as ""Abhimana Baryal"" in documents, which would not alter the status of the first defendant from that of a lawfully wedded wife to

that of a concubine.

Two questions arose mainly before the Courts below viz., whether the defendants were Hindus and whether there was valid marriage between

Venkatapathy and the first defendant. The trial Court held that the first defendant was not a legally wedded wife of Venkatapathy and that she

never became a Hindus. It was further held that defendants 2 to 5 were the illegitimate children of Venkatapathy and as such to some limited rights

in his interest in the properties, though they did not get a share in the joint family property. Consequently, the trial court granted a decree in favour

of the plaintiffs declaring their title to the suit properties, subject to the rights of defendants 2 to 5, and granting the injunction restraining the

defendants from interfering with the possession of the plaintiffs till their rights are worked out in a partition suit. Both parties were aggrieved by the

said decree. The plaintiffs filed an appeal challenging recognition of certain rights with the defendants in the estate, while the defendants preferred

an appeal challenging the decree in favour of the plaintiffs. The Additional District Judge, South Arcot at Cuddalore, heard both the appeals

together and rendered a common judgment. After holding that the first defendant did not establish her claim that she became a Hindu before her

marriage with Venkatapathy, the appellate Judge held that a marriage was celebrated between her and Venkatapathy in 1946 and that defendants

2 to 5 were born out of that wedlock. However, he proceeded to hold that even if the marriage was void, defendants 2 to 5 were entitled to

succeed u/s 16 of the Hindu Marriage Act as amended. He held that the plaintiffs were not entitled to absolute right in the suit properties and

defendants 2 to 5 will have some share therein as heirs of Venkatapathy and set aside the judgment and decree of the trial Court. He dismissed the

suit directing the parties to seek their remedies in a partition suit. Naturally, the plaintiffs were aggrieved and they have preferred this Second

Appeal. There is no difficulty in declaring straightaway that the appellate judgment is wholly unsatisfactory. He has not given a clear finding as to

whether the marriage between Venkatapathy and the first defendant, which as a fact found by him to have taken place, was valid in law or not. His

finding that the first defendant did not make out her case that she became a Hindu even before her marriage with Venkatapathy, is rendered

without his considering the evidence on record fully. His view that Section 16 of the Hindu Marriage Act would enable defendants 2 to 5 claim a

share in the estate of Venkatapathy Reddiar is not acceptable in view of the judgment of a Division Bench of this Court Valliammal v. Kamalambal

1990 I.L.W.461.

The judgment of the trial court is no better, though the trial Judge has discussed the evidence at some length and given definite findings. The

conclusions of the trial Judge are not acceptable as they are based on an erroneous view of the law on the subject. He has chosen to reject positive

evidence on irrelevant grounds and overlook preponderating circumstance admitted to exist in the case. Thus, it has become necessary for this

Court to approach the evidence on record independently of the judgment of the Court below and come to a conclusion on facts also.

The first question to be considered is whether the first defendant became a Hindu before her marriage with Venkatapathy Reddiar. The next

question will be whether the first defendant was legally wedded wife of Venkatapathy Reddiar. The evidence on record on both the questions is

intertwined and hence it is better to set out the entire evidence and decide the question together.

The first defendant deposed that she was a Hindu from about 1946. She stated that she settled in Vikravandi in 1944 and was doing milk

business. She used to go to the temples of Murugan and Mariamman very often and even in her house she used to worship only Hindu Gods. She

converted herself from Christianity in 1946. She used to meet Venkatapathy in the temple of Murugan. He married her in a choultry in 1946 which

was attended by P.W.2 and Nagaraja Iyer and others. Gopala Iyer was the Purohit who recited Mantras. Venkatapathy tied thali and both went

round the fire three times. They exchanged garlands and also rings. After marriage they were living in No. 3, East Mada Street. After becoming

Hindu, she never went to Church. She used to smear sacred ash on her fore-head and adorn it with a ''thilak''. She named her children with Hindu

names. Her children had their heads tonsured and ears bored. Venkatapathy himself wrote the horoscopes of the third and fourth defendants,

marked as Exe.B-3 and B-4. The horoscope of the fifth defendant, marked as Ex.B-5, was written by the astrologer. She reiterated in the cross-

examination that she met Venkatapathy in a temple in 1944 and that love blossomed between them. She deposed correctly that his father was not

alive at that time and his mother was named Kuppammal or Subbammal, which she could not remember properly. Admittedly, Venkatapathy''s

mother''s name was Subbammal.

She gave the name of Venkatapathy''s sisters. In the cross-examination she repeated what she said in the chief with regard to the marriage

ceremony. She was cross-examined at length with reference to the description as ''Abhimana Baryal'' found in Exs.A-1 to A-10 and her written

statement in Q.S. No. 439 of 1970 on the file of District Munsif, Villupuram, marked as Ex.A-11 , besides her deposition in the said suit, marked

as Ex.A-43 . She deposed that she did not know as to why she was described as ''Abhimana Baryal'' in Exs.A-1 to A-10. She stated that those

transactions were brought about by Venkatapathy himself. She explained her stand taken in O.S. No. 439 of 1970, District Munsif''s Court,

Villupuram, which was a suit filed by a creditor on foot of a promissory note executed by her after the death of Venkatapathy. Her case was that

the promissory note was obtained by force by the plaintiff in the said suit, who claimed that Venkatapathy had borrowed money from him and she

should discharge the loan. She deposed that her counsel advised her that she could win the suit only if she claimed in the written statement that she

was a concubine and not a wife of Venkatapathy and her deposition in the said suit was also in compliance with the said advice. Before referring to

the documentary evidence, I would advert to the other oral evidence on record.

D.W.2 is an old man aged about 85, distantly related to Venkatapathy through his daughter-in-law. He deposed that he attended the marriage

of the first defendant and Venkatapathy as he was invited therefor and the marriage took place according to Hindu rites and it was performed by

Gopala Iyer, the Purohit. He stated that Venkatapathy''s relations were absent. According to him, the first defendant was a Hindu, wearing

Kumkum and sacred ash. She used to go to Hindu temples and celebrate Hindu festivals such as Deepavali and Pongal. She was accepted as a

member of Reddiar community. She used to visit the house of the plaintiffs for good and bad. When his wife died, the fifth plaintiff and the first

defendant came in the same cart. In cross-examination he was questioned about Ex.A-5, a promissory note executed by his son and daughter-in-

law in favour of the first defendant in 1958. A suggestion was made that he was giving false evidence in order that the first defendant should waive

his son''s debt. The suggestion is absurd as the original promissory note is produced before court by the plaintiffs and marked as Ex.A-8. It does

not bear any endorsement of payment. Obviously, any claim on the promissory note was barred even in 1961 during the life time of Venkatapathy

Reddiar. Hence, there was no necessity for D.W.2 to give evidence in support of the first defendant in order that the first defendant may waive her

claim under Ex.A-8 . This is the only motive suggested in the cross-examination as to why D.W.2 should support the first defendant. If that is

eschewed, there is nothing on record to discredit the evidence of D.W.2. D.W.2 stated that he saw the first defendant for the first time only at the

time of her marriage. He did not know as to where the marriage of the fifth plaintiff took place. That is wholly irrelevant, as he became related to

Venkatapathy only through his daughter-in-law. His evidence cannot be discredited on the ground that he was not in a position to give full details

about Venkatapathy''s relations.

D.W.3 is a person who had certain transactions of debit and credit with Venkatapathy. He deposed that he attended the marriage of the first

defendant and he corroborated the evidence of D.W.1 and D.W.2. He stated that he found at the time of marriage that D.W.1 was a Hindu. He

also saw the first defendant only at the time of her marriage for the first time. He deposed that Venkatapathy''s mother and sisters did not attend

the marriage. In another place he stated that he had seen D.W.1 before her marriage once. Nothing is suggested in the cross-examination as to

why he should depose in favour of the first defendant. With regard to the evidence of D.Ws.2 and 3, both the Courts have rejected the same on

the ground that they saw the first defendant only at the time of her marriage and they could not support her version that she became a Hindu even

before her marriage. There is a fallacy in the reasoning of the Courts below. Both the witnesses have clearly stated that when they saw the first

defendant at the time of marriage, they found her to be a Hindu by appearance. They also found that the marriage was being celebrated according

to Hindu rites by a Purohit who recited Mantras. That evidence will certainly lead to an inference that the first defendant became a Hindu before

marriage and support her version. It is not necessary that D.Ws.2 and 3 should have seen her previously. The course of conduct of the first

defendant at the time of marriage and thereafter has been clearly spoken to by D.Ws.2 to 3. When there is nothing on record to reject the

evidence as interested or motivated, there is no justification for disbelieving it.

D.W.4 has deposed only about his supplying some vegetables and plantain leaves for the marriage. But, he could not be present at the time of

marriage. Nothing turns on his evidence.

P.W.1 is the fifth plaintiff. In her chief-examination she stated that D.W.1 never went to her house and she was not aware of the birth of

defendants 2 to 5. She heard about the connection between her husband and D.W.1 about ten to fifteen years prior to the deposition. That

statement is clearly false, as she had executed Ex.A-4 on 4-4-1958 under which she sold her house to the first defendant for Rs. 1,500. She

admitted that she saw the first defendant in the office of the sub-registrar. In the sale deed, the first defendant is described as Venkatapathy''s

''Abhimana Baryal'' . She admitted that her husband used to write the horoscopes of his children in his own hand. She admitted that in East Mada

Street where the first defendant was living, many Reddiar families were living and some of them happened to be related. According to her, the

house of the first defendant was situated about 100 feet away from her own and anything said loudly in her house could be heard at the house of

the defendants. She stated that her husband''s character was not bad and she never considered that he betrayed her interest. There is one

significant statement in her evidence which has been completely ignored by the Courts below. It was suggested to her in cross-examination that

Ex.A-4 and A-5 were taken by the second plaintiff when the plaintiff were living together with the defendants in the same house. Instead of flatly

denying the suggestion, she deposed that the same would be known only to the second plaintiff and he should be asked about it. The said answer

probabilises the version of the defendants that for some years they were living with the plaintiffs in the same house as one family. If there was no

joint living at any time, P.W.1 could have had no difficulty in making an out-right denial of the suggestion put to her in the cross-examination. She

would have emphatically stated that there was no occasion for the second plaintiff to take the documents, as the plaintiffs and defendants were

never living together. On the other hand, she gave a dubious answer which goes a long way to support the case of the defendants that the two

families were living together. This circumstance would have a bearing on both the questions as to the religion of the defendants and the married

status of the first defendant. Some of the statements made by P.W.1 clearly show that she is not speaking the truth before the Court. She has

stated that the first defendant''s elder sister Paranjothi Ammal became a tenant in her house about 15 to 20 years prior to her deposition. That

would be between 1962 and 1967. But, it is seen from Ex.A-4 that even in 1958 the house was sold to the first defendant by P.W.1. In another

place P.W.1 deposed that she did not know the executants of Ex.A-8 by name Ramasamy Reddy and Rukmini Ammal But, later she stated that

Ramaswamy Reddiar stopped visiting her house even four or five years prior to her husband''s death. She admitted that even without seeing

D.W.2, she stated that he never used to go to her house. She admitted that she did not know the details contained in the plaint and it is only the

second plaintiff who should be asked about that.

The second plaintiff is P.W.2. He is not able to say as to how Exs.A-4, A-5, A-8 and A-10 were in his house. In the chief-examination he

stated that he did not know who were defendants 1 to 5. In the cross-examination he admitted that he knew defendant No. 1 for about 15 to 20

years and it would be false to say that he did not know the defendants. He admitted that he filed a criminal case in the Court of Villupuram

Magistrate. The certified copy of his deposition is marked as Ex.B-27 and the deposition given by his younger brother marked as Ex.B-29. He

admitted that his father used to write accounts, but he could not identify the hand-writing of his father in Ex.B-25. He admitted that Ex.B-25

contained accounts relating to his family and accounts not pertaining to his family. He admitted that he filed the criminal case only after the filing of

this suit. A perusal of Exs.B-27 and B-29, the depositions of the second plaintiff and the fourth plaintiff in the criminal case, shows that they are not

afraid of speaking falsehood in Court. In that case, which was filed long after the present suit, they deposed that they did not know even the names

of defendants 2 to 5 and their father''s name.

P.W.3 is a cousin of Venkatapathy. He deposed that there was no marriage at any time between the first defendant and Venkatapathy. He

claimed to have seen D.W.1. He stated that he was aware of the contact between Venkatapathy and D.W.1 and that Venkatapathy used to be in

the house of D.W.1 very often. He denied knowledge of his brother''s attestation in Ex.B-8. One important circumstance that is overlooked by the

Courts below is that under Ex.A-6 dated 21-12-1963, the first defendant had sold a nanja land to P.W.3. He did not make any reference

whatever to the said document in his evidence. The document was not produced by him, but it was produced by the plaintiffs and marked during

the cross-examination of the first defendant. There is no explanation as to how the original sale deed is in the custody of the plaintiffs. The relevant

fact at this stage is that under Ex.A-6 the first defendant is descried as Venkatapathy''s ''Abhimana Baryal''. Yet, P.W.3, in whose favour the

document has been executed, deposed that he did not know the nature of the connection between the first defendant and Venkatapathy. This itself

shows that the plaintiffs are suppressing certain facts and they have not disclosed the entire truth before the Court.

The evidence of P.Ws.1 to 3 is absolutely silent on the religions observances of the first defendant. P.Ws.1 and 2 took a stand that they were

never aware of the the first defendant. They have not deposed anything contrary to what D.Ws.1 to 3 spoke. It will not be wrong to say that the

evidence of D.Ws.1 to 3 as regards the religion of the first defendant remains uncontradicted by the oral evidence of P.Ws.1 to 3. At any rate,

there is nothing on record which would warrant the rejection of the depositions of D.Ws.1 to 3.

Turning to the documentary evidence, the earliest set of documents comprise of Exs.B-1 to B-4. Exs.B-1 and B-2 are the birth certificate of

the second defendant issued by the Pondicherry Registrar''s Office and its English translation. It is seen therefrom that the second defendant is

described as son of Venkatapathy and his wife Navamani (first defendant). The first defendant has stated in her evidence that he was born in a

hospital at Pondicherry and the birth was registered soon after. The first defendant has deposed that the Tamil translation found attached to Exs.B-

1 and B-2 is in the hand-writing of Venkatapathy. There is no evidence contrary Exs.B-3 and B-4 are the horoscopes of the third defendant and

the fourth defendant. The deposition of the first defendant that they were written by Venkatapathy in his own hand was not challenged in cross-

examination and no contrary evidence was let in. Ex.B-6 is certified copy or birth register extract pertaining to the third defendant. It corroborates

the evidence afforded by Ex.B-3 as to the date of birth. The above documents prove that Venkatapathy considered the first defendant as his wife

and declared her to be so officially in the office of the Pondicherry Register. He placed defendants 2 to 4 on the same plank as plaintiffs 1 to 4 and

prepared horoscopes for them. He wrote the horoscope in his own hand showing that he had as much concern for his children through the first

defendant as plaintiffs 1 to 4.

For the first time in 1957, Ex.A-1 described the first defendant as the daughter of Yovel, Christian. The document did not make a reference to

the relationship between Venkatapathy and the first defendant. It was a sale deed in favour of one Banu Iyer. There is no doubt that the transaction

was brought about by Venkatapathy only. He was one of the attestors and was an identifying witness before the Sub Registrar. He must have had

some motive for describing her as the daughter of Yovel who was a Christian. The document cannot go against the evidence affirmed by Exs.B-1

to B-4 and B-6, which ranged between 1947 and 1954. It is not unlikely that Venkatapathy was wrongly advised by somebody that after the

advent of the Hindu Marriage Act, 1955, he should not describe the first defendant as his wife. Ex.A-1 cannot be used for negativing the case of

the first defendant that she had become a Hindu in 1946. The document refers only to the religion of the first defendant''s father and not that of the

first defendant. Even assuming that it described her as a Christian, that would not nullify the effect of the other evidence already referred to.

Ex.A-2 is a registration copy of sale deed by Venkatapathy himself in favour of the first defendant on 11-1-1958. He described her as his

''Abhimana Baryal'' and the daughter of Yovel. No reference is made to her religion in the document. Ex.A-3 is a registration copy of a sale deed

executed by one Mangammal in favour of the first defendant. This was also a transaction brought about by Venkatapathy. There is no reference to

the religion of the first defendant or her father''s name. The document merely describes her as ''Abhimana Baryal'' of Venkatapathy. He attested the

document and was an identifying witness before the Registrar. Ex.A-4 is the original sale deed executed by the fifth plaintiff in favour of the first

defendant describing the latter as the daughter of Yovel and ''Abhimana Baryal'' of Venkatapathy. Venkatapathy was an attesting witness and an

identifying witness. There is no explanation as to how the original sale deed is produced by the plaintiffs. Similarly, Ex.A-5 is a sale deed executed

by Venkatapathy for himself and as guardian of his minor sons, the second and fourth plaintiffs, in favour of the first defendant described as his

''Abhimana Baryal''. There is no reference to her religion. Ex.A-6 is the original sale deed by the first defendant in favour of P.W.3. I have already

referred to this document in detail while discussing the evidence of P.W.3. There is no explanation as to how the plaintiffs have produced the

original document. Ex.A-8 is a promissory note executed by Ramasamy Reddiar and his wife Rukmani Ammal in favour of the first defendant

describing her as ''Abhimana Baryal'' of Venkatapathy and daughter of Yovel. The original promissory note is produced and there is no

explanation for its custody. I have made sufficient comments when I dealt with the evidence of D.W.2 Ex.A-9 is a promissory note by the first

defendant in favour of one Venkataswamy Reddiar. The promissory note was written by Venkatapathy. Obviously, the stamps have been

removed, indicating a discharge of the promissory note. Ex.A-10 is a stamped receipt issued by one Seetharama Reddiar in favour of the first

defendant acknowledging discharge of a decree debt. The first defendant is described as ''Abhimana Baryal'' of Venkatapathy. There is no

reference to her religion. Ex.B-9 is a Kachayat Book maintained by Venkatapathy Reddiar during the period 1948 to 1958. It contains receipts

for payment of kist for lands belonging to Venkatapathy, the first defendant and Kanniammal, Venkatapathy''s sister. That shows that

Venkatapathy was managing the affairs of the first defendant. Ex.B-5 is a horoscope of the fifth defendant. P.W.1 has stated that it was written by

the local astrologer. There is no evidence to the contra. Ex.B-7 is the S.S.L.C. Book of the second defendant. Venkatapathy Reddiar had himself

signed as the parent of the student. It is seen that the second defendant passed the S.S.L.C. Examination in March, 1964 even before

Venkatapathy died. Ex.B-12 is the S.S.L.C. Book of the third defendant. That shows that the third defendant was admitted in the Government

High School, Vikravandi in first form on 23-6-1960 when Venkatapathy was alive. He failed in S.S.L.C. Public Examination held in April, 1968.

Venkatapathy Reddiar is described as his father in this certificate. Ex.B-10 is a pass-book issued by the Vikaravandi Co-operative Agricultural

Bank Limited to the first defendant. Her membership Number is given as 405 and she is described as wife of Venkatapathy Reddiar. The entries

pertain to the years 1964-65. Ex.B-8 is a registration copy of a mortgage deed dated 21-8-1965 executed by the first defendant in favour of

Vikravandi Co-operative Agricultural Bank Limited. She is described as wife of Venkatapathy Reddiar and her caste is mentioned as ""Reddy"".

The mortgage deed was attested by Venkatapathy and she was identified by him before the Sub Registrar. The other identifying witness before the

Registrar was P.R. Jayaraman, younger brother of P.W.3. Significantly, Ex.B-8 was the last document which came into existence before the death

of Venkatapathy Reddiar. It is a clinching document in the sense that it proves not only the status of the first defendant as the married wife, but also

her caste as ''Reddy''. It is obvious that the first defendant became a member of the Co-operative Bank even before the execution of the

document. At the time when she became a member, she was described as the wife of Venkatapathy Reddiar as evidenced from Ex.B-10.

Thus, it is seen that from 1946 to 1957, the first defendant was described as the wife of Venkatapathy Reddiar, while the document between

1957 and 1963 described her as ''Abhimana Baryal''. Again in the documents from 1964 onwards upto the death of Venkatapathy Reddiar

described her as ''the wife''. It is clear from the evidence that the documents between 1957 and 1963 were all brought about by Venkatapathy

Reddiar obviously with some motive. Some of them do not appear to be genuine transactions. There is no explanation for Ex.A-6 being in the

custody of the plaintiffs and the failure of P.W.3 to make any reference thereto. It is quite likely that Venkatapathy Reddiar had the document with

himself and on his death, they were taken by the second plaintiff. The positive evidence adduced by the first defendant and corroborated by D.Ws.

2 and 3 cannot be whittled down or nullified by the documents, Exs.A-1 to A-6 and A-8 to A-10. There is no explanation on the part of the

plaintiffs for Ex.B-1 to B-10 and B-12. Nor is there any explanation as to why Venkatapathy Reddiar entered in his account book Ex.B-25, the

accounts of the milk business conducted by D.W.1 and the household expenses incurred for the defendants. Ex.B-25 is sufficient to prove beyond

doubt that Venkatapathy Reddiar considered the defendants and treated them always as members of his family. He did not make a distinction or

discrimination between the plaintiffs and the defendants.

Reliance is placed upon the written statement filed by the first defendant in O.S. No. 439 of 1970 on the file of District Munsif''s Court,

Villupuram, marked as Ex.A-11 and her deposition in that suit, marked as Ex.A-43. The said suit was filed by one Munusamy on a promissory

note dated 6-5-1967 executed by the first defendant. It is the case of the first defendant that the promissory note was extorted from her by force

and coercion by the plaintiff therein with the help of several Harijans of Melakundai village, in which place she owned certain lands. According to

her, the plaintiff in that case claimed that a sum of Rs. 600/- was due to him by Venkatapathy Reddiar and she was liable to discharge the debt. In

the written statement in that case, the first defendant raised a plea that Venkatapathy Reddiar was only her paramour and she was not liable to

discharge any of his debts and the remedy of the plaintiff therein was only to proceed against the legal heirs of Venkatapathy Reddiar. A similar

stand was taken in the deposition in that suit. When she was confronted with Ex.A-11, the first defendant explained that her counsel by name

Veeraraghava Iyer of Villupuram advised her to raise such a plea in the written statement in order to escape the liability and win the case. There is

no reason to reject her version. It is seen from the judgment in that suit marked as Ex.B-26 in this case that before the filing of the suit, a notice was

issued by the plaintiff therein on 28-5-1968 and a reply notice was sent by the defendant therein on 1-6-1968. In that reply notice the defendant

therein had definitely stated that she was the second wife of Venkatapathy Reddiar. This is evident from her deposition in that case marked as

Ex.A-43 in this case. She was naturally confronted in that case with Ex.A-3 and she deposed that her advocate advised her to issue a reply notice

like that. It is quite obvious that when she contested the suit, the counsel who appeared for her thought it better to take the stand that she was only

a concubine and not a legal heir of Venkatapathy in order that she could win the suit. It is to be noted further that the said suit was dismissed by the

District Munsif on the ground that the promissory note was not supported by consideration and the case put forward by the defendant with regard

to the circumstances under which it was executed was true. Having regard to the above facts, no reliance can be placed by the plaintiffs on Ex.A-

11 or Ex.A-43. Reference must, however, be made to Ex.A-44, which is a Certified Copy of the deposition of the second defendant herein in that

suit. His religion was stated as ''Hindu'' and caste as ''Reddiar''.

All the other documents in this case came into existence after the death of Venkatapathy. Ex.B-13 is a notice issued by one Lokanathan,

Advocate, Villupuram to the first defendant on behalf of a creditor by name Balasundara Mudaliar describing her as ''wife of Venkatapathy'' and

making a demand for the amount due under a promissory note dated 14-5-1967. Ex.B-14 is the printed Voters'' List for the year 1970. It shows

that the plaintiffs were living in No. 16/1, Post Office Street, while the defendants were living in No. 2, East Mada Street. The first defendant is

described as the wife of Venkatapathy Reddiar. Defendants 2 and 3 are described as his sons. Ex.B-15 is a promissory note dated 12-5-1970

executed by the first defendant in favour of one Balasundra Mudaliar for a sum of Rs. 3188/-. Ex.B-16 is a promissory note by the first defendant

dated 5-9-1971 in favour of one Jayarama Chettiar for a sum of Rs. 550/-, Ex.B-17 is another promissory note in favour of one Poongan dated

10-5-1972. Ex.B-18 is a pass-book issued by the Vikravandi Co-operative Agricultural Bank Limited describing the first defendant as the wife of

Venkatapthy Reddiar. Ex.B-19 is a registration copy of mortgage deed executed by the first defendant for herself and her minor son the fourth

defendant and defendants 2 and 3 in favour of Vikravandi Co-operative Agricultural Bank Limited. Ex.B-20 is a notice issued by one Lokanathan,

Advocate, Villupuram, on behalf of Balasundara Mudalliar. All the above documents describe her as the wife of Venkatapathy Reddiar. Though

the documents are after the death of Venkatapathy Reddiar, they prove that the society accepted her and recognised her as the wife of deceased

Venkatapathy Reddiar. She could not have borrowed heavy amounts from strangers, if she did not have that status and if she was only a

concubine. Ex.B-21 is a money order acknowledgment by T.T. Devasthanam evidencing that the second defendant describing her as ''wife of

Venkatapathy Reddiar''. Ex.B-23 is another pass book issued in the same year in favour of the first defendant and others. Ex.B-24 is the S.S.L.C.

Book pertaining to the fifth defendant. Even if Exs.B-21 to B-25 are eschewed from consideration, there is ample evidence on record to show that

the first defendant became a Hindu before her marriage and she was married to Venkatapathy Reddiar according to Hindu Sastric rites.

One other document remains to be considered and that is Ex.A-7. That is a registered bogyam deed dated 15-4-1971 in favour of one

Pachammal executed by the first defendant. The first defendant described herself as ''Abhimana Baryal'' of Venkatapathi Reddiar. The document

came into existence when the suit O.S. No. 439 of 1970 was pending on the file of the District Munsif, Villupuram. It is quite obvious that the first

defendant described her as ''Abhimana Baryal'' in view of the stand taken by her in the said suit. There is no explanation as to how the plaintiffs

have produced the original document Ex.A-7.

Now it is necessary to consider the principles of law applicable to the case and consider whether the evidence on record referred to above is

sufficient in law to hold that the first defendant is a Hindu and a legally wedded wife of Venkatapathy Reddiar.

In Mulla''s Principles of Hindu law, 15th Edition, page 565, the law is stated thus:

There is no rule of Hindu Law which forbids the subsistence of a marriage, one of the parties to which is a non-Hindu. The law does not refuse to

recognise a conjugal union merely by reason of a difference of religion. (Chandramani Dubey v. Dubey (1951 2 All. 439, (''51 A.A.529'').

The same principle is set out in N.R. Raghavachariar''s Hindu Law, Principles and precedents, 8th Edition at page 49:

Marriage of Converts to Hinduism:- Converts to Hinduism are generally deemed to be Sudras and a marriage between a Hindu of the Sudra caste

and a Christian Woman converted to Hinduism is valid as a marriage between Sudras (Muthuswami v. Masilamani (33M. 342:20 M.L.J. 49 : 5

I.C. 42;) Rajammal v. Mariyammal (I.L.R. (1953) Mys. 588 : 1954 Mys. 657), Mt. Chandramoni v. Rama Shankar Dubey (1951 All. 529). A

marriage between an Austrian Christian lady converted to Hinduism and a Vaisya was held as a marriage in anuloma form, the women being

considered a Sudra for purposes of caste (Morarji v. Administrator General (55 M.L.J. 478: 52 M. 160: 28 L.W. 674: 1921 M.1279 : 1928

M.W.N. 848) (See also Sita Devi v. Gopal Saran (111 I.C. 702 : 9 Pat. L.T. 397 : 1928 P. 375). Where a Hindu becomes a convert to

Christianity and marriages in India a Christian woman and subsequently becomes reconverted to Hinduism and marries a Hindu woman even

during the lifetime of the Christian wife, the second marriage may not be valid and the question whether any ceremonies are at all necessary for the

reconversion is to be answered with reference to the practice and sense of the community in respect of such matters (1934 M 630 : 40 L.W.

502:67 M.L.J. 389 : 1934 M.W.N. 1197).

In Mayne Hindu Law and Usage, 12th Edition, the following passage is found at page 91:

The marriage of a Hindu Sudra with a Non-Hindu is not prohibited under the Hindu Law apparently because a non-Hindu is considered a Sudra"".

(Chandramani Dubey v. Ramshanker Dubey (1951 All. 589) and Rajammal v. Mariyammal (1954 Mys. 38).

In Muthuswami Mudaliar v. Masilamani ILR 33 Mad 342, a marriage contracted according to Hindu rites by a Hindu with a Christian woman,

who before marriage was converted to Hinduism was held to be valid, as such marriages were found to be common among and recognised as

valid by the custom of the caste although such marriage was not in strict accordance with orthodox Hindu religion. The following statement of facts

found in the judgment is relevant:

She was a Roman Catholic Christian before her marriage. She removed the cross from her neck. Her forehead was smeared with holy ashes. The

Brahman priest made homam and had the tali tied round her neck, or in other words with her husband she accepted his religion, also. The question

then is whether a marriage of a Hindu with a convert from Christianity is valid.

It is only on these facts the Bench held that she was converted to Hinduism before marriage. The law on the subject was stated succinctly at page

355 as follows:

Where, therefore, a caste accept a marriage as valid and treat the parties as members of the caste it would be, it appears to me, an unjustifiable

interference for the Courts to declare those marriages null and void.

In Ratansi D. Morarji v. The Administrator-General of Madras ILR 52 Mad 160 Venkatasubba Rao, J. held that membership of a caste is not

a necessary prerequisite for being a Hindu and a person of non-Hindu origin can become a Hindu by conversion. The learned Judge held that it

was a question of fact in each case whether a given person was a Hindu or not. It was observed that if a European resides long in India, abdicates

his religion by a clear act of renunciation and adopt Hinduism by undergoing formal conversion, gives up along with Christianity his Christian name

and deliberately assumes a Hindu name, marries in accordance with Hindu religious rites a person who is a Hindu by race and religion and cuts

himself off from his environments and takes to the Hindu mode of life, in such a case the Court may justly come to the conclusion that he is a Hindu

within the meaning of the Indian Succession Act.

The said judgment was wrongly understood to have laid down that formal ceremonies were necessary for conversion into Hinduism. The

matter was cleared by the same learned Judge sitting in Bench with Venkataramans Rao, J. in B. Ramayya Vs. Mrs. Josephine Elizabeth and

Others, wherein he approved the dictum of Varadachariar, J. in Guruswami Nadar v. Irulappa Konar 67 M.L.J. 389=40 L.W. 502. The Bench

held that a formal conversion was not a prerequisite to a person becoming a Hindu and it was not necessary that everyone of the tests mentioned in

the judgment in Morarji''s case ILR 52 Mad. 160 should be fulfilled where conversion to Hinduism was alleged. The Bench observed that all that

was laid down in the case was that each of the tests enumerated having been fulfilled, there was conclusive evidence in favour of the alleged

conversion.

The question was elaborately discussed by a Division Bench in Goona Durgaprasada Rao v. Goona Sudarsanaswami ILR 1940 Mad 653=51

L.W. 159. Mockett, J. held that there was no warrant to holding that either of the two ingredients viz., formal renunciation of religion or

performance of expiatory ceremonies, was essential in all cases of conversion or reconversion to Hinduism. Krishnaswami Ayyangar, J. the other

learned Judge on the Bench observed that the correct test was to lay emphasis on the prevailing sentiment and usages of the community and its

approval or disapproval was the governing factor. It will be advantageous to extract the following passages from the judgment of Krishnaswami

Ayyangar, J.:

It is however undeniable that his outward bearing and habits almost from the beginning were more those of a Hindu than a Christian and, as he

advanced in life, he drifted more and more to his old faith which was the faith of most of his relations and friends. It is difficult to fix any point of

time at which he could be said to have definitely abjured Christianity and reentered the religion of his fore-fathers. It is certain, however, that no

formal ceremonies of any kind were undergone by him such as are sometimes resorted to in the present day when a non-Hindu desires to become

a convert to the Hindu religion.

There is evidence sufficient to justify us in holding that the relationship between Appalaswami and Appalanarasamma was similar to that subsisting

between married spouses living in lawful wedlock and it was so regarded by the members of his family, no less by his caste. If it was the intention

of Appalaswami to take Appalanarasamma as his wedded wife, as we think it was, it is clear that by the date of the marriage, if not before, he

must have definitely made up his mind to abjure Christianity for good and become a Hindu in every respect. Otherwise, it would have been

impossible for him to confer on Appalanarasamma the status of a married wife. In fact the entire evidence fits in with this view of the facts. There is

no proof of any contact with the church or the padres after the marriage. On the contrary, as the learned Judge has pointed out, Appalaswami was

in habits and worship a Hindu observing the Hindu usages and forms of worship at home and on special occasions. He used to wear a big namam

on his forehead, attended the local temples and the jatras, observed Hindu vratams and festivals, worshipped idols and the sacred tulasi, and

listened with interest to the puranas and took vows for Hindu Gods. The birth certificates of the appellants describe them as Hindus. The sons of

the first wife married in Hindu families and according to Hindu rites and customs. The whole Baliji community seems to have accepted the entire

family as still in the caste and family. When the brothers, Ayyappa and Appalaswami, died, they were both without doubt cremated and brindavans

erected over their ashes. It is in fact difficult to conceive of a more complete reversion to Hinduism or a clearer abandonment of Christianity. The

plaintiffs and their mother, not to mention the other members of the family, were throughout, over a fairly long period, received and treated by the

entire Hindu community as Hindu without the slightest trace of any objection or dissent.

What is remarkable in this case is that there is not the slightest evidence after 1912 or 1913 of Appalaswami or any of the members of his family

having ever evinced any interest in Christianity or done anything to indicate that they paid even formal allegiance to its tenets or observances.

The Hindu law of today is after all but a bundle of customs and usages approximating more or less to certain ancient standards fixed by wise men

of an ancient age. At no time did those standards and the rules in which they found expression attain universal acceptance in the country, even

among communities professing the Hindu faith. Among the lower castes in particular there have been usages of an alien origin which have persisted

through the ages, and for that reason consistently upheld by the Courts. We cannot shut our eyes to changes almost revolutionary in character and

extent which have been for a considerable time past taking place in the structure of the Hindu social order, and in the ideas and sentiments which

govern it. The old sanctions seem to have all but disappeared, sweeping away before them the old faith and the old institutions which did constitute

in the past an integral condition of the indigenous social fabric. The attitude of neutrality on the part of Government in matters appertaining to

religion and religious belief, which is now of course a thing of the past, while it did not start, did not restrain the forces of disintegration which began

early to assert themselves. Members even of the higher castes accustomed to strict discipline chafed under the old restrictions, which to them had

ceased to have a meaning, and threw them off with impunity. Liberties were taken by individuals, and almost silently acquiesced in by society,

tending naturally to destroy faith in the time-old articles. In view of the forces at work it is no surprise that, as early as 1903, the Privy Council

refused to permit a departure from the orthodox standards in matters of diet or ceremonial observances to affect the status and civil rights of the

erring individual; see Bhagwan Koer v. Bose (1903) ILR 31 Cal. 11, 33 (P.C.).

Explanations for many transgressions which in the past would have been insisted upon were and are now scarcely considered necessary or

perhaps considered unnecessary. A true and genuine change of heart, rather than the adoption of mere formalism, is the consideration that would in

modern condition appeal most to the modern mind. These observations are made not for the purpose of comment or criticism on current social

trends, but only for furnishing the necessary background against which the learned Judge''s opinion has to be viewed. Considerations such as these

seem to my mind to have been in fact at the back of the mind of the learned Judges who were responsible for the weighty pronouncements in the

cases to be presently noticed.

In Mrs. Chandramani Dubey and Another Vs. Rama Shankar Dubey and Others, it is held that there was no rule of Hindu law which forbid a

subsistence of a marriage, one of the parties to which is a non-Hindu.

It is this judgment which is cited in all the text books referred to earlier.

In Rajammal v. Mariyammal 1954 Mys 38 a Division Bench, reiterated the same proposition and observed that the position received statutory

recognition in Hindu Marriage Validity Act (Act No. XXI of 1949). This decision is also referred to in the text books.

In Seethalakshmi Ammal Vs. Ponnuswamy Nadar through mother and next friend Annapazham, a Division Bench while upholding the validity

of a marriage of a woman, who was a Christian by birth, with a Hindu Nadar, observed as follows:-

Thus, on view of the entire case-law, it seems to us that Hindu law would apply even to converts to Hinduism and it is not necessary for its

application that a person should be a Hindu by birth. Hindu law applied not only to a person who is a Hindu only by religion. But as Venkatasubba

Rao, J. said the mere fact that a non-Hindu professes a theoretical allegiance to the Hindu faith or is an ardent admirer and advocate of Hinduism,

does not make him a Hindu. Long residence in India, abdication of the original religion by a clear act of renunciation, adopting the Hindu religion by

a formal conversion thereto, assuming a Hindu name, marrying a Hindu according to Hindu rules and taking to the Hindu modes of life are proof

that a non-Hindu has become a Hindu. But it is not necessary that every one of these tests should be fulfilled. It is also not necessary that there

should be established a formal conversion to Hinduism. Since there are no ceremonies prescribed in the smrithis for conversion to the Hindu

religion, one has to look to the sense of the community into which the convert is alleged to have been let in and if the members of that community

are prepared to receive him as one of themselves, the fact that there has been no purificatory or expiatory ceremonies, does not militate against that

person being treated in law as a member who has been admitted into the Hindu fold. In this case, therefore even Annapazham, the mother of the

respondent, was a Christian before her marriage with Perumal Nadar, there is sufficient evidence to come to the conclusion that she became a

Hindu after her marriage with Perumal Nadar adopted a Hindu name, observed the Hindu mode of life and was received as a Hindu by the

members as her marriage with the appellant, Perumal Nadar, was a valid marriage.

While referring to the case of Muthuswamy Mudaliar v. Masilamani ILR 33 Mad 342, the Bench observed thus:-

Mr. Rajah Aiyar brought to our notice that there, it was a case where on the facts it was found that there was a conversion by the woman to the

Hindu religion before she was married to her Hindu husband. But we have gone carefully through the text of the judgment in that case and we have

found that no ceremonies or rites were observed by the lady who belonged to the Christian faith for converting herself into Hinduism before her

marriage.

The learned Judges proceeded to quote the passage in that judgment already extracted by me.

The judgment of the Division Bench was affirmed by the Supreme Court in Perumal Nadar v. Ponnuswami Nadar (1970) 2 M.L.J. 121

(S.C.)=84 L.W. 5 (S.N.). The relevant passage in the judgment reads thus:

The evidence clearly establishes that the parents of Annapazham arranged the marriage. The marriage was performed according to Hindu rites and

ceremonies in the presence of relatives who were invited to attend; customary ceremonies peculiar to a marriage between Hindus were performed;

no objection was raised to the marriage and after the marriage Annapazham was accepted by the local Hindu Nadar community as belonging to

the Hindu faith, and the plaintiff was also treated as a Hindu. On the evidence there can be no doubt that Annapazham bona fide intended to

contract marriage with Perumal. Absence of specific expiatory or purificatory ceremonies will not, in our judgment, be sufficient to hold that she

was not converted to Hinduism before the marriage ceremony was performed. The fact that Perumal chose to go through the marriage ceremony

according to Hindu rites with Appapazham in the presence of a large number of person clearly indicates that he accepted that Annapazham was

converted to Hinduism before the marriage ceremony was performed.

The last sentence in the above passage is of great significance. In the present case, the evidence of the defendants'' witness makes out clearly

that the marriage of the first defendant was performed in accordance with the Hindu rites in the presence of a gathering of good number of persons.

That itself would indicate that Venkatapathy accepted the first defendant as ''a Hindu''.

In Sridharan v. Commissioner of Wealth-Tax 83 L.W. 326, a Hindu who married an Austrian lady under the Special Marriage Act, 1954,

filed his wealth-tax return claiming to be treated as a joint family comprising of himself and his son through that lady. The question was whether for

the purposes of assessment under the relevant fiscal enactments there was a Hindu undivided family. The Bench answered the question in the

affirmative, after considering the various statutory enactments and the principles of Hindu Law.

That judgment was affirmed by the Supreme Court in Commissioner of Wealth-tax v. Sridharan (1977) 1 M.L.J. 5 (S.C.)= 89 L.W. 85 S.C.

The relevant passage is as follows:

There is no material on the record to show that Nicolas Sundaram was not brought up as a Hindu or that he did not conform to the habits and

usages of Hinduism or that he was not recognised as a Hindu by the society surrounding him or that he became a convert to another faith.

Sridharan has also unequivocally acknowledged and expressly declared that he and his son Nicolas Sundaram formed, a Hindu undivided family.

This declaration in the circumstances is sufficient, as also found by the High Court, to establish that Nicolas Sundaram was brought up as a Hindu

member of the family to which his father belonged. At page 290 of his Treatise on Hindu Law and Usage (Eleventh Edition), Mayne says that a

child in India, under ordinary circumstances, must be presumed to have his father''s religion, and his corresponding civil and social status. We

therefore, have no hesitation in holding that Nicolas Sundaram is a Hindu and he could validly be a member of the Hindu undivided family headed

by his father and be governed by Hindu Law.

In S. Anbalagan Vs. B. Devarajan and Others, and Kailash Sonkar Vs. Smt. Maya Devi, the Supreme Court reiterated that no particular

ceremony is prescribed for reconversion to Hinduism by a person who had earlier embraced another religion and unless the practice of the caste

makes it necessary, no expiatory rites need be performed and ordinarily he regains his caste on reconversion unless the community does not accept

him.

Applying the tests prescribed in the above rulings to the facts of the present case, it is clear that the first defendant had become a Hindu at the

time of marriage with Venkatapathy in 1946, if not earlier. One important circumstance which is rather clinching to show that she was accepted by

the members of the community is that she was admittedly residing in East Mada Street in which most of the residents were Reddiars. If she was

only a Christian concubine, she would not have been permitted to reside in that place. Even if she had been a Hindu concubine, she would not have

been able to live there. The evidence clearly showed that the house in which the plaintiffs were living was within a few yards from the house of the

defendants. In fact, I have referred to a particular answer given by P.W.1, which probabalises the version of the defendants that for some years

they were living along with the plaintiffs in the same house as one family. When all the older sisters of the first defendant were married and settled in

life, she would not, at the age of 20, have commenced living with Venkatapathy as a concubine without his marrying her in some form or other.

Certainly, such a marriage would have been celebrated in a simple manner avoiding pomp and pageantry. The long cohabitation and the conduct of

the concerned parties undoubtedly attract not only the presumption of marriage but also an irresistible inference thereof. The evidence on record in

more than sufficient to uphold the claim of the defendants and accept their plea. On an analysis of the evidence on record, I am of the view that the

first defendant renounced Christianity and became a Hindu before her marriage with Venkatapathy Reddiar and she married him according to

Hindu Sastric rites. I hold that the first defendant is a legally wedded wife of Venkatapathy Reddiar and defendants 2 to 5 are their legitimate

children born out of lawful wedlock.

An argument was advanced by learned counsel for the appellants that after the passing of the Indian Christian Marriage Act (XV of 1872), any

marriage between a Hindu and a Christian solemnized otherwise than in accordance with the provisions of the Act was void. Reliance is placed on

the provisions of Sections 4, 6 and 68 of the Act. The Act defines the expression ''Christians'' as persons professing the Christian religion. I have

already held on the facts that the first defendant ceased to be a Christian even before the marriage or at any rate at the time of the marriage. Even

assuming that she was a Christian at the time of marriage and became a Hindu only later, the marriage was not void. If the parties claim rights as

Christians under the marriage, treating it as a Christian marriage, the position might be different. It is quite possible to contend in that event that the

marriage is null and void. But, when the parties claim rights as Hindus treating it as a Hindu marriage, which in fact it was, there is no question of

the Act nullifying the said marriage. No doubt the provision in Section 68 of the Act would make the person who performs the marriage guilty of an

offence liable to punishment. But that would not invalidate the marriage as such. In re Kolandaivelu and another ILR 40 Mad 1030=6 L.W. 126, a

Full Bench of this Court held that a Hindu by religion performing a marriage according to Hindu mode between two persons, one of whom is a

Christian, commits an offence u/s 68 of the Christian Marriage Act. But, the Full Bench pointed out that the Act was concerned only with the forms

in which the marriage was to be solemnized and did not deal with objections to the validity of the marriage. Hence, the marriage between the first

defendant and Venkatapathy was valid in Hindu Law and it was not invalidated by the Christian Marriage Act.

The trial Court has expressed a view that the presumption of marriage from long cohabitation cannot be applied to this case, because

Venkatapathy was already married to the fifth plaintiff. The trial Court has placed reliance on the judgment of Andhra Pradesh High Court in

Magarajamma v. State Bank of India AIR 1961 AP 321. The trial Court has overlooked that a Division Bench of this Court has expressly differed

from the view taken by the Andhra Pradesh High Court in Raghuvir Kumar by next friend and mother Smt. D.P. Kamala Kumari and Another Vs.

Smt. Shanmughavadivu and Others, . At page 204, the Division Bench referred to the judgment of the Andhra Pradesh High Court and observed,

We are not in a position to express our agreement with the view expressed in the above decision that the presumption of marriage cannot be

raised in case where the first marriage is subsisting."" It is very curious that the trial Court has referred to the above Division Bench judgment in the

earlier paragraph and extracted a passage therefrom. The last sentence of the passage extracted by the trial Court is, ""The mere fact that there was

an earlier marriage subsisting in this case, it cannot be considered sufficient to rebut the presumption of marriage arising out of long cohabitation

and repute."" In spite of the same, in the very next paragraph, the trial Court refers to the judgment of the Andhra Pradesh High Court and places

reliance on the same. That shows that the learned subordinate judge has not applied his mind to the proposition of law or taken to understand even

the passages quoted by him in his judgment.

In the result, the defendants are held to be legally entitled to shares in the joint family properties. The plaintiffs are not entitled to claim either the

declaration of their exclusive titles or the relief of injunction. The plaintiffs and defendants are jointly entitled to the suit properties and other

properties of the family. The Second Appeal fails and it is dismissed. In view of the fact that the parties are closely related, the parties are directed

to bear their respective costs.