Dharmasamvarthini vs Selvakumar on 11 August, 2017

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 11.08.2017

CORAM

THE HONOURABLE MR.JUSTICE M.M.SUNDRESH
AND
THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR

A.S.Nos.926 of 1992 and 986 of 1993

A.S.No.926 of 1992

1.Dharmasamvarthini
2.Rajeswari
: Defendants 1 and 2/Appellants

Vs.

1.Selvakumar
2.Tamilselvan
3.Gajendran
4.Kalaiselvi
5.Senthilkumar
6.Pugazhanthi :Plaintiffs 1 to 6/Respondents 1 to 6

7.Indian Bank, Mission Street
Thanjavur Town rep. by its
General Manager :Defendant No.3/Respondent No.7
(6th respondent declared as Major and guardianship discharged vide Court
order dated 22.09.2016 made in M.P.(MD).Nos.1 and 2 /2014)

PRAYER: Appeal filed under Section 96 of C.P.C. against the judgment and
decree, dated 13.10.1992 made in O.S.No.95 of 1989, on the file of
Subordinate Court, Thanjavur.

!For Appellants : Mr.T.R.Rajagopalan
Senior Counsel for
Mr.T.R.Rajaraman

^For Respondents : Mr.V.Balaji for R1 to R6
Mr.R.Sekaran for R7

A.S.No.986 of 1993

Indian Bank
rep. by its General Manager,
Office at Mission Street,
Thanjavur Town. : 3rd Defendant/Appellant

Vs.
1.Selvakumar
2.Tamilselvan
3.Gajendran
4.Kalaiselvi
5.Senthilkumar
6.Pugazhanthi : Plaintiffs 1 to 6/Respondents 1 to 6
7.Dharmasamvarthini :1st Defendant/7th Respondent
8.Rajeswari :2nd Defendant/8th Respondent

(6th respondent declared as major and guardianship discharged vide Court
order dated 22.09.2016 made in M.P.(MD).Nos.1 and 2 of 2014)
PRAYER: Appeal filed under Section 96 of C.P.C. against the judgment and
decree, dated 13.10.1992 made in O.S.No.95 of 1989, on the file of
Subordinate Court, Thanjavur.

For Appellant : Mr.R.Sekaran for
M/s.King Patridge

For Respondents : Mr.V.Balaji for R1 to R6
Mrs.N.Krishnaveni for R7
Senior Counsel for
Mr.P.Thiagarajan
R8 No appearance

Judgment Reserved on
03.08.2017
Judgment Pronounced on
11.08.2017

:COMMON JUDGMENT

(Common Judgment of the Court was delivered by N.SATHISH KUMAR,J.)
Aggrieved over the preliminary decree passed in respect of item Nos. 1,
2, 4 and 7 declaring the plaintiffs are entitled to 6/8th share, the
defendants 1 and 2 filed the appeal in A.S.No.926 of 1992. Similarly,
aggrieved over the preliminary decree in respect of 3rd item of the property
namely deposit in the bank, the bank /3rd defendant has filed the appeal
A.S.No.986 of 1993.

2. Since both the appeals are arising out of the same judgment, dated
13.10.1992 in O.S.No.95 of 1989 on the file of Subordinate Court, Thanjavur,
we decide to dispose of both the appeals in a common judgment.

3. For the sake of convenience the parties are arrayed as per their own
ranking before the Trial Court. The brief facts of the plaintiffs case is as
follows:-

The plaintiffs are children of one Durairaj, born through their mother
Kamalambal. Though the first defendant married Durairaj in the year 1953, the
female child born to her died immediately. Thereafter, in the year 1957, the
second defendant herein was born to Durairaj and first defendant. Since both
the children born to first defendant happened to be female children and after
that, the first defendant did not conceive for some time, late Durairaj, who
was the Zamindar of Pappanadu, wanted to have a male child. Hence, he thought
of going for a 2nd marriage. Accordingly, the said Durairaj married
Kamalambal as the second wife on 05.06.1960 at 30, Ganapathy Nagar, Thanjavur
in the presence of relation of Kamalambal and Durairaj. The said Kamalambal
was already living along with her mother, who was managing the house hold
work of the said Durairaj. Accordingly, the marriage was fixed with
Kamalambal and soleminised on 05.06.1960 by exchanging garlands and Durairaj
also tied thali in the presence of R.Nallamuthu Nattar of Marudhur,
K.Rajagopal Nattar of Marudhur, Rajarathinam of Tiruchy and others. The first
defendant is always residing at Abraham Panditham Road, Thanjavur. After the
marriage with Kamalambal, Durairaj was living with her at 30, Pillaiyar Koil
Street, Ganapathi Nagar, Thanjavur. Out of the wedlock, plaintiffs were born
to Durairaj and Kamalambal. In all relevant records, the plaintiffs have
shown as children of Durairaj. After the marriage of the second defendant
which took place in the year 1983, as the same was performed against the
wishes of Durairaj, the said Durairaj considering the attitude of the first
defendant, wanted to settle the house at 30, Ganapathi Nagar in favour of
Kamalambal. Since bigamy was an offence, at the instance of Durairaj in the
above settlement, Kamalambal was not described as wife of Durairaj, even
though there was a marriage between them and Durairaj permanently stayed with
Kamalambal till his death. Even during his life time, the 3rd plaintiff was
in possession and management of the theatre, namely Raja Kalaiyarangam,
Thanjavur. Hence, the plaintiffs being the children of Durairaj, entitled to
6/8th share in the estate left by Durairaj. Hence, the above suit.

4. The defendants 1 and 2, wife and daughter of Durairaj, filed a
written statement denying the marriage between Durairaj and Kamalambal on
05.06.1960. It is the contention of the defendants that Durairaj, was very
weak towards sexual pleasure and was maintaining a harem shamelessly without
a feeling of abasement. Kamalambal appears to have exploited him taking
advantage of his weakness and she was also exercising influence and undue
influence on him, infact, Kamalambal was kept as concubine and she was the
servant maid in the house. Because of the influence and improper advice of
Kamalambal, there was some love loss in the family. Late Durairaj was a
puppet in the hands of Kamalambal and her children and he had lost his
independent thinking and balance. He was behaving in a questionable manner.
Kamalambal was never treated or considered or given the status of wife by
Late Durairaj at any point of time. She was never recognized as wife of
Durairaj. She was not esteemed or reputed as wife of Durairaj by those who
know her. She has no reputation of having been married to late Durairaj. It
is also denied by the defendants that Durairaj wanted to have a male child,
therefore he contracted the second marriage. Similarly, the alleged exchange
of garlands and tying of thali is also denied by the defendants. The
allegation that Durairaj and Kamalambal living as husband and wife from 1960
is also denied.

5. It is the further contention of the defendants that Raja Kalai
Arangam, a cinema theater, was absolutely belong to the first defendant and
her husband executed a settlement deed in the year 1959. There were civil
suit in respect of the same and ultimately there is a compromise. In view of
the litigations, the first defendant’s husband wanted to execute a power deed
in his favour for attending the cinema theatre business. The first defendant
has signed the papers under the premises that she is executing the power of
attorney and signed in several blank papers.

6. It is the contention of the defendants that the first defendant’s
signature which was obtained in blank papers were used or misused for
preparing a settlement deed in his favour. The settlment deed said to have
been executed in favour of Kamalambal by the first defendant is also obtained
in a similar way and those documents were created by Durairaj and hence, it
is the contention of the defendants that as there was no marriage between
Kamalambal and Durairaj, the plaintiffs are not entitled to claim any share
in the suit property.

7. The third defendant filed a written statment stating that late
Durairaj borrowed a housing mortgage loan and the loan was adjusted out of
the bank deposits available in the 3rd defendant bank. The balance amount was
also paid to the first defendant on 28.06.1989 on the basis of the legal
heirs certificate and after getting the indeminity bond from the first
defendant and one T.Krishnasamy Vandiyar. The above fact also intimated to
the plaintiffs through letter dated 19.06.1989. As far as locker is
concerned, the 3rd defendant still not settled and the defendant is ready to
obey the direction of this Court.

8. On the basis of the above pleadings, the following issues are framed
by the Trial Court:-

1) Whether the plaintiffs are legal heirs of late Durairaj?

2) Whether the alleged marriage between Kamalambal and Durairaj on
05.06.1960, is true and valid?

3) Whether the first item of the property belonged to Durairaj and if
so, the plaintiffs are entitled to share?

4) Whether the plaintiffs are entitled to partition as prayed for in
other items?

5) Whether the Court fee paid is correct?

6) What relief the plaintiffs are entitled?

9. On the side of the plaintiffs PW1 to PW11 were examined and Ex.A1 to
Ex.A79 were marked. On the side of the defendants DW1 was examined and Ex.B1
to Ex.B21 were marked. Based on the evidence and materials, the learned Trial
Judge, decreed the suit and granted preliminary decree in respect of item
Nos.1, 2, 3, 4 and 7 and declared that the plaintiffs are entitled to 6/8
share in the above items. However dismissed the suit in repsect of other
items of the suit properties. Aggrieved over the same, the defendant 1 and 2
filed an appeal in A.S.No.926 of 1992 and the third defendnt/bank has filed
an appeal in A.S.No.986 of 1993 challenging the preliminary decree in respect
of 3rd item of the suit properties.

10. The learned Senior Counsel appearing for the appellants in
A.S.No.926 of 1992 submitted that admittedly, the first defendant is the wife
of the late Durairaj and late Durairaj was Zamindar of Pappanadu and they are
living in a family house and out of the wedlock, the second defendant was
born to the first defendant and Durairaj. When the first marriage was
existing very much, the said Durairaj marrying one Kamalambal in the year
1960 is highly improbable. Further, the contention of the plaintiffs that
since Durairaj did not have any male heir and therefore he wanted to have a
second marriage to have a male heir, is also highly improbable. Admittedly,
the marriage between the first defendant and Durairaj took place in the year
1953. Out of the wedlock the female child already born to Durairaj, through
the first defendant was died after sometime. Thereafter, the second defendant
was born to them. That being so, contracting 2nd marriage to have a male heir
is highly improbable. Admittedly the first defendant was also cabable of
delivering a child at the relevant time. Therefore, without waiting for the
first defendant to deliver a child, Durairaj marrying Kamalambal only for the
purpose of male child is highly improbable and unbelieavable.

11. It is the further contention of the learned Senior Counsel that the
alleged marriage plea by the plaintiffs is also not established. In Ex.A21/-
legal notice sent by the plaintiffs to the defendants, it is stated that
marriage was performed in the family house, whereas in the pleadings it is
stated that marriage was performed in Ganapathi Nagar. These facts clearly
belied the contention of the plaintiffs about the second marriage. Durairaj
is from a reputed family and Kamalambal and her mother, infact, were working
as housemaid in the house. Therefore, Durairaj marrying the housemaid during
the existence of his first marriage is also highly improbable and cannot be
belieavable. The evidence adduced on the side of the plaintiffs are
interested witnesses and their evidence are highly improbable and cannot be
belieavable. Further, Durairaj was in the habit of maintaining a diary and no
diary whatsoever produced by the plaintiffs. If really Durairaj wanted to
marry Kamalambal, the marriage itself could have been conducted in the
temple. Therefore, contracting the marriage in a pooja room is also highly
unbelieavable. Durairaj never treated Kamalambal as his wife. Even in the
year 1980, when settlement deed was executed in favour of Kamalambal, she was
not treated as a wife of Durairaj. All these facts clearly show that there
was no marriage at all. Merely, because the plaintiffs were born due to some
illegal connection between Durairaj and Kamalambal, they cannot be considered
as legal heirs and legitamate children of Durairaj, when the marriage itself
is not been proved in accordance with law. Durairaj died only in the year
1988 and during his life time he never treated Kamalambal as his wife. All
these facts not been considered by the learned Trial Judge.

12. It is the further contention of the learned Senior Counsel that
mere long co-habitation itself cannot be a ground to presume a valid
marriage, paritcularly when the first wife was very much available and
submitted that the Trial Court has not considered the entire aspect and
simply decreed the suit. Hence, prayed for allowing the appeal. In support of
his arguments, the learned Senior Counsel relied upon on the following
judgments:-

i)VOL.46 MLJ 8 (SN),dated 18.01.1924, S.A.No.592 of 1921 wherein it is
held as follows:-

? If a marriage in fact is proved then it might be presumed to be
valid….. The presumption of a marriage from repute arises only where the
evidence shows that the parties were living together for a sufficiently long
period and were treated as husband and wife by their relations and the
public.Where a man had already married a woman and had children by her, there
is no presumption that another lady with whom he is said to have lived is his
wife or his children by her are legitimate?

ii) Vol.81 LW 200 (Rajagopal Pillai v. Pakkiam Ammal), wherein it is
held as follows:-

?The marriage state being chief foundation on which the superstructure
of society rests, presumption of the marriage arising from cohabitation of
spouses is a very strong presumption. Where a man and a woman had lived
together as man and wife, the law will presume, until the contrary is proved,
that they were living together by virtue of a legal marriage and not in
concubinage.?

iii) 1972 TLNJ 464 (Kumarayya Chettiar Ors. V. Cheyyalachi Ors),
wherein it is held as follows:-

?The question is whether in a case where the parties adduce evidence in
proof of a fact, but fail to establish the fact, the Court should still draw
the presumption merely on account of the existence of certain cricumstances.
In other words, the question is whether the presumption of marriage can be
drawn merely from the fact of long co-habitation between a man and a woman
even though the evidence adduced insupport of the proof of the alleged
marriage does not establish such fact. If from evidence itself, facts emerge
giving not only to weaken but destroy the presumption itself, there is no
scope for the application of the presumption.?

iv) AIR 1972 MAD 200 (P.Kaliamma v. K.Pillai), wherein it is held as
follows:-

?It is true that in spite of appellant Ponnanmma being a kudipravarthi
woman, it is open to her to contract a legal marriage with Adhikesavaperumal
Pillai and that a presumption of marriage from long cohabitation could be
invoked in her case just as in the case of any other Hindu woman. But as
pointed out by the Supreme Court in Gokalchand v. Parvin Kumari, AIR 1952 SC
231 at p.233, the presumption which may be drawn form long cohabitation is
rebuttable, and if there are circumstances which weaken or destroy that
presumption the Court cannot ignore them. One of such circumstances is the
fact that Ponnamma is a kudipravarthi who is so low in the social scale, that
a member of a respectable community would not incur the odium of contracting
a marriage with such a person, though public opinion might tolerate illicit
union with such persons.?

v) AIR 1978 SC 1557 (Badri Pasad v. Dy. Director, Consolidation)
wherein it is held as follows:-

? In this view, the contention of Shri Garg, for the petitioner, that
long after the alleged marriage, evidence has not been produced to sustain
its cermonial process by examining the priest or other witnesses, deserves
who live as husband and wife in society are compelled to prove, half a
century later, by eye-witness evidence that they were validly married, few
will succeed.?

vi)1983 (1) MLJ 311 (Alagammai v. Rakkammal), wherein it is held as
follows:-

? It is true that law does not favour concubinage, but that the
presumption is in favour of a marriage when a man and a woman are shown to
have cohabited continously for a long number of years, though such a
presumption is a rebuttable one and can be destroyed or weakened by the
presence of other circumstances.

.. It is pointed out that no doubt the presumption of law is in favour
of marriage and against concubinage, but where a person is already married,
no presumption of a second marriage arises by reason of long cohabitation. In
the present case, apart from the fact that the circumstances pointed out
earlier considerably weaken the drawing of such a presumption, there is
really no scope for such a presumption at all.?

vii) 1989 (2) LW 197 (Moham v. Santha Bai Ammal), wherein it is held as
follows:-

?Ex.A2 to A5 will only show that the plaintiffs were born to their
mother Drowpathi through late Subbarayalu Naidu. As alredy stated, their
paternity is not disputed by the defendants and the main dispute is as to the
status of their mother Drowpathi. Therefore, these documents are of no use to
the plaintiffs to prove the factum of a valid marriage of their mother.?

viii) 1994 (1) SCC 460 (S.P.S.Balasubramanyam v. Suruttayan), wherein
it is held as follows:-

?If a man and woman live together for long years as husband and wife
then a presumption arises in law of legality of marriage existing between the
two. But the presumption is rebuttable.?

ix) 1995 (1) LW 487 (Munuswami Gounder and another v. M.Govindaraju 4
Ors), wherein it is held as follows:-

?23. Then, once the factum of marriage is not proved, we have to treat
this case as a case of no marriage and therefore, Section 16(1) of the Hindu
Marriage Act is not attracted and the children born out of such relationship
cannot get the benefit of Section 16(1) of the Hindu Marriage Act. The Court
below having very many vital factors in considering the factum of marriage
between Pappammal and the 1st defendant, has miserably failed to render a
correct finding. In our view, the Court below has rendered a finding without
properly appreciating the oral and the documentary evidence filed on the side
of the parties. Therefore, we are unable to agree with the view taken by the
Trial Court. As pointed out earlier, the properties were partitioned between
the 1st defendant and his other children under Ex.B-6 as early as 26-12-1956
and eversince the parties are in possession and enjoyment of their respecive
shares. Therefore, there cannot be a further partition between the parties.
To substanitate their contention, the defendants have also filed Exs.B-7 to
B-12 sale deeds which amply show that the parties have acquired properties
and have dealt with the properties separately in their own exclusive names.
This will show that they are in possession and enjoyment of their separate
shares. The judgment of the Court below is based on surmises and assumptions
and we are not satisfied with the reasons assigned by the Court below in
decreeing the suit.?

x) 1996 (2) SCC 567 (Gurnam Kaur v. Puran Singh), wherein it is held
as follows:-

? Though all the courts concurrently found that the appellant was the
daughter of R and G, but it was held that the appellant was an illegitimate
child since the marriage of G (appellant’s mother) with her previous husband
was not legally dissolved.?

xi) 1996 (4) SCC 76 (Parayankandiyal Eravath Kanapravan Kalliani Amma
v. K.Devi), wherein it is held as follows:-

?82. In view of the legal fiction contained in Section 16, the
illegitimate children, for all practical purposes, including succession to
the properties of their parents, have to be treated as legitimate. They
cannot, however, succeed to the property of any other relation on the basis
of this rule, which in its operation, is limited to the properties of the
parents.?

xii) AIR 2000 MP 288 (Ramkali anr. V. Mahila Shyamwati Ors), where
it is held as follows?-

When there is no proof of solemnisation of marriage and there is
further no proof that there was a de jure marriage or even a de facto
marriage where during long cohabitation as husband and wife with habit and
repute a child is born, there can be no occasion whatsoever for making
available the statutory presumption envisaged under S.16 of the Hindu
Marriage Act, 1955 securing the status of a legitimate child in favour of
such a child born out of a union which was either void ab initio or declared
to be so under a decree passed under S.11 of 12 of the Hindu Marriage Act,
1955.?

xiii) 2001 (3) CTC 513 (Kanagavalli v. Saroja), wherein it is held as
follows:-

?14.. I have already referred to how because of non-registration of
marrige, woman, who has given herself physically, emotionally and otherwise,
gains nothing but stands to lose everything if the marriage is denied by the
man. The other compelling factor is the trauma that a child may face going
through his formative years with his paternity in doubt. This assault on a
child’s sensibilities can be easily avoided if there is a certificate of
registration of marriage between his mother and father which though may not
validate the marriage if otherwise void, will atlest bear testimony to the
identity of his biological parents.?

xiv) 2001 (1) LW 472 (Subba Reddiar v. Vasantha Ammal Anr), wherein
it is held as follows:-

?Ex.A-18 a copy of the sale deed executed by the Sundaram Ammal styling
herself as wife of Thiru.Krishnasamy Naidu to and in favour of Sundaram
Ammal, wife of Devaraj. A reading of the above exhibits would go to show that
the said Sundaram Ammal described as wife of Krishnasamy Naidu by some third
parties in different transaction and the same cannot be a conclusive proof to
hold that the Sundaram Ammal is the legally wedded wife of Thiru.Krishnasamy
Naidu.

xv) 2008 (4) SCC 520 (Tulsa v. Durghatiya), wherein it is held as
follows:-

?Where the partners lived together for long spell as husband and wife
there would be presumption in favour of wedlock. The presumption was
rebuttable, but a heavy burden lies on the person who seeks to deprive the
relationship of legal origin to prove that no marriage took place. Law learns
in favour of legitimacy and frowns upon bastardy.?

13. The learned counsel appearing for the respondents in A.S.No.926 of
1992 has submitted that the evidence of PW4, PW5, PW7 and PW9 not only prove
the marriage between Durairaj and Kamalambal, but also the fact that Durairaj
all along lived only with Kamalambal and the plaintiffs. The evidence of PW4,
PW5, PW7 and PW9 with regard to solemnisation of marriage is not even denied
in the entire cross-examination. All the documents produced by the plaintiffs
clearly vouchsafe the fact that Kamalambal was all along treated as wife not
only by Durairaj, but also by Public at large. The admission of Durairaj in
his letter is also prove the factum of marriage between Kamalambal and
himself. The first defendant due to difference of opinion with her husband,
all along lived separately. This is also been established by way of evidence.
When once marriage is established and the plaintiffs are also children of
Durairaj, the plaintiffs being the legitimate children of Durairaj, have
certainly entitled to shares in the property of Durairaj. The learned Trial
Judge has considered the entire matter and righly arrived just conclusion.
Hence, prayed for dismissal of the appeal. The learned counsel appearing for
the respondents also relied upon the following judgments in support of his
contention:-

i) AIR 1978 (SC) 1557 (Badri Prasad v. Dy. Director Consolidation),
wherein it is held as follows:-

?A man and a Woman living as husband and wife for about 50 years.
Strong presumption arises in favour of wedlock. Proof as to factum of
marriage by examining the priest and other witnesses not necessary.?

ii) 1994 (1) SCC 460 (S.P.S. Balasubramanyam v. Suruttayan), wherein it
is held as follows:

?It appears unnecessary to express any opinion as to whether the
relationship between Chinathambi and Pavayee was adulterous and if it was
sufficient to destroy the presumption in law as this plea does not appear to
have been raised in the written statement nor any issue was framed on it nor
any of the Courts have recorded any finding on it.?

iii) 1988 (1) LW 358 (Indirani v. Vellathal) wherein it is held as
follows:

? When a married person putsforth a version as to the form or the
manner or the procedure followed in going through the marriage ceremony,
unless the claim so putforth is substantiated by relevant, appropriate and
precise evidence, it is not for the Court from the avilable evidence to hold
that the marriage had taken place by following a method which is permissble
in law, even though no such plea is put forth, and rather a different stand
had been taken in the pleadings.?

iv) 1997 (2) LW 459 (Shantinath Ramu Danole Another v. Jambu Ramu
Danole Others), wherein it is stated as follows:-

?It may be pointed out that marriage is attended only by the relatives
and friends. The evidence of such relatives and friends could not be thrown
out only because they happened to be relatives and friends unless their
testimony suffers from some inherent infirmity which is not to be found in
the evidence of these two witnesses.?

v) 2008 (3) LW 471 (Chandrammal 8 Ors v. S.Sankar (died) 14 Ors)
wherein it is held as follows:-

?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.?

14. In the light of the above submissions now the points arise for
consideration in the appeal A.S.No.926 of 1992 are as follows:-

1) Whether the marriage of the plaintiffs’ mother Kamalambal with
Durairaj on 05.06.1960 is true and valid?

2) Whether the plaintiffs are entitled to succeed the properties of the
deceased Durairaj?

3) What area of properties to which the plaintiffs are entitled?

15. In the appeal filed by the Bank (A.S.No.986 of 1983), it is the
contention of the learned counsel for the bank that the learned Trial Judge
has passed the preliminary decree in respect of the deposits which was lying
with the bank. It is admitted fact that the deposit of Rs.2,00,000/- made by
Durairaj was adjusted towards his house loan and remaining amount already
paid to the first defendant in the year 1989 itself, after obtaining the
indeminity bond. The above factum is also intimated to the plaintiffs’ mother
in the year 1989 itself and as on the date of filing the suit the deposit
was not available with the bank. Therefore, the Trial Court granting
preliminary decree in respect of 3rd item is not correct in law. Hence prayed
for allowing the appeal A.S.No.986 of 1993.

16. The learned counsel appearing for the respondents in A.S.No.986 of
1983 fairly conceded that since there was no amount available with the bank,
they are not claiming any share in respect of 3rd item of the suit property
namely deposit in the bank.

17. In the light of the above submissions, the point now arises for
consideration in A.S.No.986 of 1993 is that whether the 3rd item of the suit
property namely deposit of Rs.2,00,000/- available with the 3rd defendant
bank for partition?

A.S.No.926 of 1992
Points 1 to 3

18. It is the specific case of the plaintiffs that their mother
Kamalambal married Durairaj on 05.06.1960 in the presence of relatives and
friends. The marriage took place at 30, Ganapathinagar, Thanjavur. It is also
the case of the plaintiffs that since Durairaj did not have any male heir
through the first wife, he decided to marry Kamalambal as second wife and the
plaintiffs’ mother was residing in the family house of Durairaj, along with
her mother, and the marriage was performed in the presence of relatives of
both Durairaj and Kamalambal. Though the defendants in their defence denied
the allegation of the plaintiffs that they born to Durairaj and Kamalambal,
through the valid marriage, during the cross-examination of the plaintiffs
and the witnesses produced by the plaintiffs, infact, the entire cross-
examination by the defendants proceeded as if the plaintiffs are children
born to Durairaj and Kamalambal.

19. On the side of the plaintiffs PW1 to PW11 were examined and Ex.A1
to Ex.A79 were marked. PW1/Selvakumar, is the first plaintiff, PW2/Gajendran
is the 3rd plaintiff and PW4/Kalaiselvi is the 4th plaintiff and plaintiffs’
mother was examined as PW5. When the entire evidence of PW1 to PW3, stated to
be the children of Durairaj and Kamalambal, carefully scanned, it could be
seen that entire cross-examination by DW1 and DW2 proceeded as if Durairaj is
the father of PW1 to PW3. From the very cross-examination of DW1 and DW2
coupled with the evidence of PW1 to PW3 in their chief examination, there
cannot be any doubt in the mind of this Court to hold that the plaintiffs,
infact, born to Durairaj and Kamalambal/PW5.

20. Further the evidence of PW1 to PW3 clearly prove the fact that they
all residing in 30, Ganapathinagar, Thanjavur. PW3’s evidence when carefully
seen, it could be seen that she has spoken about the letter written by her
father while she was residing in Chennai. The letters are marked as Exs.A43
to 45. In the enitre cross-examination of prosecution witnesses, Ex.A43 to
Ex.A45, the letters written by the father of PW3 namely Durairaj, is not even
disputed or denied. Ex.A43, Ex.A44 and Ex.A45 when carefully seen, Durairaj
while he was residing at Chennai during his ailment along with Kamalambal has
addressed the above-said letters to PW3. The tenor of the letter/Ex.A43 shows
that he was living happily in Chennai with the mother of PW3. The tenor of
the letter clearly shows that Durairaj infact treated Kamalambal as his wife.
Similarly Ex.P44 and Ex.P45 letters also clearly show that in the year 1986,
while Durairaj was living in Chennai for medical treatment, he has treated
Kamalambal as his wife and addressed the letter to PW3. The above letters
have not been denied in the cross-examination.

21. Though the evidence of PW1 to PW3 clearly prove that the plaintiffs
are born to Durairaj and Kamalambal and all have been living together with
Durairaj at 30 Ganapathinagar, now the crux of the issue revolves around the
marriage between Durairaj and Kamalambal, which stated to have been taken
place on 05.06.1960. PW4, the brother of Kamalambal in his evidence has
stated that the family has moved towards the Durairaj house in the year 1948
itself and her mother was manging the house hold works and PW4 was also
living in the above house and Durairaj has married the first defendant in the
year 1953. After the second defendant born, the doctor has advised that the
first defendant would not be able to deliver any more child. In order to have
a male child, Durairaj decided to go for 2nd marriage. At that point of time,
as suggested by Durairaj’s uncle Pandithurai, 2nd marriage was fixed with
Kamalambal. Accordingly, on 05.06.1960, marriage was performed in the pooja
room and Durairaj tied thali and also exchanged garlands. In fact Pandithurai
uncle of Durairaj blessed the couple by handing over the thali to Durairaj.
The evidence of PW4 with regard to a cermony about the marriage exchanging
garlands and tying of thali in the presence of witnesses, not even
specifically denied in the cross-examination by defendants except denying
that there was no marriage between Kamalambal and Durairaj. The specific
facts spoken with regard to the solemnising of marriage not even denied in
the cross-examination.

22. Similarly PW5/Kamalambal, the mother of the plaintiffs, in her
evidence has stated that the marriage was performed on 05.06.1960 by
exhanging garlands and Pandithurai uncle of Durairaj, handed over thali to
Durairaj and Durairaj tyed thali. After marriage she was residing with
Durairaj for 32 years and at later point of time, Durairaj suffered certain
ailment and took treatment in Vijaya Hospital at Chennai and PW5 was taking
care of him and both of them residing at Chennai. Thereafter, he died in the
year 1985. The evidence of PW5 with regard to solemnising of marriage is also
not been denied, whereas the cross-examination of PW1 and PW2 clearly
indicate that infact plaintiffs mother and grand mother were residing in the
family house of Durairaj even prior to the marriage of first defendant. In
fact PW5, came to Durairaj house at the age of 7 or 8. It is the specific
evidence of PW5 that after marriage with Durairaj, Durairaj has permanently
settled at Ganapathinagar with Kamalambal and living as husband and wife.
Further, the evidence of PW5 that Durairaj and herself was living at Chennai
for the treatment is also not denied. The specific facts spoken in the chief
examination about the marriage is also not denied in the cross examination.

23. PW7 also in his evidence clearly stated that he was present at the
time of marriage, when Durairaj exchanging garlands and tying thali with PW5.
His specific evidence also not disputed in the cross-examination.

24. Similarly PW9 one Krishnasamy has also spoken about second
marriage. PW9 in his evidence has clearly stated that after the 2nd marriage,
Durairaj used to bring Kamalambal to his house and he treated her as his
wife. The specific evidence of PW9 that Durairaj and Kamalambal was living as
husband and wife and family members also treated them as husband and wife
clearly establish one fact that though the first marriage was existing
between the Durairaj and the first defendant, in the year 1960 there was a
second marriage in the presence of witnesses between Durairaj and Kamalambal.
When the specific facts spoken in the chief examination are not denied in the
cross-examination, such facts are deemed to be an admission on the part of
the defendants. Plaintiffs evidence to prove the second marriage and the
solemnising of the second marriage in the presence of witnesses is neither
controverted nor denied and the same is nothing but an admission on the part
of the defendants.

25. In the light of the above, when the evidence of DW1/first wife of
Durairaj, when carefully analysed, in the chief examination, she has stated
that Kamalambal was never given a status as wife of Durairaj. DW1 also
admitted that her first child was born in the year 1955 and immediately died
after 9 days. Thereafter, the second defendant born in the year 1958.
Afterwards 3rd child was born and died after 5 days. These events, infact
probablised the plaintiffs’ case that in order to have a male child, Durairaj
infact has decided to marry Kamalambal. The cross-examination of DW1 also
clearly show that when Kamalambal was at the age of 16 there was illegal
connection between her husband and Kamalambal and she has also stated that
Kamalambal was living in Ganapathinagar house from the year 1957 till date.
Further, she has also admitted that she never objected Kamalambal living in
Ganapathinagar house. She also admitted that only her husband has kept
Kamalambal in Ganapathinagar house. The cross-examination clearly indicate
that Kamalambal and Durairaj was living together from the year 1957. It is to
be noted that though the first wife namely, the first defendant claimed to be
aware of the illegal connection of her husband with PW5, namely Kamalambal,
while she was at the age of 16 years, DW1 has never made any objection with
regard to such alleged illegal contact. Her conduct assumes significance. If
really any husband develops illegal connection to a lady totally conncted
with him, a prudent wife would not keep quiet without taking any action
against her husband or against the so called concubine. But, DW1 has not
taken any steps in this regard. The conduct of DW1 probablise the plaintiffs’
case that there was a second marriage to Durairaj and Kamalambal in the year
1960 itself. Further, in the cross-examination of DW1 also, she has not
denied the specific question that from 1960 onwards her husband was living
with Kamalambal. What she tried to say is that her husband also used to come
to Abraham Panditham street, where DW1 was living. These facts clearly shows
that from the year 1960, Kamalambal and Durairaj, were living together and
evidence of PW3, PW4, PW5, PW7 and PW9 clearly probablised the plaintiff case
that there was a 2nd marriage performed between Durairaj and Kamalambal.

26. Apart from that Ex.A-1, extract of the birth certificate shows that
first plaintiff was born on 25.05.1961 and in the place of birth it is shown
as Ganapathainagar and name of the father and mother are shown as Durairaj
and Kamalambal respectively. Ex.A2, T.C. of the first plaintiff of the year
1971, wherein also the father of the first plaintiff has been shown as
Durairaj. Ex.A3, T.C. in respect of the 3rd plaintiff of the year 1982
wherein also his father name is shown as Durairaj. Ex.A10 voter list of the
year 1988, wherein at Serial No.227, the plaintiffs name along with their
parents as Durairaj and Kamalambal are very much found. Ex.A6 and Ex.A8/voter
list, wherein Durairaj name is found. Ex.A9/EB card shows that Durairaj as
the head of the family and the card relates to the year of 1972.

27. Ex.A25, copy of the power of attorney executed by late Durairaj in
favour of the first plaintiff when carefully seen, would show that the first
plaintiff was all along treated as son of Durairaj and the power of attorney
was executed by none other than Durairaj. Ex.A26, sale deed executed by
Durairaj on 27.07.1985 clearly proves the fact that at relevant point of
time, he was residing in No.30 Ganapathinagar, where the plaintiffs are
residing. Ex.A27 the acknowledgment issued by the Sub Inspector of Police
clearly shows that arms were handed over by the first plaintiff. Proceedings
of the Superintendent of Police, dated 22.05.1992 marked as Ex.A28 also
indicate that the weapons were deposited by Selvakumar, the first plaintiff.
These facts clearly shows that the arms possessed by the father namely
Durairaj were infact kept in the place where he was residing and that has
been handed over by the first plaintiff. The ration card/Ex.A29 also shows
that Durairaj is the Head of the family along with Kamalambal and others. The
address of the house is shown as Ganapathinagar, North Street. From the above
documents, the plaintiffs clearly establish the fact that Durairaj not only
treat the plaintiffs as children but also resides with them along with PW5/
Kamalambal at Ganapathinagar.

28. Ex.A30 is the gift deed executed by the first defendant in the name
of PW5, Kamalambal. Though DW1 in her statement pleaded that her husband has
obtained signatures in blank papers, and such blank papers were used for
creating these documents, it is to be noted that PW8 one of the attestor of
the gift deed also examined in this case. In the chief examination he has
clearly spoken about the exeuction of the document by the first defendant and
he has seen the signature of the first defendant along with other attesting
witnesses, whereas in the cross-examination, he has turned hostile. But the
fact remains that DW1 has herself admitted her signature in Ex.A30. What she
tried to project her case is that she was not aware of the contents of the
documents and he has signed the documents at the instance of her husband.
Such contention cannot be countenanced for the simple reason that the
execution of the document has been clearly spoken to by PW8 and other
witnesses. The other document writer also turned hostile. It is to be noted
that DW1 is the sister of an important personality in Thanjavur. As per the
evidence, her brother is also politically connected and also Member of
Parliament for some time. Therefore, the witnesses turning hostile may be due
to various reasons. The same is not germane for consideration. In the entire
evidence of PW8, the chief examination itself is sufficient to prove Ex.A30.
In view of the evidence of PW8 in chief, one of the attesting witnesses
coupled with the non denial of the signature of DW1 in the gift deed/Ex.A30,
there is no difficulty for this Court to hold that Ex.A30 has been executed
by DW1, infact DW1 has not challenged the document in all these days. This is
also one of the grounds to hold that this document has been duly executed by
herself.

29. It is further to be noted that another reason for believing the
execution of Ex.A30 by this Court is Ex.A14 dated 19.09.1986, which was
issued under Secion 47(A) of the Indian Stamp Act. Ex.A14 was addressed to
both settlor and settlee namely, first defendant and, Kamalambal, for defecit
Court fee of stamp. Having received such a notice from the authorities for
enquiry under Section 47 of the Act, even then no action challenging Ex.A30
has been made by the first defendant. Therefore, it can be easily presumed
that execution of Ex.A30 has been clearly admitted by DW1. Therefore the
contention of the defendants that Ex.A30 is not executed by DW1 and she put
her signature without knowing the contents cannot be countenanced at all. At
any event, the evidence of PW8 in chief coupled with admission of signature
in Ex.A30 by DW1 and Ex.A14, this Court hold that Ex.A30 is clearly
established by law. When Ex.A30/gift deed carefully seen, the first
defendant has executed the gift in favour of Kamalambal, the second wife.
Though Kamalambal, was not described as wife of Durairaj, her initial has
been shown as ‘D’, denoting her husband. Further, recitals in the documents
clearly reads as follows:-

?ePq;fs; vd; fzthpd; thH;f;ifj; Jiztpahf ,Ug;ggjhYk; jq;fSf;F mth;
K:yk; FHe;ijfs; ,Ug;gjhYk; mth;fSld; jhq;fs; trpg;gjw;F jq;fSf;F vd;W brhe;j
tPL xd;Wk; ,y;yhky; vd; FLk;g me;j];Jf;F rhpahf ,y;iy vd;w fhuzj;jpdhYk;.
jhq;fs; jq;fs; FHe;ijfSld; epk;kjpahft[k; brsfhpakhft[k; thHntz;L bkd;W ehd;
epidg;gjhYk; jq;fs;nghpy; vdf;Fs;s md;gpdhYk; ghrj;jpdhYk; ,e;j ,dhk;
rhrdg;gj;jpuj;jpd; K:ykhf ,jdoapw;fz;Ls;s tPL tifauhit jq;fSf;F ,dhkhf
bfhLj;Jtpl;nld;.?

the term ‘thH;f;ifj; Jiztp’ described in the document itself clearly indicate
that all along Kamalambal was treated as wife of late Durairaj. Once, the
first defendant has admitted in her document about the status of Kamalambal,
and her children born through Durairaj, now she is estopped from stating that
there was no marriage between Kamalambal and Durairaj and plaintiffs are not
born to Durairaj and Kamalambal.

30. Further, in Ex.A32/sale deed, dated 28.09.1985 executed by one
Muthugopan, infavour of the minor son of Durairaj, wherein Kamalambal has
made as guardian. The above sale deed shows Kamalambal as wife of Durairaj.
It is relevant to note that even third parties have treated Kamalambal as
wife of Durairaj. From Ex.A40, it is also relevant to note that how Durairaj
has developed hatredness towards the defendants. Ex.A39 letter written by the
second defendant to her father Durairaj, while he was in Chennai, seeking a
permission to meet her father in Chennai. But Durairaj has declined
permission to the second defendant to meet her. The tenor of letters Ex.A40
clearly shows that infact Durairaj father of the second defendant and husband
of the first defendant is not happy with them. Ex.A41, is authorisation
letter signed by Durairaj, wherein he himself appointed Gajendran, the third
plaintiff, son of Durairaj as a licensee to act and represent as manager of
the cinema hall owned by him. Thus, Ex.A39, Ex.A40 and Ex.A41 also not
disputed. Similarly Ex.A43 to Ex.A45, letters addressed to PW3 as discussed
supra in the earlier part of judgment also clearly shows that Durairaj was
always affectionate towards the plaintiffs and Kamalambal. These letters
written by Durairaj not even disputed in the entire cross-examination by the
defendants. The tenor of letters, infact shows that there was no love loss or
cordial relationship between the defendants and Durairaj. Ex.P47, census
application wherein Durairaj himself signed and he has treated Kamalambal as
his wife and plaintiffs as his sons and daughters. The signature of Durairaj
is also not disputed in the above document. Ex.A51/receipt was issued
infavour of Durairaj also clearly shows that he was residing in
Ganapathinagar. Ex.A55 the advocate letter sent to the Durairaj also shows
that he was residing in Ganapathinagar. Ex.A56, authorisation letter from
Durairaj to the Deputy Commercial Tax Officer, wherein his son, Gajendran,
the third plaintiff, authorised to represent and sign as manager on his
behalf. Ex.A66/admission card issued by the National hospital clearly proves
that he was treated as inpatient from 02.02.1985 to 28.02.1985 and he was
admitted by Kamalambal. All the medical records of Durairaj was filed by the
plaintiffs. Ex.A69 one Srinivasan executed a sale deed infavour of
Kalaiselvi, the daughter of Durairaj, wherein Kamalambal was shown as wife of
Durairaj. These documents also clearly proves that Public at large also
treated Kamalambal as wife of Durairaj. Ex.A70 and Ex.A71 /sale deeds wherein
also Kamalambal is shown as wife of Durairaj. Ex.A77 shows that son of
Durairaj is permitted to deposit the arms, namely revolver and rifle in the
national armoury. All these facts clearly shows arms owned by Durairaj were
deposited by the first plaintiff.

31. Ex.B1, the document also clearly shows that Selvakumar has
purchased certain property wherein the address of Selvakumar, first defendant
is shown as Ganapathinagar. Though the defendants have filed wealth tax
assessment notice issued to Durairaj in the address of Abraham Panditham, it
is to be noted that DW1 in her cross examination, has stated that Durairaj
not only residing at Ganapathinagar and also used to go to Abraham Panditham,
where the first defendant is residing. Therefore, merely because some
official correspondence are sent to the first defendant in the name of
Durairaj that itself cannot be a ground to hold that there was no marriage
between Kamalambal and Durairaj in the year 1960. From the oral and
documentary evidence, particularly non denial of the specific evidence as to
solemnisation of marriage in the year 1960 coupled with the admission of
Durairaj himself treating the children as his own children and also treating
Kamalambal as the mother of plaintiffs and Ex.P44 and Ex.P45 as discussed
above, this Court is of the view that merely because Durairaj has not
described Kamalambal as wife in the registered document that itself cannot be
a ground to non suit the plaintiffs. It is to be noted that contracting
second marriage while the first marriage in existence is an offence under
Indian Penal Code. Therefore, no prudent man would make it an official 2nd
marraige attracting legal consequences. That being a position it cannot be
said that there was no marriage at all. Though the second marriage during the
existence of first marriage is void, under Section 11 of the Hindu Marriage
Act, it is to be noted that children born to such marriage cannot be defeated
legitimacy to claim property of their father.

32. A careful perusal of the judgments relied on by both sides would
make it clear that when a man and woman living as husband and wife and
cohabitate for a long period, normal presumption would arise that they are
husband and wife out of legal marriage. But, in this case, considering the
above judgments and also analysing the entire facts particularly oral as well
as documentary evidence in this regard, the factum of marriage not only
clearly established by the oral evidence but also by the documentary
evidence. The conduct of DW1 treating the mother of the plaintiffs as life
partner of her husband and executed the gift deed would go to show there was
a second marriage. Further conduct of first wife not objecting for such
relationship of her husband from from the very inception i.e. from the year
1960 till his death, and also consideration of natural events in the family
of Durairaj in entirety, this Court also draw the presumption under Section
114 of the Indian Evidence Act to hold that there was a second marriage.
Further the oral evidence on the side of the plaintiffs particularly, PW4,
PW5, PW7 and PW9, also not assailed in the cross-examination. That apart, as
stated above, from the documentary evidence and the conduct of the party, one
could see that there was a marriage between Kamalambal and Durairaj.
Accordingly, this Court Court does not find any infirmity in the order of the
Trial Court in decreeing the suit. Thus, the points are answered accordingly.
Point in A.S.No.986 of 1993

33. In view of the fact that the amount deposited is not lying with the
3rd defendant bank as admitted by both sides and the above factum was also
informed to the plaintiffs in the year 1989 itself and there is no amount
lying with the third defendant bank, granting preliminary decree for the
amount which was not in existence is liable to be interferred. Accordingly,
this point is answered.

34. In the result, A.S.No.926 of 1992 is dismised and A.S.No.986 of
1993 is allowed and the judgment of the Trial Court in O.S.No.95 of 1989,
dated 13.10.1992 granting preliminary decree in respect of Item Nos.1, 2, 4
and 7 is hereby confirmed. However, granting of preliminary decree in respect
of item No.3 is set aside in view of the finding in A.S.No.986 of 1993. No
costs.

To

1.The Subordinate Judge, Thanjavur

2.The Section Officer, V.R.Section, Madurai Bench of Madras High Court,
Madurai.

.

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