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Rajeswari vs A.Lakshmi on 9 July, 2021

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A.S.No.242 of 2013

IN THE HIGH COURT OF JUDICATURE AT MADRAS

DATED : 09.07.2021

CORAM

THE HON’BLE Mr. JUSTICE G.K.ILANTHIRAIYAN

A.S.No.242 of 2013
and M.P.No.1 of 2013

1. Rajeswari
2. Padmanabhan …Appellants

Vs.
1. A.Lakshmi
2. India Gandhi
3. The Arani Town Co-operative Bank
Arani.
4. The Manager,
Indian Bank,
Arani.
5. The Branch Manager,
Lakshmi Villas Bank Ltd.,
Arani. …Respondents

PRAYER: Appeal Suit filed under Section 96 of C.P.C., to set aside the
Judgment and Decree dated 28.10.2010 in O.S.No.29 of 2005 on the file
of the learned District Judge, Thiruvannamalai.
For Appellants : Mr. R.Rajarajan

For Respondents
For R1 R2 : Mr.V.Raghavachari
For R3 : Mr.L.P.Shanmugasumdaram
For R4 R5 : No appearance

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A.S.No.242 of 2013

JUDGMENT

The Appeal Suit is filed as against the Judgment and Decree

dated 28.10.2010 made in O.S.No.29 of 2005 by the learned District

Judge, Thiruvannamalai.

2. For the sake of convenience, the parties are referred to as per

their ranking in the trial Court.

3. The case of the plaintiffs is that the first defendant got

married with one Ayyadurai Achari and the marriage was dissolved

between them. Thereafter, he got married the first plaintiff in the month

of Karthigai 1972 at Puthira Kametteeswarar Temple, Arani. Thereafter,

the first defendant was being his former wife, she was allowed to stay in

the same house. Due to the wed lock between the first plaintiff and the

said Ayyadurai Achari, they gave birth to the second plaintiff on

08.12.1973. Thereafter, the second plaintiff’s marriage was solemnized

by her father and the marriage invitation was printed in the joint names

of the said Ayyadurai Achari and the first plaintiff as parents of the

second plaintiff.

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A.S.No.242 of 2013

3.1. Therefore, the second defendant born through the first

defendant cannot be considered as legitimate son of the said Ayyadurai

Achari. Out of his earning, the said Ayyadurai Achari had purchased the

suit properties by the registered sale deeds dated 05.12.1991

26.12.1986. The entire suit properties were purchased by the said

Ayyadurai Achari out of his self earning and all the properties are self-

earned properties. During his life time, the said Ayyadurai Achari

constructed a marriage hall known as Rajalakshmi Ayyadurai Marriage

Hall, in which the marriage of the second plaintiff was solemnized.

Thereafter on 27.01.2005, the said Ayyadurai Achari died leaving behind

the plaintiffs and the defendants. After his demise, the second defendant

is appropriating the entire income from the suit properties. When the

plaintiffs made demand to the defendants to pay their equal share in the

suit properties, the same was refused as such, the plaintiffs filed suit for

partition.

4. Resisting the same, the defendants filed written statement

stating that the first defendant alone legally wedded wife of the said

Ayyadurai Achari and the second defendant is only the legitimate son of

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A.S.No.242 of 2013

the said Ayyadurai Achari. the plaintiffs have no right to file suit for

partition and hence the entire claim is not legally sustainable. Further

stated that the said Ayyadurai Achari is running welding shop under the

name and style of Rajeswari Nillayam. If the first defendant had been

divorced, he would not run his shop in the name of the first defendant

viz., Rajeswari. There was no necessity for the said Ayyadurai Achari to

marry the first plaintiff that too in the temple. In fact, he owned Kalyana

Mandapam, as such there was no marriage between the first plaintiff and

the said Ayyadurai Achari. It is true that the said Ayyadurai Achari got

married the first defendant and there is absolutely no iota of evidence to

show that the said Ayyadurai Achari and the first defendant got divorce.

Therefore, the plaintiffs have no right to file the suit and they are not

entitled for any share in the suit properties.

5. On hearing the rival pleadings, the learned trial Judge

framed the following issues for determination of the suit :-

“(i) Whether it is true that 1st plaintiff is the
legally wedded wife of Ayyadurai Achari?

(ii) Whether the plaintiffs are entitled to 2/3
shares in the suit properties as prayed for?

(iii) Whether the defendants 1 and 2 are

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A.S.No.242 of 2013

bound to render account for the plaintiffs income
from their share in 1 to 3 of the suit properties
from the date of plaintiff till delivery of the
plaintiffs 2/3 share in those properties?

(iv) Whether the plaintiffs are entitled to
permanent injunction as prayed for?

(v) To what relief, the plaintiffs are entitled
to?”

6. On the side of the plaintiffs, they examined P.W.1 P.W.2

and marked 40 documents as Ex.P.1 to Ex.P.40. On the side of the

defendants, they examined D.W.1 to D.W.3 and no documents were

marked. On perusal of the material produced on record and considering

both the oral and documentary evidence adduced by the respective

parties and also the submissions made by the learned counsel on either

side, the trial Court partly allowed the suit thereby alloted 1/3 share in

the properties in favour of the second plaintiff alone and 1/3 share

alloted in favour of the defendants 1 2 each. Aggrieved by the same,

the defendants 1 2 preferred this appeal suit.

7. The learned counsel appearing for the appellants/defendants

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A.S.No.242 of 2013

submitted that the plaintiffs failed to establish the factum of marriage

alleged to have been held between the deceased Ayyadurai Achari and

the first plaintiff and as such the second plaintiff is not entitled to have

any share as contemplated under Section 16 of the Hindu Marriage Act.

The plaintiffs also failed to prove the factum of alleged divorce between

the deceased Ayyadurai Achari and the first defendant herein. Therefore,

the Court below wrongly invoked Section 114 of Indian Evidence Act

that too after holding that the marriage between the first plaintiff and the

deceased Ayyadurai Achari not held to be proved by the evidence

adduced on the side of the plaintiffs, the presumption could have been

drawn only when the evidence is not forthcoming. Once the marriage

held has not been proved, the benefit under Section 114 of India

Evidence Act cannot be availed in favour of the plaintiffs.

7.1. He further submitted that under Section 16 of the Hindu

Marriage Act, if the factum of marriage proved, the children can claim

the benefit, who born out of the said wed lock. Whereas in the case on

hand, the factum of marriage itself failed to prove by the plaintiffs and as

such granting the benefits under Section 16 of the Hindu Marriage Act is

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A.S.No.242 of 2013

not applicable to the plaintiffs. In support of his contention, he relied

upon the following reported judgments :-

(i) 2011 (5) MLJ 86 – Dhanalakshmi v. S.Prabhavathy
and Others

(ii) 2015 (4) LW 509 – Baby @ Rohini (Deceased) and
others vs. Kamalam Kumerasan and others

8. Per contra the learned counsel appearing for the respondents

1 2/plaintiffs submitted that the case of the plaintiffs is that the one

Ayyadurai Achari originally got married with the first defendant. After

dissolution of marriage, he got married with the first plaintiff and gave

birth to the second plaintiff. The second plaintiff marriage was

solemnized by the said Ayyadurai Achari. The marriage invitation was

printed in the joint names of the said Ayyadurai Achari with the first

plaintiff as parents of the second plaintiff. In fact, the marriage was

solemnized in R.L.A.Marriage hall, which was owned by the said

Ayyadurai Achari. Though the first defendant got divorce with the said

Ayyadurai Achari, she was permitted to stay under the same roof, due to

which she gave birth to the second defendant on 12.06.1976. Whereas

the second plaintiff was born on 08.12.1973 itself, in Arani Government

Hospital. Therefore, the second defendant cannot be considered as

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A.S.No.242 of 2013

legitimate son of the said Ayyadurai Achari. Unfortunately, the plaintiffs

failed to prove the dissolution of marriage between the said Ayyadurai

Achari and the first defendant as such, the trial Court had drawn a

presumption under Section 114 of the Indian Evidence Act and allotted

1/3th share to the second plaintiff.

8.1. He further submitted that it is the categorical evidence of the

first plaintiff that all the plaintiffs and the defendants were living under

the same roof. That apart, the first plaintiff lived with the said Ayyadurai

Achari as wife, in his life time in long cohabitation with each other and

gave birth to the second plaintiff. Though the plaintiffs failed to prove

the marriage between the first plaintiff and the deceased Ayyadurai

Achari, they lived cohabitants each other as husband and wife and the

second plaintiff was born to them. Therefore, it may presume as they

married. In support of his contention, he relied upon the following

reported judgments:-

(i) 2019 (11) SCC 491 – Kamala Ors. v. M.R. Mohan Kumar

(ii) 2002 (4) LW 783 – A. Murugesan vs. Angamuthu Gounder
and Ors.

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A.S.No.242 of 2013

9. Heard Mr.R.Rajarajan, learned counsel appearing for the

appellants, Mr.V.Raghavachari, learned counsel appearing for the

respondents 1 2 and Mr.L.P.Shanmugasundaram, learned counsel

appearing for the third respondent.

10. The plaintiffs filed suit in O.S.No.29 of 2005 for partition.

According to the plaintiffs, the first plaintiff got married the late

Ayyadurai Achari at Puthira Kametteeswarar Temple, Arani, in the month

of Karthigai, 1972. The marriage between the late Ayyadurai Achari and

the first defendant was dissolved and thereafter the late Ayyadurai Achari

got married with the first plaintiff. Due to their wedlock, they gave birth

to the second plaintiff. The late Ayyadurai Achari also permitted the first

defendant to live with the same house. Due to which, the second

defendant was born through the first defendant. During his life time, the

late Ayyadurai Achari purchased the suit properties. He died on

27.01.2005, leaving behind the plaintiffs and defendants as his legal

heirs. Therefore, the plaintiffs sought for their respective shares in the

suit properties.

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A.S.No.242 of 2013

11. Though the plaintiffs averred that the marriage between the

late Ayyadurai Achari and the first defendant got dissolved, they failed to

prove the same by adducing evidence. Therefore, the Court below

concluded that the marriage between the late Ayyadurai Achari and the

first defendant was not dissolved and the first defendant remains to be a

legally wedded wife of the said late Ayyadurai Achari and alleged

marriage between the late Ayyadurai Achari and the first plaintiff has not

been proved in the manner known to law.

12. Therefore, the points for consideration in this appeal is that

whether Section 16 of the Hindu Marriage Act is applicable, when the

marriage is not proved between the late Ayyadurai Achari and the first

plaintiff?

13. As stated supra, the plaintiffs failed to prove the dissolution

of marriage between the first defendant and the late Ayyadurai Achari.

But it doesn’t mean that the marriage between the late Ayyadurai Achari

and the first plaintiff is not proved. Admittedly, the plaintiffs and the

defendants were living under the same roof with the late Ayyadurai

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A.S.No.242 of 2013

Achari till his death viz., 27.01.2005. Therefore, continuous cohabitation

of late Ayyadurai Achari and the first plaintiff for number of years raised

the presumption of marriage. Therefore, under Section 16 of the Hindu

Marriage Act, the second plaintiff is entitled to have her share in the suit

properties.

14. In this regard, the learned counsel appearing for the

appellants relied upon the judgment reported in 2011 (5) MLJ 86 in the

case of Dhanalakshmi v. S.Prabhavathy and Others, as follows :-

“18. No doubt, there are certain documents
which would also exemplify and demonstrate that
Varadarajulu during his lifetime described
Ranganayaki as his wife, but both the Courts
below negatived the contention of Ranganayaki
and her children and held that they are not the
legitimate heirs of deceased Varadarajulu as
against which they have not chosen to prefer any
objection or appeal and as such this Court need
not ponder over those documents. There is no iota
or shred, shard or miniscule, pint of jot of
evidence available on the side of D11 to
demonstrate that Krishnabai was ever referred to
by Varadarajulu as his wife even though
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A.S.No.242 of 2013

Krishnabai claims to have lived with him for four
decades or so. The reliance placed on the Birth
Certificates undoubtedly refer to the parents of
those children as Krishnabai and Varadarajulu.
Simply because the children were born to them, it
cannot be presumed that there was legitimate
relationship between the two and that that too in
the wake of specific allegation by the plaintiff, D1
and D2 that Krishnabai was already married to
Andi Munusamy and one of the children was born
to Krishnabai through Andi Munusamy and the
remaining children were born of Varadarajulu.

Any children born out of adulterous relationship
cannot be treated as the ones eligible to invoke
Section 16 of the Hindu Marriage Act. Over and
above that, I would like to refermoment I even
thought of referring to the old Hindu Law which
would contemplate that even an illegitimate child
born out of a kept mistress or concubine could
also be taken as one entitled to a small moiety
along with the legitimate child. But in this case,
Varadarajulu died only in the year 1983 long
after the commencement of
Hindu Marriage Act
as well as
Hindu Succession Act and once
codified new law in the form of
Section 16 of the
Hindu Marriage Act started occupying the filed,

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A.S.No.242 of 2013

the question of invoking the contrary old Hindu
Law does not arise. In such an event also I would
like to point out that no where in the old Hindu
law it is found envisaged that a child born out of
adulterous connection would be entitled for a
share in the self acquired property of its Hindu
father. The first appellate Court in paragraph
Nos.23 and 24 of its judgment clearly dealt with
those points, so to say au fait with the correct
proposition of law the dispute was decided
warranting no interference in the Second Appeal.
With a fine-toothed comb, the matter does not
warrant it to be combed as already such exercise
was properly performed by the first appellate
court”
In the above judgment, this Court held that there is no iota of evidence is

available on the side of the plaintiffs to show their marriage. Simply

because of the children were born to them, it was not presumed that there

was a legitimate relationship between the two. After the commencement

of the Hindu Marriage Act as well as the Hindu Succession Act, once

codified new law in the form of Section 16 of the Hindu Marriage Act

started occupying the filed, the question of invoking the contrary old

Hindu Law does not arise. No where in the old Hindu law, a child born

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A.S.No.242 of 2013

out of adulterous connection would be entitled for a share in the self

acquired property of its Hindu father.

15. In the case on hand, as stated supra the plaintiffs failed to

prove the divorce between the first defendant and the late Ayyadurai

Achari. Whereas, P.W.1 categorically stated that she got married

Ayyadurai Achari in the month of Karthigai in the year 1972 at Puthira

Kametteeswarar Temple, Arani. Admittedly, the late Ayyadurai Achari

and the first plaintiff lived as husband and wife continuously and their

continuous cohabitation as husband and wife, raised the presumption of

marriage. Therefore, the judgments relied upon by the learned counsel

appearing for the appellants are not helpful to the case on hand.

16. The learned counsel appearing for the respondents 12

relied upon the judgment reported in 2019 (11) SCC 491 in the case of

Kamala Ors. v. M.R. Mohan Kumar, in which the Hon’ble Supreme

Court of India held as follows :-

“16. It is fairly well settled that the law
presumes in favour of marriage and against
concubinage when a man and woman have

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A.S.No.242 of 2013

cohabited continuously for a number of years.

After referring to various judgments, in
Chanmuniya v. Virendra Kumar Singh Kushwaha
(2011) 1 SCC 141, this Court held as under:-

“11. Again, in Sastry Velaider Aronegary v.
Sembecutty Vaigalie (1881) 6 AC 364, it was held
that where a man and woman are proved to have
lived together as man and wife, the law will
presume, unless the contrary is clearly proved,
that they were living together in consequence of a
valid marriage, and not in a state of concubinage.

12. In India, the same principles have been
followed in Andrahennedige Dinohamy v.
Wijetunge Liyanapatabendige Balahamy AIR
1927 PC 185, in which the Privy Council laid
down the general proposition that where a man
and woman are proved to have lived together as
man and wife, the law will presume, unless, the
contrary is clearly proved, that they were living
together in consequence of a valid marriage, and
not in a state of concubinage.

13. In Mohabbat Ali Khan v. Mohd.

Ibrahim Khan AIR 1929 PC 135 the Privy
Council has laid down that the law presumes in
favour of marriage and against concubinage
when a man and woman have cohabited

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A.S.No.242 of 2013

continuously for number of years.

14. In Gokal Chand v. Parvin Kumari AIR
1952 SC 231, this Court held that continuous
cohabitation of man and woman as husband and
wife may raise the presumption of marriage, but
the presumption which may be drawn from long
cohabitation is rebuttable and if there are
circumstances which weaken and destroy that
presumption, the Court cannot ignore them.”
The Hon’ble Supreme Court of India held in various judgments that

continuous cohabitation of man and woman as husband and wife may

raise the presumption of marriage.

17. The above judgment is squarely applicable to the case on

hand. P.W.1 and D.W.1 categorically stated that they were lived under the

same roof. Ex.A.1 to Ex.A.7 revealed that the second plaintiff was born

on 05.06.1973, to the late Ayyadurai Achari and the first plaintiff. On

attainment of puberty, the second plaintiff’s function was conducted by

her father viz., the late Ayyadurai Achari and her marriage was also

solemnized on 11.6.1997 at R.L.A. Marriage Hall, i.e., one of the suit

properties. Therefore, the Court below rightly allowed the suit in part and

allotted 1/3rd share in the suit properties to the second plaintiff and

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A.S.No.242 of 2013

defendants 1 2 each. Therefore, this Court doesn’t find any infirmity or

illegality in the order passed by the Court below.

18. In the result, the Appeal Suit stands dismissed.

Consequently, connected miscellaneous petition is closed. There shall be

no order as to costs.

09.07.2021

Index : Yes / No
Internet : Yes / No
Speaking order /Non-speaking order

rts

To

1. The District Judge,
Thiruvannamalai.

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Page 17 of 18
A.S.No.242 of 2013

G.K.ILANTHIRAIYAN, J.

rts

A.S.No.242 of 2013
and M.P.No.1 of 2013

09.07.2021

https://www.mhc.tn.gov.in/judis/
Page 18 of 18

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