Madras High Court
Kothandapani vs Devamirtham ... 1St on 11 March, 2021
Author: C.V.Karthikeyan
Bench: C.V.Karthikeyan
CMA No.2812 of 2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on : 22.02.2022
DATED: 11 .03.2021
CORAM:
THE HONOURABLE MR.JUSTICE C.V.KARTHIKEYAN
CMA No. 2812 of 2017
And
C.M.P.No. 16073 of 2017
1. Kothandapani
2. Nellavathi
3. Sundarajan
4. Thirugnanam
5. K.Madhavan
6. K.Ramani ... Petitioners/Appellants/Respondents
Vs
1. Devamirtham ... 1st Respondent/Petitioner
2. The Manager
Indian Bank
Vellore District.
3. The Secretary
Cooperative Urban Bank
Pallikonda
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CMA No.2812 of 2017
4. The Manager
Indian Overseas Bank
Gudiyatham.
5. The Manager
Indian Bank
Gudiyatham.
6. The Manager
Canara Bank
Gudiyatham.
7. The Manager
Union Bank of India
Pallikonda ... Respondents/Respondents 7 to 12
Prayer: Civil Miscellaneous Appeal filed under Section 384 of the Indian
Succession Act, 1925 against the Decree and Judgment passed by the
Principal District Judge, Vellore in O.P.No. 2 of 2011 dated 08.06.2017 in so
far as the award on this appellant.
***
For Appellants : Mr. M.Rajasekar
For 1st Respondent : Mr. A.U.Ilango
For RR 2 to 6 : No appearance
For 7th Respondent : Mr. L.Sriram
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CMA No.2812 of 2017
JUDGMENT
The first to sixth respondents in Succession O.P.No. 2 of 2011 on the file of the Principal District Court, Vellore, are the appellants herein. They are aggrieved by the grant of succession certificate to the first respondent herein/petitioner in Succession O.P.No. 2 of 2011, with respect to the claims relating to fixed deposits made by Kasinatha Mudaliar in the second to seventh respondents/Banks.
2. The first respondent Devamirtham had filed Succession O.P.No. 2 of 2011 under Section 372 of Indian Succession Act claiming right and entitlement to the fixed deposits made by late Kasinatha Mudaliar and she claimed such entitlement on the ground that she was a lawfully wedded wife of late Kasinatha Mudaliar.
3. This claim has been resisted by the appellants herein, who disputed her marital relationship with Kasinatha Mudaliar. The appellants are brothers, sisters of Kasinatha Mudaliar and their children.
4. By Judgment dated 08.06.2017, the learned Principal District 3/32 https://www.mhc.tn.gov.in/judis CMA No.2812 of 2017 Judge, Vellore, had upheld the claim of the first respondent herein and had directed succession certificate to be issued. Questioning that particular Judgment, the present Civil Miscellaneous Appeal has been filed.
5. A perusal of the records reveal that the first respondent Devamirtham, had earlier filed O.S.No. 382 of 2006 on the file of the District Munsif Court at Vellore, seeking a declaration that she is the only legal heir of late Kasinatha Mudaliar, who resided in Vettuvanam Village, Vellore and also seeking an order of injunction restraining the first to sixth defendants therein, who were none other than the second to seventh respondents herein/ Banks from disbursing the amounts due under the fixed deposits made by late Kasinatha Mudaliar to the appellants herein, who were the seventh and eleventh defendants in the said suit.
6. The suit did not go to its natural end but its lifetime was cut half way by the first respondent withdrawing it and later taking a conscious decision to file an application seeking succession certificate under Section 372 of the Indian Succession Act.
7. In both the suit and in the petition, the first respondent 4/32 https://www.mhc.tn.gov.in/judis CMA No.2812 of 2017 Devamirtham stated that Kasinatha Mudaliar, resident of Vettuvanam Village had originally married Kamalammal. Since there were no children even during the lifetime of Kamalammal, he married her according to Hindu rites and ceremonies on 18th day of Avani month, 1961 at Thiruchhanur. However, no children were born to them also. Kamalammal died on 20.12.2000. Kasinatha Mudaliar died on 08.01.2006.
8. It was the specific case of the first respondent that during his lifetime, Kasinatha Mudaliar had invested monies in fixed deposits and though some of the appellants herein were nominees, claiming to be the only surviving Class-I legal heir, she asserted her rights to receive the benefits which had accrued under the said fixed deposits to the detriment of the appellants herein. She claimed that she was the lawfully wedded wife of Kasinatha Mudaliar and that her cohabitation was recognised by all the village elders and also by the appellants herein and that she had performed family functions along with Kasinatha Mudaliar even during the lifetime of Kamalammal. She therefore claimed that she was entitled to the issuance of succession certificate granting her rights to enjoy the amounts which had 5/32 https://www.mhc.tn.gov.in/judis CMA No.2812 of 2017 accrued on maturity of the fixed deposits, which she further claimed had been invested for her benefit by Kasinatha Mudaliar.
9. The appellants herein questioned the status of the first respondent and denied that a marriage ever took place between Kasinatha Mudaliar and the first respondent. They disputed it every version placed by her seeking succession certificate.
10. They claimed that they are the only surviving class-II legal heirs of Kasinatha Mudaliar and stated that it was for good reason that he had nominated then as nominees to receive the effects of the said fixed deposits made by him. They also challenged the version of the first respondent herein that she was the lawfully wedded wife and claimed that the only lawfully wedded wife was Kamalammal and that the first respondent herein cannot seek any right interest or right over the fixed deposits made by Kasinatha Mudaliar. They also pointed out that she had earlier filed a suit and after substantial progress in the suit, had withdrawn the same and had then filed a petition seeking succession certificate. They 6/32 https://www.mhc.tn.gov.in/judis CMA No.2812 of 2017 asserted that she was not entitled to receive any amount and had stated that the petition should be dismissed.
11. The parties went to trial before the Principal District Court at Vellore and the learned Principal Judge had framed as points for consideration whether a succession certificate can be issued to the first respondent and whether the petition can be allowed.
12. Both the parties let in oral and documentary evidence. The first respondent herein was the petitioner, and was examined as PW-1. She marked Exs. P-1 to P-62. The first appellant herein / first respondent in the original petition, Kothandapani was examined as RW-1 and he marked Exs. R-1 to R-7. Among the documents filed on behalf of the first respondent herein, Ex.P-1 was photographs of the Shastiapthapoorthi of Kasinatha Mudaliar, Ex.P-2 was the compact disk with respect to the same event, Ex.P-5 was a legal heirship certificate, Ex.P-6 was a copy of Ration card, Ex.P-7 was a copy of election voter identity card and Ex.P-8 was a copy of registered Will executed by Kasinatha Mudaliar bequeathing properties to 7/32 https://www.mhc.tn.gov.in/judis CMA No.2812 of 2017 the first respondent herein. Exs. P-55 to P-60 were documents relating to the earlier suit in O.S.No. 382 of 2006 and Exs. P-51, 52 and 61 were notices exchanged between the parties. Among the documents of the appellants/respondents, Exs.R-1 to R-7 related to the plaint and other documents in O.S.No. 382 of 2006 and R-7 was a copy of the reply notice issued by the first respondent herein.
13. The Principal District Judge, Vellore, on the basis of the evidence adduced, found as a fact, that there was a long period of cohabitation between the first respondent herein/petitioner in the original petition and Kasinatha Mudaliar and therefore, placing strong reliance on the documents evidencing such fact, came to the conclusion that though the first respondent/petitioner in the original petition had married Kasinatha Mudaliar during the life time of the first wife, a strong presumption can be drawn that they lived as husband and wife and therefore, held that the first respondent herein was entitled to be granted succession certificate. Question that particular Judgment, the present Appeal had been filed.
14. Heard arguments advanced by Mr.M.Rajasekar, learned 8/32 https://www.mhc.tn.gov.in/judis CMA No.2812 of 2017 counsel for the appellants and Mr. A.U.Ilango, learned counsel for the first respondent.
15. I have carefully considered the arguments advanced and perused the materials available on record.
16. Both the appellants on the one hand and the first respondent on the other hand appear to be more interested in ensuring that they stand to benefit by the fixed deposits made by late Kasinatha Mudaliar in the named banks which are also respondents in this Appeal.
17. The first respondent claims right as a lawfully wedded wife. She claims that relationship should be recognised by this Court not just on the strength of marriage ceremonies performed but more on the strength of long cohabitation with Kasinatha Mudaliar. The appellants, who are Class- II heirs however dispute such claim. The issue which will have to be examined and determined is whether the first respondent can be recognised as entitled to be granted succession certificate with respect to the fixed 9/32 https://www.mhc.tn.gov.in/judis CMA No.2812 of 2017 deposits made by Kasinatha Mudaliar.
18. The facts are not so straightforward to come to a conclusion with respect to such recognition. Kasinatha Mudaliar had married Kamalammal. That is a fact admitted it by all the parties. The appellants are also said to be of the said Kamalammal.
19. Kasinatha Mudaliar and Kamalammal did not have children. According to the first respondent, Kamalammal herself, with consent, permitted the marriage of Kasinatha Mudaliar with the first respondent Devemirtham. It is claimed by the first respondent that the marriage took place on Avani 18th 1961 at Thiruchhanur near Thirupathi. But again no children were born. The first respondent therefore claimed that she alone was entitled for rights relating to the fixed deposits, since she claimed that though her marriage took place when Kamalammal was alive, her relationship continued even after the death of Kamalammal who pre- deceased Kasinatha Mudaliar. The first respondent claimed that she lived with Kasinatha Mudaliar as man and wife and was with him till his death. It 10/32 https://www.mhc.tn.gov.in/judis CMA No.2812 of 2017 was therefore, urged that this long and lengthy relationship should be recognised as a solemn relationship and her right must be recognised with this Court.
20. Mr.M.Rajasekar, learned counsel for the appellants pointed out that the first respondent had herself admitted that at the time when she claimed she was given in marriage to Kasinatha Mudaliar, Kamalammal, the first wife was alive. Therefore, her marriage with Kasinatha Mudaliar, even if the ceremonies had been performed by both the parties could not give rise to a legal relationship. The learned counsel pointed out that it was owing to that particular fact that Kasinatha Mudaliar had consciously nominated the appellants as nominees in the fixed deposits as having right to collect the benefits under the fixed deposits. The learned counsel stressed on the fact that the appellants were Class -II legal heirs and related to both Kasinatha Mudaliar and Kamalammal and therefore, it was only appropriate that this relationship is recognised and their rights to collect the proceeds under the fixed deposits is affirmed by this Court. This will necessarily indicate that the order of the learned Principal District Judge, 11/32 https://www.mhc.tn.gov.in/judis CMA No.2812 of 2017 Vellore, should be interfered with and set aside. The learned counsel also pointed out that it was their specific case that the first respondent had been inducted into the house of the Kasinatha Mudaliar as a servant maid and later, after the death of Kamalammal had usurped the entire place and has now laid claim to the estate of Kasinatha Mudaliar.
21. Mr. A.U.Ilango, learned counsel for the first respondent however urged that this Court should recognise the fact that Kasinatha Mudaliar, wanted a legal heir to be born and since that did not fructify though Kamalammal, with the blessings of Kamalammal herself, the first respondent had been given in marriage to Kasinatha Mudaliar. The learned counsel pointed out that the relationship continued without any break even during the lifetime of Kamalammal and also after the lifetime of Kamalammal and this long cohabitation of more than 50 years, should be considered as a primary factor to recognise that the first respondent had been looked upon Kasinatha Mudaliar as his wife. The learned counsel also pointed out that Kasinatha Mudaliar had also executed a Will and had bequeathed properties to the first respondent and therefore stated that it was 12/32 https://www.mhc.tn.gov.in/judis CMA No.2812 of 2017 only appropriate that her status is affirmed. It was also pointed out by the learned counsel that Kasinatha Mudaliar had handed over the originals of the fixed deposits to the first respondent and that this would effectively mean that he wanted her to enjoy the fruits of the fixed deposits.
22. The facts being as aforementioned, it would be instructing to determine as to how Courts have dealt with an issue of this nature, particularly when a woman claims a right on the strength of long relationship which had been recognised and had been continuous.
23. Before examining the precedents on the aspect, it would be worthwhile to examine the law on the subject.
24. Section 50 of the Indian Evidence Act 1872 is as follows:-
“50. Opinion on relationship, when relevant.—When the Court has to form an opinion as to the relationship of one person to another, the opinion, expressed by conduct, 13/32 https://www.mhc.tn.gov.in/judis CMA No.2812 of 2017 as to the existence of such relationship, or any person who, as a member of the family or otherwise, has special means of knowledge on the subject, is a relevant fact:
Provided that such opinion shall not be sufficient to prove a marriage in proceedings under the Indian Divorce Act, 1869 (4 of 1869) or in prosecutions under section 494, 495, 497 or 498 of the Indian Penal Code (45 of 1860) ”.
25. Section 114 of the Indian Evidence Act 1872 is as follows:-
“114 Court may presume existence of certain facts. —The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. ” 14/32 https://www.mhc.tn.gov.in/judis CMA No.2812 of 2017
26. Section 50, relates to an opinion on a relationship and when such opinion is relevant. It is specifically related to a situation where a Court has to form an opinion regarding the relationship of one person to another it states that an opinion expressed, relating to such relationship, by any other person, who has knowledge of that particular subject, becomes relevant.
27. This would imply that if the Court was to give a finding on the existence of a stated relationship between two persons, in this case, by the first respondent that she was a wife of Kasinatha Mudaliar, then, such relationship can be stated to have been established if there are some evidence which point out to the same. That evidence become relevant.
28. Section 114 of the Indian Evidence Act extracted above relates to the presumption which the Court can draw of the existence of certain facts in the natural course of human conduct.
29. When these two provisions are read together, then if a 15/32 https://www.mhc.tn.gov.in/judis CMA No.2812 of 2017 particular relationship is urged by a party in judicial proceedings, then on the basis of normal human conduct, that particular relationship should be examined based on other relevant materials.
30. Section 114 of the Indian Evidence Act also states that the existence of a fact can be presumed in the common course of natural events.
31. Keeping the aforesaid principles when we examine the facts of this particular case, it is seen that Kasinatha Mudaliar was a man, who had property and also financial resources. An examination of the fixed deposits which he had deposited in the banks show that they are quite substantial taking into account that he lived in a village and there is no evidence of a regular profession or job involved by him. The fixed deposits are 26 in number and the total amount of deposits made between the year 2004-2005 which had matured in the year 2006-2007 and 2008 was Rs.11,82,116/- and the maturity value was Rs.14,11,474/-.
32. A man of such means by natural human conduct would expect 16/32 https://www.mhc.tn.gov.in/judis CMA No.2812 of 2017 that the amounts flow down to his legal heirs. He had married Kamalammal. They had no children. When viewed from the eyes of a person, who is a resident in a village particularly in the years 1960 or 1961 which is about 60 years back, it is only probable to presume that to get a legal heir be would have entered into marriage with another lady.
33. It is the specific case of the first respondent that she married Kasinatha Mudaliar in 1961 on the 18th day of Tamil month of Avani at Thiruchhanur. She had also produced photographs and compact disk to show that in the celebration of the 60 th birthday and 80th birthday of Kasinatha Mudaliar, she was physically present. There are photographs to show that she was physically present along with Kamalammal with Kasinatha Mudaliar. Viewed from their angle, this can be presumed to be natural human conduct.
34. The law had been explained in AIR 1978 SC 1557 [ Badri 17/32 https://www.mhc.tn.gov.in/judis CMA No.2812 of 2017 Prasad V. Dy. Director, Consolidation], wherein the Hon'ble Supreme Court had held as follows:-
“For around 50 years, a man and a woman, as the facts in this case unfold, lived as husband and wife. An adventurist challenge to the factum of marriage between the two, by the petitioner in this special leave petition, has been negatived by the High Court. A strong presumption arises in favour of wed-lock where the partners have lived together for a long spell as husband and wife. Although the presumption is rebuttable, a heavy burden lies on him who seeks to deprive the relationship of legal origin. Law leans in favour of legitimacy and frowns upon bastardy. 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 ceremonial process by examining the priest or other witnesses, deserves no consideration. If man and woman who live as husband and wife in society are compelled to 18/32 https://www.mhc.tn.gov.in/judis CMA No.2812 of 2017 prove, half a century later, by eye-witness evidence that they were validly married, few will succeed. The contention deserves to be negatived and we do so without hesitation. ”
35. In 2008 (1) CTC 773 [ Tulsa & Others Vs. Durghatiya & Others], the Hon'ble Supreme Court held as follows:-
“9. At this juncture reference may be made to the Section 114 of the Indian Evidence Act, 1872 (in short the Evidence Act). The provision refers to common course of natural events, human conduct and private business. The court may presume the existence of any fact which it thinks likely to have occurred. Reading the provisions of Sections 50 and 114 of the Evidence Act together, it is clear that the act of marriage can be presumed from the common course of natural events and the conduct of parties as they are borne out by the facts of a particular case.19/32
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10. A number of judicial pronouncements have been made on this aspect of the matter. The Privy Council, on two occasions, considered the scope of the presumption that could be drawn as to the relationship of marriage between two persons living together. In first of them i.e. A. Dinohamy v. W.L. Blahamy [AIR 1927 P.C. 185] their Lordships of 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 be clearly proved that they were living together in consequence of a valid marriage, and not in a state of concubinage.”
11. In Mohabhat Ali v. Md. Ibrahim Khan [AIR 1929 PC 135] their Lordships of the Privy Council once again laid down that:
The law presumes in favour of marriage and against concubinage when a man and woman 20/32 https://www.mhc.tn.gov.in/judis CMA No.2812 of 2017 have cohabited continuously for number of years.
12. It was held that such a presumption could be drawn under Section 114 of the Evidence Act.
13. 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 leans in favour of legitimacy and frowns upon bastardy. (See: Badri Prasad v. Dy. Director of Consolidation and Ors. [AIR 1978 SC 1557].
14. This court in Gokal Chand v.
Parvin Kumari [AIR 1952 SC 231] observed that continuous co-habitation of woman as husband and wife and their treatment as such for a number of years may raise the 21/32 https://www.mhc.tn.gov.in/judis CMA No.2812 of 2017 presumption of marriage, but the presumption which maybe drawn from long co-habitation is rebuttable and if there are circumstances which weaken and destroy that presumption, the Court cannot ignore them.”
36. In (2009) 15 SCC 184 [ M.Yogendra and Others Vs. Leelamma N. and Others], the Hon'ble Supreme Court held as follows:-
“Before the Court, evidence in different forms may be adduced. Information evidence may be one of them. But the purpose of arriving at a conclusion as to whether a valid marriage has been performed or not, the Court would be entitled to consider the circumstances thereof. There may be a case where witnesses to the marriage are not available. There may also be a case where documentary evidence to prove marriage is not available. It is in the aforementioned situation, the information of those persons who had the occasion to see the conduct of the parties they may testify with regard to the information (sic opinion) they 22/32 https://www.mhc.tn.gov.in/judis CMA No.2812 of 2017 form probably the conduct of the persons concerned.”
37. In (2014) 15 SCC 789 [ Karedla Parthasaradhi Vs. Gangula Ramanamma (dead) though legal representatives and others], the Hon'ble Supreme Court held as follows:-
“19. The question arose before this Court in Thakur Gokal Chand vs. Parvin Kumari @ Usha Rani, AIR 1952 SC 231, as to whether on facts/evidence, the Court could record a finding about the existence of lawful marriage between the parties and, if so, what should be the principle to be applied while deciding such question. Learned Judge - Fazal Ali J, speaking for the Bench examined this question in the context of Section 50 of the Indian Evidence Act, 1872 and other relevant provisions of law and laid down the following principle of law for determination of such question:23/32
https://www.mhc.tn.gov.in/judis CMA No.2812 of 2017 "10.... It seems to us that the question as to how far the evidence of those particular witnesses is relevant under section 50 is academic, because it is well-settled that continuous cohabitation for a number of years may raise the presumption of marriage. In the present case, it seems clear that the plaintiff and Ram Piari lived and were treated as husband and wife for a number of years, and, in the absence of any material pointing to the contrary conclusion, a presumption might have been drawn that they were lawfully married. But the presumption which may be drawn from long cohabitation is rebuttable, and if there are circumstances which weaken or destroy that presumption, the court cannot ignore them"
20. In recent time, this Court in Madan Mohan Singh & Ors. vs. Rajni Kant & Anr.
(2010) 9 SCC 209, relying upon the aforesaid principle of law, reiterated the same principle in following words:
24/32
https://www.mhc.tn.gov.in/judis CMA No.2812 of 2017 "24. The courts have consistently held that the law presumes in favour of marriage and against concubinage, when a man and woman have cohabited continuously for a number of years. However, such presumption can be rebutted by leading unimpeachable evidence.
(Vide Mohabbat Ali Khan v. Mohd. Ibrahim Khan, AIR 1929 PC 135, Gokal Chand v. Parvin Kumari, AIR 1952 SC 231, S.P.S. Balasubramanyam v. Suruttayan, (1994) 1 SCC 460, Ranganath Parmeshwar Panditrao Mali v. Eknath Gajanan Kulkarni, (1996) 7 SCC 681 and Sobha Hymavathi Devi v. Setti Gangadhara Swamy, (2005) 2 SCC 244)"”
38. A learned Single Judge of this Court in 2008 (5) CTC 294 [ Sivasamy and 2 others Vs. Poomalai and 2 others], had held as follows:-
“16. All gender based discriminations, all practices which affect the dignity of women are contrary to the Constitution & Convention on Elimination of All Forms of Discrimination against Women. The 25/32 https://www.mhc.tn.gov.in/judis CMA No.2812 of 2017 status of a woman who claims she is the wife and had lived as such for 40 years cannot be reduced to a mere "association" at the instance of the plaintiff merely because she wants the property especially when the world had labelled the fifth defendant as the wife of Masi Ambalam. To deny her status would rob her of the dignity to which she is entitled to.”
39. In 1987 (1) MLJ 149, [Seerangamal Vs. Venkatsubramanian], a Division Bench has held as follows:-
“22. The other point taken by defendants is, if the origin was one of concubinage, it continues to be so for ever, and that once a concubinage always a concubinage. It depends upon facts and circumstances 'of each case. During the lifetime of a wife, an irresponsible husband may develop incestuous relationship with another woman, but if he continues the said relationship after the death of his wedded wife, and thereafter lives exclusively 26/32 https://www.mhc.tn.gov.in/judis CMA No.2812 of 2017 with the other woman treating her as his wife and begets children through her; and recognises them as legitimate children; lives. together as a family for ever to the knowledge of the general public and if the documents executed by him confer1 rights upon them in any of his properties with unstinted intention of treating them as wife and children; then, as pointed out in the decisions above referred to, the evidence on record must be taken into account cumulatively to conclude on wifehood. Hence, for the reasons stated above, the first three aspects relied upon as if they are destructive factors, do not in any manner outweigh the other weighty materials on record in favour of first plaintiff, and which have been referred to above.
23. Regarding the contents of affidavit and written statement (i.e. items 4 and 5); being interested in the usufructuary mortgage, and being relations, they would not have tolerated in those years, a Naidu woman claiming status of 27/32 https://www.mhc.tn.gov.in/judis CMA No.2812 of 2017 the wife of a Brahmin. It is not as if that status could be derived, only if relations recognise. Outside world had treated her as wife, as found in notices by Bank (vide Exhibits A-31 and A-
32), election records, Ration cards, etc., and in entries found in school records about plaintiffs 2 to 4. When he had himself recognised her as having lived with him as a devoted, sincere, faithful wife, and duration of cohabitation not being disputed; though the origin was in the nature of a concubinage; after the death of Bagirathi Ammal in 1940, for 15 long years Ranganatha had treated her as his wife, lived with her in the same house and three children were born to them and he had intended to confer upon them rights in the property. But unfortunately, as happens when entire legal aspects are not properly understood, the composition deed (Exhibit A-34) haying not brought forth what was aimed at when his brother was in difficulties; plaintiffs could not derive the advantage under Exhibit A-33 will. As held in Muthayya v. Kamu alias Kamala Ammal 28/32 https://www.mhc.tn.gov.in/judis CMA No.2812 of 2017 (1981) 94 L.W.I 93 multitude of materials exist to show that Society had treated her as wife of Ranganatha. The status acquired by long cohabitation cannot also be lost.”
40. The view taken by the Courts is quite consistent, namely, that the Court will lean towards presumption of validity of a relationship and if at all such presumption is to be rebutted, then burden lies on him, who seeks to deprive the relationship of a legal origin. This would imply that the appellants herein had the burden to deny and dispute the claims of the first respondent and to produce evidence to show that the first respondent had never lived with Kasinatha Mudaliar.
41. On the other hand, the first respondent had also produced Ex.P-1 photographs, Ex.P-2 compact disk, Ex.P-4 death register extract of Kasinatha Mudaliar, Ex.P-3 legal heirship certificate , Ex.P-6 copy of Ration Card in which her name and Kasinatha Mudaliar name is found, Ex.P-7 the voter identity card and E.P-8 the registered Will executed by Kasinatha Mudaliar bequeathing properties to the first respondent, wherein, he categorised her as his wife. These documents store in the face of the 29/32 https://www.mhc.tn.gov.in/judis CMA No.2812 of 2017 appellants. Since the Court will have to examine as to how Kasinatha Mudaliar lived with the first respondent, the evidence shows that they lived together as husband and wife. The 60 th and 80th birthday were performed in accordance with the Hindu religious rites and ceremonies. The recognisation given by Kasinatha Mudaliar has to be recognised by this Court or there are no materials to hold otherwise and if materials are to be provided, the appellants herein should have provided such materials. They have failed to do so. The Court examines facts and on the basis of the facts, it should be held whether a fact asserted had been proved or disproved or not proved.
42. In the instant case, the petitioner claims such right and one primary document alone, the Registered Will wherein Kasinatha Mudaliar had described herself as wife and had bequeathed property would establish that the Court should bend to maintain that relationship which he had bestowed on her.
43. I would therefore dismiss this Civil Miscellaneous Appeal and uphold the order of the Principal District Judge, Vellore and direct succession certificate to be issued to the first respondent. Consequently, 30/32 https://www.mhc.tn.gov.in/judis CMA No.2812 of 2017 connected Miscellaneous Petition is closed. No order as to costs.
11.03.2022 Index:Yes / No Speaking / Non-Speaking order vsg To
1. Principal District Court, Vellore.
2.The Section Officer, VR Section, Madras High Court, Chennai.
C.V.KARTHIKEYAN, J.
vsg 31/32 https://www.mhc.tn.gov.in/judis CMA No.2812 of 2017 CMA No. 2812 of 2017 And C.M.P.No. 16073 of 2017 11.03.2022 32/32 https://www.mhc.tn.gov.in/judis