Madras High Court
Sivabakiam vs Mrs.Parvathathammal on 28 March, 2014
Author: R.S.Ramanathan
Bench: R.S.Ramanathan
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 28.03.2014
CORAM :
THE HONOURABLE MR.JUSTICE R.S.RAMANATHAN
A.S.No.797 of 1997
and
CMP No.14078 of 1997
1.Sivabakiam
2.Sambandam
3.Subramanian @ Anbalagan
4.Raja
5.Mrs.Santhi
6.Indira : Appellants/Plaintiffs
Vs.
1.Mrs.Parvathathammal
2.Rathinam
3.Rajendiran
4.Dakshinamoorthy
5.Balakrishnan
6.Minor Kandan (died)
7.Mrs.Saraswathy
8.Thilakavathi : Respondents/D4 to D11
D1 to D3 and D12 to D24
are not necessary parties,
since they are ex-parte before
the lower court]
Appeal Suit filed under Section 96 of CPC against the Judgment and decree, dated 07.01.1997 passed in Original Suit Nos.18 of 1996 by the Additional Sub Court, Mayiladuthurai.
For Appellants : Mr.K.Sathishkumar
For RR1 to RR4
& RR7 and RR8 : Mr.A.Muthukumar
For 5th Respondent : No appearance
JUDGMENT
The plaintiffs in O.S.No.18 of 1996 on the file of the Additional Sub Court, Mayiladuthurai, are the appellants.
2.The appellants filed the suit for declaration that they and the respondents 1 to 3 and the respondents 5 to 11 are the legal heirs of the deceased Mani Mudaliar and for partition of their 54/144th share in the suit properties.
3.The case of the plaintiffs is as follows:-
The 1st plaintiff is the first wife of Mani Mudaliar and the plaintiffs 2 to 6 and the defendant 1 to 3 were born to the 1st plaintiff through Mani Mudaliar. The 4th defendant was the 2nd wife of Mani Mudaliar and the defendants 5 to 11 were the children of the 4th defendant through Mani Mudaliar. The defendants 12 to 24 are the tenants. The marriage between Mani Mudaliar and the 1st plaintiff took place in the year 1944 at Thillai Kaliamman Kovil, Chidambaram, according to Hindu rights and thereafter, Mani Mudaliar and the 1st plaintiff were living in a house bearing Door No.1/76, Sembanarkovil town, as husband and wife and the plaintiffs 2 to 6 and the defendants 1 to 3 and 13 were born to the 1st plaintiff and Mani Mudaliar. Mani Mudaliar married the 4th defendant as his 2nd wife in the year 1956 and the 4th defendant is the sister's daughter of Mani Mudaliar and the marriage between Mani Mudaliar and the 4th defendant is not a valid marriage, as the 1st plaintiff was alive at the time of marriage between Mani Mudaliar and the 4th defendant. Therefore, the 4th defendant cannot claim the status of wife of Mani Mudaliar. The defendants 5 to 11 were born to the 4th defendant and Mani Mudaliar and therefore, they are illegitimate children of Mani Mudaliar as per section 16(A) of the Hindu Marriage Act. Mani Mudaliar died on 28.12.1988 and during his life time, he lived with the 1st plaintiff and also celebrated the marriage of the plaintiffs 2 to 6, the defendants 1 to 3 and 13 and they were educated and in the school records, Mani Mudaliar represented himself as their father and Mani Mudaliar also purchased certain properties in the name of the 1st plaintiff describing herself as his wife. Mani Mudaliar also stood as guarantor for the loan availed by the 1st plaintiff's children. Mani Mudaliar also maintained a Diary, wherein he mentioned about the date of birth of the plaintiffs 2 to 6, defendants 1 to 3 & 13 and to prove that the plaintiffs 2 to 6, defendants 1 to 3 and 13 were born to Mani Mudaliar, the plaintiffs filed the Death Certificate, School Certificate, Voters list, letters written by Mani Mudaliar, Life Insurance Corporation Policy, Passbook and Diary and the photos. In O.S.No.501 of 1987 on the file of the District Munsif Court, Mayiladuthurai, Mani Mudaliar was the 1st defendant and in that suit, he admitted that the 2nd plaintiff as his son. Similarly, in O.S.No.10 of 1987 on the file of the Sub Court, Mayiladuthurai, Mani Mudaliar admitted that the plaintiffs 2 to 6, defendants 1 to 3 and 13 were his legal heirs and those documents may be read as part of the plaint. During his life time, Mani Mudaliar filed O.S.No.123 of 1988 against one Jayaraman for recovery of money and on his death, the plaintiffs, the defendants 1 to 3 and 13 filed I.A.No.345 of 1981 to implead themselves as the legal heirs of Mani Mudaliar and that was allowed and therefore, the defendants 4 to 11 filed I.A.No.446 of 1990 to get themselves impleaded as the legal heirs of Mani Mudaliar and also filed I.A.No.460 of 1990 to set aside the order passed in O.S.No.113 of 1988 impleading the plaintiffs, the defendants 1 to 3 and 13 as the legal heirs of Mani Mudaliar and those two I.A.Nos.460 and 446 of 1990 were disposed of by a common order and the plaintiffs, defendants 1 to 3 and 13 were deleted from the array of the parties as the legal heirs of Mani Mudaliar and those orders are only interlocutory orders and as the defendants 1 to 3 and 13 were removed from array of the legal heirs, the present suit is filed for declaration. The 8th defendant was given in adoption and therefore, the 8th defendant cannot claim any share. After the death of Mani Mudaliar, the properties belonged to Mani Mudaliar were enjoyed by the plaintiffs and the defendants 1 to 3 and 13 and the receipts were given by the plaintiffs for having received the rents and latter, the defendants 4 to 11 sent notice to the tenants asking them not to pay the rents to the plaintiffs and therefore, the suit was filed for partition. The suit properties are undivided joint family properties of Mani Mudaliar and his sons and therefore, the plaintiffs 2 to 4 and the defendants 5 to 9 being the sons of Mani Mudaliar, are each entitled to 1/9th share and 1/9th share of Mani Mudaliar devolved on the plaintiffs 1, 5 and 6 and the defendants 1 to 4 and the defendants 10 to 12 and therefore, the plaintiffs are totally entitled to 54/144th share and the defendants 1 to 3 are each entitled to 1/144th share and the defendants 5 to 9 and 13 are each entitled to 19/144th share and the defendants 10 and 11 are each entitled to 1/144 share.
4.The 5th defendant filed a written statement and that was adopted by the defendants 4, 6 and 11 and they denied the allegations that the 1st plaintiff was the legally wedded wife of Mani Mudaliar and asserted that the 4th defendant was the legally wedded wife of Mani Mudaliar and the 1st plaintiff was not the legally wedded wife of Mani Mudaliar and Mani Mudaliar kept the 1st plaintiff as concubine. They denied the allegations that the 1st plaintiff married Mani Mudaliar at Thillai Kaliamman Kovil, Chidambaram and no marriage took place between the 1st plaintiff and Mani Mudaliar and Mani Mudaliar lived with the 1st plaintiff at Thiruvalluvar Street, in Door No.1-76, Sembanarkovil.
5.It is also stated that the marriage between the 4th defendant and Mani Mudaliar took place in the year 1948 and the 4th defendant was the only legally wedded wife of Mani Mudaliar and the 4th defendant was not the 2nd wife of Mani Mudaliar as alleged by the plaintiffs. The defendants 5 and 11 are only the legal heirs of Mani Mudaliar and the admission of Mani Mudaliar in the school records about the parentage of the plaintiffs 2 to 6, defendants 1 to 3 and 13 will not confer any legal right or status to claim the properties of Mani Mudalair. In the judgment O.S.No.501 of 1985 on the file of the District Munsif Court, Mayiladuthurai, the 1st plaintiff was found to be not the legally wedded wife of Mani Mudaliar and the appeal filed in A.S.No.13 of 1987 against the decree passed in O.S.No.501 of 1985 was also dismissed and there is no suit, having number in O.S.No.10 of 1987.
6.It is further stated that the suit in O.S.No.113 of 1988 filed on the file of the Sub Court, Mayiladuthurai was a mortgage suit filed by Late Mani Mudaliar against one Jayaraman and on the death of Mani Mudaliar, the plaintiffs, defendants 1 to 3 and 13 filed I.A.No.345 of 1981 without impleading the defendants 4 to 11 and got themselves impleaded. On coming to know the same, the defendants 4 to 11 filed I.A.No.446 of 1990 to get themselves impleaded and also filed I.A.No.460 of 1990 to set aside the order passed in I.A.No.345 of 1981 and those applications were allowed in favour of the defendants and therefore, the order passed in I.A.Nos.446 and 460 of 1990 would operate as res judicata and therefore, it is not open to the plaintiffs to claim the status of the legal heirs of Mani Mudaliar. They also denied the allegation of joint enjoyment of the properties by the plaintiffs, defendants 1 to 3 and 13 along with the defendants 4 to 11.
7.The plaint schedule items 1 and 2 are in the name of Mani Mudaliar and items 3 to 5 were given to the 5th defendant and his brothers viz., defendants 6 to 9 by their grandfather Kandasamy Mudaliar under a registered Will, dated 25.12.1957. Items 1 and 2 are the family houses and items 3 and 4 did not belong to Late Mani Mudaliar. The properties situate at Parasalur village described as items 3 and 4 did not belong to Mani Mudaliar. Items 1 to 8 in the 'C' schedule are not available, as they were sold by Mani Mudaliar himself during his life time. Items 10 to 14 are wet lands stand in the name of the 6th defendant and item 15, do not belong to the 7th defendant and items 23 to 34 belong to the 8th defendant. Items 35 to 49 stand in the name of the 5th defendant and items 51 to 54 were sold by Mani Mudaliar, while he was alive and the 62th item was never owned by Mani Mudaliar. Item 63 do not belong to Mani Mudaliar and it belonged to Kandasamy Mudaliar and under his Will, dated 25.12.1957, he bequeathed those properties to the defendants 5 to 9. Items 64 and 65 were sold by Mani Mudaliar and also items 66 to 72. In respect of the properties situate in Sembanar Kovil village viz., items 1 to 4 stand in the name of Mani Mudaliar. Items 5 to 7 were given to the defendants 5 to 9 by Kandasamy Mudaliar under the Will and item 6 belongs to Mani Mudaliar. Item 8 does not belong to Mani Mudaliar. Item 9 belongs to the defendants 5 to 9. In respect of property in Parasulur village viz., items 10 belonged to Mani Mudaliar. Item 11 belonged to the defendants 5 to 9. In Sembanar Kovil village viz., building bearing Door No.2-1 and 2-2 in R.S.No.18/2 and the lands belonged to the temple and the superstructure belonged to the family of the defendants 5 to 9. In respect of land situated in Parasalur village items 1 to 21 were sold by Mani Mudaliar. Item 22 stands in the name of Mani Mudaliar. Item 24 does not belong to Mani Mudaliar family. Items 23, 25 to 27 belong to the 6th defendant. Items 1 and 2 situated at Sembanar Koil village stand in the name of Mani Mudaliar. The plaintiffs and the defendants 1 to 3 and 13, therefore, are not entitled to items mentioned in the suit properties. The court fee paid under section 37(2) of the Court Fees Act is not correct. The plaintiffs have left out some properties of Mani Mudaliar and therefore, the defendants prayed for the dismissal of the suit.
8.On the basis of the above pleadings, the trial court framed the following issues:-
1.Whether the 1st plaintiff is the legally wedded wife of Mani Mudaliar?
2.Whether the 4th defendant is the legally wedded wife of Mani Mudaliar?
3.Whether the plaintiffs and the defendants 1 to 3 and 13 are the legal-heirs of Mani Mudaliar?
4.Whether the defendants 4 to 11 are the legal-heirs of Mani Mudaliar?
5.Whether the plaintiffs claim is barred by res-judicata?
6.Whether the plaintiffs are entitled to the relief of declaration?
7.Whether the properties mentioned in the suit are ancestral properties belonged to Mani Mudaliar?
8.Whether the sale deed, dated 25.12.1957 executed by Mani Mudaliar was a true, valid and binding on the plaintiffs and the defendants 1 to 3 and 13?
9.Whether some of the properties belonged to Mani Mudaliar were not included in the suit as claimed by the defendants 4 to 11?
10.Whether the suit properties are in the possession of the family of Mani Mudaliar?
11.Whether the plaintiffs are entitled to claim partition?
12.Whether the plaintiffs are entitled to mesne profit from the defendants 4 to 11?
13.Whether the suit for partition is lopsided?
14.To what relief, the plaintiffs are entitled to?
9.On the side of the plaintiffs, 6 witnesses were examined and 36 documents were marked. On the side of the defendants, 5 witnesses were examined and 26 documents were marked.
10.The trial court tried the Issue Nos.1 to 4 and 6 together and held that the plaintiffs failed to prove the marriage between Mani Mudaliar and the 1st plaintiff solemnized in the year 1944 and there are discrepancies in the evidence of PW1 regarding the marriage between herself and Mani Mudaliar and the evidence given in Ex.B1 and the evidence given before this court and PW2, son of the 1st plaintiff, cannot be an eye witness and PW3 did not state anything about the marriage between Mani Mudaliar and the 1st plaintiff and only deposed that they lived as husband and wife and PW4 also admitted that she was not aware of the marriage between the 1st plaintiff and Mani Mudaliar and she was not having knowledge about Mani Mudalair and PW5 though claimed to be the witness for the marriage of Mani Mudaliar, in O.S.No.113 of 1988 also, the presence of PW5 was not stated and PW6 also admitted in the cross examination that he was not having personal knowledge about the marriage of the 1st plaintiff and Mani Mudaliar and therefore, the trial held that except the oral evidence of PW1, there is no acceptable evidence to arrive at a conclusion that the 1st plaintiff was the legally wedded wife of Mani Mudaliar and by entries in the School Certificates, describing Mani Mudaliar as father, the marriage cannot be presumed.
11.The trial court further held that Ex.A1 Diary was not duly proved and PW1 clearly admitted that she was not aware of the Diary (Ex.A1) and PW2 cannot also depose about the marriage of Mani Mudaliar and his mother the 1st plaintiff and the letters, photos produced by the plaintiffs will not prove the marriage between Mani Mudaliar and the 1st plaintiff and therefore, the 1st plaintiff cannot be declared as the legally wedded wife of Mani Mudaiar and a reading of the judgment in O.S.No.501 of 1985 and A.S.No.13 of 1987 would make it clear that the 1st plaintiff never recognized as the legally wedded wife of Mani Mudaliar and therefore, held that the plaintiffs, the defendants 1 to 3 and 13 are not entitled to the relief of declaration that they are the legal-heirs of Mani Mudaliar along with the defendants 4 to 11.
12.Issue No.5 was also held against the appellants/plaintiffs holding that the order passed in I.A.Nos.466 of 460 of 1990 would operate as res judicata.
13.Issue Nos.7 to 9 were tried together and held that Ex.B3 Will was validly executed by Mani Mudaliar, while he was in sound disposal of mind and the Will was also proved by examining DW3 and Exs.B6 and B7 are Chitta in favour of the children of Mani Mudaliar and held that the Will, executed by Kandasamy Mudaliar is a valid Will and it is binding on the plaintiffs.
14.Issue No.10 was answered holding that the plaintiffs failed to prove that the properties were sold by Mani Mudaliar and answered against the plaintiffs.
15.Issue No.13 was answered against the plaintiffs holding that some of the properties of Mani Mudaliar were not included in the suit and therefore, the suit is lopsided.
16.Issue Nos.11 and 12 were answered against the plaintiffs holding that the plaintiffs, defendants 1 to 3 and 13 are not the legal heirs of Mani Mudaliar and therefore, they are not entitled to the relief of mesne profit. In the result, the suit filed by the plaintiffs was dismissed. Aggrieved by the same, the present appeal suit is filed.
17.It is submitted by the learned counsel for the appellants that the trial court, without properly appreciating the Birth Certificate, School Certificate and Passbook and Marriage Invitation and the Voters list etc., marked as Exs.A2 to A23, erred in holding that the plaintiffs and the defendants 1 to 3 and 13 are not the legal heirs of the Mani Mudaliar.
18.It is also submitted by the learned counsel for the appellants that Ex.A2 is the Birth Certificate in respect of the child born to the 1st plaintiff and Mani Mudaliar and Ex.A2 is, dated 11.12.1947 and therefore, one year prior to that date i.e., 11.12.1947, the marriage between Mani Mudaliar and the 1st plaintiff would have taken place and Ex.A1 Diary maintained by Mani Mudaliar for the year 1946 would also prove that Mani Mudaliar lived with the 1st plaintiff.
19.The learned counsel further submitted that the trial court erred in holding that the marriage between Mani Mudaliar and the 1st plaintiff was not proved and the evidence of PW3 to PW6 cannot be accepted as they have not given the details of the marriage.
20.The learned counsel for the appellants further submitted that the witnesses were examined after 40 years from the date of marriage and due to loss of memory and passage of time, one cannot be expected to give evidence stating the graphic description of the marriage, that took place in the year 1944 and considering the acknowledgment made by Mani Mudaliar, accepting the plaintiffs 2 to 6, the defendants 1 to 3 and 13 as his children in the school records and in the marriage invitation and the entries in the Diary, coupled with the evidence of the defendants 2 to 6, the trial court ought to have drawn presumption that Mani Mudaliar and the 1st plaintiff lived as husband and wife and as per law also, presumption can be drawn when the parties lived together for more than 40 or 50 years as husband and wife and the society also recognized them as such and without considering all these aspects, the trial court erred in holding that the plaintiffs and the defendants 1 to 3 and 13 are not the legal heirs of Mani Mudaliar.
21.He also submitted that the evidence of PW3 and PW6 were not properly appreciated and the order passed in I.A.Nos.446 and 460 of 1990 in O.S.No.113 of 1988 will not operate as res judicata and those orders were passed in the interlocutory applications and therefore, the trial court erred in holding that the order passed in I.A.Nos.446 of 460 of 1990 would operate as res judicata. In support of his contention, the learned counsel for the appellants, relied upon the following judgments:-
(1)2008(1) CTC 773 in the case of Tulsa and others vs. Durghatiya and others.
(2)2001(3) CTC 513 in the case of Kanagavalli and 4 others vs. Saroja and 3 others.
(3)2010(2) CTC 622 in the case of Kuppan vs. Muniammal and others, in support of his contention.
22.On the other hand, the learned counsel for the respondents/defendants 4 to 11 submitted that in the absence of any proof of marriage, the presumption cannot be drawn about the marriage between the 1st plaintiff and Mani Mudaliar and it is the specific case of the defendants 4 to 11 that the 4th defendant was the legally wedded wife of Mani Mudaliar and the 1st plaintiff was not the legally wedded wife of Mani Mudaliar and Mani Mudaliar kept the 1st plaintiff as concubine and the plaintiffs 2 to 6, defendants 1 to 3 and 13 might have born during their joint living and that would not lead to the presumption that the 1st plaintiff was the legally wedded wife of Mani Mudaliar.
23.He also submitted that the marriage between Mani Mudaliar and the 4th defendant was accepted and that took place in the year 1948 and in the absence of any prove of marriage between the 1st plaintiff and Mani Mudaliar earlier to that, the plaintiffs, defendants 1 to 3 and 13 cannot claim any legal status. He also submitted that in O.S.No.501 of 1985 filed by the 2nd plaintiff against Mani Mudaliar and another, it was held that the 1st plaintiff was not the legally wedded wife of Mani Mudaliar and it was proved that the 1st plaintiff herein was not the legally wedded wife of Mani Mudaliar and in that case, the 1st plaintiff did not examined herself to prove the marriage between herself and Mani Mudaliar and no witness was examined to prove the marriage between the 1st plaintiff and Mani Mudaliar in that suit and the same was also confirmed in O.S.No.113 of 1988. Therefore, the plaintiffs are barred by principles of res judicata and the 1st plaintiff is not the legally wedded wife of Mani Mudaliar.
24.He also submitted that O.S.No.113 of 1988 was filed by Mani Mudaliar against one Jayaraman and others and after his death, the plaintiffs got themselves impleaded without the knowledge of the defendants 4 to 11 in I.A No.345 of 1981 and later, on coming to know of the same I.A.No.446 of 1990 was filed to implead the defendants 4 to 11 and I.A.No.460 of 1990 wasfiled to set aside the order passed in I.A.No.345 of 1981 and both the applications were allowed and the order passed in I.A.No.345 of 1981 was set aside and the plaintiff were removed from the array of legal heirs of Mani Mudaliar under Order 22 Rule 5 CPC and the finding regarding the legal-heirs ship of a party in a proceedings operates as res judicata and therefore, it is not open to the plaintiffs to contend now that they are the legal heirs of Mani Mudaliar along with the defendants 4 to 11.
25.He also submitted that under the Will of Mani Mudaliar (Ex.A33) certain properties were bequeathed to the defendants 5 to 9 and certain properties did not belong to Mani Mudaliar and therefore, admittedly the properties were purchased in the name of the 1st plaintiff and those properties were not included and therefore, the trial court rightly held that the suit for partition is lopsided. Therefore, the appeal suit is liable to be dismissed.
26.On the basis of the above submissions, the following points for consideration arise in the Appeal Suit:-
1.Whether the 1st plaintiff is the legally wedded wife of Mani Mudaliar and her marriage with Mani Mudaliar was the first marriage and the 4th defendant is the 2nd wife of Mani Mudaliar?
2.If the 1st plaintiff is not the legally wedded wife of Mani Mudaliar, what is the status of the 1st plaintiff and the plaintiffs 2 to 6 and the defendants 1 to 3 and 13?
3.Whether presumption can be drawn regarding the validity of the marriage between the 1st plaintiff and Mani Mudaliar earlier to the marriage with the 4th defendant by reason of long cohabitation and conduct of Mani Mudaliar in accepting the plaintiffs 2 to 6 and the defendants 1 to 3 and 13 as his children?
4.Whether the plaintiffs and the defendants 1 to 3 and 13 are entitled to the relief of partition?
27.The 1st plaintiff examined herself as PW1 and also examined PW3 to PW6 to prove her marriage between herself and Mani Mudaliar. It is the specific case of the 1st plaintiff that her marriage between Mani Mudaliar, took place in the year 1944 and the marriage was witnessed by her mother and also by PW4 and PW6. The plaintiffs also produced Exs.A1 to A6 the Birth Register Extract, School Certificate and also the letters Exs.A8 to A13 and the Marriage Invitation of the defendants 1 to 3 and 13 and Ex.A17 Marriage Invitation of the 5th defendant and Ex.A18, the Marriage confirmation of the 13th defendant and Ex.A35, letter received by the 2nd plaintiff from Mani Mudaliar, Exs.A29 and Ex.A36 are the Birth Register Extracts, wherein Mani Mudaliar is described as the father of the plaintiffs 2 to 6, defendants 1 to 3 and 13 and Ex.A23 Voters list, to prove that both are living in one roof and therefore, contended that by reason of the long cohabitation and acceptance of the children by Mani Mudaliar as his children, a valid marriage can be presumed. The trial court discussed the evidence of PW1 to PW6 and disbelieved the case of the plaintiffs that the 1st plaintiff was given in marriage to Mani Mudaliar and there was a valid marriage between them. However, having regard to Exs.A1 to A18, A23, A29, A35 and A36, the plaintiffs have proved that the 1st plaintiff and Mani Mudaliar lived together from the year 1946. Therefore, by reason of the long cohabitation and recognition of the children born to 1st plaintiff by Mani Mudaliar as his own children and the recognition given to the 1st plaintiff, Mani Mudaliar admitted the relationship between him and the plaintiffs, a presumption can be drawn that Mani Mudaliar and 1st plaintiff lived as husband and wife. But that is not sufficient to grant the declaration. Admittedly, 4th defendant married Mani Mudaliar in 1948 and therefore, unless the plaintiffs prove that the marriage between Mani Mudaliar and the 1st plaintiff took place earlier to that, the suit will fail. The exact date, month and year of marriage cannot be presumed by long cohabitation and therefore, in the absence of any evidence that Mani Mudaliar married 1st plaintiff prior to 1948, the 1st plaintiff cannot claim to be legally wedded wife of Mani Mudaliar. Further, the 2nd plaintiff filed a suit in O.S.No.501 of 1985 and the 1st issue framed in that suit, was whether the plaintiffs in that suit, namely the 2nd plaintiff herein, was a member of the co-parcenary of Mani Mudaliar and the 2nd issue framed was whether the suit properties were the joint family properties of Mani Mudaliar and himself. That suit was filed by the 2nd plaintiff herein for injunction restraining the Mani Mudaliar from selling the properties to the 2nd defendant in that suit and while answering Issue No.1, it was held that marriage between Mani Mudalair and the mother of the 2nd plaintiff herein, namely the plaintiff in that suit was not proved and it was also held that the plaintiff in that suit, namely the 2nd plaintiff herein was not a member of the coparcenary consisting of Mani Mudaliar and others and the suit properties in that suit, were not the ancestral properties. In that suit, the wife of Mani Mudaliar was not examined and the decree passed in O.S.No.501 of 1985 was confirmed in A.S.No.13 of 1987 and in that appeal also, it was held that the marriage between Mani Mudaliar and Sivabakiyam was not proved.
28.Further, in O.S.No.113 of 1988 filed by Mani Mudaliar against Jayaraman and others, the plaintiffs 2 to 6 got themselves impleaded as the legal heirs of Mani Mudaliar by filing I.A.No.345 of 1989. Thereafter, the defendants 4 to 11 herein filed I.A.No.446 of 1990 to get themselves impleaded as the legal heirs and also filed I.A.No.460 of 1990 to set aside the order passed in I.A.No.345 of 1989 and to remove the plaintiffs from the array of the legal representatives of Mani Mudaliar and in that suit, both I.A.Nos.446 and 460 of 1990 were heard, tried and documents were marked on both sides and the 1st plaintiff herein was examined as RW1 and 2 other witnesses were examined on the side of the plaintiffs therein and the 5th defendant Rathinam examined as PW1 and also examined one more witness. On the basis of the documents and oral evidence, the trial court allowed both the applications filed by the defendants 4 to 11 holding that the plaintiffs herein were not the legal representative of the Mani Mudaliar and therefore, they cannot be impleaded as the legal heirs of Mani Mudaliar and set aside the order passed in I.A.No.345 of 1989 in O.S.No.113 of 1988 and allowed the applications I.A.Nos.446 and 460 of 1990 filed by the defendants 4 to 11. That order has become final. Though the plaintiffs contended that the order passed in I.A.Nos.446 and 469 of 1990 are in the nature of interlocutory orders and therefore, they would not operate as res judicata, having regard to the judgment reported in 2007(2) LW 711, in the case of Chhabil Das vs. Pappu, the argument of the learned counsel for the appellants cannot be accepted and the order passed in I.A.Nos.446 and 469 of 1990 will operate as res judicata.
29.In the aforesaid judgment, it is held that when a question arose as to who was the legal representative of a party to the suit who had expired, the same was required to be determined in terms of Order XXII, Rule 5 and the principle of res judicata also applies in different stages of the same proceedings and once, the status of a person is decided earlier in the same suit, the same cannot be reopened at latter stage. In that judgment, the Hon'ble Supreme court has also relied upon the judgment reported in (2005)1 SCC 787 : 2005-1-LW 582 in the case of Bhanu Kumar Jain vs. Archana Kumar and another and (2005)7 SCC 190 in the case of Ishwar Dutt vs. Land Acquisition Collector & another.
30.In the judgment reported in AIR 1973 MAD, in the case of Appavoo Pillai vs. Vijayambal, the Hon'ble Division Bench of this court held that the principles of constructive res judicata will be applicable where identical question has been raised between the same parties and finally decided between them. It is further held that where each claimant put forth a claim that he or she is the true legal representative of the deceased and the entire evidence was let in and a decision rendered, such decision in the prior proceedings, cannot be said to be summary and the principles of constructive res judicata will apply and the prior decision affirmed by the Court will preclude the parties from agitating the same question once again.
31.Therefore, having regard to the above principles of law and the fact that in the earlier proceedings, it was held that the marriage between the 1st plaintiff and Mani Mudaliar was not proved, the presumption arising out of long cohabitation and recognition of the plaintiffs 2 to 6 by Mani Mudaliar cannot be drawn. Hence, the point for consideration Nos.1 and 3 are answered against the appellants holding that the marriage between the 1st plaintiff and Mani Mudaliar was not earlier to the marriage with the 4th defendant and the 1st plaintiff can only be considered as the 2nd wife of Mani Mudaliar for reasons stated herein after.
32.Even assuming that a presumption can be drawn by reason of the fact of long cohabitation and recognition by the father about the heir-lings through various Exhibits, the plaintiffs 2 to 6, defendants 1 to 3 and 13 can only claim share in the father's property and they will not become co-parcenary to claim right by birth in the properties of Mani Mudaliar. Admittedly, the 4th defendant is the wife of Mani Mudaliar and it is the case of the 4th defendant that her marriage with Mani Mudaliar took place in the year 1948 and the plaintiffs also admitted the marriage between Mani Mudaliar and the 4th defendant and PW3 to PW6 also admitted the marriage between Mani Mudaliar and the 4th defendant. Therefore, the 4th defendant proved to be the 1st wife of Late Mani Mudaliar and by reason of the presumption drawn in favour of the 1st plaintiff, she can be only considered as 2nd wife and her marriage with Mani Mudaliar is not a valid marriage. Therefore, by reason of section 16(1)(A) of the Hindu Marriage Act, the plaintiffs 2 to 6 and the defendants 1 to 3 and 13 can be considered as the legitimate children for the purpose of claiming share in the properties of Mani Mudaliar and they cannot claim any share in the ancestral property in the hands of the Mani Mudaliar.
33.In the judgment reported in 2001(3)CTC 513, in the case of Kanagavalli and 4 others vs. Saroja and 3 others, it is held that when a man and woman living under one roof, underwent a form marriage and that marriage is null and void by reason of earlier marriage of one of the spouse, the children born to them are the legitimate children and they will be also entitled to a share in the father's separate property.
34.In the judgment reported in (2006)9 SCC 612, in the case of Neelamma and others vs. Sarojamma and others, relying upon the judgment reported in (2003)1 SCC 730, in the case of Jinia Keotin vs. Kumar Sitaram Manjhi, where it is held as follows:-
5.So far as Section 16 of the Act is concerned, though it was enacted to legitimise children, who would otherwise suffer by becoming illegitimate, at the same time it expressly provides in sub-section (3) by engrafting a provision with a non obstante clause stipulating specifically that nothing contained in sub-section (1) or sub-section (2) shall be construed as conferring upon any child of a marriage, which is null and void or which is annulled by a decree of nullity under Section 12, 'any rights in or to the property to any person, other than, the parents, in any case where, but for the passing of this Act, such child would have been incapable of possessing or acquiring any such rights by reason of his not being the legitimate child of his parents'. In the light of such an express mandate of the legislature itself, there is no room for according upon such children who but for Section 16 would have been branded as illegitimate any further rights than envisaged therein by resorting to any presumptive or inferential process of reasoning, having recourse to the mere object or purpose of enacting Section 16 of the Act. Any attempt to do so would amount to doing not only violence to the provision specifically engrafted in sub-section (3) of Section 16 of the Act but also would amount to court re-legislating on the subject under the guise of interpretation, against even the will expressed in the enactment itself. Consequently, we are unable to countenance the submissions on behalf of the appellants. The view taken by the courts below cannot be considered to suffer from any serious infirmity to call for our interference, in this appeal.
35.In the judgment reported in AIR 2010, SC 2685 in the case of Bharatha Matha & another vs. R.Vijaya Renganathan & others, the same view was taken following the judgment reported in (2003)1 SCC 730 in the case of Jinia Keotin & Others vs. Kumar Sitaram Manjhi & others and (2006)9 SCC 612 in the case of Neelamma and others vs. Sarojamma and others. Therefore, the plaintiffs 2 to 6, defendants 1 to 3 and 13 can be considered as the legitimate children of Mani Mudaliar, by virtue of section 16(1) of the Hindu Marriage Act and they are entitled to claim share in the properties of Mani Mudaliar and they cannot claim any right in the ancestral property. The defendants 5 to 7 and 9 are the sons of Mani Mudaliar through the 4th defendant and therefore, in the ancestral property, Mani Mudaliar had only 1/5th share and on his death, his 1/5th share devolved on the plaintiffs 2 to 6, defendants 1 to 3 and 13 and also defendants 4 to 7, 9 to 11 and therefore, the plaintiffs are entitled to each 1/80th share.
36.It is also proved by the defendants 4 to 11 that 'A' schedule items 3 to 5 were bequeathed by the grand-father Kandasamy Mudaliar in favour of the defendants 5 to 9 under Ex.B3 and the 'B' schedule items 3 and 4 were purchased in the names of the defendants 6 and 7 under Ex.B5 and the 'C' schedule items 1 to 8 were sold by Mani Mudaliar under Ex.B4 during his life time. Item 10 of C schedule is not available. Items 11 to 15 of C schedule are the properties of the 6th defendant as per Ex.B4. Items 16 to 21 of C schedule are the properties of the 7th defendant as per Ex.B4. Items of 23 and 24 of C schedule belonged to the 8th defendant as per Ex.B4 and items 35 to 49 of C schedule belong to the 5th defendant as per Ex.B4. Ex.B4 is a partition deed between the Mani Mudaliar and his sons, by which some properties were allotted to Mani Mudaliar and his sons through the 4th defendant. Therefore, the plaintiffs can claim a share as stated above in the properties allotted to Mani Mudaliar under Ex.B4 and they cannot question the properties allotted to the defendants 5 to 7 and 9 under Ex.B4. I, therefore, hold that the plaintiffs 2 to 6 and the defendants 1 to 3 and 13 are the legitimate children of Mani Mudaliar, by virtue of section 16(1) of the Hindu Marriage Act and they are entitled to claim share in the separate property of Mani Mudaliar and under Ex.B4 partition was effected between Mani Mudaliar and his sons through the 4th defendant and therefore, the plaintiffs 2 to 6 and the defendants 1 to 3 and 13 are entitled claim share in the properties allowed to Mani Mani Mudaliar under Ex.B4 and not in respect of other properties. Therefore, I also hold that the plaintiffs 2 to 6 and the defendants 1 to 3 and 13 are each entitled to 1/80th share in the properties allotted to Mani Mudaliar under Exx.B4. Hence, the point No.2 is answered accordingly holding that the plaintiffs 2 to 6 and the defendants 1 to 3 and 13 are considered as the legitimate children by virtue of section 16(1) of the Hindu Marriage Act 1955 as amended and they can claim share only in the separate property of Mani Mudaliar.
37.In the result, the Appeal Suit is partly allowed and preliminary decree is passed granting 1/80th share in favour of the plaintiffs 2 to 6 in respect of the properties allotted to Mani Mudaliar under Ex.B4 and in other aspects, the Appeal suit is dismissed. Consequently, connected Miscellaneous Petition is closed. No costs.
Index:Yes/ 28.03.2014 Internet:Yes er To The Additional Sub Court, Mayiladuthurai. R.S.RAMANATHAN, J er judgment made in A.S.No.797 of 1997 and CMP No.14078 of 1997 28.03.2014