Madras High Court
S. Rangaraj vs R.R. Subbayan And Ors. on 22 January, 1990
Equivalent citations: II(1990)DMC277
JUDGMENT Nainar Sundaram, J.
1. This first Appeal is by the first defendant in O.S. No. 267 of 1975 on the file of the Subordinate Judge, Coimbatore. The respondents herein areas follows : The first-respondent is the first-plaintiff; the second-respondent is the second-plaintiff; the third-respondent is the third-defendant and the fourth-respondent is the fourth-defendant. Defendants 2 and 5 in the suit have been given up in the Appeal. The parties shall be referred to by us as per their array in the suit for the sake of convenience. The plaintiffs laid the suit for partition and separate possession, each of the plaintiffs claiming a one-third share and they conceded the remaining one-third share for the first-defendant. The relationship amongst the parties is as follows : The first-plaintiff earlier married the fifth-defendant, she was divorced by a decree of divorce on 23-6-1961 in O.P. No. 54 of 1961 on the file of the Subordinate Judge, Coimbatore. During the subsistence of the marriage between the first-plaintiff and the fifth-defendant, the children born to them are the first-defendant, the son and the second-defendant, the daughter. The first-plaintiff married the fourth-defendant after the decree for divorce with regard to his marriage with the fifth-defendant. The children born out of the wedlock between the first-plaintiff and the fourth-defendant are the second-plaintiff, the son and the third-defendant, the daughter.
2. In our view, the real controversy in the suit centers around three moot questions and, in fact, they were the questions argued by the learned counsel appearing for the parties, and they are :
(i) Whether the marriage of the first-plaintiff with the fourth-defendant was invalid on account of the fact that it came to be solemnised before the lapse of one year after the decree for divorce was obtained with regard to the marriage of the first-plaintiff with the fifth-defendant and consequently the second-plaintiff could not claim the status of a legitimate son of the first-plaintiff and on that basis ask for an independent share in the entirety of the joint family properties;
(ii) Whether on account of the registration of the marriage between the first-plaintiff and the fourth-defendant under the Special Marriage Act 43 of 1954, hereinafter referred to as the Act 43 of 1954, there was a severance in status, as contemplated under Section 19 of Act 43 of 1954 and hence the second-plaintiff could not claim an independent one-third share in the entirety of the joint family properties and he could claim only a share in the share of his father-the first plaintiff in the entirety of the joint family properties, on the basis of their relationship;
(iii) Whether the properties other than the properties set out in Schedule 'B' to the plaint; claimed by the first-plaintiff as his self-acquisitions, are joint family properties available for division ?
3. The Court below, however, as per the pleadings, put forth by the parties, initially framed eleven issues and they have been supplemented by two more issues as follows :
"1. Whether the plaintiffs 1 and 2 are not entitled to 1/3rd share each in the plaint properties ?
2. Whether the marriage of the plaintiff with Srimathi Soundari is void ?
3. Whether the 2nd plaintiff is not the legitimate son of the plaintiff ?
4. Whether the plaintiff married his second wife under the Special Marriage Act ?
5. Whether there was any severence in status by operation of law?
6. Whether the first-plaintiff is liable to account for the income ?
7. Whether the first-plaintiff blended his professional income from the family lands ?
8. Whether there are other joint family properties except those set out in the plaint ?
9. Whether the suit is bad as one for partial partition ?
10. Whether the suit is bad for non-joinder of parties ?
11. To what relief ?
Additional Issue framed on 24-8-1978 :
What is the provision to be made for third defendant for her maintenance, marriage expenses and educational expenses ?
Additional Issue framed on 23-11-1978 :
What is the provision to be made for the 4th defendant for her maintenance ?"
4. The parties placed their evidence, oral and documentary, and that was the subject matter of consideration by the Court below and on Issue Number 2, the Court below held that the marriage between the first-plaintiff and the fourth defendant having come to be performed before the lapse of the prohibited period of one year after the grant of the decree for divorce between the first-plaintiff and the fifth-defendant, is not a valid one. On Issue Numbers 4 and 5, the Court below held that the marriage between the first-plaintiff and the fourth-defendant took place only according to the Hindu rites and caste customs and the registration of the said marriage under Act 43 of 1954 was only for record purposes and hence there was no severence in status by operation of law as per Section 19 of Act 43 of 1954. On Issue Number 3, the Court below held that the second plaintiff is not the legitimate son of the first-plaintiff. On Issue Numbers 7 and 8, the Court below held that there are no properties other than those set out in the plaint that could be given a character of joint family properties, since there was no blending, as alleged by the first-defendant. As a result, on Issue Number 9, the Court below held that the suit is not bad for partial partition. Taking up Issue No. 10, the Court below found that the lacuna of non-joinder got rectified, subsequent to the filing of the written-statement of the first-defendant by the plaintiffs, adding on the proper parties. On Issue Number 1, the Court below held that because there was no severance in status by operation of law and by virtue of Section 16(1) of the Hindu Marriage Act, 1955, the second-plaintiff would also be entitled to a one-third share in the entirety of the estate. On Issue Number 6, the Court below found that there was no income to be accounted for by the first-plaintiff. With regard to additional issue relating to the provision for the fourth-defendant, that was disposed of in accordance with the compromise between the parties. With regard to the additional issue relating to the provision for the third-defendant, taking note of the admission by the plaintiffs themselves in their reply statement, such a provision was given to the third-defendant. As a result, the Court below granted decree as follows :
"In the result, the suit is decreed for partition of the plaint B Schedule properties into three equal shares and to allot one such share each to the plaintiffs 1 and 2. Out of one-third share which is to be allotted to the first plaintiff, 40 cents extent of properties has to be set apart to the fourth defendant in lieu of her maintenance in full quit. The provisions to be made for the third defendant for her maintenance, marriage expenses and educational expenses have to be taken into consideration at the time of passing final decree. In the circumstances of the case, the parties are directed to bear their respective costs."
5. Here before us, the first question that was concentrated upon by Mr. C. Chinnaswami, learned counsel for the first defendant is that the court below having found that the marriage between the first plaintiff and the fourth defendant is invalid on account of the same taking place before the lapse of the prohibited period of one year from the date of the decree of divorce between the first plaintiff and the fifth defendant and further having found that the second plaintiff could not claim the status of a legitimate son of the first plaintiff, ought not to have granted the second/ plaintiff a one-third share in the entirety of the joint family properties. Learned counsel for the first-defendant would contend that the second-plaintiff, if at all could claim only a share in the share of the first-plaintiff in the entirety of the joint family properties on the basis of their relationship. The factual position that has emerged from the evidence in the case is that the ceremony of marriage as per the Hindu rites and caste customs was gone through between the first-plaintiff and the fourth-defendant even before the lapse of the prohibited period of one, year. Though Mr. E. Padmanabhan, learned counsel for the plaintiffs, made an attempt to impeach this finding of the Court below, he could not succeed in his endeavours. However, learned counsel for the plaintiffs, banked more on the legal impact and implications that have come into play by virtue of the amendments introduced into the Hindu Marriage Act 1955 by the Marriage Laws (Amendment) Act 68 of 1976, hereinafter referred to as Act 68 of 1976. Section 15 of the Hindu Marriage Act 1955 before its amendment by Act 68 of 1976 stood as follows :
"When a marriage has been dissolved by decree of divorce and either there is no right of appeal against the decree, or if there is such a right of appeal, the time for appealing has expired without an appeal having been presented, or an appeal has been presented but has been dismissed, it shall be lawful for either party to the marriage to marry again :
Provided that it shall not be lawful for the respective parties to marry again unless at the date of such marriage at least one year has elapsed from the date of the decree in the court of the first instance."
The position before the amendment introduced by Act 68 of 1976 was, a re-marriage solemnised by either party in defiance of the rule laid down in the proviso to Section 15 prohibiting the same for a period of one year from the date of the decree for divorce of the Court of first instance is invalid, though not void. It is only on the basis of the proviso to Section 15 of the Hindu Marriage Act, 1955, it is argued that the marriage of the fourth-defendant with the first-plaintiff was invalid and the off-spring of such a marriage could not claim legitimacy. But, Section 10 of Act 68 of 1976 omitted the proviso to Section 15 of the Hindu Marriage Act, 1965. As to how the omission of the proviso will have impact on the proceedings between the parties pending at the commencement of Act 68 of 1976 can be gathered from Section 39 of Act 68 of 1976, which reads as follows :
"39. Special Provision as to pending cases : (1) All petitions and proceedings in causes and matters matrimonial which are pending in any court at the commence of the Marriage Laws (Amendment) Act, 1976, shall be dealt with and decided by such court--
(1) if it is a petition or proceeding under the Hindu Marriage Act, then so far as may be, as if it had been originally instituted therein under the Hindu Marriage Act, as amended by this Act;
(ii) if it is a petition or proceeding under the Special Marriage Act, then so far as may be, as if it had been originally instituted therein under the Special Marriage Act, as amended by this Act.
(2) In every petition or proceeding to which Sub-section (1) applies, the court in which the petition or proceedings is pending shall give an opportunity to the parties to amend the pleadings, in so far as such amendment is necessary to give effect to the provisions of Sub-section (1), within such time as it may allow in this behalf and any such amendment may include an amendment for conversion of a petition or proceeding for judicial separation into a petition or proceeding, as the case may be, for divorce."
The patent implication of Section 39 of Act 68 of 1976 is that all the petitions and proceedings in causes and matters matrimonial, which are pending in any Court at the commencement of Act 68 of 1976 and referred to in that provision, shall be dealt with and decided by such court as per the amended provisions. It could be said that the present lis is not a petition or a proceeding in a cause or a matter matrimonial, contemplated in Section 39 of Act 68 of 1976, and hence there is no warrant to rely on that provision. We are looking into Section 39 of Act 68 of 1976, only for the purpose of ascertaining how the Legislature wanted and intended the amended provisions to be given effect to in matters and causes matrimonial pending at the commencement of Act 68 of 1976. The intention of the Legislature ia obvious and that is, the proviso to Section 15 of the Hindu Marriage Act 1955 must be held to be non-existing from the inception, to decide rights of parties in matters and causes matrimonial pending between them at the commencement of Act 68 of 1976. The enumeration of and reference to proceedings in Section 39 of Act 68 of 1976 is only indicative of the general intention of the Legislature to give effect to the amendments retrospectively and should not be taken to be exhaustive. After all, the question of invalidity of a marriage solemnised in breach of the rule in the Proviso to Section 15 of the Hindu Marriage Act, 1955, before its deletion by Act 68 of 1976 cannot be said to arise only in petitions and proceedings set out and referred to in Section 39 of Act 68 of 1976 and it may relevantly arise even in other types of litigations continued to be pending between the parties at the commencement of Act 68 of 1976, and which involved matters and causes, matrimonial and to deny them the benefits of the amendments would amount to discrimination and would defeat the very intendment behind the Legislation. This is the latent implication of the said provision. The present lis was one, which was pending at the time of commencement of Act 68 of 1976. Here in the present lis, a question has arisen with reference to the validity of the marriage between the first plaintiff and fourth defendant and certainly that is an issue relating to a matrimonial matter and cause between the parties. If viewed in that light, the rights of parties in the lis which continued even on the date of the coming into force of Act of 1976 and continued even until this date has got to be decided as per the amended provisions. Decided so, then the prohibition regarding solemnisation of a marriage before the lapse of one year from the date of the decree of divorce, set out in the proviso to Section 15 of the Hindu Marriage Act, 1955, has got to be ignored as non est from the inception and the result is, it is not possible to frown upon the marriage between the first plaintiff and the fourth defendant as suffering any legal infirmity so as to make it invalid. With regard to the legitimacy of the second plaintiff, once it is held that the marriage between the first plaintiff and the fourth defendant could survive without suffering any legal infirmity, the offspring of such a marriage, namely, the second plaintiff could certainly claim legitimacy. The implications and impact brought about by the amendments introduced by Act 68 of 197.6 were lost sight of by the Court below when it held that the marriage between the first plaintiff and the fourth defendant was invalid and as such the offspring of such a marriage, namely the second plaintiff, could not claim legitimacy.
6. The answer to this question, as we have given above, may bring solace to the fourth defendant and the second plaintiff, to claim the status of a lawful wife and a legitimate son respectively but does not solve the controversy with reference to rights in property. With reference to property rights, the second question mooted out by us, as above, looms large and is being concentrated upon by the learned counsel appearing for the parties. The court below, despite its findings that the second plaintiff could not claim legitimacy, granted him a one-third share in the entirety of the joint family properties placing reliance on Section 16(1) of the Hindu Marriage Act, 1955 to treat him as a legitimate son. This reliance is the subject matter of attack by the learned counsel for the first defendant, by pointing out the implications of Sub-section (3) of Section 16 of the Hindu Marriage Act, 1955, apart from saying that Sub-section (1) of Section 16 of the Hindu Marriage Act, 1955 itself would not be attracted to the case on hand, because the present case is not one of a marriage being null and void as contemplated in the provision. There is no need to go into these aspects at all, because in our view Sections 18 and 19 of Act 43 of 1954, settle the issue in favour of the pleas of the first defendant, to give the second plaintiff a share only in the share of his father, namely the first plaintiff. The marriage between the first-plaintiff and the fourth-defendant has to be taken to have been solemnised as per the Hindu rites and caste customs on 27-8-1961. But, the said marriage was registered on 31-10-1962 under Act 43 of 1954. The second-plaintiff was admittedly born in the year 1965 though the exact date has not come out in evidence. Section 18 of Act 43 of 1954 found in Chapter III thereof by its terms says that marriages celebrated in other forms when they are registered under Chapter III shall be deemed to be marriages solemnised under Act 43 of 1954 and Section 19 of Act 43 of 1954 says that the marriage solemnised under Act 43 of 1954 shall be deemed to effect a severence in a Hindu family. The contention of Mr. C. Chinnaswami, learned counsel for the first-defendant, is that this legal implication was omitted to be taken note of by the Court below when it held that there was no severence in status by operation of law. As already noted, the second-plaintiff was born only in 1965 after the registration of the marriage between the first-plaintiff and the fourth-defendant under Act 43 of 1954 on 31-10-1962. On such registration, the severence in status had become effective as between the first-plaintiff and the first-defendant, each entitled to a half share in the joint family properties. The, apparent result is the second-plaintiff could claim only a share in the half share of the first-plaintiff as his son and not an independent one-third share in the entirety of the joint family properties. The view of the Court below that the registration of the manage under Act 43 of 1954 was only for record purposes is obnoxious to the working of the provisions of Act 43 of 1954. There is no question of marriages though gone through in other forms, registering under Act 43 of 1954 only for record purposes, without the legal results flowing therefrom. Registration brings in the statutory consequences therefor. Hence, we discountenance this line of thinking on the part of the Court below.
7. To get over the apparent results, Mr. E. Padmanabhan, learned counsel for the plaintiffs, would submit that the legal fiction introduced in Section 18 of Act 43 of 1954 must be confined to the sphere of that section alone and there is no warrant to extend it beyond that sphere. Section 18 of Act of 1954 reads as follows :
"18. Effect of registration of marriage under this chapter : subject to the provisions contained in Sub-section (2) of 24 where a certificate of marriage has been finally entered in the Marriage Certificate Book under this Chapter, the marriage shall, as from the date of such entry, be deemed to be a marriage solemnised under this Act, and all children born after the date of the ceremony of marriage (whose names shall also be entered in the Marriage Certificate Book) shall in all respects be deemed to be and always to have been the legitimate children of their parents.
Provided that nothing contained in this section shall be construed as conferring upon any such children any rights in or to the property of any person other than their parents in any case where, but for the passing of this Act, such children would have been incapable of possessing or acquiring any such rights by reason of their not being the legitimate children of their parents."
Section 18 is found in Chapter III of Act 43 of 1954 under the caption registration of marriage celebrated in other forms. That Chapter by itself is not intended to enumerate and set out the consequences of marriages solemnised under Act 43 of 1954. Chapter IV, which follows Chapter III, speaks about the consequences of marriages under Act 43 of 1954. It is in Chapter IV, Section 19 is found and the wording of Section 19 runs as follows :
"19. Effect of marriage on number of undivided family:--The marriage solemnised under this Act of any member of an undivided family who professes the Hindu, Buddhist, Sikh or Jain religion shall be deemed to effect his severance from such family."
It must be noted here that Section 21A introduced into chapter IV of Act 43 of 1954, by Section 22 of Act 68 of 1976, making Section 19 inapplicable to marriages between Hindus solemnised under Act 43 of 1954, is not made retrospective in operation. Hence, this provision could not be availed of, for the purposes of this case, where the marriage was registered on 31st October, 1962 long before Act 68 of 1976 and when severance in status, as per Section 19 of Act 43 of 1954, had taken place already.
8. It is true that Section 18 of Act 43 of 1954 has introduced a legal fiction in respect of marriages other than marriages solemnised under the Special Marriage Act, 1872 or under Act 43 of 1954 to say that when such marriages are registered under Chapter III of Act 43 of 1954, they shall be deemed to be marriages solemnised under Act 43 of 1954. In interpreting a provision creating legal fiction, the Court is entitled and bound to ascertain for what purpose the fiction is created, and after ascertaining this, the Court is to assume all those facts and consequences, which are incidental or inevitable corrollaries giving effect to the fiction. In this connection, we may advert to the propositions laid down in the following pronouncements :
(1) East End Dwellings Co. Ltd. v. Finsbury, (Borough Council (1951) II All England Law Reports 587 at 599), as per Lord Asquith of Bishopstone :
"If one is bidden to treat an imaginary state of affairs as real, one must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative state of affairs had, in fact, existed, must inevitably have flowed from or accompanied if......... The statute says that one must imagine a certain state of affairs. It does not say that, having done so, one must cause or permit one's imagination to boggle when it comes to the inevitable corrollaries of that state of affairs."
(2) St. Aubyn (L.M.) and Ors. v. Attorney-General, (1951) II All England Law Reports 473 at 498 :
"The word 'deemed' is used a great deal in modern legislation. Sometimes it is used to impose for the purposes of a statute an artificial construction of a word or phrase that would not otherwise prevail. Sometimes it is used to put beyond doubt a particular construction that might otherwise be uncertain. Sometimes it is used to give a comprehensive description that includes what is obvious, what is uncertain and what is, in the ordinary sense, impossible."
(3) State of Bombay v. Pandurang Vinayak and Ors., :
"When a statute enacts that something shall be deemed to have been done, which in fact and truth was not done, the Court is entitled and bound to ascertain for what purposes and between what persons the statutory fiction is to be resorted to and full effect must be given to the statutory fiction and it should be carried to its logical conclusion. Vide Lord Justice James in Ex parte Walton, In re Levy, (1881) 17 ch. D. 746 at page 756 (A)."
(4) State of Travancore-Cochin v. Shanmugha Vilas Cashewnut Factory, Quilon, :
"When a legal fiction is thus created, for what purpose, one is led to ask at once, is it so created ?"
(5) Commissioner of Income-tax, Delhi v. S. Taja Singh, :
"It is a rule of interpretation well settled that in construing the scope of a legal fiction it would be proper and even necessary to assume all those facts on which alone the fiction can operate."
To find out the purpose behind the creation of the legal fiction, the intention of the Legislature must be found by reading the statute as a whole. It is the most natural and genuine exposition of a statute to construe one part of a statute by another part of the statute, for that best expresseth the meaning of the makers. To ascertain the meaning of a clause in a statute the Court must look at the whole statute at what precedes and at what succeeds and not merely at the clause itself. The Court must ascertain the intention of the Legislature by directing its attention not merely to the clauses to be construed but to the entire statute; it must compare the clause with the other parts of the law, and the setting in which the clause to be interpreted occur.
9. When we look into the statement of objects and reasons for Act 43 of 1954 and in particular Clause (2) thereof, we are convinced that all the provisions of the Act are intended to benefit the persons who go through the formality of marriage as prescribed by the Act as well as those, who having already gone through other forms of marriage register those marriages under Act 43 of 1954 to avail themselves of the benefit of the provisions of Act 43 of 1954. The statement of objects and reasons for Act 43 of 1954 run as follows :
"Statement of Objects and Reasons : This Bill revises and seeks to replace the Special Marriage Act of 1872 so as to provide a special form of marriage which can be taken advantage of by any person in India and by all India nationals in foreign countries irrespective of the faith which either party to the marriage may profess. The parties may observe any ceremonies for the solemnisation of their marriage but certain formalities are prescribed before the marriage can be registered by the Marriage Officers, for the benefit of Indian citizens abroad, the Bill provides for the appointment of Diplomatic and Consular Officers as Marriage Officers for solemnizing and registering marriages between citizens of India in a foreign country.
2. Provision is also sought to be made for permitting persons who are already married under other forms of marriage to register their marriages under this Act and thereby avail themselves of these provisions.
3. The Bill is drafted generally on the lines of the existing Special Marriage Act of 1872 and the notes on clauses attached hereto explain some of the changes made in the Bill in greater detail."
10. With regard to Section 19, which speaks about the effect of a marriage solemnised under Act 43 of 1954, the objects and reasons run as follows :
"Objects and Reasons : The Joint Committee gave very anxious consideration to this clause as this had been made the subject of attack in many of the opinions received on the ground that it penalises marriages under this law. After careful consideration the Joint Committee have decided to retain this clause in its original form, particularly because it has the desirable effect of simplifying the law of succession. Under the clause to be omitted the share in the joint family property of a person marrying under this law will necessarily have to devolve on the survivors, which would mean that the daughters will be left out of account. Moreover, one of the chief reasons why persons marry under this law is that in case of intestate succession, the Succession Act will apply and it would be extremely inconvenient to have different laws of succession applicable to different types of property. Severance from the joint family does not, of course, prevent the parties from reuniting if they so desire."
It must be remembered that Act 43 of 1954 was anterior to the Hindu Succession Act, 1956, which brought about vast changes in Hindu women's right to property. But, at the time, Act 43 of 1954 was enacted, the Hindu Succession Act, 1956, was not there and the objects and reasons behind the provisions of Act 43 of 1954 cannot be omitted to be taken note of even though by working them it may cause hardship to a male member in the - family.
11. Mr. E. Padmanabhan, learned counsel for the plaintiffs, was more on the latter part of Section 18 of Act 43 of 1954, to say that in construing the fiction, it is not to be extended beyond the purpose for which it was created and beyond the language of the section by which it was created. In support of his submissions, the learned counsel drew our attention to the following pronouncements :
1. Bengal Immunity Co. Ltd. v. State of Bihar and Ors., .
2. Commissioner of Income-tax, Bombay City v. Amarchand N. Shrofi, .
3. Mandalsa Devi v. M. Ramnarayan Private Ltd., .
4. Commissioner of Income-tax, Bombay v. Shakuntala and Ors., .
When we construe the provisions of the entire statute to find out the purpose behind the creation of the legal fiction, it is not possible for us to tie down the implications thereof to what has been spoken of in the latter part of Section 18 of Act 43 of 1954. Merely because the latter part of Section 19 says that 'all children born after the date of the ceremony of marriage (whose names shall also be entered in the Marriage Certificate Book) shall in all respects be deemed to be and always to have been the legitimate children of their parents', it is not possible to confine the general implications of Section 18 to provide for that alone. That will be doing violence to the intendment behind the Legislation. Section 18, as already noted, has found a place in Chapter III of Act 43 of 1954, which speaks about the registration of marriages celebrated in other forms. The consequences of marriages under this Act have been in unambiguous terms set out in Chapter IV of the statute. The deeming provision is intended to place all marriages celebrated in other forms, once registered under Chapter III on par with the marriages solemnised under the Act and to have all the legal incidents of marriages solemnised under the Act. There is no qualification expressed anywhere in Act 43 of 1954 limiting the deeming provision or legal fiction to legitimacy alone. If that was the intention, there would have been coining out of specific expressions in the wording of Section 18, so as to limit the purport and the operation of the provision to Section 18 alone. By providing in that section for legitimacy of children born out of marriages solemnised in other forms, after they get registered under Act 43 of 1954 (the names of such children getting entered in the Marriage Certificate Book)--it is not possible to surmise that the legal fiction should be confined only to achieve that result. It is significant to note that in Section 24(2) found in Chapter VI, dealing with nullity of Marriage and Divorce, there is a specific exclusion of marriages deemed to be solemnised under Act 43 of 1954. Section 24 as a whole reads as follows :
"24. (1) Any marriage solemnized under this Act shall be null and void (and may, on a petition presented by either party thereto against the other party to be so declared) by a decree of nuility if--
(i) any of the conditions specified in Clauses (a), (b), (c) and
(d) of Section 4 has not been fulfilled ; or
(ii) the respondent was impotent at the time of the marriage and at the time of the institution of the suit ;
(2) Nothing contained in this section shall apply to any marriage deemed to be solemnized under this Act within the meaning of Section 18 but the registration of any such marriage under Chapter III may be declared to be of no effect if the registration was in contravention of any of the conditions specified in Clauses (a) to (e) of Section 15.
Provided that no such declaration shall be made in any case where an appeal has been preferred under Section 17 and the decision of the District Court has cheele (not) from Section of Act become final."
Section 18 is subject to Section 24(2), with regard to obtaining a declaration on the ground of contravention of conditions set out in Clauses (a) to (e) of Section 15. There is no exclusion of marriages deemed to be solemnised under Act 43 of 1954, from the operation of Section 19. Learned counsel for the plaintiffs would place reliance on a pronouncement of a Bench of the High Court of Calcutta Laona v. Shyamal, in support of his submission to confine the operation of the legal fiction in Section 18 of Act 43 of 1954 to it only. In that case, the couple had the marriage celebrated under Hindu form and rites and thereafter had it registered under Act 43 of 1954. The wife presented a petition under Section 25 of Act 43 of 1954 for annulment of the Hindu marriage by a decree of nullity. The Court below dismissed the wife's petition. On appeal, the only question that called for consideration is whether a marriage celebrated in other forms but registered under Chapter III of the Special Marriage Act, 1954 can be declared a nullity under the provisions of the Special Marriage Act, 1954, under Section 25 because of the effect of registration of such marriage read with Section 18 of the Act which says inter alia that the marriage shall 'be deemed to be solemnized under this Act' referring them to the Special Marriage Act, 1954" the learned Judges of the Bench of the High Court of Calcutta, took note of Sections 18, 24 and 42 of Act 43 Of 1954, and answered the question against the wife. The learned Judges were not called upon to decide the impact of Section 18 found in Chapter III on Section 19 found in Chapter IV. It is true that there is an observation with reference to Section 18 as follows :
"It is thus seen that it is only for the purpose of sanctioning legitimacy to certain class of children that a marriage celebrated in other form and registered under the Special Marriage Act shall be deemed to be a marriage solemnized under the said Act and for no other purpose."
But, this observation can only be characterised as obiter and not the ratio decidendi of that case. If that should be construed otherwise, with respect, we are not able to concur with that. Our understanding and apprehension of the legal implications, being what they are, as expressed by us above, lead us to conclude that the second-plaintiff could claim only a share in the share of the first-plaintiff and he cannot claim an independent one-third share in the entirety of the joint family properties.
12. The third contention putforth by learned counsel for the first-defendant is with reference to the blending claimed by his client. This contention could not have any sanctity at all in view of the' admission of the first defendant himself examined as DW 1. He admitted in his oral evidence that the ancestral properties were not yielding any income ; and that other properties were purchased by the first-plaintiff only from his professional income. There is complete dearth of evidence with regard to the professional income of the first-plaintiff getting acquainted and blended with the income from the ancestral properties and with regard to acquisition of the properties by the first plaintiff from and out of the funds of the joint family properties. It is true that in C.M.P. Nos. 12674, 11725 and 11726 of 1977, by order dated 24-8-1987 this Court directed the production of the documents relating to the Income-tax and Wealth-tax of the first-plaintiff. But, it has been made clear in the order of this Court that the documents to be produced are to be kept under sealed cover to be opened only, if additional documents are required for the proper disposal of the appeal. When we take note of the unambiguous admission of the first defendant examined as DW 1, it is not possible to permit him to expand his case by adduction of any further evidence. That will be unjust and unfair to the other side. Hence, we do not feel obliged to permit the first defendant to lead additional evidence on this question. More or less with the same purpose, the first defendant has preferred C.M.P. No. 14325 of 1987, and we have today dismissed it for the above reasons. On the factual materials, as they stand exposed in the case, the third contention could not survive and we reject it confirming the findings of the Court below over the same. There was no impeachment of any other finding rendered by the Court below by the first defendant in the Appeal.
13. Now we shall take up the Revision C.R.P. No. 3437 of 1980 preferred by the plaintiffs attacking the findings of the Court below with regard to the validity of the marriage between the first-plaintiff and the fourth-defendant and the legitimacy of the second-plaintiff found against by the Court below. In view of our opinion expressed on point No. 1, this Revision has got to be allowed and is allowed. No costs.
14. The result is, this appeal is allowed as follows :
(1) There will be a preliminary decree for partition of the plaint B Schedule allocating shares to the parties as
(i) One-fourth share to the first-plaintiff.
(ii) One-fourth share to the second-plaintiff and
(iii) Half share to the first-defendant.
(2) Out of the share to be allotted to the first-plaintiff, forty cents extent of properties have to be set apart to the fourth-defendant in lieu of her maintenance in full quit.
(3) Provision has got to be made for the third-defendant for her maintenance, marriage expenses and educational expenses at the time of the passing of the final decree.
(4) Considering the relationship between the parties and the nature of the litigation, we direct the parties to bear their respective costs throughout.
(5) The decree of the Court below will stand modified to the above extent.