Madras High Court
Rajaselvi vs Meenatchi on 17 August, 2017
Author: T.Ravindran
Bench: T.Ravindran
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 17.08.2017 Date of Reserving the Judgment Date of Pronouncing the Judgment 02.08.2017 17.08.2017 CORAM THE HONOURABLE MR.JUSTICE T.RAVINDRAN A.S.No.276 of 2004 and M.P.(MD) Nos.1 of 2011 & 1 of 2013 and C.M.P.(MD) No.6506 of 2017 1.Rajaselvi 2.Maheswari ... Appellants -vs- 1.Meenatchi 2.Ponnu Velammal 3.Karthigairani ... Respondents PRAYER: Appeal is filed under Section 96 of the Code of Civil Procedure to set aside the Judgment and Decree, dated 27.09.2002 made in O.S.No.66 of 1985, on the file of the Sub Court, Periyakulam. !For Appellants : Mr.M.Thirunavukkarasu ^For Respondents : No appearance for R1 Mr.R.Vijayakumar for R2 & R3 :JUDGMENT
Impugning the Judgment and Decree, dated 27.09.2002, passed in O.S.No.66 of 1985, on the file of the Sub Court, Periyakulam, the first appeal has been preferred by the plaintiffs.
2. The suit in O.S.No.66 of 1985 has been laid by the plaintiffs for partition and separate possession of the suit properties.
3. The averments contained in the plaint are briefly stated as follows:
3.1. The suit properties originally belonged to Murugapillai alias Rathinam Pillai and he died intestate on 24.11.1976 and when he was alive, he had taken Rajammal as his wife and through her, the plaintiffs were born and all along Rajammal was living with Rathinam Pillai and Rathinam Pillai had two elder sisters, namely, Palaniammal and Sakunthala and at the instance of his sisters, Rathinam Pillai had married Rajeswari, who is the daughter of Sakunthala, as his second wife and through Rajeswari, the defendants 1 to 3 were born to Rathinam Pillai. Rathinam Pillai had shown equal affection to all his daughters and he spent for their eduction and after his death, the second wife Rajeswari had developed contact with one Viputhi Veeramuthuswamy and thereby, she eloped with him and also took away the first defendant along with her and subsequently, the plaintiffs learnt that Rajeswari married Viputhi Veeramuthuswamy and the two other daughters of the deceased Rathinam Pillai, namely, defendants 2 and 3, were under the care and custody of their aunt Palaniammal. Hence, Rajeswari as such is not entitled to any share in her husband's properties on account of her above said conduct and as misunderstandings had arisen between the parties and the plaintiffs finding that it is no longer possible to be in the joint possession of the suit properties and thereby demanded partition and separate possession and inasmuch as the defendants did not come forward to effect amicable partition of the same, according to the plaintiffs, they had been necessitated to lay the suit for partition claiming their 2/5th share in the same. Further, according to the plaintiffs, if the Court for any reason comes to the conclusion that the marriage of Rathinam Pillai with Rajammal is not proved, still she being kept as the exclusive mistress of the deceased Rathinam Pillai, the plaintiffs should be treated as his illegitimate children and thus, would be entitled to 1/4th share in the suit properties.
4. The averments contained in the written statement filed by the defendants 2 and 3 in brief are as follows:
4.1. The suit properties originally belonged to Murugapillai alias Rathinam Pillai and it is correct to state that Rathinam Pillai died intestate on 24.11.1976. It is false to state that he had taken Rajammal as his wife when he was alive and the plaintiffs were born through Rajammal out of the above said alleged marriage between Rajammal and Rathinam Pillai and it is false to state that Rajammal was all along living with Rathinam Pillai. The date of marriage has not been given in the plaint for the reasons best known to the plaintiffs. It is true that Rathinam Pillai had two sisters, namely, Palaniammal and Sakunthala. It is false to state that Rathinam Pillai had married Rajeswari, who is the daughter of Sakunthala, as his second wife, on the other hand, Rajeswari was the only wife of Rathinam Pillai and out of the said wedlock, the defendants were born to Rathinam Pillai and Rajeswari. The plaintiffs are not the daughters of Rathinam Pillai and he expired on 24.11.1976. It is false to state that after his death, Rajeswari developed contact with one Vibuthi Veeramuthuswamy and eloped with him and took the first defendant along with her. It is true that she married Vibuthi Veeramuthuswamy and leading a married life with him. It is false to state that Rajeswari is not entitled to claim any share in suit properties. The plaintiffs not being the legal heirs of the deceased Rathinam Pillai, they cannot be deemed to be in joint possession of the suit properties and it is false to state that the plaintiffs demanded partition of the suit properties and the defendants failed to effect amicable partition. Rathinam Pillai never married Rajammal and the same had also been described by Rathinam Pillai in the settlement deed effected by him in favour of Rajammal and the plaintiffs are, thus, not entitled to claim share in the suit properties as the legal heirs of the deceased Rathinam Pillai and the Court fee paid is incorrect and hence, the suit is liable to be dismissed.
5. On the basis of the pleadings set out by the respective parties, the following issues were framed by the Trial Court:
i. Whether the plaintiffs are entitled to obtain the decree as prayed for in the plaint?
ii. Whether the plaintiffs are the legal representatives of the deceased Rathinam Pillai?
iii. Whether the suit is maintainable? iv. Whether the Court fee paid by the plaintiffs is correct? and v. To what relief the plaintiffs are entitled to?
6. In support of the plaintiffs' case, P.Ws.1 to 4 were examined and Exs.P1 to P17 were marked and on the side of the defendants' D.Ws.1 and 2 were examined and Exs.D1 to D13 were marked.
7. On a consideration of the oral and documentary evidence adduced by the respective parties, the Court below was pleased to dismiss the suit.
Challenging the same, the present appeal has been preferred.
8. Pending first appeal, the appellants have filed M.P.(MD) No.1 of 2011, under Order XLI Rule 27 C.P.C., for reception of certain documents as additional evidence in support of their case.
9. The averments contained in the affidavit appended to the said miscellaneous petition are briefly stated as follows:
9.1. The appellants have preferred the appeal impugning the Judgment and Decree of the Court below rendered in their suit for partition and separate possession and according to them, they were unaware of the legal issues involved in the suit and the school transfer certificate of the first appellant got misplaced and thereby, she preferred a complaint to the S.I. of Police, Uthamapalayam Police Station, who issued a non-traceable certificate to her on 31.07.2011 and they are now able to get the four documents detailed in the petition being marriage invitation card of the second appellant, birth certificate of a female child born to Rajammal and Rathinam Pillai on 20.12.1970, school transfer certificate issued to the first appellant by Mohamed Fathima Girls High School, Uthamapalayam and the certificate issued by S.I.of Police, Uthamapalayam Police Station, which would clinchingly establish the appellants / plaintiffs case that they are the legal heirs of the deceased Rathinam Pillai and hence, according to them, the said documents should be received as additional documents in this appeal and hence, the miscellaneous petition.
10. The averments contained in the counter affidavit of the respondents 2 and 3 / defendants 2 and 3 to the said miscellaneous petition are briefly stated as follows:
10.1. The said miscellaneous petition is not maintainable either in law or on facts. The documents sought to be produced as additional documents cannot be received in evidence as such. The alleged birth certificate of the second appellant / second plaintiff shows that she was born in Madurai. However, there is no pleading in the plaint that at any point of time, Rajammal and the deceased Rathinam Pillai were residing in Madurai and further the said document being obtained during the pendency of the appeal cannot be received in evidence and it is not admissible in evidence. The marriage invitation card of the second appellant / second plaintiff is inadmissible as in the settlement deed marked as Ex.D1, it has been clearly averred by the deceased Rathinam Pillai that the second plaintiff is the daughter of Rajammal and not his daughter and hence, the said document is also inadmissible. Further, the school transfer certificate of the first appellant / first plaintiff shows the date of birth as 17.03.1962, whereas the school transfer certificate already produced and marked as Ex.D11 shows her date of birth as 04.05.1962 and the name of her parents as Shanmugavel and Rajammal and further in Column No.19, it is shown as the first appellant has studied 6th to 8th Standards during the academic year 1973 ? 1974, which is unbelievable and hence, the said document is also not genuine and inadmissible in evidence. Further, the certificate issued by S.I.of Police, Uthamapalayam Police Station, is not genuine and would not in any manner advance the case of the appellants / plaintiffs and further inasmuch as the ingredients of Order XLI Rule 27 C.P.C., have not been complied with and the documents sought to be produced are found to be in contravention of the pleadings and the evidence already adduced, the above said miscellaneous petition is liable to be dismissed.
11. In addition to the above said miscellaneous petition, the appellants / plaintiffs have also filed C.M.P.(MD) No.6506 of 2017 under the same provision of law for reception of the marriage registration certificate of the first appellant / first plaintiff as an additional document in support of their case.
12. The averments contained in the affidavit appended to the said miscellaneous petition are briefly stated as follows:
12.1. The petitioners / appellants have laid the first appeal impugning the Judgment and Decree rendered by the Court below in the suit laid by them for partition and separate possession. It is stated that the marriage of the first appellant / first plaintiff was solemnized with P.W.4 at Arulmigu Meenakshi Sundareswarar Temple, Madurai, on 21.01.1977 and the same was registered, wherein her father's name was mentioned as M.R.P.Rathinam Pillai and the name of the village was mentioned as Uthamapalayam and further, the deceased Rathinam Pillai had put his signature in the marriage register and the marriage registration certificate had come to the knowledge of the first appellant / first plaintiff only recently and obtained the certificate of the same from the Officer concerned and hence, the said document should be received in evidence as additional document to substantiate her case and hence, the petition.
13. The averments contained in the counter affidavit of the respondents 2 and 3 / defendants and 3 to the said miscellaneous petition are briefly stated as follows:
13.1. The miscellaneous petition is not maintainable either in law or on facts and as per the oral evidence tendered on the side of the plaintiffs, the marriage of the first appellant / first plaintiff took place at Thiruparankundram Temple, however, the present additional document sought to be marked states that her marriage had taken place at Arulmigu Meenakshi Sundareswarar Temple, Madurai, which goes to show the contradictions in the case of the plaintiffs and further, the deceased Rathinam Pillai, who is alleged to have signed in the marriage register for the marriage of the first appellant / first plaintiff at Meenakshi Amman Temple, Madurai, which took place on 21.01.1977, but the fact remains that Rathinam Pillai died on 24.11.1976 as averred in Paragraph No.4 of the plaint and hence, the projected additional document is false and it is a forged document and not admissible in evidence and further, the ingredients of Order XLI Rule 27 have not been complied with and hence, the petition is liable to be rejected.
14. The following points arise for consideration in this first appeal:
i. Whether Rajammal is the legally wedded wife of the deceased Rathinam Pillai?
ii. Whether the appellants / plaintiffs are the legal heirs of the deceased Rathinam Pillai born to him out of the lawful wedlock with Rajammal? iii. Whether the appellants / plaintiffs are entitled to claim partition and separate possession of their respective shares in the suit properties as claimed in the plaint?
iv. Whether Rajeswari is the legally wedded wife of the deceased Rathinam Pillai and whether the respondents / defendants are the children of the deceased Rathinam Pillai?
v. To what relief the appellants / plaintiffs are entitled to? and vi. Whether the miscellaneous petitions in M.P.(MD) No.1 of 2011 and C.M.P.(MD) No.6506 of 2017, under Order XLI Rule 27 C.P.C., are entitled for acceptance?
POINT NOS.I TO IV:
15. The plaintiffs have laid the suit claiming partition and separate possession in the suit properties on the footing that Rathinam Pillai married their mother Rajammal and out of the said wedlock, they were born and thus, they are the legal heirs of the deceased Rathinam Pillai, who died on 24.11.1976 and further, it is the case of the plaintiffs that Rathinam Pillai had married one Rajeswari, who is none other than the daughter of his elder sister, namely, Sakunthala, as his second wife and out of the said wedlock, the defendants were born and thus, according to the plaintiffs, they and the defendants are the children of the deceased Rathinam Pillai and thus, it is the case of the plaintiffs that they are entitled to their respective shares in the suit properties as the legal heirs of the deceased Rathinam Pillai and hence, the suit for the above mentioned reliefs. The plaintiffs have also taken a plea in the plaint itself that in case the Court holds that Rajammal is not married to Rathinam Pillai and that she had been kept as the exclusive mistress of the deceased Rathinam Pillai, the status of the plaintiffs shall be treated as the illegitimate children of the deceased Rathinam Pillai and thus, they are entitled to get their respective shares in the suit properties and accordingly, the relief should be moulded in their favour.
16. The defendants have taken a specific defence that Rajammal is not the legally wedded wife of the deceased Rathinam Pillai as projected by the plaintiffs and at no point of time, Rajammal lived with Rathinam Pillai as his wife and it is the further case of the defendants that the plaintiffs are not the children born to Rathinam Pillai through Rajammal and the plaintiffs are not the legal heirs of the deceased Rathinam Pillai. It is the further case of the defendants that the deceased Rathinam Pillai married only Rajeswari during his lifetime and out of the said wedlock, the defendants were born to him and Rajeswari and thus, it is contended that it is only the defendants, who are the legal heirs of the deceased Rathinam Pillai and therefore, the plaintiffs cannot lay any claim or share in the suit properties.
17. It is not in dispute that the suit properties belonged to the deceased Rathinam Pillai. Originally, when the suit had come to be laid, the second plaintiff, being a minor, it is found that Rajammal was shown as the mother and guardian of the minor second plaintiff. It is therefore found that on the date of laying of the suit, Rajammal was alive. Therefore, the immediate question that arises for consideration is, if according to the plaintiffs Rajammal is the legally wedded wife of the deceased Rathinam Pillai, then she would also be entitled to claim her due share in the suit properties left behind by the deceased Rathinam Pillai. However, it is found that only the plaintiffs have chosen to lay the suit for partition and separate possession leaving their mother away. This itself raises a suspicion as to whether Rajammal is the legally wedded wife of the deceased Rathinam Pillai.
18. Be that as it may, though the plaintiffs in the plaint would claim that the deceased Rathinam Pillai had married Rajammal, as put forth by the defendants, it is strange that the plaintiffs have not whispered anything in the plaint averments as to when the marriage between Rathinam Pillai and Rajammal had taken place, the venue of the marriage and the persons, who had attended the marriage etc. All that has been stated in the plaint is that Rajammal was taken as the wife of Rathinam Pillai and through Rajammal, the plaintiffs were born. As adverted above, the defendants have taken a specific plea in the written statement that Rajammal is not the legally wedded wife of the deceased Rathinam Pillai and that no marriage took place between Rathinam Pillai and Rajammal as per law and further, they have also taken a specific plea that the plaintiffs were not born to the deceased Rathinam Pillai and Rajammal and hence, the plaintiffs are not the legal heirs of the deceased Rathinam Pillai. Such being the defence projected by the defendants, it could be seen, as rightly argued by the learned counsel for the defendants 2 and 3, that the best person, who could throw light on the factum of the marriage between Rathinam Pillai and Rajammal, would be only Rajammal. If according to the plaintiffs Rajammal was the legally wedded wife of the deceased Rathinam Pillai and if she is his first wife as pleaded in the plaint, the defendants having repudiated the same in black and white, it is for the plaintiffs to examine their mother Rajammal to establish their case, but peculiarly, they have not chosen to examine Rajammal to substantiate their case. This would only go to show as rightly determined by the Court below that inasmuch as the plaintiffs' case that Rajammal married Rathinam Pillai is not true and the plaintiffs were not born to Rathinam Pillai through Rajammal, it is found that the plaintiffs though were in possession of the best evidence, did not evince any interest to project the same for the reasons best known to them. This further raises a strong suspicion in the case projected by the plaintiffs.
19. The plaintiffs, in order to establish the factum of marriage between Rajammal and the deceased Rathinam Pillai, have adduced oral evidence through P.Ws.1 to 4. P.W.1 is the first plaintiff and as seen from the evidence tendered by her during both chief as well as the cross-examination, as rightly found the Court below, admittedly her evidence regarding the factum of the marriage of Rajammal and Rathinam Pillai being only a hearsay evidence and when further according to P.W.1, she had derived the knowledge of the same only through her mother Rajammal, it is rightly held by the Court below, the evidence of P.W.1 would not in any manner serve the case of the plaintiffs. Therefore, it is found that the evidence of P.W.1 cannot be taken into consideration for upholding the plaintiffs' case.
20. The next witness P.W.2 ? Rajangam would claim to have attended the wedding reception of the marriage between Rajammal and Rathinam Pillai at Uthamapalayam. It is, therefore, found that he had not attended the alleged marriage between Rajammal and Rathinam Pillai. According to P.W.2, as seen from his evidence that the marriage between Rajammal and Rathinam Pillai took place during 1959 or 1960. However, based upon the above said oral evidence of P.W.2, as rightly held by the Court below, we cannot safely conclude that a valid marriage had taken place between Rajammal and Rathinam Pillai as deposed by P.W.2 when the fact remains that he has not witnessed the marriage. That apart, it is also found that P.W.2 was under the employment of P.W.4 ? Manikandan, who is none other than the husband of P.W.1.
Therefore, it could be seen that the evidence of P.W.2 has to be accepted only with the pinch of salt and cannot be relied upon straightaway to accept the case of the plaintiffs.
21. P.W.3 ? Munusamy has also admitted that he has only heard about the marriage, which took place between Rajammal and Rathinam Pillai. However, according to him, he had attended the wedding reception, which took place at the Karnam house at Uthamapalayam and on the basis of the above piece of evidence, the plaintiffs have endeavoured to establish the factum of marriage between Rajammal and the deceased Rathinam Pillai. However, as rightly found by the Court below, his evidence cannot also be accepted as the same being in the nature of the hearsay evidence. Further, P.W.3 has also admitted that he is cultivating the lands of P.W.4 ? Manikandan on othi basis. Therefore, it is found that P.W.3 is also an interested evidence and his evidence, without any basis or material, cannot be relied upon to accept the plaintiffs' case.
22. From the evidence of P.Ws.2 and 3, it is found that the plaintiffs' case is that the wedding reception of Rajammal and Rathinam Pillai took place at the Karnam house, Uthamapalayam. As seen earlier, according to them, the marriage took place during 1959 or 1960. In this connection, Manikandan, who is the husband of P.W.1 and examined as P.W.4, has deposed that the marriage between Rajammal and Rathinam Pillai took place at Srivilliputtur Krishnan Temple in 1959 and further he has clearly admitted that Rathinam Pillai married Rajarajeswari on 08.02.1962 and the marriage invitation card pertaining to the said marriage is Ex.D6 and further, he has also admitted that on the previous day i.e., on 07.02.1962, reception was held and the above said function was conducted in Karnam house at Uthamapalayam. A perusal of Ex.D6 coupled with the admission of P.W.4 would go to show that on 08.02.1962, the marriage between Rathinam Pillai and Rajarajeswari took place in the newly constructed house of Rathinam Pillai at Uthamapalayam and it is also found that on the same date, the housewarming ceremony of the newly constructed house was also celebrated and in such view of the matter, when the housewarming ceremony of the newly constructed house i.e., Karnam's house at Uthamapalayam was celebrated only on 08.02.1962 along with the marriage of Rathinam Pillai and Rajarajeswari, the case of the plaintiffs as spoken to through P.Ws.2 and 3 that the wedding reception of Rathinam Pillai and Rajammal took place in Karnam house at Uthamapalayam cannot be believed as the Karnam house had been completely constructed only on 08.02.1962. Therefore, the above aspect of the matter also throws a serious doubt in the case projected by the plaintiffs that Rajammal had been taken as the wife of Rathinam Pillai through a lawful wedlock. It is not out of place to mention here that P.W.4 is none other than the brother of Rajarajeswari and therefore, as rightly found by the Court below, P.W.4 is competent to depose about the marriage of his sister Rajarajeswari with Rathinam Pillai and therefore, it is found that through the evidence of P.W.4 and the document marked as Ex.D6 i.e., wedding invitation card, the lawful marriage between Rajarajeswari and Rathinam Pillai had been duly established. As regards the evidence of P.W.4 with reference to the alleged marriage between Rajammal and the deceased Rathinam Pillai, it could be seen that he is also not in the know of things directly and in such view of the matter, his evidence cannot also be relied upon to hold that there has been a valid marriage between Rajammal and Rathinam Pillai.
23. In the light of the above said discussions, it is found that the case of the plaintiffs that Rathinam Pillai had taken Rajammal as his first wife and only thereafter, he married Rajeswari as the second wife is not true. On the other hand, the oral evidence tendered by the plaintiffs to establish the alleged marriage between Rajammal and the deceased Rathinam Pillai being of the above nature, which could not be safely relied upon for the reasons afore-stated and when there is no convincing material to hold that there has been a valid lawful marriage between Rajammal and the deceased Rathinam Pillai, it is found that the case of the plaintiffs as regards the above fact cannot be upheld, particularly, solely based on the oral evidence of P.Ws.1 to 4.
24. The defendants have examined Rathinam Pillai's sister, namely, Palaniammal as D.W.1. As rightly found by the Trial Court, D.W.1 being the eldest person in the family, would be in the know of things about the marital status of Rathinam Pillai, he being her brother, it is found that the evidence of D.W.1 requires consideration in this matter. As seen from the evidence of D.W.1, it is found that Rajammal and her husband, namely, Shanmugavel were in the employment at the house of Rathinam Pillai and in such circumstances, according to D.W.1, there has been an illegitimate relationship between Rajammal and Rathinam Pillai and as the said issue had cropped up at one point of time, according to D.W.1, Rajammal was taken by her husband to her native place at Rajapalayam and therefore, it is found from the evidence of D.W.1 that there has been some illegitimate connection or relationship between Rajammal and Rathinam Pillai at that point of time and the same had not developed into any valid marriage as such between them and it is further found that Rajammal even at that point of time was married to one Shanmugavel. Therefore, it is found that Rajammal being the legally wedded wife of Shanmugavel and when it is further found that the plaintiffs have miserably failed to establish the factum of marriage between Rajammal and Rathinam Pillai as projected by them and when it is found that Rathinam Pillai was having only illicit relationship with Rajammal, it is seen that Rajammal at no point of time has been taken or treated as the wife of Rathinam Pillai either by Rathinam Pillai or by the Society at large.
25. In this lis, the letters said to have been sent by Rajammal to Rathinam Pillai have been marked as Exs.D8 to D10 and that the said letters are written only by Rajammal has been admitted and her signatures in the said letters had come to be marked as Exs.D3 to D5. Therefore, the Court below has taken into consideration the contents of the above said letters to assess the merits of the case at hand. It is not the case of the plaintiffs that the above said letters have not been written by Rajammal. Further, to controvert that the above said letters have not been written by Rajammal, the plaintiffs have not chosen to examine their mother Rajammal with reference to the same. Therefore, no fault could be attributed on the part of the Court for relying upon the contents of the above said letters for determining the issues involved in the matter. It is found from Ex.D8 that there is a clear reference by Rajammal herself that her husband is only Shanmugavel and such being the position, the case of the plaintiffs that Rajammal had married Rathinam Pillai as such cannot be accepted in any manner. Further, as seen from the contents of Ex.D10, it is found that only the illicit relationship of Rajammal with Rathinam Pillai was adverted to and the said letter, dated 03.04.1963, would only probablize the case as spoken to by D.W.1 that during the stay of Rajammal at Rathinam Pillai's house, when she was in employment, there has been some illicit relationship between them and therefore, it is found that the same had been adverted to by Rajammal in Ex.D10. Therefore, the contents of Ex.D10 would also only improbablize the case of the plaintiffs that she is the legally wedded wife of the deceased Rathinam Pillai. That apart, the contents of Ex.D9 would go to show that following the estrangement between the couples i.e., Rajammal and Shanmugavel, it is found that Shanmugavel and his family members demanded the custody of the first plaintiff from Rajammal and she had refused to accede to the request stating that she cannot handover the custody of the first plaintiff, she being the girl baby. From the contents of Ex.D9, it is found that the demand for the custody of the first plaintiff was made by Shanmugavel and his family members on the footing that the first plaintiff was born to Shanmugavel through Rajammal. This piece of evidence would only go to show that inasmuch as Rajammal was the wife of Shanmugavel and the first plaintiff was born to them through the said wedlock, it is found that Shanmugavel as a matter of right demanded the custody of the first plaintiff following the difference of opinion between them. Therefore, the contents found in Exs.D8 to D10, which had not been repudiated by Rajammal or by the plaintiffs as the case may be, only go to establish the falsity of the plaintiffs' case that Rathinam Pillai had married Rajammal and taken her as his wife and that the plaintiffs are the children born to Rathinam Pillai through Rajammal.
26. In addition to that it is found that Rathinam Pillai had executed a settlement deed in favour of Rajammal, which has come to be marked as Ex.D1 and on a perusal of the same, would only go to show that therein Rathinam Pillai has only described Rajammal as his ?mgpkhd!;jphp? and not his wife as such and further, he has described the plaintiffs in the said settlement deed as only the daughters of Rajammal and not as his daughters. This also would only strengthen the defence version put forth by the defendants that Rathinam Pillai had never taken Rajammal as his wife at any point of time and further, inasmuch as the plaintiffs were not born to Rathinam Pillai through Rajammal, he has described the plaintiffs as the daughters of Rajammal and not as his daughters. The above said averments contained in Ex.D1 cannot be repudiated by the plaintiffs inasmuch as the plaintiffs thereafter along with their mother had alienated the subject property under Ex.D2 and therefore, it is found that through Ex.D1, the defendants have exposed the falsity of the plaintiffs' case. That apart, on the same date of Ex.D1, Rathinam Pillai had executed settlement deeds marked as Exs.D12 and D13 in favour of Rajarajeswari and her children, namely, defendants, wherein he has clearly described Rajarajeswari as his wife and the defendants as his children and therefore, Rathinam Pillai being fully aware about the status of Rajarajeswari and the defendants born to him through her has clearly spelt out the said relationship in the above said documents and accordingly, he also being aware of the status of Rajammal has clearly described her as his ?mgpkhd!;jphp? in Ex.D1. Therefore, the above documents marked as Exs.D1, D12 and D13 cumulatively would only go to establish that Rajammal is not the legally wedded wife of the deceased Rathinam Pillai and that the plaintiffs were not born to the deceased Rathinam Pillai through Rajammal.
27. The marriage between Rajammal and Shanmugavel having come to be established or in other words, Rajammal being the wife of Shanmugavel, which fact having been admitted by Rajammal herself in Ex.D8 and when the said marriage has not been annulled in the manner known to law, it is found that as rightly determined by the Court below and also invoking Section 112 of the Indian Evidence Act, inasmuch as it is only Rajammal and Shanmugavel, who had been having access to each other during the continuance of their marriage, it is found that even the second plaintiff born to Rajammal is only an offspring through Shanmugavel and therefore, it cannot be held that the second plaintiff was born to Rajammal through Rathinam Pillai without any basis or material.
28. However, the plaintiffs have projected the transfer certificate of the second plaintiff as Ex.P2 to show that Rathinam Pillai was the father of the second plaintiff. However, a perusal of Ex.P2 would only go to show that the second plaintiff therein has been described as Maheswari.R, thereby alone it cannot be construed that the initial ?R? stands for Rathinam Pillai without any material or hold. As rightly found by the Court below, ?R? may also denote her mother Rajammal and therefore, by Ex.P2 alone it cannot be construed that there bas been a valid marriage between Rajammal and Rathinam Pillai as put forth by the plaintiffs and that the second plaintiff Maheswari was born to Rathinam Pillai through Rajammal. Therefore, Ex.P2 would not in any manner support of the plaintiffs' case. The marriage invitation card of the first plaintiff with P.W.4 has been marked as Ex.P3 and this document is relied upon by the plaintiffs on the footing that in the same, the deceased Rathinam Pillai has been shown as the father of the first plaintiff. As rightly found by the Court below, the said invitation card has come be printed after the death of Rathinam Pillai and it has not been established as to who had been instrumental in bringing the above said printing card. Therefore, the mere reference of Rathinam Pillai as the father of the first plaintiff in the invitation card marked as Ex.P3 after his death alone would not in any manner lead to the conclusion that Rajammal had been taken as the lawful wedded wife by the Rathinam Pillai and that the first plaintiff was born out of the said wedlock. On the other hand, when it is found that Shanmugavel is the husband of Rajammal and when it is not clear on what basis the above said description had come to be incorporated in the invitation card, it is found that the same cannot be the deciding factor for upholding the plaintiffs' case.
29. The other document on which the plaintiffs have placed reliance is Ex.P8, which is the proposal given to the Insurance Corporation by Rathinam Pillai in respect of the first plaintiff. Merely on the basis of the same, when it has not been established that the contents found in the same are mooted by Rathinam Pillai and further when any further action has been initiated thereupon, as rightly determined by the Court below, the same having not been established to have emanated from deceased Rathinam Pillai, in my opinion, the said document cannot be considered as a valid piece of evidence to accept the plaintiffs' case.
30. On the other hand, it is seen from Ex.D11, the birth certificate of the first plaintiff, which document is not in dispute, it is found that the first plaintiff is stated to have been born on 03.05.1962 at Uthamapalayam South Street and the name of the parents of the first plaintiff has been clearly stated as Shanmugavel and Rajammal. Therefore, when it is found from Ex.D11 that the first plaintiff is shown to have been born only to Shanmugavel and Rajammal, the whole case of the plaintiffs get belied on the above said document also and therefore, the reference about Rathinam Pillai as the father of the first plaintiff in Exs.P3 and P8 could not in any manner be believed and equally, the reference of the second plaintiff as R.Maheswari in Ex.P2 also would not serve any purpose to establish the plaintiffs' case. Coupled with the facts that as discussed above, when Rajammal herself has admitted that she is only the wife of Shanmugavel as seen from Ex.P8 and also refused to handover the custody of the first plaintiff to Shanmugavel as being the female daughter and when Rathinam Pillai himself has described Rajammal only as his ?mgpkhd!;jphp? and the plaintiffs as the daughters of Rajammal in Ex.D1, all these facts cumulatively would only go to establish that there has been no marriage at all muchless a valid marriage between Rajammal and the deceased Rathinam Pillai and consequently, it is found that the plaintiffs are not the children born to Rathinam Pillai through Rajammal out of the said wedlock.
31. In support of his contentions, the learned counsel for the plaintiffs placed reliance upon the decisions reported in 2004-TLNJ-383 [V.V.Kannan and another vs. K.Sridhar], 2008 (3) LW 471 [Chandrammal and others vs. S.Sankar (died) and others], 2009 (3) CTC 760 [Balamani and another vs. S.Balasundaram], 2009 (4) CTC 440 [K.V.Ramasamy vs. K.V.Raghavan and others], 2009 (9) SCC 52 [R.Mahalakshmi vs. A.V.Anantharaman and others] and 2010 (2) CTC 622 [Kuppan vs. Muniammal and another]. Similarly, the learned counsel for the defendants 2 and 3 placed reliance upon the decisions reported in 2008(1) MLJ 1253 (SC) [K.R.Mohan Reddy vs. Net Work INC.], 2017 (1) MWN(C) 225 [S.K.P.Subramaniam and another vs. S.K.Chinnarsaj (Deceased) and others], 2015 (4) LW 509 [Baby @ Rohini (Deceased) and others vs. Kamalam Kumerasan and others], 1995 (1) LW 487 [K.Munuswami Gounder and another vs. M.Govindaraju and others] and 1989 (2) LW 197 (DB) [Mohan and another vs. Santha Bai Ammal and others]. The principles of the law outlined in the above said decisions are taken into consideration and followed as applicable to the facts and circumstances of the case at hand.
32. Considering the fact that the plaintiffs have miserably failed to establish that there has been a valid marriage between Rajammal and Rathinam Pillai and that the plaintiffs have been born out of the said wedlock or even born to him through Rajammal illegally, it is found that the plaintiffs as such are not entitled to claim any share in the suit properties even on the footing that they are the illegitimate children of Rathinam Pillai and accordingly, it is found that the plaintiffs are not entitled to invoke Section 16(1) of the Hindu Marriage Act for claiming the limited reliefs as prayed for in the plaint.
33. In the light of the above discussions, I hold that Rajammal is not the legally wedded wife of the deceased Rathinam Pillai, I further hold that the plaintiffs are not the children of the deceased Rathinam Pillai. Consequently, I hold that the plaintiffs are not entitled to claim any partition and separate possession of their respective shares in the suit properties as prayed for. I further hold that Rajeswari is the legally wedded wife of the deceased Rathinam Pillai and the defendants are the children of the deceased Rathinam Pillai. Accordingly, Point Nos.I to IV are answered against the plaintiffs and in favour of the defendants.
POINT NO.VI:
34. During the appeal proceedings, the plaintiffs have chosen to file two miscellaneous petitions for the reception of additional evidence, under Order XLI Rule 27 C.P.C., in order to substantiate their case. Under M.P.(MD) No.1 of 2011, they seek to produce four documents as additional evidence. As regards the first document, namely, marriage invitation of the second plaintiff dated 15.12.1985, as rightly argued by the learned counsel for the defendants 2 and 3, the said document / invitation card has come into existence after the death of Rathinam Pillai and therefore, it could be seen that Rathinam Pillai cannot be construed as the author of the said document. That apart when Rathinam Pillai has described the plaintiffs as the daughters of Rajammal in Ex.D1, it is found that the above said document would not in any manner advance the case of the plaintiffs and that apart no valid reason has been adduced by the plaintiffs as to why they have not chosen to mark the said document before the Court below.
35. The second document, namely, birth certificate, dated 28.07.2011, which according to the plaintiffs would show that Rathinam Pillai was the father of the female child mentioned therein through Rajammal, has come to be issued by Madurai Corporation and when there is no plea in the plaint that at that point of time, Rajammal was living as the wedded wife of Rathinam Pillai at Madurai and on the other hand, when the evidence disclose as pointed out earlier that Rajammal was the wife of Shanmugavel, it is found that the above said document / birth certificate would also not in any manner be helpful to sustain the case of the plaintiffs.
36. The third document, namely, the school transfer certificate projected by the plaintiffs would only go to show that the date of birth of the first plaintiff is 17.03.1962, whereas her birth certificate had also been marked as Ex.D11, wherein her date of birth is shown as 04.05.1962 and her parents are described as Shanmugavel and Rajammal. On the other hand, the projected document shows that her date of birth is 17.03.1962 and described her father as P.Rathinam and further it is also mentioned that during one academic year, the first plaintiff had studied Standards VI to VIII. This also is found to be against the pleadings already set out in the plaint and evidence of the parties and hence, the same cannot be countenanced and no explanation whatsoever is placed as to why the said document has not been marked in the Court below.
37. The fourth document, namely, the certificate issued by the Police Department regarding loss of transfer certificate. However, as rightly argued by the learned counsel for the defendants 2 and 3, the said document not shown to be established by the due authority as per law, by producing the other connected documents, it is found that the said document also cannot be accepted as additional document in support of the plaintiffs' case.
38. Through C.M.P.No.6506 of 2017, the plaintiffs are endeavouring to mark the marriage certificate of the first plaintiff and P.W.4, which would only go to that the marriage had taken place at Meenakshi Amman Temple, Madurai. But, in the evidence deposed in the matter, the marriage is said to have been taken place at Thirupparankundram Temple and therefore, on the face of it, the said projected document is found to be unacceptable. That apart, when it has been admitted in black and white in the plaint that Rathinam Pillai had died on 24.11.1976, the case of the plaintiffs that Rathinam Pillai had signed in the marriage register of the first plaintiff, which took place on 21.01.1977 also would expose the falsity of the document and therefore, as rightly put forth by the learned counsel for the defendants 2 and 3, the said document also does not merit acceptance for reception of the same as additional evidence.
39. The above documents sought to be produced as additional evidence during the course of this appeal are not marked during the original suit proceedings. It has not been explained by the plaintiff properly as to why the said documents had not been marked before the Court below. The case of the plaintiffs that they had come to know about the said documents only recently as such cannot be straightaway accepted. When the case of the plaintiffs has been stoutly resisted by the defendants in all aspects, the plaintiffs knowing about their status even at that point of time should have endeavoured to mark all the documents in support of their case before the Court below. On the other hand, failing to do and subsequently when their case has been thrown out by the Trial Court and the plaintiffs now coming forward with the plea that only recently they had come to know of the above said documents and therefore, the same should be received as additional evidence, cannot be accepted without any material to substantiate their case. That apart, as rightly argued by the learned counsel for the defendants 2 and 3, when the above said documents are not referred to in the plaint and further also not disclosed during the course of evidence tendered by the plaintiffs one way or the other and on the other hand, when the documents projected are found to be inconsistent with the pleadings set out in the plaint and also the evidence adduced in the matter and further, when it is found that the above said petitions for the reception of the additional evidence also do not comply with the ingredients of Order XLI Rule 27 C.P.C., as rightly put forth by the learned counsel for the defendants 2 and 3, the above said petitions preferred for the reception of the additional evidence cannot be accepted and hence, they are dismissed. Accordingly, Point No.VI is answered.
POINT NO.V:
40. In conclusion, i. The Judgment and Decree, dated 27.09.2002, passed in O.S.No.66 of 1985, on the file of the Sub Court, Periyakulam, are confirmed and resultantly, the first appeal is dismissed with costs;
ii. M.P.(MD) No.1 of 2011 and C.M.P.(MD) No.6506 of 2017 are also dismissed; and iii. Consequently, the other connected M.P.(MD) No.1 of 2013 is closed.
To:
The Sub Judge, Periyakulam.
.