Madras High Court
M.Thenmozhi vs Sudarsan on 21 February, 2022
Author: S.S.Sundar
Bench: S.S.Sundar
SA.No.171/2017
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 21.02.2022
CORAM:
THE HONOURABLE MR.JUSTICE S.S.SUNDAR
SA.No.171/2017 and CMP.No.3382/2017
[Virtual Mode]
1.M.Thenmozhi
2.P.Selvi .. Appellants/Defendants
Vs.
1.Sudarsan
2.Priyadharshni ..Respondents/Plaintiffs
3.The Tahsildar,
Tiruppattur .. Respondent/Defendant
Prayer:- Second Appeal filed under Section 100 of the Constitution of
India, to set aside the impugned judgment and decree dated 07.09.2016
made in AS.No.9/2015, on the file of Sub Court, Tiruppattur, in reversing
the judgment and decree dated 15.10.2014 made in O.S.No.411/2011 on
the file of the learned Principal District Munsif Court, Tiruppattur.
For Appellants : Mr.R.Veeramani
For R1 and R2 : Mr.Ravikumar Paul
Senior Advocate
For R3 : Mr.D.Harish
Government Advocate (CS)
https://www.mhc.tn.gov.in/judis
1 Page of 21
SA.No.171/2017
JUDGMENT
(1) This Second Appeal is preferred by defendants 1 and 2 in the Suit in O.S.No.411/2011 on the file of the learned Principal District Munsif Court, Tiruppattur.
(2) Respondents 1 and 2, herein as plaintiffs filed the Suit in O.S.No.411/2011 for declaration that the plaintiffs and the 1st defendant are the son and daughters of the deceased A.Paramasivam and for mandatory injunction directing the 3rd defendant in the Suit to issue the Legal Heirship Certificate in favour of plaintiffs and 1st defendant as they are the class I heirs as per the Hindu Succession Act.
(3) Brief facts that are necessary for the disposal of this Second Appeal are as follows:
(4) The 1st defendant is the daughter of one A.Paramasivam who is the ex-husband of the 2nd defendant in the Suit. The 3rd defendant is the Tahsildar of Tiruppattur who has been added as the relief of mandatory injunction is sought for against the 3rd defendant.
(5) The plaintiffs claim that they are the son and daughter of late https://www.mhc.tn.gov.in/judis
2 Page of 21 SA.No.171/2017 A.Paramasivam who died on 06.11.2010. It is their positive case that father A.Paramasivam married the 2nd defendant originally as his 1st wife and that the marriage between A.Paramasivam and 2nd defendant was dissolved by a decree dated 14.11.2000 granted by the Sub Court, Tiruppattur in HMOP.No.30/1996. (6) It is also stated by plaintiffs that plaintiffs' mother by name G.Prabhavathi and A.Paramasivam, got married on 10.04.2001 before the Sub Registrar, Gudiyatham, Vellore District and the said marriage was also entered in the register by the Sub Registrar, Guddiyatham. Stating that the plaintiffs are not the legal heirs of the deceased A.Paramasivam, the Tahsildar turned down their request for the issuance of Legal Heirship Certificate to the plaintiffs. In view of the dispute with regard to their status, plaintiffs have stated that they were constrained to file the Suit for declaration and consequential mandatory injunction. (7) The Suit was contested by the 2nd defendant denying the factum of marriage between Mr.A.Paramasivam and G.Prabhavathi, the mother of plaintiffs. It is the case of the 2nd defendant, that she had no knowledge about the divorce petition filed in https://www.mhc.tn.gov.in/judis 3 Page of 21 SA.No.171/2017 HMOP.No.30/1996 by her husband against her and therefore, there was no necessity for the 2nd defendant to file an Appeal to challenge the order in HMOP.No.30/1996. The marriage between A.Paramasivam and G.Prabhavathi as alleged in the plaint was seriously disputed by 2nd defendant and it is stated that the averments are invented for the purpose of this vexatious Suit. (8) The defendants have disputed the legitimacy of plaintiffs to claim any right over the properties of A.Paramasivam as legal heirs as per the Hindu Succession Act. The 3rd defendant in the Suit also filed a Written Statement indicating that they have no objection for issuing the Legal Heirship Certificate as directed by the Court. (9) The main issues that were framed by the Trial Court was whether the plaintiffs are the children born to A.Paramasivam out of the marriage between the said A.Paramasivam and G.Prabhavathi and whether plaintiffs and 1st defendant alone are the class I legal heirs of A.Paramasivam?
(10) After considering the evidence and pleadings the Trial Court dismissed the Suit holding that the plaintiffs have not proved their claim that they are born to A.Paramasivam out of a marriage https://www.mhc.tn.gov.in/judis 4 Page of 21 SA.No.171/2017 between A.Paramasivam and their mother by name G.Prabhavathi. Aggrieved by the same, the plaintiffs have preferred an Appeal in AS.No.9/2015 before the Sub Court, Tiruppattur. The Lower Appellate Court however allowed the appeal reversing the judgment and decree of the Trial Court and held that the marriage between A.Paramasivam and G.Prabhavathi before the dissolution of first marriage is proved. Since, the plaintiffs have proved that they are the son and daughter born to A.Paramasivam, they are entitled to declaration as prayed for, relying upon Section 16 of the Hindu Marriage Act. Aggrieved by the judgment of the Lower Appellate Court in AS.No.9/2015, reversing the judgment of the Trial Court in OS.No.411/2011 the above Second Appeal is preferred. The Second Appeal was admitted on the following substantial questions of law.
1.In the absence of pleading and proof to establish marriage or long co-habitation between the deceased (late) A.Paramasivam and the mother of the plaintiffs (late) Mrs.Prabavathy at the time of their birth i.e. 16.09.1985 and 08.05.1987 respectively, whether the Lower Appellate Court is right in conferring them legal status with the https://www.mhc.tn.gov.in/judis 5 Page of 21 SA.No.171/2017 deceased (late) A.Paramasivam?
2.Whether the exparte divorce passed under Ex.A2 against the 2nd defendant is not void and be treated as nullity in as much as it was secured by fraud? (11) Learned counsel appearing for appellants referring to several documents submitted that the Marriage Registration Certificate would only show that the marriage was solemnized on 10.04.2001 and was registered on 29.06.2001. It is contended that plaintiffs 1 and 2 were born in the years 1985 and 1986, suggesting that plaintiffs were born before the alleged marriage. In the absence of any proof to establish either marriage or cohabitation when the plaintiff's were born, it is contended that the plaintiffs are not entitled to the declaratory relief.
(12) Learned counsel submitted that the Lower Appellate Court which is expected to decide the case based on pleadings and evidence, has concluded as if plaintiffs have proved marriage on the basis of long co-habitation between deceased A.Paramasivam and the mother of plaintiffs. Pointing out that there is no pleading that the plaintiff 's mother and Mr.A.Paramasivam lived together when they were born in 1985 or 1986, learned counsel submitted that there cannot be a https://www.mhc.tn.gov.in/judis 6 Page of 21 SA.No.171/2017 legal presumption of a marriage.
(13) Learned counsel appearing for appellants also submitted that the findings of the Lower Appellate Court is not only contrary to the facts admitted and the evidence adduced but also without considering the findings of the Trial Court which are based on proper appreciation of evidence and pleadings. (14) Learned counsel then submitted that none of the document or pleading produced by plaintiffs would suggest that plaintiffs' mother G.Prabhavathi and A.Paramasivam were living together from 1985 and therefore, the status of the plaintiffs cannot be accepted merely by presumption of marriage. Learned counsel also submitted that presumption of marriage cannot be drawn in a case where the alleged marriage is during a time when second marriage is prohibited in law.
(15) Learned counsel appearing for appellants submitted that the marriage between the deceased A.Paramasivam was not even pleaded to be at a time before the birth of plaintiffs 1 and 2. It is admitted that the 1st plaintiff was born on 16.09.1985 and the 2nd defendant was born on 08.09.1987. However, the Marriage https://www.mhc.tn.gov.in/judis 7 Page of 21 SA.No.171/2017 Certificate only shows that marriage was on 10.04.2001. Recording a marriage alleged to have been solemnized in 2001, the certificate cannot be accepted as a valid piece of evidence to prove a marriage before the birth of plaintiffs.
(16) Learned senior counsel appearing for respondents pointed out that plaintiffs have also pleaded in paragraph 5 to the effect that plaintiffs' mother and their father were living together before the order of divorce and out of the matrimonial relationship between himself and plaintiffs' mother G.Prabhavathi, the plaintiffs were born. Though it is true that the plaint specifically refers to a marriage between plaintiffs' mother and A.Paramasivam before plaintiffs were born, this Court is unable to find any specific plea with regard to the exact date or some indication about the details of marriage between plaintiffs' mother and A.Paramasivam in an acceptable form any time prior to the birth of plaintiffs. (17) The Trial Court has found several discrepancies in the evidence of plaintiffs, and held that plaintiffs have not even proved the factum of marriage by any acceptable evidence. It is to be noted that the Trial Court has observed that there is no cogent evidence even to https://www.mhc.tn.gov.in/judis 8 Page of 21 SA.No.171/2017 suggest that the plaintiffs' mother and A.Paramasivam were living together as husband and wife by a long period so as to draw a presumption of actual marriage. The Lower Appellate Court though considered the evidence, ultimately held that the marriage between plaintiffs' mother and A.Paramasivam is established only by drawing a presumption and not on the basis of any positive evidence. It is to be noted that the presumption under Section 114 of the Evidence Act, regarding marriage is rebuttable. When it is admitted by plaintiffs that a marriage was solemnized in 2001, another marriage earlier about 16 years back cannot be presumed. (18) In the present case, the question raised by appellants is whether the marriage can be presumed merely by admitting long co-habitation by plaintiffs' mother and A.Paramasivam as husband and wife especially when the marriage between A.Paramasivam and the second defendant was in force till 2000 when it was dissolved by order of Court.
(19) This Court is unable to agree with the submission of the learned counsel appearing for appellants that the decree obtained in 2000 is not binding on second defendant as no summon was served on the https://www.mhc.tn.gov.in/judis 9 Page of 21 SA.No.171/2017 2nd defendant, in the absence of any attempt made by appellants to question the decree granted by the Sub Court, Tiruppattur in HMOP.No.30/1996 dated 14.11.2000.
(20) The peculiar factual position in the present case is that the children of G.Prabhavathi, the plaintiffs though were accepted as children of A.Paramasivam they were born in 1985 and 1987 before the marriage. Unless there was a marriage in any acceptable form between A.Paramasivam and G.Prabhavathi (plaintiffs' mother) before the birth of plaintiffs, the plaintiffs cannot be treated as legitimate children for the purpose of claiming any right to inherit the property of the deceased father. It is well settled that illegitimate son of a male Hindu is not entitled to any share in the property of father. This position is not changed by Section 16. Only the children of a valid marriage, despite the said marriage being null and void shall be legitimate children to inherit the properties of parents.
(21) Learned counsel appearing for appellants relied upon the judgment https://www.mhc.tn.gov.in/judis 10 Page of 21 SA.No.171/2017 of a learned Single Judge of this Court in the case of Kalaiammal and others Vs. Chenniappa Gounder and others reported in 2014 (1) MWN (Civil) 28. It is held that a person cannot claim presumption of marriage between a male and female by long co- habitation, when one of them is already married and the marriage is subsisting. This legal position has been accepted by this Court in several cases and the judgments of this Court have also been quoted with approval by the Hon'ble Supreme Court. (22) Learned counsel relied upon the judgment of the Hon'ble Division Bench of this Court in the case of Rajambal & Others Vs. Veeramuthu Udayar & Others reported in 99 Law Weekly 175(DB) for the proposition that the burden is entirely on the plaintiffs to prove the marriage. The Hon'ble Division Bench after referring to Section 35, while considering the admissibility of birth certificate to prove paternity came to the conclusion that only an entry made by a public servant in the discharge of his official duties that is admissible and other particulars based on information furnished by mother or other are not admissible under Section 35 of the Evidence Act.
https://www.mhc.tn.gov.in/judis 11 Page of 21 SA.No.171/2017 (23) It is also held that the name of child recorded in the birth registration extract was inadmissible under Section 35 of the Evidence Act as the particulars of the entries are made on the basis of information furnished to the public officer. (24) Learned counsel appearing on either side relied upon the judgment of the Hon'ble Division Bench of this Court in the case of Mohan & another Vs. Santha Bai Ammal & Others reported in 1989 (2) Law Weekly 197(DB).
(25) The Hon'ble Division Bench in the said judgment has dealt with the issues regarding proof of marriage and the evidentiary value of birth extract register, school certificate and marriage register. As regards presumption of marriage from long co-habitation, the Court specifically held that there cannot be presumption when the husband described the wife as “mgpkhd kidtp”. The Hon'ble Division Bench has relied upon a few judgments of this Court, and held that principle to draw presumption of marriage out of long co- habitation cannot be applied in all cases. In the judgment, it is seen that the Hon'ble Division Bench has also quoted a few judgments to support the proposition that the 2nd marriage cannot be presumed https://www.mhc.tn.gov.in/judis 12 Page of 21 SA.No.171/2017 by long co-habitation when the 2nd marriage is prohibited. (26) When the 2nd marriage is prohibited under any statute or customary law, this Court finds that the issue is settled that there is no presumption of a second marriage.
(27) Learned counsel appearing for appellants also relied upon the judgment of this Court in the case of K.Munuswami Gounder & Another Vs. M.Govindaraju & 4 Others reported in 1995(1) Law Weekly 487 (DB).
(28) The Division Bench has held that factum of marriage should be proved based on evidence and cannot be by presumption when there are sufficient evidence to show that no marriage could have taken place.
(29) On the other hand, learned counsel appearing for respondents relied upon the Hon'ble Supreme Court in the case of Easwari Vs. Parvathi and Others reported in (2014) 15 Supreme Court Cases
255. The decision of this Court earlier vide judgment dated 22.07.2003 was affirmed by the Hon'ble Supreme Court. It is to be noted that judgment in the case of Mohan & Another Vs. Santha Bai Ammal & Others reported in 1989 (2) Law Weekly 197 (DB) https://www.mhc.tn.gov.in/judis 13 Page of 21 SA.No.171/2017 which is also referred to earlier in the previous paragraphs, is quoted with approval by the Hon'ble Supreme Court. (30) Therefore, this Court find merits in the submission made by the learned counsel for appellants. Learned Senior Counsel appearing for respondents relied upon judgment of this Court in a case of S.Veerasamy Chettiar and Others Vs. Union of India Rep. By Secretary to Government (Revenue) Government of Puducherry and Others reported in 2019 SCC Online Mad 6577. It was a case where appellants before this Court contended that they are the legal heirs of the deceased Veeraswamy Chettiyar born through his 1st wife and the respondents therein made a claim before the Lower Court on the basis of presumption of marriage by long cohabitation that they are the children of the deceased 2nd wife. The Reference Court answered in favour of the contesting respondents and an appeal was preferred by the legal heirs of the deceased Veeraswamy Chettiyar. The Hon'ble Division Bench has held as follow:
“9.Section 5 of the Act speaks about the conditions which are required for a valid marriage. https://www.mhc.tn.gov.in/judis
14 Page of 21 SA.No.171/2017 Sections 11 and 12 of the Act deal with void and voidable marriages. Under Section 11 of the Act, when a man and wife marry each other, notwithstanding the fact that he/she or both of them were married earlier, the same would be termed as void marriage. When we speak about a void marriage it gives the status of a nullity. Such a nullity would start from the date on which the marriage was conducted. Therefore, there is a marked difference between the marriage which is void and voidable. However, when we come to Section 16, a child born from such a void or voidable marriage are given the same status. The object and rationale behind Section 16 is to give an element of respectability to the child born from such a relationship. After all, the aforesaid Section has got a laudable object behind. Inasmuch as the same has been introduced by way of social reform, such a relationship shall not affect a child who has got nothing to do with the conduct of the father or mother, as the case may be.
10.A marriage can be void or voidable, but the status of father and mother can never change. That is the import of Section 16 of the Act.
Resultantly, this provision also gives social status and rights to the child born from such a relationship. Therefore, such a welfare legislation will have to give benefit to the child born even before or after the commencement of the Marriage Laws (Amendment) Act, 1976. In such view of the matter, the word ‘marriage’ is to be given a wider import. As we discussed earlier, the legislation is to give a benefit to the child born from such a relationship. In the case on hand, the documents produced by the contesting respondents, especially Exs.R15 to R18, would clearly show that the deceased Veerasamy Chettiar has himself acknowledged the parentage of the children, which https://www.mhc.tn.gov.in/judis 15 Page of 21 SA.No.171/2017 in turn would amount to acknowledgment of the relationship between him and the deceased second wife. That itself would be sufficient enough to bring the case of the respondents within the rigor of Section 16 of the Act. Hence, the contentions raised by the learned counsel by placing reliance on Sections 5, 11 and 12 of the Act, in our considered view, cannot be countenanced. A technical interpretation given would have the effect of defeating the laudable object under Section 16 of the Act.” (emphasis supplied) (31) The object of Section 16 of the Hindu Marriage Act as it was considered by the Hon'ble Division Bench in the context has no application to the facts. Learned counsel also relied upon the Hon'ble Division Bench of this Court in the case of Seerangamal & Others Vs. E.B.Venkatsubramanian & Others reported in CDJ 1985 MHC 199, wherein the Division Bench has held as follows:
“22.The other point taken by defendants is, if the origin was one of concubinage, it continues to be so for ever, and that once a concubinage always a concubinage. It depends upon facts and circumstances of each case. During the lifetime of a wife, an irresponsible husband may develop incestuous relationship with another woman, but if he continues the said relationship after the death of his wedded life, and thereafter lives exclusively with the other woman treating her as his wife and begets children through her; and recognises them as legitimate children; lives together as a family for ever to the knowledge of the general public and if https://www.mhc.tn.gov.in/judis
16 Page of 21 SA.No.171/2017 the documents executed by him confer rights upon them in any of his properites with unstinted intention to treating them as wife and children; then, as pointed out in the decisions above referred to, the evidence on record must be taken into account cumulatively to conclude on wifehood. Hence, for the reasons stated above, the first three aspects relied upon as if they are destructive factors, do not in any manner outweigh the other weighty materials on record in favour of first plaintiff, and which have been referred to above.” (emphasis supplied) (32) However in one of the judgments referred to above that is, in Mohan & another Vs. Santha Bai Ammal & Others reported in 1989 (2) Law Weekly 197(DB) Hon'ble Division Bench of this Court has held as follow:
“..........15.On a careful consideration of these decisions and the facts involved in the present case, we find that none of the decisions referred to above can be of any help to the plaintiffs in this case. On facts, we have come to the conclusion that there is absolutely no proof about the alleged marriage of PW 2 with late Subbarayalu Naidu and that she was living with him only as his "mgpkhd kidtp"
as evidence by the registered documents Exs. Bl and B2. In those circumstances, the presumption of marriage arising out of long cohabitation as husband and wife does not arise in this case.
16. Learned Counsel for the appellants draws out attention to the observations made in the decision in Seerangamal (died) v. E.B. Venkata- subramaniam (supra), above referred to the effect https://www.mhc.tn.gov.in/judis 17 Page of 21 SA.No.171/2017 that the term “itg;g[ kidtp” used in the document filed in that case would not be conclusive to show that the lady was only a concubine and not the wife. In that case, it was found that she was not in a position to repudiate the description made in that particular document under certain peculiar circumstances in which she was placed. In spite of such a description being found in the document, there was overwhelming evidence in that case to show that the woman was treated as a legally wedded wife. In this circumstances, the Bench came to the conclusion that the said description is of no significance in considering the status of the woman. But, in this case we find that PW 2 herself has declared her status as "(In vernacular)" in the release deed Ex. B2 executed by her in favour of Subbarayalu Naidu. Therefore the observations found in the said case cannot be relied upon for the purpose of proving the marriage of PW 2.
17. On a careful and anxious consideration of the entire oral and the documentary evidence adduced in this case, we are unable to come to a different conclusion from the one that has been arrived at by the trial court regarding the marriage of P.W. 2. Therefore, we hold that the Plaintiff's mother P.W. 2 is not the legally wedded wife of late Subbarayalu Naidu, and the plaintiff's are not the legitimate children of Subbarayalu Naidu and as such they are not entitled to succeed to his properties as his heirs.” (emphasis supplied) (33) In the present case, this Court is able to see several infirmities in the judgment of Lower Appellate Court while reversing the judgment and decree of the Trial Court. As it has been repeatedly https://www.mhc.tn.gov.in/judis 18 Page of 21 SA.No.171/2017 held by this Court and approved by the Hon'ble Supreme Court, there cannot be presumption of marriage by long cohabitation by a man and woman when one of them is already married and the said marriage is in existence at the relevant point of time. In the present case the facts discussed in detail by the Trial Court, as borne out from records clearly indicate that the evidence let in by the plaintiffs would not support the case of plaintiffs. (34) Unless factum of marriage is established, there is no scope for giving any relief to plaintiffs. Having regard to the admitted factual possession, since the Lower Appellate Court has miserably failed to note several precedents which are binding, this Court is unable to sustain the judgment and decree of the Lower Appellate Court. It is admitted by PW1 as follows:
“vd; jhahUf;Fk;. jfg;gdhUf;Fk;. jpUkz cwt[ ,y;yhj nghnj eh';fs; gpwe;Jtpl;nlhk; vd;why; rhpjhd;////// eh';fs; gpwe;j fhyj;jpy;
vd; jhahUf;Fk; vd; jfg;gdhUf;Fk;
fztd;. kidtp vd;w rl;lg;goahd cwt[
Kiw ,y;iy vd;why; rhpjhd;//////”
Hence, Section 16 of the Hindu Marriage Act does not give https://www.mhc.tn.gov.in/judis
19 Page of 21 SA.No.171/2017 legitimacy to plaintiffs to get a share in the property of father or to get a declaration as prayed for in the Suit. (35) The question of law raised by appellants are answered in favour of appellants. The Second Appeal is Allowed. The Suit in O.S.No.411/2011 stands dismissed.
(36) In the result, the Second Appeal is Allowed setting aside the judgment and decree passed by the Sub Court, Tiruppattur dated 07.09.2016 made in AS.No.9/2015, confirming the judgment and decree passed by the Principal District Munsif Court dated 15.04.2014 made in O.S.No.411/2011 No costs. Consequently, connected Civil Miscellaneous Petition is closed.
21.02.2022 cda Internet : Yes S.S.SUNDAR, J., cda https://www.mhc.tn.gov.in/judis 20 Page of 21 SA.No.171/2017 To
1.The Sub Court, Tiruppattur.
2.The Principal District Munsif Court, Tiruppattur.
3.The Section Officer, VR Records, High Court, Chennai.
SA.No.171/2017
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