Madras High Court
K.Jayakumar (Died) vs Koteeswaran on 17 September, 2008
Author: G.Rajasuria
Bench: G.Rajasuria
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 17.09.2008
Coram:
THE HONOURABLE MR.JUSTICE G.RAJASURIA
A.S.No.580 of 2003
and
C.M.P.Nos.1352, 1423 & 1424 of 2008
1. K.Jayakumar (Died)
2. K.Vijayakumar
3. J.Kala .... Appellants/Defendants
(3rd appellant brought on record as
L.R of the deceased first appellant
vide order of Court dated 11.08.2008
made in C.M.P.No.1351 of 2008)
vs.
1. Koteeswaran
2. Murthy ... Respondents/Plaintiffs
Appeal preferred against the judgment and decree dated 22.10.2002 passed in O.S.No.4879 of 1997 by the III Additional Judge, City Civil Court, Chennai.
For Appellants : Mr.V.Raghavachari
For Respondents : Mr.S.V.Jayaraman, Senior counsel for Mr.C.Selvaraju
JUDGMENT
This appeal is focussed as against the judgment and decree dated 22.10.2002 passed by the III Additional Judge, City Civil Court, Chennai in O.S.No.4879 of 1997, which is a suit for partition. For convenience sake, the parties are referred to here under according to their litigative status before the trial Court.
2. The parodying and portrayal of the case of the plaintiffs, succinctly and precisely, as stood exposited from the plaint would run thus:
a) One Late Madurai Chetty and his second wife Ammakannu gave birth to two children, viz., Kristappa Chetty, the father of the defendants herein and Elumalai Chetty, the father of the plaintiffs herein. The said Madurai Chetty acquired four house properties of which, two are described in the schedule of the plaint. Madurai Chetty executed a Settlement Deed dated 18.09.1926 in respect of all his four house properties with the stipulation that the two properties described in the schedule of the plaint should be enjoyed by his second wife Ammakannu and his two sons during their life time and the male issues of Madurai Chetty's sons should enjoy those properties absolutely. The said Ammakannu died and Madurai Chetty's two sons, viz., Elumalai chetty and Kristappa Chetty died on 22.12.91 and 30.11.91 respectively. Consequent upon the death of the two sons of Madurai Chetty, the plaintiffs and defendants, being the descendants of them, became the owners of the properties described in the schedule of the plaint. The other two properties not specified in the schedule of the plaint were dealt with by Elumalai Chetty and Kristappa Chetty and they disposed them of, over which, there is no controversy.
b) During the life time of Elumalai Chetty and Kristappa Chetty, the plaintiffs, even though happened to be the sons of Elumalai Chetty were denied enjoyment of the scheduled mentioned properties; whereupon O.S.No.6794 of 1988 was filed in the Court of VIII Assistant Judge, City Civil Court, Madras for rendition of accounts, for permanent injunction and for other incidental reliefs. During the pendency of such previous suit, Elumalai Chetty and Kristappa Chetty died. Subsequently, the suit was withdrawn by both of them as the same has become infructuous. After the death of Elumalai Chetty and Kristappa Chetty, the plaintiffs and the defendants have been enjoying the suit properties. Owing to family circumstances, the plaintiffs inducted the tenants into the suit properties and they are in possession on behalf of the plaintiffs. The incessant demands by the plaintiffs to the defendants for amicable partition evoked no positive response from them, which necessitated the plaintiffs to file the suit for partition.
c) The plaintiffs parents are Elumalai Chetty and Rajeswari Ammal whose marriage took place on 23.02.1956 according to Hindu Rites and Customs and during the wedlock, the first and the second plaintiff were born in the year 1957 and 1960 respectively. Misunderstanding crept in the relationship between the plaintiffs' father and mother and their father drove out their mother from the matrimonial house and neglected to maintain her and the plaintiffs, who were minors at that time. Consequently, the plaintiffs' mother filed M.C.No.745/62 as against Elumalai Chetty, before the V Presidency Magistrate Court, which Court ordered maintenance on 19.05.1962. Elumalai Chetty was paying maintenance to Rajeswari Ammal till her death on 15.04.1978.
Accordingly, they prayed for decreeing the original suit.
3. Remonstrating and refuting, controverting and contradicting, the allegations/averments in the plaint, the defendants filed the written statement with various averments, the warp and woof of them would run thus:
a) The previous suit O.S.No.6794/88 referred to in the plaint was dismissed for default at the trial stage for non-prosecution; whereupon the plaintiffs filed a petition for setting aside the order of dismissal of the said suit along with I.A.No.11665/92 for getting the 194 days delay condoned in filing such application. But the said petition was dismissed on merits, as against which, no appeal was filed. However, the plaintiffs have chosen to file this suit once again.
b) In the previous suit, Elumalai Chetty himself during his life time, filed the written statement contending that the plaintiffs are not his sons and even though Elumalai Chetty married Rajeswari Ammal, the mother of the plaintiffs on 23.02.1956, nonetheless, the plaintiffs who were born to Rajeswari Ammal were not born through Elumalai Chetty, who was suffering from tuberculosis and as per Doctor's advice Elumalai Chetty refrained from having sexual relationship with Rajeswari Ammal; whereupon, Rajeswari Ammal left the matrimonial home within a few days of marriage, expressing her desire that she could not live with Elumalai Chetty as his wife. Subsequently, Rajeswari Ammal herself informed Elumalai Chetty that she was living with one Deivasigamani. Inasmuch as the plaintiffs are not the paternal grand sons of Madurai Chetty, the original owner of the suit properties, who executed the Settlement Deed, the plaintiffs cannot claim any right over the same. The allegations to the contrary relating to enjoyment of the suit properties by the plaintiffs through the tenants are false and frivolous and the plaintiffs are having no locus standi to file the suit. The defendants are the absolute owners of the suit properties and they are in physical posession of the same. The present suit is barred by res judicata.
Accordingly, they prayed for the dismissal of the suit.
4. The trial Court framed the relevant issues. During trial, on the plaintiffs' side, the first plaintiff was examined as PW1 and Exs.A1 to A13 were marked. On the defendants' side the first defendant Jayakumar was examined as DW1 and Exs.B1 to B6 were marked. Ultimately, the trial Court decreed the suit.
5. Being aggrieved by and dissatisfied with the judgment and decree of the trial Court, the defendants filed this appal on the following grounds among others:
(i) the judgment and decree of the trial Court are against law, weight of evidence and all probabilities of the case.
(ii) The trial Court failed to hold that the plaintiffs are not the sons of Elumalai Chetty.
(iii) The trial Court failed to apply the principles of res subjudice and res judicata as against the plaintiffs suit.
(iv) Elumalai Chetty, in the previous suit denied that the plaintiffs are his sons. The plaintiffs were born to Rajeswari Ammal and Deivasigamani. Ignoring all these facts borne by evidence, the trial Court ordered partition.
(v) The trial Court blindly, placing reliance on the criminal court proceedings concerning maintenance, decreed the suit, which as per law was not the correct approach. The plaintiffs have not produced any legal heirship certificate to prove their parentage.
(vi) Exs.A9 and A10, the marriage invitation cards relating to first and second plaintiffs are the self-serving cooked up documents and the trial Court did not take into account the falsities in the case of the plaintiffs.
(vii) The oral evidence of the defendants clearly exemplified and demonstrated that Elumalai Chetty and Rajeswari Ammal never cohabited with each other and Elumalai Chetty had no sexual relationship with his wife as per the medical advice and that he could not be the father of the plaintiffs.
(viii) The trial Court failed to note the admission made by the first plaintiff himself during cross examination that the plaintiffs were not in possession of the suit properties at any point of time.
Accordingly, they prayed for setting aside the judgment and decree of the trial Court.
6. The points for consideration are as to:-
1. Whether the suit is barred in view of Section 11 or under Order 9 Rule 9 of Code of Civil Procedure?
2. Whether the plaintiffs are the legitimate children of Elumalai Chetty and Rajeswari Ammal and whether reliable evidence was adduced before the trial Court in support of the plaintiffs' contention?
3. Whether there is any infirmity in the judgment and decree of the trial Court?
Point No.1:
7. The learned counsel for the plaintiffs would submit that the suit is not barred by res judicata or as per Order 9 Rule 9 of CPC in view of the fact that the earlier suit O.S.No.6794 of 1988 filed by the plaintiffs before the VIII Assistant Judge, City Civil Court, Madras was for rendition of accounts and for permanent injunction as against Elumalai Chetty and others; the defendants have not raised any specific plea that the suit is barred in view of Order 9 Rule 9 of CPC; the cause of action for the earlier suit O.S.No.6794 of 1988 was different from the cause of action for the present suit and the prayers are also different.
8. Per contra, the learned counsel for the defendants would advance his argument that the plaintiffs in the plaint came forward with untrue statement because the reality is that the earlier suit was dismissed for default, after it was listed for trial; in such a case, the bar as contemplated under Order 9 Rule 9 of CPC is squarely applicable to the facts and circumstances of this case; the definition, cause of action, would demonstrate that bundle of facts would constitute cause of action and here, for the earlier suit as well as for the present suit, the cause of action relied on by the plaintiffs is one and the same, so to say, they relied upon one and the same set of allegations that they are the sons of the deceased Elumalai Chetty born through Rajeswari Ammal and that as per their paternal grand father Madurai Chetty's settlement deed dated 18.09.1926, they are entitled to half share in the suit property and arguing as aforesaid the learned counsel contended that the plaintiffs are having no right to prosecute the present suit at all.
9. No doubt, a bare perusal of the written statement would indicate that even though the plea of res judicata was specifically raised by the defendants, nonetheless, they have not raised in very many words, the bar as contemplated under Order 9 Rule 9 of CPC. The plea of res judicata, obviously is not a sound one in view of the fact that the prayers in both the suits are not one and the same; the issues also are not the one and the same and even to attract the principle of constructive res judicata, there are no adequate materials.
10. The learned counsel for the defendants would also submit that the concept issue estoppel would be attracted. In my considered opinion, no issue was decided on merits relating to the paternity of the children in the earlier proceedings, as it was dismissed for default. However, in the present suit, there is a specific issue relating to the paternity of the children. The present suit is for partition and for allotment of half share in favour of the plaintiffs at the rate of < th share each based on Ex.A.13, the settlement deed executed by Madurai Chetty, the father of Elumalai Chetty. Whereas in the earlier suit the relief sought for as cited supra, was for a different purpose to wit for getting accounts from Elumalai Chetty and his brother Kristappa Chetty, as they were entitled to receive rents during their life time and to maintain the descendants of Elumalai Chetty and Kristappa Chetty and not for partition.
11. It is therefore clear, that substantial issues is different from incidental issue. So far, this case is concerned, the substantial issue is relating to the claim of partition of half share of the plaintiffs in the suit properties and in order to adjudge as to whether the plaintiffs are entitled to half share at the rate of < th share each in their favour based on Ex.A13, their status as that of the legitimate children of Elumalai Chetty is also very much involved as one of the main issues. Hence, in such a case, it is obvious that the principle of res judicata cannot be pressed into service in the facts and circumstances of this case.
12. The learned counsel for the defendants cited the following four decisions in support of the plea of res judicata as well as Order 9 Rule 9 of CPC.
(i) 2006 (2) LW 259 (Dr.S.Jayakumar and another vs. K.Kandasamy Gounder)
(ii) Judgment in Civil Appeal No.3495 of 2008 (Dadu Dayalu Mahasabha, Jaipur (Trust) vs. Mahant Ram Niwas and another)
(iii) 1990 (II) MLJ 80 (Gnanasigamani vs. Kamala Bai and another)
(iv) AIR 1920 Allahabad 340 (Rup Singh vs. Bhabhuti Singh and others)
13. An excerpt from the decision reported in 2006 (2) LW 259 is extracted here under:
"9. O.S.No.394 of 1990 filed for Declaration and Partition of A Schedule property in S.F.No.105 was dismissed for default on 15.03.1993. I.A.No.979 of 1993 filed by the Plaintiff to restore the suit was allowed on terms on 16.06.1994 with condition that the Plaintiff Kandaswamy should pay cost of Rs.250/- to the respondents. Because of non-payment of conditional cost, the Application in I.A.No.979 of 1993 was dismissed. Hence, the decree and dismissal of the suit in O.S.No.394 of 1990 has become final. This being the position would not the bar under Order IX Rule 9 C.P.C preclude the filing of fresh suit would apply to the case is the main point involved in this Revision Petition.
12. Applying the above principles, if we consider the plaint averments in both the suits, we may find that the property, parties and the cause of action in both the suits are in substance identical. Both the suits relate to same Items of Properties:-
S.No. 105 - 1.45 acres / 1.93 acres S.No. 106 - 2.74 acres / 3.65 acres S.No. 107 - 0.37 acres / 5.61 acres S.No. 107 - 4.25 acres / 5.61 acres
13. Both the suits refer to the same cause of action viz., Settlement deed in favour of the Plaintiff dated 22.04.1958 executed by Krishnammal and denial of Plaintiffs title by his Sisters Mylathal and another. By a careful consideration of the cause of action, it is clear that the cause of action in both the suits are identical. Further cause of action alleged in 1998 in O.S.No.278 of 1999 is very slender and would not substitute the case of the Plaintiff that a fresh cause of action has arisen to file a fresh suit. The Plaintiff cannot contend that fresh cause of action has arisen in view of handing over of possession by the Tenant to the Defendants 1 and 2 after the conclusion of the suit in O.S.No.954 of 1992. Learned Senior Counsel is right in submitting that the cause of action in both the suits are one and the same and the bar under Order IX Rule 9 precludes the filing of a fresh suit."
(emphasis supplied) The perusal of the above excerpt including the whole judgment cited supra, would leave no doubt in the mind of the Court that, the facts involved in the said decision are entirely different from the case at hand. In the cited case, the suits filed earlier and subsequently were for partition and simply for the purpose of artificially projecting an additional cause of action in the subsequently instituted suit, the alleged surrender of handing over possession by the tenants to the defendants 1 and 2 which occurred after the previous suit, was cited as an additional fact.
14. Whereas in this case, my above discussion would clearly exemplify that the substantial issues involved in both the suits are entirely different and as such, the cited decision cannot be pressed into service in support of the plea of the defendants.
15. An excerpt from the judgment in Civil Appeal No.3495 of 2008 of Hon'ble Apex Court (un reported judgment), would run thus:
"31. Principle of issue estoppel and constructive res judicata had also been discussed at some length by this Court in Bhanu Kumar Jain (supra) to hold:
"29. There is a distinction between "issue estoppel" and "res judicata". (See Thoday v. Thoday)
30. Res judicata debars a Court from exercising its jurisdiction to determine the lis if it has attained finality between the parties whereas the doctrine issue estoppel is invoked against the party. If such an issue is decided against him, he would be estopped from raising the same in the latter proceeding. The doctrine of res judicata creates a different kind of estoppel viz.estoppel by accord."
(emphasis supplied) Absolutely, there is no quarrel over such a proposition as found posited in the cited decision of the Hon'ble Apex Court. But, my discussion supra would indicate as to how in the earlier suit, the prayer itself was not for partition or for declaring the status of the plaintiffs herein and no issue was also decided on merits.
16. The decision of this Court reported in 1990 (II) MLJ 80 arose in respect of matrimonial proceedings. Certain excerpts from it would run thus:
"9. Issue No.(ii) in O.M.S.No.9 of 1985 revolving on the question of maintainability of the suit can be taken up for consideration, first and foremost and the other issues in O.M.S.No.9/85 viz.Issues (i) and (iii) can compendiously be grouped together along with Issues (i) and (ii) in O.M.S.No.12/83, and disposed of, for the simple reason that the finding given one way or the other on Issues (i) and (iii) in O.M.S.No.9/85 will have a direct bearing on Issues (i) and (ii) in O.M.S.No.12/83, in the sense, that, if the question of adultery is found against the husband and consequently no decree nisi for divorce can be passed, it goes without saying that there can be no justification whatever for the husband to resist the other suit for restitution of conjugal rights and the same has to result in a decree as prayed for. No doubt, true it is that the maintainability of O.M.S.No.19 of 1982 had been questioned on the legal plea of res judicata. Learned counsel for the wife, realising the legal lacuna in setting up such a plea, would frankly submit that the maintainability question cannot at all be decided on the plea of res judicata and he would in fact base the maintainability question on Order 9 Rule 9 C.P.C., which is applicable to matrimonial proceedings under the Indian Divorce Act, hereinafter referred to as "the Act", on the face of the provision contained in Order 27 Rule 14 of the Original Side Rules and Section 45 of the Act, which are extracted hereunder:
Order 27 Rule 14 of the Original Side Rules, reads as under:
"Subject to the foregoing rules, the provisions of the Code and of these rules with respect to civil suits and matters shall apply to all proceedings under the said Act."
Section 45 of the Act (Indian Divorce Act) reads as under:
"CODE OF CIVIL PROCEDURE TO APPLY:-
Subject to the provisions herein contained, all proceedings under this Act between party and party shall be regulated by the Code of Civil Procedure".
There is no manner of doubt whatever that, on the same set of facts and circumstances and the same cause of action as detailed in the present suit, the husband earlier filed O.M.S.No.19/82 for the same relief as prayed for in the present suit, which was in fact dismissed for default, and the initial restoration application as well as the subsequent one filed by the husband were also dismissed, vide Exs.P12 to P15, P17 and R5. The matter was not at all agitated further and consequently the dismissal of that suit has become final.
10. For understanding the provision of Order 9 Rule 9(1) CPC., it is better to extract the provision of Order 9 Rule 8 C.P.C.
Order 9 Rule 8 C.P.C.reads as follows:-
"PROCEDURE WHERE DEFENDANT ONLY APPEARS:
Where the defendant appears and the plaintiff does not appear when the suit is called on for hearing, the Court shall make an order that the suit be dismissed, unless the defendant admits the claim, or part thereof, in which case the Court shall pass a decree against the defendant upon such admission, and, where part only of the claim has been admitted, shall dismiss the suit so far as it relates the remainder".
Order 9 Rule 9(1) reads as follows:-
'DECREE AGAINST PLAINTIFF BY DEFAULT BARS FRESH SUIT - Where a suit is wholly or partly dismissed under Rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action. But he may apply for an order to set the dismissal aside, and if he satisfies the Court that there was sufficient cause for his non-appearance when the suit was called on for hering, the Court shall make an order setting aside the dismissal upon such terms as to costs or otherwise as it thinks fit, and shall appoint a day for proceeding with the suit".
From the provisions extracted above, it is crystal clear that once the suit is dismissed for default, the plaintiff shall be precluded from bringing any fresh suit in respect of the same cause of action. The Punjab and Haryana High court in Manjit Kaur v. Gurdial Singh (AIR 1978 P & H 150) had occasion to consider the effect of Order 9 Rule 9 C.P.C., wherein an application under Section 10 of the Hindu Marriage Act was dismissed for default and not restored, and in the fag end of Paragraph 7 of the judgment, it was held as follows:-
"The facts leading to the filing of the petition and the cause of action for both were, therefore, the same. No application for restoration of the first suit was ever filed. On these facts and in the state of law discussed by me above, the respondent appears to me to be precluded from filing the present application for divorce in respect of the same cause of action, that is the same desertion. The order of the learned District Judge to the contrary cannot, therefore, stand".
The observation as extracted above is on all fours applicable to the case on hand, notwithstanding the fact that the relief of divorce is sought for under the Indian Divorce Act.
11. Learned counsel for the husband, having been placed in a predicament position, in the sense of not being able to meet out the argument so projected by recourse to precedents of superior courts of jurisdiction in India, took asylum and shelter in quoting an English decision in Thompson v.Thompson (1957 1 ALL E.R.161) and relied on the following observation of Denning, L.J.:
"..... once an issue of a matrimonial offence has been litigated between the parties and decided by a competent Court, neither party can claim as of right to re-open the issue and litigate it all over again if the other party objects; but the Divorce Court has the right, and indeed the duty in a proper case, to reopen it, despite the objection of the other party".
12. The English decision can surely be taken as a guide for understanding the legal implication of the provisions contained in the Indian Statute, provided the provisions of the Indian as well as English law are one and the same, and when there are no Indian precedents. On the face of the applicability of the Code of Civil Procedure, by the salient provisions contained in the Original Side Rules, and the Indian Divorce Act, as stated above, which contain a specific provision in Order 9 Rule 9 C.P.C., precluding the plaintiff from filing a fresh suit in respect of the same cause of action where the suit originally instituted was dismissed,......."
The cited decision posits the aforesaid proposition of law as found set out in the earlier two decisions discussed supra. However, it is obvious that here the facts are different.
17. The precedent reported in AIR 1920 Allahabad 340 was relating to a set of facts wherein the earlier suit based on promissory note was dismissed and a fresh suit emerged based on entries in the account books alleging that the pro-note was null and void and in such circumstances, Section 11 of the Code of Civil Procedure was invoked and it is quite obvious that the cited decision of the Allahabad High Court is having no bearing on the case at hand, as here, the present suit is for partition and the earlier one was for merely rendition of accounts and for injunction.
18. The learned counsel for the defendants also cited the decision reported in AIR 1976 SC 688 (Koshal Pal and others vs. Mohan Lal and others). An excerpt from it would run thus:
"20. It was contended on behalf of the respondent that the scope or the subject-matter of the earlier suit is different from that in the second suit. It is, however, difficult to accept this submission. In the earlier suit the plaintiff prayed for possession of the premises in suit by evicting the defendants who held the premises as tenants under the plaintiff on a rent note executed in his favour. Alternatively the plaintiff sought the same relief for possession of the premises relying on the status of the Defendants 1 to 4 as tenants derived from the position of their father being a tenant under the plaintiffs adoptive father. In either case the relief was claimed on the plea of tenancy of the defendants. Both these pleas were rejected by the trial court and the Defendants 1 to 4 were held to mature their title by adverse possession. In the second suit out of which the present appeal has arisen, although the suit is one for declaration of title to the premises and for possession, the alternative plea set up in the earlier suit has again been reagitated to defeat the plea of adverse possession set up by the defendants and this time the court found in favour of the plaintiff.
21. It is well established that if a matter directly and substantially in issue in an earlier suit of competent jurisdiction had been finally adjudicated upon the matter becomes res judicata between the same parties with regard to the identical subject-matter in a subsequent suit. As the Privy Council observed in Krishna Behari Roy v. Bunwari Lall Roy1where a material issue has been tried and determined between the same parties in a proper suit, and in a competent court, as to the status of one of them in relation to the other, it cannot be again tried in another suit between them.
22. Here the parties are the same and the property for possession of which the suit was filed is also identical. The only difference is that in the second suit title to the property is brought in issue which was not an adjudicated issue in the first suit. That, however, is not material for the present purpose since the plaintiffs adoptive father has been admittedly out of possession of the premises since about 1938. It is not the plaintiff case that he or his father was in physical possession of the premises within the requisite period prior to the institution of the suit. The plaintiff, on the other hand, seeks to rely upon constructive possession through the defendants as tenants in the second trial. The matter relating to the status of the defendants as tenants is, therefore, directly and substantially in issue between the parties in both the suits for the reliefs claimed in them. It is, therefore, not possible to hold that the question of even derivative tenancy of the defendants was not directly and substantially in issue in both the suits.
23. It cannot be said that the adverse decision against the plaintiff with regard to the status of the defendants as derivative tenants, which was necessary in order to hold that the defendants had acquired title by adverse possession, was only collaterally or incidentally made in the earlier suit. For the only relief in the manner claimed in the earlier suit the decision with regard to the issue of adverse possession was directly material and relevant in that suit. The submission that the scope of the two suits is different is, therefore, devoid of substance."
A bare perusal of the above excerpt including the whole judgment would highlight that the facts and circumstances involved in the cited decision are entirely different from the one at hand as in this case, no decision at all was rendered in O.S.No.6794 of 1988.
19. The learned counsel for the defendants cited a decision of this Court reported in (2008) 3 MLJ 821 (M.Somasundaram and another vs. District Collector cum Accommodation Controller, Chennai and others). An excerpt from it would run thus:
"32. In order to make Order 2, Rule 2 applicable, the defendant must satisfy the following three conditions:
a) The previous and second suit must arise out of the same cause of action.
b) Both the suits must be between the same parties; and
c) The earlier suit must have been decided on merits.
Even when earlier suit O.S.No.2411 of 2000 was reserved for judgment, judgment could not be pronounced since the plaintiffs have withdrawn the suit."
The cited decision of this Court is not in favour of the defendants for the reason that the earlier suit O.S was not decided on merits. However, the same judgment of this Court would posit the proposition that re-litigation may or may not be barred by res judicata. But, such sort of vexatious litigation should be discouraged. Here, the present suit cannot be taken as a re-litigation for the reason that earlier one was for accounting but the present one is for obtaining substantial relief of partition.
20. Accordingly, Point No.1 is decided to the effect that the present suit is not barred by res judicata or under Order 9 Rule 9 of CPC.
Point No.2:
21. Tersely and briefly, the arguments as put forth by the learned Senior counsel for the plaintiffs is to the effect that the plaintiffs are the sons of the couple viz., Elumalai Chetty and Rajeswari Ammal; she died only as the legitimate wife of her husband and during her life time, her husband did not divorce her; even though maintenance proceedings were started by her against her husband and also obtained maintenance for herself and for her the then minor children, the plaintiffs herein; Elumalai Chetty did agree to pay maintenance to his wife and the plaintiffs herein and to that effect, endorsement was made before the criminal Court without prejudice to his right to approach the Civil Court; however, throughout the rest of his life, no suit had been filed by him by contending that the plaintiffs were not born to him; Elumalai Chetty during his life time virtually accepted and treated the plaintiffs as his children born through Rajeswari Ammal and the defendants herein cannot dispute the parentage of the plaintiffs herein.
22. On the contrary, the warp and woof of the arguments as put forth by the learned counsel for the defendants would be to the effect that Elumalai Chetty during his life time disputed the paternity of the plaintiffs; Rajeswari Ammal herself during her life time sent communication to Elumalai Chetty that she started living with one Deivasigamani and that she was not in need of any maintenance; consequently the maintenance awarded in her favour was cancelled; she as per her own admission, lived only for a short while with Elumalai Chetty and after sensing that he was suffering from Tuberculosis, which was considered at that time as a highly dangerous disease left his company and started living with one Sivasamy her sister's husband; the father of Deivasigamani himself deposed during trial in O.S.No.2794 of 1962 that Rajeswari Ammal gave birth to a son through Deivasigamani and that the evidence adduced on the side of the defendants would amply establish that the plaintiffs were not born to Elumalai Chetty.
23. Both sides cited decisions as to what should be the approach of the Court while adjudicating the paternity of a child. It is therefore, just and necessary to deal with those decisions in seriatim, so that, in the light of those decisions which are applicable to this case, the evidence on record could be analysed and adjudged.
Significance of Section 112 of the Indian Evidence Act:-
24. An excerpt from the decision of the Hon'ble Apex Court reported in AIR 1971 SC 2352 (Perumal Nadar (dead) by Legal Representative vs. Ponnuswami Nadar (Minor) would run thus:
"12.Nor can we accept the contention that the plaintiff Ponnuswami is an illegitimate child. If it be accepted that there was a valid marriage between Perumal and Annapazham and during the subsistence of the marriage the plaintiff was born, a conclusive presumption arises that he was the son of Perumal, unless it be established that at the time when the plaintiff was conceived, Perumal had no access to Annapazham. There is evidence on the record that there were in 1957 some disputes between Annapazham and Perumal. Annapazham had lodged a complaint before the Magistrates court that Perumal had contracted marriage with one Bhagavathi. That complaint was dismissed and the order was confirmed by the High Court of Madras. Because of this complaint, the relations between the parties were strained and they were living apart. But it is still common ground that Perumal and Annapazham were living in the same village, and unless Perumal was able to establish absence of access, the presumption raised by Section 112 of the Indian Evidence Act will not be displaced.
13.In Chilukuri Venkateswarlu v. Chilukuri Venkatanarayana3 in a suit filed by a Hindu son against his father for partition it was contended that the plaintiff was not the legitimate child of the defendant. The defendant relied upon certain documents by which he had agreed to pay maintenance to the plaintiffs mother and upon a deed gifting a house to her and assertions made in a previous suit that he had no intercourse with her after he married a second wife. The Court in that case observed, following the judgment of the Privy Council in Karapaya v. Mayandi4 that non-access could be established not merely by positive or direct evidence; it can be proved undoubtedly like any other physical fact by evidence, either direct or circumstantial, which is relevant to the issue under the provisions of the Indian Evidence Act, though as the presumption of legitimacy is highly favoured by law it is necessary that proof of non-access must be clear and satisfactory, and since on the basis of that proof there was evidence on the record that the plaintiffs mother lived in the house gifted to her by her husband and there was no impossibility of cohabitation between the parties, there was no acceptable evidence of non-access."
(emphasis supplied)
(ii) An excerpt from the decision of the Hon'ble Apex Court reported in AIR 1993 SC 2295 (Goutam Kundu vs. State of West Bengal and another) would run thus:
"21. above is the dicta laid down by the various High Courts. In matters of this kind the court must have regard to Section 112 of the Evidence Act. This section is based on the well-known maxim pater est quem nuptiae demonstrant (he is the father whom the marriage indicates). The presumption of legitimacy is this, that a child born of a married women is deemed to be legitimate, it throws on the person who is interested in making out the illegitimacy, the whole burden of proving it. The law presumes both that a marriage ceremony is valid, and that every person is legitimate. Marriage or filiation (parentage) may be presumed, the law in general presuming against vice and immorality.
(emphasis)
22. It is a rebuttable presumption of law that a child born during the lawful wedlock is legitimate, and that access occurred between the parents. This presumption can only be displaced by a strong preponderance of evidence, and not by a mere balance of probabilities.
(emphasis supplied)
23. Dukhtar Jahan (Smt) v. Mohammed Farooq this Court held: (SCC p. 629, para 12) ... Section 112 lays down that if a person was born during the continuance of a valid marriage between his mother and any man or within two hundred and eighty days after its dissolution and the mother remains unmarried, it shall be taken as conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten. This rule of law based on the dictates of justice has always made the courts incline towards upholding the legitimacy of a child unless the facts are so compulsive and clinching as to necessarily warrant a finding that the child could not at all have been begotten to the father and as such a legitimation of the child would result in rank injustice to the father. Courts have always desisted from lightly or hastily rendering a verdict and that too, on the basis of slender materials, which will have the effect of branding a child as a bastard and its mother an unchaste woman. (emphasis supplied)
24. This section requires the party disputing the paternity to prove non-access in order to dispel the presumption. Access and non-access mean the existence or non-existence of opportunities for sexual intercourse; it does not mean actual cohabitation.
(emphasis supplied)
25. The quintessence of the legal point that could be understood from the aforesaid decisions is that the presumption contemplated under Section 112 of the Indian Evidence Act is only a rebuttable one. It is therefore, just and necessary to extract the relevant Section, viz., Section 112 of the Indian Evidence Act.
"112. Birth during marriage, conclusive proof of legitimacy The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, them other remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten."
(emphasis supplied)
26. The underlined last clause of Section 112 of the Indian Evidence Act gains utmost significance and importance so far, this case is concerned.
27. Both sides concentrating on that last clause in Section 112 of the Indian Evidence Act, advanced arguments. At this juncture, I have to highlight that both of them in unison would agree on the law point concerned and they are not at variance. The aforesaid two decisions, while positing the legal proposition and the concept, which got embedded and envisaged in Section 112 of the Indian Evidence Act, highlighted and spotlighted that the evidence to rebut the presumption as contemplated under Section 112 of the Indian Evidence Act should not be mere preponderance of probabilities as it is normally adhered to in adjudication of civil cases, but strong preponderance of evidence.
28. On the plaintiffs side, the following two other decisions are also relied on in support of the proposition as canvassed by them.
(i) AIR 1967 SC 569 (Ammathayee alias Perumalakkal and another vs. Kumaresan alias Balakrishnan and others)
(ii) AIR 1972 Kerala 80 (Parameswaran Nair vs. Janaki Amma and another) But, those two decisions, no doubt, are in concinnity and in consonance with the aforesaid two decisions of the Hon'ble Apex Court only and I am of the view that no separate detailed discussion thereon is warranted.
29. The learned counsel for the defendants would cite the following decisions:
LEGITIMACY PROOF REQUIRED NON ACCESS
(i) 1935 Chancery Division 605 (Public Trustee vs. Cuthbert (Infant) and others)
(ii) 1949 (1) Chancery Division 109(B vs. B)
(iii) (1996) 4 SCC 76 (Parayankandiyal Eravath Kanapravan Kalliani Amma (Smt) and others vs. K.Devi and others)
(iv) AIR 1916 Madras 338 (FB) (John Howe vs. Charlotte Howe)
(v) AIR 1962 Madras 141 (B.Mahadeva Rao vs. Yesoda Bai)
(vi) AIR 1968 Allahabad 58 (Shanker Lal vs. Vijay Shanker Shukla and others)
(vi) AIR 1965 SC 364 (Mahendra Manilal Nanavati vs. Sushila Mahendra Nanavati)
(vii) AIR 1954 SC 176 (Chilukuri Venkateswarlu vs. Chillukuri Venkatanarayana) All those decisions cited on the side of the defendants are not in any way antithetical to the legal proposition as found posited in the aforesaid four decisions cited on the side of the plaintiffs relating to Section 112 of the Indian Evidence Act.
30. As such, keeping those decisions in mind, I would like to analyse the evidence on record.
31. As has been correctly argued by the learned counsel for the plaintiffs, the very fact that the plaintiffs were born during the wedlock between Elumalai Chetty and Rajeswari Ammal, the presumption of legitimacy as contemplated under Section 112 of the Indian Evidence Act arises. The onus of proof is on the defendants to establish that the plaintiffs were not born to Rajeswari Ammal and Elumalai Chetty by adducing evidence that he did not have had the opportunity of having access to Rajeswari Ammal.
Discussion on C.M.P.Nos.1352, 1423 and 1424 of 2008:
32. At this juncture, it is just and necessary to consider the two CMPs.1352 of 2008 and 1424 of 2008, both filed under Order 41 Rule 27 (aa) of CPC seeking permission to adduce additional evidence by producing the following documents:
(i) School Certificate of the second plaintiff (C.M.P.No.1352 of 2008)
(ii) Judgment in O.S.No.2794 of 1962 on the file of the III Assistant City Civil Judge, Madras
(iii) Deposition of Rajeswari in O.S.No.2794 of 1962
(iv) Notice dated 26.12.1958 issued by Smt.Rajeswari to Thiru Elumalai
(v) Reply issued by Elumalai to Smt.Rajeswari
(vi) Certificate issued by Regional Pre vocational Training Centre
(vi) Marriage invitation (items (ii) to (vi) in C.M.P.No.1424 of 2008), so as to buttress and fortify the stand of the defendants that the plaintiffs were not born to Elumalai Chetty. The learned counsel for the plaintiffs would oppose such an attempt to file additional documents at this stage.
33. I am of the opinion that the documents pertaining to Court proceedings except the depositions could be allowed to be produced as additional evidence as it is obvious that those documents emerged during the previous litigation involving Elumalai Chetty, Rajeswari Ammal and the plaintiffs. Whatever be their evidentiary value, which could be attached to them, could be decided at the time of discussion after admitting those documents. Wherefore, I am of the considered opinion that at the threshold itself, such documents need not be thrown away as the ones not fit to be filed in Court and marked. I would reiterate that marking is different from placing reliance on such document as an admissible piece of evidence in support of the plea of the party, who produces it.
34. Nevertheless, so far, the Certificate issued by the Headmaster of the Panchayat Union Elementary School, Mamallapuram relating to the second plaintiff D.Murthy is concerned, it cannot even be allowed to be filed and marked for the reason that without examining the authority, who issued the Certificate and giving opportunity of cross examining such witness, the said document cannot be entertained and it is not equal to that of a Birth Certificate issued by a Statutory Authority under Births and Deaths Act. In this context, my mind is redolent with the decisions of the Hon'ble Apex Court reported in (1975) 2 SCC 564 (Lala Satyanarain Prasad vs. Gadadhar Ram) and 2006 AIR SCW 2648 ( Ravinder Singh Gorkhi vs. State of U.P.). Certain excerpts from the above decisions would run thus:
(1975) 2 SCC 564 :
"7. The High Court rightly did not place any reliance on the certificate. The truth of the contents of the certificate could not be proved by a clerk who only proved the handwriting on the certificate. The Head Master, who issued the certificate, was not examined. The original admission register on the basis of which the certificate was given was not proved. The clerk, who proved the handwritings of the certificate, could not say who made the original entry in the admission register."
2006 AIR SCW 2648:
"16. The purported school leaving Certificate was sought to be proved by Chandra Pal Singh, Headmaster of the Primary Pathshala, Hajratpur. In his cross-examination, he categorically stated that the date of birth of the appellant might have been disclosed by the appellant at the time of admission. He did not have any personal knowledge with regard thereto. No enquiry was made as regards the age of the appellant while he was admitted in the institution. He accepted that it was quite possible that the age disclosed by the guardian may be more or less.
17. The School leaving Certificate was said to have been issued in the year 1998. A bare perusal of the said Certificate would show that the appellant was said to have been admtited on 01.08.1967 and his name was struck of from the roll of the institution on 6.5.1972. The said school leaving certificate was not issued in ordinary course of business of the school. There is nothing on record to show that the said date of birth was recorded in a register maintained by the school in terms of the requirements of law as contained in Section 35 of the Indian Evidence Act. No statement has further been made by the said Headmaster that either of the parents of the appellant who accompanied him to the school at the time of his admission therein made statement or submitted any proof in regard thereto. The entries made in the school leaving certificate, evidently had been prepared for the purpose of the case. All the necessary columns were filled up including the character of the appellant. It was not the case of the said Headmaster that before he had made entries in the register, age was verified. If any register in regular course of business was maintained in the school; there was no reason as to why the same had not been produced.
21. Determination of the date of birth of a person before a court of law, whether in a civil proceeding or a criminal proceeding, would depend upon the facts and circumstances of each case. Such a date of birth has to be determined on the basis of the materials on records. It will be a matter of appreciation of evidence adduced by the parties. Different standards having regard to the provision of Section 35 of the Evidence Act cannot be applied in a civil case or a criminal case."
35. The learned counsel for the defendants also cited the decision reported in AIR 1984 NOC 306 (Delhi) (Balmer Lawrie & Co.Ltd., vs. Mahindar Singh & Associates and another) and it is extracted hereunder for ready reference:
"It is true that the proof of the signature of a person to a document is not necessarily a proof of its contents and that normally, the contents of a document should be proved by calling the person who is the author of the document. But this is not an invariable rule or the only method of proving it. There are no specific provisions in the Evidence Act regarding this and there can be no objection to the proof of contents by the presence of other internal circumstantial evidence."
In view of the aforesaid Hon'ble Apex Court's decisions, the decision of the Delhi High Court reported in AIR 1984 NOC 306 (Delhi) is not applicable to this case and it is quite obvious.
36. From the mere perusal of the above excerpt, it is crystal clear that the said document cannot be allowed to be produced as an additional evidence and accordingly, C.M.P.No.1352 of 2008 is dismissed.
37. Whereas C.M.P.No.1424 of 2008 is concerned, the three documents referred to therein, viz.,
(i) Judgment in O.S.No.2794 of 1962 on the file of the III Assistant City Civil Judge, Madras
(ii) Notice dated 26.12.1958 issued by Smt.Rajeswari to Thiru Elumalai
(iii) Reply issued by Elumalai to Smt.Rajeswari could be allowed to be produced and marked in continuation of exhibits marked before the trial Court.
38. At this juncture, I would like to observe that C.M.P.No.1423 of 2008 is an adjunct to C.M.P.No.1424 of 2008 in the sense that C.M.P.No.1423 of 2008 has been filed under Rule 74 (4) of Civil Rules of Practice r/w Section 151 of CPC for obtaining the following documents from the lower Court concerned and those four documents are also included in C.M.P.No.1424 of 2008. Over and above that, a memo was also filed by the defendants praying this Court to sent for the following documents:
(i) Judgment in O.S.No.6794 of 1988, on the file of the VIII Assistant City Civil Judge, Madras dismissed on 21.08.1991.
(ii) Judgment in O.S.No.2794 of 1962 on the file of the III Assistant City Civil Court, Madras dated 19.03.1965.
(iii) Evidence of PW1 and PW4 in O.S.No.2794 of 1962.
However, in the said memo, additionally the judgment in O.S.No.6794 of 1988 passed by the VIII Assistant Judge, City Civil Court, Madras is also sought to be summoned, but that is not found in the applications filed for reception of documents under Order 41 Rule 27 (aa) of CPC. Furthermore, only deposition of PW1 Rajeswari was sought to be produced as additional evidence and not the depositions of PW4.
39. I am of the considered opinion that the plaintiff could have very well obtained those documents relating to the previous suit and produced before the lower Court during trial. But, they have not chosen to do so. I am at a loss to understand as to how the depositions of witnesses in one case could be verbatim taken as evidence in the present suit. At the most, such depositions in the previous suit could be made use of for the purpose of contradiction under Section 145 of the Indian Evidence Act. But, the deponent Rajeswari Ammal, who was examined as PW1 in the earlier suit O.S.No.2794 of 1962 is not alive and it is not known whether PW4, the father of the said Deivasigamani, who was examined in O.S.No.2794 of 1962, is alive or not.
40. To fortify the stand of the defendants, their learned counsel would try to place reliance on the decision of the Hon'ble Apex Court reported in AIR 1959 SC 914 (Dolgobinda Paricha vs. Nimai Charan Misra and others). Certain excerpts from it would run thus:
"15.We now proceed to a consideration of the first question, namely, the admissibility of the document Ext. 1. The High Court has held the document to be admissible under sub-section (5) of Section 32 of the Evidence Act. We must first read Section 32(5);
32. Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the court unreasonable, are themselves relevant facts in the following cases:
(1)-(2) * * * (5) When the statement relates to the existence of any relationship by blood, marriage or adoption between persons as to whose relationship by blood, marriage or adoption the person making the statement had special means of knowledge, and when the statement was made before the question in dispute was raised.
(6)-(8) * * * Now, four conditions must be fulfilled for the application of sub-section (5) of Section 35: firstly, the statements, written or verbal, of relevant facts must have been made by a person who is dead or cannot be found etc. as mentioned in the initial part of the section; secondly, the statements must relate to the existence of any relationship by blood, marriage or adoption; thirdly, the person making the statement must have special means of knowledge as to the relationship in question; and lastly, the statements must have been made before the question in dispute was raised. There is no serious difficulty in the present case as to the first two conditions. Exhibit 1 contained a pedigree which showed that Lokenath had three daughters by his first wife, the daughters being Ahalya, Brindabati and Malabati; it also showed that Ahalya had three sons Satyabadi, Baikuntha and Dasarath. of whom Baikuntha was one of the plaintiffs in the present suit and the other two plaintiffs Nimai and Lakshminarayan were shown as sons of Malabati. Exhibit 1 was signed by Satyabadi on his own behalf and on behalf of his brothers Baikuntha and Dasarath. Satyabadi is now dead. So far as Satyabadi is concerned, there can be no doubt that the first two conditions for the application of sub-section (5) of Section 32 are fulfilled. It has been contended that as Dasarath and Baikuntha are alive (Baikuntha being one of the plaintiffs) and as the statement was the joint statement of three persons of whom one alone is dead, the first and preliminary condition necessary for the application of Section 32 is not fulfilled. We do not think that this contention is correct, and we are of the view that the position is correctly stated in Chandra Nath Roy v. Nilamadhab Bhattacharjee 6; that was a case in which the statements were recitals as to a pedigree and were contained in a patta executed by three sisters, two of whom were dead and it was pointed out that the statement in the patta was as much the statement of the sisters who were dead as of the sister who was alive. In the case before us the statements as to pedigree in Ex. I were really the statements of Satyabadi, who signed for self and on behalf of his brothers. Assuming, however, that the statements were of all the three brothers, they were as much statements of Satyabadi as of the other two brothers who are alive. We, therefore, see no difficulty in treating the statements as to pedigree in Ex. 1 as statements of a dead person as to the existence of a relationship by blood between Lokenath and his daughters Ahalya, Brindabati and Malabati the relationship which is in dispute now.
16.The more important point for consideration is if the statements as to pedigree in Ex. 1 were made, to use the words of sub-section (5), before the question in dispute was raised. The High Court held that the statements were made anti litem motam.
21. Therefore, we agree with the High Court that Ex1 fulfilled all the conditions of S.32 (5), Evidence Act and was admissible in evidence."
(emphasis supplied)
41. A bare perusal of the above excerpts including the whole judgment would clearly indicate and highlight that any statement as contemplated under Section 32 (5) of the Indian Evidence Act should be ante litem motam in nature. But here, the depositions which the plaintiffs seek to rely on were emerged subsequent to the arisal of the dispute between Elumalai Chetty and Rajeswari Ammal and that too, when they were at logger heads, due to the matrimonial dispute and the related challenge to the paternity of the plaintiffs herein. As such, I am of the considered opinion that the depositions of PW1 and PW4 in the earlier money suit are having no probative force of their own in this suit and accordingly, those depositions cannot be marked and relied on by the defendants and for that matter those depositions in the earlier suit were not available but they are referred to in (Ex.B7) the judgment dated 19.03.1965 of the III Assistant City Civil Judge, Madras.
42. Both sides were also informed by this Court that the depositions of PW1 and PW4 in O.S.No.2794 of 1962 could not be sent by the lower Court as they relate to a very old period, obviously. The learned counsel for the defendants would submit that in the judgment passed in O.S.No.6794 of 1988 itself those depositions are referred to and that would be sufficient.
43. In the additional list of documents sought to be filed, the photocopies of the alleged Certificate issued by the Regional Pre-Vocational Training Centre to Koteeswaran and the marriage invitation of Murthy are found and not even the originals and in such a case, those photocopies cannot straight away be taken as evidence in the regular civil suit where the parties are fighting at arms length relating to the paternity of the plaintiffs.
44. As such, the rest of the additional documents could be marked in continuation of the exhibits marked before the trial Court on the side of the defendants.
45. No doubt, regarding the judgment in O.S.No.6794 of 1988, even though it is not included in the additional list of documents, nonetheless, I am of the opinion that since, it being a Court Judgment straight away, it could also be allowed to be marked on the side of the defendants and the fact remains that it has been obtained from the lower Court by issuing Certificate under Rule 74 of Civil Rules of Practice.
Accordingly, the following exhibits are marked:-
Ex.B7 Judgment dated 19.03.1965 in O.S.No.2794 of 1962 on the file of the III Assistant City Civil Court, Madras.
Ex.B8 Notice dated 26.12.1958 issued by Rajeswari Ammal to Elumalai.
Ex.B9 Reply notice dated nil issued by Elumalai to Rajeswari.
Ex.B10- Judgment dated 21.08.1991 in O.S.No.6794 of 1988 on the file of the VIII Assistant Judge, City Civil Court, Madras.
Discussion centered on documentary evidence as to paternity of plaintiffs:-
46. The Court's mind is reminiscent of the popular adage that in matter of this nature aposteriori approach rather an apriori approach is the just and apt one.
47. Learned counsel for the defendants by drawing the attention of this Court, to the notice issued by Rajeswari Ammal to Elumalai Chetty and the reply notice issued by Elumalai Chetty to Rajeswari Ammal, which are marked as Ex.B8 and Ex.B9, by way of additional evidence, would develop his argument that Elumalai Chetty, even as early as in the year 1958 itself, when Rajeswari Ammal issued notice to him, replied disputing the claim of Rajeswari Ammal that she gave birth to the first plaintiff Koteeswaran herein. Whereas the learned Senior counsel for the plaintiffs would submit that those two notices have not been produced before the trial Court and had they produced, the plaintiffs would have got the opportunity to cross examine the witness concerned, in that regard.
48. I could see considerable force in his submission for the reason that Exs.B8 and B9 are only notices and authenticity and the genuineness of those notices could not be verified at this stage. I am fully aware of the fact that when an Advocate issues notice to the other side and acknowledgement is obtained and within a short time, such copy of the Advocate notice and acknowledgement are filed before the Court, then the genuineness of such notice and acknowledgement could be inferred. Even in such cases, if the issuance of such notice and acknowledgement are disputed, the same should be proved in the way known to law and there is no presumption that if a document is produced as a copy of an Advocate Notice, it should be presumed that it was issued by such and such Advocate only. Here, even the respective acknowledgements relating to those notices have not been filed. Hence, in such a case as correctly argued by the learned Senior counsel for the plaintiffs, ex-facie those documents cannot be taken as genuine ones, for the purpose of deciding the lis. Even for argument sake, it is taken that those exchange of notices took place during the year 1958, in no way that would falsify the case of the plaintiffs in the wake of other clinching evidence available on record showing that Elumalai Chetty himself made a supine submission before the Court concerned for paying maintenance to Rajeswari and the then minor two plaintiffs herein, without prejudice to his right to seek remedy in the Civil Court.
49. Indubitably and incontrovertibly, Elumalai Chetty had not chosen to file any suit even though he reserved to himself the right to file a civil suit in that regard. For the purpose of comprehensively dealing with this matter, I would like to consider the argument as put forth by the learned counsel for the defendants, who placed reliance on Exs.B8 and B9. In Ex.B8, the lawyer's notice issued by Rajeswari Ammal, it is found set out that she married Elumalai Chetty on 23.02.1956; they were living together only for eight months fairly happily; within two or three months, after their marriage, she became pregnant; when she was five or six months pregnant, she with the permission of Elumalai Chetty left the matrimonial home as Elumalai Chetty was not well and he could not attend to the needs of his pregnant wife; moreover, Elumalai Chetty neglected to take care of her and that too, in view of the instigation and abetment but of Elumalai Chetty's married sister Smt.Angammal, who came to stay in his house with her four children.
50. The learned counsel for the defendants by placing reliance on Ex.A12, the Birth Certificate of Koteeswaran, the first plaintiff, would point out that he was born on 24.07.1957; whereas according to the version in Ex.B8, even within two or three months of the marriage, Rajeswari Ammal became pregnant and if that be so, she should have become pregnant by April or May 1956 and by no stretch of imagination, it could be stated that such conceived child was born on 24.07.1957 and that is indicative of the fact that Koteeswaran, the first plaintiff was not born to Elumalai Chetty.
51. The learned counsel for the defendants also would put forth his argument that as per Ex.B9, the reply notice to Ex.B8, Elumalai Chetty had would categorically denied the recitals in Ex.B8 and contended that he was suffering from Tuberculosis almost ever since the time of his marriage and that there had been no possibility of having sexual relationship with Rajeswari Ammal and that the Doctor had also advised him to practice abstinence.
52. The learned Senior counsel for the plaintiffs would correctly and appositely put across his point that the very Exs.B8 and B9 are inadmissible in evidence and they have not been proved in the way known to law and even otherwise, if mathematical calculation is resorted to as the one made by the learned counsel for the defendants in computing the period of pregnancy, there might be over statement by Rajeswari in her lawyers' notice. As per the decisions of the Hon'ble Apex Court cited supra, it has to be seen whether Rajeswari Ammal and Elumalai Chetty had the possibility of having sexual relationship at that relevant time and accordingly, if viewed, she lived even as per Ex.B8 for eight months in the matrimonial home and during that time, they had the opportunity of having sexual relationship with each other and it was no wonder that the first plaintiff was born on 24.07.1957.
53. The ratio decidendi as could be deduced from the decisions of the Hon'ble Apex Court referred to supra would glaringly make the point clear that for the purpose of rebutting the presumption of paternity of the child, there should be clinching evidence and if there is probability of access between the spouses within the reasonable time, as medically required for becoming pregnant anterior to giving birth of the child, it should necessarily be presumed that the paternity of the child as that of the husband of the lady, who delivered the child.
54. The learned Senior counsel for the plaintiffs also would correctly highlight that the defendants cannot approbate and reprobate, blow hot and cold by partly relying on Ex.B8 and disregarding the other unfavourable part of the same Ex.B8 according to their whims and fancies.
55. I could see considerable force in his submission that in Ex.B8 itself, it is found narrated that Rajeswari Ammal and Elumalai Chetty were living together for eight months in the matrimonial home from 23.02.1956, the date of marriage, which means they lived up to October 1956 and the child was born on 24.07.1957, so to say, about nine months from the date of their separation. As such, as per Section 112 of the Indian Evidence Act, the presumption is in favour of the plaintiffs' case that Koteeswaran was born to Elumalai Chetty and Rajeswari Ammal and as per the Hon'ble Apex Court's dicta that slender piece of evidence, which was ferreted out from Ex.B8 by the learned counsel for the defendants, is not of that much significance, which could be taken as sufficient to demolish the edifice of presumption based on evidence available, which accrued in favour of plaintiffs plea.
56. The learned Senior counsel for the plaintiffs, based on Ex.B1, which comprises of (i) the copy of the application in M.C.No.745/1962 filed under the then Section 482 of the Code of Criminal Procedure claiming maintenance for and on behalf of her minor children, (ii) the copy of the counter filed by Elumalai Chetty, the copy of the joint endorsement made by Elumalai Chetty along with Elumalai Chetty's Advocate and (iii) the copy of the consent order of the Court awarding maintenance, would focus his argument that as revealed by those Criminal court records, Elumalai Chetty made a supine and categorical submission before the Court that he would pay maintenance to Rajeswari Ammal and his two minor children, the plaintiffs herein. By virtue of such endorsement made on 19.05.1962, the order of the Court was made on the same day.
57. The learned Senior counsel for the plaintiffs would reasonably and logically argue that, had really the plaintiffs were not born to Elumalai Chetty, the latter would not have agreed to pay maintenance at all and he would have fought the litigation before the Magistrate's Court tooth and nail. No doubt, in the counter filed in the said maintenance application, Elumalai Chetty contended that within three months from the date of marriage, he was afflicted with Tuberculosis; from 06.12.1956 onwards, he was attending T.B.Hospital at Ayanavaram; from 19.06.1957 onwards, he was admitted as inpatient; he was advised abstinence from sexual relationship and he obeyed it and strictly adhered to it.
58. The learned counsel for the defendants, placing reliance on Ex.B9, the reply notice as well as the counter statement filed in the M.C proceedings, would address his argument that ever since the dispute arose between Rajeswari Ammal and Elumalai Chetty, the latter disputed the paternity of the plaintiffs and it is not as though only as an after thought, the defendants herein have chosen to dispute the paternity of the plaintiffs. According to the learned defendants' counsel, they are only relying on the plea of deceased Elumalai Chetty and it is not as though they of their own accord dished out any theory as against the plaintiffs.
59. No doubt, regarding the paternity of the plaintiffs, the defendants of their own accord cannot raise any plea and they could only place reliance on the pre-existing plea relating to the challenge of the paternity of the plaintiffs and accordingly only, they understanding the correct position of law are contesting the proceedings. However, it has to be seen as to whether, Elumalai Chetty himself was justified in disputing the paternity of the plaintiffs during his life time. But, he had not raised even his little finger in initiating any proceedings so as to get declared that the plaintiffs are not his children. I am fully aware of the fact that a male is not duty bound to voluntarily initiate proceedings for getting such a declaration against two other individuals that they are not his children. But in this factual matrix, it had become all the more paramount on the part of Elumalai Chetty to initiate action because before the Criminal court, he had made endorsement as under:
"Without prejudice to rights of parties to proceed in Civil Court for appropriate remedies the parties agree for a maintenance of Rs.30/- at the rate of Rs.15/- for the petitioner and Rs.7-8 for each child from the date of the order."
60. On the side of the defendants, it is sought to be projected as though Elumalai Chetty without intending to litigate before the Criminal Court regarding paternity, simply made such endorsement consenting to pay maintenance without prejudice to his right to proceed in Civil Court. In fact, Rajeswari Ammal and the plaintiffs are beneficiaries and they had no dire necessity to approach the Civil Court for getting any additional benefit, but it was Elumalai Chetty, who was bound by the order of the Criminal Court to pay maintenance and he had been paying maintenance as revealed by the evidence in this case and in such a case, had really Elumalai Chetty in commensurate with the letter and spirit of his endorsement captioned under "without prejudice", wanted to challenge the paternity of the plaintiffs, then he would not have kept quite throughout his life without initiating any proceedings, so as to get cancelled the maintenance awarded in favour of the plaintiffs payable by him. This is a very significant and not a mere poco curante conduct on the part of Elumalai Chetty in refraining from initiating such proceedings as against the plaintiffs.
61. The learned counsel for the defendants would try to persuasively argue that Elumalai Chetty magnanimously handled the issue without willing to wash the dirty linen in the public, for which, the learned Senior counsel for the plaintiffs would correctly reply that there was no question of washing the dirty linen in the public because even as per the defendants plea, Elumalai Chetty indulged in mudslinging allegations including imputation of adultery as against Rajeswari Ammal and challenged the paternity of the plaintiffs herein in the earlier proceedings. As such, I am of the view that the plea that Elumalai Chetty out of magnanimity refrained from initiating proceedings is nothing but a jejune or naive plea on the part of the defendants, who dished out purely for the purpose of expounding and explaining away the fatal legal point operating as against them.
Evidentiary value of criminal Court proceedings before Civil Court:-
62. The learned counsel for the defendants would canvass his point that in the regular civil suit what transpired before the Criminal Court in the maintenance proceedings cannot be relied on as evidence and it should not be taken as the decisive factor for adjudging the lis by the Civil Court. He would cite the following decisions, in support of the aforesaid proposition.
(i) AIR 1956 Patna 49 (Ramadhar Chaudhary and others vs. Janki Chaudhary)
(ii) AIR 1927 Patna 61 (Chandreshwar Prasad Narain Singh vs. Bisheshwar Pratab Narain Singh)
(iii) 1968 II MLJ 487 (Srimathi Kamalambal vs. Srinivasa Odayar (died) and others)
(iv) 2007 (6) MLJ 128 (L.Bakthavatsalam and others vs. R.Alagiriswamy (died) and others)
63. The warp and woof, the sum and substance, the nitty gritty of the precedents cited supra are to the effect that the decisions rendered by the Criminal Court will not bind the Civil Court and even the evidence adduced cannot be verbatim taken as evidence in the civil cases. However, in those decisions, what one could infer and understand pellucidly and palpably, is that the conduct of the parties before the Criminal Court can rightly be taken into consideration.
64. The ingenuity in the argument of the is that here the plaintiffs are not trying to gain anything out of the Criminal Court proceedings or its order, but only the point that Elumalai Chetty himself qua father of the minors during his life time agreed to pay maintenance, without prejudice to his right to question it in the Civil Court, which he failed to do so by filing a suit. There is no embargo or hitch, hurdle or impediment, obstacle or obstruction in placing reliance on Ex.B1, which as already set out supra comprise of various documents highlighting that Elumalai Chetty agreed to pay maintenance. It is not the finding of the criminal Court that is being relied on, here, but only the conduct of Elumalai Chetty in agreeing to pay maintenance to the plaintiffs herein, which is admissible in evidence.
65. The learned counsel for the plaintiffs would convincingly and appositely highlight that consequent upon Rajeswari Ammal's submission that she started living with one Deivasigamani, the Criminal court vide its order in M.C.No.985 of 1963 in Ex.B3, cancelled the maintenance awarded in favour of Rajeswari Ammal only and in respect of the plaintiffs, the earlier order awarding maintenance continued and remained in tact. An excerpt from the operative portion of Ex.B3, the order of the Criminal Court is extracted here under for ready reference:-
" Petitioner as P.W.1 swears that the respondent is now living with the said Deivasigamani Chettair, she is now four months pregnant and that he received the letter Ex.P1, which is in her handwriting. She has stated in Ex.P1 that she is living with the said Chettiar and that she does not require any maintenance for her. The maintenance ordered in M.C.No.745 of 1962 for the respondent alone is cancelled. Petitioner will pay maintenance ordered for the children."
(emphasis) A bare perusal of it would exemplify that Elumalai Chetty filed the necessary application under Section 489 of Cr.P.C for getting cancelled the maintenance awarded in favour of only Rajeswari Ammal on the ground that she started living with Deivasigamani. The above excerpt would indicate that even as per Elumalai Chetty, around the time of filing the application for cancellation, Rajeswari Ammal started living with Deivasigamani as the words "now living with the said Deivasigamani" found in that order as the one spoken by PW1 (Elumalai Chetty) therein, would speak volumes that even as per Elumalai Chetty, at or around the time of filing that application for cancellation only, Rajeswari Ammal started living with Deivasigamani and at that time, she was four months pregnant. There is also nothing to indicate or suggest that even as per Elumalai Chetty that previously Rajeswari Ammal had been living in illicit intimacy with Deivasigamani. In the counter statement filed by Elumalai Chetty in the M.C.No.745/62, as found in Ex.B1, there is no whisper that she had been living with Deivasigamani and for that matter, he had not in categorical terms declared that the plaintiffs were not born to him.
66. What are all he stated in the counter, was that her plea, as on the date of the filing of the maintenance petition that apart from the two children, she once again became pregnant, was not possible, as she left his company even earlier to it. As such, the tenor of the counter filed in M.C.No.745/62 would demonstrate that Elumalai Chetty, unequivocally and unambiguously, clearly and categorically, did not came forward with the plea that the plaintiffs were not born to him at all and that alone actuated him and accentuated him, propelled him and impelled him, to make endorsement that he would pay maintenance for them and even at that time of getting cancelled the maintenance awarded in favour of Rajeswari Ammal as revealed by Ex.B3, he did not chose to get cancelled the maintenance awarded in favour of the plaintiffs by pleading that the plaintiffs were not born to him. As such, the conduct of Elumalai Chetty is of paramount importance to assess the paternity of the plaintiffs. Once Elumalai Chetty himself had not chosen to get declared his status as the one not that of the plaintiffs herein or in the alternative the plaintiffs herein are not his sons, the defendants who happened to be Elumalai Chetty's brother's sons, cannot for the purpose of depriving the plaintiffs of their right over the suit properties, based on Madurai Chetty's Settlement Deed be heard to contend that the plaintiffs are not the sons of Elumalai Chetty.
67. The learned counsel for the defendants would argue that no independent witness was examined on the side of the plaintiffs to prove the paternity as in view of Section 50 of the Indian Evidence Act, such evidence could be entertained and the cited decisions supra also would posit the legal position that, opinion about the relationship under certain circumstances would be relevant, forgetting for the moment that, the defendants on whom the burden of rebutting the presumption under Section 112 of the Indian Evidence Act lies did not choose to examine any such witness.
68. At this juncture, it is just and necessary to reproduce here under Section 50 of the Indian Evidence Act.
"50.Opinion on relationship, when relevant When the Court has to form an opinion as to the relationship of one person to another, the opinion, expressed by conduct, as to the existence of such relationship, of any person who, as a member of the family or otherwise, has special means of knowledge on the subject, is a relevant fact:
Provided that such opinion shall not be sufficient to prove a marriage in proceedings under the Indian Divorce Act, 1869 (4 of 1869), or in prosecutions under Sections 494, 495, 497 or 498 of the Indian Penal Code (45 of 1860).
Illustrations:
a) The question is, whether A and B were married.
The fact that they were usually received and treated by their friends as husband and wife, is relevant.
b) The question, is whether A was the legitimate son of B. The fact that A was always treated as such by members of the family, is relevant."
69. A bare perusal of it in conjunction with the cited decisions supra would demonstrate and highlight that the conduct of the parties concerned are of paramount importance. Ilustration (b) to Section 50 of the Indian Evidence Act also would posit the aforesaid proposition of law that conduct of the persons concerned are relevant to adjudge the actual relationship.
70. Here, Elumalai Chetty's conduct would connote and denote his opinion about the plaintiffs even though on the defendants' side, here and there, some concordant notes and discordant notes emerged in the suit filed by the plaintiffs herein as against Elumalai Chetty in O.S.No.6794 of 1988 for recovery of money from Elumalai Chetty are pointed out, nonetheless, Elumalai Chetty by his conduct treated the plaintiffs only as his biological sons and he was virtually tweedling his thumbs during his life time.
71. Ex.A2 is the extract from the Register of Births. According to the first plaintiff, Ex.A2 is the birth extract of the second plaintiff Murthy, in that, the parents name is mentioned as Elumalai Chetty and Rajeswari Ammal and one Anjalai informed about the birth of the child. Both sides could not furnish any information as to who that Anjalai was. Be that as it may, it could rightly be seen that Rajeswari Ammal delivered a male child on 25.11.1960. It is quite understandable and inferable that Ex.A2 relates to the second plaintiff even though the very name Murthy is not found in the birth extract, as it is quite obvious that in Tamil Nadu, during those days, the parties are given ,as per rule itself, liberty to furnish the name of the child belatedly, as the customs prevailing in Tamil Nadu was to christen the child by conducting a naming ceremony and thereafter only the name would be got indicated in the relevant column of the Birth Register. As such, it could be taken that Ex.A2 is the birth extract relating to Murthy.
72. The learned counsel for the defendants would make his submission that the second plaintiff by no stretch of imagination could be the biological child of Elumalai Chetty in view of the fact that even as per Ex.B8, she left her husband within a short span of time and only thereafter, according to her, she gave birth to the first child, viz., the first plaintiff and in such a case, it would be beyond comprehension that Elumalai Chetty and Rajeswari Ammal would have given birth to the second child during the fag end of 1960 and that there was no evidence relating to re-union or resumption of co-habitation. He would also by inviting the attention of this Court to Ex.B9, the reply Advocate Notice sent by Elumalai Chetty to Rajeswari Ammal, which emerged anterior to the birth of the second child Murthy, would focus his argument that soon after such exchange of notices, there could have been no re-union or resumption of co-habitation between Elumalai Chetty and Rajeswari Ammal, so as to enable the couple to give birth to one other child, viz., the second plaintiff.
73. Whereas the learned Senior counsel for the plaintiffs would build up his argument resting on the counter filed by Elumalai Chetty in M.C.No.745/62 as revealed by Ex.B1 that there was actual resumption of cohabitation between Elumalai Chetty and Rajeswari Ammal on 25.01.1959 and from that day onwards, Rajeswari Ammal started living with Elumalai Chetty in his house.
74. It is therefore, just and necessary to extract the para Nos.2,3 and 4 of the said counter filed by Elumalai Chetty in the M.C.No.745 of 1962 as under:
"2. The petitioner on learning that the respondent was advised to refrain from sexual intercourse left his house within 3 months after the marriage. It was only on 25.1.59 she return to him after being persuaded by the elders. In the meantime she had given birth to a child. It was not even intimated to the respondent.
3. Ever since 25.1.1959 she had not been discharging her duties as a wife and behaved in the most indecent manner. She would stay out of the house for 20 days in a month and would not explain her absence. She would often pick up quarrel with her husband aggravating thereby his ailments as aforesaid.
4. The respondent submits that taking advantage of his ill-health the petitioner has been cruelly treating him and putting him to shame in public by frequently coming into the street and shouting indecently. Several complaints have been made to the police station and she was also warned to behave herself."
(emphasis supplied)
75. A bare perusal of it would exemplify and indicate beyond any speck of doubt that Elumalai Chetty in the maintenance proceedings clearly and categorically stated that after the birth of the first child to Rajeswari Ammal and Elumalai Chetty, they resumed cohabitation with effect from 25.01.1959 and they were living subject to skirmishes and intermittent quarrels, bickerings and dickerings. The very fact that during that time, in a month, she used to stay for ten days with him and 20 days away from him will further speak volumes that as per Elumalai Chetty himself, she lived with him. It is not as though, after resumption of cohabitation on 25.01.1959, she simply left the house, but Elumalai Chetty himself would aver that she continued to live with him and that is evident from his own averments from the said counter. In such a case, there is nothing to doubt that the second plaintiff Murthy was born on 25.11.1960 as the biological son of Elumalai Chetty and Rajeswari Ammal.
76. Inasmuch as there was re-union between Rajeswari Ammal and Elumalai Chetty, it cannot be stated that presumption as contemplated under Section 112 of the Indian Evidence Act, cannot be pressed into service in respect of Murthy, the second child. However, the learned counsel for the defendants would try to project the preponderance of probabilities to the effect that the Court cannot countenance that soon after sending of the reply notice on 03.01.1959, as evinced by the postal receipt enclosed with Ex.B9, there could have been any resumption of cohabitation.
77. I am at a loss to understand as to how such an argument could be countenanced and upheld as tenable for the reason that it is a common or garden principle or a trite proposition, whenever any rift occurs in the matrimonial relationship, both sides would frantically take steps for reunion, most decidedly by the intervention of near and dear also. As such, the Court cannot look askance at the very admission made by Elumalai Chetty himself in the said counter filed in the maintenance petition that there was resumption of cohabitation on 25.01.1959. As such, the attempt on the part of the defendants to explain away Elumalai Chetty's admission in black and white in the said counter as held by me, ends up in a fiasco. The defendants cannot blow hot and cold. They cannot in one breath state that they are not taking any special or new plea of their own but they are only pursuing the plea taken by Elumalai Chetty and in another breath they cannot disown the plea taken by Elumalai Chetty or try to explain away as though Elumalai Chetty erroneously took up such a plea in the maintenance proceedings.
78. It is therefore crystal clear that there was reunion between Elumalai Chetty and Rajeswari Ammal and this point is not only relevant for holding that Murthy is the legitimate biological child of Elumalai Chetty and Rajeswari Ammal, but also to hold that the said fact of re-union also speak volumes that the first plaintiff should have been the legitimate biological child of the couple. If really the first plaintiff was born to either Deivasigamani or Sivasamy, then Elumalai Chetty, would not have resumed cohabitation with Rajeswari Ammal on 25.01.1959.
79. It is a common or garden principle in the field of law that witnesses might lie but the circumstances would not lie. Here, the circumstances highlighted supra would conclusively establish that the plaintiffs are the legitimate biological children of the couple Elumalai Chetty and Rajeswari Ammal. The subsequent conduct of a lady, in going astray, would not be sufficient to bastardize the children born during the wedlock, when the legitimate couple had physical access to each other during the gestation period anterior to the child birth.
80. The learned counsel for the defendants by placing reliance on Ex.B7, the judgment rendered by the City Civil Court on 19.03.1965 in O.S.No.2794 of 1962, which was filed by Pattammal, the mother of Rajeswari Ammal for recovery of money as against Elumalai Chetty would point out that in that suit, after the death of Pattammal, her legal heirs, Kanniammal and Rajeswari Ammal were impleaded and the Court rendered a finding that there could have been no resumption of cohabitation between Elumalai Chetty and Rajeswari Ammal.
81. Exfacie and prima facie, such an observation by the Court in a money suit can never be taken as one, which would enure to the benefit of the defendants herein to torpedo and demolish the version or stand relating to reunion made by Elumalai Chetty in the counter filed during his life time in the M.C proceedings as set out supra.
82. The perusal of Ex.B7 would exemplify that O.S.No.2794 of 1962 was filed by Pattammal, the mother of Rajeswari Ammal as against Elumalai Chetty for recovery of a sum of Rs.2,500/- and in that connection, the evidence was adduced on either side. The issues framed in that suit is extracted here under:
"a) directing the first and second defendant to render account in respect of the suit property.
b) For a permanent injunction restraining the 1st and 2nd defendant from mortgating, directing or dealing with the suit property in any manner detrimental to the plaintiffs interest of the suit property.
c) For a permanent injunction restraining the defendants from interfering and preventing the access to the plaintiffs in the suit property."
83. I am at a loss to understand as to how for deciding the aforesaid issues, the discussion made by the learned Judge in adjudging the case, could be taken as evidence to rebut the evidence as found evinced in the counter of Elumalai Chetty in the matrimonial proceedings referred to supra. The same Ex.B7 judgment, is relied on by the defendants to project the point that PW4, the father of Deivasigamani, in that moneysuit, deposed as though Rajeswari Ammal was living with PW4 Loganatha Chettiar's son Deivasigamani and gave birth to a son.
84. As has been already discussed by me supra and held, such deposition of PW4 Loganatha Chettiar in that suit can never be taken as evidence in this suit. Loganatha Chettiar's evidence emerges long after filing of counter by Elumalai Chetty in M.C.proceedings as per Ex.B1 and as detailed and discussed above, in that counter he doubts the stand of Rajeswari that she was pregnant, so to say, after the birth of P2, i.e. for the third time. No one knows what happened to that third pregnancy and it is also not known whether such plea of third pregnancy is an over statement onher part. No more elaboration in this regard is required. It is therefore clear that the defendants tried their level best to some how or other get over their obstacles in canvassing their plea by trying to explain away the factors operating as against them in the evidence.
85. Drawing the attention of this Court to Ex.A5, the report of Death relating to Rajeswari Ammal, the learned counsel for the defendants would argue that in the 15 th column, the informants name is mentioned as S.Koteeswaran as the son of deceased Rajeswari Ammal. According to him, the initial 'S' refers to Sivasamy, the sister's husband of Rajeswari Ammal. In a serious matter like this, instead of placing reliance on strong grounds and even probabilities, the defendants have chosen to pin their faith in such sort of insignificant and poco curante feature. The person, who recorded that report was not examined before the Court to prove it. It is not readily known whether Ex.A4 was confronted during cross examination to PW1 Koteeswaran and thereby given to him an opportunity of explaining it. However, during cross examination, the defendants suggested to PW1, as though the plaintiffs 1 and 2 were born to Deivasigamani and Sivasamy. In the written statement, at para No.5, the defendants stated thus:
" The plaintiffs at no point of time are the Sons of Elumalai Chetty as claimed by them and even in the written statement filed by Elumalai Chetty in O.S.No.6794/88 he had categorically stated that the plaintiffs are the sons of Rajeswari Ammal through Deivasigamani or Sivasami Chetty, who is Rajeswari Ammal, elder sister's husband."
(emphasis supplied)
86. The above excerpt would demonstrate that Elumalai Chetty himself as per the defendants were not sure, as to whether, the plaintiffs were born to Sivasamy or Deivasigamani or one plaintiff was born to Sivasamy and another plaintiff was born to Deivasigamani and it is also their plea that Rajeswari Ammal was leading an immoral life having sexual relationship with several persons. Therefore, they went of slinging mud on the character of Rajeswari Ammal purely by way of resisting the plaintiffs claim for getting their due share in the suit properties. It is not known as to how in the case of this nature, such sort of vague allegations could be made to the effect that the plaintiffs might have born to Sivasamy Chettiar, the husband of Rajeswari Ammal's sister or to Deivasigamani, etc. No doubt, Rajeswari Ammal herself admitted that after she got maintenance order from the Court, she started living with Deivasigamani and that itself would not enure to the benefit of the defendants to pray the Court to presume and infer, adjudge and adjudicate that in all probabilities, the plaintiffs should have been born either to Deivasigamani or to Sivasamy and the approach as suggested by the defendants is not the one contemplated in the decision of the Hon'ble Apex Court, for the reason that the dictum of the Hon'ble Apex Court is to the effect that there should be clinching evidence to rebut the presumption as contemplated under Section 112 of the Indian Evidence Act. But, in this case, absolutely, there is no exiguous or miniscule extent of evidence available on the side of the defendants.
87. In Ex.B9, which the defendants themselves relied on, it is found spelt out that Elumalai Chetty expected his father-in-law to allot house to Rajeswari Ammal, but, to his surprise and shock, his father-in-law sold away the house. As such, certain scurrilous and vertebrative, scandalous and defamatory, degrading and libellous statements uttered out by Elumalai Chetty, after the rift and cleavage crept in the matrimonial relationship between Elumalai Chetty and Rajeswari Ammal, cannot be tried to be capitalized or cash in on it by the defendants herein.
88. The learned counsel for the defendants would correctly, by his arguments smashed the alleged evidentiary value of Ex.A9, the invitation card relating to the marriage of Koteeswaran by highlighting that the marriage of Koteeswaran, the first plaintiff was scheduled to take place on 23.04.1978, as per Ex.A9, so to say, hardly a week after the death of his mother Rajeswari Ammal on 15.04.1978 as revealed by Ex.A5 and that the invitation card does not bear the name of the press in which, it was printed as it is quite obvious that as per law, the printer's name should find a place in all printed matters. Over and above that the learned counsel for the defendants would convincingly and correctly highlight that by long odds and by any norms, it cannot be foreseen or comprehend that Elumalai Chetty, who already got himself locked up in litigation with Rajeswari Ammal, the mother of the plaintiffs and that too challenging the paternity of the plaintiffs would have, within a week after the death of Rajeswari Ammal would have consented to solemnise the marriage of the first plaintiff, by printing his name in the invitation card. Further more, the said invitation card itself is not free from doubt as the printer's name is also not found spelt out therein.
89. Incidentally, Ex.A1, the marriage invitation card between Elumalai Chetty and Rajeswari Ammal would bear the name of the printers as Kavuniyan Achagam, Chennai-1. Ex.A1 is relating to the year 1956 and even at that time, printing press owners were meticulous in complying with the rules but Ex.A9 purported to have been printed during the year 1978 does not bear such printer's name when at that time the Government, it is quite obvious, was enforcing the printing press laws meticulously. It is therefore, clear that Ex.A9 is not a reliable piece of evidence.
90. The alleged marriage invitation card of Murthy was sought to be filed by the defendants so as to buttress and fortify their plea that the marriage of the second plaintiff Murthy was arranged by Deivasigamani and that is only a photo copy and that too, it does not bear the printer's name, even though, the admitted marriage invitation card of Rajeswari Ammal and Elumalai Chetty bears the printers name, even in the year 1956.
91. Ex.A10, is alleged to be the marriage invitation card pertaining to the same second plaintiff Murthy's marriage, which was scheduled to be conducted on 24.04.1985 and in that it is found projected as though Elumalai Chetty himself made arrangements for the marriage of the second plaintiff and that his name is found printed there in, in that capacity. There is also no indication, as in which printing press, it was printed. As such, the same comments offered as against Ex.A9 would be applicable as against Ex.A10 also.
92. Ex.B10, would reveal that the suit O.S.No.6794 of 1988 was filed by the plaintiffs as against Elumalai Chetty and others for accounts alleging that Elumalai Chetty, did not furnish accounts, etc and they expressed their grievance in the plaint in O.S.No.6794 of 1988, which was marked as Ex.B4. An excerpt from it would run thus:
"12. The rental income from Item 1 of the B Schedule property will be about Rs.2,000/- per month. Item No.2 of Schedule B property would also fetch an equal amount or thereabouts per month. But the 2nd defendant's 1st son (3rd defendant herein) is using it for his business wholly for the benefit of himself and the members of his branch. Neither Elumalai Chetty the 1st defendant nor his brother 2nd defendant would enable the plaintiffs to have any share in the income of the said two properties, to which they are entitled to the extent of 2/3 of = i.e., 2/6 or 1/3rd. The plaintiffs, according to the settlement deed could not make a claim for partition since they are only ultimate beneficians entitled to the estate after the life time of the life-estate holders namely defendants 1 & 2, while the sons of the 2nd defendants are enjoying the income from the properties as belonging to the family of the 2nd defendant, owing to the enmity and hatred of the 1st defendant towards the plaintiffs, the plaintiffs are deprived of their legitimate rights to enjoy the benefits as belonging to the family of the 1st defendant, along with whom the plaintiffs are also entitled to residence.
13. The plaintiffs state that the defendants are not maintaining the properties will and they are also making attempts to deal with the same by way of alienation in contravention of the terms of the said settlement deed filed herewith as part of the plaint. They have no right to conseive of the same even. The plaintiffs therefore caused their lawyers notices to be issued to the 1st and 2nd defendants on 12.10.1978 and 20.01.1986. The 1st two defendants have sent their lawyers reply dated 21.2.1986 containing false and misleading statements."
(emphasis supplied)
93. A mere perusal of the above averments in the plaint in the earlier suit in O.S.No.6794 of 1988 would be sufficient to reject Ex.A10. A fortiori, the plea of the plaintiffs that Elumalai Chetty solemnised the marriages of the first and second plaintiffs is a far fetched plea, which cannot be digested. As such, in this case, out of over enthusiasm and by way of over reaching one self, each side vied with each other in getting printed invitation cards to suit their own requirements. In view of the same only, Ex.A9 and Ex.A10 and the photocopy of the invitation card, which was sought to be marked on the defendants side at the Appellate stage are all adjudged and held to be not worthy of being relied on by this Court.
94. Exs.A3 and A4 the record sheets issued by the Chief Presidency Magistrate in M.C.No.745/62 would unambiguously and unequivocally highlight the fact that the maintenance was paid by Elumalai Chetty, in compliance with the Court order in favour of the minor children up to the end of the year 1977, which means that the plaintiffs are not outlandish but right in their specious argument that Elumalai Chetty accepting their status as that of his biological sons, paid the maintenance amount without any demur, till they attained majority.
95. Exs.A6 and A7 are the Certificates of Merit issued by the Regional Pre Vocational Training Centre, which would demonstrate that the first plaintiff is the son of Elumalai Chetty and the same is found recorded in it during the year 1973-1974 and these are all additional factors in support of the plaintiffs' case though not decisive ones.
96. The learned counsel for the defendants would cite the decision of the Hon'ble Apex Court reported in 2008 (4) SCC 594 (Anathula Sudhakar vs. P.Buchi Reddy (Dead) by Lrs.and Others) and try to justify his argument that the suit was bad for want of a prayer for declaration so as to dispel the cloud. An excerpt from 2008 (4) SCC 594 is extracted here under:
14. We may, however, clarify that a prayer for declaration will be necessary only if the denial of title by the defendant or challenge to the plaintiff's title raises a cloud on the title of the plaintiff to the property. A cloud is said to raise over a person's title, when some apparent defect in his title to a property, or when some prima facie right of a third party over it, is made out or shown. An action for declaration, is the remedy to remove the cloud on the title to the property. On the other hand, where the plaintiff has clear title supported by documents, if a trespasser without any claim to title or an interloper without any apparent title, merely denies the plaintiff's title, it does not amount to raising a cloud over the title of the plaintiff and it will not be necessary for the plaintiff to sue for declaration and a suit for injunction may be sufficient. Where the plaintiff, believing that the defendant is only a trespasser or a wrongful claimant without title, files a mere suit for injunction, and in such a suit, the defendant discloses in his defence the details of the right or title claimed by him, which raise a serious dispute or cloud over the plaintiff's title, then there is need for the plaintiff, to amend the plaint and convert the suit into one for declaration. Alternatively, he may withdraw the suit for bare injunction, with permission of the court to file a comprehensive suit for declaration and injunction. He may file the suit for declaration with consequential relief, even after the suit for injunction is dismissed, where the suit raised only the issue of possession and not any issue of title.
21. To summarise, the position in regard to suits for prohibitory injunction relating to immovable property, is as under:
a) Where a cloud is raised over the plaintiff's title and he does not have possession, a suit for declaration and possession, with or without a consequential injunction, is the remedy. Where the plaintiff's title is not in dispute or under a cloud, but he is out of possession, he has to sue for possession with a consequential injunction. Where there is merely an interference with the plaintiff's lawful possession or threat of dispossession, it is sufficient to sue for an injunction simpliciter.
b) As a suit for injunction simpliciter is concerned only with possession, normally the issue of title will not be directly and substantially in issue. The prayer for injunction will be decided with reference to the finding on possession. But in cases, where de jure possession has to be established on the basis of title to the property, as n the case of vacant sites, the issue of title may directly and substantially arise for consideration, as without a finding thereon, it will not be possible to decide the issue of possession.
c) But a finding on title cannot be recorded in a suit for injunction, unless there are necessary pleadings and appropriate issue regarding title (either specific or implied as noticed in Annaimuthu Thevar). Where the averments regarding title are absent in a plaint and where there is no issue relating to title, the court will not investigate or examine or render a finding on a question of title, in a suit for injunction. Even where there are necessary pleadings and issue, if the matter involves complicated questions of fact and law relating to title, the court will relegate the parties to the remedy by way of comprehensive suit for declaration of title, instead of deciding the issue in a suit for mere injunction.
d) Where there are necessary pleadings regarding title, and appropriate issue relating to title on which parties lead evidence, if the matter involved is simple and straightforward, the court may decide upon the issue regarding title, even in a suit for injunction. But such cases, are the exception to the normal rule that question of title will not be decided in suits for injunction. But persons having clear title and possession suing for injunction, should not be driven to the costlier and more cumbersome remedy of a suit for declaration, merely because some meddler vexatiously and wrongfully makes a claim or tries to encroach upon his property. The Court should use its discretion carefully to identify cases where it will enquire into title and cases where it will refer to the plaintiff to a more comprehensive declaratory suit, depending upon the facts of the case."
The cited decision is not applicable to the facts and circumstances of this case, as here, the plaintiffs are claiming partition based on their paternal grand father Madurai Chetty's Settlement Deed Ex.A13 and inasmuch as they happened to be the sons of Madurai Chetty's son, they are entitled to half share in the suit properties at the rate of 1/4 th share each.
97. In such circumstances, the plaintiffs are not under any dire necessity to pray for any declaratory relief either regarding their status or relating to their right over the properties. The defendants' questioning of the paternity of the plaintiffs would not warrant any declaratory relief to be sought by the plaintiffs. However, in this case, correctly relevant issues have been framed and adjudged relating to paternity also.
99. The pleas of the defendants turned out to be slippery slop for them.
100. The learned Senior counsel for the plaintiffs would put across his point without it being fraught with sophistry or casuistry that the Court should be reluctant to bastardize a child based on slender evidence and unless clinching evidence are available, the Court will not hold againt paternity, whereas the learned counsel for the defendants would persuasively build up his argument that sympathy is having no place in adjudicating the civil right of an individual and based on evidence alone, the paternity of the child should be adjudged. Absolutely, there is no quarrel over the proposition as put forth by the learned counsel for the defendants. But here, the facts and circumstances as highlighted and spotlighted supra would demonstrate that the plaintiffs are the biological children of Elumalai Chetty.
101. Accordingly, point Nos.2 and 3 are decided in favour of the plaintiffs and as against the defendants.
102. In the light of the analysis of evidence and the discussion, I could see no infirmity in the judgment and decree of the trial Court, which arrived at the conclusion by taking into account the exhibits marked in this case. There is also nothing to show that the trial Court without au fait with law and au courant with facts adjudged the issues framed by it. Accordingly, the appeal is dismissed. However, there shall be no order as to costs. Consequently, the connected miscellaneous petitions are closed.
17..09..2008 Index : Yes/No Internet: Yes/No vj2 To The III Additional Judge City Civil Court, Chennai.
G.RAJASURIA,J., vj2 Pre-Delivery Judgment in A.S.No.580 of 2003
17..09..2008 A.S.No.580 of 2003 G.RAJASURIA,J., Heard both sides under the caption "for clarification" today.
2. Both sides were informed by this Court that the depositions of PW1 and PW4 in O.S.No.2794 of 1962 could not be sent by the lower Court as they relate to a very old period, obviously. The learned counsel for the defendants would submit that in the judgment passed in O.S.No.6794 of 1988 ,itself those depositions are referred to and that would be sufficient.
3. Hence, the matter is reserved for judgment.
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