Andhra HC (Pre-Telangana)
Alladi Vijaya Kumari And Ors. vs Mothe Jayamani And Ors. on 20 August, 2007
JUDGMENT P.S. Narayana, J.
1. Brief episode: This Appeal is preferred by the unsuccessful defendants 1 to 4 being aggrieved of the Decree and Judgment made in O.S.No.119/87 on the file of Subordinate Judge, Rajahmundry which was originally instituted as O.S.No.45/87 on the file of Vacation Civil Judge-cum-I Additional District Judge, East Godavari, Rajahmundry.
2. The suit was filed for partition of the plaint schedule Items 1 and 2 into two equal shares between plaintiff and defendants 5 to 8 and for possession of the same and for recovery of half of the amount due under Insurance Policy shown as Item No. 3 of the plaint schedule from the 9th defendant, for recovery of the entire amount shown in Item No. 4 of the plaint schedule from defendants 10 and 11 and future profits and also for the other appropriate reliefs.
3. On the strength of the respective pleadings of the parties, the learned Subordinate Judge, Rajahmundry, having settled Issues, recorded the evidence of P.W.1 to P.W.5, D.W.1 to D.W.4, marked Exs.A-1 to A-12, Exs.B-1 to B-24 and Exs.X-1 to X-4, recorded findings in detail and ultimately decreed the suit granting the preliminary decree for partition of Items 1 and 2 into two equal shares and for allotment of one such share to the plaintiff and defendants 9 to 11 were directed to pay half of the amount shown in Items 3 and 4 of the plaint schedule to the plaintiff and the plaintiff is entitled for future profits or her share in Items 1 and 2 of the plaint schedule from the 1st defendant and defendants 1 to 4 shall pay costs to the plaintiff. The defendants 1 to 4, being aggrieved of the Decree and Judgment had preferred the present Appeal. The 1st respondent/plaintiff filed Cross Objections being aggrieved of the nature of the Decree which had been made in relation to Item No.4 claiming total benefits.
4. In the Appeal, as against Nakka Yerramma, the 3rd respondent/6th defendant in the suit, the Appeal was dismissed for default.
5. For the purpose of convenience, the parties hereinafter would be referred to as "plaintiff" and "defendants" as shown in O.S.No.119/87.
6. Contentions of Sri Lakshmana Sharma : Sri Lakshmana Sharma, the learned Counsel representing the appellants would maintain that since the contesting parties are on record, the order of dismissal for default made by this Court as against the 3rd respondent may not in any way seriously alter the situation. The learned Counsel also would maintain that the trial Court should have accepted the Will Ex.B-13 executed by late Sunder Rao bequeathing his property to the 1st defendant for life and reminder rights to defendants 2 to 4. The Counsel also had taken this Court through the recitals of Ex.B-13 and would maintain that in the light of the evidence available on record, in view of Ex.B-13, the relief should have been negatived to the plaintiff. The Counsel also had taken this Court through the evidence of D.W.3 and D.W.4 in detail and would maintain that the findings recorded by the trial Court while disbelieving Ex.B-13 are unsustainable findings. The learned Counsel also would maintain that Ex.B.2 would clearly go to show that late Sunder Rao had been a Hindu and not a Christian and in the light of Ex.B.2, the trial Court should have recorded a finding relating to the religion of late Sunder Rao as being that of a Hindu and not a Christian. The Counsel also would maintain that the evidence of P.W.1 does not inspire any confidence at all relating to the alleged marital tie between late Sunder Rao and P.W.1. The learned Counsel also pointed out to Ex.B-10, the registered gift deed executed by the father of late Sunder Rao as Alladi Subbaiah in favour of the first wife of late Sunder Rao, Satyavathi, in 1975 regarding Item No. 1 of the plaint schedule towards pasupu-kumkuma. The learned Counsel also pointed out that the documentary evidence placed before the Court would clearly go to show that the 1st defendant alone is the legally wedded wife of the said late Sunder Rao and almost all the family members also had supported the stand taken by the 1st defendant and may be that for some self-serving interest or otherwise, P.W.5/5th defendant alone had supported the version of P.W.1. While further elaborating his submissions, the learned Counsel also pointed out that in the light of Section 33 of the Indian Christian Marriage Act 1872, since the procedural formalities to be complied with being mandatory, Ex.X-1 cannot be relied upon and even if Ex.X-1 to be taken into consideration, the same had not been attested by attestors and the same had not been signed by the spouses and hence the said marriage is invalid. The learned Counsel also would submit that in the light of Ex.B.2, late Sunder Rao being a Hindu, could not have entered into a marital tie under the Christian Marriage Act 1872 with an alleged Christian, P.W.1, and hence viewed from any angle, the marriage, if any, which is being putforth by P.W.1 being a nullity in the eye of Law, the appellants alone would be entitled to the properties left by late Sunder Rao. The learned Counsel in detail had taken this Court through the oral and documentary evidence available on record and also would further maintain that the discrepancies pointed out by the trial Court in relation to Ex.B-13 being very trivial, disbelieving Ex.B-13 recording certain reasons as reflected from the Judgment of the trial Court, definitely are unsustainable. The learned Counsel ultimately would conclude that in the light of the facts and circumstances, the appellants are bound to succeed and the Appeal to be allowed. The learned Counsel also placed strong reliance on certain decisions to substantiate his submissions.
7. Contentions of Sri Suresh : Sri Suresh, the learned Counsel representing the 1st respondent/plaintiff would maintain that except an entry in Ex.B.2, there is over-whelming evidence placed before the Court to show that late Sunder Rao was a Christian and not a Hindu. The Counsel also had pointed out to the relevant findings recorded by the trial Court and the reasons why such entry was shown in S.S.L.C. Register. The Counsel also pointed out to the respective pleadings of the parties and would comment that when a specific assertion was made in the plaint, in the respective written statements the denial being vague, it cannot be taken to be a specific denial. The Counsel pointed out to the relevant portions of the pleadings in this regard. The learned Counsel further strongly relied upon the evidence of P.W.1, P.W.2, P.W.3, P.W.4 and P.W.5 as well and also made elaborate submissions in relation to Ex.A.2 and Ex.X series as well. The Counsel also pointed out that in Ex.B.1, P.W.1 was shown as nominee by late Sunder Rao. Though P.W.4 is related to P.W.1, he is an aged person concerned with Christian Sangham and his evidence may have to be given due weight. The Counsel also placed strong reliance on the evidence of P.W.5 who is the 5th defendant and none other than the brother of the said late Sunder Rao. The learned Counsel also pointed out that P.W.5 deposed that the marriage was celebrated at the house and further pointed out to certain of the admissions made by D.W.1, D.W.2 and D.W.3 also in relation to the cremation and the burial of late Sunder Rao. The Counsel had taken this Court through the relevant provisions of the Indian Christian Marriage Act 1872 and also the Indian Divorce Act and the Marriage Validation Act as well. The Counsel also further pointed out several of the suspicious circumstances surrounding Ex.B-13. While further elaborating his submissions, the learned Counsel would point out that in the light of the specific prayer which had been prayed for that the plaintiff is entitled to the complete benefits covered by Item No. 4, granting a portion of the relief being unsustainable, Cross-Objections had been preferred and hence in the light of the facts and circumstances, the Cross Objections to be allowed and the Appeal to be dismissed. The learned Counsel also placed strong reliance on certain decisions to substantiate his submissions.
8. Heard the Counsel on record and perused the oral and documentary evidence available on record and the findings recorded by the trial Court as well.
9. Pleadings of the parties : Before taking up further discussion, it may be appropriate to have a look at the respective pleadings of the parties. Averments made in the plaint : It was pleaded in the plaint as hereunder:
The plaintiff is the legally wedded wife of late Alladi Sundar Rao, s/o. Subba Rao alias Abraham of Rampa Yerrampalem village. Both belong to Christian religion. They married according to Christian Law on 29-12-1966 at Rampa Yerrampalem in Gokavaram Mandalam under Christian Marriage Act. The marriage was performed by Pastor belonging to Andhra Evangilical Luthern Church, East and West Godavari Synod. The plaintiff and her husband Sunder Rao both belong to Christian religion by the time of the marriage and they are professing Christianity. The Andhra Evanglical Luthern Church maintained the marriage record of the plaintiff and her husband and it is maintained in the regular course to record the marriages performed through that Synod and they had issued a certificate of marriage showing that the marriage between plaintiff and late Sunder Rao was performed on 29-12-1996. It was further pleaded that the father of the said Sunder Rao is Subba Rao and he was converted to Christianity long prior to the birth of late Sunder Rao and after his conversion into Christianity, his name was changed to Abraham. Even though he got converted to Christianity and changed his name as Abraham after such conversion, he is also called as Subba Rao and some times as Abraham. The plaintiff's father-in-law's brother one Alladi John used to write letters to the plaintiff while she was working at Thetagunta in the year 1982 and those letters clinchingly show that the plaintiff is the wife of late Sunder Rao and it shows that they are all professing Christian religion and they are not Hindus. It was also further pleaded that the plaintiff and her husband were working as teachers by the time of their marriage and the plaintiff was working as a Higher Grade Teacher attached to Annavaram Samithi, whereas her husband was working as a Teacher in Sankhavaram Mandalam, but they both were living as wife and husband in Bendapudi, Gopalapuram and Bheemavarapu Kota and other villages in East Godavari and they are professing Christianity all through. It was further specifically pleaded that while so differences cropped up between the plaintiff and her husband in or about the year 1979 and they fell out and each of them began to live separately, but the marriage between the plaintiff and her husband is subsisting till his death. After the differences arose between the plaintiff and her husband, he began to live with the 1st defendant as his kept mistress. There is no marriage between late Sunder Rao and the 1st defendant. Even if there is any such secret marriage, it is not valid under Law as there is no divorce of marriage effected between the plaintiff and her husband. Therefore the 1st defendant is the concubine of late Sunder Rao and she is not the legally wedded wife of Sunder Rao. It was also further pleaded that while so the plaintiff's husband Sunder Rao while he was working as a Secondary Grade Teacher in Mandal Praja Parishad Elementary School at Gokavaram in East Godavari District, died intestate on 4-2-1987. The said Sunder Rao died possessed of Item No. 1 of the plaint schedule property which is a landed property in Rampa Yerrampalem village which was acquired by him. He also owns an ancestral house portion which is described as Item No. 2 of the plaint schedule. According to the information available to the plaintiff, Item Nos. 1 and 2 are the only immovable properties possessed by late Sunder Rao by the time of his death. It was further pleaded that while late Sunder Rao was working as a Teacher, it is learnt that he assured his life with the Life Insurance Corporation of Tuni Branch to the tune of Rs. 10,000/- under Policy No. 37138452. The policy commenced on 14-7-1979 and it matures on 14-7-1994. As he had premature death at the age of 47 on 4-2-1987, the entire amount under the Policy is payable to the plaintiff. It was further pleaded that it is learnt that late Sunder Rao nominated the 1st defendant as nominee under the Policy and according to the provisions of the Insurance Act, the nominee is entitled to collect the amount as an agent and to distribute the legal heirs of the deceased under Law. Therefore, the 1st defendant has no manner or right whatsoever in respect of the amount covered by the Policy which is mentioned as Item No. 3 of the plaint schedule and it has to be distributed among the legal heirs of late Sunder Rao according to Law. It was also further pleaded that according to the Indian Succession Act which governs the rights of the Indian Christians, the widow of the deceased is entitled to half of the properties and the remaining half will go to kindred mentioned in Schedule I as there are no lineal descendents to the deceased. The plaintiff and late Sunder Rao had no children and therefore in Items 1 and 2 of the plaint schedule the plaintiff is entitled to half of the properties and the remaining share shall devolve upon the brother and sisters of the deceased Sunder who are arrayed as defendants 5 to 8. The deceased Sunder Rao left a brother who is the 5th defendant and three sisters who are defendants 6 to 8. There are no other kindred nearer in degree than defendants 5 to 8 to late Sunder Rao. Therefore the plaintiff is entitled to half of the amount payable under the Insurance Policy and the remaining half shall devolve upon defendants 5 to 8. Therefore the plaintiff is asking for partition in respect of Items 1 to 3 of the plaint schedule into two equal shares and allotment of one such share to her. It was also further pleaded that during the life time of late Sunder Rao, as he worked as a Teacher under the erstwhile Zilla Parishad which is now amalgamated into Zilla Praja Parishad, it is arrayed as 10th defendant in the suit. There are number of emoluments payable to the wife who is the dependent upon the deceased according to Law viz., Family Benefit Fund, Provident Fund, Pension etc., and all those amounts are according to the information of the plaintiff would be about Rs. 30,000/- payable to the plaintiff by the 10th defendant through the 11th defendant and the plaintiff is entitled to claim the entire amount covered by Item No. 4 of the plaint schedule. It was also further specifically pleaded that while the plaintiff and late Sunder Rao were living together the deceased Sunder Rao signed on the bible which is now with the plaintiff. This clearly shows that both of them were living together as man and wife and there is no other Sunder Rao than the deceased in Rampa Yerrampalem. It is also learnt that late Sunder Rao after the marriage between the plaintiff and himself, he assured a Policy with Life Insurance Corporation of Tuni Branch wherein he nominated the plaintiff as his wife, but subsequently as he failed to pay the premia, that policy had lapsed but however the Policy, particularly which is lying with the L.I.C., Tanu, clearly goes to show that the plaintiff is the wife of Sunder Rao and that Sunder Rao is a Christian. It is also learnt that late Sunder Rao described his father's name as Abraham in the Life Insurance Policy described as Item No. 3 of the plaint schedule and this clearly disproved the 1st defendant's contention in her reply that there may be another Alladi Sunder Rao in Rampa Yerrampalem village. Therefore all the above evidence clinchingly shows that late Alladi Sunder Rao is the son of Subba Rao alias Abraham and is a Christian and the plaintiff and the said Sunder Rao are wife and husband. It was also further pleaded that after the death of late Sunder Rao the plaintiff got issued a registered notice dated 2-3-1987 to defendants 1 and 9 to 11 demanding the amounts payable in Item Nos. 3 and 4 of the plaint schedule and also for recovery of the properties in Item Nos. 1 and 2 which are in possession of the 1st defendant. The 1st defendant received the notice and got issued a reply dated 17-3-1987 with all false and untenable allegations. It is alleged by the 1st defendant in her reply that late Sunder Rao is not a Christian and he is a Hindu by religion. It is also contended that late Sunder Rao is the son of one Subba Rao but not Abraham. It was pleaded that there is no other Alladi Sunder Rao in Rampa Yerrampalem than the plaintiff's husband and his father's original name is Subbayya or Subba Rao and after his conversion into Christianity, his name was changed into Abraham and this conversion was effected even before any children were born to him. Therefore it is quite untenable to contend that the plaintiff's husband Sunder Rao is a different person than the deceased Sunder Rao. It was also pleaded that it is also falsely alleged in the reply notice that late Sunder Rao had three children viz., defendants 2 to 4 who are two daughters and a son. The plaintiff does not admit that defendants 2 to 4 are the children of late Sunder Rao. Even if they are deemed to be the children of late Sunder Rao they are only illegitimate children but not legitimate children as they were born to the 1st defendant according to her contention. It was also pleaded that it is false to contend by the 1st defendant in her reply notice that late Sunder Rao executed a Will dated 19-1-1987 in a sound and disposing state of mind bequeathing all his properties in favour of defendants 1 to 4. It was further pleaded that late Sunder Rao did not execute any Will either on 19-1-1987 or on any other date and therefore the Will propounded by the 1st defendant dated 19- 1-1987 is a forged Will and it was never executed by late Sunder Rao. The plaintiff also denied the execution, validity and testamentary capacity of late Sunder Rao in executing such a Will. It was further pleaded that the plaintiff and defendants 5 to 8 are the legal heirs according to the Indian Succession Act. Therefore one suit is filed for partition of Items 1 to 3 of the plaint schedule into two equal shares between the plaintiff and the defendants 5 to 8 and allotment of one such share to her and the plaintiff is entitled to one such share to her. The plaintiff is also entitled to claim entire amount described as Item No. 4 of the schedule from defendants 10 and 11. It was also further pleaded that the 9th defendant received the plaintiff's notice dated 2-3-1987 and sent a reply dated 6-3-1987 stating that the Policy number mentioned in the plaintiff's notice is wrong and if the plaintiff gives the correct particulars of the Policy number, he will take necessary action. There is a typographical mistake in mentioning the number of the Policy in the registered notice and the 9th defendant cannot take advantage of it, but however t plaintiff gave the correct particulars of the Policy i.e., Item No. 3 of the plaint schedule. It was also further pleaded that the defendants 10 and 11 even though received the notice, did not send any reply at all and after receipt of plaintiff's notice, the 1st defendant is making all efforts to recover the amounts mentioned in Item Nos.3 and 4 from the defendants 9 to 11 stealthily behind the back of the plaintiff. Therefore the plaintiff is obliged to file the suit for partition in respect of Item Nos. 1 to 3 and for exclusive recovery of the money mentioned in Item No. 4 of the plaint schedule and hence the suit.
Averments made in the written statement of defendants 1 to 4:
The defendants 1 to 4 denied the allegations in para-III of the plaint as false. It was further pleaded that Alladi Sunder Rao, s/o. Subba Rao is the legally wedded husband of the 1st defendant and to the best of knowledge and information, the plaintiff is not the wife of late Alladi Sunder Rao. The marriage between the 1st defendant and late Sunder Rao took place in 1979 openly to the knowledge of one and all. After the marriage, late Sunder Rao and the 1st defendant lived together as husband and wife till Sunder Rao died on 4-2- 1987 at Rampa Yerrampalem. During the said period of matrimonial life, defendants 2 to 4 are born to the said couple. The entire village treated the defendants 1 to 4 as the wife and children of late Sunder Rao and hence the allegations in para-III of the plaint that late Sunder Rao married the plaintiff on 29-12-1966 at Rampa Yerrampalem as per Christian Marriage Act and that the marriage was performed by Pastor belonging to Andhra Evangilical Luthern Church, East and West Godavari Synod and that late Sunder Rao professing Christianity at that time are all false and baseless. It was also pleaded that it is false that the said Church gave a certificate to that effect and it is further stated that it is not difficult now a days to obtain a marriage certificate from Churches and hence it is denied that the plaintiff is the wife of late Sunder Rao. It was further pleaded that the allegations in para-4 of the plaint are false and it is also false to contend that the father of late Sunder Rao converted into Christianity long prior to the birth of Sunder Rao. It is admitted that one Alladi John was the brother of Alladi Sunder Rao, father of Sunder Rao. The defendants 1 to 4 are not aware about the writing of letters to the plaintiff by him while she was staying at Tetagunta and the alleged letters if any do not prove the marriage between the plaintiff and late Sunder Rao and said letters if any might have been got up for the purpose of the suit. Further, the allegations in para-V of the plaint had been denied as false and it was pleaded that it is true that late Sunder Rao for some time worked as a Teacher in Sankavaram Mandalam, but it is false that both the plaintiff and late Sunder Rao lived as husband and wife at Bendapudi Gopalapuram, Bheemavarapukota and other villages in East Godavari District and all through they professed Christianity. It was further pleaded that the allegations in para VI of the plaint are false and it is false to contend that in 1979 both the plaintiff and late Sunder Rao fell out from each other and each of them were living separately since then till the death of late Sunder Rao, but the alleged marriage between them was subsisting. When there was no marriage at all between them there is no question of separation in 1979 and that the marriage is subsisting till the death of Sunder Rao. The admitted long silence by the plaintiff from the date of marriage between the 1st defendant and late Sunder Rao till now without raising any objection for the peaceful living of late Sunder Rao with the 1st defendant and his wife and begetting children with her speaks volumes and falsifies the fantastic story of the plaintiff that she was the wife of Sunder Rao. If really the plaintiff was the wife of late Sunder Rao there is no reason why she is being called as Motha Jayamani by one and all and why she is calling herself also as Motha Jayamani and this shows that she is not the wife of Alladi Sunder Rao. It was also pleaded that it is false to contend that after the alleged differences between the plaintiff and Sunder Rao he began to live with the 1st defendant as kept mistress and it is too much for the plaintiff to contend that the 1st defendant is the kept mistress of late Sunder Rao. It is false to contend that there is no marriage between the 1st defendant and late Sunder Rao. As there is no marriage between the plaintiff and late Sunder Rao by 1979, the marriage celebrated between the 1st defendant and late Sunder Rao is valid and thus the 1st defendant is the only legally wedded wife of late Sunder Rao and the plaintiff has no right to question the same. Further, it was pleaded that the allegations in para-VII of the plaint are false. It was admitted that late Sunder Rao died on 4-2-1987 at Rampa Yerrampalem while he was working as a Secondary Grade Assistant at Mandal Praja Parishad Elementary School, Gokavaram, but he did not die intestate, but died after executing a Will dated 19-1-2007 in a sound and disposing state of mind. It was further pleaded that it is true that late Sunder Rao died possessing plaint schedule properties both movable and immovable properties. Late Sunder Rao bequeathed the immovable properties to the defendants 2 to 4 by name with absolute rights and life estate is given the 1st defendant by name. Late Sunder Rao bequeathed Item Nos. 3 and 4 to the plaint schedule movables to the 1st defendant by name and so the bequest in favour of the defendants 1 to 4 as persona designate as per the last Will and testament dated 19-1-1987 executed by late Sunder Rao. The allegation that late Sunder Rao died intestate is false and baseless. It was further pleaded that the allegations in para-VIII of the plaint are false and it is true that on 7-5- 1979 late Sunder Rao took an Insurance Policy with the 9th defendant for Rs.10,000/- under Policy No. 37138452 which will be matured on 14-7-1994 had he been alive. In that Policy late Sunder Rao clearly mentioned that the 1st defendant is his wife and he also nominated her as wife for collecting the Policy amount and this itself clearly shows that the 1st defendant is the only wife of late Sunder Rao. So, in addition to the Will dated 19-1-1987, the 1t defendant is alone entitled to claim the said Insurance Policy amount from the 9th defendant as late Sunder Rao died on 4-2-1987. It was also further pleaded that it is true that late Sunder Rao nominated the 1st defendant as a nominee and she is entitled to collect the amount. Late Sunder Rao not only nominated the 1st defendant who is his wife for recovery of the said amount, but he nominated the 1st defendant for collecting his gratuity, provident fund and family benefit fund also and hence the 1st defendant is alone entitled to recover the amounts mentioned in Item No. 4 of the plaint schedule and unless the 1st defendant is the wife of the late Sunder Rao he could not have described her as his wife and nominated her for recovery of the said amounts. It was also further specifically pleaded that the 1st defendant underwent Tubectomy operation in the year 1983 after the birth of her last child and since the 1st defendant underwent Tubectomy operation as husband of the 1st defendant, late Sunder Rao was given one increment in his salary in the year 1983 and this clinchingly proves that the 1st defendant alone is the wife of late Sunder Rao. It was also further pleaded that after the death of Sunder Rao the 1st defendant became widow and she is observing widowhood. The plaintiff now came out after the death of late Sunder Rao that she is the wife and she never expressed or claimed the status of the wife of late Sunder Rao at any time during his life time. It was also further pleaded that late Sunder Rao died leaving his aged mother, three sisters who are defendants 6 to 8 and a brother, the 5th defendant. The defendants 5 to 8 are not the heirs of late Sunder Rao for his properties as they are not proper and necessary parties to the suit. The mother of late Sunder Rao is still alive and late Sunder Rao made a provision to her also in her last Will dated 19-1-1987 and she is a necessary party to the suit. As the plaintiff and defendants 5 to 8 are not the heirs to the properties of late Sunder Rao, they are not entitled to claim any of the properties mentioned in the plaint schedule and hence the claim of the plaintiff that the plaintiff is entitled to claim one half share and the defendants 5 to 8 together entitled to the remaining half share is not valid under Law. The allegations in para-IV of the plaint had been denied. It was further pleaded that it is true that there are number of emoluments payable to the wife of late Sunder Rao who is dependent on him on the date of death of late Sunder Rao which are mentioned in Item No. 4 of the plaint schedule. As the plaintiff admittedly is not a dependent on late Sunder Rao by the date of his death, the plaintiff is not entitled to claim the said Item No. 4 of the plaint schedule. The plaintiff is drawing more salary than late Sunder Rao and the defendants 1 to 4 are alone dependents on late Sunder Rao as wife and children by the date of death of late Sunder Rao. So, the defendants 1 to 4 alone are entitled to claim the emoluments mentioned in Item No. 4 of the plaint schedule under Law. Further, the allegations in para-X of the plaint had been denied as false and it was further pleaded that the defendants 1 to 4 are not aware that late Sunder Rao signed in a Bible which is with the plaintiff and it does not show that both lived together as husband and wife. Late Sunder Rao is a good reader of books and he had number of Christian friends and he used to move with them very often. It is false to contend that late Sunder Rao took an Insurance Policy and that in it he nominated the plaintiff as his nominee. The defendants are not aware that the father of late Sunder Rao is also called as Abraham. All the allegations in para-X of the plaint had been denied and the plaintiff was put to strict proof of all the said allegations. It was also further pleaded that late Sunder Rao executed a Will on 19-1-1987 in a sound and disposing state of mind. Even though he was hale and healthy he wanted to have a medical check up at Vizag Hospital and so he wanted to make a settlement with regard to his properties and executed a Will on 19-1-1987 before he left for Vizag. The Will dated 19-1-1987 executed by late Sunder Rao is true, valid and binding on the plaintiff and the defendants 5 to 8. It is to be seen that the husband of the defendants 6 to 8 and a cousin brother of late Sunder Rao are the attestors of the above Will dated 19-1-1987 and so it is full proof that the above Will dated 19-1-1987 is valid, natural and genuine. Further, the allegations in para XI of the plaint also had been denied as false and it was pleaded that the 1st defendant gave a true and prompt reply with true and correct facts for the notice issued by the plaintiff. The 1st defendant also issued a notice to the defendants 9 and 10 also separately appraising them above the true position whether the plaintiff admits or not, the 1st defendant is the legally wedded wife of late Sunder Rao and the defendants 2 to 4 are his children. It was further pleaded that it is most unfortunate that the plaintiff without even trying to see late Sunder Rao all the while from 1979 onwards, all of a sudden she came forward after his death on 4-2-1987 and falsely set up that he was her husband to nab his properties only.
Averments made in the written statement of defendants 6 & 8:
It was pleaded that the allegations in para-III of the plaint are false and it was pleaded that Late Sunder Rao was the younger brother of the 6th defendant and elder brother of defendants 7 and 8. It was denied that late Sunder Rao married the plaintiff on 29-12-1966as per Christian rites and that they both lived as husband and wife. Late Sunder Rao never married the plaintiff nor lived with her as her husband at any time to the knowledge and belief of these defendants 6 to 8. It was further pleaded that the allegations in paras IV and V of the plaint are false. Late Sunder Rao married the 1st defendant and begot three children who are defendants 2 to 4 and thus the 1st defendant is the only wife and defendants 2 to 4 are the children of late Sunder Rao. Both Sunder Rao and defendants 1 to 4 lived together as husband, wife and children. Further, the allegations in para VI of the plaint are false. There is no marriage between Sunder Rao and the plaintiff at any time. The 1st defendant is the real and only wife of late Sunder Rao and the defendants 2 to 4 are his children. The 1st defendant is not a concubine or kept mistress of late Sunder Rao. The marriage was performed openly to the knowledge of one and all and it is not a secret marriage. Further, the allegations in para-VII of the plaint are false. It was further pleaded that late Sunder Rao died while he was working at Gokavaram and he did not die intestate, but he died after executing a Will on 19-1-1987 in a sound and disposing state of mind. It is his last Will and testament. The sisters who are defendants 6 to 8 are aware of it as their husbands are the attestors of the said Will. Late Sunder Rao died possessed of house and lands at Rampa Yerrampalem and as per Law and as per the Will dated 19-1-1987 the defendants 1 to 4 are entitled to succeed but not the plaintiff and the defendants 5 to 8. The defendants 6 to 8 are not claiming any properties of late Sunder Rao. The Will executed by late Sunder Rao dated 19-1-1987 is true, valid and binding on the plaintiff also. It was also further pleaded that the defendants 6 to 8 have no personal knowledge about the allegations in paras VIII to XV of the plaint and the plaintiff is put to strict proof of the same. It was further pleaded that the plaintiff is fully aware that the 1st defendant is the only wife of Sunder Rao and the defendants 2 to 4 are his children and that she had no right to claim any of the properties of late Sunder Rao. Still the plaintiff filed the suit vexatiously unnecessarily impleading the defendants 6 to 8 and so the defendants 6 to 8 are entitled for damages under Section 35-A of the Code of Civil Procedure.
Averments made in the written statement of 9th defendant:
It was pleaded that the 9th defendant has nothing to do with the dispute between the contesting parties. It was further pleaded that there is no intimation of the death of the deceased policy holder. The 9th defendant is willing to abide by the decision of the Hon'ble Court and to carry it into effect after the claim was admitted by it following the procedure for settlement of the claims. It was further pleaded that the 1st defendant did not submit death certificate, claim forms and comply the other requirements to admit the claim on due completion of the usual formalities for settlement of claim in spite of may letters in this regard to her and her Counsel and direction of the Hon'ble Court in I.A.No.1606/87. It was further pleaded the 9th defendant has no objection to deposit Item No. 3 of the Policy, the amount, into the Court on the claim being admitted following the application of claim forms and other requirements after adjusting the debts and other dues payable to the Corporation from the deceased policy holder. The 9th defendant is not a necessary and proper party to the suit. The 9th defendant is a statutory body and will always honour and abide by the decisions of the Courts regarding the heir-ship of the deceased and it never expressed different view to implead the Corporation.
Averments made in the written statement of the 11th defendant:
It was pleaded the 11th defendant is not concerned with the rival claims of the plaintiff and the 1st defendant and whatever monies to which the legal heirs of the deceased Alladi Sunder Rao are entitled to will be paid as per the directions given by the Hon'ble Court. It was further pleaded that the deceased Alladi Sunder Rao s/o. Alladi Subbarao of Rampa Yerrampalem has joined in service on 4-4-1964 in Buadkota of defunct Panchayat Samithi Sankhavaram. On transfer he joined on 22-10-1986 in Panchayat Samithi Elementary School, Gokavaram. The Head Master, M.P.P. Elementary School, Gokavaram reported that Sri Alladi Sunder Rao, Teacher, expired on 4-2-1987 at Kasikota and on receipt of the death report under the provisions of G.O.Ms.No.516, dated 14-11-1985 of General Administration (S.W) Department, Government of Andhra Pradesh, Hyderabad, an amount of Rs. 1000/- was paid towards the cremation charges through the Head Master, M.P.P. Elementary School, Gokavaram. It was also further pleaded that when the deceased Alladi Sunder Rao worked in Sankhavaram Panchayat Samithi, he submitted a sterilization certificate dated 16-7-1985 issued by the Medical Officer, Government Hospital, Tuni certifying that Smt. A. Vijayakumari, his wife, had undergone Tubectomy operation and she is having three living children at the time of operation. It was further pleaded that only after the rival claims of the plaintiff and the 1st defendant are settled, the amounts to which the legal heirs of Alladi Sunder Rao are entitled to, will be paid.
10. Issues settled by the trial Court : The following Issues were settled by the trial Court:
1. Whether the plaintiff is the legally wedded wife of Alladi Sunder Rao ?
2. Whether the Will dated 19-1-1987 set up by defendants 1 to 4 is true, valid and binding on the plaintiff ?
3. Whether the mother of late Alladi Sunder Rao is a necessary party to the suit?
4. Whether defendants 1 to 4 are entitled to Items 3 and 4 of the suit schedule property in view of nomination?
5. To what share, if any, the plaintiff is entitled to ?
6. To what relief ?
11. Oral and documentary evidence available on record:
Witnesses examined for plaintiff:
P.W.1 - M. Jayamani P.W.2 - N. Samuel P.W.3 - Rev. T. Absaloma P.W.4 - B. Jeeva Ratnam P.W.5 - Alladi Peter John Witnesses examined for defendants:
D.W.1 - Alladi Vijaya Kumari D.W.2 - Battina Veera Swamy D.W.3 - N. Dharma Raju D.W.4 - Alladi Devadas Documents marked for plaintiff:
Ex.A.1 dated 14-2-1962 - Photostat copy of S.S.L.C. certificate issued by Head Master, Luthern High School, Rajahmundry by the plaintiff.
Ex.A.2 dated 24-2-1987 - Marriage record issued by A.V. Luthern Church, Rajahmundry.
Ex.A.3 - Bible Ex.A.4 - Post Card written by A. John addressed to the plaintiff Ex.A.5 dated 22-10-1962 - Inland letter written by A. John addressed to the plaintiff Ex.A.6 dated 13-11-1989 - Certified copy of plaint in O.S.No.266/89 on the file of Subordinate Judge, Rajahmundry Ex.A.7 dated 2-3-1987- Office copy of notice issued by the plaintiff through her Advocate to the defendants Ex.A.8 dated 17-3-1987 - Reply given by 1st defendant to Ex.A.7 notice Ex.A.9 dated 6-3-1987 - Reply given by 9th defendant to Ex.A.7 notice Ex.A-10 dated 4-3-1987 - Postal acknowledgement of 10th defendant Ex.A-11 dated 8-3-1987 - Postal acknowledgement of 11th defendant Ex.A-12 dated 26-2-1987 - Tax receipt for Assessment No. 22 for Rs. 2.89 ps. Documents marked for defendants:
Ex.B.1 dated 23-10-1967 - L.I.C. policy bearing No. 537900700 along with proposal etc., in the name of P.Sundara Rao Ex.B.2 - Original S.S.L.C. register of Sunder Rao Ex.B.3 - Photo of Sunder Rao Ex.B.4 - Photo of Vijaya Kumari with Sunder Rao Ex.B.5 - Photo of Vijaya Kumari with Sunder Rao Ex.B.6 - Sterilization certificate issued by the Medical Officer, Tuni Ex.B.7 - Receipt of L.I.C., Visakhapatnam Ex.B.8 - Receipt of L.I.C., Visakhapatnam Ex.B.9 dated 27-9-1983 - Peerless General Finance & Investment Company Limited, Policy of Miss A. Baby Ex.B-10 dated 30-5-1970 -Registered Gift Deed executed by Alladi Subbayya in favour of Ch. Satyavathi Ex.B-11 dated 25-12-1987 - Tax receipt Ex.B-12 dated 17-3-1987 - Tax receipt Ex.B-13 dated 19-1-1967 - Unregistered Will executed by Alladi Sunder Rao Ex.B-14 - Photostat copy of death extract of late Sunder Rao Ex.B-15 dated 18-2-1987 - Proceedings of Mandal Development Officer, Gokavaram, R.C.A./36/87 dated 18-2-1987 Ex.B-16 - Transfer Certificate issued by the Head Master, Rajahmundry Ex.B-17 dated 17-7-1991 - Notice issued by the Advocate for the defendants 1 to 4 Ex.B-18 dated 4-11-1987 - Office copy of report by Alladi Sunder Rao to the S.H.O., Gokavaram Ex.B-19 - Office copy of bill for Rs. 100/- dt.10-12-1981 by Alladi Sunder Rao Ex.B-20 - Ration card from May 1984 to April 1987 Ex.B-21 - Certified copy of record sheet of Alladi Soujanya Priya Darsini Ex.B-22 dated 30-5-1970 - Certified copy of settlement deed executed by Alladi Subbayya Ex.B-23 dated 3-12-1988 - M.R.O's letter Ex.B-24 dated 24-6-1991 - Certified copy of costs certificate (Photostat copy) Documents marked by Court Ex.X.1 - Entry at pages 152-153 Ex.X-2 - Proforma for marriage ban Ex.X-3 - Proforma of marriage register Ex.X-4 - Entry at pages 152 to 155 marked
12. Findings recorded by the trial Court in nut-shell:
The trial Court recorded findings in detail on appreciation of the oral and documentary evidence and while answering Issue No. 2 commencing from paras 9 to 20, several suspicious circumstances had been pointed out and ultimately disbelieved Ex.B-13. While answering Issue No. 4, the fact that late Sunder Rao nominated the 1st defendant as nominee to receive Item No. 3 of the plaint schedule, the Insurance amount payable by 9th defendant, had been taken note, but however, held that the 1st defendant or defendants 2 to 4 cannot exclusively claim Item Nos. 3 and 4 of the plaint schedule on the strength of such nomination. While answering Issue No. 3, the learned Judge held that in view of the subsequent death of the mother of late Sunder Rao, the said Issue does not survive for consideration as all the legal heirs of the mother of late Sunder Rao are before the Court. While answering Issue Nos. 1 and 5, findings had been recorded commencing from paras 24 to 41 and ultimately came to the conclusion that the plaintiff is the legally wedded wife of late Sunder Rao and hence the plaintiff is entitled to half share in Item Nos. 1 to 4 of the plaint schedule and accordingly decreed the suit as already specified above. Aggrieved by the same, the Appeal and the Cross Objections had been preferred.
13. In the light of the elaborate contentions advanced before this Court, the following Points arise for consideration in this Appeal:
1. Whether the findings recorded by the trial Court that the plaintiff is the legally wedded wife of the deceased Sunder Rao can be sustained or liable to be set aside in the facts and circumstances of the case ?
2. Whether the findings recorded in relation to the Will dated 19-1-1987 by the trial Court to be confirmed or to be set aside in the facts and circumstances of the case ?
3. Whether the Cross Objections filed by the 1st respondent/plaintiff to be allowed or liable to be dismissed in the facts and circumstances of the case ?
4. If so, to what relief the parties would be entitled to ?
14. Point Nos. 1 to 3 : For the purpose of convenience and to avoid over-lapping of the findings, these Points are dealt together.
15. The respective pleadings of the parties, the evidence available on record, the findings recorded by the trial Court in nut-shell while answering the Issues already had been referred to supra. The plaintiff filed the suit for the relief of partition and other appropriate reliefs as already specified above and the trial Court on appreciation of the evidence available on record disbelieved Ex.B-13 Will dated 19-1-1987 said to have been executed by late Sunder Rao, believed the stand taken by P.W.1 as the legally wedded wife of the deceased Sunder Rao and ultimately decreed the suit. P.W.1 is the plaintiff who had deposed in detail relating to all the facts which had been narrated in the plaint. She had specifically deposed that late Alladi Sunder Rao was her husband and both of them are Christians and she studied upto S.S.L.C. Ex.A.1 is the Xerox copy of the first page of S.S.L.C. Register showing her date of birth and that she is a Christian by religion. P.W.1 further deposed that she was married to Alladi Sunder Rao at Rampa Yerrampalem on 29-12-1966 and N. Samuel, Pastor, performed their marriage under Christian custom and the details of the marriage had been entered in the marriage register maintained by the Pastor. All the marriages performed in the East and West Godavari Districts are available with the Synod of East and West Godavari. Ex.A.2 is the certificate of marriage issued on the basis of entries in the marriage register and by the date of marriage her husband was working as a Teacher at Agraharam and he belongs to Rampa Yerrampalem and she is a native of Vutalanka, Rajahmundry. By the date of marriage, P.W.1 was working at Bendapudi as a Teacher. This witness also deposed that Prasada Rao and B. Jeevaratnam attested their marriage in the marriage register. In the marriage register the signatures of the bride and the groom are not obtained. Peter John who is the 5th defendant, is the only brother of her husband and defendants 6 to 8 are the sisters of her late husband. Subba Rao @ Abraham is her father-in-law. Alladi John and Yesuratnam are the brothers of her father-in-law. Yesuratnam is no more and John is hale and healthy. This witness also deposed that Sunder Rao and herself lived as wife and husband and in 1989 Sunder Rao and P.W.1 got separated and started living separately, however, they did not obtain any divorce and her husband Sunder Rao died on 4-2-1987 intestate. P.W.1 also deposed that her husband used to sign only in English and he was never in the habit of signing in Telugu and late Sunder Rao studied upto S.S.L.C. The 1st defendant is not the wife of late Sunder Rao, but she had illicit intimacy with Sunder Rao. Defendants 2 to 4 are not the children of Alladi Sunder Rao. P.W.1 had narrated several other details and also deposed about Ex.B.1 Policy and proposal form of the Insurance Policy taken by her husband in 1967. P.W.1 also deposed that Ex.B.1 would go to show that she is the wife of late Alladi Sunder Rao and she was the nominee. All the signatures found in the proposal forms are of her husband. P.W.1 also deposed about the 5th defendant and his mother filing O.S.No.266/89 for partition of properties of her father-in-law wherein she was shown as the 4th defendant. Ex.A.6 is a certified copy of the plaint in O.S.No.266/89. P.W.1 also deposed about Ex.A.4 and Ex.A.5, the letters said to have been written by Alladi John, younger brother of her father-in-law. She deposed that O.S.No.266/89 also would disclose that they are Christians by religion. She got issued a notice to the defendants 9 to 11 and the office copy of the same is Ex.A.7. Ex.A.8 is the reply issued by the 1st defendant and Ex.A.9 is the reply issued by the 9th defendant. Exs.A-10 and A-11 are the postal acknowledgements under which defendants 10 and 11 received the notice under Ex.A.7. Ex.A-12 is the tax receipt in respect of Item No. 2 of the plaint schedule. P.W.1 also specifically deposed that there is no other person by name Alladi Sunder Rao at Rampa Yerrampalem, except her husband. P.W.1 also deposed about Ex.X-1 and the relevant pages of marriage register maintained by the Church authorities showing the marriage having been celebrated with Alladi Sunder Rao. Ex.X-1 contains the signature of the Pastor Samuel who performed the marriage. Prasad Rao and Jeeva Ratnam are the witnesses who were present. This witness was cross-examined at length and no doubt she deposed that Ex.B.2 is the S.S.L.C. register and her husband which shows that late Sunder Rao was a Hindu and he belongs to Adi-Andhra community and his father's name in Ex.B.2 was shown to be Subba Rao. P.W.1 also deposed that after conversion into Christianity, the father of her husband changed his name as Abraham. P.W.1 also deposed that there is no record showing that she is the wife of late Sunder Rao except Ex.X-1. In the cross- examination several questions were put to this witness about the separate living in view of the differences which arose between Sunder Rao and herself. This witness also deposed that her husband and this witness did not meet each other subsequent to the separation in January 1979. She further deposed that she hoped subsequent to January 1979 that her husband would change one day or the other and would join her. P.W.1 also deposed that there is no letter either in Telugu or in English from late Sunder Rao addressed to her. P.W.1 also deposed that she does not know whether her husband Sunder Rao was married to Chella Satyavathi at the behest of parents of Sunder Rao in May 1970 and she does not know whether the father of late Sunder Rao executed registered gift deed in favour of Challa Satyavathi on 30-5-1970 describing her as the wife of Sunder Rao. P.W.1 also deposed that she does not know whether Chella Satyavathi died one year after her marriage with Sunder Rao. She also deposed that her husband gave Ex.A.3 while she was working at Bendapudi and she wrote her name on Ex.A.3 at Bendapudi and her husband writes in Telugu now and then though he never signed in Telugu. P.W.1 also deposed that in Ex.A.4 and Ex.A.5 which were addressed to her by John, a reference was made to her as Motha Jayamma and not Alladi Jayamma and it is true that Ex.A.4 and Ex.A.5 were addressed to her only. P.W.1 also deposed that Sunder Rao lived with the 1st defendant from 1979 onwards till his death though he did not marry her. She came to know of late Sunder Rao and the 1st defendant lived together during this period only after the demise of late Sunder Rao. P.W.1 also deposed about the other relatives of Sunder Rao and several of the family details of Sunder Rao as well. Several suggestions put to this witness had been specifically denied. It is pertinent to note that the cross-examination of defendants 1 to 4 had been adopted by defendants 6 to 8 as well and in the light of the cross-examination of defendants 10 and 11, certain facts had been elicited. This is the evidence of P.W.1.
16. It is needless to say that P.W.1 had repeated what had been pleaded in the plaint. As can be seen from the respective pleadings of the parties, it is however pertinent to note that the episode of Satyavathi is being brought in only at the stage of evidence and on a careful analysis of the respective pleadings of the parties, it appears that this is a subsequent episode which had been introduced. Be that as it may, some oral and documentary evidence had been placed in this regard as well.
17. The evidence of P.W.2 is crucial. P.W.2 deposed that he worked as Pastor from 1961 to 1968 at Gokavaram under AIC Church and he was having jurisdiction over 15 villages including Rampa Yerrampalem at that time. He further deposed that Gokavaram is at a distance of 4 miles from Rampa Yerrampalem and also deposed that both these parties belonged to Christian religion. P.W.2 further deposed relating to the other aspects of ascertaining whether the spouses belonged to Christianity and the performance of the marriage and other details. He deposed that he knows Alladi Sunder Rao as well as P.W.1 and Alladi Sunder Rao s/o. Abraham and he performed the marriage of Sunder Rao with P.W.1 on 21-12-1966 at Rampa Yerrampalem. P.W.2 also deposed that Penugonda Prasada Rao and Jeeva Ratnam were present at the time of marriage and signed the marriage register and the procedure for marriage referred to by him had been followed even in the case of marriage of P.W.1 with Sunder Rao. P.W.2 also specifically deposed that he was satisfied that P.W.1 and Sunder Rao are Christians and he knows Sunder Rao's father Abraham and Abraham's brother Yesuratnam and John and all of them are Christians. He also further deposed about the details relating to the marriage rites, size of the marriage register and how the signatures of bride and bride groom and the signatures of the attestors would be obtained and the other aspects. P.W.2 also deposed that once in three months the true extracts of the marriages performed by him are sent to the Luthergiri Church Marriage recorder, Rajahmundry. Ex.X-3 is the proforma of the true copy of the marriage register sent to the marriage recorder once in three months. The marriage recorder enters the marriage in the register maintained by me and Church authorities basing on the true extracts of the registers sent by me. Whenever P.W.2 visits Luthergiri Church he signs the marriages performed by him in the Marriage Recorder register maintained by the Luthergiri Church. Ex.X-1 bears his signatures. Ex.X-1 relates to the marriage of P.W.1 with Sunder Rao. Ex.X-4 are the relevant pages, pages 152 to 155 of the above maintained marriage record containing his signature in the last column. He had taken away the register maintained by him to Polavaram in 1968 when he was transferred to Polavaram as the leaves in the book were not completed and at Polavaram the register was later lost in the floods. Sunder Rao and the plaintiff thus were man and wife under Christian marriage rules. In cross-examination, this witness deposed that he is not having any documentary evidence showing interalia that he was authorized to perform marriages and maintain marriage registers and he does not have any documents showing the signatures of late Sunder Rao and the plaintiff in token of the marriage between them. Relating to several of the questions put this witness with regard to the religion of Sunder Rao, he had given clear answers. P.W.2 also deposed that it is not true that he did not perform the marriage of P.W.1 with Sunder Rao on 29- 12-1966 and suggestions put to this witness in relation to Ex.X series also had been specifically denied.
18. The evidence of P.W.3 is more or less formal in nature, well supporting the evidence of P.W.2. This witness P.W.3 deposed that he had been working as a marriage recorder since 1982 for the East and West Godavari Districts of AFL Church and deposed about the procedure and also Ex.X-1 entry and also deposed that P.W.2 is a retired Pastor and he worked in East and West Godavari Synods. P.W.3 also deposed from the entries in the marriage register from 1957to 1976 and he is able to say P.W.2 worked as a Pastor at Gokavaram. Even in cross-examination this witness had given convincing answers and it is needless to say that this evidence of P.W.3 would clearly support the version which had been deposed by P.W.2.
19. P.W.4 is a good old man of 70 years who deposed about the attending of the marriage on behalf of P.W.1 and also further deposed about his signature as a witness in the book maintained by the Pastor at the relevant point of time. It is no doubt true that this witness is related to P.W.1, but that by itself, it cannot be said that his evidence may have to be totally discarded.
20. P.W.5 is the 5th defendant. This witness is yet another crucial witness who is none other than the elder brother of Alladi Sunder Rao. The evidence of this witness also may have to be carefully scrutinized for the reason that this witness may be also a beneficiary in the event of Ex.B-13 and also the stand taken by defendants 1 to 4 to be negatived. This witness no doubt deposed relating to all the family affairs of Sunder Rao and Sunder Rao being a Christian and the marriage of P.W.1 with Sunder Rao and these parties belonging to Christianity and several of the suggestions put to this witness had been specifically denied. Though this witness was shown as the 5th defendant, this witness had figured himself as P.W.5 supporting the version of P.W.1.
21. As against this evidence of P.W.1 to P.W.5, the evidence of defendants 1 to 4 is available on record. D.W.1 is the 1st defendant and defendants 2 to 4 are the children. D.W.1 deposed that her marriage had taken place on 11-10-1979 at Rampa Yerrampalem, i.e., her parents-in-law's place and the marriage had taken place as per the Hindu rites. D.W.1 also deposed about the birth of the children and also further deposed that she had undergone Tubectomy operation and Ex.B.6 is a Photostat copy of the same issued by the Medical Officer. The original certificate was given in the name of the husband for drawing increments by him. D.W.1 also deposed about Ex.B.7 and Ex.B.8, Insurance premia receipts, wherein her name was shown as wife and she was nominated by the husband to receive Insurance amount. D.W.1 also deposed that her husband invested monies in the name of the 4th defendant in the Peerless company as per Ex.B-9 certificate. Prior to her marriage with Sunder Rao, Sunder Rao married one Satyavathi. Her father-in-law gave Ac.1-50 cents of mango garden to her as per Ex.B-10 registered deed. Alladi John is her junior father-in-law and identified his signature. Ex.B-10 contains his signature as attestor. Satyavathi died two or three years after Ex.B-10. She was in possession of the mango garden till her death and she died issueless. D.W.1 also deposed about Exs.B-11 and B-12, tax receipts. She further deposed that her husband executed Will in respect of the properties dated 19-1-1987 and her husband handed over the Will to her and she was not present at the time of its execution and she was in her parents house during vacation. D.W.1 also deposed the last rites of her husband were performed as per Hindu custom. Ex.B-14 is a Photostat copy of her husband's death certificate. D.W.1 specifically deposed that no marriage was performed between her husband and P.W.1. The Government sanctioned the funeral expenses of her husband in favour of D.W.1 as per Ex.B- 15. Ex.B-16 is the Transfer Certificate of her husband. Ex.B-17 is the notice issued by her Advocate to A.G.P. D.W.1 also deposed that she had got disputes with P.W.5 with regard to landed property and she filed a suit against P.W.5 and obtained a decree. P.W.5 and her mother-in-law filed another suit against D.W.1. D.W.1 further deposed that P.W.1 has no rights in her husband's property. She also deposed about Ex.B-3, photo of her husband, showing her also after marriage. Ex.B.4 is the photo of her husband with herself and her children. Ex.B.5 is yet another photo taken at the time of her husband's death. No doubt D.W.1 deposed in cross-examination that the dead body of Sunder Rao was buried. She also deposed that the Will was not registered because they were in the hospital of Pithapuram Doctor at Tuni from 20-1-1987 onwards upto 29-1-1987. The hospital records of Tuni show her husband's admission in that hospital. No doubt D.W.1 had denied several suggestions inclusive of the suggestion relating to signatures. However she deposed that there are documents containing the Telugu signatures of her husband and she will produce them. She had denied certain other suggestions.
22. D.W.2 is a resident of Rampa Yerrampalem and no doubt deposed about the marriage of Sunder Rao and Satyavathi and after her death Sunder Rao marrying P.W.1. Again this witness deposed that Sunder Rao married D.W.1. This is what had been recorded. This witness also deposed that Sunder Rao never lived with P.W.1 in the village. He also deposed that he attended the marriage of Sunder Rao with D.W.1 and the marriage was celebrated as per Hindu rites. In the cross-examination suggestions put to this witness had been denied. However, this witness deposed that Sunder Rao's paternal uncle John and another paternal uncle Yesuratnam are Christians and he further deposed that he does not know whether the Sunder Rao's father was also called Abraham, but deposed that they called him as Subbaiah.
23. D.W.3, yet another resident of the village, deposed in detail about the marriage and the other related aspects and also deposed that he had signed and attested the Will. Alladi Devadas, Nakka Christian Das also signed as attestors of the Will. Pati Sesharao is the scribe of the Will and he is no more. This witness also deposed that this witness had seen Sunder Rao signing the Will and Sunder Rao saw this witness and other attestors signing the Will as attestors. Ex.B-13 is the Will. Sunder Rao lived for one month or 15 days after Ex.B-13. D.W.3 also deposed that his wife is the younger sister of Sunder Rao and the 8th defendant is his wife. The 6th defendant's husband is Christian Das. The last rites were performed as per Hindu custom after the death of Sunder Rao. D.W.1 is in possession of the properties. D.W.3 in cross- examination deposed that the marriage of Sunder Rao with Satyavathi had taken place at the house of Sunder Rao and he does not remember the date, month or year of the said marriage. D.W.3 also deposed that the Will was executed during Sankranthi month and he does not remember whether it was before or after Sankranthi festival and it was executed at Sunder Rao's house at about 3 or 4 p.m. There are several residential houses around the house of Sunder Rao. No neighbouring residents came there at the time of execution of the Will and no ryots in the village came there. D.W.3 also deposed that Sunder Rao and Devadas came to his house and called him at that time. The Will was executed on two papers. Sunder Rao told him that he obtained the draft of the Will from the Advocate and was getting the same written as Fair Will. He had signed the draft. The scribe Sesha Rao read over the draft Will and after preparing the original Will he again read it over. At the request of Sunder Rao, the scribe read over the draft Will. D.W.3 also deposed that D.W.1 was not present at the place of execution. Sunder Rao signed on both the pages of the Will. Sunder Rao signed in Telugu and he does not know whether Sunder Rao always signed in English. Except in the Will he did not see Sunder Rao signing in Telugu. Sunder Rao was healthy except suffering from Asthma cough. Sunder Rao died 15 days after the Will. This witness was elaborately cross-examined relating to the nature of the pen and the other details and several of the suggestions put to him also had been denied.
24. D.W.4 deposed that D.W.1 is his sister-in-law and D.W.1 is the wife of Sunder Rao who is his senior paternal uncle's son. He further deposed that Sunder Rao was also a Hindu and the marriage was celebrated as per Hindu custom i.e., Mala custom, between Sunder Rao and D.W.1 and he had attended the marriage. D.W.4 also deposed that Sunder Rao executed a Will and he had signed as attestor in that Will. D.W.3 and Christian Das also signed as the attestors of the said Will and he had seen Sunder Rao signing the Will and Sunder Rao saw them signing as attestors in the Will. Then Sunder Rao was suffering with Asthma. Ex.B-13 is the Will executed by Sunder Rao. Prior to his marriage with D.W.1, Sunder Rao married Satyavathi. Sunder Rao's father gave one acre of land to Satyavathi and he can identify the signature of Alladi John. Ex.B-10 contains the signature of Alladi John as attestor. Sunder Rao lived with Satyavathi for one year. He also deposed that Sunder Rao never married P.W.1 as his wife and both of them never lived together as man and wife. This witness was cross- examined in elaboration in relation to Ex.B-13. This witness deposed that due to illness of Sunder Rao the Will was not registered even on the same day of its execution or on the next day. D.W.4 further deposed that Rajahmundry is at a distance of 25 miles from the village and they have to cross Korukonda to reach Rajahmundry from their village and there is a Sub-Registrar's office in Korukonda. All the buses from Rajahmundry to Gokavaram go via Korukonda. From Rajahmundry they had gone to the village via Korukonda. No doubt, this witness D.W.4, deposed that it is not true to say that Ex.B-13 is a fabricated one.
25. Elaborate submissions were made that in the light of the evidence available by the learned Counsel for the appellants that the said late Sunder Rao is not a Christian at all, but and the Counsel representing the contesting respondent/plaintiff contending otherwise that there is ample evidence available on record and hence it cannot be said that just in the light of Ex.B.2 a finding can be recorded that late Sunder Rao was not a Christian. It is true that in Ex.B.2 Sunder Rao was shown as 'Adi Andhra Hindu'. Several of the circumstances and also the voluminous evidence available on record, if carefully scrutinized, this Court is of the considered opinion that the findings recorded by the trial Court in this regard cannot be found fault. The clear evidence of P.W.1, P.W.2, P.W.3, P.W.4 and also P.W.5 is available on record. It may be that P.W.5 may be having enmity with D.W.1 for certain family reasons. May be, P.W.5 may be interested in supporting the version of P.W.1 due to certain other reasons as well. Even if the evidence of P.W.5/5th defendant in the suit to be viewed with some suspicion, the independent evidence of P.W.2 and P.W.3 supporting the version of P.W.1 is available on record. P.W.4, though a relative of P.W.1, also had deposed the same. In the light of the voluminous evidence available on record, Ex.A.2, Exs.X-1 to X-4 and also certain admissions which had been pointed out in the evidence of D.W.1 as well and further taking into consideration the names of the kith and kin of late Sunder Rao, the brothers of the father of late Sunder Rao as well, this Court is of the considered opinion that just on the mere entry made in Ex.B.2, it cannot be said that late Sunder Rao was a Hindu and not a Christian and hence the findings recorded by the trial Court that the parties belonged to the Christian religion cannot be found fault and accordingly the said findings are hereby confirmed.
26. The principal question which had been argued in elaboration is in relation to the validity of the alleged marital tie between P.W.1 and late Sunder Rao and submissions at length were made in this regard. As already referred to supra, Ex.B-10 was thought of at a later point of time and the episode of Satyavathi also had been introduced at a later point of time and this aspect had not been raised by way of plea at the earliest point of time in the pleadings. Even otherwise, taking the dates into consideration, the episode of Satyavathi would lose its importance and hence further findings in detail need not be recorded in this regard. Several decisions had been relied upon and the relevant provisions of the Indian Christian Marriage Act 1872 and also the Indian Divorce Act had been referred to apart from the Marriage Validation Act, as well.
27. While dealing with Section 4 of the Christian Marriage Act 1872, the Full Bench of the Madras High Court in Kolandai Velu v. Dequidt AIR 1918 Madras 601 (F.B.) observed that the Christian Marriage Act was intended to apply to the marriages of all Christians in India including the marriages when one of the parties is a Christian. However, this question need not detain this Court any longer for the reason that this Court already had recorded a finding that late Sunder Rao, in the light of the voluminous evidence available on record, to be taken as a Christian and not as a Hindu just on the mere entry said to have been made in Ex.B.2.
28. Further strong reliance was placed on A.A. Balasundaram v. A. Vijayakumari 1991 Crl.L.J. 2254 wherein the learned Judge of this Court at paras 11 and 12 observed:
It is next submitted that according to Section 4 of the Indian Christian Marriage Act, marriage between two Christians or one of whom is a Christian shall be void, if it is not solemnized in accordance with the provisions of Section 5 of the said Act; and since it is not admittedly so performed, the contention advanced is that the marriage should be declared void.
It is to be borne in mind that the rigour of voidness covered by Section 4 of the Indian Christian Marriage Act is stressed and attached more to the persons that officiate in the solemnization of the marriages, and it does not envisage as regards the validity or otherwise of a marriage simpliciter that took place between a Hindu and a Christian. This view is again fortified by Section 4 of the Special Marriage Act, which permits a marriage between two persons of different faiths. Therefore, a Hindu can marry a Christian under the Special Marriage Act. Such a marriage cannot be held to be void on the ground that it was not performed according to the provisions of Section 5 of the Indian Christian Marriage Act. Similarly, Section 4 of the Foreign Marriage Act permits a marriage between parties, one of whom at least is an Indian citizen residing outside India. On a similar analogy as noted supra, even a marriage under this Act, is performed between a Hindu and a Christian both or one of whom is an Indian citizen, cannot be held to be void on the ground that it is not performed in accordance with the provisions of Section 5 of the Indian Christian Marriage Act.
29. Further reliance was placed on the decision of the Orissa High Court in K.P.J. David v. Nilamani Devi wherein the learned Judge of Orissa High Court at paras 5 and 7 observed:
It was contended at the Bar that the marriage of an Indian Christian can only be valid, if it is performed in accordance with the provisions of the Indian Christian Marriage Act, Section 4 of that Act provides for the solemnization of the marriage in accordance with the Act and lays down that every marriage between persons, one or both of whom is a Christian or Christians, shall be solemnized in accordance with the provisions of the next following section, and any such marriage solemnized otherwise than in accordance with such provisions shall be void.
The next section, that is, Section 5 provides the persons by whom marriage may be solemnized; and it says that marriage may be solemnized in India (i) by person who has received Episcopal ordination, provided that the marriage be solemnized according to the rules, rites, ceremonies and customs of the Church of which he is a Minister; (ii) by any Clergyman of the Church of Scotland, provided that such marriage be solemnized according to the rules, rites, ceremonies and customs of the Church of Scotland, (iii) by any Minister of Religion licensed under this Act to solemnize marriages; (iv) by or in presence of, a Marriage Registrar appointed under this Act; and (v) by any person licensed under this Act to grant certificates of marriage between Indian Christians.
Thus Section 5 lays down certain classes of persons who can solemnize marriage between Indian Christians, but the Act nowhere provides that the marriage amongst the Indian Christians can be proved only in the manner as stated in Section 5 of the Act. The Indian Evidence Act also does not lay down any special mode of proof of a Christian Marriage. Hence the admission by either of the spouses of the fact of marriage and the subsequent conduct of the couple in living as husband and wife are some of the recognized modes of proof of marriage. The plaintiff having filed a suit for declaration that his marriage with the defendant was invalid, doubtless, the onus lies on him to prove that the marriage was not solemnized by any of the authorized persons prescribed in Section 5 of the Act as stated above.
...
The plaintiff examined the Pastor of Berhampur as P.W.1. According to the admission of the plaintiff in Ext.A the marriage took place on 13-10-1948. Thus, admittedly he was not the Pastor in 1948, in which year the marriage took place. Doubtless P.W.1 had proved the licenses, Ests.1 and 2 authorising him to solemnize Christian marriages, but that is of no avail to the plaintiff. He has also not produced the register either for the year 1949 or for the year 1948. P.W.2 admitted that one Debendra Naik was the Pastor prior to P.W.1, that is, prior to November 1949. Admittedly this Debendra Naik was the Pastor in the year 1948. Although evidence is that he was at Cuttack and was alive the plaintiff did not examine him. It must be mentioned in this connection that the defendant had admitted in her cross-examination that neither she nor the plaintiff signed any marriage register at the time of their marriage. It may not be necessary to sign the marriage register under the Indian Christian Marriage Act, if the marriage is held at the house of the defendant's mother. There is no evidence on the side of the plaintiff that it was never signed even thereafter, nor has the register for the year 1948 been called for and produced at the trial. Thus, the plaintiff has signally failed to discharge the onus that lies on him and it is fairly clear from his admission coupled with the subsequent conduct of the parties, particularly of the plaintiff that the defendant was his legally married wife. Accordingly, there is no merit in this appeal and it is dismissed. But there would be no order for costs as the respondent did not appear in this Court.
30. Another question which had been argued in elaboration in relation to validity or otherwise of Ex.X-1 is that the same being not in conformity with Section 33 of the Indian Christian Marriage Act 1872. It is pertinent to note that the defence is one of total denial of the marriage between P.W.1 and late Sunder Rao and it is not the case of the appellants/defendants that late Sunder Rao obtained valid divorce in accordance with Law by putting an end to the marital tie between himself and P.W.1 and the alleged marriage between P.W.1 and late Sunder Rao being not in conformity with the statutory requirements as specified by Section 33 referred to supra, even otherwise the same to be held to be invalid. In this regard several relevant provisions of the Christian Marriage Act 1872 i.e., Sections 4, 5, 9, 10, 11, 12, 38, 59, 60, 77, 66 and 80 of the said Act had been referred to.
31. Section 4 of the Indian Christian Marriage Act 1872 reads as hereunder:
Marriages to be solemnized according to Act : Every marriage between persons, one or both of whom is or are a Christian, or Christians, shall be solemnized in accordance with the provisions of the next following section; and any such marriage solemnized otherwise than in accordance with such provisions shall be void.
Section 5 of the said Indian Christian Marriage Act 1872 reads as hereunder : Persons by whom marriages may be solemnized : Marriages may be solemnized in India:
(1) by any person who has received episcopal ordination, provided that the marriage be solemnized according to the rules, rites, ceremonies and customs of the Church of which he is a Minister;
(2) by any Clergyman of the Church of Scotland, provided that such marriage be solemnized according to the rules, rites, ceremonies and customs of the Church of Scotland;
(3) by any Minister of Religion licensed under this Act to solemnize marriages;
(4) by, or in the presence of, a Marriage Registrar appointed under this Act;
(5) by any person licensed under this Act to grant certificates of marriage between Indian Christians.
Section 33 of the said Act reads as hereunder:
Entries of such marriages to be signed and attested: The entry of such marriage in both the certificate and marriage-register-book shall be signed by the person solemnizing the marriage, and also by the persons married, and shall be attested by two credible witnesses, other than the person solemnizing the marriage, present at its solemnization.
Every such entry shall be made in order from the beginning to the end of the book, and the number of the certificate shall correspond with that of the entry in the marriage-register-book.
Section 80 of the said Act also may be glanced at for the purpose of better appreciation of the facts of the case and the said provision reads as hereunder:
Certified copy of entry in marriage-register, etc., to be evidence: Every certified copy, purporting to be signed by the person entrusted under this Act with the custody of any marriage-register or certificate, or duplicate, required to be kept or delivered under this Act, of any entry of a marriage in such register or of any such certificate or duplicate, shall be received evidence of the marriage purporting to be so entered, or of the facts purporting to be so certified therein, without further proof of such register or certificate, or duplicate, or of any entry therein, respectively, or of such copy.
Further, relevant provisions of the Indian Divorce Act also had been incidentally pointed out.
32. On a careful scrutiny of Ex.X-1, it is no doubt true that the attestors had not signed the same. The spouses also had not signed in it and in the absence of the same, it is contended that the said marital tie between P.W.1 and late Sunder Rao cannot be said to be valid in the eye of Law. In other words, though voluminous evidence is available on record apart from Ex.X-1 which already had been referred to supra in relation to the marital tie of P.W.1 with the said late Sunder Rao, the principal contention is that inasmuch as Ex.X-1 is not in accordance with Section 33 of the Indian Christian Marriage Act 1872 and the said marital tie not satisfying the statutory requirements, in other words the mandatory requirements, the same to be held to be invalid. It is no doubt true that prima facie, this contention appears to be very attractive especially in the light of the language of Section 33 of the Indian Christian Marriage Act 1872. Where there is no clear expression of the Legislative intent of the resultant consequence of non-compliance of Section 33 of the Indian Christian Marriage Act 1872, it cannot be inferred that such marriage to be treated as a nullity, void or voidable. Courts are not expected to supplement except in case of immense need and to avoid absurdity to make the Legislative intent meaningful. This is not one such a case since even on facts, there is ample acceptable evidence in relation to the marital tie between P.W.1 and late Sunder Rao. On a careful analysis of the penal provisions and also the scope and ambit of the Act, the Indian Christian Marriage Act 1872, though the language employed is shall in Section 33 of the Act aforesaid, there is no specific provision declaring such marriage as specifically void or voidable or specific penal consequences in relation thereto though specified in relation to persons who perform such marriages, the Act being silent in relation to the declaration of either such marriage being void or voidable, in the peculiar facts and circumstances, this Court is of the considered opinion that if otherwise a valid Christian Marriage is established by acceptable evidence produced before the Court, on the mere fact of such non-compliance of certain of the formalities specified in Section 33 of the Indian Christian Marriage Act 1872, the marriage as such cannot be declared as a nullity or void. This is the only opinion at which this Court can arrive at in the light of the Legislative intent as reflected from the different provisions of the Indian Christian Marriage Act 1872. It is made clear that when the marriage of the Christian if otherwise doubtful, may be that the compliance of Section 33 of the said Act also may have to be looked into. But in a case of this nature, where the other clear evidence is available, the evidence of P.W.2 and P.W.3, further well supported by the evidence of P.W.4, another witness, this Court is of the considered opinion that the marriage of P.W.1 with late Sunder Rao cannot be held to be invalid on the ground that the same suffers from the legal infirmity or non-confirming with Section 33 of the Indian Christian Marriage Act 1872. The other incidental questions argued in relation to the Marriage Validation Act and also the provisions of the Indian Divorce Act need not be adverted to in detail in the light of the opinion expressed by this Court. Hence, in the light of the findings recorded by the trial Court and also in the light of the voluminous evidence available on record, both oral and documentary evidence, the evidence of P.W.1 to P.W.4, though P.W.5 may be otherwise interested, this Court is well satisfied that the marriage between P.W.1 and late Sunder Rao had been established and the same had been done in accordance with the Christian rites. It is needless to say that even as per the admitted case of D.W.1, the alleged marriage of D.W.1 being subsequent thereto and in view of the clear evidence that there is no divorce obtained in relation to the first marriage in between the Christian spouses - late Sunder Rao and P.W.1, as well, the findings recorded by the trial Court in this regard cannot be found fault.
33. It is no doubt true that it is really unfortunate that due to the differences between P.W.1 and late Sunder Rao they had been living separately for sufficiently a long time and may be subsequent thereto, late Sunder Rao could have contracted yet another marriage and could have begotten children also. It is also unfortunate that the children interested also cannot be protected and in the light of the relevant Legislations governing the field relating to Christians, this Court is not inclined to express any further opinion. The stand taken by D.W.1 to D.W.4 to the effect that the cremation and the last rites of late Sunder Rao had been done in accordance with Hindu rites, these aspects had been introduced for the purpose of litigation and these aspects need not be given much credence.
34. The next crucial question which may have to be decided is validity or otherwise of Ex.B-13. Ex.B-13 is an unregistered Will. It is no doubt true that the mere registration of Will would not add sanctity to a Will and on the ground of mere non-registration of a Will, a Will always need not be disbelieved. It is not as though late Sunder Rao was an uneducated man. He was an educated man and worldly wise man as well. It may not be out of context if it is referred to that total non-mentioning of the marital tie of late Sunder Rao with P.W.1 in Ex.B-13 also may have to be taken into consideration and this would create a serious doubt in the mind of the Court relating to the genuineness of Ex.B-13. It is also pertinent to note that despite ample oral and documentary evidence available on record that the family of late Sunder Rao had been professing only Christian faith, specific defence had been taken that late Sunder Rao had been professing only Hindu faith and it appears that this stand was taken for certain reasons, may be with a view to see that certain provisions of the Hindu Marriage Act in this regard to be attracted so that the children may be put to some benefit. But however, in the facts and circumstances of the case, a particular case to be carefully examined while appreciating whether the suspicious circumstances if any surrounding the Will had been clearly explained by the propounder of the Will. The evidence of P.W.1 is clear and categorical and Ex.B-1 also is pressed into service to show that late Sunder Rao had been signing in English and the signature of late Sunder Rao also is available. In Ex.B-13, late Sunder Rao signed in Telugu. It is no doubt true that there is admission of P.W.1 that at certain times late Sunder Rao was writing in Telugu also, but as far as the signature is concerned, it is the specific stand taken that always late Sunder Rao was signing in English. Apart from this aspect of the matter, whether late Sunder Rao had signed on both pages or on the last page only, there is discrepancy between the evidence of D.W.3 and D.W.4 in this regard. Even otherwise, from certain of the admissions made by both D.W.2 and D.W.3 as well, it appears, late Sunder Rao was hale and healthy and not so bed-ridden and regarding the visit for check up to hospitals which had been introduced, absolutely there is no supporting evidence except certain assertions made by witnesses who had been examined on behalf of the defendants. It is no doubt true that certain of the relatives appear to be having sympathetical consideration towards the children, being the real off- springs of late Sunder Rao, but it is unfortunate that in the light of the clear legal position, the trial Court was constrained to record the findings ultimately coming to the conclusion that the suspicious circumstances surrounding Ex.B-13 had not been properly explained and accordingly disbelieved Ex.B-13. On a careful analysis of the whole evidence available on record, this Court is thoroughly satisfied that the said findings need no disturbance at the hands of this Court and accordingly the said findings are hereby confirmed. It is needless to say that normally while confirming the findings, again repeated detailed findings need not be recorded by the appellate Court.
35. Coming to the aspect of Item No. 4, in the light of the Grounds raised in the Cross Objections and also in the light of the findings recorded by the trial Court and the relief prayed for in the plaint specifically, this Court is of the considered opinion that it may have to be declared that the plaintiff is entitled to the total emoluments covered by Item No. 4 since the legal status of P.W.1 as the legally wedded wife of late Sunder Rao is being declared by this Court. Accordingly, the Cross Objections are bound to succeed.
36. Point No. 4: In the light of the findings recorded above, the Appeal being devoid of merit, the same shall stand dismissed. However, relating to Item No.4, in the light of the Grounds raised in the Cross Objections, the 1st respondent/plaintiff is bound to succeed relating to Cross Objections and accordingly it is declared that the 1st respondent/plaintiff is entitled to the total emoluments covered by Item No. 4. It is needless to say that as far as the respective other shares to be worked out, the parties are at liberty to work out the same in the light of the findings recorded at the stage of final decree proceedings. Accordingly, the Cross Objections are hereby allowed. However, in the peculiar facts and circumstances, the parties to the litigation to bear their own costs.