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[Cites 10, Cited by 0]

Madras High Court

Murugan Servai vs Rajendran on 12 February, 2010

Author: B. Rajendran

Bench: B. Rajendran

       

  

  

 
 
 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED : 12/02/2010

Coram
THE HONOURABLE MR. JUSTICE B. RAJENDRAN

A.S.(MD)No.140 of 1990

1.  Murugan Servai
2.  Periyasamy
3.  Sivasamy
4.  Murugesan
5. Andi	

(Appellants 1 to 5 are recorded as
legal heirs of the deceased 3rd
respondent as per Order dated
11.02.2005 made in MP No.2/2007)				.. Appellants

Versus

1.  Rajendran
2.  Sekar
3.  Rakkammal (died)
4.  Kamatchiammal
5.  Panchavarnam
6.  Pushpam
7.  Sudanthiram (died)

(RR6 and 7 were brought on record as
legal heirs of the deceased third
respondent vide order dated 11.02.2008
made in MP (MD) No. 1 and 2 of 2007)

8.  Mani @ Rajendran
9.  Minor Sridevika
10.Minor. Rohini

(RR8 and 10 were impleaded as legal heirs
of the deceased 7th respondent vide order
dated 11.02.2008 made in MP (MD)
Nos.3 to 5 of 2007) 						.. Respondents
    		

Appeal filed under Section 96 of Code of Civil Procedure against the
Judgment and decree dated 30.12.1988 made in O.S. No. 513 of 1985 on the file of
the Subordinate Judge, Madurai.


!For Appellants    ...  Mr. N.C. Vellayan
^For Respondents   ...	Mr. V. Ayyadurai for R6
			No appearance for RR1 to 5, 8 to 10

:JUDGMENT

The defendants 1 to 5 in O.S. No. 513 of 1985 on the file of the Subordinate Judge, Madurai, are the appellants in the present appeal. The suit was filed by the respondents 1 and 2 herein claiming partition and separate possession. The suit was decreed in part holding that the plaintiffs are entitled to 2/35 share in the suit property.

2. For the sake of convenience, the parties shall be referred to as they were arrayed in the suit before the trial court.

3. The Plaintiffs claimed themselves to be the sons born to first defendant Murugan Servai and 7th defendant Kamatchiammal. The contentions raised by the plaintiffs in the suit was that the suit property originally belonged to Vetteri Murugan Servai, father of first defendant Murugan Servai. After the demise of Vetteri Murugan Servai, the property devolved on the first defendant, his brother Kalyani Servai and their mother Irulayee Ammal, being the widow. Among themselves, they entered into a partition on 31.08.1963 by means of a registered partition deed. In that partition, the suit properties were allotted to the first defendant, which is described as "B" Schedule in that partition deed and pursuant to the same, the first defendant was in possession and enjoyment of the same.

4. It is further contended in the plaint that the first defendant originally got married to the sixth defendant namely Rakkammal and out of the said wedlock, the defendants 2 to 5 were born. Subsequently, since the sixth defendant was suffering from Cancer, the defendants 2 to 5 were infants by then and they have to be looked after, the elders in the family, with the consent of the sixth defendant herself, have performed the second marriage of the first defendant with the seventh defendant in the year 1959. According to the plaintiffs, the marriage of the seventh defendant with the first defendant took place in the year 1959 and the plaintiffs and the eight defendant are the children born out of the said wedlock, of course, during the subsistence of the marriage with the sixth defendant. According to the plaintiffs, the sixth defendant was a consenting party to the marriage in the year 1959 and all of them lived together under one roof for a long time. They would further contend that the seventh defendant alone took care of the family in view of the illness of the sixth defendant. According to the plaintiffs, they have also constituted the undivided Hindu joint family along with the children born to the first and seventh defendants. The first defendant was managing the suit properties as Kartha Manager of Joint Hindu family constituted by the plaintiffs, defendants 2 to 5 and eighth defendant and they are enjoying the same. It is further contended that due to the care taken by the seventh defendant, the sixth defendant recovered from her illness slowly and after recovery she developed grudge against the plaintiffs and the defendants 7 and 8 by inducing the first defendant to send them out of the family. Further, one of the children born to the sixth defendant was affected with leprosy and fearing that her children would also be affected, the seventh defendant agreed and accepted to come out of the house along with her children and a separate residence was set up for them. Till such time, the plaintiffs along with the seventh defendant were living along with the other defendants together. Since the Plaintiffs are co-parceners they are also entitled to partition. Therefore, they have issued a notice dated 23.10.1984 through their advocate seeking partition and separate possession for which a reply notice dated 06.11.1984 was sent containing false and untenable averments. In such circumstances, the plaintiffs have instituted the suit for partition.

5. At the time of filing the suit, the eighth defendant was a minor daughter and yet to be married and therefore, she was also impleaded as one of the defendants since she has to be maintained out of the income derived from the family property.

6. The first defendant filed a detailed written statement, separately, denying the factum of marriage with the seventh defendant. The alleged ill- health of the sixth defendant was denied. According to the first defendant, there was no occasion for him to marry the seventh defendant and no marriage ever took place with the seventh defendant, as alleged in the plaint. It was further denied that after the marriage, the seventh defendant lived together with him in the same house. It was also denied that the plaintiffs and the eighth defendant are the children born out of the wedlock between the first defendant and the seventh defendant. Further, there was no joint family properties or the plaintiffs are coparceners of the suit property. It was also denied that one of the sons of the sixth defendant was affected with leprosy and therefore the theory of setting up separate residence does not arise. He would further state that the seventh defendant was already married to one police Constable and Thavasi Devar even during the so called marriage took place with the seventh defendant in the year 1959 and therefore, the said marriage is void, illegal since the previous marriage of the seventh defendant with the above said persons was subsisting and the previous marriage of the first defendant with the sixth defendant was also in force. It was further contended that the seventh defendant earlier filed a Maintenance Case in M.C. No. 831 of 1971 on the file of Additional I Class Magistrate, Madurai wherein the factum of marriage was not proved and it was held that no marriage took place between the first defendant and the seventh defendant, even though maintenance for the children was ordered. It was further specifically pleaded that the first defendant had already executed a settlement deed in the year 1966 to his wife, the sixth defendant in respect of the suit properties, which were originally joint family property, and subsequent such settlement, the sixth defendant was in peaceful, open and uninterrupted possession and enjoyment of the suit properties exclusively. In such circumstances, according to the first defendant, the suit is not maintainable and liable to be dismissed.

7. An additional written statement was filed by the first defendant contending that the eighth defendant is not his daughter. Further, the eighth defendant was given in marriage to one Indiran in Avaniapuram, consequently, the eighth defendant is not entitled for any maintenance.

8. The sixth defendant has filed a separate written statement claiming that she is the only wife of the first defendant and the defendants 2 to 5 were born to her out of the said wedlock. The seventh defendant is not the wife of the first defendant nor she had given consent for the marriage and the plaintiffs and the eighth defendants are not the children of the first defendant born through the seventh defendant. She would further claim that the property in question has been settled in her favour by a registered settlement deed dated 17.12.1966 and that she has been in possession and enjoyment of the property from the date of settlement exclusively in her own right, openly and adversely. Even if any claim is made by the plaintiffs, such a claim is barred by the principles of adverse possession. The sixth defendant alone has been paying kist for the suit property. The factum of joint possession was denied. Further, the maintenance Court has denied the factum of marriage between the first defendant and the seventh defendant, hence, the claim of the plaintiffs for partition is unsustainable in law.

9. The seventh defendant has filed a written statement stating that she is the legally wedded wife of the first defendant and therefore she and the eighth defendant are entitled for maintenance. The written statement was filed by the seventh defendant for herself and on behalf of the minor eighth defendant.

10. Before the trial court, on behalf of the Plaintiffs, Exs. A1 to A12 were marked and the first Plaintiff Rajendran, 7th Defendant Kamatchiammal and one Lakshmanan were examined as Pws 1 to 3 respectively. On behalf of the Defendants Exs. B1 and B2 were marked and the first Defendant Murugan Servai, one Sundararaju and the sixth Defendant Rakkammal were examined as Dws 1 to 3 respectively.

11. Pending appeal, the sixth defendant in the suit namely Rakkammal died and the appellants 1 to 5 as well as respondents 6 and 7 in this appeal were recorded as her legal heirs. Further, the 7th defendant is the legal representative of the third respondent, who also died during the pendency of this appeal and the legal representatives were brought on record as respondents 8 to 10 on 11.02.2008.

12. I have heard the counsel for the appellants as well as the counsel for the sixth respondent in this appeal. Though many issues have been framed before the court below, the points for consideration in this appeal, as agreed to by both sides are (i) Whether the plaintiffs in the suit are entitled for partition (ii) Whether by virtue of a settlement deed executed in favour of the sixth defendant by the first defendant on 17.12.1966, the property is still available for partition and the plaintiffs are entitled to claim such relief?

13. The appellants, who suffered a decree in the suit, would mainly plead that the first defendant, both in the written statement as well as in his evidence has denied the factum of marriage with the seventh defendant and therefore there is no marriage at all. Even assuming for a moment but without admitting that the children namely the plaintiffs as well as the eighth defendant are born to the first defendant, through the seventh defendant, they are not entitled to seek for any partition at all by reason of settlement deed executed in favour of the sixth defendant on 17.12.1966. Further, there was no occasion for the marriage between the first defendant and the seventh defendant since the sixth defendant was hale and healthy and the theory of illness put forward by the plaintiffs is false. Further, the children of the sixth defendant were not suffering from leprosy as alleged by the plaintiffs. Therefore, according to the defendants, the plaintiffs never lived together with them. The sixth defendant in the suit herself filed written statement and deposed before the court below that she has not consented for the alleged marriage nor the plaintiffs lived together with the defendants in the same house. Therefore, the marriage is in dispute coupled with the fact that earlier the seventh defendant along with the minor children filed maintenance case before the Criminal Court under Section 125 of Cr.P.C. seeking maintenance in which the Court held that the marriage between the first and seventh defendant has not been proved. It was further contended that even though maintenance was granted by the criminal court for the minor children namely the plaintiffs and the eighth defendant, that by itself would not give any right for the plaintiffs to seek for partition. Further, the first defendant has executed the settlement deed in respect of the suit property in favour of the sixth defendant on 17.12.1966 itself and thereafter she alone is enjoying the property in her own right by paying kist, therefore, the property is not available for partition. Even though, originally the property was a joint family property, later on by partition in the year 1963, the first defendant has derived his share in the property. It is further contended that merely because in the birth certificates of the plaintiffs and eighth defendant the name of the first defendant is mentioned as father, such entries cannot be taken into consideration and that cannot be a reason for accepting the paternity. Lastly, it was contended that the seventh defendant was earlier married to one police constable and Thavasi Thevar. Since the marriage of the seventh defendant with the above said two persons was subsisting, the question of any marriage taking place between the first defendant and seventh defendant does not arise and on that ground also the plaintiffs are not entitled for partition.

14. The learned counsel for the sixth respondent in this appeal supported the arguments of the counsel for the appellants and prayed for dismissal of the appeal.

15. The Plaintiffs are respondents 1 and 2 in this appeal. Even though they were served none appears on their behalf. Therefore, I am inclined to proceed to dispose of the appeal on merits.

16. The Plaintiffs would contend that the seventh defendant married the first defendant in the year 1959 and out of the said wedlock, the first plaintiff was born in the year 1962, the second plaintiff in the year 1964 and the eighth defendant born in the year 1968. The main contention of the plaintiffs was that due to the ill health of the sixth defendant, the first defendant married the seventh defendant as his second wife and after the marriage all the plaintiffs and defendants were living in one and the same house. To prove this contention, the plaintiffs mainly rely on Exc. A5 and A6 birth certificates issued by the corporation of Madurai in which, in the column "name of the father and mother" the name of the first defendant and seventh defendant are mentioned. It was also contended that in the first birth certificate, seventh defendant herself was the informant and in the second birth certificate, one Mayandi Servai, who is stated to be the uncle, was the informant. The Plaintiffs have also examined one Lakshmanan, PW3 to prove the factum of marriage, who in his evidence has stated that he had witnessed the marriage between the first and seventh defendant. Even in the cross- examination, he has stated that the defendants 1 and 7 were residing permanently in Chemburani Road house. He further stated in the cross-examination that 20 people have participated in the marriage and he has even seen the first defendant tying the 'thali' on the seventh defendant.

17. According to the defendants, in the cross-examination of DW1, it was stated that he did not invite Lakshmanan for the marriage, however, he voluntary attended the marriage, therefore his version cannot be believed. The court below pointed out that the seventh defendant, in her examination, has categorically deposed that the sixth defendant was also present in the marriage. She further contended that the first defendant has put the children, the plaintiffs, in the school and in the previous maintenance case, one Mayandi was examined, who was the informant to the Government office in respect of the birth of the children. The seventh defendant has given cogent evidence that she married and lived with the first defendant. She further stated that the first defendant has kept her in Seburani Road house and he used to regularly visit and stay with her and the children. Later on, when the first defendant refused to pay maintenance, she filed maintenance case before the Criminal Court. No doubt, in that case, her claim for maintenance was rejected on the ground that the marriage was not proved, however, maintenance was granted to the minor children at the rate of Rs.10/- per month. The court below, relied on the judgment of the Criminal Court and held that maintenance was granted to the minor children, against which the first defendant did not file any appeal. Later, in the year 1972, when the children further filed a maintenance case for enhancement of maintenance from Rs.10/- and the maintenance was enhanced to Rs.30/-, the first defendant challenged it by filing an appeal which was rejected . Against the same, the first defendant has filed a revision which was also dismissed. The said proceedings in M.C. No.1831 of 1971 dated 24.11.1971 was marked as Ex.A2. The petition for enhancement of maintenance amount was marked as Ex.A3 and the order dated 04.04.1983 passed in the revision filed by the first defendant in Case No.8 of 1983 was marked as Ex.A4. A reading of the above said documents would clearly indicate that the first defendant treated the plaintiffs and the eighth defendant as his children even though they may be called as illegitimate children, since, as per the version of the first defendant, the sixth defendant was alive and the marriage between the sixth defendant and himself was subsisting, the alleged marriage with the seventh defendant took place and therefore cannot be construed as a valid marriage. This contention of the first defendant was brushed aside by the court below by holding that though the seventh defendant is not entitled to maintenance, but the children are entitled to such maintenance. Further, the first defendant has not chosen to challenge the maintenance originally ordered, but filed an appeal against the enhanced amount of maintenance and the same was also ultimately dismissed. Subsequently, the first defendant has also paid the enhanced maintenance amount to the children. In other words, the first defendant accepted the plaintiffs and the eighth defendant as his children. Further, Exs. A5 and A6, birth certificates would fortify that the first defendant is the father of the plaintiffs and the eighth defendant born through the seventh defendant.

18. The other documentary evidence required for consideration is Ex.A12, voters list issued in the year 1966. In that voters list, the seventh defendant's name was shown in Serial No.709 in Page No.137 and her husband's name is mentioned as 'Murugesan Servai', the first defendant. This document is a public document, which clearly indicate that the plaintiff, the seventh defendant and their children were living together, coupled with the evidence of Lakshman, who has categorically stated that he has attended the marriage and he knew that the first defendant and the seventh defendant were living together.

19. One Sundarraju was examined as DW2, who in his examination has stated that the seventh defendant was earlier given in marriage to one police constable and subsequently to one Thavasi Thevar. He admitted that he never witnessed the marriage of the seventh defendant with the police constable nor to the said Thavasi Thevar. He further deposed that "1?k; gpujpthjp v';bf';F nghfpwhh; ahUld; Foj;jdk; elj;Jfpwhbud;W bjhpahJ/ thjpfspd; jhahh; 7k; gpujpthjp. 7k; gpujpthjpapd; FHe;ijfsh vd;W bjhpahJ//// 1k; gpujpthjpapd; tPl;oy; xt;bthU ehSk; vd;bdd;d elf;fpwJ vd;W vdf;Fj; bjhpahJ/" Therefore, he admits that he has not witnessed the marriage between the seventh defendant and the police constable or Thavasi Thevar. Contrary to this, he admitted that the plaintiffs are born to the seventh defendant through the first defendant. Therefore, the evidence let in by DW2, an independent witness, is not helpful to the defendants to assail the claim of the plaintiffs. In other words, the evidence of defendants 1 and 6 cannot be taken much significance. On the contrary, the plaintiffs have established beyond reasonable doubt, even in the earlier proceedings before the criminal court, that they are children born to the first defendant and they are entitled to be maintained by the first defendant. Therefore, it is not open to the first defendant to contend that the plaintiffs are not entitled for partition. In fact, even the voters list would indicate that the first defendant and the seventh defendant were living together in the same house at Avaniapuram. Therefore, the plaintiffs have proved the factum of marriage between the first defendant and the seventh defendant, though the marriage is illegal and not sustainable. Therefore, the only question now remains is when the marriage is proved and the defendants 1 and 7 were having long cohabitation and living in the same house, by virtue of the same, the plaintiffs and eighth defendants have born and whether the plaintiffs are entitled for partition.

20. The defendants have failed to disprove by documentary evidence the alleged marriage of the seventh defendant with a police constable or Thavasi Thevar. Even in the cross-examination, the first defendant himself has admitted that he does not know anything directly about the said marriage of the seventh defendant with those two persons. Therefore, it can be safely concluded that the first defendant was making such allegations only to circumvent his liabilities. In the cross-examination, the first defendant even went to the extent of stating that he is not aware of the maintenance case filed against him. Later on, he accepted that subsequent to enhancement of maintenance amount from Rs.10/- to Rs.30/- he has filed an appeal as well as revision and the same were dismissed. The first defendant also admitted in the cross-examination that the third defendant has got white patches on his right leg, which would indicate that the contentions raised by the seventh defendant that she was sent out of the house because of the decease to one of the sons of the sixth defendant, is true.

21. PW3, who is admittedly an independent witness, has spoken to about the marriage and categorically stated that the first defendant has tied the 'Thali' to the seventh defendant and therefore the factum of marriage was also proved by the evidence of the third defendant. Section 7A (i) (c) the Hindu Marriage Act would apply to the facts of the present case. This Section would apply to any marriage between two Hindus whether Suyamvaram or Seerthirutha marriage or by any other means solemnised in the presence of relatives, friends or other persons by tying of 'Thali'. After the amendment, if a marriage takes place in the presence of friends and relatives, either by exchange of garland and or by tying of thali, the same shall be construed as a valid marriage and such marriage is a legally acceptable one as recognised under the Act.

22. In this case, PW3, Lakshmanan, has categorically stated that there was a marriage and in that marriage, the first defendant tied 'thali' to the seventh defendant and their relatives and friends were present at that time. This evidence has not been shattered by the defendants in the cross-examination nor any motive could be attributed to such evidence of PW3. Therefore, the factum of marriage has been established by the plaintiffs, even though the marriage cannot be a legally valid one. Therefore, the court below has rightly come to the conclusion that the factum of marriage between the first defendant and the seventh defendant has been established beyond reasonable doubt.

23. A cumulative reading of the evidence on record would indicate that the first defendant was only attempting to wriggle out of the situation inspite of the fact that the children are born to him and he has also accepted the same in the maintenance case. Therefore, when the fact of marriage is proved, definitely, the children are entitled to necessary relief of partition.

24. In this context, the legal proposition, as settled by the latest division Bench of this Court reported in (Chandrammal and 8 others vs. S. Sankar (died) and 14 others) 2008 3 Law Weekly 471 wherein in Para Nos. 16, 17, 18, 22 and 28 it was held thus:-

"16. Even as per the averments, the said Sivanesan Chettiar married one Amirthavalli Ammal prior to 1945, and she was also alive at the time of alleged marriage between Sivanesan Chettiar and the first plaintiff. Hence, the first plaintiff could not make the claim as wife. So long as she is not able to prove that either she is the wife or having the status of wife, she could not make any claim as wife in the property of Sivanesan Chettiar. In such circumstances, her claim for the property has got tobe negatived. Accordingly, it is rejected.
17. As far as the other plaintiffs 2 to 8 are concerned, they could make a claim under Sec.16 of the Hindu Marriage Act, if they were able to show that they were illegitimate children, and whether the factum of marriage between Sivanesan Chettiar and the first plaintiff is proved.....
18. In order to get the benefit of the above provision, the plaintiffs 2 to 8 have to prove the factum of marriage between the said Sivanesan Chettiar and the first plaintiff. In the instant case, the plaintiffs came forward with the specific allegations that the marriage had taken place in the year 1948. But, some discrepancy is found in the evidence as to the time and place of marriage. The Court has to see the totality of the circumstances which attended over the case. This Court is able to see number of circumstances which would indicate that such a marriage should have taken place between Sivanesan Chettiar and the first plaintiff.
22. Apart from the above, during the life time of Sivanesan Chettiar, due to the strained relationship, the first plaintiff filed a maintenance case in M.C. No. 1181 of 1979 before the XII Metropolitan Magistrate, Madras and it was also for herself and onbehalf of four minor children. The same was ordered on contest, and it is also culminated in CRP proceedings before this Court. The order in that revision is also perused which would clearly indicate that nowhere it was to the effect that Sivanesan Chettiar has in any way denied the marriage or has challenged the status. Further, Ex.P2, the Will, Ex.P3, the revocation, all the invitations issued by Sivanesan Chettiar and the maintenance proceedings were all anterior in point of time, and they have come into existence even before the controversy that has arisen between the parties. This Court is of the considered opinion that those documents have got to be given due weight to which they deserve.
28. ....Therefore, the judgment of the trial Judge has got to be set aside. Since the factum of marriage is proved, the plaintiffs 2 to 8 and the 10th defendant are entitled to their respective share in respect of 'A' schedule excepting item No.1 which should go to the 9th defendant, and in respect of 'B' Schedule ancestral property, by operation of law. There is no impediment for the 9th defendant in further prosecuting the execution proceedings, which according to him, is pending before the Court of Small Causes.

25. As per the division Bench Judgment referred to above, when the factum of marriage is proved, even though the marriage is not legal, yet the children born out of the said wedlock are entitled to for partition.

26. From the above decisions of the Division Bench of this Court, it is settled that when the factum of marriage is proved and there are circumstances which could clearly prove beyond reasonable doubt that the parties were living together and children born out of the said wedlock, even though they are illegitimate children, they are entitled for relief of partition, hence, the findings of the court below that the plaintiffs are entitled for partition is legally sustainable.

27. As far as the point for consideration is concerned, the main contention of the appellants is the first defendant, even way back in the year 1966 executed a settlement deed in favour of the sixth defendant in respect of the suit property, which he had obtained under the partition deed, therefore the plaintiffs are not entitled for partition. It was further contended that though the properties are ancestral properties, after the partition took place in the year 1963, the first defendant enjoyed the property exclusively and thereafter settled it in favour of the sixth defendant in the year 1966 itself. This contention cannot be accepted because, the first defendant, in his evidence has categorically admitted that even after settlement, he has been enjoying the property exclusively, he is managing the property and he is only paying kist. Therefore, the question of the sixth defendant enjoying the property does not arise and it is against the coparcenery interest of the plaintiffs. Even, sixth defendant in her evidence could not satisfactorily state that she has been enjoying the property adverse to the interest of the plaintiffs. The sixth defendant has also not produced any kist receipt or any document to show that after the settlement deed, revenue records have been mutated in her name. Per contra, she admitted that patta still stands in the name of the first defendant. Under those circumstances, the claim of the first defendant that by execution of settlement deed in favour of the sixth defendant, the rights of the plaintiff has been affected is legally not sustainable nor it is proved by any known means of law that sixth defendant was enjoying the property independently against the interest of the plaintiffs. Admittedly, the suit property is a joint family property, not only the plaintiffs, but also the defendants 2 to 5, who are the children of the first defendant, are also coparceners of the property. The interest of a coparcener cannot be summarily transferred to a third party without the concurrence and knowledge of the other coparcener. In this case, though the second marriage between the first defendant and the seventh defendant is not a valid marriage, the plaintiffs, who are the children born out of such wedlock, are entitled to seek a share in the property, but in the share of the father, the first defendant alone. In this case, after 1963 partition, when it was a family property, the first defendant, at that point of time, has four children and therefore he has got 1/5th share alone. So, if at all, the plaintiffs, who are illegitimate children, are entitled for a share in the 1/5th share of the first defendant. Further, in a case of joint family property, the one coparcener cannot take away the right of the other coparcener by executing any deed to other. In this context, the decision of the Full Bench of this Court reported in (Chella Subbanna and another vs. Chella Balasubbareddi and others) 1945 1 MLJ 140 is useful to be extracted wherein their Lordships have held as under:-

....It was held that the renunciation extinguished his interest in the family estate, but it did not affect the status of the remaining members who continued to be coparceners as before. The passage in the judgment of their Lordships which is relevant to the present case reads as follows:-
"What is the effect of this renunciation upon the status of the other members of the family? It is argued that, when one member of a joint family separates from the other members, his separation operates as a separation of all the members of the family from one another. In many cases it may be necessary, in order to ascertain the share of the outgoing member, to fix the shares which the other coparceners are or would be entitled to, and in this sense, subject to the question whether these others have agreed to remain united or to reunite, separation of one is said to be a virtual separation of all; Balabax Ladhuram vs. Rukmabai.. It is a settled rule that when the members of a family hold the family estate in defined shares, they cannot be held to be joint in estate. But no definement of the shares need take place, when the separating member does not receive any share in the estate, but renounces his interest therein. His renunciation merely extinguishes his interest in the estate, but does not affect the status of the remaining members quoad the family property, and they continue to be coparceners as before. The only effect of renunciation is to reduce the number of the persons, to whom shares would be allotted, if, and when, a division of the estate takes place."

Here two principles are stated: (1) When the members of a Hindu Family have defined shares in the family estate they can no longer be deemed to be joint in estate and (2) the renunciation by one member of his interest in the family merely extinguishes that interest in favour of the continuing coparceners. It is true that their Lordships do not deal directly with the case where one coparcener purports to give his share to one of several other coparceners, but it follows from what they have said that he cannot do so, if the donee and the other coparceners are to remain joint in estate. The relinquishment by one coparcener of his interest in the family estate in favour of the members of the coparcenery does not amount to an alienation; it merely amounts to an extinction of his interest in favour of the others. The gift of his interest to one of several other coparceners would not mean the extinction of that interest. It would mean an alienation of it. It is well settled law that there cannot be such a gift to a stranger and it is now clear that there cannot be a gift to a fellow coparcenar if the family is to remain undivided.

There is another Privy Council judgment which supports the proposition that there cannot be a renunciation by one member of a joint family in favour of one of several other members of the family while the family remains joint. In Vasantrao vs. Anandrao, one Madhawrao executed a release of his interest in the family property in favour of his father. The Bombay High Court held that the release must be treated, as being, not for the benefit of the father alone, but of the coparcenary and the shares were to be determined as though Madhawrao had died. This case went to the Privy Council as Anandrao vs. Vasantrao. Their Lordships held that the governing principles had been rightly applied by the High Court and dismissed the appeal.

At Page 497 of the tenth edition of Mayne the learned editor expresses the opinion that the dicta in Peddayya vs. Ramalingam and Thangavelu Pilla vs. Doraisami Pillai cannot be considered good law especially after the decision of the Privy Council in Venkatapathi Raju vs. Venkatanarasimha Raju. It follows from what we have said that we are in full agreement with this opinion and that additional support for it is tobe found in the judgment of their Lordships in Anandrao vs. Vasantrao."

28. In the decision of a Division Bench of this Court rendered in (Subbaraya Pillai @ Subbaraya Manthiri and another vs. Lakshmiammal and 5 others) 1993 II Law Weekly 559, it was held in para-11 and 13, thus:-

"11. Incidentally, learned counsel for the first defendant contends that he has executed a settlement deed in favour of the second defendant under Ex.A1 on 06.12.1980 and the properties covered thereby should be excluded from division. The settlement deed dated 06.12.1980 is certainly not valid as the properties are joint family properties. No member of the joint family is entitled to make a gift of any part of the joint family properties. It is too well settled by now that even the donor can challenge the validity of such a gift and it is void ab initio. Vide Sivagnana Thevar v. Udayar Thevar (AIR 1961 Madras 356) and Perumalakkal vs.Kumaresan Balakrishnan (AIR 1967 SC 569). Of course, there is an exception to the ruling in the case of transfer made in consideration of marriage. It has been held that such transfers are considered to be transfers for valid consideration and not gifts. Vide Srinivasa Padayachi vs. Parvathammal (1969 IIMLJ 597 = 82 LW 411). But in the present case, Ex.A1 is not executed for consideration of marriage between the first defendant and second defendant. Admittedly, the second defendant was married some time in 1954. Hence, it cannot be contended that Ex.A1 will fall within the exceptions. It is also pointed out by the learned counsel that there is no pleading or evidence to that effect. Hence, Ex.A1 is void and no right will enure to the benefit of the second defendant under that document.
13. The question remains to be considered is whether the sons of the first defendant through the second defendant are entitled to any share in the property and whether their claims should be recognised in these proceedings. The case of the plaintiffs that there was no marriage at all between the first defendant and the second defendant is not true. We have already referred to the fact that admittedly all the members of the family including plaintiffs 2 and 3 and the sons of the second defendant were living together as one family till about a year and half prior to the filing of the suit. The first plaintiff has admitted that in her deposition. Curiously, she says that she is not aware as to whether any child was born to the second defendant. That shows that she does not hesitate to speak falsehood. Hence, her case that she quarrelled with her husband when the second defendant entered the house and got separated even then is false. There is no explanation as to how she got three sons, if she had lived away from her husband as claimed by her in the chief examination. There is ample evidence to hold that the entire family was living together and there was no quarrel between them till recently."

29. In these decisions, it was held by the Division Bench of this Court that the children born out of the second marriage, while the first marriage was subsisting, are also entitled for partition. Therefore, this Court is of the view that the plaintiffs are entitled for partition in the 1/5th share of the first defendant, in the suit property.

30. The contention of the fist defendant is that he had executed a settlement deed in favour of the sixth defendant in the year 1966 and therefore the plaintiffs are not entitled to partition. Merely because of execution of such settlement deed, especially when the first plaintiff born in the year 1962, second plaintiff in the year 1964 and the eighth defendant in the year 1968, it is not open to the first defendant to execute such a settlement deed. Even if such settlement deed is executed, in so far as the plaintiffs are concerned, it becomes non est in the eyes of law and therefore, the pleading of adverse possession put forth by the first defendant or the sixth defendant will not operate against the plaintiffs. Even otherwise, in order to substantiate the claim of adverse possession no evidence was let in by the first defendant. On the contrary, the first defendant himself has admitted that he was managing the property, paying the kist for the suit property and mutation of names has not taken place. Such an evidence would make it clear that the settlement deed was executed only to deprive the claim of the plaintiffs and the settlement deed has not been acted upon at all. Moreover, the defendants 1 to 6, born to first defendant through the sixth defendant are also entitled for partition, therefore also, it is not open to the first defendant to execute the settlement deed without their consent. Therefore, merely because of the execution of settlement deed by the first defendant in favour of the sixth defendant, the plaintiffs right to claim partition will not be affected. In view of the above, the second point for consideration is answered against the appellants.

31. In the result, the appeal is dismissed confirming the decree and judgment passed by the Court below. No costs.

rsh To The Subordinate Judge Sub Court Madurai