Madras High Court
Mohan And Anr. vs Santha Bai Ammal And Ors. on 10 September, 1987
Equivalent citations: I(1990)DMC257
JUDGMENT Sivasubramaniam, J.
1. The unsuccessful plaintiffs in O.S. No. 536 of 1978 on the file of the I Additional Subordinate Judge, Cuddalorc are the appellants in this appeal. The respondents herein were the defendants in the said suit.
2. The appellants/plaintiffs filed the said suit for partition and separate possession of their 2/9th share in the suit properties and for future mesne profits. The material averments in the plaint are as follows : The properties described in the A and B schedules to the plaint are the absolute properties of Subbarayalu Naidu who died on 11-5-1978. The first defendant is his first wife. The defendants 2 and 3 are his sons and defendants 4 to 7 are his daughters. The plaintiffs 1 and 2, are the sons of Subbarayalu through his second wife Drowpathi. The marriage of Drowpathi, the mother of the Plaintiffs, with Subbarayalu took place at Thiruvendipuram in Devanatbaswami temple on 13-7-1952. The certified copy of the extract maintained by the Devasthanam is produced along with the plaint to show date of marriage. Even during the life time of Subbarayalu, the plaintiffs were living in a separate house and the defendants were living in another house. Subbarayalu used to stay in both the houses. The plaintiffs were born to Subbarayalu Naidu and Drowpathi. Subbarayalu died on 11-5-1978 leaving behind the plaintiffs and the defendants as his heirs. They are all equally entitled to succeed to the estate of the deceased Subbarayalu Naidu. Subbarayalu was doing money lending business and also mining white clay and he was earning large income and out of the same he has lent monies to several persons. During his left time, Subbarayalu purchased the site for Rs. 1,000 under the registered sale deed dated 29-3-1954 in the name of the first defendant. In the said item, Subbarayalu constructed shops, which are items 23 to 29. The purchase, and the construction of the buildings were done by Subbarayalu out of his funds. The first defendant had no means to purchase the site or put up any construction over it. Similarly, items 12 to 14 of the A schedule properties were purchased by Subbarayalu in the name of the third defendant. Subbarayalu purchased these items in the name of his son with his own funds. Thus, in all the above items, the plaintiffs are entitled for a share since they are all Subbarayalu's properties. The 8th defendant hat gpt an agreement of reconveyance in his favour, alleged to have been executed by Subbarayalu Naidu on 24-6-76. The said agreement is not true and valid. Hence the suit for partition and separate possession of the plaintiff's 2/9th share and also for accounting from the date of suit till delivery of possession.
3. The first defendant resisted the suit and filed a written statement raising the following contentions :-Subbarayalu Naidu never married Drowpathi and no such marriage took place. This defendant denies the extract given by the Devasthanam as true and genuine. Subbarayalu Naidu married only one wife. This defendant is the only legally wedded wife of Subbarayalu Naidu. The defendants 2 and 3 are her sons and defendants 4 to 7 are her daughters. The plaintiffs' mother Drowpathi was never living at panruti. This defendant learns that Drowpathi was working as a teacher at Cuddalore. Subbarayalu Naidu was doing business in partnership with one Sivanesa Pathar. Sivanesa Pathar had married Drowpathi's younger sister. Subbarayalu Naidu used to visit Sivanesa Father's house. While so, the said Drowpathi got into illicit intimacy with Subbarayalu Naidu Drowpathi was also having illicit intimacy with other people. This defendant denies that the plaintiffs are the heirs of Subbarayalu Naidu. Subbarayalu Naidu was having illicit intimacy with Drowpathi for sometime. The Plaintiffs are not entitled to succeed to the estate of Subbarayalu Naidu. Subbarayalu Naidu was threatened that Court proceedings would be taken. Hence on 9-3-1959, he executed a settlement deed of the house bearing Door No. 5 Anaikkaran Street, Tiruppapuliyur in favour of the Plaintiffs. Tbe plaintiffs' mother accepted the settlement deed as guardian and took possession on the same day. The plaintiffs' mother for herself and as guardian of the plaintiffs had executed a release deed in favour of Subbarayalu Naidu. Under that document, she relinquished all her rights in properties. The consideration for the release is the settlement of the house in favour of the plaintiffs/and their mother. The said release is valid and binding upon the plaintiffs and they are estopped from contending that their mother is the legally wedded wife. The said Drowpathi has been living with various people and this defendant learns that subsequent to the release deed, she has begotten, a child. The further averments relating to the character of the suit properties are not necessary for the purpose.of the present suit as the present appeal is being disposed of on other grounds.
4. The second defendant filed a separate written statement raising almost identical contentions as those raised by the first defendant.
5. The fourth defendant filed a separate, written statement which was adopted by defendants 5 to 7 contending that the mother of the plaintiffs was only a concubine of Subbarayalu Naidu, that all the suit properties are the separate properties of Subbarayalu Naidu, that out of affection to his wife, he purchased some properties, in the name of the first defendant, that she had no funds of her own to make any acquisition, that the third defendant is also not the absolute owner of any of the suit properties and that defendants 1 to 3 are liable to account for the income from the suit properties.
6. The 8th defendant filed a written statement contending that the suit items 8 to 11 were sold to the deceased Subbarayalu Naidu who had agreed to reconvey the said items to him or to his nominee after four years from the sale and before 7 years, for the sum of Rs. 5,000 as per the registered agreement dated 24-6-1976.
7. The trial court framed a number of issues and additional issues arising out of the pleadings of the parties and dismissed the suit holding that the marriage of the plaintiffs' mother Drowpathi with Subbarayalu Naidu is not true, that the first defendant is entitled to A schedule items 24 to 29 and that the third defendant is not entitled to items 12 to 19. Aggrieved against this decision, the plaintiffs have filed the above appeal.
8. Mr. K. Sampath, learned counsel appearing for the appellants submits that the following points would arise for consideration in this appeal.
1. Whether the marriage of the Plaintiff's mother Drowpathi with Subbarayalu Naidu on 13-7-1952 is true and valid ?
2. Whether the plaintiffs are entitled to succeed to properties of the deceased Subbarayalu Naidu ?
3. 3. What are the properties to which the plaintiffs are entitled ?
9. Point No. 1: The Plaintiffs have filed the suit for partition and separate possession of their 2/8th share in the Plaint A schedule immovable properties and the B schedule movable properties and ou.tstandings claiming to be the sons of late Subbarayalu Naidu through his second wife Drowpathi. It is their case that the late Subbarayalu Naidu married their mother on 13-7-1952 at Thiruvendipuram in Devanathaswami temple. The first defendant is admittedly the wife of the deceased Subbarayalu Naidu and the defendants 2 and 3 are his sons and defendants 4 to 7 are his daughters through the first defendant. Admitedly, Subbarayalu Naidu died on 11-5-1978. Therefore, the plaintiffs claimed their 2/9th share in the suit properties. The first defendant claimed title to A schedule items 12 to 19 and the second defendant claimed title to A schedule item No. 22.
10. The defendants resisted the claim of the plaintiffs on the ground that their mother Drowpathi was not married to their father late Subbarayalu Naidu and that she was only his concubine for some time. The fact that the plaintiffs were born to Subbarayalu Naidu through their mother Drowpathi is not disputed. Therefore, the burden is on the plaintiffs to show that their mother Drowpathi was the legally wedded wife of late Subbarayalu Naidu and that they are his legitimate sons entitled to succeed to his properties. The plaintiffs have stated in the plaint that the marriage of their mother with Subbarayalu Naidu took place at Thiruvendipuram in Sri Devanathaswami temple on 13-7-1952, and that during the life time of Subbarayalu Naidu, the plaintiffs were living in a separate house and the defendants were living in another house and Subbarayalu Naidu used to stay in both the .houses. However, there is no specific plea as to the form of marriage in which their mother was married to Subbarayalu Naidu. In order to establish the marriage, the plaintiffs have filed Ex. Al which is a true copy of the marriage receipt bearing No. 86 evidencing the payment of Rs. 5 on 13-7-1952 as "(In vernacular)" for the marriage between. Subbarayalu Naidu and Drowpathi Ammal, daughter of Narayana Menon of Tiruppapuliyur. There is also a receipt attached to Ex. Al for the payment of Rs. 15 for the grant of a copy of the marriage extract. A perusal of Ex. A1 shows that it is merely a receipt for having paid a sum of Rs. 15 towards the marriage of their mother. There is nothing to indicate that actually the marriage took place between their mother Drowpathi and late Subbarayalu Naidu on 13-7-1952. Ex. Al is not a certified copy of the marriage register maintained by the temple authorities. Therefore, Ex. Al by itself is not sufficient to prove the factum of the marriage which is being seriously disputed by the defendants.
11. The plaintiffs' mother has been examined as P.W. 2 in this case in order to prove her marriage with late Subbarayalu Naidu. She has admitted that when she married Subbarayalu Naidu, he had wife living who is the first defendant 'in this case and that he had begotten three daughters through the first defendant, at that time. Therefore, if any marriage had taken place as alleged by her, certainly she would have taken care to see that it was evidenced by some clinching evidence to protect their interest in future. It is admitted by P. W. 2 that herself and Subbarayalu Naidu signed in the register maintained by the temple for the marriage. It is common knowledge that temples are maintaining such registers containing various particulars about the marriage and the parties to the marriage are required to sign in the register, in order to have an authenticated record of the said marriages. It is in evidence that the plaintiffs have applied for a copy of the said marriage register. But, however, no copy has been produced into Court so far. It is contended by the learned counsel for the appellants that in spite of the best efforts taken by the plaintiffs, they did not get a copy of the register. Such an explanation cannot be accepted in view of the fact that it was open to the plaintiffs to summon the register itself through Court. This conduct of the plaintiffs shows that such a record of the marriage is not available. Therefore, in the absence of such an authenticated record, it is not possible to rely on Ex. Al alone to come to a conclusion that the marriage had taken place on 13-7-1952 as alleged by the, Plaintiffs in this case. When best evidence is available to prove the case of a party in a suit, if such a party fails to adduce such evidence without sufficient reasons then an adverse inference has to be drawn against them. There are rules framed by the Hindu Religious and Charitable Endowments Department for maintaining such registers and for granting certified copies for the same. Therefore, the explanation offered by the plaintiffs for the non-production of the copy of the marriage register is not acceptable. Reliance was placed on Ex. A2 which is a birth register extract for the first plaintiff This shows that a male child was born to Subbarayalu Naidu and Drowpathi on 20-10-1933. Ex. A3 is relied on as the birth register extract for the second plaintiff showing that a male child was born to the said persons on 2-12-1955. Further reliance is placed on Ex. A4 which is a certificate issued by the Head Master of the Panchavat Union Middle School, Tiruchanur to the effect that the first plaintiff is shown as the son of Subbarayalu Naidu and that he studied in the school from 1962 to 1964. Ex. A5 is the certificate issued by the said Headmaster to the second plaintiff to the effect that he was described as the son of Subbarayalu Naidu and that he studied in the school from 1961 to 1965. Ex. A2 to A5 will only show that the plaintiffs were born to their mother Drowpathi through late Subbarayalu Naidu. As already stated, their paternity is not disputed by the defendants and the main dispute is as to the status of their mother Drowpathi. Therefore, these documents are of no use to the plaintiffs to prove the factum of a valid marriage of their mother.
12. As already stated, the plaintiffs' mother was examined as P.W. 2 in the suit. According to her, Subbarayalu Naidu belonged to Naidu caste and she hailed from Kerala. There is considerable doubt regarding her marriage with late Subbarayalu Naidu. Admittedly, Subbarayalu Naidu carried on a jewellery business in partnership with Sivanesa Father who was examined as P.W. 3._ It transpires from the evidence of P. Ws. 2 and 3 that P.W. 2 and her younger sister and their father hailed from Kerala and happened to live in Thiruppapuliyur, as the father of P.W. 2 was running some shop at Thiruppapuliyur. Prior to the alleged marriage, P W. 2 did not know Subbarayalu Naidu and he was a resident of Panrutti where he was carrying on a trade in jewellery. At the time of the alleged marriage with P.W. 2, he had already married the first defendant and had begotten three daughters who are defendants 4 to 6. Defendants 2 and 3 and the 7th defendant are the sons and daughter born to the first defendant through Subbarayalu Naidu. P.W. 3 Sivanesa Pather who happened to be the partner of late Subbarayalu Naidu, married the younger sister of P.W. 2 on 4-7-1952 and that when Subbarayalu Naidu came to attend the said marriage, he happened to see P.W. 2, and at that time he expressed his desire to marry her. P.W. 3, who married the sister of P.W. 2 negotiated for the marriage and settled the marrigge of P.W. 2 with Subbarayalu Naidu. According to him, the marriage with P.W. 2 took place within 9 days from the date of the marriage of P.W. 3 with the sister of P.W. 2. It is interesting to note that P.W. 3 also was already married and had children through his first wife. Even though P W. 2 had stated that some of the relatives of Subbarayalu Naidu attended their marriage, she was not in a position to say who they were. She has also admitted that she was fully aware that Subbarayalu Naidu had already married and had children through his first wife. Nobody, who had attended the alleged marriage, has been examined in this case to corroborate the evidence of P Ws. 2 and 3. Admittedly, the evidence of P.Ws. 2 and 3 is highly interested and no reliance can be placed upon their testimony alone especially when there is considerable doubt regarding the manner in which the marriage of P.W.2 came to be arranged and celebrated and the circumstances under which the alleged marriage had taken place. It is highly improbable that the two married persons, namely, late Subbarayalu Naidu and P.W. 3, who were partners in a business and had children through their respective wives, would have chosen to marry two sisters coming from Kerala, without anything to establish their antecedents in Kerala. Regarding he actual form of marriage in which the marriage of P.W. 2 had taken place in the temple, there is no consistent evidence. The evidence of P.Ws. 2 and 3 is contradictory on this aspect. According to P.W. 2 her marriage was celebrated in the temple as per the custom of Naidu community and that Subbarayalu Naidu tied thali to her. On this aspect P.W. 3 has came forward with a different version. According to him, he negotiated for the marriage and attended the marriage in the temple. . According to him the marriage was celebrated by the tying of Pottu as per the custom Naidu of community. It is in evidence that a prohit was engaged for celebrating the marriage. But none of the witnesses was able to say his name. P.W. 2 says that the relatives of Subbarayalu Naidu attended the marriage. But on the other hand, P.W. 3 says that Subbarayalu Naidu did not invite any of his relatives. According to him, about 10 customers of their shop attended the marriage. But he is unable to give the name of any of them. P.W. 3 admitted that the marriage invitations were printed and distributed. But according to P.W. 3, no such invitations were printed for the marriage of P.W. 2. The Plaintiffs have not chosen to file such a marriage invitation nor was there any attempt-on their part to summon anybody who had'received such an invitation from late Subbarayalu Naidu or from P.W. 2.
13. As against'this evidence, the first defendant gave evidence as D.W. 1. and she stated that she married Subbarayalu Naidu in her 12th year and that defendants 2 and 3 are their sons and defendants 4 to 7 are their daughters and the lived at Panrutti after the marriage. She says that Drowpathi was not married as the second wife of her husband, but she came to know that he was keeping P.W. 2 as a concubine. At already stated, apart from the testimony of P.Ws. 1 and 2 none of the relations of either P.W. 2 or late Subbarayalu Naidu have been examined to prove the factum of marriage. Therefore, the oral evidence on this aspect does not inspire confidence and they are not acceptable.14. Apart from the various circumstances set oat above raising suspicion about the alleged marriage of P W. 2 with late Subbarayalu Naidu, there are two clinching registered documents which would go to show that there could not have been such a valid marriage as alleged by the Plaintiffs in this case. It is in evidence that after some years after the alleged marriage, certain misunderstandings arose pet ween P.W. 2 and late Subbarayalu Naidu and, therefore, there was an attempt to settle the dispute between them once for all. Therefore, late Subbarayalu Naidu executed Ex B2 which is a registered settlement deed, on 9-3-1959 in favour of P W. 2 settling some properties on her. It is significant to note that in Ex. B2, P.W. 2 has been described as the daughter of Parvathi Ammal and not as the wife of Subbarayalu Naidu. There is intrinsic evidence in Ex, B2 to show that P.W. 2 was not the legally wedded wife of Subbarayalu Naidu. The following recital in Ex. B2 is worthy of consideration:-(.....). These recitals speak for themselves and establish that P.W. 2 was treated only as (In vermacular) arid not as a wife. The term (In vernacular) may be perhaps more respectable than the term "concubine". In pursuance of the settlement under Ex B2, PW 2 appears to have relinquished all her rights over the person and properties of late Subbarayalu Naidu under the registered release deed of the same date as Ex. B2 in favour of Subbarayalu Naidu. Though she had no right to the properties of Subbarayalu Naidu, she seems to have taken extra care and precaution to put things straight ' and to avoid any future trouble. Here again, PW 2 has exposed her position in the following categorical terms:
"(la vernacular)"
Here again PW 2 has described herself only as the (In vernacular) which means only the wife of affection. She was the aujhor of this document and she has chosen to make a categorical statement to the effect that she was living with late Subbarayalu Naidu only as "(In vernacular)" and not as a second wife, as claimed by the Plaintiff's now. Therefore, these two registered documents, which came into existence as early as in the year 1959, . prove beyond any doubt that there was no valid marriage between PW 2 and late Subbarayalu Naidu. Any amount of oral evidence on the question of marriage cannot weigh against the recitals found in the old registered documents Exs. Bl and B2 in the peculiar circumstances of the present case. The recitals found in these documents relating to the status of PW 2 is pro-babilised by the subsequent conduct of PW 2. It is admitted by PW 2 that after the execution of Exs. Bl and B2, she went and lived with one Ariya-puthiri for 7 years and she had given birth to one male and female child through him. If really she was the legally wedded wife of late -Subbarayalu Naidu, she would not have lived with another man as husband and wife without obtaining a divorce from Subbarayalu Naidu.
15. Learned counsel for the appellants would urge that even if the evidence adduced by the plaintiffs regarding the factum of actual marriage is not sufficient, there is ample- evidence to show that PW 2 and late Subbarayalu Naidu lived as husband and wife openly, and to the knowledge of everyone. It is contended by the learned counsel for the appellants that when two people have been living as husband and wife for a considerable time bringing forth children and they are recognised as husband and wife by their kith and kin, a valid marriage has to be inferred. According to him, the presumption of the marriage arising from cohabitation of spouses is a very strong presumption and that when a man and a woman had lived together as man and wife, the law will presume a valid marriage. In support of his contention, he relies on a decision of this Court reported in Rajagopal Pillai v. Pakkiam Ammal, 81 LW 200, wherein a Bench of this Court held as follows :-
"The marriage state being the chief foundation on which the superstructure of society rests, presumption of the marriage arising from cohabitation of spouses is a very strong presumption. Where a man and a woman had lived together as man and wife, the law will presume, until the contrary is proved, that they were living together by virtue of a legal marriage and not in concubinage.
The presumption of law is the strongest of legal presumptions and is not lightly to be repelled by a mere balance of probabilities and the evidence repelling that presumption must be strong, distinct and satisfactory. Every intendment is made in favour of a marriage de facto and the more distant, the date of the marriage the more readily is the presumption drawn, based upon cohabitation and repute.
The weight of the presumption gets strengthened when it is proved that the party whose marriage is in question distinctly intended to marry and went through a form of marriage with that intention and also subsequently iived together as man and wife and were esteemed and reputed as such by those who knew them. The presumption still exists, even when there is no positive evidence of any marriage having taken place. The presumption is not only with regard to the factum of the marriage, but also with regard to the performance of the requisite ceremonies to constitute a valid marriage."
Learned counsel also relied on the decision reported in A.L.V.R.S.T, Vee-rappa Chettiar v. S. Michael, etc., , for the position that there is a presumption in Hindu Law that every Hindu marriage is in Brahma form and the court was entitled to presume that the necessary ceremony of Kanyadan mu"t have been performed. Further reliance was placed on the decision in Raghuvir Kumar v. Sml. Shanmughavadivu, 1970 (II) MLJ 193, where in the following principle has been laid down :-
"There was no bar for the deceased Palaniswamy to take a second wife in the year 1943 when the marriage between Palaniswamy and the second Plaintiff is said to have taken place. In a society where second marriage is not prohibited under the statute or under the customary law, it is always open for any person to marry a second wife if he so desires and if goes through a form of marriage and lives with the other party as husband and wife, there is no obstacle to the presumption being raised from the fact of long cohabitation and repute. Of course, if there is a statute such as the Madras Bigamy Prevention Act, 1949 or the Hindu Marriage Act, 1955, a second marriage cannot be presumed from long cohabitation and repute, as such a marriage cannot be recognised in law. The mere fact that there was an earlier marriage subsisting in this case. It cannot be considered sufficient to rebut the presumption of marriage arising out of long cohabitation and repute."
Again, the learned counsel for the appellants relied on the decision in Seerangammal (died) v. E.B. Venkatasubramanian, 100 LW 58, wherein a Bench of this court consisting of one of us namely, Satbiadev, J. and Mahaswaran, J. held as follows :-
"Failure to establish by legal evidence about ceremonies was due to the fact that they took place inside the family house and in the presence of selected relatives and well-wishers of R. To prevent publicity and with an obvious alto of preventing Wrestige, secrecy had been maintained. No invitations were printed. Under such circumstances, her inability to prove the marriage and more so when Rs relations who could alone speak about it are antagonistic and aim at getting at the property, this failure to sustain a form of marriage attempted by her would not act as a bar against her from invoking Section 114 of the Evidence Act. This is neither a conflicting nor an alternative plea put forth, but one mode of proof adduced but not established due to special circumstances obtaining when such acts are committed by men aimed at benefiting themselves. Factum of continued cohabitations as husband and wife to the knowledge of the World thus made out, the failure to prove marriage would not stand in the way of presumption being drawn."
On a careful consideration of these decisions and the facts involved in the present caie, we find that none of the decisions referred to above can be of any help to the plaintiffs in this case. On facts, we have come to the conclusion that there is absolutely no proof about the alleged marriage of PW 2 with late Subbarayalu Naidu and that she was living with him only as his "(In vernacular)" as evidence by the registered documents Exs. Bl and B2. In those circumstances, the presumption of marriage arising out of long cohabitation as husband and wife does not arise in this case.
16. Learned Counsel for the appellants draws out attention to the observations made in the decision in Seerangamal (died) v. E.B. Venkata-subramaniam (supra), above referred to the effect that the term "(In vernacular)" used in the document filed in that case would not be conclusive to showJhat the lady was only a concubine and not the wife. In that case, it was found that she was not in a position to repudiate the description made in that particular document under certain peculiar circumstances in which she was placed. In spite of such a description being found in the document, there was overwhelming evidence in that case to show that the woman was treated as a legally wedded wife. In this circumstances, the Bench came to the conclusion that the said description is of no significance in considering the status of the woman. But, in this case we find that PW 2 herself has declared her status as "(In vernacular)" in the release deed Ex. B2 executed by her in favour of Subbarayalu Naidu. Therefore the observations found in the said case cannot be relied upon for the purpose of proving the marriage of PW 2.
17. On a careful and anxious consideration of the entire oral and the documentary evidence adduced in this case, we are unable to come to a different conclusion from the one that has been arrived at by the trial court regarding the marriage of P.W. 2. Therefore, we hold that the Plaintiff's mother P.W. 2 is not the legally wedded wife of late Subbarayalu Naidu, and the plaintiff's are not the legitimate children of Subbarayalu Naidu and as such they are not entitled to succeed to his properties as his heirs.
18. A faint attempt was made to show that since the Plaintiffs are admittedly the children of Subbarayulu Naidu born through their mother P.W. 2 the paternity is not in dispute. Therefore, they are entitled to succeed to the properties of Subbarayalu Naidu under the provisions of Section 16 of the Hindu Marriage Act, 1953, which reads as follows :
"Legitimacy of Children of void and voidable marriages-(I) Notwithstanding that a marriage, is null and void under Section 11, any child of such marriage who would have been legitimate if the marriage had been valid, shall be legitimate, whether such child is born before or after the commencement of the Marriage Laws (Amendment) Act, 1976, and whether or not a decree of nullity is granted in respect of that marriage under this Act and whether or not the marriage is held to be void otherwise than on a petitioner under this Act.
(2) Where a decree of nullity is granted in respect of voidable marriage under Section 12, any child begotten or conceived before the decree is made, who would have been the legitimate child of the parties to the marriage if at the date of the decree it had been dissolved instead of being annulled, shall be deemed to be. their legitimate child notwithstanding the decree of nullity.
(3) Nothing contained in Sub-section (S) or Sub-section (2) shall be construed as conferring upon any child of a marriage which is null and void or which is annulled by a decree of nullity under Section 12, any rights in of to the property of any person, other than the parents, in any case, where, but for the passing of this Act, such child would have been incapable of possessing or acquiring any such rights by reason of his not being the legitimate child of his parents."
The abovcsaid provisions is of no help to the plaintiffs since even if the said provision is applicable, the plaintiffs will have to show that actually there was a marriage between their mother P.W. 2 and Subbarayalu Naidu and that that marriage is null and void under S. 11 of the Act. Since we have held in this case that there was no marriage between P.W.2 and late Subbarayalu Naidu the plaintiffs are not entitled to seek any benefits under the said provision in the Hindu Marriage Act.
19. Point NOB. 2 and 3 : As we have already found that there was no valid marriage between the plaintiffs' mother and late Subbarayalu Naidu and that they are not entitled to any benefit under S. 16 of the Hindu Marriage Act, the plaintiffs are not entitled to succeed to any of the properties of late Subbarayalu Naidu. Therefore, it is unnecessary to consider the character of the suit properties and the properties which are liable for partition in the suit.
20. Therefore we find that there are no merits in this appeal and it is liable to be dismissed. Accordingly, the appeal is dismissed with costs.