Madras High Court
Kamakshi vs Minor Ramalingam Alias Munusami And ... on 12 January, 1993
Equivalent citations: (1993)2MLJ17
JUDGMENT Abdul Hadi, J.
1. The 3rd defendant, who was brought on record in the trial court as the legal representative of the 1st defendant, is the appellant in this second appeal. The plaintiff and the 2nd defendant are respectively respondents 1 and 2 herein. The 2nd defendant is the alienee from the 1st defendant under Ex.B-1 sale deed, dated 27.5.1971. The plaintiff is one minor Ramalingam alias Munusami, by his next friend and mother Singarammal. According to the plaintiff, the 1st defendant who is his father, married the abovesaid Singarammal in 1966 and the suit property belongs to the family of the 1st defendant and the plaintiff. On that footing the partition relief was claimed.
2. But, the defence to the suit is that Singarammal is not the wife of the 1st defendant and that the 1st defendant had only one wife by name Karuppayi and there was no marriage between the 1st defendant and Singarammal and so, the plaintiff is not the son of the 1st defendant and the suit has to be dismissed.
3. The suit O.S. No. 1120 of 1974 has been dismissed, accepting the abovesaid case of the defendants and holding that the alleged marriage between the 1st defendant and Singarammal is not true and the plaintiff is not the son of the 1st defendant.
4. However, on appeal by the plaintiff, the lower appellate court in A.S. No. 189 of 1978, has allowed the appeal and decreed the suit. Hence, the present second appeal by the 3rd defendant, who is the daughter of 1st defendant through the abovesaid Karuppayi.
5. The learned Counsel for the appellants makes the following submissions: While the trial court has given various reasons for holding that there was no marriage between the 1st defendant and Singarammal, the lower appellate court erred in not having gone into the question of factum of the alleged marriage. It only went into the question whether the plaintiff is the son of the 1st defendant. Unless the factum of marriage is proved, there is no scope for the application of Section 16(1) of the Hindu Marriage Act. In this connection, he also relied on the decision in Muthayya v. Kamu . The reasons given by the trial court for finding that the factum of marriage has not been proved, were not at all dealt with by the lower appellate court in its judgment. The plea of the plaintiff and the evidence given by P.W. 1 the above said Singarammal would amply show that there was no marriage at all between the 1st defendant and Singarammal. Therefore, the learned Counsel submits that pursuant to Section 103, C.P.C., this Court, sitting in second appeal could go into that question regarding the factum of marriage. Further, the lower appellate court also erred in relying on Ex.A-2, the birth extract of the plaintiff to hold that the plaintiff was a legitimate son of the 1st defendant. In this connection he also relied on Section 35 of the Evidence Act and the decisions in Nagayasami Naidu v. Kochadai Naidu and Rajambal v. Veeramuthu Udayar 99 L.W. 175 (D.B.). Further, though Ex.B-1 sale deed executed by the 1st defendant in favour of the 2nd defendant-2nd respondent herein in respect of a part the suit property states that he executed the said sale deed on behalf of Munusami, there is no proof that the said Munusami was the plaintiff.
6. The 2nd respondent remains unrepresented.
7. The learned Counsel for the 1st respondent-plaintiff makes the following submissions: The factum of the abovesaid marriage need not be proved. The abovesaid Munusami referred to in Ex.B-1 can only be the plaintiff, since the cause title of the suit shows that the plaintiff has also got an alias name Munusami. However, even in Ex.A-3 suit notice dated 21.6.1973, the said alias was mentioned and in the reply Ex.A-4 sent by the 1st defendant, there was no repudiation of the said alias name. Further, there is no use merely denying, in Ex.A-4 the factum of the abovesaid marriage. The 1st defendant must have also taken a legal proceeding to establish that Singarammal was not his wife. Further, the marriage would be void under Section 11 only if a petition is filed and the Court declares so, pursuant to the relevant clause under Section 5 of the Hindu Marriage Act. But, since no such petition has been filed in the present case, the abovesaid marriage cannot be taken as void marriage.
8. I have considered the rival submissions. After going through the judgment of the lower appellate court I also find that it has not specifically gone into the question of factum of marriage, though it held that the marriage was void in view of the subsistence of the 1st defendant's earlier marriage with Karuppayi. In the above context, in view of the Section 103, C.P.C. I could myself go into the. question of factum of marriage. 8-A Going with the said question, I find first of all, so far as the plea regarding the marriage, there is only one sentence in the plaint, which runs as follows:
The marriage between Singarammal and 1st respondent-defendant took place in 1966". The actual date of marriage in 1966 or other details regarding the abovesaid marriage have not been given at all in the plaint, except no doubt stating "Singarammal and 1st respondent-defendant were living together till about 2 years back. when the 1st respondent-defendant ill-treated his wife Singarammal and drove her out of the house." This apart, the more significant feature is that the very evidence given by P.W., Singarammal herself runs as follows:
Further, though P.W.1 states,"
The inference is that a priest conducted the marriage. But, the said priest also has not been examined and there is also no explanation as to why the said priest was not examined. All these apart, it is strange that P.W.1 did not even know the day, date, month or the year of the marriage. P.W.1 also has admitted that there was no marriage invitation at all. further, she admitted that she did not know how much sridhanam was given to her at the time of the marriage. Further, while P.W. 1 says that the marriage expenses were met by the bridegroom's party. P.W.2 deposes differently that the marriage expenses were met by the bride's party alone. Further P.W.2 also deposed that four years after the marriage, there were panchayats for four or five times in view of the cruelty inflicted by the 1st defendant on P.W. 1. But, none of the said panchayatdars has been examined, despite the admission of P.W.2 that one of the Panchayatdars, viz., The epancha Naicker was even present in the Court on the day when P.W.2 was examined.
9. So, from the very evidence of P.Ws.1 and 2, it can be safely concluded that the factum of the alleged marriage between Singarammal and the 1st defendant cannot be said to have been established by the plaintiff, and the finding of the trial court in this regard, is correct. Further, the abovesaid Ex.A-2 birth extract of the plaintiff cannot also be relied on to prove the parentage of the plaintiff, or in other words, to prove the factum of marriage between the 1st defendant and Singarammal. It has also been held so in Nagayasami Naidu v. Kochadai Naidu 81 L.W. 436 : A.I.R. 1969 Mad. 329 (D.B.), while dealing with the scope of Section 35 of the Evidence Act, Rajambal v. Veeramuthu Udayar, 99 L.W.175 (D.B.), has also held likewise. It relied on an earlier decision in Nagayasami Naidu v. Kochadai Naidu , which observed: "Under Section 35 of the Evidence Act (I of 1872), it is only the entry made by a public servant in the discharge of his official duties that is admissible as a relevant fact. Other particulars not strictly covered by the entries are not admissible under Section 35 of the Evidence Act."
10. Then regarding the above referred to recital in Ex.B-1 sale deed wherein the 1st defendant, the executant is stated to have executed the document on behalf of Munusami also, even though it could be assumed that Munusami referred to therein is only the alias name of the plaintiff, that by itself cannot go to prove the factum of marriage between the 1st defendant and Singarammal in the light of the above referred to evidence given by P.W. 1 and P.W.2 and the other features pointed out above. For all these reasons, I agree with the trial court in holding that the factum of the abovesaid marriage has not been proved.
11. If that is so, there is no scope for the application of Section 16 of the Hindu Marriage Act. It has also been so held in Muthayya v. Kamu . After quoting Section 16(1), the Division Bench in the said case also observed as follows:
This section would have scope for application only if there was solemnization of marriage at any time. In the present case, we have held that there is no proof of solemnisation of marriage so that there is absolutely no scope for invoking Section 16 of the Act to the facts here. Therefore, the plaintiff cannot be taken as the legitimate son of the 1st defendant.
12. In the light of the abovesaid discussion, it is clear that the argument of the learned Counsel for the 1st respondent that the abovesaid marriage need not be proved at all or that the 1st defendant should have taken a legal proceeding to declare that the marriage was a nullity, has no merit at all. In Mulla's Hindu Law, Sixteenth Edition at page 648, it has also been observed by way of commentary to Section 11 of the Hindu Marriage Act that neither party is under any obligation to seek a declaration of nullity under Section 11 though, of course such a declaration may be asked for the purpose of precaution or record. The language used in Section 11 also makes the said position clear.
13. In the result, the judgment and decree of the lower appellate court are set aside and that of the trial court are restored and consequently, the second appeal is allowed. However, in the circumstances, of the case, there will be no order as to costs.