Madras High Court
Vasantha Ammal And Others vs Narasimha Naidu on 9 November, 1998
Equivalent citations: 1999(1)CTC645, (1999)IIMLJ514
ORDER
1. The issues that arise in the above three C.R.Ps. are common and they arise out of three I.As. filed in three different suits pending on the file of the District Munsif's Court, Tiruvannamalai.
2. C.R.P. No. 325 of 1998 is filed against an order in I.A.No.297 of 1987 in O.S.No. 299 of 1978 on the file of the District Munsif's Court, Tiruvannamalai. The above suit is a suit for arrears of mesne profits filed by one Duraisamy Naidu.
3. C.R.P. 326 of 1998 is filed against an order in I.A.No. 298 of 1987 in O.S.No.103 of 1984 on the file of the District Munsif, Tiruvannamalai. The above suit is a suit for recovery of money filed by one Narasimhan against the said Duraisamy Naidu.
4. C.R.P.No.327 of 1998 arises out of the order in I.A.No.683 of 1987 in O.S.No.829 of 1982 on the file of the District Munsif, Tiruvannamalai and the suit is for partition and separate possession filed by one Sankaran.
5. Duraisamy Naidu was the plaintiff in O.S.No.299 of 1978 and defendant in other two suits. Duraisamy Naidu died on 5.2.1987. On his death, the petitioners in all C.R.Ps. have filed petitions to implead themselves as legal representatives of the deceased Duraisamy Naidu in the various suits either as plaintiffs or defendants on the ground that Vasantha was the wife of Duraisamy Naidu, and petitioners 2 to 4 are his daughters born out of the wedlock of Duraisamy Naidu with Vasantha. It is significant to notice that in the third suit filed by Sankaran for petition against Duraisamy Naidu, Vasantha Ammal is already a party, and she is the second defendant in the suit. The applications to implead themselves as legal representatives of Duraisamy Naidu in all the suits were resisted by the respondent Sankaran stating that he is the only legal heir of late Duraisamy Naidu, and Vasantha Ammal was already married and Vasantha Ammal and her minor daughters are not the legal representative of Duraisamy Naidu. The plaintiff in O.S.No.103 of 1984 from which CRP No. 326 of 1998 arises also supported the case of the respondent Sankaran. In my view, if the order passed in CRP. No. 327 of 1998 is considered, it would be sufficient to dispose of all the three C.R.Ps.
6. The petitions to implead the legal heirs of the deceased Duraisamy Naidu came up for consideration before the learned District Munsif, Tiruvannamalai. Though he has passed separate orders in three separate applications, a reading of all the orders shows that there was a joint consideration of three applications. On behalf of the petitioners, the marriage agreement between Duraisamy Naidu and the first petitioner and the birth certificates of all the three daughters and a son were marked as Exs. A-1 to A-15. On behalf of the respondent, thirteen documents were marked. The first petitioner and one Chinnammal were examined on behalf of the petitioners and on behalf of the respondent, the respondent and one Krishnamoorthy were examined.
7. Learned District Munsif rejected the evidence of the first petitioner on the ground that the petitioner No.l has not deposed regarding the essential ceremonies performed at the time of her marriage with Duraisamy Naidu. He also rejected the evidence of P.W.2 though she has given the evidence regarding the ceremonies conducted at the time of marriage and the performance of the marriage as well and also the number of persons who attended the marriage. He also refused to give any credence to birth certificates of the three daughters on the basis of the decision in Chellammal v. Angamuthu, 1997 LW (Crl.) 217. He rejected the evidence of marriage agreement on the ground that if the marriage agreement is taken into consideration that would show that the marriage between Duraisamy Naidu and the first petitioner would have been performed in the Tamil month Margazhi, which is not regarded as an auspicious month for the performance of marriage among Hindus. He also held that though in the settlement Ex.P-2, Duraisamy Naidu described the first petitioner as his wife, it could not be accepted as it must be prior to marriage agreement dated 19.12.1981 executed by Duraisamy Naidu, the age of the first child was shown as 3 years, and if that is taken into account, the marriage could have been taken place in month of December, 1978, much prior to the marriage agreement. Therefore, he came to the conclusion that the first petitioner Vasantha Ammal should have been already married to one Pananthurai Kuppusami, and in the absence of any proof and evidence of the dissolution of marriage of the first petitioner with Pananthurai Kuppusami, the marriage between the first petitioner and Duraisamy was not valid. He accepted the evidence of the respondent and held that the respondent is the son of Duraisamy Naidu. The learned trial Judge placing reliance on a decision of this Court in the case of Kumaraya Chettiar and another v. Cheyyalakshmi and others, 1972 TLNJ 464 and the decision in Sujuit Kaur v. Garja Singh & others, 1994 (1) L.W. 38, held that mere living as husband and wife does not confer the status of husband and wife. Hence, he held that there is no evidence to show that the first petitioner was married to Duraisamy Naidu in the manner contemplated by law, and the other petitioners 2 to 4 also cannot be regarded as legal representatives of the deceased Duraisamy Naidu and the respondent Sankaran is the legal representative. In this view, he dismissed the three petitions filed by the petitioners and it is against the three orders, the present CRPs. have been filed.
8. At the time of admission of C.R.Ps., the notice were ordered to the respondents and the learned counsel for the respondents has entered appearances for all the respondents. With the consent of parties, all the petitions were taken up for final hearing.
9. Mrs. Mythili Suresh, counsel for the petitioners submitted that the learned trial Judge exceeded in his jurisdiction in holding that the petitioners are not legal representatives of the deceased Duraisamy Naidu, and according to the learned counsel, the learned trial Judge has not conducted the enquiry as contemplated under Order 22, Rule 5 C.P.C., and the leaned trial Judge, on unsustainable reasons, dismissed the petitions filed by the petitioners. According to the learned counsel, the trial judge erred in rejecting the marriage that took place in the Tamil Month of Margazhi and he has overlooked that the marriage was an intercaste marriage. The learned counsel for the petitioner also pleaded that the birth certificates were rejected by the learned District Munsif on the unsustainable grounds and one independent witness was examined on behalf of the petitioners and she has spoken about the ceremonies of the marriage between Duraisamy Naidu and the first petitioner. She submitted that there is absolutely no evidence to show that the first petitioner was already married to one Pananthurai Kuppusamy. The learned counsel for the petitioners submitted that the settlement deed filed by the respondent would clearly prove that Duraisamy was married to the first petitioner and the petitioners 2 to 4 were born out of the wedlock of Duraisamy Naidu with Vasantha Ammal, first petitioner. The learned counsel for the petitioner also pleaded that the learned District Judge erred in adopting a different yardstick while rejecting the birth certificate of the petitioners 2 to 4 but he accepted the birth certificate of the respondent. The counsel for the petitioner, therefore, submitted that the order passed by the learned District Munsif is unsustainable in law, and he has overlooked the important and material evidence on record, and exceeded in his jurisdiction in holding that the petitioners are not the legal representatives in an enquiry under Order 22, Rule 5, C.P.C.
10. Mr.P. Mani, the learned counsel for the respondent, in his elaborate argument submitted that the petitioners cannot be regarded as legal representatives of the deceased Duraisamy Naidu, and there are vital discrepancies in the evidence let in by the petitioner and he also submitted that in the settlement deed dated 19.12.1978 Duraisamy Naidu described the first petitioner as the wife which contradicts his statement in the marriage agreement dated 10.1.1979 that the marriage was performed fifteen days prior to the execution of the agreement. He also referred to the settlement dated 2.12.1981 wherein Duraisamy Naidu settled the property in favour of the second and third petitioners and he has described the first petitioners as his wife and the children as his children and the age of the second petitioner was shown as three years, which would establish that she was born in the year 1978 much prior to the marriage agreement dated 10.1.1979. The learned counsel also submitted that there are discrepancies in the evidence of P.W.1 and P.W.2 about the essential ceremonies performed in the marriage and also regarding the venue of the marriage and therefore, he submitted that the learned Judge has given cogent and worthy reasons in his detailed order to reject the evidence let in by the petitioner and has come to the correct conclusion in holding that the petitions should not interfere with the finding of fact arrived at by the learned District Munsif. He also submitted that the finding that the petitioners are not the legal representatives of the late Duraisamy Naidu is based on evidence and it was arrived at only for the purpose of deciding the interlocutory applications and would not operate as res judicata. He therefore submitted that notwithstanding the dismissal of the three impleading petitions, nothing prevents the petitioners from establishing, their right as legal heirs of the late Duraisamy Naidu in an independent proceeding. He therefore submitted that mere living as husband and wife would not confer the status of husband and wife. He also relied upon additional document sought to be introduced in C.R.P. No. 325 of 1998 to show that the petitioner No.l was already married to one Kuppusami. The submission of the learned counsel for the respondent was that the deceased Duraisamy Naidu was aged 82 years at the time of his death and he would not have been married to the first petitioner who was aged 30 years and Duraisamy Naidu was under the influence of the first petitioner at that time and therefore, the settlement made by him or the statements made by him could not be accepted as they have to be viewed in the context in which they were made. He therefore submitted that there is no case made out by the petitioners for impleading themselves as legal representatives and all the C.R.Ps. are liable to be dismissed. Mr. P. Mani, learned counsel for the respondents relied upon the following decisions:
(1) Muniappa Nadar and others v. K. V. Koraipandi Nadar and another, 1986 (99) L.W. 839; (2) Sivagurunathan and another v. Balasubramanian, 1988 (1) L.W 277; (3) Bunnakkal Sreedharan v. Vellai Padmini and others, 1992 Crl. L.J. 3562; (4) Sivalingam v. Sakthivel Rep., By his Power of Attorney Agent Kunjithapatham Pillai and another, 1988 (2) LW 348; (5) Mohan and another v. Santha Bai Ammal and others, 1989 (2) L.W. 197; (6) Surjit Kaur v. Garja Singh and others, 1994 (1) L.W. 38; (7) T.N. Govindarajulu v. Lakshmi Ammal by her agent P.V. Narasimhan, A.I.R. 1961 Mad. 1158; (8) Nesamma Nadachi v. Muthukannu Nadar Paul Nadar .
11. I have carefully considered the rival submissions of the learned counsel for the parties. A fair reading of the order of the learned District Munsif shows that he has exceeded jurisdiction in dismissing the applications under Order 22, Rule 5, C.P.C, The enquiry as regards the legal representatives under the provisions of Order 22, Rule 5, C.P.C. is purely a summary in nature and character, and the enquiry under the relevant provisions of C.P.C. is made only for the limited purpose of finding out the legal representative of the deceased to carry on the suit so that the adjudication may bind the estate. This Court, in the case of Muniappa Nadar and others v. K.V. Doraipandi Nadar and another, 1986 (99) L.W. 839, held that the question whether a person can be permitted to be brought on record as legal representative of the deceased person, for the purpose of continuing the suit is a matter collateral to the suit and any adjudication arrived at in the case of such an enquiry cannot be regarded as res judicata between the parties.
12. In the case of Kalu Rams v. Charon Singh and another, , a learned Judge of the Rajasthan High Court held that what is required to be considered at the time of passing an order under Order 22, Rule 5, C.P.C. is whether a person claiming to represent the estate of deceased for the purpose of lis has sufficient interest in carrying on litigation and the enquiry into right to heirship is not the determining factor in deciding whether a person is or is not a legal representative for the purpose of proceedings before the Court.
13. The learned trial Judge, in my view, has exceeded his jurisdiction in deciding the question whether the marriage of Duraisamy with Vasantha ammal was validly performed or not, and whether there was any evidence to prove that essential ceremonies required for a valid marriage have been performed between the first petitioner and Duraisamy Naidu. The first petitioner Vasantha Ammal had examined herself and she spoke about her marriage with Duraisamy Naidu. Her evidence was corroborated by an independent evidence P.W.2 who spoke about the ceremonies performed at the time of marriage and she also spoke about the number of persons who attended the marriage. The learned trial judge brushed aside the evidence of both the witnesses only on the ground that they have not spoken about the essential rituals performed at the time of marriage. In my view, the learned trial Judge erred in placing the entire evidence under microscope and examined the same to find out whether there was a valid marriage between the first petitioner and the deceased Duraisamy Naidu. In my view, learned trial Judge should have deferred the question at time of the trial of the suits.
14. Further, in my view, learned trial Judge was not quite correct in holding that the marriage was performed in the Tamil month Margazhi' and hence, it was not a valid marriage. The learned trial Judge, in my view, should have examined the marriage agreement executed by Duraisamy Naidu and his rejection of the marriage agreement in the summary proceedings is not proper and justified as the agreement indicates prima facie that the first petitioner is the wife of Duraisamy Naidu. Further, there are four birth certificates in respect of three daughters and one son evidencing that they were born out of the wedlock of Duraisamy with Vasantha Ammal. The oral and documentary evidence let in on behalf of the petitioners were simply brushed aside by the learned District Munsif without any evidence contra. In my view, it will not be appropriate to elaborate how the learned trial Judge went wrong in rejecting the oral as well as documentary evidence showing that the petitioners are the legal representatives, except to state that the rejection of the evidence in the summary enquiry is not proper. The learned Judge relied upon some decisions to show that mere living as husband and wife would not confer the status of wife on the first petitioner and that question should have been left open till the time of trial of the suits. Hence, it is unnecessary to express any opinion whether the final conclusion of the District Munsif is correct or not, as any opinion now expressed will prejudice the trial. In my opinion, learned trial Judge should have decided the question whether the petitioners have prima facie established that they are the legal heirs of the late Duraisamy Naidu and in my view, the oral and documentary evidence, particularly, the admission made by Duraisamy Naidu in the written statement in more than one place that he married the first petitioner and other petitioners are his children would prima facie establish that the petitioners have sufficient interest in the litigation pending between the parties.
15. Mr. P.Mani, learned counsel for the respondents submitted that Duraisamy Naidu has not stated anything about the ceremonies conducted for the performance of his marriage with the first petitioner herein in the written statement filed by him. I am unable to accept the contention of the learned counsel for the respondents as the filing of the written statement is not an occasion to state the ceremonies performed at the time of marriage and it is matter for evidence at the time of trial of the suits. However, when there is an admission made by Duraisamy Naidu himself coupled with the fact that there are documentary evidence executed by Duraisamy Naidu to show that he married the first petitioner, that would prima facie show that the petitioners have established their right to get them impleaded as legal representatives. Further the questions whether there was a valid marriage, whether the essential ceremonies for the performance of the marriage were performed or not are all matters for proof at the time of final trial of the suits. The petitioners herein have proved for the purpose of allowing the applications their interest in the litigation, therefore conclude that the learned District Munsif has exceeded in his jurisdiction in recording the finding that the petitioners cannot be regarded as legal representatives of the deceased Duraisamy Naidu and the orders are liable to be set aside. As already seen, the enquiry order under Order 22, Rule 5, C.P.C. is not meant to determine the heirship of the deceased, but it is an enquiry to determine whether the person who sought to be impleaded as legal representative has sufficient interest in carrying on the litigation. I therefore hold that the learned District Munsif had exceeded in his jurisdiction, and converted the summary enquiry into a full-fledged trial and arrived at the finding taking into account irrelevant consideration and omitting to take into account the relevant materials on record.
16. I am also unable to accept the submission of the learned counsel for the respondent that since the finding would not operate as a res judicata in an independent proceedings it would be open to the petitioners to establish their right in an independent suit. It is no doubt true that the finding may not operate as res judicata in respect of further proceedings, but when the proceedings are pending and the issues raised can be effectively adjudicated and decided upon in the present suits, in my view, it will not be advisable to drive the petitioners to file another suit to establish their right as legal heirs of the late Duraisamy Naidu. In my view, it will not be just or proper to multiply the same proceedings as multiplicity of proceedings should be avoided, particularly in a case of pending suit for partition filed by the respondent in C.R.P. 327 of 1998. I therefore hold that the approach of the learned District Munsif in coming to the final determination is not legally sustainable in law.
17. Further, the question that may arise is whether though the jurisdiction of the trial Court under Order 22, Rule 5, C.P.C. is only summary in nature, can it be stated that the learned Munsif has exceeded his jurisdiction as he happened to examine the witnesses and after holding a full-fledged enquiry decided the matter that the petitioners are not the legal representatives of the deceased Duraisamy Naidu? But, what is relevant is to see whether what is appropriate was done. If the learned Munsif has done an act which is appropriate and which is warranted and what the occasion demands, then, it can be said that he has acted within the scope of powers and which is not beyond the ambit of the jurisdiction conferred upon him. In other words, if he has done what is not appropriate and which the law does not warrant him to do and if he crossed the borders and transgressed the limits of summary jurisdiction, then it can be stated that he has acted without jurisdiction. The consequence of holding a full trial and giving a finding on the question of legal heirs would create several difficulties. Firstly, as I have already seem, the finding rendered in an enquiry does not constitute res judicata, and if he renders his final conclusion in the matter that would finally determine the rights of the parties in the interlocutory stage. Secondly, there is no provision of appeal against the order passed by him under Order 22, Rule 5, C.P.C. holding on whether a person is a legal representative or not. The revisional Court while examining the matter may either confirm or differ from the views of the trial Court, but the decision rendered by the Court in revisional jurisdiction on examination of the merits of the matter would cause embarrassment at the time of final hearing of the suit or at the time of any other proceeding that may be instituted to establish that the said person is or is not a legal representatives. Therefore, learned trial Munsif was not quite justified in going into the merits of the matter and decide the matter once for all in the summary enquiry and in that view, I am of the view that the trial Judge has exceeded his jurisdiction in rendering his finding.
18. In this view of the matter, it is not necessary to consider the various decisions relied on by the learned counsel for the respondents as they are not applicable to the facts of the case.
19. Further, the questions, as already cited, whether the marriage of the first petitioner with Duraisamy Naidu was a valid marriage or not and the petitioners 2 to 4 are the daughters of the late Duraisamy Naidu are all matters that can be adjudicated at the time of final trial of the suit. It is also significant to notice that in one of the suits, the first petitioner is already a party as the second defendant. The order of the learned District Munsif rejecting the various applications filed by the petitioners in the three suits are not sustainable in law and the same is set aside.
20. Mr. P. Mani, learned counsel for the respondents submitted that the respondent Sankaran has claimed that he should have also been impleaded as legal representative of the deceased Duraisamy Naidu and according to him, he has filed a memo, to that effect before the trial Court. The learned District Munsif in the impugned order has found that the respondent Sankaran is the legal representative of the deceased Duraisamy Naidu and that finding has not been challenged. After giving such a finding, curiously learned District Munsif has dismissed the applications. The submission of the learned counsel for the respondents is that the respondent Sankaran has also filed a memo, before the District Munsif to recognise him as a legal representative. In my view, the request of the respondent Sankaran is reasonable and hence. I direct the learned District Munsif to give effect to his finding that the respondent Sankaran is the legal representative appropriately in the three suits pending on his file.
21. C.M.P.No. 12115 of 1998 This is a petition to receive birth certificate dated 21.10.1991 issued by the Municipal Commissioner, Tiruvannamalai Municipality as additional document. The petitioners have filed a counter affidavit denying the various allegations made in the affidavit. In my view, it is not necessary to burden this judgment with the allegations and the counter-allegations made by the parties. The certificate was issued by Municipal Commissioner, Tiruvannamalai and it is dated 21.10.1991 and there are no reasons given in the affidavit for the non-production of the same before the learned District Munsif, Tiruvannamalai at the time of consideration of the three interlocutory applications against which the C.R.Ps. have been filed and there are no reasons disclosed for belated production of additional document. Further, as on date, there is nothing to connect the first petitioner with Pananthurai Kuppusamy and that is a matter that should be decided at the stage of final trial of the suits. Hence, this petition filed to receive the additional document is rejected, but, it is made clear that it will be open to the respondent to mark the document in question at the time of trial if the same subject to proof and other objections that may be raised by the petitioners herein.
22. C.M.P.Nos. 1608 of 1998, 1610 of 1998 & 1611 of 1998: These petitions are also dismissed.
23. In the result, C.RP.Nos, 325 of 1998, 326 of 1998 and 327 of 1998 are allowed. The orders of District Munsif, Tiruvannamalai made in I.As. In three suits are set aside. The learned District Munsif is also directed to give effect to his finding that the respondent Sankaran is the legal representative of late Duraisamy Naidu appropriately in the various suits pending on his file. However, in the circumstances, there will be no order as to costs.