Madras High Court
Ramalakshmi Ammal vs Chellappan Pillai on 5 June, 2007
Author: P.R.Shivakumar
Bench: P.R.Shivakumar
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 05/06/2007 CORAM: THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR S.A.(MD).No.257 of 1996 1.Ramalakshmi Ammal 2.Jayalakshmi ... Appellants Vs. 1.Chellappan Pillai 2.Velayudhan Pillai 3.Gopala Pillai ... Respondents Prayer Second Appeal filed under Section 100 of the Code of Civil Procedure against the Judgment and decree of the learned District Judge, Nagercoil, Kanyakumari District passed in A.S.No.69 of 1993, dated 07.09.1995, reversing the judgment and decree in O.S.No.45 of 1986, on the file of the Subordinate Judge, Kuzhithurai, Kanyakumari District dated 20.08.1993. !For Appellants ... Mr.K.Sree Kumaran Nair ^For 1st Respondent ... Mr.D.Rajagopal :JUDGMENT
The plaintiffs in the original suit are the appellants in this second appeal. Praying for the relief of declaration, permanent injunction, recovery of possession and for mesne profits, the original suit was filed. The trial Court decreed the suit and granted the reliefs sought for therein, as against which, the defendants 1 and 3 filed an appeal in A.S.No.69/1993 before the learned District Judge, Nagercoil, Kanyakumari District. The appellate Court allowed the appeal, reversed the judgment of the trial Court and dismissed the suit in respect of the reliefs sought for in the plaint. The said judgment of the first appellate Court is challenged in this second appeal.
2. According to the plaintiffs/appellants, Ramalakshimi Ammal, the first appellant/first plaintiff was given in marriage to one T.K.Velayuthan Pillai on 10.12.1955. Madhu, Sylaja and Jalaja are the three children born to them out of the wedlock. After the birth of their third child in 1960, husband and wife were separated and the marriage was dissolved on 27.07.1962 by mutual consent at the intervention of some of the prominent members of the community in conformity with a custom prevailing in the community, namely Krishnan vakai. Thereafter, the first appellant/first plaintiff was given in marriage to Thangappan Pillain on 08.02.1963 and out of the wedlock, the second appellant/second plaintiff Jeyalakshmi was born to them on 12.01.1964. Thangappan Pillai fell sick in the year 1985 and died on 28.08.1986, leaving behind him, the plaintiffs as his only legal heirs. The suit properties are the properties owned by Thangappan Pillai at the time of his death and thus, the appellants/plaintiffs became the owners of the suit properties as the legal heirs of Thangappan Pillai. The first item of suit properties is in possession and enjoyment of the appellants/plaintiffs. The respondents 1 and 3 herein/defendants 1 and 2 in the suit are the brothers of Thangappan Pillai and the second respondent herein/third defendant in the original suit is a close associate of the first respondent/first defendant. The respondents 1 and 3/defendants 1 and 2, claiming themselves to be the legal heirs of the deceased Thangappan Pillai, started asserting rights over the suit properties and made attempts to take forcible possession of item 1 of the suit properties. The second item of suit properties is a building bearing Door No.3-
61. A portion of the said building had been rented out to one Balakrishnan Nair and the other portion was in the possession of Thangappan Pillai during his life time. After the death of Thangappan Pillai, the first defendant, with the help of other defendants, forcibly evicted the above said tenant Balakrishnan Nair and took possession of the entire building along with the movables. Therefore, the appellants/plaintiffs had to approach the Court by filing the suit for the following reliefs:
(i) A declaration that the plaintiffs are the owners of all the suit properties as legal heirs of the deceased Thangappan Pillai;
(ii) In the alternative, a declaration that the second plaintiff is the absolute owner of the suit properties as the only child of the deceased Thangappan Pillai;
(iii) A permanent injunction restraining the respondents/defendants from interfering with the appellants'/plaintiffs' peaceful possession and enjoyment of the suit properties; and
(iv) A decree directing delivery of possession of item-2 of the suit properties evicting the first respondent/first defendant and directing payment of future mesne profits at the rate of Rs.360/-per annum.
3. According to the defendants, the first appellant/first plaintiff, Ramalakshmi Ammal is the wife of T.K.Velayuthan Pillai and not the wife of Thangappan Pillai. The marriage was not dissolved as contended by the appellants/plaintiffs. There was no such custom prevailing in the community to have the marriage extra-judicially dissolved as contended by the appellants herein/plaintiffs in the suit. The first appellant/first plaintiff was never given in marriage to Thangappan Pillai and the second appellant/second plaintiff is not the daughter of Thangappan Pillai. In fact, the second appellant/second plaintiff Jeyalakshmi is the daughter of T.K.Velayuthan Pillai. The appellants/plaintiffs are still living with the said T.K.Velayuthan Pillai. Thangappan Pillai died as a bachelor and the first respondent/first defendant, being his brother, alone is entitled to the properties of Thangappan Pillai as his legal heir. A portion of the first item of suit properties was sold to the second respondent/third defendant and he is in possession of the said portion having an extent of 20 cents. The remaining portion of the first item of suit properties is with the first respondent/first defendant. According to the third respondent/second defendant, by virtue of a sale deed executed by Thangappan Pillai, the first item of suit properties belongs to him.
4. Based on the above said pleadings, the trial Court framed as many as nine issues. In the trial that followed, as many as four witnesses were examined and 116 documents were marked as Exs.A-1 to A-116 on the side of the appellants herein/plaintiffs. A similar number of witnesses were examined and 23 documents were marked as Exs.B-1 to B-23 on the side of the defendants. At the conclusion of trial, the trial Court decided all the issues in favour of the appellants herein/plaintiffs and decreed the suit as prayed for.
5. As against the judgment and decree of the trial Court, the respondents 1 and 2 herein/the defendants 1 and 3 in the suit filed an appeal in A.S.No.69/1993 on the file of the learned District Judge, Kanyakumari District at Nagercoil. The appellate Court held that the existence of the alleged custom was not proved that the marriage of the first appellant/first plaintiff with T.K.Velayuthan Pillai was not dissolved; that the second appellant/second plaintiff was not the daughter of Thangappan Pillai and that hence the plaintiffs were not the legal heirs of Thangappan Pillai. Based on the said findings of fact, the learned appellate Judge non-suited the appellants herein/plaintiff, allowed the appeal reversing the judgment of the trial Court and dismissed the suit with cost. Hence the appellants/plaintiffs are before this Court, challenging the said reversing judgment of the learned District Judge in this second appeal.
6. This Court heard the arguments advanced by Mr.K.Sree Kumaran Nair, learned counsel appearing for the appellant and also by Mr.D.Rajagopal, learned counsel appearing for the first respondent. This Court also perused the materials available on record, including the judgment of the lower Courts and paid its anxious considerations to the same.
7. It is an admitted case of both parties that the first appellant/first plaintiff was the wife of one T.K.Velayuthan Pillai and out of the wedlock three daughters, by name Madhu, Sylaja and Jalaja were born to them. The dispute is with regard to the contention of the appellants/plaintiffs that the marriage was dissolved by mutual consent on 27.07.1962 in conformity with alleged custom prevailing in the community to which they belonged; that thereafter the first appellant/first plaintiff was given in marraige to Thangappan Pillai and that the second appellant/second plaintiff is the daughter born to them. Per contra, the respondents/defendants have taken a definite stand that there was no such custom prevailing in the community to which the parties belonged as alleged by the appellants/plaintiffs; that the marriage between the first appellant/first plaintiff and T.K.Velayuthan Pillai was never dissolved as claimed by the appellants/plaintiffs; that there was no solemnisation of marriage between the first appellant/first plaintiff and Thangappan Pillai; that the second appellant/second plaintiff is not the daughter of the said Thangappan Pillai and that the appellants/plaintiffs are still living with T.K.Velayuthan Pillai.
8. On an appreciation of evidence, the learned first appellate Judge, being the final Court of appeal on facts, has decided all the above said questions of fact against the appellants/plaintiffs and non-suited them for the reliefs sought for in the plaint. The question of fact decided by the lower appellate Court based on an appreciation of evidence cannot be canvassed in this second appeal unless such findings are proved to be perverse, in which case alone, the said issue will get elevated to the position of a substantial question of law.
9. In the instant case, the case of the appellants/plaintiffs is founded on their contention that there was a valid customary divorce dissolving the marriage of the first appellant/first plaintiff with T.K.Velayuthan Pillai. In order to sustain the plea that there was a valid custom prevailing in the community by which a marriage could be dissolved without the intervention of the Court by mutual consent at the intervention of prominent persons of the community, it must be proved that the same was followed from time immemorial without any deviation. In this case, there is a bald allegation in the plaint that there was a custom prevailing in the community of Krishnan Vakai by which marriages are dissolved by mutual consent by solemn affirmation in the presence of respectable elders of the community. The existence of such a custom as alleged in the plaint has been stoutly denied by the respondents/defendants. In the light of the said denial, the appellants/plaintiffs seems to have made an attempt to make an improvement over the same. In such an attempt, the first plaintiff, who was examined as P.W.1, has stated in her evidence that on 27.07.1962 in front of the sacred fire and in the presence of prominent members of the community, the mangal soothra (thali) was removed and handed over to T.K.Velayuthan Pillai and thus, the matrimonial relationship between the first plaintiff/first appellant and T.K.Velayuthan Pillai was brought to an end. Except the Ipse dixit of the first plaintiff (P.W.1) that the above said formalities were observed to bring about a dissolution of marriage without the intervention of the Court, there is no other evidence to substantiate the contention of the appellants/plaintiffs that the said practice was prevailing among the members of the community for a very long period without any deviation from the same to show that such practice has acquired the status of a custom recognised in law sought to be preserved by Section 13-B of the Hindu Marriage Act, 1955. The second plaintiff, who was examined as P.W.2, has not stated anything regarding the alleged custom prevailing in the community of Krishnan Vakai. Yet another Velayuthan Pillai examined as P.W.3 has made a bald statement in his evidence that the marital tie between Ramalakshmi Ammal and Velayuthan Pillai had broken town, but has not stated anything about the custom prevailing in the community for dissolving the marriage by mutual consent and undergoing the ceremony of removing the Mangal Soothra before the sacred fire and handing over the same to the husband. Though P.W.4 Gopala Krishnan has stated in his evidence that in the community of Krishnan Vakai there was a practice of dissolving the marriage by removing the Mangal Soothra in front of Sacred fire and handing it over to the husband, has given contradictory statements in his evidence regarding the applicability of the provisions of the Hindu Marriage Act to the members of the said community. At one place he would admit that the Hindu Marriage Act applies to them and another place he would deny the applicability of the said Act for the marriages and divorces among the members of the said community. How long such a practice was being followed has not been spoken to by anyone of the witnesses. Instances of such practice for quite a long period before the enactment of Hindu Marriage Act, 1955 have not been cited to show that in fact there was such a practice and such a practice was invariably followed by the members of the community without any deviation from the said practice and that the said practice had acquired the status of a customary law before the advent of the Hindu Marriage Act.
10. The lower appellate Court has analysed all these aspects, marshalled the evidence adduced by the plaintiffs in this regard and came to the correct conclusion that the appellants/plaintiffs had failed to substantiate their contention that there was a practice of dissolving the marriage among the members of Krishnan Vakai community by mutual consent in the presence of prominent members of the community without the intervention of the Court. To substantiate the contention that there was such a custom, sufficient and reliable evidence is needed. Strict proof of the existence of the custom pleaded by the plaintiffs should be made. Apart from the failure to make necessary pleadings, the evidence adduced on the side of the plaintiffs are not enough to substantiate such a contention that there was such a custom prevailing among the members of the Krishan Vakai community. The lower appellate Court, on a proper appreciation of evidence, has come to the conclusion that the said plea made by the plaintiffs was not substantiated by reliable and sufficient evidence. Such a finding of fact based on evidence cannot be interfered with in this second appeal.
11. The learned lower appellate Judge has observed that the plaintiffs' plea that the first plaintiff was given in marraige to Thangappan Pillai and the second plaintiff was born to her through Thangappan Pillai were not substantiated even if it is assumed for argument's sake that such a custom was prevailing among the members of Krishnan Vakai Community. Though a number of documents have been produced on the side of the plaintiffs, Exs.A-1, A-2, A-3, A-10, A-112, A-113, A-114, A-115 and A-116 are the relevant documents having a bearing on the above said issue. Likewise, the following documents produced on the side of the defendants, namely Exs.B-1, B-22 and B-23 are the relevant documents clinching the issue. Relying on the said documents, the learned lower appellate Judge has come to the conclusion that the second plaintiff Jeyalakshmi was not the daughter of Thangappan Pillai as claimed by the plaintiffs; that on the other hand, she was the daughter of T.K.Velayuthan Pillai and that all the school records show T.K.Velayuthan Pillai alone as a father which would prove the other contention of the defendants that the first plaintiff and her husband T.K.Velayuthan Pillai did not part with at any point of time, especially before the birth of the second plaintiff Jeyalakshmi. Ex.A-1 is the birth certificate obtained form Nagercoil Municipality to show that the second plaintiff was born on 12.01.1964 and the birth was registered on 13.02.1964 showing Thangappan Pillai and Ramalakshmi as her parents. Ex.A-3 is the S.S.L.C. Certificate of the second plaintiff in which Thangappan Pillai is shown as the father of the second plaintiff. Ex.A-2 is the community certificate of the second plaintiff which was obtained on 22.04.1989. Admittedly Thangappan Pillai died on 28.08.1986. Therefore, no credence can be given to the said document relied on by the plaintiffs to prove that Thangappan Pillai was the father of the second plaintiff. The date of birth found in Ex.A-1 is 12.01.1964. The same differs from the date of birth found in Ex.A-3. In Ex.A-3, the date of birth of the second plaintiff is noted as 26.05.1964. Ex.A-112 is the family card of Thangappan Pillai issued in the year 1982. In the said family card, the name of the first plaintiff is not found. Second plaintiff's name, namely Jeyalakshmi alone is found and she is described as daughter. In Ex.A-114 voters list for the year 1984, though the name of Thangappan Pillai and Lakshmi Pillai are found one after another, there is no clinching evidence to show that Lakshmi Pillai is the first plaintiff, whereas Ex.B-1 copy of the family card of T.K.Velayuthan Pillai issued on 09.11.1987, the first plaintiff was shown as his wife with the name 'Lakshmi'. Ex.B-7 is the certified copy of the gift settlement deed exhibited executed by T.K.Velayuthan Pillai in favour of the first plaintiff on 22.08.1986 describing her as his wife. The original school admission and removal registers pertaining to the second plaintiff have been summoned and marked on the side of the defendants as Exs.B-22 and B-23. In Exs.B-22 and B-23, the admission register of the second plaintiff, the name of the first plaintiff as a mother alone is found. In Ex.B-23 - the removal register of the second plaintiff, T.K.Velayuthan Pillai's name is found as the father of the second palintiff. Ex.B-4 is the birth and death register extract showing the members of the family of T.K.Velayuthan Pillai, wherein the first plaintiff Ramalakshmi has been shown as his wife and the second plaintiff Jeyalakshmi has been shown as the fourth daughter of T.K.Velayuthan Pillai.
12. All the above mentioned documents were taken into account by the lower appellate Judge in coming to the conclusion that the marriage between the first plaintiff Ramalakshmi and her husband T.K.Velayuthan Pillai was never dissolved that the above said T.K.Velayuthan Pillai was the father of the second plaintiff Jeyalakshmi and that the second plaintiff was not the daughter of Thangappan Pillai as claimed by the plaintiffs. All the above said factual findings, regarding the alleged extra-judicial divorce dissolving the marriage of the first appellant with T.K.Velayuthan Pillai, the alleged marriage of the first plaintiff with Thangappan Pillai and the birth of the second plaintiff to the first plaintiff and Thangappan Pillai, in the negative cannot be said to be perverse. Based on the evidence oral and documentary, the learned lower appellate Judge has come to a factual conclusion that the plaintiffs were somewhat associated with Thangappan Pillai before his death without there being any valid divorce between the first plaintiff and her husband T.K.Velayuthan Pillai and that after the death of Thangappan Pillai as a bachelor, taking advantage of the said acquaintance, plaintiffs with the help of the husband of the first plaintiff T.K.Velayuthan Pillai have made an attempt to stake claim to the properties of Late Thangappan Pillai. It is not a finding which can be termed based on no evidence or that no reasonable man on the basis of the available evidence would have come to such a conclusion. Under these circumstances, the findings of fact recorded by the first appellate Court cannot be interfered with in this second appeal.
13. The learned first appellate Judge has correctly non-suited the plaintiffs based on the factual findings that the first plaintiff is not the wife of Thangappan Pillai and the second plaintiff is not the daughter of Thangappan Pillai. So far as the question of possession and enjoyment also, a factual finding was recorded to the effect that the second item of suit properties is in possession and enjoyment of the first defendant and a portion of the first item of the suit property to an extent of 20 cents of land was purchased by the second respondent/third defendant from the first respondent/first defendant and he is in possession of the same and that the rest of the portion are admitted to be in possession of the first respondent/first defendant. These factual findings based on evidence cannot also be the subject matter of challenge in this second appeal unless substantial questions of law are involved in this case.
14. In this case, after considering all the above said facts and circumstances of the case, this Court is of the considered view that no substantial question of law is proved to have involved in this appeal and that there is no scope, whatsoever, for interference with the findings of the fact recorded by the lower appellate Judge and the judgment rendered by the lower appellate Judge non-suiting the appellants/plaintiffs reversing the judgment of the trial Court and dismissing the suit filed by the appellants/plaintiffs. The well considered judgment of the lower appellate Court (District Judge, Nagercoil) deserves to be confirmed. There is no merit in the second appeal and the same deserves to be dismissed, confirming the judgment of the lower appellate Judge.
15. In the result, this Second Appeal is dismissed with costs.
SML To
1.The District Judge, Nagercoil, Kanyakumari District.
2.The Subordinate Judge, Kuzhithurai, Kanyakumari District.