Madras High Court
Dharmasamvarthini vs Selvakumar on 11 August, 2017
Equivalent citations: AIR 2018 (NOC) 178 (MAD.) (MADURAI BENCH)
Author: N.Sathish Kumar
Bench: M.M.Sundresh, N.Sathish Kumar
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 11.08.2017
CORAM
THE HONOURABLE MR.JUSTICE M.M.SUNDRESH
AND
THE HONOURABLE MR.JUSTICE N.SATHISH KUMAR
A.S.Nos.926 of 1992 and 986 of 1993
A.S.No.926 of 1992
1.Dharmasamvarthini
2.Rajeswari
: Defendants 1 and 2/Appellants
Vs.
1.Selvakumar
2.Tamilselvan
3.Gajendran
4.Kalaiselvi
5.Senthilkumar
6.Pugazhanthi :Plaintiffs 1 to 6/Respondents 1 to 6
7.Indian Bank, Mission Street
Thanjavur Town rep. by its
General Manager :Defendant No.3/Respondent No.7
(6th respondent declared as Major and guardianship discharged vide Court
order dated 22.09.2016 made in M.P.(MD).Nos.1 and 2 /2014)
PRAYER: Appeal filed under Section 96 of C.P.C. against the judgment and
decree, dated 13.10.1992 made in O.S.No.95 of 1989, on the file of
Subordinate Court, Thanjavur.
!For Appellants : Mr.T.R.Rajagopalan
Senior Counsel for
Mr.T.R.Rajaraman
^For Respondents : Mr.V.Balaji for R1 to R6
Mr.R.Sekaran for R7
A.S.No.986 of 1993
Indian Bank
rep. by its General Manager,
Office at Mission Street,
Thanjavur Town. : 3rd Defendant/Appellant
Vs.
1.Selvakumar
2.Tamilselvan
3.Gajendran
4.Kalaiselvi
5.Senthilkumar
6.Pugazhanthi : Plaintiffs 1 to 6/Respondents 1 to 6
7.Dharmasamvarthini :1st Defendant/7th Respondent
8.Rajeswari :2nd Defendant/8th Respondent
(6th respondent declared as major and guardianship discharged vide Court
order dated 22.09.2016 made in M.P.(MD).Nos.1 and 2 of 2014)
PRAYER: Appeal filed under Section 96 of C.P.C. against the judgment and
decree, dated 13.10.1992 made in O.S.No.95 of 1989, on the file of
Subordinate Court, Thanjavur.
For Appellant : Mr.R.Sekaran for
M/s.King & Patridge
For Respondents : Mr.V.Balaji for R1 to R6
Mrs.N.Krishnaveni for R7
Senior Counsel for
Mr.P.Thiagarajan
R8 No appearance
Judgment Reserved on
03.08.2017
Judgment Pronounced on
11.08.2017
:COMMON JUDGMENT
(Common Judgment of the Court was delivered by N.SATHISH KUMAR,J.) Aggrieved over the preliminary decree passed in respect of item Nos. 1, 2, 4 and 7 declaring the plaintiffs are entitled to 6/8th share, the defendants 1 and 2 filed the appeal in A.S.No.926 of 1992. Similarly, aggrieved over the preliminary decree in respect of 3rd item of the property namely deposit in the bank, the bank /3rd defendant has filed the appeal A.S.No.986 of 1993.
2. Since both the appeals are arising out of the same judgment, dated 13.10.1992 in O.S.No.95 of 1989 on the file of Subordinate Court, Thanjavur, we decide to dispose of both the appeals in a common judgment.
3. For the sake of convenience the parties are arrayed as per their own ranking before the Trial Court. The brief facts of the plaintiffs case is as follows:-
The plaintiffs are children of one Durairaj, born through their mother Kamalambal. Though the first defendant married Durairaj in the year 1953, the female child born to her died immediately. Thereafter, in the year 1957, the second defendant herein was born to Durairaj and first defendant. Since both the children born to first defendant happened to be female children and after that, the first defendant did not conceive for some time, late Durairaj, who was the Zamindar of Pappanadu, wanted to have a male child. Hence, he thought of going for a 2nd marriage. Accordingly, the said Durairaj married Kamalambal as the second wife on 05.06.1960 at 30, Ganapathy Nagar, Thanjavur in the presence of relation of Kamalambal and Durairaj. The said Kamalambal was already living along with her mother, who was managing the house hold work of the said Durairaj. Accordingly, the marriage was fixed with Kamalambal and soleminised on 05.06.1960 by exchanging garlands and Durairaj also tied thali in the presence of R.Nallamuthu Nattar of Marudhur, K.Rajagopal Nattar of Marudhur, Rajarathinam of Tiruchy and others. The first defendant is always residing at Abraham Panditham Road, Thanjavur. After the marriage with Kamalambal, Durairaj was living with her at 30, Pillaiyar Koil Street, Ganapathi Nagar, Thanjavur. Out of the wedlock, plaintiffs were born to Durairaj and Kamalambal. In all relevant records, the plaintiffs have shown as children of Durairaj. After the marriage of the second defendant which took place in the year 1983, as the same was performed against the wishes of Durairaj, the said Durairaj considering the attitude of the first defendant, wanted to settle the house at 30, Ganapathi Nagar in favour of Kamalambal. Since bigamy was an offence, at the instance of Durairaj in the above settlement, Kamalambal was not described as wife of Durairaj, even though there was a marriage between them and Durairaj permanently stayed with Kamalambal till his death. Even during his life time, the 3rd plaintiff was in possession and management of the theatre, namely Raja Kalaiyarangam, Thanjavur. Hence, the plaintiffs being the children of Durairaj, entitled to 6/8th share in the estate left by Durairaj. Hence, the above suit.
4. The defendants 1 and 2, wife and daughter of Durairaj, filed a written statement denying the marriage between Durairaj and Kamalambal on 05.06.1960. It is the contention of the defendants that Durairaj, was very weak towards sexual pleasure and was maintaining a harem shamelessly without a feeling of abasement. Kamalambal appears to have exploited him taking advantage of his weakness and she was also exercising influence and undue influence on him, infact, Kamalambal was kept as concubine and she was the servant maid in the house. Because of the influence and improper advice of Kamalambal, there was some love loss in the family. Late Durairaj was a puppet in the hands of Kamalambal and her children and he had lost his independent thinking and balance. He was behaving in a questionable manner. Kamalambal was never treated or considered or given the status of wife by Late Durairaj at any point of time. She was never recognized as wife of Durairaj. She was not esteemed or reputed as wife of Durairaj by those who know her. She has no reputation of having been married to late Durairaj. It is also denied by the defendants that Durairaj wanted to have a male child, therefore he contracted the second marriage. Similarly, the alleged exchange of garlands and tying of thali is also denied by the defendants. The allegation that Durairaj and Kamalambal living as husband and wife from 1960 is also denied.
5. It is the further contention of the defendants that Raja Kalai Arangam, a cinema theater, was absolutely belong to the first defendant and her husband executed a settlement deed in the year 1959. There were civil suit in respect of the same and ultimately there is a compromise. In view of the litigations, the first defendant's husband wanted to execute a power deed in his favour for attending the cinema theatre business. The first defendant has signed the papers under the premises that she is executing the power of attorney and signed in several blank papers.
6. It is the contention of the defendants that the first defendant's signature which was obtained in blank papers were used or misused for preparing a settlement deed in his favour. The settlment deed said to have been executed in favour of Kamalambal by the first defendant is also obtained in a similar way and those documents were created by Durairaj and hence, it is the contention of the defendants that as there was no marriage between Kamalambal and Durairaj, the plaintiffs are not entitled to claim any share in the suit property.
7. The third defendant filed a written statment stating that late Durairaj borrowed a housing mortgage loan and the loan was adjusted out of the bank deposits available in the 3rd defendant bank. The balance amount was also paid to the first defendant on 28.06.1989 on the basis of the legal heirs certificate and after getting the indeminity bond from the first defendant and one T.Krishnasamy Vandiyar. The above fact also intimated to the plaintiffs through letter dated 19.06.1989. As far as locker is concerned, the 3rd defendant still not settled and the defendant is ready to obey the direction of this Court.
8. On the basis of the above pleadings, the following issues are framed by the Trial Court:-
1) Whether the plaintiffs are legal heirs of late Durairaj?
2) Whether the alleged marriage between Kamalambal and Durairaj on 05.06.1960, is true and valid?
3) Whether the first item of the property belonged to Durairaj and if so, the plaintiffs are entitled to share?
4) Whether the plaintiffs are entitled to partition as prayed for in other items?
5) Whether the Court fee paid is correct?
6) What relief the plaintiffs are entitled?
9. On the side of the plaintiffs PW1 to PW11 were examined and Ex.A1 to Ex.A79 were marked. On the side of the defendants DW1 was examined and Ex.B1 to Ex.B21 were marked. Based on the evidence and materials, the learned Trial Judge, decreed the suit and granted preliminary decree in respect of item Nos.1, 2, 3, 4 and 7 and declared that the plaintiffs are entitled to 6/8 share in the above items. However dismissed the suit in repsect of other items of the suit properties. Aggrieved over the same, the defendant 1 and 2 filed an appeal in A.S.No.926 of 1992 and the third defendnt/bank has filed an appeal in A.S.No.986 of 1993 challenging the preliminary decree in respect of 3rd item of the suit properties.
10. The learned Senior Counsel appearing for the appellants in A.S.No.926 of 1992 submitted that admittedly, the first defendant is the wife of the late Durairaj and late Durairaj was Zamindar of Pappanadu and they are living in a family house and out of the wedlock, the second defendant was born to the first defendant and Durairaj. When the first marriage was existing very much, the said Durairaj marrying one Kamalambal in the year 1960 is highly improbable. Further, the contention of the plaintiffs that since Durairaj did not have any male heir and therefore he wanted to have a second marriage to have a male heir, is also highly improbable. Admittedly, the marriage between the first defendant and Durairaj took place in the year 1953. Out of the wedlock the female child already born to Durairaj, through the first defendant was died after sometime. Thereafter, the second defendant was born to them. That being so, contracting 2nd marriage to have a male heir is highly improbable. Admittedly the first defendant was also cabable of delivering a child at the relevant time. Therefore, without waiting for the first defendant to deliver a child, Durairaj marrying Kamalambal only for the purpose of male child is highly improbable and unbelieavable.
11. It is the further contention of the learned Senior Counsel that the alleged marriage plea by the plaintiffs is also not established. In Ex.A21/- legal notice sent by the plaintiffs to the defendants, it is stated that marriage was performed in the family house, whereas in the pleadings it is stated that marriage was performed in Ganapathi Nagar. These facts clearly belied the contention of the plaintiffs about the second marriage. Durairaj is from a reputed family and Kamalambal and her mother, infact, were working as housemaid in the house. Therefore, Durairaj marrying the housemaid during the existence of his first marriage is also highly improbable and cannot be belieavable. The evidence adduced on the side of the plaintiffs are interested witnesses and their evidence are highly improbable and cannot be belieavable. Further, Durairaj was in the habit of maintaining a diary and no diary whatsoever produced by the plaintiffs. If really Durairaj wanted to marry Kamalambal, the marriage itself could have been conducted in the temple. Therefore, contracting the marriage in a pooja room is also highly unbelieavable. Durairaj never treated Kamalambal as his wife. Even in the year 1980, when settlement deed was executed in favour of Kamalambal, she was not treated as a wife of Durairaj. All these facts clearly show that there was no marriage at all. Merely, because the plaintiffs were born due to some illegal connection between Durairaj and Kamalambal, they cannot be considered as legal heirs and legitamate children of Durairaj, when the marriage itself is not been proved in accordance with law. Durairaj died only in the year 1988 and during his life time he never treated Kamalambal as his wife. All these facts not been considered by the learned Trial Judge.
12. It is the further contention of the learned Senior Counsel that mere long co-habitation itself cannot be a ground to presume a valid marriage, paritcularly when the first wife was very much available and submitted that the Trial Court has not considered the entire aspect and simply decreed the suit. Hence, prayed for allowing the appeal. In support of his arguments, the learned Senior Counsel relied upon on the following judgments:-
i)VOL.46 MLJ 8 (SN),dated 18.01.1924, S.A.No.592 of 1921 wherein it is held as follows:-
? If a marriage in fact is proved then it might be presumed to be valid..... The presumption of a marriage from repute arises only where the evidence shows that the parties were living together for a sufficiently long period and were treated as husband and wife by their relations and the public.Where a man had already married a woman and had children by her, there is no presumption that another lady with whom he is said to have lived is his wife or his children by her are legitimate?
ii) Vol.81 LW 200 (Rajagopal Pillai v. Pakkiam Ammal), wherein it is held as follows:-
?The marriage state being 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.?
iii) 1972 TLNJ 464 (Kumarayya Chettiar & Ors. V. Cheyyalachi & Ors), wherein it is held as follows:-
?The question is whether in a case where the parties adduce evidence in proof of a fact, but fail to establish the fact, the Court should still draw the presumption merely on account of the existence of certain cricumstances. In other words, the question is whether the presumption of marriage can be drawn merely from the fact of long co-habitation between a man and a woman even though the evidence adduced insupport of the proof of the alleged marriage does not establish such fact. If from evidence itself, facts emerge giving not only to weaken but destroy the presumption itself, there is no scope for the application of the presumption.?
iv) AIR 1972 MAD 200 (P.Kaliamma v. K.Pillai), wherein it is held as follows:-
?It is true that in spite of appellant Ponnanmma being a kudipravarthi woman, it is open to her to contract a legal marriage with Adhikesavaperumal Pillai and that a presumption of marriage from long cohabitation could be invoked in her case just as in the case of any other Hindu woman. But as pointed out by the Supreme Court in Gokalchand v. Parvin Kumari, AIR 1952 SC 231 at p.233, the presumption which may be drawn form long cohabitation is rebuttable, and if there are circumstances which weaken or destroy that presumption the Court cannot ignore them. One of such circumstances is the fact that Ponnamma is a kudipravarthi who is so low in the social scale, that a member of a respectable community would not incur the odium of contracting a marriage with such a person, though public opinion might tolerate illicit union with such persons.?
v) AIR 1978 SC 1557 (Badri Pasad v. Dy. Director, Consolidation) wherein it is held as follows:-
? In this view, the contention of Shri Garg, for the petitioner, that long after the alleged marriage, evidence has not been produced to sustain its cermonial process by examining the priest or other witnesses, deserves who live as husband and wife in society are compelled to prove, half a century later, by eye-witness evidence that they were validly married, few will succeed.?
vi)1983 (1) MLJ 311 (Alagammai v. Rakkammal), wherein it is held as follows:-
? It is true that law does not favour concubinage, but that the presumption is in favour of a marriage when a man and a woman are shown to have cohabited continously for a long number of years, though such a presumption is a rebuttable one and can be destroyed or weakened by the presence of other circumstances.
.. It is pointed out that no doubt the presumption of law is in favour of marriage and against concubinage, but where a person is already married, no presumption of a second marriage arises by reason of long cohabitation. In the present case, apart from the fact that the circumstances pointed out earlier considerably weaken the drawing of such a presumption, there is really no scope for such a presumption at all.?
vii) 1989 (2) LW 197 (Moham v. Santha Bai Ammal), wherein it is held as follows:-
?Ex.A2 to A5 will only show that the plaintiffs were born to their mother Drowpathi through late Subbarayalu Naidu. As alredy 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.?
viii) 1994 (1) SCC 460 (S.P.S.Balasubramanyam v. Suruttayan), wherein it is held as follows:-
?If a man and woman live together for long years as husband and wife then a presumption arises in law of legality of marriage existing between the two. But the presumption is rebuttable.?
ix) 1995 (1) LW 487 (Munuswami Gounder and another v. M.Govindaraju & 4 Ors), wherein it is held as follows:-
?23. Then, once the factum of marriage is not proved, we have to treat this case as a case of no marriage and therefore, Section 16(1) of the Hindu Marriage Act is not attracted and the children born out of such relationship cannot get the benefit of Section 16(1) of the Hindu Marriage Act. The Court below having very many vital factors in considering the factum of marriage between Pappammal and the 1st defendant, has miserably failed to render a correct finding. In our view, the Court below has rendered a finding without properly appreciating the oral and the documentary evidence filed on the side of the parties. Therefore, we are unable to agree with the view taken by the Trial Court. As pointed out earlier, the properties were partitioned between the 1st defendant and his other children under Ex.B-6 as early as 26-12-1956 and eversince the parties are in possession and enjoyment of their respecive shares. Therefore, there cannot be a further partition between the parties. To substanitate their contention, the defendants have also filed Exs.B-7 to B-12 sale deeds which amply show that the parties have acquired properties and have dealt with the properties separately in their own exclusive names. This will show that they are in possession and enjoyment of their separate shares. The judgment of the Court below is based on surmises and assumptions and we are not satisfied with the reasons assigned by the Court below in decreeing the suit.?
x) 1996 (2) SCC 567 (Gurnam Kaur v. Puran Singh), wherein it is held as follows:-
? Though all the courts concurrently found that the appellant was the daughter of R and G, but it was held that the appellant was an illegitimate child since the marriage of G (appellant's mother) with her previous husband was not legally dissolved.?
xi) 1996 (4) SCC 76 (Parayankandiyal Eravath Kanapravan Kalliani Amma v. K.Devi), wherein it is held as follows:-
?82. In view of the legal fiction contained in Section 16, the illegitimate children, for all practical purposes, including succession to the properties of their parents, have to be treated as legitimate. They cannot, however, succeed to the property of any other relation on the basis of this rule, which in its operation, is limited to the properties of the parents.?
xii) AIR 2000 MP 288 (Ramkali & anr. V. Mahila Shyamwati & Ors), where it is held as follows?-
When there is no proof of solemnisation of marriage and there is further no proof that there was a de jure marriage or even a de facto marriage where during long cohabitation as husband and wife with habit and repute a child is born, there can be no occasion whatsoever for making available the statutory presumption envisaged under S.16 of the Hindu Marriage Act, 1955 securing the status of a legitimate child in favour of such a child born out of a union which was either void ab initio or declared to be so under a decree passed under S.11 of 12 of the Hindu Marriage Act, 1955.?
xiii) 2001 (3) CTC 513 (Kanagavalli v. Saroja), wherein it is held as follows:-
?14.. I have already referred to how because of non-registration of marrige, woman, who has given herself physically, emotionally and otherwise, gains nothing but stands to lose everything if the marriage is denied by the man. The other compelling factor is the trauma that a child may face going through his formative years with his paternity in doubt. This assault on a child's sensibilities can be easily avoided if there is a certificate of registration of marriage between his mother and father which though may not validate the marriage if otherwise void, will atlest bear testimony to the identity of his biological parents.?
xiv) 2001 (1) LW 472 (Subba Reddiar v. Vasantha Ammal & Anr), wherein it is held as follows:-
?Ex.A-18 a copy of the sale deed executed by the Sundaram Ammal styling herself as wife of Thiru.Krishnasamy Naidu to and in favour of Sundaram Ammal, wife of Devaraj. A reading of the above exhibits would go to show that the said Sundaram Ammal described as wife of Krishnasamy Naidu by some third parties in different transaction and the same cannot be a conclusive proof to hold that the Sundaram Ammal is the legally wedded wife of Thiru.Krishnasamy Naidu.
xv) 2008 (4) SCC 520 (Tulsa v. Durghatiya), wherein it is held as follows:-
?Where the partners lived together for long spell as husband and wife there would be presumption in favour of wedlock. The presumption was rebuttable, but a heavy burden lies on the person who seeks to deprive the relationship of legal origin to prove that no marriage took place. Law learns in favour of legitimacy and frowns upon bastardy.?
13. The learned counsel appearing for the respondents in A.S.No.926 of 1992 has submitted that the evidence of PW4, PW5, PW7 and PW9 not only prove the marriage between Durairaj and Kamalambal, but also the fact that Durairaj all along lived only with Kamalambal and the plaintiffs. The evidence of PW4, PW5, PW7 and PW9 with regard to solemnisation of marriage is not even denied in the entire cross-examination. All the documents produced by the plaintiffs clearly vouchsafe the fact that Kamalambal was all along treated as wife not only by Durairaj, but also by Public at large. The admission of Durairaj in his letter is also prove the factum of marriage between Kamalambal and himself. The first defendant due to difference of opinion with her husband, all along lived separately. This is also been established by way of evidence. When once marriage is established and the plaintiffs are also children of Durairaj, the plaintiffs being the legitimate children of Durairaj, have certainly entitled to shares in the property of Durairaj. The learned Trial Judge has considered the entire matter and righly arrived just conclusion. Hence, prayed for dismissal of the appeal. The learned counsel appearing for the respondents also relied upon the following judgments in support of his contention:-
i) AIR 1978 (SC) 1557 (Badri Prasad v. Dy. Director Consolidation), wherein it is held as follows:-
?A man and a Woman living as husband and wife for about 50 years. Strong presumption arises in favour of wedlock. Proof as to factum of marriage by examining the priest and other witnesses not necessary.?
ii) 1994 (1) SCC 460 (S.P.S. Balasubramanyam v. Suruttayan), wherein it is held as follows:
?It appears unnecessary to express any opinion as to whether the relationship between Chinathambi and Pavayee was adulterous and if it was sufficient to destroy the presumption in law as this plea does not appear to have been raised in the written statement nor any issue was framed on it nor any of the Courts have recorded any finding on it.?
iii) 1988 (1) LW 358 (Indirani v. Vellathal) wherein it is held as follows:
? When a married person putsforth a version as to the form or the manner or the procedure followed in going through the marriage ceremony, unless the claim so putforth is substantiated by relevant, appropriate and precise evidence, it is not for the Court from the avilable evidence to hold that the marriage had taken place by following a method which is permissble in law, even though no such plea is put forth, and rather a different stand had been taken in the pleadings.?
iv) 1997 (2) LW 459 (Shantinath Ramu Danole & Another v. Jambu Ramu Danole & Others), wherein it is stated as follows:-
?It may be pointed out that marriage is attended only by the relatives and friends. The evidence of such relatives and friends could not be thrown out only because they happened to be relatives and friends unless their testimony suffers from some inherent infirmity which is not to be found in the evidence of these two witnesses.?
v) 2008 (3) LW 471 (Chandrammal & 8 Ors v. S.Sankar (died) & 14 Ors) wherein it is held as follows:-
?In such circumstances, a presumption of marriage from long cohabitation, other evidence and averments as narrated above, could be drawn. Hence, this Court is of the considered opinion that the factum of marriage is proved.?
14. In the light of the above submissions now the points arise for consideration in the appeal A.S.No.926 of 1992 are as follows:-
1) Whether the marriage of the plaintiffs' mother Kamalambal with Durairaj on 05.06.1960 is true and valid?
2) Whether the plaintiffs are entitled to succeed the properties of the deceased Durairaj?
3) What area of properties to which the plaintiffs are entitled?
15. In the appeal filed by the Bank (A.S.No.986 of 1983), it is the contention of the learned counsel for the bank that the learned Trial Judge has passed the preliminary decree in respect of the deposits which was lying with the bank. It is admitted fact that the deposit of Rs.2,00,000/- made by Durairaj was adjusted towards his house loan and remaining amount already paid to the first defendant in the year 1989 itself, after obtaining the indeminity bond. The above factum is also intimated to the plaintiffs' mother in the year 1989 itself and as on the date of filing the suit the deposit was not available with the bank. Therefore, the Trial Court granting preliminary decree in respect of 3rd item is not correct in law. Hence prayed for allowing the appeal A.S.No.986 of 1993.
16. The learned counsel appearing for the respondents in A.S.No.986 of 1983 fairly conceded that since there was no amount available with the bank, they are not claiming any share in respect of 3rd item of the suit property namely deposit in the bank.
17. In the light of the above submissions, the point now arises for consideration in A.S.No.986 of 1993 is that whether the 3rd item of the suit property namely deposit of Rs.2,00,000/- available with the 3rd defendant bank for partition?
A.S.No.926 of 1992Points 1 to 3
18. It is the specific case of the plaintiffs that their mother Kamalambal married Durairaj on 05.06.1960 in the presence of relatives and friends. The marriage took place at 30, Ganapathinagar, Thanjavur. It is also the case of the plaintiffs that since Durairaj did not have any male heir through the first wife, he decided to marry Kamalambal as second wife and the plaintiffs' mother was residing in the family house of Durairaj, along with her mother, and the marriage was performed in the presence of relatives of both Durairaj and Kamalambal. Though the defendants in their defence denied the allegation of the plaintiffs that they born to Durairaj and Kamalambal, through the valid marriage, during the cross-examination of the plaintiffs and the witnesses produced by the plaintiffs, infact, the entire cross- examination by the defendants proceeded as if the plaintiffs are children born to Durairaj and Kamalambal.
19. On the side of the plaintiffs PW1 to PW11 were examined and Ex.A1 to Ex.A79 were marked. PW1/Selvakumar, is the first plaintiff, PW2/Gajendran is the 3rd plaintiff and PW4/Kalaiselvi is the 4th plaintiff and plaintiffs' mother was examined as PW5. When the entire evidence of PW1 to PW3, stated to be the children of Durairaj and Kamalambal, carefully scanned, it could be seen that entire cross-examination by DW1 and DW2 proceeded as if Durairaj is the father of PW1 to PW3. From the very cross-examination of DW1 and DW2 coupled with the evidence of PW1 to PW3 in their chief examination, there cannot be any doubt in the mind of this Court to hold that the plaintiffs, infact, born to Durairaj and Kamalambal/PW5.
20. Further the evidence of PW1 to PW3 clearly prove the fact that they all residing in 30, Ganapathinagar, Thanjavur. PW3's evidence when carefully seen, it could be seen that she has spoken about the letter written by her father while she was residing in Chennai. The letters are marked as Exs.A43 to 45. In the enitre cross-examination of prosecution witnesses, Ex.A43 to Ex.A45, the letters written by the father of PW3 namely Durairaj, is not even disputed or denied. Ex.A43, Ex.A44 and Ex.A45 when carefully seen, Durairaj while he was residing at Chennai during his ailment along with Kamalambal has addressed the above-said letters to PW3. The tenor of the letter/Ex.A43 shows that he was living happily in Chennai with the mother of PW3. The tenor of the letter clearly shows that Durairaj infact treated Kamalambal as his wife. Similarly Ex.P44 and Ex.P45 letters also clearly show that in the year 1986, while Durairaj was living in Chennai for medical treatment, he has treated Kamalambal as his wife and addressed the letter to PW3. The above letters have not been denied in the cross-examination.
21. Though the evidence of PW1 to PW3 clearly prove that the plaintiffs are born to Durairaj and Kamalambal and all have been living together with Durairaj at 30 Ganapathinagar, now the crux of the issue revolves around the marriage between Durairaj and Kamalambal, which stated to have been taken place on 05.06.1960. PW4, the brother of Kamalambal in his evidence has stated that the family has moved towards the Durairaj house in the year 1948 itself and her mother was manging the house hold works and PW4 was also living in the above house and Durairaj has married the first defendant in the year 1953. After the second defendant born, the doctor has advised that the first defendant would not be able to deliver any more child. In order to have a male child, Durairaj decided to go for 2nd marriage. At that point of time, as suggested by Durairaj's uncle Pandithurai, 2nd marriage was fixed with Kamalambal. Accordingly, on 05.06.1960, marriage was performed in the pooja room and Durairaj tied thali and also exchanged garlands. In fact Pandithurai uncle of Durairaj blessed the couple by handing over the thali to Durairaj. The evidence of PW4 with regard to a cermony about the marriage exchanging garlands and tying of thali in the presence of witnesses, not even specifically denied in the cross-examination by defendants except denying that there was no marriage between Kamalambal and Durairaj. The specific facts spoken with regard to the solemnising of marriage not even denied in the cross-examination.
22. Similarly PW5/Kamalambal, the mother of the plaintiffs, in her evidence has stated that the marriage was performed on 05.06.1960 by exhanging garlands and Pandithurai uncle of Durairaj, handed over thali to Durairaj and Durairaj tyed thali. After marriage she was residing with Durairaj for 32 years and at later point of time, Durairaj suffered certain ailment and took treatment in Vijaya Hospital at Chennai and PW5 was taking care of him and both of them residing at Chennai. Thereafter, he died in the year 1985. The evidence of PW5 with regard to solemnising of marriage is also not been denied, whereas the cross-examination of PW1 and PW2 clearly indicate that infact plaintiffs mother and grand mother were residing in the family house of Durairaj even prior to the marriage of first defendant. In fact PW5, came to Durairaj house at the age of 7 or 8. It is the specific evidence of PW5 that after marriage with Durairaj, Durairaj has permanently settled at Ganapathinagar with Kamalambal and living as husband and wife. Further, the evidence of PW5 that Durairaj and herself was living at Chennai for the treatment is also not denied. The specific facts spoken in the chief examination about the marriage is also not denied in the cross examination.
23. PW7 also in his evidence clearly stated that he was present at the time of marriage, when Durairaj exchanging garlands and tying thali with PW5. His specific evidence also not disputed in the cross-examination.
24. Similarly PW9 one Krishnasamy has also spoken about second marriage. PW9 in his evidence has clearly stated that after the 2nd marriage, Durairaj used to bring Kamalambal to his house and he treated her as his wife. The specific evidence of PW9 that Durairaj and Kamalambal was living as husband and wife and family members also treated them as husband and wife clearly establish one fact that though the first marriage was existing between the Durairaj and the first defendant, in the year 1960 there was a second marriage in the presence of witnesses between Durairaj and Kamalambal. When the specific facts spoken in the chief examination are not denied in the cross-examination, such facts are deemed to be an admission on the part of the defendants. Plaintiffs evidence to prove the second marriage and the solemnising of the second marriage in the presence of witnesses is neither controverted nor denied and the same is nothing but an admission on the part of the defendants.
25. In the light of the above, when the evidence of DW1/first wife of Durairaj, when carefully analysed, in the chief examination, she has stated that Kamalambal was never given a status as wife of Durairaj. DW1 also admitted that her first child was born in the year 1955 and immediately died after 9 days. Thereafter, the second defendant born in the year 1958. Afterwards 3rd child was born and died after 5 days. These events, infact probablised the plaintiffs' case that in order to have a male child, Durairaj infact has decided to marry Kamalambal. The cross-examination of DW1 also clearly show that when Kamalambal was at the age of 16 there was illegal connection between her husband and Kamalambal and she has also stated that Kamalambal was living in Ganapathinagar house from the year 1957 till date. Further, she has also admitted that she never objected Kamalambal living in Ganapathinagar house. She also admitted that only her husband has kept Kamalambal in Ganapathinagar house. The cross-examination clearly indicate that Kamalambal and Durairaj was living together from the year 1957. It is to be noted that though the first wife namely, the first defendant claimed to be aware of the illegal connection of her husband with PW5, namely Kamalambal, while she was at the age of 16 years, DW1 has never made any objection with regard to such alleged illegal contact. Her conduct assumes significance. If really any husband develops illegal connection to a lady totally conncted with him, a prudent wife would not keep quiet without taking any action against her husband or against the so called concubine. But, DW1 has not taken any steps in this regard. The conduct of DW1 probablise the plaintiffs' case that there was a second marriage to Durairaj and Kamalambal in the year 1960 itself. Further, in the cross-examination of DW1 also, she has not denied the specific question that from 1960 onwards her husband was living with Kamalambal. What she tried to say is that her husband also used to come to Abraham Panditham street, where DW1 was living. These facts clearly shows that from the year 1960, Kamalambal and Durairaj, were living together and evidence of PW3, PW4, PW5, PW7 and PW9 clearly probablised the plaintiff case that there was a 2nd marriage performed between Durairaj and Kamalambal.
26. Apart from that Ex.A-1, extract of the birth certificate shows that first plaintiff was born on 25.05.1961 and in the place of birth it is shown as Ganapathainagar and name of the father and mother are shown as Durairaj and Kamalambal respectively. Ex.A2, T.C. of the first plaintiff of the year 1971, wherein also the father of the first plaintiff has been shown as Durairaj. Ex.A3, T.C. in respect of the 3rd plaintiff of the year 1982 wherein also his father name is shown as Durairaj. Ex.A10 voter list of the year 1988, wherein at Serial No.227, the plaintiffs name along with their parents as Durairaj and Kamalambal are very much found. Ex.A6 and Ex.A8/voter list, wherein Durairaj name is found. Ex.A9/EB card shows that Durairaj as the head of the family and the card relates to the year of 1972.
27. Ex.A25, copy of the power of attorney executed by late Durairaj in favour of the first plaintiff when carefully seen, would show that the first plaintiff was all along treated as son of Durairaj and the power of attorney was executed by none other than Durairaj. Ex.A26, sale deed executed by Durairaj on 27.07.1985 clearly proves the fact that at relevant point of time, he was residing in No.30 Ganapathinagar, where the plaintiffs are residing. Ex.A27 the acknowledgment issued by the Sub Inspector of Police clearly shows that arms were handed over by the first plaintiff. Proceedings of the Superintendent of Police, dated 22.05.1992 marked as Ex.A28 also indicate that the weapons were deposited by Selvakumar, the first plaintiff. These facts clearly shows that the arms possessed by the father namely Durairaj were infact kept in the place where he was residing and that has been handed over by the first plaintiff. The ration card/Ex.A29 also shows that Durairaj is the Head of the family along with Kamalambal and others. The address of the house is shown as Ganapathinagar, North Street. From the above documents, the plaintiffs clearly establish the fact that Durairaj not only treat the plaintiffs as children but also resides with them along with PW5/ Kamalambal at Ganapathinagar.
28. Ex.A30 is the gift deed executed by the first defendant in the name of PW5, Kamalambal. Though DW1 in her statement pleaded that her husband has obtained signatures in blank papers, and such blank papers were used for creating these documents, it is to be noted that PW8 one of the attestor of the gift deed also examined in this case. In the chief examination he has clearly spoken about the exeuction of the document by the first defendant and he has seen the signature of the first defendant along with other attesting witnesses, whereas in the cross-examination, he has turned hostile. But the fact remains that DW1 has herself admitted her signature in Ex.A30. What she tried to project her case is that she was not aware of the contents of the documents and he has signed the documents at the instance of her husband. Such contention cannot be countenanced for the simple reason that the execution of the document has been clearly spoken to by PW8 and other witnesses. The other document writer also turned hostile. It is to be noted that DW1 is the sister of an important personality in Thanjavur. As per the evidence, her brother is also politically connected and also Member of Parliament for some time. Therefore, the witnesses turning hostile may be due to various reasons. The same is not germane for consideration. In the entire evidence of PW8, the chief examination itself is sufficient to prove Ex.A30. In view of the evidence of PW8 in chief, one of the attesting witnesses coupled with the non denial of the signature of DW1 in the gift deed/Ex.A30, there is no difficulty for this Court to hold that Ex.A30 has been executed by DW1, infact DW1 has not challenged the document in all these days. This is also one of the grounds to hold that this document has been duly executed by herself.
29. It is further to be noted that another reason for believing the execution of Ex.A30 by this Court is Ex.A14 dated 19.09.1986, which was issued under Secion 47(A) of the Indian Stamp Act. Ex.A14 was addressed to both settlor and settlee namely, first defendant and, Kamalambal, for defecit Court fee of stamp. Having received such a notice from the authorities for enquiry under Section 47 of the Act, even then no action challenging Ex.A30 has been made by the first defendant. Therefore, it can be easily presumed that execution of Ex.A30 has been clearly admitted by DW1. Therefore the contention of the defendants that Ex.A30 is not executed by DW1 and she put her signature without knowing the contents cannot be countenanced at all. At any event, the evidence of PW8 in chief coupled with admission of signature in Ex.A30 by DW1 and Ex.A14, this Court hold that Ex.A30 is clearly established by law. When Ex.A30/gift deed carefully seen, the first defendant has executed the gift in favour of Kamalambal, the second wife. Though Kamalambal, was not described as wife of Durairaj, her initial has been shown as 'D', denoting her husband. Further, recitals in the documents clearly reads as follows:-
?ePq;fs; vd; fzthpd; thH;f;ifj; Jiztpahf ,Ug;ggjhYk;> jq;fSf;F mth; K:yk; FHe;ijfs; ,Ug;gjhYk;> mth;fSld; jhq;fs; trpg;gjw;F jq;fSf;F vd;W brhe;j tPL xd;Wk; ,y;yhky; vd; FLk;g me;j];Jf;F rhpahf ,y;iy vd;w fhuzj;jpdhYk;. jhq;fs; jq;fs; FHe;ijfSld; epk;kjpahft[k;> brsfhpakhft[k; thHntz;L bkd;W ehd; epidg;gjhYk;> jq;fs;nghpy; vdf;Fs;s md;gpdhYk;> ghrj;jpdhYk;> ,e;j ,dhk; rhrdg;gj;jpuj;jpd; K:ykhf ,jdoapw;fz;Ls;s tPL tifauhit jq;fSf;F ,dhkhf bfhLj;Jtpl;nld;.?
the term 'thH;f;ifj; Jiztp' described in the document itself clearly indicate that all along Kamalambal was treated as wife of late Durairaj. Once, the first defendant has admitted in her document about the status of Kamalambal, and her children born through Durairaj, now she is estopped from stating that there was no marriage between Kamalambal and Durairaj and plaintiffs are not born to Durairaj and Kamalambal.
30. Further, in Ex.A32/sale deed, dated 28.09.1985 executed by one Muthugopan, infavour of the minor son of Durairaj, wherein Kamalambal has made as guardian. The above sale deed shows Kamalambal as wife of Durairaj. It is relevant to note that even third parties have treated Kamalambal as wife of Durairaj. From Ex.A40, it is also relevant to note that how Durairaj has developed hatredness towards the defendants. Ex.A39 letter written by the second defendant to her father Durairaj, while he was in Chennai, seeking a permission to meet her father in Chennai. But Durairaj has declined permission to the second defendant to meet her. The tenor of letters Ex.A40 clearly shows that infact Durairaj father of the second defendant and husband of the first defendant is not happy with them. Ex.A41, is authorisation letter signed by Durairaj, wherein he himself appointed Gajendran, the third plaintiff, son of Durairaj as a licensee to act and represent as manager of the cinema hall owned by him. Thus, Ex.A39, Ex.A40 and Ex.A41 also not disputed. Similarly Ex.A43 to Ex.A45, letters addressed to PW3 as discussed supra in the earlier part of judgment also clearly shows that Durairaj was always affectionate towards the plaintiffs and Kamalambal. These letters written by Durairaj not even disputed in the entire cross-examination by the defendants. The tenor of letters, infact shows that there was no love loss or cordial relationship between the defendants and Durairaj. Ex.P47, census application wherein Durairaj himself signed and he has treated Kamalambal as his wife and plaintiffs as his sons and daughters. The signature of Durairaj is also not disputed in the above document. Ex.A51/receipt was issued infavour of Durairaj also clearly shows that he was residing in Ganapathinagar. Ex.A55 the advocate letter sent to the Durairaj also shows that he was residing in Ganapathinagar. Ex.A56, authorisation letter from Durairaj to the Deputy Commercial Tax Officer, wherein his son, Gajendran, the third plaintiff, authorised to represent and sign as manager on his behalf. Ex.A66/admission card issued by the National hospital clearly proves that he was treated as inpatient from 02.02.1985 to 28.02.1985 and he was admitted by Kamalambal. All the medical records of Durairaj was filed by the plaintiffs. Ex.A69 one Srinivasan executed a sale deed infavour of Kalaiselvi, the daughter of Durairaj, wherein Kamalambal was shown as wife of Durairaj. These documents also clearly proves that Public at large also treated Kamalambal as wife of Durairaj. Ex.A70 and Ex.A71 /sale deeds wherein also Kamalambal is shown as wife of Durairaj. Ex.A77 shows that son of Durairaj is permitted to deposit the arms, namely revolver and rifle in the national armoury. All these facts clearly shows arms owned by Durairaj were deposited by the first plaintiff.
31. Ex.B1, the document also clearly shows that Selvakumar has purchased certain property wherein the address of Selvakumar, first defendant is shown as Ganapathinagar. Though the defendants have filed wealth tax assessment notice issued to Durairaj in the address of Abraham Panditham, it is to be noted that DW1 in her cross examination, has stated that Durairaj not only residing at Ganapathinagar and also used to go to Abraham Panditham, where the first defendant is residing. Therefore, merely because some official correspondence are sent to the first defendant in the name of Durairaj that itself cannot be a ground to hold that there was no marriage between Kamalambal and Durairaj in the year 1960. From the oral and documentary evidence, particularly non denial of the specific evidence as to solemnisation of marriage in the year 1960 coupled with the admission of Durairaj himself treating the children as his own children and also treating Kamalambal as the mother of plaintiffs and Ex.P44 and Ex.P45 as discussed above, this Court is of the view that merely because Durairaj has not described Kamalambal as wife in the registered document that itself cannot be a ground to non suit the plaintiffs. It is to be noted that contracting second marriage while the first marriage in existence is an offence under Indian Penal Code. Therefore, no prudent man would make it an official 2nd marraige attracting legal consequences. That being a position it cannot be said that there was no marriage at all. Though the second marriage during the existence of first marriage is void, under Section 11 of the Hindu Marriage Act, it is to be noted that children born to such marriage cannot be defeated legitimacy to claim property of their father.
32. A careful perusal of the judgments relied on by both sides would make it clear that when a man and woman living as husband and wife and cohabitate for a long period, normal presumption would arise that they are husband and wife out of legal marriage. But, in this case, considering the above judgments and also analysing the entire facts particularly oral as well as documentary evidence in this regard, the factum of marriage not only clearly established by the oral evidence but also by the documentary evidence. The conduct of DW1 treating the mother of the plaintiffs as life partner of her husband and executed the gift deed would go to show there was a second marriage. Further conduct of first wife not objecting for such relationship of her husband from from the very inception i.e. from the year 1960 till his death, and also consideration of natural events in the family of Durairaj in entirety, this Court also draw the presumption under Section 114 of the Indian Evidence Act to hold that there was a second marriage. Further the oral evidence on the side of the plaintiffs particularly, PW4, PW5, PW7 and PW9, also not assailed in the cross-examination. That apart, as stated above, from the documentary evidence and the conduct of the party, one could see that there was a marriage between Kamalambal and Durairaj. Accordingly, this Court Court does not find any infirmity in the order of the Trial Court in decreeing the suit. Thus, the points are answered accordingly.
Point in A.S.No.986 of 199333. In view of the fact that the amount deposited is not lying with the 3rd defendant bank as admitted by both sides and the above factum was also informed to the plaintiffs in the year 1989 itself and there is no amount lying with the third defendant bank, granting preliminary decree for the amount which was not in existence is liable to be interferred. Accordingly, this point is answered.
34. In the result, A.S.No.926 of 1992 is dismised and A.S.No.986 of 1993 is allowed and the judgment of the Trial Court in O.S.No.95 of 1989, dated 13.10.1992 granting preliminary decree in respect of Item Nos.1, 2, 4 and 7 is hereby confirmed. However, granting of preliminary decree in respect of item No.3 is set aside in view of the finding in A.S.No.986 of 1993. No costs.
To
1.The Subordinate Judge, Thanjavur
2.The Section Officer, V.R.Section, Madurai Bench of Madras High Court, Madurai.
.