Madras High Court
Indirani vs Vellathal And Ors. on 9 September, 1987
Equivalent citations: (1988)1MLJ168
JUDGMENT Sathiadev, J.
1. Second defendant in O.S. 506 of 1979 Sub Court, Coimbatore, is the appellant. The plaintiffs 1 to 5 and defendants 1 and 3 are the seven respondents herein. The suit was filed for partition of the suit properties and for allotment of plaintiff's 11/18th share and for rendition of accounts. In the plaint, it is stated as hereunder: The suit properties belonged to one Palanisami Thevar, the husband of first defendant. He died in 1973 leaving behind his only son, Velusami Thevar, and defendants 1 and 3 as his heirs. Third defendant is a minor daughter of a pre-deceased daughter of Palanisami. Velusami was entitled to 4/6th share in the properties left by his father, and defendants 1 and 3 were entitled to one-sixth share. First plaintiff was married to Velusami in 1964, and minor plaintiffs 2 to 5 were born to them, and he died on 27.1.1979, and hence, they are his legal representatives. The suit properties are in the joint possession of plaintiffs and first defendant. Second defendant is impleaded at the instance of first defendant as she claims to be married to Velusami which is false. First plaintiff was married to deceased Velusami on the 6th of Vaikasi 1964 at Palani under the Hindu rites in the presence of friends and relatives. First plaintiff belonged to Pillai caste and the marriage was a love marriage. On his death, plaintiffs demanded partition and separate possession, and when first defendant had not cared to send a reply, the suit had been filed.
2. First defendant claimed that first plaintiff was not the legally wedded wife of Velusami, and the issues born to her were not born to him, and. she is a woman of loose character, and when she was 16, she had eloped with one Kuppusami, and since her son had all vices, he had developed illicit intimacy with first plaintiff, and therefore, no valid marriage could have taken place at Palani in 1964 and that second defendant was the only person married to Velusami at Palani on 28.8.1968 under Hindu rites and in accordance with the custom of the community, and, therefore, the suit claim will have to fail. Items 1 to 8 in schedule I are the self-acquired properties of Palanisami, and the remaining items and a portion of item No., in schedule II were acquired by first defendant out of her own stridhana funds. Hence, the suit claim is false.
3. Second defendant would also claim that she was married to Velusami as per Hindu rites on 28.8.1968 at Palani, and she was always treated as the legally wedded wife, and the first plaintiff was never lawfully married to him and that the last rites were performed by second defendant, and in other respects, she adopted the written statement of the first defendant.
4. Third defendant had denied all the claims put forth by plaintiffs and stated that items 8 to 10 were purchased in the name of the first defendant out of the joint family funds.
5. Trial Court held that the first plaintiff is the legally wedded wife of late Velusami, and that she had lived with him as husband and wife and that plaintiffs 2 to 5 were born to them. So far as the second defendant's marriage with Velusami is concerned, it was held that it may be a true one, but it is not valid in law, because he had been already legally married to first plaintiff. In dealing with the items of properties and the rights of the respective parties, it was held that plaintiffs that plaintiffs 1 to 5 are entitled to 11/36th share in items 1 to 6 and 8 in plaint Schedule 1 and a portion of item 1 in schedule II and that they are not entitled to any share in other items of properties. Plaintiffs are also entitled for rendition of account from the share allotted from 27.1.1979. Aggrieved with this finding, second defendant alone has preferred this appeal. A memorandum of cross-objections had been filed by respondents 1 to 5 in the appeal relating to disallowed items.
6. The primordial points involved in this appeal and cross objections are:
(1) Whether first plaintiff was lawfully married to Velusami?
(2) Whether items 3, 9 and 10 in schedule I and a portion of item I in schedule II are the self-acquired properties of first defendant?
(3) Is not item No. 7 in schedule I a property which belonged to Velusami, and which is available for partition?
7. Point No. 1 : In para 4 of the plaint it is claimed:
... The first plaintiff was married to the deceased O.P. Velusami Thevar, on the 6th Vaikasi 1964 at Palani under Hindu rites in the presence of friends and relatives. The first plaintiff belonged to Pillai caste and the marriage was a love marriage.
It is only on this basis, she claims that she is entitled to a share along with her children in the estate left by Velusami. In the written statement filed by first defendant, the mother of Velusami, in para 3 it is stated:
... It is an utter falsehood to state that the first plaintiff was married to Velusami, at Palani, on 6th Vaikasi 1964. The defendant denies the parenthood of the plaintiffs 2 to 5 and they are not the issues born to Velusami. The deceased Velusami being the only son to their parents was brought up luxuriously which made him to lead such an extravagant life unmindful of the consequences. In order to put an end to his wandering activities, he was legally married to one Indirani, daughter of Arunachala Thevar of Chettikkapalayam who is a rich landlord. The marriage ceremony took place at Palani on 28.8.1968, under Hindu rites in accordance with the custom of the community in the presence of larger gathering of friends and relatives....
Second defendant who had adopted the stand taken by first defendant, claimed that first plaintiff is not the legally wedded wife of Velusami. The plaintiffs had examined seven witnesses and defendants have examined ten witnesses. Yet, on this aspect, only P. Ws. 1 and 2 have spoken. P.W. 1 had stated:
(Evidence in Tamil omitted) ...
P.W. 2 who is related to first defendant is cousin would state.
(Evidence in Tamil omitted) ...
8. Mr. G.M. Nathan, learned Counsel for second defendant-appellant, takes a substantial point in that, in the pleadings and in the evidence as extracted above, when first plaintiff has come before Court with a definite claim that her marriage to Velusami was under the Hindu rites in the presence of friends and relatives unless she proves by evidence that her marriage with Velusami has been legally performed under Section 7(1)(ii) of Hindu Marriage Act, there cannot be a presumption drawn by any cohabitation between herself and Velusami, and that too when he had married the second defendant in 1968 and the relevant period which could be if at all taken into account, being only four years, the trial Court was in gross error in presuming the first plaintiff was the wife of Velusami. His strenuous contention is that, it is obligatory on the part of a person, who claims to have been validly married, to take a definite stand as to in what form or manner the marriage had taken place when the validity of the marriage is challenged by the other party. Unless specific and clear cut pleading is found, it would be difficult for the opposite party to counter the claim regarding the manner in which the marriage is claimed to have taken place. When a married person puts forth a version as to the form or the manner or the procedure followed in going through the marriage ceremony, unless the claim so put forth is substantiated by relevant, appropriate and precise evidence, it is not for the court from the available evidence to hold that the marriage had taken place by following a method which is permissible in law, even though no such plea is put forth, and rather a different stand had been taken in the pleadings.
10. In the plaint, she had stated that the marriage was conducted under the Hindu rites in the presence of friends and relatives of both P.W.1 and Velusami. Already the evidence tendered by the two witnesses on her side had been extracted. Certainly, this is not a marriage which comes under Section 7(2), and which is the Brahmanical form of marriage involving cumbersome procedure and long duration. Section 7A need not be looked into, when Section &(l) is applicable. Majority of people belonging to Hindu community, who live in villages, hamlets, etc, shun and are averse to this form of marriage, and they have faith in going through the ceremony of marriage before a deity following the simplest procedure of exchanging of garlands and immediately worshipping the deity in which, they have faith and confidence, and it is the temple priest or wherever Brahmin is available, then his services are availed of to go through the certain forms, of ceremonies with which they are content and which are peculiar to the respective sect or caste, creed, etc. Majority of marriages are conducted by Hindus, who are not Brahmins, it is this sort of majority of marriage conducted, which had been recognised under Section 7(1). The marriage rites and ceremonies take multifarious forms, which suit the convictions and conveniences of a particular sect in a particular area and the like. Exchange of garlands is an act, which is universal in its nature and forms part of the ceremonies gone through under Section 7(2) marriages as well. It is because of innumerable rites and ceremonies gone through, it becomes necessary in the Brahminical form of marriage to fix the stage at which the marriage is accomplished, and that was fixed at the moment when the seventh step is taken before sacred fire. Such a procedure, when not followed, a marriage is accomplished when any one or the other of the customary or traditionally accepted acts are done. Exchange of garlands or putting a ring or tying a thali etc., are traditionally recognised stages of a marriage ceremony, which brings into existence a binding valid marriage. P.Ws.1 and 2 have stated that the marriage took place in the temple. Millions of Hindus are most satisfied, when their marriages are done within the temple precincts. There is nothing to plead elaborately on this aspect, because judicial notice could certainly be taken note of this fact, when defendants have gone to the extent of not only disputing the marriage, but having made scurrilous imputations on first plaintiff, had not pursued the vigorous cross-examination when it comes to this aspect. Only three or four questions were put to her in cross-examination. Nothing prevented them from disputing her claim that the marriage ceremony was gone through by following her husband's family practice by tying thali around her neck, when the priest was chanting mantra. They would rest content with, on her assertion on this aspect. They could have asked her as to what were the practices of her husband's family, and how many of those customary rites or practices were followed or not. They did not ask her any further question, when she had stated that the marriage was according to her husband's family rites and practices. Having known that first defendant's son had gone through the marriage following his family's customary practices; they did not dare to ask her the particulars regarding the ceremonies gone through, and as to how the priest performed it. P.W. 2 is the cousin of first defendant, who could have been extensively cross-examined, to speak about the adherence or otherwise of the customary practices. He had asserted. Here again, defendants did not want to risk by putting any further question to him, knowing quite well that he would have answered meticulously as to what were done and spelt out in greater details as to their customary practices having beers fully followed, by enlisting the services of a priest. Once first plaintiff asserts that customary practices had been followed, nothing prevented the defendants from eliciting from the first plaintiff or her witness that the form of marriage gone through was not according to the family customs. She had put the defendants on notice by stating that the marriage had taken place according to the family customs. Once customary practice is claimed, the details of the customary practice need not be enumerated in plaints of this nature. If such a claim is disputed, nothing prevents the disputing party to put any number of searching questions and elicit that the customary rites and ceremonies had not been followed. She had also stated that a 'thali was tied at the time of marriage. It is needless to state that tying 'thali' except in the form of marriages which come under Section 7(2), in 99 percent of the marriages among Hindus, is the crucial act of marriage ceremonies. Even in marriages which come under Section 7(2), this particular act is a must, but as to when exactly the marriage ceremony is accomplished in that form is, when the seventh step is taken. It is a particular form, and that is why it comes as an exception in Section 7(2). Defendants having failed to dislodge the claim that the marriage had been gone through by following the customary practices by Velusami's family, and having avoided to put any question to P. Ws. 1 and 2, which would go into details on this aspect, and no contra evidence having been let in to state that the form adopted was not the recognised form, it is a clear case wherein the validity of marriage between first plaintiff and Velusami as claimed by her had been indisputably established, and hence, first plaintiff alone is the legally wedded wife of deceased Velusami Thevar.
11. Points 2 and 3 : Trial Court held in para 32 of its judgment as follows:
... Thus from the materials now available in this case it appears to me that items 9, 10 and 11 were purchased by the first defendant from her own funds and as such these three items have to treated as the self acquisition for the first defendants.
Plaintiffs have preferred memorandum of cross-objections relating to these items. Learned Counsel, for respondents, 1 and 3 objects to the maintainability of the cross-objections filed by respondents 1 to 5-plaintiffs, by referring to Order 41, Rule 22, C.P.C., but in Venkateswarulu v. Ramamma , it was held:
... In exceptional cases, it may incidentally be also directed against other respondents. Order 41, Rule 22 does not enable one respondent to prefer objections against another respondent when the objection sought to be taken is one in which the appellants are in no way interested.
In Pannalal v. State of Bombay , it was held that the wide wording of Order 41, Rule 33, C.P.C., empowers the appellant Court to make whatever order it thinks fit, not only as between the appellant, and the respondent, but also as between a respondent and a respondent. It was also held that it is only in exceptional cases, that an abjection under Order 41, Rule 22 can be directed against other respondents. The cross-objection now filed as would be seen later is entertained only in respect of one item of properties and in such a case, it would be impossible to remand the matter for fresh consideration, and therefore, this cross-objection as filed is maintainable.
12. Though there was evidence to show that Palanisami had some ancestral properties and he had sold them under Ex. B2, as early as 1926, plaintiffs were unable to show that the income derived therefrom have been utilised in acquisition of properties later on. either by him or by his son Velusami. For nearly 16 years no properties had been acquired by him after 1926. Though a joint family could exist, it would not necessarily mean that it is possessed of ancestral properties. There is practically no evidence to connect the sale realisation under Ex. B2 having been utilised, when the first of these properties was acquired in 1943. Therefore, once a long gap of time of this nature is made out, the burden is heavily upon the plaintiffs to show that a part of the realisation from the ancestral properties was utilised in the acquisition of the earliest of the properties in 1943. This burden they have failed to discharge.
13. As far as item No. 7 is concerned, it is a thope of an extent of 88 cents for which no party could produce any sale deed, The adangal for the period from faslis 1386 to 1389 in Exs. A58 to A61 filed go to show that in Exs. A58 and A59, the owner is mentioned as Palanisami Thevar and in Exs. A60 and A61, the owner is mentioned as Velusami Thevar, Therefore, indisputably the possessory right to the property having been traced from Palanisami, and when first defendant could establish her ownership right only in items 9, 10 and 11, item No. 7 which belongs to Velusami is available for partition. Only to this extent, the memorandum of cross objections is allowed. No costs.
14. In the light of what has been held above, A.S. No. 148 of 1982 is dismissed with costs.