IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE :08.06.2010 CORAM THE HONOURABLE MR.JUSTICE V.PERIYA KARUPPIAH A.S.No.23 of 2000 1. S.Kamalam 2. Ravichandran 3. Valarmathi 4. Kausalya 5. S.Selvi 6. Arul Selvam 7. Stephen Sagayaraj 8. Elise .. Appellants / Plaintiffs Vs. 1. Selvaraj 2. Jayaseeli 3. Vimala .. Respondents/ Defendants Prayer :- This appeal has been preferred under Section 96 of CPC against the decree and judgment, dated 12.08.1998, made in O.S.No.126 of 1996 on the file of the Additional District Judge, Pondicherry at Karaikal. For Appellants : No Appearance For Respondents : Mr.R. Natarajan JUDGMENT This appeal has been preferred by the appellant against the judgment and decree passed by the lower court in O.S.No.126 of 1996 dated 12.08.1998 in dismissing the suit filed by the plaintiffs seeking partition of the suit properties. 2.The plaintiffs are the appellants herein. The brief facts of the plaintiffs before the lower court would be as follows:- 1st plaintiff is the 2nd widow, the other plaintiffs and the 1st defendant are the sons and daughters and the 2nd defendant is the 1st widow of one Santhanam @ Anthonimuthu. He was the owner of the house property mentioned herein. The said Santhanam purchased the said property during 1929. During his life time he was living with the 1st plaintiff in her house. The first wife/ 2nd defendant was https://hcservices.ecourts.gov.in/hcservices/ living with her brother. After the death of Santhanam, the plaintiffs and 1st and 2nd defendant have jointly inherited the property. All the children of Santhanam were born through the 1st plaintiff, his second wife. It is their case that the 1st defendant has got a document of sale concocted and registered on 22.09.1995 purpoting to convey the entire property in favour of his wife, the 3rd defendant. The said Jayaseeli, the 2nd defendant has been made to describe herself as the 1st wife of Santhanam and she alone had the right to dispose of the property. (b) The plaintiffs are entitled to ignore the sale deed. If at all the said document had conveyed any title in favour of the 3rd defendant it is only Jayaseeli's 1/10th share. The 1st plaintiff is the second wife of deceased Santhanam. The other plaintiffs and the 1st defendant are the legitimate children of deceased Santhanam. (c) On 08.06.1996, the 1st plaintiff caused a notice to be sent to the 1st defendant demanding a partition. The 1st defendant had stated that Jayaseeli is the only owner of the property on the death of Santhanam and she has sold the property to the 3rd defendant. A rejoinder was sent by the 1st plaintiff on 26.07.1996. The plaintiffs assail the sale made by Jayaseeli to Vimala as the consideration of Rs.30,000/- stated in the sale document is low and at any event the alleged consideration did not pass. In case it is finally decided that the sale by Jayaseeli of her 1/ 10th share in favour of 3rd defendant is binding, the 3rd defendant would also become a co-sharer in the place of the 2nd defendant. Hence Vimala is shown as the 3rd defendant. The parties belong to washermen community. It is their custom and practice to contract a 2nd marriage during the life time of the 1st wife. If the 1st wife does not bear a child, the men are allowed to contract a 2nd marriage. This custom and practice has the force of law in Karaikal region. This custom is in vogue from time immemorial. The plaintiffs are entitled to 8/10 share in the suit property. They have not been ousted from possession and by a legal fiction they are deemed to be in joint possession. (d) The plaintiffs therefore pray for the partition and separate possession of their 8/10 shares in the suit property, providing liberty to the plaintiffs to apply for appointment of a Commissioner to divide the property by metes and bound and make a final decree for partition together with costs. Hence the suit. 3.The case of the 2nd defendant as stated in the written statement of 2nd defendant would be as follows:- (a) The 1st plaintiff is neither a legally wedded wife nor the widow of deceased Santhanam. In fact, no marriage was performed between the 1st plaintiff and the deceased Santhanam, either according to the Christian law or under the customary practice of Christian people of Karaikal. It is false to state that during the life time of the deceased Santhanam he was living with the 1st plaintiff in her house. https://hcservices.ecourts.gov.in/hcservices/ (b) The plaintiffs 2 to 8 and the 1st defendant are not the legitimate issues of the deceased Santhanam. The defendant further states that the 1st plaintiff is not the second wife of the deceased Santhanam as claimed by her in the plaint. In fact, no marriage was performed between the 1st plaintiff and the deceased Santhanam. The birth certificates of the plaintiffs filed by them are not sufficient to prove that the plaintiffs 2 to 8 are legitimate children of deceased Santhanam through the 1st plaintiff. The birth certificates are insufficient and inadequate to prove the legitimacy of plaintiffs 2 to 8 and the 1st defendant. (c). The defendant denies the claim made by the plaintiff. It is not custom and practice of the family, or community or religion of the deceased Santhanam to contract a 2nd marriage during the life time of the wife. It is not also the practice of the washermen community to permit the member to get an another marriage, if the 1st wife does not bear a child. Such a custom claimed by the plaintiffs was never in force in Karaikal. Such a kind of custom is not certain nor ancient and accepted by the washermen community. She submits that the plaintiffs are not at all belonging to washermen community or Christian by religion. The origin of the 1st plaintiff is Parangipettai of Tamilnadu. She born at Parangipettai, came and settled at Karaikal. Therefore she cannot claim any right under any other custom and practice which was not prevailed at Karaikal region. The plaintiffs should strictly prove the custom claimed is certain, ancient and followed by all people of washermen community. The custom claimed by her was not in force and is not in consonance with public policy. (d) The 2nd defendant submits that she is the legally wedded wife of the deceased Santhanam. Their marriage held on 11.09.1946 in accordance with the Christian religion and they got their marriage in the church at Tranquebar and the marriage was also performed at the church by a clergy man in accordance with Christian religion as both this defendant and Santhanam are belonging to Roman Catholics by Religion. Subsequent to the marriage the defendant was residing along with her husband at the house claimed by the plaintiffs and both of them alone were living as husband and wife till the death of her husband. Santhanam was a washerman by profession and used to visit to washermen pond for the purpose of washing clothes, and at that time, she understand that he had contact with women and the 1st plaintiff who came from Parangipettai, started to reside at Karaikkal, might have been contacted with deceased Santhanam. The contact with the 1st plaintiff by the deceased Santhanam was only a temporary and casual and is purely an illegitimate relationship between the man and woman and not as husband and wife. Therefore the 1st plaintiff was not living with deceased Santhanam as a wife as no marriage was performed, between them. Therefore the plaintiffs cannot claim any right over the property left by the deceased Santhanam. Even if it is https://hcservices.ecourts.gov.in/hcservices/ admitted that the plaintiffs 2 to 8 are illegitimate children of the deceased Santhanam, they are entitled to claim maintenance till they attain majority, but not any share in the property. She submits that on the death of her husband, she inherited the property till she has executed the sale deed in favour of the 3rd defendant for a valid consideration and put her into possession. Therefore it is not correct to state that the sale consideration did not pass and it is also not low as claimed by the plaintiff. She submits that it is true that the plaintiff sent the legal notice and it was appropriately replied by the defendant. (e) The plaintiffs made a misinterpretation over the averments contained in the sale deed. She submits that she never admitted or accepted in the sale deed that the 1st plaintiff was the wife of her husband. It is intentional and wanton. The defendant submits that they are not co-owners as claimed by them. They are permanently residing at Karaikal. The plaintiffs never jointly owned and enjoyed the property described in the plaint. Therefore, they cannot claim as co-owners to the property. The defendants, therefore, pray for dismissal of the suit. 4. The lower court had examined the 1st plaintiff as P.W.1 and admitted Exs.A.1 to A.17 on the side of plaintiffs and examined the 2nd defendant as D.W.1 and received Ex.B.1 on the side of the defendants. After hearing the arguments on either side, the lower court had dismissed the suit against the plaintiffs. 5. Aggrieved plaintiffs have preferred the present appeal against the said judgment and decree passed by the lower court. 6. No representation for the appellants despite they appeared through counsel. Heard the learned counsel for the respondents/defendants. 7. Since there is no representation for the appellants in the appeal, is decided to pass a judgment, on the available materials after hearing the arguments of the respondents, on merits. 8. On hearing the arguments of the learned counsel for the respondents, the pleadings, evidence of both parties produced before lower court, the judgment and decree passed by the lower court, grounds raised by the appellants in the appeal memo, the following points were framed for disposal of the present appeal. 1. Whether the 1st plaintiff is the legally wedded wife of the deceased Santhanam? 2. Whether the plaintiffs 2 to 8 and the 1st defendant are the lineal descendants of the deceased Santhanam? 3. Whether the plaintiffs 1 to 8 are entitled to seek for partition of the suit property? https://hcservices.ecourts.gov.in/hcservices/ 4. Whether the judgment and decree passed by the lower court are liable to be set aside and is the appeal allowable? 5. To what relief the appellants are entitled for? 9. The appellants have preferred the appeal by raising the grounds that the lower court had not considered that the plaintiffs are also co-sharers along with the defendants 1 and 2 in respect of suit property and the plaintiffs are entitled to partition of their share at 8/10 in the suit property. It is further raised that the marriage in between the 1st plaintiff and the deceased Santhanam @ Anthonimuthu was proved and the lower court had failed to find the said point in favour of the plaintiffs. Further it is contended that the 2nd defendant namely Jayaseeli, the 1st wife of the deceased Santhanam had described herself as the 1st wife in her written statement and therefore there was a second marriage in between the deceased Santhanam and the 1st plaintiff and it was also admitted by the 2nd defendant. The further ground of the appellants would be that the paternity of the plaintiffs 2 to 8 was admitted and therefore, the plaintiffs would be entitled to the shares claimed by them. It is further contended that the lower court was wrong in not believing the marriage of the 1st plaintiff with Santhanam on the customary method of tying "Nadu veetu Thali" which was valid one among the washermen community at Karaikkal. The lower court ought to have relied upon the evidence of P.W.1 that she was living at Parangipettai after her marriage with Santhanam which was negotiated by her in-laws in the year 1947 and should have upheld the marriage of 1st plaintiff with the deceased Santhanam. It is further raised that the lower court had not relied upon the birth certificates of the plaintiffs 2 to 8 and their baptism certificates produced in the evidence in order to come to a conclusion that the 1st plaintiff was a legally wedded wife of deceased Santhanam. The contention of the appellants would further go to show that the long admitted co-habitation by the deceased Santhanam with the 1st plaintiff would create relationship of marriage in between them. The reason given by the lower court that the 1st defendant had disputed the marriage of her mother 1st plaintiff with deceased Santhanam should be held as an invalid marriage cannot be correct since only through the said marriage plaintiffs 2 to 8 and the 1st defendant were born. The lower court ought to have taken the admission of the 2nd defendant in the sale deed Ex.A.17 that she was the first wife of the deceased Santhanam would estop her from contending that the first plaintiff was not a legally wedded second wife of Santhanam. It is further raised that the plaintiffs 2 to 8 and the 1st defendant were admittedly the children of the deceased Santhanam and the 1st plaintiff and therefore the defendants should have been estopped from contending that there was no valid marriage held in between deceased Santhanam and the first plaintiff. https://hcservices.ecourts.gov.in/hcservices/ 10. The lower court ought to have decided that the plaintiffs were in joint possession of the suit property and the court fee if paid would be correct. It is further submitted that the lower court had not considered the evidence and appraised them properly. Therefore the appellant requested in the appeal memo that the dismissal of the suit before the lower court ought to have been decreed as prayed for and accordingly the appeal may be allowed after setting aside the judgment and decree of the lower court. 11. The learned counsel for the respondents would contend in his argument that the 1st plaintiff was not the legally wedded wife of deceased Santhanam and that both the 1st plaintiff and the deceased Santhanam were admittedly Catholic Christians and their marriage if any should have been conducted in the church as per Section 5 of the Christian Marriage Act and the customary marriage stated to have been performed by tying Nadu Veetu Thali is not known to Christian community and any form of marriages except the marriage in the church under Section.5 are invalid marriages and so the marriages said to have been held between the 1st plaintiff and deceased Santhanam is a void marriage. He would further submit in his argument that the children born out of such illegal relationship would be the illegitimate children of the deceased Santhanam and the plaintiffs 2 to 8 are the illegitimate children of the deceased Santhanam. He would further submit in his argument that the evidence of P.W.1 would not in anyway help the plaintiffs and 1st defendant to share the property with the 2nd defendant as they cannot be re-classified as lineal descendants. He would further submit in his argument that the lower court had promptly appraised the evidence and had come to the conclusion that the marriage between the 1st plaintiff and the deceased Santhanam was held as void marriage and consequently, the plaintiffs are not entitled for any relief sought for. 12. He would further submit in his argument that the alleged admission of the 2nd defendant in the written statement as well as Ex.A.17 describing herself as the first wife of the deceased Santhanam would not in anyway cater the status of wife or the second wife of the deceased Santhanam to the 1st plaintiff. He would further submit that according to Section 5 of the Indian Christian Marriage Act no marriage of any Christian should be convened except with the conditions mentioned therein. Even in case of proof by the plaintiffs that she was married with the deceased Santhanam she was not having any house to live with Santhanam at Karaikkal during the time of the second marriage. He would further submit in his argument that the various documents produced by the plaintiffs namely the birth certificates of plaintiffs 2 to 8 in Ex.A.7 to 13 would not in anyway validate the marriage said to have been conducted in the form of tying 'Nadu Veetu Thali'. The said customary practice was not persisting among the washermen community people. Even if it is https://hcservices.ecourts.gov.in/hcservices/ there, there is no clinching evidence adduced on the side of the plaintiffs by examining some elderly persons to prove the said type of tying 'Nadu Veetu Thali'. The said non-examination of such witnesses would invalidate the co-habitation of the 1st plaintiff and the dceased Santhanam by tying 'Nadu veetu thali'. He would submit that the plaintiffs 2 to 8 and the 1st defendant were born out of the illegal relationship between the 1st plaintiff and the deceased Santhanam and it cannot make the plaintiffs 2 to 8 and the 1st defendant as the legitimate sons and daughter of the deceased Santhanam. Plaintiffs 2 to 8 and 1st defendant would be none other than their illegitimate children. 13. He would further submit that the illegitimate children cannot come under the definition of lineal descendants as defined in the Indian Succession Act as well as the present Act. According to his submission the widow who is legally married to the deceased Santhanam would alone be entitled to inherit the property of deceased Santhanam as he had not executed any testaments. He would cite a judgment of Indian cases (1919) page 542 in between Sophia Blin vs. Maria David in support of his case. He would also cite a judgment of Calcutta High Court reported in A.I.R. 1931 Calcutta 560 for the same principle. He would further submit in his argument that since the illegitimate children of the deceased Santhanam namely plaintiffs 2 to 8 and 1st defendant are not coming under the definition of lineal descendants as per section 27 of the old Act and section 25 of the present Act, the plaintiffs are not eligible to succeed to the estate of deceased Santhanam as per section 33 of the Indian Succession Act. He would also draw the attention of the court that the lower court even though did not consider in detail regarding the entitlement of the plaintiffs to the suit property come to a conclusion that the marriage in between the 1st plaintiff and the deceased Santhanam was a void marriage, but had come to a correct conclusion in disallowing the claim of the plaintiffs for partition. There is no reason for interfering with the judgment and decree passed by the lower court and therefore the appeal may be dismissed confirming the judgment and decree of the lower court. 14. I have given anxious thoughts to the arguments advanced on the side of the respondents and also carefully perused the grounds raised by the appellants/plaintiffs. 15. Points 1 and 2: For convenience sake, the ranks of parties before the lower court are maintained in this discussion. The plaintiffs 2 to 8 and the 1st defendant are the children of the 1st plaintiff and the deceased Santhanam. The 2nd defendant was the wife of the deceased Santhanam. It is alleged by the plaintiffs that the 2nd defendant had sold the suit property as if it was https://hcservices.ecourts.gov.in/hcservices/ belonging to her absolutely to the 3rd defendant who is none other than her daughter in law. The 1st plaintiff was living with the deceased Santhanam despite the deceased Santhanam married the 2nd defendant in accordance with Christian Law. The relationship of the deceased Santhanam and the 1st plaintiff would be that of husband and wife and they begot children viz., the plaintiffs 2 to 8 and the 1st defendant out of such relationship. The plaintiffs claim that the 1st plaintiff was married to the deceased Santhanam as his second wife by tying 'Nadu Veetu Thali' because there was a customary way in vannar Christian community of Karaikkal that if the first wife could not procure a child a second wife can be taken by the husband through performing such a customary marriage. The grounds in the appeal memo are to the effect that the documents produced with birth certificates of the plaintiffs 2 to 8 and the baptism certificates would go a long way to show the marriage relationship existed in between the 1st plaintiff and the deceased Santhanam and the lower court had failed to presume such relationship. As far as this contention is concerned it cannot be said that the production of birth certificates showing the names of deceased Santhanam and 1st plaintiff as parents of plaintiffs 2 to 8 would draw a presumption that the parents marriage was held and there was co-habitation. It is an admitted fact that the deceased Santhanam was married to the 2nd defendant according to Indian Christian Act and it was subsisting at the time of the marriage of the 1st plaintiff and Santhanam. In such circumstances, it has to be proved through cogent evidence that the marriage was not in violation of Indian Christian Marriage Act. No doubt, the Indian Christian Marriage Act would lay that no person could get married when his or her spouse is alive. Therefore, whatever form the marriage was conducted in between the 1st plaintiff and the deceased Santhanam, it being a distinct event, has to be proved in accordance with law. The evidence of the plaintiffs did not disclose that the alleged marriage in between the 1st plaintiff and the deceased Santhanam was a lawful and valid marriage. No other persons were examined by the plaintiffs to prove the existence or prevalence of a custom to go for tying 'Nadu Veetu Thali' for those persons who are not having any children through the first wife. 16. In the aforesaid circumstances, the 1st plaintiff cannot be considered as legally wedded wife of deceased Santhanam, especially when the 2nd defendant, the 1st wife of deceased Santhanam was alive. 17. Consequently, the co-habitation of 1st plaintiff with deceased Santhanam cannot be considered as a lawful event. Admittedly plaintiffs 2 to 8 and 1st defendant were the children of 1st plaintiff through deceased Santhanam. Even though they are the issues of deceased Santhanam and 1st plaintiff, they cannot claim to be the legitimate children. In such contigency it is to be seen whether the plaintiffs 2 to 8 and 1st defendant can claim to be lineal https://hcservices.ecourts.gov.in/hcservices/ descendants as described in the Indian Succession Act. Similarly it is also to be seen whether the 1st plaintiff could be considered as the widow of the deceased Santhanam. 18.As already decided, the 1st plaintiff cannot be considered as the legally wedded wife of deceased Santhanam and therefore she cannot be treated as the widow of deceased Santhanam on his death. The 2nd defendant who was alive on the date of death of deceased Santhanam would be the widow of deceased Santhanam. 19. Now coming to the present question of lineal descendants we have to extract the provisions of Section 25 of Indian Succession Act. 25. Lineal Consanguinity:- (1) Lineal consanguinity is that which subsists between two persons, one of whom is descended in a direct line from the other, as between a man and his father, grandfather and great- grandfather, and so upwards in the direct ascending line, or between a man and his son, grandson, great-grandson and so downwards in the direct descending line. (2) Every generation constitutes a degree, either ascending or descending. (3) A person's father is related to him in the first degree and so likewise is his son; his grandfather and grandson in the second degree; his great-grandfather and great- grandson in the third degree, and so on. According to section 25 lineal descendants would be the persons who are coming on the generation either ascending or descending. It has been explained in Schedule I of the Act that lineal descendants sons, grand sons and great grand sons of a father way. Whether the sons would include