IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) , THE DAY OF APRIL TWO THOUSAND AND TEN PRESENT THE HON'BLE SRI JUSTICE VILAS V. AFZULPURKAR APPEAL SUIT No.244 of 2001 & ASMP.No.26 of 2009 BETWEEN Chekkpalli Subbarao. …APPELLANT AND Chekkapalli Chantemma and 8 others. …RESPONDENTS Counsel for the appellant: Mr. V.L.N.G.K. Murthy Counsel for the Respondents: Smt. N. (P). Anjana Devi Satyanarayana The Court made the following: - JUDGMENT: This appeal is filed by the plaintiff against dismissal of his suit O.S.No.53 of 1990 on the file of the I Additional Senior Civil Judge, Kakinada under judgment and decree dated 15.11.2000. 2. The said suit was one for partition of plaint A Schedule properties into three equal shares and for allotment of one such share as well as seeking partition of plaint B Schedule properties into six equal shares and allotment of one such share to the plaintiff and for recovery of Rs.13,334/- and future profits. 3. The first defendant in the suit is the wife of the father of the plaintiff while defendants 2 to 6 are legal heirs of daughter of the first defendant and defendants 7 and 8 are tenants in the schedule property and the ninth defendant is the brother of plaintiff’s father. 4. For the sake of convenience the parties are referred to as they are arrayed in the suit. The facts, in brief, are as follows: 5. The plaintiff, who is shown as aged 28 years on the date of suit, claimed that he is the natural son of one Sri Chekkapalli Venkateswarlu having been born to the second wife of Chekkapalli Venkateswarlu viz. Smt. Chandravathi. It is alleged that the marriage between the Chekkapalli Venkateswarlu and Smt. Chandravathi, as per Hindu rights and customs and in the presence of elders, was solemnized in 1962. The father of the plaintiff died in 1968 and the mother of the plaintiff, who was leaving with the father shifted thereafter to Kakinanda. The father of the plaintiff had a daughter by name Kanakam born through his first wife and as such, in 1968 when father of the plaintiff died, the first wife (D1), the daughter born through her (who died later and is represented by defendants 2 to 6) and the plaintiff are only the surviving legal heirs with respect to the plaint schedule properties and as such the plaintiff claimed 1/3rd share in A schedule properties. It is also alleged that even after the death of the father, the plaintiff and his mother, continued to leave jointly with defendants 1 to 6 but it is alleged that sometime in January 1998, the ninth defendant – brother of the father of the plaintiff demolished B schedule house and sold away teak wood and bricks and appropriated the proceeds thereby the plaintiff was deprived of his 1/6th undivided share in B schedule and is seeking 1/6th of the amount realized by the sale of timber and bricks, which is quantified at Rs.13,344/-for which recovery is sought for. The ninth defendant was impleaded as he was in joint possession of B schedule. 6. The said suit was resisted by the defendants 1 to 6 by filing a common written statement where they disputed that the plaintiff is natural son of Chekkapalli Venkateswarlu, as claimed. It is specifically contended that Venkateswarlu is not the name of the husband of D1. However, the later paragraphs of the written statement are with reference to the father of the plaintiff by treating his name as Chekkapalli Venkateswarlu. 7. Learned counsel for the appellant, during the course of hearing has laid great stress on that part of the written statement where all references and denials are with reference to Chekkapalli Venkateswarlu having married only once and having only one daughter viz. Kanakam. They denied the marriage of Chekkapalli Venkateswarlu with the mother of the plaintiff. It is also alleged that the mother of plaintiff is of fisherman caste and that the plaintiff is an illegitimate child, not entitled to any share. It is also claimed that for more than 20 years after the death of Chekkapalli Venkateswarlu the plaintiff for the first time is making such a claim for share and as such, the same is barred by time. 8. The ninth defendant filed a separate written statement asserting that his brother’s name is not Venkateswarlu but his correct name is Chekkapalli Venkata Ramachandram and he is also known as Konda. It is denied that the plaintiff is the son of Venkata Ramachandram. It was also alleged that the alleged marriage as claimed by the plaintiff is void, as his wife (D1) was alive and as the plaintiff is not the member of the family, he is not entitled to any share. It is, further, alleged that the joint properties were divided between the ninth defendant and his brother Venkata Ramachandram in 1985 and in the said partition B schedule property exclusively fell to his share. The year of the death of plaintiff’s father was also denied to be 1968 as alleged in the plaint and it is asserted that he actually died in 1970. By way of an additional written statement the ninth defendant also claimed that house property in B schedule was damaged by rain water and white ants and had to be demolished and denied the allegation that ninth defendant recovered Rs.80,000/- out of sale of wood and bricks and consequently, the plaintiff’s claim for recovery of Rs.13,334/- was denied. 9. On the basis of the above pleadings, the trial Court the following issues: 1. Whether Chandravati is the legally wedded wife of late Venkateswarlu? 2. Whether the plaintiff is the son of late Chekkapalli Venkateswarlu and Smt. Chandravati? 3. Whether the plaintiff is entitled for partition of plaint schedule properties and for allotment of share and for recovery of possession? 4. To what relief? 10. In order to prove the suit claim, the mother of the plaintiff was examined as P.W.1 and plaintiff examined himself as P.W.2. P.Ws.3 and 4 were examined as witnesses to the marriage between P.W.1 and father of the plaintiff. The plaintiff also filed Exs.A1 to A11 and the crucial documents relied upon are Ex.A1 – Muhurtham paper of marriage of P.W.1 with plaintiff’s father; Ex.A3 – the photograph of P.W.1 and plaintiff’s father; Ex.A4 – Birth certificate said to be related to the birth of plaintiff and Ex.A5 – voter’s list containing the names of P.Ws.1 and 2. On behalf of the defendants, D1 is examined as D.W.1 and D2 is examined as D.W.2. The brother of D.W.1 was examined as D.W.3 and D.W.4 was examined on behalf of the defendants 4 to 8. The ninth defendant examined himself as D.W.5 and D.W.6 is a witness and attestor to the partition list on 1985 wherein there was partition of properties between D1 and D9. Ex.B1 is the registered settlement deed of 23.06.1961 executed by father-in-law of first defendant in favour of husband of first defendant, the said document is marked only for the purpose of showing that the husband of D1 is described by his father in the said document as Chekkapalli Venkata Ramachandram and not Venkateswarlu as claimed by the plaintiff. Ex.B2 is the partition list between D1 and D9, referred to above, dated 06.08.1985 and Ex.B3 dated 23.03.1998 is the office copy of the legal notice in response to plaintiff’s legal notice Ex.A6 dated 19.04.1989. 11. On the basis of the above oral and documentary evidence, the trial Court answered the issues as follows. 12. The trial Court held that the plaintiff failed to establish a valid marriage between P.W.1 and Venkateswarlu and consequently P.W.1 was held to be not legally wedded wife of father of the plaintiff and consequently, the plaintiff was not the legitimate son and in the absence of marriage between his parents being established, he is not entitled to any share in the properties. In view of the above findings, it was held that the defendants 1 to 6 and plaintiff is not entitled to any share in B schedule properties and consequently all other issues were held against the plaintiff and the suit was dismissed. 13. Heard Sri V.L.N.G.K. Murthy, learned counsel for the appellant and Mr. Satyanarayana, learned counsel for the respondent. 14. As mentioned above, the learned counsel for the appellant has placed great reliance upon the pleadings in the written statement of D.Ws.1 to 6 and contended that they have expressly admitted that Venkateswarlu married only once and he had only one daughter and that the plaintiff is claiming relationship with Venkateswarlu only through this plaint for the first time. It was also alleged that the husband of D1 was a drunkard and debaucher and he died due to over drinking and false claim is being laid by the plaintiff taking advantage of his drinking habits. He also placed reliance upon the contention in the written statement that the plaintiff is admittedly an illegitimate child. It was also claimed that the plaintiff’s mother P.W.1 never lived with Venkateswarlu. The plaintiff’s counsel, therefore, contends that the written statement allegations show that the defendants proceeded by accepting the name of the plaintiff’s father as Venkateswarlu and replied to various allegations on that basis, which itself amounts to an admission that the name of the father of the plaintiff was Venkateswarlu. He submits that he may be having actual name as Venkata Ramachandram or be popularly known as Konda, but keeping in view the pleadings of the defendant in the written statement it is clear that the plaint allegation that the name of plaintiff’s father is Venkateswarlu is impliedly admitted. He also contended and placed strong reliance upon the surname of the plaintiff as Chekkapalli, which is the same as the surname of plaintiff’s father even according to defendants as well. 15. Learned counsel also placed strong reliance on Ex.A1, which is a Muhurtam paper on the basis of which the Muhurtham for marriage of P.W.1 with plaintiff’s father was fixed and the statement that the said document of 22.04.1962 read with the evidence of P.Ws.3 and 4 would establish the fact of marriage between P.W.1 and father of the plaintiff. In view of the said marriage having been established and the birth of the plaintiff being established through the birth certificate – Ex.A4, which also mentions the names of the parents as P.W.1 and Chekkapalli Venkateswarlu, the finding of the trial Court doubting the marriage and legitimacy of the plaintiff is unsustainable. Learned counsel submits that the voter’s list - Ex.A5 also supports the plaintiff’s claim but merely on the ground that the said document is much later than the suit the trial Court has not placed much reliance upon the said document. 16. Reliance is also placed by the learned counsel upon Section 16 of the Hindu Marriage Act and it is submitted that after the Marriage Laws (Amendment) Act, 1976, which came into force on 27.06.1976 the Legislature had enacted Section 16 to put an end to great social evil and illegitimate children of such marriage were treated as legitimate and would have share in the property of their parents. The denial of plaintiff’s claim under the impugned judgment is claimed to be wholly contrary to Section 16 of the Hindu Marriage Act. 17. Learned counsel also has filed an application being ASMP.No.26 of 2009 under Order 41 Rule 27 of the Civil Procedure Code, 1908 requesting this Court to receive two documents as additional evidence. The said documents are in the nature of a sale deed dated 20.02.1981 in favour of P.W.1 and is relied upon for the purpose of showing that P.W.1 is described in the sale deed as wife of Chekkapalli Venkateswarlu and another document sought to be filed dated 27.10.1987 where also Chekkapalli Venkateswarlu is described as husband of P.W.1. Both the said documents are prior to the suit and it is alleged that the said documents were given to the counsel in the Court below but were neither filed nor marked and the counsel being no more, the said documents are now filed to be received as additional evidence by stating sufficient case. 18. Per contra, the learned counsel for the respondents contends that the plaintiff has failed to establish the identity of his father inasmuch as his name as Venkateswarlu itself is disputed by the defendants. The plaintiff also failed to prove the marriage between P.W.1and his father. It is also claimed that the document Ex.A1 is doubtful, as preserving the Muhurtham paper of marriage of 1962 by P.W.1 is itself improbable. Similarly, nobody is examined in support of Ex.A4 birth certificate and Ex.A5 voter’s list is on the basis of the information given by interested parties themselves and as such, the primary documents relied upon by the plaintiff do not have any probative value and rightly discarded by the trial Court. The photograph – Ex.A3 also does not establish the identity of the father of the plaintiff. Learned counsel also placed strong reliance on discrepancies in the age and date of the birth of the plaintiff by contending that even as per P.W.1 though the marriage was in 1962 the plaintiff was born six years after the marriage, which is traceable to about 1967 or 68 and he cannot be 28 years of age on the date of the suit. Learned counsel also strongly criticized the evidence of P.Ws.3 and 4 to contend that these witnesses are procured by the plaintiff and their statements do not tally with the statement of P.W.1 that the plaintiff was born 6 years after the marriage but whereas as per P.W.3 the plaintiff was born one year after the marriage. Reliance also is placed upon the admission of P.W.3 that he and P.W.1 belong to same caste and at her instance he is giving evidence. The evidence of P.W.4 is also criticized by contending that he did not know the village to which Venkateswara Rao belongs to and though he is said to have attended the marriage, he stated that P.W.1 is the bride and he has seen Venkateswarlu only once at the time of marriage. Learned counsel, therefore, submits that the factum of marriage, as alleged between P.W.1 and the father of the plaintiff, is itself not established apart from the fact that the paternity as claimed is also not established and therefore, the suit was rightly dismissed. He placed reliance on the decision of the Supreme Court in JINIA KEOTIN v. KUMAR SITARAM MANJHI[1]. 19. On the basis of the contentions as above, the points that fall for consideration are as follows: 1. Whether the plaintiff has established the marriage between P.W.1 and his father as alleged? 2. Whether the plaintiff established the identity of his father as Chekkapalli Venkateswarlu alias Chekkapalli Venkata Ramachandram alias Konda? 3. Whether the plaintiff is entitled to claim share under Section 16 of the Hindu Marriage Act and whether the plaintiff has any share in A and B Schedule properties? 20. So far as point No.1 is concerned, the marriage between P.W.1 and the father of the plaintiff, as a fact, has to be established by the plaintiff. The evidence of P.W.1 shows that the said marriage took place at Ramalayam Temple at Pagadalapeta, Kakinada and the Muhurtham was fixed was as per Ex.A1 – Muhurtham paper. She stated that Vinayaka Pooja was performed before performing the marriage and thereafter her parents performed Kanyadanam and thereafter the marriage was performed and ‘Bellam Jeelakarra’ was placed on her head by her husband and thereafter she also placed ‘Bellam Jeelakarra’ on the had of her husband. Thereafter, satamanam was performed and thereafter ‘Mahduparkam dresses’ were presented and she and her husband wore the said dresses and thereafter, Saptapadi around the homam and chanting of mantras was performed and thereafter ‘Talambraalu’ ceremony took place. She gave the name of one Sista Seetaramulu as the purohit, who performed the marriage and his affidavit dated 10.11.1991 is filed as Ex.A2. The said priest is said to be no more on the date of evidence of P.W.1 and Ex.A3 – photograph is said to have taken after the marriage, which is filed together with the negative. She states that her husband is also called Venkataramana and she claims that birth of her son, plaintiff, was reported by her husband to the municipal authorities and therefore, both names of parents are mentioned in Ex.A4. She admits that Venkateswarlu was having wife and children. 21. In order to claim benefit of Section 16 of the Hindu Marriage Act the plaintiff must establish the marriage between P.W.1 and the said Venkateswarlu, as a fact. Once the marriage is established, the plaintiff would be entitled to the benefit of Section 16, if he proves the paternity, irrespective of the fact whether the marriage is invalid or void. The documentary evidence produced by the appellant/plaintiff is very sketchy. The Muhurtham paper, which is marked as Ex.A1 is said to be dated 22.04.1962 and P.W.1 states that it is under that document that the Muhurtham of their marriage was fixed. P.W.1 states as follows: ‘My husband got fixed the Muhurtham through the said priest (Sista Seetharamulu). It was noted on a chit and it was given to my father. My father gave it to me. My father died about 20 years ago. Ex.A1 is the said Muhurtham paper. By the time of filing of the suit, Sista Seetharamulu was alive and was aged about 53 years. When I approached the said Siesta Seetharamulu, he gave an affidavit to me as to the facts. Ex.A2 is the said affidavit…’ 22. Now the aforesaid Muhurtham paper is thus marked by P.W.1 only during her evidence. The said document was not filed along with the plaint nor we find any reference thereto in the plaint. There is also no reference to the said priest, who is said to have given Ex.A2 affidavit. The said Ex.A1 is purportedly in the custody of P.W.1 for more than 20 years and is apparently marked for the first time in evidence on 14.07.1999. Thus, it has surfaced on the record for the first time after more than 37 years. Further, it is highly improbable to accept that the parties would keep Muhurtham paper, which according to P.W.1 was a chit on which the priest had fixed the Muhurtham of the said marriage. One can understand an invitation card or photos of marriage being preserved but the said document Ex.A1 is, admittedly, not prepared in the presence of P.W.1 nor anybody connected with the said document is examined. Further, the affidavit of the priest, who is said to have prepared Ex.A1, was marked as Ex.A2 and the said priest is said to be 53 years as on the date of filing of the suit. No effort has been made to examine him in the suit and even assuming that he was advanced in age he could have been examined ahead of other witnesses. Thus, though the said deponent was alive for five years after filing of the suit, his non-examination by the plaintiff clearly has to be held against the plaintiff and consequently, neither Ex.A1 nor Ex.A2 inspires confidence. The photograph Ex.A3 relied upon by the plaintiff has also hardly any probative value and even assuming that the person appearing with P.W.1 in the photograph was said Venkateswarlu as alleged by the plaintiff, that by itself cannot establish the marriage between him and P.W.1. The other evidence produced by the plaintiff and relied upon by the learned counsel for the appellant is Ex.A4, which is the birth certificate issued by Kakinada Municipality mentioning that on 06.01.1968 at Government Hospital, Kakinada, a male child was born to Ch. Venkateswarlu and Chandravathi. Learned counsel for the appellant states that since it is a statutory birth certificate issued by the municipality under Section 12 or 17 of the Registration of births and deaths Act, 1969 a statutory presumption is required to be raised in support thereof. Ex.A5 is a voters registration form which contains the names of P.W.1 and the plaintiff and the said form is filled up based upon the information given by the voters. The said document, therefore, hardly has any authenticity. The evidence of P.W.1, however, is self-contradictory so far as these documents are concerned. 23. P.W.1 states in the cross-examination as follows: “I cannot say how much time after my marriage. I gave birth to the male child. I furnished the information for Ex.A5. I gave the said information after I shifted to Kakinada. I came to kakinada about one year after the death of my husband. It is true that in Ex.A5 the name of the father of the plaintiff is mentioned as Venkateswararao. I gave birth to male child in the hospital. By the time of the said birth we were residing in Gurajanapalli. My husband gave the information reporting the birth of my son. I do not know why permanent address is not mentioned in Ex.A4. It is not true to suggest that I furnished information for Ex.A4 and that as I was not residing at Gurajanapalli I did not furnish the said village address as my permanent address. The original name of my husband is Venkateswarlu. It is not true to suggest that in Ex.A4 the full name of my husband was not mentioned. After my marriage, I went to Gurajanapalli to live with my husband. I went there two or three days after my marriage. By the time I went there to live with my husband, the younger brother of my husband, his wife and children and D1 were in the said house. My husband gave Ex.A4 to me.” 24. When we see the plaint allegations there is no reference to these documents in the plaint nor the same was filed along with the plaint though P.W.1 was said to have the custody of Ex.A4 with her during the lifetime of her husband, which in other words means that she is having custody of the documents from 1967-68 onwards. Thus, neither there is a reference to the aforesaid documents of the plaintiff in the plaint nor at least a rejoinder is filed after noticing that the defendants have denied any marriage between P.W.1 and the said Venkateswarlu. The said documentary evidence filed on behalf of the plaintiff is, therefore, neither reliable nor even probabilizes the marriage between P.W.1 and the said Venkateswarlu, as alleged. D.W.1 is, admittedly, the first wife of the said Venkateswarlu. She sticks on to the evidence that she has only one daughter and no other issues and that her husband belongs to Gurajanapalli village. She states that she and P.W.1 never lived together at Gurajanapalli village. She further states that till the death of her husband, the properties of the husband’s family were joint properties and the brother of her husband lived with them till he got the job and only after the death of her husband, the joint family properties were divided about 15 years ago. The house at Gurajanapalli fell to the share of her husband’s younger brother (D9) and the reference is to plaint B schedule property. She, therefore, denied any rights of P.W.1 or the plaintiff to any of the properties of her husband and she also denied that his name was Venkateswarlu and in proof, thereof, she filed Ex.B1 settlement deed in which the father of her husband described her husband’s name as Ch. Venkataramachandram. She denied the suggestion that her husband married P.W.1 and they together stayed in the same house in Gurajanapalli village. 25. The plaintiff also produced two other witnesses apart from examining his mother as P.W.1 and himself as P.W.2. While P.W.3 states that he knows the plaintiff and P.W.1 and that the marriage between P.W.1 and Venkateswara Rao took place 35 years ago and that he attended the said marriage. He states that his house is near to P.W.1’s parents house. He says that the plaintiff was born after