IN THE HIGH COURT OF JUDICATURE OF MADRAS DATED: 31..07..2008 CORAM: THE HONOURABLE MR. JUSTICE G.RAJASURIA A.S.No.42 of 2001 and Cross Objection No.1 of 2003 1.Mayavan 2.Perumal 3.Jayapal 4.Meenakumari ... Appellants/Defendants (Respondents in Cross- Objection) Vs. 1.Radhakrishnan 2.Balakrishnan 3.Nilakanni 4.Andal 5.Sampoornam .. Respondents /Plaintiffs (Cross-Objection) Appeal against the judgement and decree of the learned Subordinate Judge, Panruti passed in O.S.No.97 of 1996 dated 31.10.2000. For appellants :: Mr.V.Raghavachari For respondents :: Mrs.Hema Sampath JUDGMENT This appeal is focussed at the instance of the defendants as against the judgment and decree dated 31.10.2000 passed by the learned Subordinate Judge, Panruti, in the suit in O.S.No.67 of 1996, which was filed by the plaintiffs as against the defendants for partition and for other consequential reliefs. 2. For convenience sake, the parties are referred to here under according to their litigative status before the trial Court. 3. Broadly but briefly, narratively but precisely, the case of the plaintiffs as stood exposited from the averments in the plaint https://hcservices.ecourts.gov.in/hcservices/ could be recounted thus: (a) One Narayanan had two wives, namely, Kullammal and Pooraniammal. Through his first wife, Kullammal he had two children, viz., deceased Varadan and Sampoornam-the fifth plaintiff. Varadan's wife is Andal-the fourth plaintiff. The children of Varadan and Andal are Radhakrishnan, Balakrishnan, and Neelakanni (Plaintiffs 1 to 3). (b) The said Narayanan through his second wife Pooraniammal gave birth to four children viz., Mayavan, Perumal, Jeyabalan and Meenakumari- D2 to D5 respectively. (c) Even though in the genealogy appended to the plaint, the plaintiffs set out that Narayanan had two wives, yet in the body of the plaint, they would contend as though Narayanan, during the life time of his first wife Kullammal developed illicit intimacy with Pooraniammal. The plaintiffs also contended that the children born to Narayanan through Pooraniammal are not the legitimate children. (d) In the partition, which emerged among Narayanan and his brothers including his father and mother, as per partition dated 19.10.1943, the properties referred to in the "A" schedule of the partition deed was allotted to the share of Narayanan. Those properties were income yielding properties; consequently, Narayanan acquired other properties also. As such, all those properties are referred to as the joint family properties. Narayanan's son Varadan pre-deceased Narayanan, leaving behind his three sons, viz., plaintiffs 1 to 3. Consequently, Narayanan was depending upon Mayavan, the son born through the said Pooraniammal, for his assistance. (e) Mayavan was collecting income from the suit property and it so happened that some properties were purchased in the name of D2 Mayavan, who had no independent source of income. At that time, Mayavan happened to be the eldest son of Narayanan. As such those properties purchased in the name of Mayavan also were treated as joint family properties. (f) Similarly, in the name of first defendant, namely, Pooraniammal also, Narayanan purchased some property, from out of the joint family income, and that was also treated as joint family property. As such, the suit properties all belong to joint family. Three years anterior to the filing of the suit, when the plaintiffs sought for partition, the defendants 2 and 3 refused to agree for amicable partition. (g) Defendants 2 and 3 had contended that the joint family's debt to the tune of Rs.2 ½ lakhs should also be apportioned among https://hcservices.ecourts.gov.in/hcservices/ the sharers for being repaid. They also contended that the properties standing in the name of D1 and D2 are the self-acquired properties. Hence, the suit for partition. 4. Per contra, gain saying and challenging the allegations/averments in the plaint, the second defendant filed the written statement, which was adopted by D1, the pith and marrow of it would run thus: Narayanan, in the partition deed among his brothers and parents, during the year 1943 obtained only a small extent of land, viz., 1 acre and 96 cents of dry land, which was not sufficient to support the family needs and he did not purchase properties from out of the income derived from it. The plaintiffs, who are the heirs of deceased Varadan, left the family after Varadan's demise and they have been living separately. However, Narayanan, out of his exertion earned from the said joint family property, purchased an extent of 5 acres and 5 cents of land on 29.11.1960 for Rs.12,000/-. Narayanan during his life time incurred debt to the tune of Rs.2.5 lakhs for family maintenance and for cultivation purpose and the plaintiffs also should respectively share the burden of those debts. D2 purchased an extent of 2 acres and 33 cents from out of his own income. D1 purchased an extent of 85 cents from the money provided by her parents and hence, it belongs to her absolutely. The quantum of share claimed by the plaintiffs is not correct. Narayanan's ancestral property have to be divided equally among plaintiffs 1 and 2 and defendants 2 to 4 and Narayanan's share in the said ancestral property should be divided among the plaintiffs and the defendants. 5. D5 filed the written statement, more or less on the same line as the one filed by defendants 1 and 2. However, she would further aver thus: D1 is the legitimate wife of Narayanan, as he married her after the death of his first wife Kullammal. Narayanan and D2- Mayavan alone have contributed to augment the income and purchased the suit properties 6 and 7. Since Narayanan became old and Varadan was a chronic patient, D2-Mayavan purchased the property by selling his wife's jewels. D1 purchased some property in her name from out of the funds provided from her parents' side. The family of Narayanan is indebted to the tune of Rs.2 ½ lakhs. In her written statement, she set out the details of the debts. Accordingly she prayed for dismissal of the suit. 6. The trial Court framed the relevant issues. During the trial, on the side of the plaintiffs two witnesses, namely, Balakrishnan(P2) and one Rasu were examined as P.W.1 and P.W.2, respectively and Ex.A1 to A5 were marked. On behalf of the https://hcservices.ecourts.gov.in/hcservices/ defendants, the second defendant-Mayavan was examined as D.W.1, Murugesan was examined as D.W.2, Ponnan was examined as D.W.3, Narasa Riddiar was examined D.W.4 and Manickam was examined as D.W.5 and 23 documents were marked as Ex.B1 to Ex.B23. Apart from this Exs.C1 and C11 were also marked. 7. Ultimately, the trial Court decreed the suit partly. Being aggrieved by and dissatisfied with the judgement and decree of the trial Court, the defendants/appellants preferred this appeal on the following grounds among others: a. The trial Court should have seen that Pooraniammal as the mother of deceased Dhanapal was entitled to his share. b. Pooraniammal is entitled to 1/6th share of deceased Dhanapal, as he was also born to Narayanan and Pooraniammal and on Pooraniammal's death, her share had devolved upon her children and these facts were not taken note of by the trial Court. c. Consequent upon Dhanapal's death Pooraniammal was entitled to his share and consequent upon Pooraniammal's death, her share and the share of Dhanapal which she inherited, all devolved upon her children and the lower Court failed to take note of these legal implications. d. The shares allotted by the trial Court are not correct. On the death of Narayanan, the defendants are entitled to 1/4th share and the plaintiffs 1 to 4 together are entitled to 1/42 shares. e. In item Nos.6 and 7 of the suit property, the heirs of deceased Varadan are not entitled to any share but the trial Court held otherwise, erroneously. f. The suit was bad for non-joinder of proper parties, but the trial Court ignored it. g. The trial Court did not take into account that the income derived from the ancestral property was not sufficient to purchase other properties. Accordingly, they prayed for modifying the judgement and decree of the trial Court in accordance with their pleas set out supra. 8. The plaintiff/respondents filed Cross objection on various grounds, the gist and kernel of them would run thus: (1) The trial court erred in holding that D1 was the legally wedded wife of Narayanan. https://hcservices.ecourts.gov.in/hcservices/ (2) The children born to Narayanan and D1 are only illegitimate children to Narayanan and they cannot be treated as members of the joint family and they also cannot claim share in the ancestral property. (3) The trial Court failed to hold that the children born to Narayanan through Pooraniammal could claim share only in Narayanan's personal properties. (4) The trial Court erred in dismissing the suit relating to items 8 and 9. (5) The trial Court should have applied the same ratio as it had applied in adjudicating the rights relating to other items of properties. (6) The recitals in Ex.B11 did not support the defendant's case. (7) The trial Court erroneously held that Mayavan purchased item No.9 from out of his own funds. (8) Mayavan took contradictory stands relating to his source of income to purchase item No.9 of the suit property, as per Ex.B2, but the trial Court failed to take note of it. Accordingly, the plaintiffs prayed for decreeing the suit as prayed by them in toto. 9. The points for consideration are as to:- (i) Whether the deceased D1-Pooraniammal was the legitimate wife of Narayanan? (ii) Who are all the members of the co-parcenery family of Narayanan? (iii) Whether items 6,7,8 and 9 belong to the persons in whose names the properties or those items of properties also belong to the joint family? (iv) Whether there existed a joint family debt of 2 1/2 lakhs? and whether the same should be apportioned among all the co-sharers, for being discharged by the respective sharers? (v) In what manner and proportion the suit properties should be divided? (vi)Whether there is any infirmity in the judgement and decree of the trial Court? 10. Point No.(i) At the outset itself, I would like to discuss the cross-objections raised by the plaintiffs to the effect that https://hcservices.ecourts.gov.in/hcservices/ Pooraniammal was not the legitimate wife of deceased Narayanan and that children born to Pooraniammal are not the legitimate children. 11. It is glaringly clear that Mayavan the eldest son of Narayanan born through Pooraniammal is stated to be of 50 years old by the plaintiffs themselves in the plaint, which was presented during the year 1996. As such, it could rightly be taken that Mayavan, the first son of Narayanan and Pooraniammal, was born during the year 1946. At once it is clear that Narayanan and Pooraniammal lived as husband and wife well before the commencement of the The Madras Hindu (Bigamy Prevention and Divorce) Act, 1949. Section 4 of it mandates thus: "4. Bigamy to be void and punishable" Section 3 of the said Act would unambiguously demonstrate that the said Act applies to Hindus domiciled in the then State of Madras. The preamble of the Act is extracted here under for ready reference: "An Act to prohibit bigamous marriage among, and to provide for a right of divorce for, Hindus in the State of Madras. Whereas it is expedient to prohibit bigamous marriages, among, and to provide for a right of divorce on certain grounds for Hindus domiciled in the State of Madras: ......" It is therefore crystal clear that anterior to the said enactment of the year 1949, in the then State of Madras, for Hindus monogamy was not the Rule. 12. It is therefore clear that even though the actual marriage between Narayanan and Pooraniammal might not have been proved clinchingly, as excepted by the plaintiffs, yet Narayanan and Pooraniammal gave birth to as many as five children; they lived as husband and wife and inasmuch as they cohabited with each other continuously for a long time, Pooraniammal could rightly be treated as wife of Narayanan and that too, the legal position is to the effect that before 1949, a Hindu can have more than one wife. At this juncture, my mind is redolent with the following decision: 2001 (3) CTC 513 (KANAGAVALLI v. SAROJA). An excerpt from it would run thus: "7. Section 16 of the Hindu Marriage Act clearly lays down that notwithstanding that a marriage is null and void under Section 11 and where a decree of nullity has been granted in respect of a voidable marriage, children who are born, who would otherwise have been https://hcservices.ecourts.gov.in/hcservices/ legitimate children. What follows therefrom is that such children will be entitled to inherit their father's property. In the decision reported in S.P.S.BALASUBRAMANYAM v. SURUTTAYAN, AIR 1992 SC 756 the Supreme Court held that the circumstances of evidence in that case did not destroy the presumption that the parties therein lived as man and wife under the same roof. In this case also, there is undeniable evidence that Natarajan and the first appellant had lived as man and wife under the same roof. Therefore, the children born to them are not illegitimate and the provisions of Section 16 of the Hindu Marriage Act will be applicable to them. 8. In RAMESHWARI DEVI v. STATE OF BIHAR & OTHERS, 2002 (2) S.C.C.431 the Supreme Court held that in the circumstances, the Cohabitation for a long time between the deceased employee and the 2nd spouse gave rise to presumption of wedlock and therefore, the minor children of second marriage were entitled to family pension, but not to second widow. In that case also, both the wives were living. The first wife had one child and the second wife had three children as in the instant case. The Supreme Court held that the children of the second wife were entitled to be deemed legitimate as per Section 16 of the Act. This is also applicable to this case." As such, the contention of the plaintiffs that Pooraniammal is not the legitimate wife of Narayanan and that the children born to them are not legitimate children got crumbled to the ground. Accordingly, point No.(i) is decided against the plaintiffs and in favour of the defendants. 13. Point No.(ii): The learned counsel for the appellants/defendants would argue that the trial Court failed to consider the existence of Dhanapal as one of the sons of Narayanan, born through Pooraniammal. 14. The learned counsel for the appellants/defendants, in support of his contention would advance his argument to the effect that even though, as per Ex.B6-Dhanapal was cited as one of the sons of Narayanan, born through Pooraniammal, nonetheless, the trial Court did not take into consideration his share in the coparcenary property as the one devolved upon his mother https://hcservices.ecourts.gov.in/hcservices/ Pooraniammal on his dying interstate and the fact that on the death of Pooraniammal, her share in the suit property and also the share of Dhanapal, which devolved on her, ultimately devolved on the remaining sons of Pooraniammal. 15. In this aspect, a perusal of Ex.B6, the registered mortgage deed, executed by the following persons, namely, Narayanan and his sons, Varadhan, Mayavan, minor son Perumal, minor son Dhanapal and minor son Jeyabalan, in favour of Meenakumari, wife of Bangaru Reddy, mortgaging their properties, would reveal that the deceased Dhanapal was also one of the sons of Narayanan. 16. Once it is found that Narayanan had two wives, namely, Kullammal and Poorani Ammal, and that Narayanan, through his first wife-Kullammal had one son by name Varadhan, who pre-deceased him, leaving behind his three children Radhakrishnan, Balakrishnan and Neelakanni and Narayanan also through Kullammal had one daughter namely Sampoornam and that Narayanan through his second wife Pooraniammal gave birth to as many as five children, namely, Mayavan, Perumal, Jeyapal, his daughter Meenakumari, Dhanapal, it is clear that Narayanan, being the head of the coparcenary had five sons. 17. From the above genealogy, it is crystal clear that Narayanan, being the head of the coparcenary had five sons, namely, Varadhan-born through his first wife Kullammal, and Mayavan, Perumal, Jeyapal and Dhanapal born through his second wife Poorani Ammal. 18. It is a trite proposition that as per Section 6 of the Hindu Succession Act, consequent upon the death of a coparcener, there will be notional division of the coparcenary property among the coparceners and the share of the deceased coparcenar would not devolve upon others coparcenars by survivarship, but his share would devolve upon his legal heirs as per Hindu Succession Act. Accordingly, if viewed, it is crystal clear that the property should be notionally divided into six shares. Consequent upon the death of Dhanapal, the son born to Narayanan through Pooraniammal, his 1/6th share should be taken as devolved upon his mother Pooraniammal. Consequent upon the death of Narayanan, his 1/6th share had devolved equally upon the following persons in the following manner:- (i) his second wife-Pooraniammal – one share (ii) his daughter Sampoornam, born through Kullammal - one share (iii)his grand children, namely, Radhakrishnan, Balakrishnan, Neelakanni, all born to Varadhan, his pre-deceased son, and his daughter-in-law-D4-Andal, being the children and the widow of deceased Varadhan https://hcservices.ecourts.gov.in/hcservices/ – one share (iv) Mayavan – one share (v) Perumal – one share (vi) Jeyabal – one share (vii) Meenakumari – one share (Mayavan, Perumal, Jeyabal, Meenakumari – all born to Narayanan through Pooraniammal) 19. As such Narayanan's 1/6th share in the coparcenary property should be divided into seven shares and each one is entitled to one share. For clarity sake, I would reiterate that the one share of deceased son Varadhan should be taken by Radhakrishnan, Balakrishnan and Neelakanni his children and D4- Andal- his wife. 20. Since Pooraniammal died, her 1/7th share in the 1/6th share of Narayanan, along with Pooraniammal's 1/6th share, which was inherited from Dhanapal-her deceased son, both would devolve upon her children, namely, Mayavan, Perumal, Jeyapal and Meenakumari. Accordingly, point No.(ii) is decided. 21. Point No.(iii): I would like to consider the contention of the appellants/defendants to the effect that item Nos.6 and 7 were acquired, owing to the joint exertion of Narayanan and the appellants/defendants and not due to the contribution made by Varadhan, who pre-deceased Narayanan, as a sick man. The whole kit and caboodle of facts and figures placed before the trial Court would clearly highlight that Narayanan had ancestral nucleus to wit the 4th and 5th items of suit properties by virtue of Ex.A1-the partition deed dated 19.10.1943. The trial Court also adverting to that fact gave a specific finding that from out of the income generated from such ancestral nucleus, he purchased, as per Ex.A2- dated 22.11.1960, the 6th and 7th items of the suit properties. It is a fact that Narayanan got his ancestral nucleus during the year 1943 and Ex.A2 emerged in the year 1960. The trial Court correctly applied the ratiocination that defendants 2 to 5 could not have during that period between 1943 and 1960 contributed anything significant for the purchase of items 6 and 7. 22. It is a trite proposition of law that when there is income generating nucleus property, it is obvious that the property purchased by the kartha should be deemed to be the ancestral property and therefore, the reasonings and findings of the trial Court relating to items 6 and 7, as the ancestral property of the joint family of Narayanan warrants no interference. 23. In fact in the written statement filed by D2, in paragraph 5 it is found stated thus:- https://hcservices.ecourts.gov.in/hcservices/ "5. Narayanan had two wives as stated in the plaint, defendant 2 to 5 are the issues of first defendant. Under the partition dated 19.10.1943 Narayanan got only 1.96 cents of dry land and out of his exertion and surplus from the family property he purchased an extent of 5 acres and 5 cents on 29.11.1960 for Rs.12,000/-. Hence only in the above said properties alone the plaintiffs can claim share. 24. It is therefore clear that items 6 and 7 are also to be taken as part and parcel of the ancestral property. 25. Relating to item No.8 of the suit property, the trial Court adverted to the fact that it was purchased by Pooraniammal-D1 as per Ex.B11-the sale Deed dated 2.4.1958. As revealed by Ex.B11, the 8th item of suit property was purchased by Pooraniammal. The recitals in Ex.B11 would reveal that even earlier to the emergence of Ex.B11-the Sale Deed in favour of Pooraniammal, she was holding the 8th item as a usufructuary mortgagee vide document registered as 256/1956 and as a usufructuary mortgagee, she was entitled to recover from the seller a sum of Rs.1000/-, which was treated as part of the sale consideration under Ex.B11 and over and above that, Pooraniammal paid a sum of Rs.1000/- to the seller on 2.4.1958 and agreed to receive the remaining sale consideration of Rs.500/- before the Registrar at the time of registration. As such, for a total sale consideration of Rs.2,500/-, the 8th item of suit property was purchased by Pooraniammal. Ex.B11-registered document ex facie and prima facie stands in the name of Pooraniammal, and apparently she should be taken as the owner unless the contrary proof is forthcoming from the side of the plaintiff, who insist the Court to believe that it is also the joint family property. 26. The lower Court has correctly relied on the decision of this Court reported in 1984(2) M.L.J. 313 Sarojiniammal and others and the trial Court has also extracted the relevant portion, which I need not once again extract here. 27. I would also like to add few more decisions in this regard. (i) AIR 1954 SC 379 (Srinivas Krishnarao Kango vs. Narayan Devji Kango and others). An excerpt from it would run thus: "8. Proof of the existence of a joint family does not lead to the presumption that property held by any member of the family is joint, and the burden rests upon anyone asserting that any item of property was joint to establish the fact. But where it is established that the https://hcservices.ecourts.gov.in/hcservices/ family possessed some joint property which from its nature and relative value may have formed the nucleus from which the property in question may have been acquired, the burden shifts to the party alleging self- acquisition to establish affirmatively that the property was acquired without the aid of the joint family property. 10. Whether the evidence adduced by the plaintiff was sufficient to shift the burden which initially rested on him of establishing that there was adequate nucleus out of which the acquisitions could have been made is one of fact depending on the nature and the extent of the nucleus. The important thing to consider is the income which the nucleus yields. A building in the occupation of the members of a family and yielding no income could not be a nucleus out of which acquisitions could be made, even though it might be of considerable value. On the other hand, a running business in which the capital invested is comparatively small might conceivably produce substantial income, which may well form the foundation of the subsequent acquisitions. These are not abstract questions of law, but questions of fact to be determined on the evidence in the case. Where the finding of the Courts is that the income from the ancestral lands was not sufficient even for the maintenance of the members, and the houses in dispute are substantial, burden is on the plaintiff who alleges the houses to have been acquired out of joint family funds, to establish it. Held that if the contention that on proof of the existence of the Watan lands the burden had shifted on to the defendants to prove that the acquisitions were made without the aid of joint family funds,that burden had been discharged. Likewise, it was held that since the ancestral Watan lands are intact, and were available for partition, and the small income derived from them must have been utilised for the maintenance of the members of the family, whether it were held that the plaintiff had failed to discharge the burden which lay on him of establishing sufficient nucleus, or that the defendants had discharged the burden of establishing that the acquisitions were made without the aid of joint family