IN THE HIGH COURT OF JUDICIATURE AT MADRAS DATED: 02.07.2008 C O R A M THE HONOURABLE MR.JUSTICE G.RAJASURIA A.S.No.1009 of 1990 & C.M.P.Nos.2569 and 2570 of 1993 1.Jayammal 2.Sundararajan(died) 3.Kumudavalli 4.Vijaya 5.Lalitha 6.Balaji 7.Jayaprakash 8.Jagan 9.Rajalakshmi 10.Radha .. Appellants/Defendants (Appellants 5 to 10 impleaded as LRs of the deceased 2nd Appellant vide order of Court dt. 20.3.2006 made in CMP No.9537 & 9358/2005 dated 11.12.2007 made in CMP No.9539/2005) Vs. 1.V.Kumar 2.Rani 3.V.Jamuna 4.Kalaiselvi 5.Sundaramurthy . . Respondents/Plaintiffs (Minor declared as major and mother discharged from his guardianship as per order of court dt.8.8.2003 made in CMP 16599 & 16510/99) The First Appeal is filed against the judgment and preliminary decree passed in O.S.No.57 of 1985 dated 23.12,1989 on the file of the subordinate Judge, Chengleput. https://hcservices.ecourts.gov.in/hcservices/ For Appellants : Mr.G.S.Selvatharasu for Ms.V.Vanitha & Mrs.L.Fatima Fabiola For Respondents : Mr.V.Narayanaswami JUDGMENT This appeal is focussed as against the judgment and decree in O.S.No.57 of 1985 dated 23.12.1989 passed by the learned Subordinate Judge, Chengleput. For convenience sake, the parties are referred to here under according to their litigative status before the trial Court. 2. Tersely and briefly, the case of the plaintiff as stood exposited from the plaint could be narrated thus; The deceased V.P.Venkatesan, had two wives namely namely Jayammal, the first defendant herein and one Thulukkanammal. Through his first wife he had one son the second defendant and two daughters, the third and the fourth defendants. Through his second wife he had five children namely the plaintiffs 1 and 5 his sons and the plaintiffs 2 to 4 his daughters. In fact the marriage of V.P.Venkatesan with Thulukkanammal took place in the year 1955 in 'Syuamariyathai' form in Singaperumal Koil in the presence of the villagers. From that time onwards V.P.Venkatesan and Thulukkanammal started living together till his death on 26.09.1985. The properties described in the schedule of the plaint belong to the joint family of V.P.Venkatesan and his sons. Some of those properties are ancestral properties which V.P.Venkatesan got in a partition his brothers earlier. The rest of the properties are his self-acquired properties. V.P.Venkatesan was running a touring Cinema theatre namely "Kalaichelvei Talkies" and it was named after the fourth plaintiff. By running the cinema theatre, he earned substantial amount and purchased properties. The defendants 1 and 2 sold item number 15 in favour of the fifth and sixth defendants and hence they were added as parties. The plaintiffs since they happened to be the children of V.P.Venkatesan, through his second wife, as per Section 16 of the Hindu Marriage Act, they are entitled to claim the shares. The said V.P.Venkatesan died on 26.09.1985, whereupon the defendants developed hostile attitude towards the plaintiffs. Hence, the suit for partition is filed with the following prayer; 1) directing a partition of the suit items 1 to 6 into 36 equal shares and allotment of 23 such shares to the plaintiffs; https://hcservices.ecourts.gov.in/hcservices/ 2) directing the partition of plaint items 7 to 15 into 9 equal shares and allotment of 5 such shares to the plaintiffs; 3) directing the defendants to pay the plaintiffs future costs; and 4) directing the defendants to pay the plaintiffs their cost of the suit. 3. Per contra, gainsaying and denying, contradicting and impugning the allegations/averments in the plaint, the first defendant filed the written statement which was certified by the other defendants. The quintessence of it would run thus; No marriage between V.P.Venkatesan and Thulukkanammal took place in the year 1955 in any form much less in "Suyamariyathai" form. The plaintiffs are not entitled to invoke Section 16 of the Hindu Marriage Act and lay claim for any share in the suit properties. The first defendant did not remove movables worth Rs.35,600/-. V.P.Venkatesan had illicit relationship with Thulukkanammal, who was wife of one Srinivasan and hence no marriage could have taken place between V.P.Venkatesan and Thulukkanammal and the plaintiffs are not entitled to the suit properties. In fact, Thulukkanammal and the first plaintiff removed 20 sovereigns of gold jewels and cash of Rs.5,000/- from the deceased V.P.Venkatesan. Accordingly, he prayed for dismissal of the suit. The other defendants adopted the written statement of the first defendant. 4. The trial Court framed the relevant issues. During trial, on the side of the plaintiff, the first plaintiff examined himself as PW1 along with Thulukkanammal, the second wife of V.P.Venkatesan and Ex.A1 to Ex.A27 were marked. The first defendant examined herself as DW1 along with her witness Rajaveni Ammal and Ex.B1 to Ex.B14 were marked. The trial Court ultimately decreed the suit as prayed for and a preliminary decree was also passed. 5. Being aggrieved by and dissatisfied with the judgment and preliminary decree of the trial Court, the defendants filed this appeal on the following grounds among others; The judgment and preliminary decree of the trial Court is against law, weight of evidence and all probabilities of the case. The plaintiffs has not proved that they were born to V.P.Venkatesan. The trial Court relied on the statement of the first defendant in O.P.No.2/1985, but failed to rely on the statement of V.P.Venkatesan in the same proceedings. V.P.Venkatesan did not marry Thulukkanammal at all. Ignoring the fact that the marriage between Thulukkanammal and her husband https://hcservices.ecourts.gov.in/hcservices/ Srinivasan subsisted till the death of V.P.Venkatesan the trial Court decreed the suit and hence the plaintiffs cannot claim any share over the properties not acquired by V.P.Venkatesan. Accordingly, the defendants prayed for dismissal of the suit. 6. The points for consideration are; 1. Whether V.P.Venkatesan and Thulukkanammal underwent some form of marriage as one contemplated under Section 16 of the Hindu Marriage Act so as to enable the plaintiffs to lay claim over the properties of V.P.Venkatesan? 2. Whether the plaintiffs are the children born to V.P.Venkatesan and Thulukkanammal and if so they could invoke Section 16 of the Hindu Marriage Act to claim shares in the properties of V.P.Venkatesan? and 3. If so whether the plaintiffs are entitled to claim share in the properties namely the item numbers 1 to 6 which V.P.Venkatesan got it in the partition between his brothers and himself?. 4. Whether there is any infirmity in the judgment and decree of the trial Court? 7. The points 1 and 2 are taken together for discussion as they are inter-linked and inter-woven with each other. The gist and kernel of the case of the defendants is that V.P.Venkatesan had only one legitimate wife by name Jeyammal, the first defendant, and the defendants 2 to 4 are their children; the plaintiffs are having no right to claim that they are the legal heirs of the deceased V.P.Venkatesan; Thulukkanammal can never be treated as the wife of V.P.Venkatesan in view of the fact that Thulukkanammal's husband was alive till the death of V.P.Venkatesan, wherefore Section 16 of the Hindu Marriage Act cannot be pressed into service. Accordingly, the plaintiffs cannot lay claim over the suit properties. 8. Per contra, the plaintiffs' contentions are that the marriage between V.P.Venkatesan and Thulukkanammal cannot be the legitimate marriage in view of the subsistence of V.P.Venkatesan's first marriage with the first defendant; nonetheless as per Section 16 of the Hindu Marriage Act, the plaintiffs who were born to V.P.Venkatesan through Thulukkanammal could be treated as the ones eligible to claim shares in the properties of V.P.Venkatesan and the suit properties happened to be the exclusive properties of V.P.Venkatesan. https://hcservices.ecourts.gov.in/hcservices/ 9. The trial Court held that out of the 15 items of immovable properties, the Item numbers 1 to 6 happened to be the ancestral properties and the other items are the self-acquired properties of V.P.Venkatesan. The trial Court also held that Section 16 of the Hindu Marriage Act is applicable in favour of the plaintiffs' claim. 10. The learned counsel for the defendants/appellants would advance his arguments that as per Section 16 of the Hindu Marriage Act, it cannot be countenanced that there was a marriage between V.P.Venkatesan and Thulukkanammal. In support of this contention, he would cite the following decision 2002-2-l.L.W.782 (CHINNAMMAL AND OTHERS v. ELUMALAI AND OTHERS). An excerpt from it would run thus; "10. I am unable to agree with the contention of learned counsel for the appellants. There is a distinction between proof of marriage and validity of marriage. The proof of marriage can be achieved by direct evidence of the marriage ceremony or registration of marriage or by circumstantial evidence, one of the circumstances being long cohabitation and living together. But a marriage which is questioned on the ground of being subsequent to and during the subsistence of an earlier marriage, could not, by any stretch of argument or imagination, be sanctified or validated by any length of cohabitation and living together. But, a marriage which is questioned on the ground of being subsequent to and during the subsistence of an earlier marriage, could not, by any stretch of argument or imagination, be sanctified or validated by any length of cohabitation or living together. After the advent of Tamil Nadu Hindu (Bigamy Prevention and Divorce) Act, 1949 and Hindu Marriage Act, 1956, the second marriage during the subsistence of the first marriage is totally void, illegal and opposed to public policy. No amount of pleading or proof of custom or consent by wife can validate such a marriage. All the four decisions cited by learned counsel for the appellants deal with cases where the relationship between the man and the woman in the respective cases, was long before the coming into force of the said enactments." https://hcservices.ecourts.gov.in/hcservices/ 11. However, the earlier decision of this Court, reported in 1999 (III) CTC 136 (SINGARAM @ VELAYUDHA UDAYAR v. V.SUBRAMANIAM) would be different. An excerpt from it would run thus; "19.Sub-Section (3) provides that in case of a child of a marriage which is null and void or which is annulled by a decree of nullity under Section 12 though the child may be a illegitimate child under sub-section (1) or (2) the child would be entitled only to possess or acquire rights in or to any property of its parents and not to those of others, if fact, it means such child would not have the status of a legitimate so far as the persons other than the parents are concerned. 20. A thorough reading of Section 16 makes it clear that there should be a void or voidable marriage between the parents of the individual who claims the status of an illegitimate child to get a share from out of the estate of his father. If there is no proof of any marriage, then the children born cannot also be treated as illegitimate children entitled for a share. In the judgment reported in MUTHAYYA v. KAMU, 1981(I) MLJ 107 it has been held as follows; "The result is there is no proof of any marriage between the first plaintiff and Meenakshisundaram and that the children born cannot also be treated as legitimate children" 22. In the case on hand there is absolutely no evidence to establish the question of marriage between Nainamalai and the fourth defendant. More so, both the Courts below have concurrently, on a question of fact, held that there was no marriage at all in any form between the said Nainamalai and the fourth defendant. When there is no marriage, the fourth defendant can only a concubine of the said Nainamalai. Section 16 of the said Act do not deal with the rights of the children through the concubinage." (emphasis supplied) 12. As such, the above said decision is on the point that children born to concubine cannot claim rights under Section 16 of the Hindu Marriage Act. However, the said decision would also https://hcservices.ecourts.gov.in/hcservices/ highlight the point that long cohabitation between man and woman as husband and wife would lead to the presumption of marriage between them provided their relatives and the society treated them so. 13. Whereas, the learned counsel for the plaintiffs would cite the decision of this Court reported in 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 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." (emphasis supplied) 14. As such the cumulative reading of the decisions cited on both sides, would unambiguously highlight the point that if a man https://hcservices.ecourts.gov.in/hcservices/ and a woman live together after undergoing some form of marriage or attracts the presumption as husband and wife, then the children born to them would have the right to invoke Section 16 of the Hindu Marriage Act. Any other interpretation would nullify the object of Section 16 of the Hindu Marriage Act. Heydon's Rule or Cardinal Rule could rightly be ushered in Section 16 of the Hindu Marriage Act intends to suppress the mischief of victimization the illegitimate children. 15. The learned counsel for the plaintiffs placing reliance on the admission made by D.W.1 (first defendant) would develop his arguments that the trial Court was right in holding that V.P.Venkatesan and Thulukkanammal lived as husband and wife after undergoing "Syumariyathai" marriage. Ex.A27 would reveal that the first defendant (Jeyammal) instituted O.P.No.2 of 1985 as against her husband V.P.Venkatesan seeking maintenance and in the said petition she averred various facts. Certain excerpts from it would run thus; "The petitioner further submits that the respondent in or about, 1965 has developed illicit relationship with another lady by name Thulukkanam and subsequently married her without the knowledge and consent of the petitioner. The respondent has set up a separate family for the said lady Thulukkanam and started staying with her thereby completely neglected the petitioner. The respondent is having five children through the second wife. (emphasis supplied) 16. The first defendant herself clinchingly and categorically accepted the status of the plaintiffs as the children born to V.P.Venkatesan and Thulukkanammal while they were living as man and wife after undergoing some form of marriage, inasmuch as the averments as extracted supra emerged at the instance of the first defendant herein in the previous proceedings initiated by her as against V.P.Venkatesan. 17. However, the learned counsel for the defendants/appellants would place reliance on the averments made by V.P.Venkatesan himself while resisting the claim of Jeyammal in the previous proceedings. No doubt in Ex.P14 the counter affidavit filed in O.P.No.2 of 1985, he had averred thus; "The further allegation in para 6 that this defendant has developed illicit intimacy with another lady, by name Thulukkanam and https://hcservices.ecourts.gov.in/hcservices/ subsequently marry her are hereby denied". "This respondent does not have any second wife, and the allegation in the affidavit is defamatory" 18. The learned counsel for the defendants/appellants would submit that even though the first defendant might have set out certain averments as against her husband in the proceedings, the husband namely V.P.Venkatesan himself denied his connection with Thulukkanammal as well as the factum of marriage with Thulukkanammal and the birth of children to them. At this juncture, my mind is redolent with the trite proposition of law that preponderance of probabilities would govern the adjudication in civil cases. 19. Simply because V.P.Venkatesan for the purpose of resisting the claim of his legitimate wife, averred certain versions by way of denial, it cannot be taken as conclusive and binding on the plaintiffs herein. Whereas, the first defendant is a party in this suit and she clearly and categorically set out those averments admitting the status of the plaintiffs and also the marriage between the V.P.Venkatesan and Thulukkanammal. At first blush it might appear as though double standard is applied in relying on the version of the first defendant in Ex.A27 but in neglecting the admission of V.P.Venkatesan in Ex.P14. But, it is not so, V.P.Venkatesan when cornered by his first wife, he for the purpose of wriggling out of the precarious situation, which he invited on himself, dished out certain versions presumably falsely by way of denying his illegalities in social life and that it should not be used as against the plaintiffs herein. Whereas, the first defendant who had no such constraints at that time came forward with such versions in Ex.A27 highlighting the actual status of V.P.Venkatesan vis-a-vis Thulukkanammal and the plaintiffs herein, viz., the children born to them. 20. Ex.A11 dated 29.10.1956, A12 dated 09.05.1962, Ex.A13 dated 29.07.1965 and Ex.A14 dated 10.08.1974 the birth certificates of the plaintiffs would evince and evidence that they were born to the said V.P.Venkatesan and Thulukkanammal. 21. Ex.A15, the voters list relating to the year 1975 also would expatiate that V.P.Venkatesan and Thulukkanammal were living as man and wife during the relevant period. Ex.B16 dated 26.02.1973 SSLC book and Ex.A17 dated 14.07.1978 Transfer Certificate, both relating to the second plaintiff, would also buttress the plea that P.W.2 was born to the said https://hcservices.ecourts.gov.in/hcservices/ couple. Ex.A24 is the membership card issued to Thulukkanammal by the D.M.K. Political party which would also convey that she happened to be the wife of V.P.Venkatesan. 22. It is therefore crystal clear that the oral and documentary evidence available on the plaintiff side would unmistakably point towards the fact that V.P.Venkatesan and Thulukkanammal lived as husband and wife and gave birth to the plaintiffs. The question as to whether the actual marriage stated to have taken place between V.P.Venkatesan and Thulukkanammal during the year 1955 in "Syuamariyathai" form has been proved or not. 23. The Cited decisions supra would unambiguously high light the point that relating to a marriage which took place several decades ago, direct and precise evidence would not be able to be produced by the parties and in such a case continued co-habitation between a man and a woman as husband and wife more so recognised as such by their relatives and the concerned section of the society would be sufficient proof of actual marriage which took place between the two. 24. The exhibits discussed supra such as voters list, birth certificates, political Membership card, Educational Certificates of the children etc., would unambiguously and judiciously indicate that the relatives as well as the section of the society recognised them as man and wife and it was the real fact. Hence, in these circumstances, I could see no infirmity in the judgment and decree on the trial Court in coming to the conclusion that V.P.Venkatesan and Thulukkanmammal underwent "Syuamariyathai" marriage and they started living as husband and wife and they give birth to the plaintiffs during such co-habitation and therefore the plaintiffs are entitled to press into service Section 16 of the Hindu Marriage Act in laying claim over the self-acquired properties of the deceased V.P.Venkatesan. Accordingly, points 1 and 2 are decided in favour of the plaintiffs. 25. Point NO.3: This point is relating to the factual issue as to what are the suit properties which can be described as ancestral properties and what are the other properties which could be termed as self- acquired properties of V.P.Venkatesan. The crucial point is as to whether the properties which V.P.Venkatesan obtained in the partition which emerged among his brothers and himself, could be made available for the plaintiffs to claim shares in it also by virtue of Section 16 of the Hindu Marriage Act. During arguments, it transpired that the plaintiffs had claimed shares in Item numbers 1 to 6 of the suit properties as the properties which https://hcservices.ecourts.gov.in/hcservices/ V.P.Venkatesan got them in the partition referred supra and according to the plaintiffs those six items have to be construed as self-acquired properties of V.P.Venkatesan also along with the other item numbers 7 to 15 which are the self-acquired properties of the deceased V.P.Venkatesan. 26. Ex.A9 the decree which emerged in the partition suit O.S.No.226 of 1984 among the brothers of the plaintiff, V.P.Venkatesan and himself would clearly show that V.P.Venkatesan got the suit items 1 to 5 and 15 under 'A' Schedule of the plaint. However, keeping the schedule of immovable properties as found set out in the plaint in juxtaposition with the schedule of property as found in Ex.A9, if comparison is made, it is at once clear that items 1 to 4 of the suit immovable properties do incontrovertibly evince that those properties are the ancestral properties of V.P.Venkatesan. Relating to item number 5 of the suit properties there are some controversies for the reason that in the decree of the lower Court it is found typed as though its survey number is 14/5-11, whereas in Ex.A9 its survey number is found as 14/3-11 which was allotted to the share of V.P.Venkatesan in the partition along with other five properties. The original plaint would clear the cloud as the actual survey number as found in the plaint relating to item number 5 is 14/3-11. Hence the item number 5 of the suit immovable properties is also one of the ancestral properties of V.P.Venkatesan. Item number 6 of the suit immovable properties has been wrongly shown as the ancestral property. Whereas item number 15 of the suit item under A schedule of the plaint does tally with the property as found described in para 4 of Ex.A9. However, in Ex.A9, the extent is mentioned as 5 ½ cents relating to that item, whereas in the suit schedule, the item 15 refers to an extent of 6 ½ cents and that minor discrepancy in extent would not be an embargo for this Court to hold that the item number 15 is also an ancestral property. Further in Ex.A9, the said item was allotted to V.P.Venkatesan with certain conditions attached to it to be complied with by V.P.Venkatesan, so to say, V.P.Venkatesan upon taking that item was ordained to discharge the family debts. Simply because certain onerous conditions are found attached to such allotment of that items alone, the said item of property cannot be termed as the self- acquired property of V.P.Venkatesan. Merely V.P.Venkatesan was burdened with the responsibility to discharge the debt as one of the conditions for taking the said item, towards part of his share, it would not amount to V.P.Venkatesan purchasing the said item. Legally the suit property which V.P.Venkatesan got from the partition would not loose the character of an ancestral property because he was saddled with the responsibility to discharge the loan. Consequently, items 1, 2, 4, 5 and 15 of the immovable properties under 'A' Schedule of the plaint are held to be ancestral properties of V.P.Venkatesan and the remaining items 6 https://hcservices.ecourts.gov.in/hcservices/ to 14 are declared to be self-acquired properties of V.P.Venkatesan. 27. The core question arises as to whether the properties which V.P.Venkatesan obtained as per the said partition could be termed