IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 07.03.2011 Coram: THE HONOURABLE MR.JUSTICE G. RAJASURIA S.A.No.527 of 2008 and M.P.No.1 of 2008 Dhanalakshmi ..Appellant/Appellant/11thDefendant vs. 1. S.Prabhavathy 2. Bakkia Lakshmi 3. Ragunathan 4. Renuka 5. V.L.Mangesh 6. V.L.Vivekanandan 7. K.R.Thilagam 8. K.V.Balachandran 9. Uma 10.Anitha 11.Balji .. Respondents/Respondents/Plaintiff and Defendants (R9 to R11 brought on record as L.Rs. of the deceased R3 as per order of this Court dated 07.03.2011) This Second Appeal is focussed as against the judgment and decree dated 20.09.2007 in A.S.No.175 of 2006 on the file of IV Additional Judge, City Civil Court, Chennai confirming the decree and judgment dated 13.12.2005 in O.S.No.4716 of 1997 on the file of XVIII Assistant City Civil Court, Chennai. For appellant : Mr.G.Rajan For respondent : Mr.V.Nagaraja Melanta (for R1) Mr.N.A.Kareem (for R2) Mr.V.Raghavachari for M/s J.Abdul Hadi (for R4 to R6) Mr.V.Ramesh (for R7 and R8) https://hcservices.ecourts.gov.in/hcservices/ JUDGMENT This Second appeal is focussed by the Defendant No.11 in the original suit animadverting upon the judgment and decree dated 20.09.2007 passed in A.S.No.175 of 2006 by the IV Additional Judge, City Civil Court, Chennai, confirming the judgment and decree of the XVIII Assistant City Civil Court, Chennai in O.S.No.4716 of 1997, which was suit filed for partition. The parties are referred to hereunder according to their litigative status and ranking before the trial Court. 2. Narratively but precisely, broadly but briefly, the relevant facts absolutely necessary and germane for the disposal of this Second Appeal would run thus: (a) The plaintiffs filed the suit seeking the following reliefs: "(i) For a decree for partition and separate possession of her 1/3rd share in the schedule mentioned properties and if the properties are not capable of the division, to order sale of them and allot 1/3rd share of sale proceeds; (ii) Against the defendants 1 to 4 to render an account of all amounts received and disbursed by them in the business 'Modern Transports' and also the house property No.3, Arthoon road, Royapuram, Madras 13 listed in the schedule hereunder from 7.9.83 till decree; (iii) for declaration that the 3rd to 5thy defendants have no manner of right or interest in any of the properties listed in the schedule hereunder; and (iv) For costs." (extracted as such) (b) D1 and D2 filed the written statement which was adopted by D6 to D8. D5 and D11 filed their written statements separately. D10 filed the written statement adopted by D9. D1 filed the additional written statement which was adopted by D6 to D8. D2, D9 and D10 filed their additional written statements separately. (c) Whereupon issues were framed by the trial Court. (d) During trial, the plaintiff-Prabavathi examined herself as P.W.1 and Exs.A1 to A10 were marked. On the side of the defendants, D.Ws.1 to 4 were examined and Exs.B1 to B74 were marked. 3. Ultimately the trial Court decreed the suit granting one third share each in favour of the plaintiff, D1 and D2. Whereupon, https://hcservices.ecourts.gov.in/hcservices/ only D11 preferred appeal for nothing but to be dismissed by the appellate Court confirming the judgment and decree of the trial Court. 4. Challenging and impugning the judgments and decrees of both the Courts below, D11 filed this Second Appeal on various grounds suggesting the following substantial questions of law: "(a) Whether prolonged cohabitation between a man and woman continuously over four decades will give to rise to legal presumption to establish the marriage between them? (b) Whether mere filing of a document can be relied upon by the Court without any proof of the contents of the document is valid in law? (c) Whether the finding by the appellant court contrary to the documentary evidence (Ex.B72 to B74) is sustainable?" 5. The learned counsel for the plaintiff placing reliance on the grounds of Second Appeal would detail and delineate thus: (a) Both the Courts below failed to take into consideration the fact that D11 happened to be the legitimate daughter born to Varadarajulu and Krishnabai. In fact, Krishnabai happened to be the legitimate first wife of Varadarajulu and during their wedlock, the couple gave birth to the appellant/D11 and also one son and two more daughters, but those children have not been added as parties while the plaintiff Prabavathi filed the suit. (b) Ex.B71 cannot be taken as proof for the reason that marking is different from proving and the plaintiff, D1 and D2 who are claiming to be allegedly the only legitimate children of Varadarajulu should have proved the contents of Ex.B71, but they have not done so. Hence the Courts below misdirected themselves warranting interference in the Second Appeal. (c) Even though the plaintiff, D1 and D2 repeatedly averred as though Krishnabai was earlier married to one Andi Munusamy and that her relationship, if any, with Varadarajulu was an adulterous one, yet they have not chosen to prove that Krishnabai was married to Andi Munusamy. (d) The Hon'ble Apex Court held that the Court should be reluctant to bastardise a child, but both the Courts failed to take into consideration those aspects. (e) Simply because Jagadeeswari, the mother of the plaintiff, D1 and D2 is referred to as the wife of Varadarajulu in Exs.A2(B2), A5, https://hcservices.ecourts.gov.in/hcservices/ and B3 it cannot be presumed that Jagadeeswari was the legitimate wife and that too, when the Courts below gave verdict that Varadarajulu was in the habit of having physical relationship with various ladies. (f) P.W.1-the plaintiff herself admitted that Krishnabai and Varadarajulu lived in the same house along with Jagadeeswari. It is a trite proposition of law that if a man and a woman live continuously as man and wife for several decades, marriage between them should be presumed. But both the Courts below failed to do so. Ex.B72-the Birth Certificate of D11, Ex.B73-the marriage invitation of D11 and B74-the paper publication with regard to the death of Varadarajulu were not properly appreciated by the Courts below. Accordingly, the learned counsel for the plaintiff would pray for setting aside the judgments and decrees of both the Courts below and for dismissing the original suit. 6. Piloting the arguments on the side of R1, R2, R4 to R6, R7 and R8, the learned Advocates in unison would put forth and set forth their points thus: (a) Ex.B71-Power of Attorney was produced by the appellant/D11 herself and got it marked and in such a case without any rhyme or reason on the part of the appellant, she contends as though the contents of Ex.B71 should have been proved by the plaintiff, D1 and D2. If at all the said document was produced by the plaintiff or D1 or D2 and D11 objected to the marking, then the question of proving the contents by them would have arisen. As such both the Courts below correctly and appropriately placed reliance on Ex.B71, wherein there is categorical admission by D4, the brother of D11 that Krishnabai was only the mistress of Varadarajulu and whereas in the same power of attorney it was admitted that Jagadeeswari was the wife of Varadarajulu. (b) Mere joint living would not lead to the inference of marriage between a man and a lady. Here both the Courts below highlighted the point that it is not as though Krishnabai and Varadarajulu lived exclusively in a house and gave birth to children, but here admittedly Krishnabai was living in the house where Jagadeeswari and Varadarajulu were living and in such a case automatically the presumption arising out of long co-habitation cannot be ushered in and both the Courts below appropriately applied the law warranting no interference in the Second Appeal. (c) Exs.B72 to B74 also cannot be taken as conclusive proof to prove the marriage because those certificates of alone would not lead to the inference that there was marriage between the parents and that children born were legitimate ones. https://hcservices.ecourts.gov.in/hcservices/ Accordingly, the learned counsel for the respondents pray for the dismissal of the Second Appeal. 7. On hearing both sides, I am of the considered view that the following substantial questions of law do emerge: (1) Whether both the Courts below failed to take into consideration the prolonged co-habitation of Varadarajulu and Krishnabai and the fact of they having given birth to children as evidenced by Exs.B72 to B74 and whereby failed to draw presumption that there was legitimate marriage between the parents of such children? (2) Whether the averments in Ex.B71 was expected to be proved by the plaintiff or D1 or D2 despite the said document have been marked on the side of the appellant/D11? (3) Whether there is perversity or illegality in the judgments and decree of both the Courts below? 8. I fumigate my mind with the following decisions of the Hon'ble Apex Court: (i) (2006) 5 Supreme Court Cases 545 – HERO VINOTH (MINOR) VS. SESHAMMAL. (ii) 2008(4) SCALE 300 – KASHMIR SINGH VS. HARNAM SINGH AND ANOTHER. (iii) 2009-1-L.W.1 – STATE BANK OF INDIA & OTHERS vs. S.N.GOYAL (iv) (2011) 1 SCC 673 [VIJAY KUMAR TALWAR vs. COMMISSIONER OF INCOME TAX, DELHI] A mere poring over and perusal of those judgments would convey and portray, that the High Court while exercising its power under Section 100 of CPC should see as to whether there is any substantial question of law is involved in the matter. However, after framing such substantial question of law, interference would be possible. Hence, it is the paramount duty of the Court to find out as to whether there is any perversity or illegality on the part of the Courts below in deciding the factual and legal issues involved in the matter. 9. For better appreciation, I am of the considered view that pithily and precisely, avoiding finicky narration the germane facts could be set out thus: https://hcservices.ecourts.gov.in/hcservices/ Indubitably and indisputably, unarguably and undeniably, one Varadarajulu lived with as many as three ladies, namely Krishnabai, Jagadeeswari and Ranganayaki and for that matter even with some other ladies. On the one hand, the plaintiff namely Prabhavathi would contend that her father Varadarajulu legitimately married Jagadeeswari and during their wedlock the plaintiff Prabhavathi, D1 and D2 were born and they are the only legal heirs of Varadarajulu who died during the year 1983. 10. Whereas, D11 the appellant herein, would contend that Krishnabai happened to be the elder sister of Jagadeeswari and both Krishnabai and Jagadeeswari were living in one and the same house along with Varadarajulu. Even though at the initial stage it was contended on behalf of D11, that Jagadeeswari was not the legally wedded wife of Varadarajulu, that it was Krishnabai who was the legal wedded wife of Varadarajulu and that Jagadeeswari simply started living with Varadarajulu, yet subsequently before this Court it was contended that both Krishnabai as well as Jagadeeswari both lived with Varadarajulu, D11 even went to the extent agreeing for treating all the children born to both ladies as legal heirs. 11. D5-Ranganayaki would contend that she is the legitimate wife of Varadarajulu and the children born to her namely D9 and D10 are the legitimate children. However, she after meeting with her waterloo in the trial Court has not chosen to file any appeal and she remained ex parte before the first appellate Court as well as here. 12. At this juncture, I would like to refer to the decision of the Hon'ble Apex Court reported in 2010(7) SCC 717 [ Laxman Tatyaba Kankate and another vs. Taramati Harishchandra Dhatrak]; an excerpt from it would run thus: "24. It is a settled principle of law that before the first appellate court, the party may be able to support the decree but cannot challenge the findings without filing the cross-objections. ..........................." 13. Accordingly, D5-Ranganayaki and her children D9 and D10 who did not file any appeal or second appeal now cannot be taken as having any objection for the preliminary decree passed in favour of the plaintiff, D1 and D2. Wherefore, the finding as against D3, D9 ad D10 became final. It is also to be noted here that D11 claims herself as the legitimate daughter of Varadarajulu and Krishnabai-D3, but D3-Krishnabai and her son D4-Ranganathan have not chosen to contest the matter at all and throughout they remained ex parte. 14. The learned counsel for the appellant/D11 would contend that neither Krishnabai nor Ranganathan was examined before the Court at the instance of the plaintiff or D1 or D2, forgetting for the moment https://hcservices.ecourts.gov.in/hcservices/ that D11 herself has not taken steps to examine those persons. At one point of time it was submitted on behalf of D11 that Krishnabai was aged about 100 years at the time of the trial and hence she could not be examined and D4 even though the brother of D11 was not examined because he was not co-operating with D11. However, the learned Advocates for the plaintiff, D1 and D2 in unison would submit that such contention on the part of the D11 is neither here nor there for the reason that the onus of proof was on the D11 to prove that she is the legitimate daughter of Krishnabai and Varadarajulu, but she has not chosen to take any steps to secure their presence and examine them. I would like to point out that if D11 had taken initiative to examine D3, she could have got an Advocate Commissioner appointed for examining her at the residence itself, because the first appellate Court correctly pointed out that D1 herself admitted that D3 was conscious at the relevant time and she could even walk with hand stick. When such was the position, D11 will not be heard to contend now that Krishnabai could not be examined because of her old age. The best person to speak about the marriage between D3- Krishnabai and deceased Varadarajulu, was Krishnabai herself. But the plaintiff claiming to be the legitimate child of Krishnabai and Varadarajulu had not chosen to examine her. Further more, D4 being the brother of D11 was also not examined. Atleast he could have been summoned as a Court witness and examined before Court at the instance of D11, but that was also not done. 15. In such a case, I could see considerable force in the submission made by the learned counsel for the plaintiff, D1 and D2 that the preponderance of probabilities are in favour of the plaintiff, D1 and D2 who contends that Varadarajulu had only one legitimate wife, namely Jagadeeswari and that was why D3-Krishnabai herself and D4-Ranganathan, the son of Krishnabai refrained from making appearance before the Court. 16. I would like to call up and recollect the trite proposition of law that witnesses might lie, but the circumstances will not lie. Except Prabavathi, her brothers and sisters and her mother Krishnabai have not chosen to contest the matter at all or lay claim over the suit property because obviously and axiomatically, Krishnabai was not the legitimate wife of Varadarajulu. The learned counsel for D11 would contend that the long co-habitation was an admitted fact by P.W.1 herself and in such a case placing reliance on the aforesaid trite proposition of law and the admitted facts, the Courts could have decided the lis in favour of D11. The first appellate Court appropriately and appositely, correctly and convincingly highlighted and pointed out that it is not a simple case of Krishnabai having lived with Varadarajulu, but it is an indisputable and unassailable case that Krishnabai was living in the house where Jagadeeswari and Varadarajulu were living and Krishnabai is none but the elder sister of Jagadeeswari. In such a case unless there is clinching evidence to show that Varadarajulu and Krishnabai got married, the question of https://hcservices.ecourts.gov.in/hcservices/ drawing presumption by invoking Section 112 of the Indian Evidence Act would not arise. 17. At this juncture, I recollect and call up the following decisions: "24. An excerpt from the decision of the Hon'ble Apex Court reported in AIR 1971 SC 2352 (Perumal Nadar (dead) by Legal Representative vs. Ponnuswami Nadar (Minor) would run thus: "12.Nor can we accept the contention that the plaintiff Ponnuswami is an illegitimate child. If it be accepted that there was a valid marriage between Perumal and Annapazham and during the subsistence of the marriage the plaintiff was born, a conclusive presumption arises that he was the son of Perumal, unless it be established that at the time when the plaintiff was conceived, Perumal had no access to Annapazham. There is evidence on the record that there were in 1957 some disputes between Annapazham and Perumal. Annapazham had lodged a complaint before the Magistrate’s court that Perumal had contracted marriage with one Bhagavathi. That complaint was dismissed and the order was confirmed by the High Court of Madras. Because of this complaint, the relations between the parties were strained and they were living apart. But it is still common ground that Perumal and Annapazham were living in the same village, and unless Perumal was able to establish absence of access, the presumption raised by Section 112 of the Indian Evidence Act will not be displaced. 13.In Chilukuri Venkateswarlu v. Chilukuri Venkatanarayana3 in a suit filed by a Hindu son against his father for partition it was contended that the plaintiff was not the legitimate child of the defendant. The defendant relied upon certain documents by which he had agreed to pay maintenance to the plaintiff’s mother and upon a deed gifting a house to her and assertions made in a previous suit that he had no intercourse with her after he married a second wife. The Court in that case observed, following the judgment of the Privy Council in Karapaya v. Mayandi4 that “non-access could be established not merely by positive or direct evidence; it can be proved undoubtedly like any other physical fact by evidence, either direct or circumstantial, which is relevant to the issue under the provisions of the Indian Evidence Act, though as the presumption of legitimacy is highly favoured by law it is necessary that proof of non-access must be clear and satisfactory”, and since on the basis of that proof there was evidence on the record that the plaintiff’s https://hcservices.ecourts.gov.in/hcservices/ mother lived in the house gifted to her by her husband and there was no impossibility of cohabitation between the parties, there was no acceptable evidence of non-access." (emphasis supplied) (ii) An excerpt from the decision of the Hon'ble Apex Court reported in AIR 1993 SC 2295 (Goutam Kundu vs. State of West Bengal and another) would run thus: "21. above is the dicta laid down by the various High Courts. In matters of this kind the court must have regard to Section 112 of the Evidence Act. This section is based on the well-known maxim pater est quem nuptiae demonstrant (he is the father whom the marriage indicates). The presumption of legitimacy is this, that a child born of a married women is deemed to be legitimate, it throws on the person who is interested in making out the illegitimacy, the whole burden of proving it. The law presumes both that a marriage ceremony is valid, and that every person is legitimate. Marriage or filiation (parentage) may be presumed, the law in general presuming against vice and immorality. (emphasis supplied) 22. It is a rebuttable presumption of law that a child born during the lawful wedlock is legitimate, and that access occurred between the parents. This presumption can only be displaced by a strong preponderance of evidence, and not by a mere balance of probabilities. (emphasis supplied) 23. Dukhtar Jahan (Smt) v. Mohammed Farooq this Court held: (SCC p. 629, para 12) “... Section 112 lays down that if a person was born during the continuance of a valid marriage between his mother and any man or within two hundred and eighty days after its dissolution and the mother remains unmarried, it shall be taken as conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten. This rule of law based on the dictates of justice has always made the courts incline towards upholding the legitimacy of a child unless the facts are so compulsive and clinching as to necessarily warrant a finding that the child could not at all have been begotten to the father and as such a legitimation of the child would result in rank injustice to the father. Courts have always desisted from lightly or hastily rendering a verdict and that too, on the basis of slender materials, which will have https://hcservices.ecourts.gov.in/hcservices/ the effect of branding a child as a bastard and its mother an unchaste woman.” (emphasis supplied) 24. This section requires the party disputing the paternity to prove non-access in order to dispel the presumption. “Access” and “non-access” mean the existence or non-existence of opportunities for sexual intercourse; it does not mean actual “cohabitation”. (emphasis supplied) 25. The quintessence of the legal point that could be understood from the aforesaid decisions is that the presumption contemplated under Section 112 of the Indian Evidence Act is only a rebuttable one. It is therefore, just and necessary to extract the relevant Section, viz., Section 112 of the Indian Evidence Act. "112. Birth during marriage, conclusive proof of legitimacy – The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, them other remaining unmarried, shall be conclusive proof that he is the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten." (emphasis supplied) 17. No doubt, the Hon'ble Apex Court unambiguously and unarguably highlighted and spotlighted the proposition that the Court should be reluctant to bastardise a child. While recollecting the said decision, one should not lose sight of the fact that in the process of not bastardising one person, the Court also should not bastardise another person who is not liable to be bastardised. As such I would like to point out here that during the life time of Varadarajulu himself Jagadeeswari was referred to as the wife of Varadarajulu. By way of adding strength to the contention of the plaintiff, D1 and D2 in Ex.B3-the mortgage deed, Varadarajulu, Jagadeeswari and their two children were parties, wherein categorically and candidly it is found exemplified and demonstrated that Varadarajulu acknowledged and treated Jagadeeswari and the children born to them as the legitimate children. This happened in the year 1949 so to say long prior to the arisal of the dispute or litigation so to say it is an ante litem document having evidentiary and probative force of its own. Over and above that it is also an ancient document within the meaning of Section 90 of the Indian Evidence Act. https://hcservices.ecourts.gov.in/hcservices/ 18. No doubt, there are certain documents which would also exemplify and demonstrate that Varadarajulu during his lifetime described Ranganayaki as his wife, but both the Courts below negatived the contention of Ranganayaki and her children and held that they are not the legitimate heirs of deceased Varadarajulu as against which they have not chosen to prefer any objection or appeal and as such this Court need not ponder over those documents. There is no iota or shred, shard or miniscule, pint of jot of evidence available on the side of D11 to demonstrate that Krishnabai was ever referred to by Varadarajulu as his wife even though Krishnabai claims to have lived with him for four decades or so. The reliance placed on the Birth Certificates undoubtedly refer to the parents of those children as Krishnabai and Varadarajulu. Simply because the children were born to them, it cannot be presumed that there was legitimate relationship between the two and that that too in the wake of specific allegation by the plaintiff, D1 and D2 that Krishnabai was already married to