IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 2-7-2008 CORAM THE HONOURABLE MR.JUSTICE M.CHOCKALINGAM AND THE HONOURABLE MR.JUSTICE R.SUBBIAH O.S.A.No.34 of 2002 1.Chandrammal 2.S.Valli 3.S.Geetha 4.S.Balasubramani 5.S.Reshini 6.S.Shreemathi 7.S.Kannan 8.S.Uma 9.S.Laxminarayanan .. Appellants vs 1.S.Sankar (died) 2.S.Dayalan 3.S.Laxminarayanan 4.S.Baskaran 5.S.Prabakran 6.S.Jagannathan 7.S.Bhavani 8.S.Gajalaxmi 9.C.Vengamma 10.C.Mala Kondiah 11.C.Malayadri 12.P.Varamma 13.S.Saraswathi 14.S.Mahesh 15.S.Suresh (RR13 to 15 brought on record as LRs of the deceased first respondent vide order of Court dated 19.10.2005 made in CMP Nos.14750 & 14751/2005) .. Respondents Original side appeal preferred under Order XXXVI Rule (1) of O.S. Rules read with Clause 15 of Letters Patent against the judgment and decree dated 10.12.2001 made in C.S.No.616/87. For Appellants : Mr.T.R.Rajagopalan Senior Advocate for Mr.T.R.Rajaraman For Respondent : Mr.K.S.Viswanathan for RR1 to 8 & 13 to 15 Mr.P.L.Narayanan for RR9 to 12 https://hcservices.ecourts.gov.in/hcservices/ JUDGMENT (Judgment of the Court was delivered by M.CHOCKALINGAM, J.) This appeal has arisen from the judgment of the learned Single Judge in C.S.No.616 of 1987 whereby a suit filed for partition by the appellants/plaintiffs was dismissed. 2.The plaintiffs sought the said relief with the following allegations: (a) The marriage between T.E.Sivanesan Chettiar and the first plaintiff took place in the year 1948. The plaintiffs 2 to 8 were the children of the first plaintiff and Sivanesan Chettiar. They have got another son namely the 10th defendant, who, at the time of filing the suit, was outside India. The said Sivanesan Chettiar already married one Amirthavalli Ammal alias Babi Ammal as his first wife even prior to 1945. He had children through the said Amirthavalli Ammal who were shown as defendants 1 to 8. The first plaintiff is the daughter of a leading lawyer of Nagapattinam by name one V.Venkatachari, who was financially affluent. At the time of marriage, lot of jewels and various gifts were given to her apart from huge sums of money. After the marriage, she handed over the moneys which she received from her father, to him for the purpose of investing in his business and also for the purchase of properties. Except item 1 in 'A' Schedule, all the properties were purchased though in the name of Sivanesan Chettiar, but out of the moneys given by the first plaintiff. She had also given a sum of Rs.40,100/- to him in the year 1976 for the purchase of property. Sivanesan Chettiar received the said sum representing that the property would be purchased in both their names; but, subsequently, the first plaintiff came to know that the same was purchased only in his name. Thus, she was able to see the attitude of Sivanesan Chettiar thoroughly changed. (b) Though she was residing in the house shown as item No.1 of 'A' Schedule, Sivanesan Chettiar executed a Will in Document No.39/77 in respect of item No.1 of 'A' Schedule in order to satisfy his first wife. Having executed the Will, without her knowledge, he has subsequently revoked the same also. In both the documents, the first plaintiff is referred to as wife of Sivanesan Chettiar. The 9th defendant had filed a suit for ejectment in O.S.No.116/86 alleging that item No.1 of 'A' Schedule was sold to him by a registered sale deed on 24.2.1983. Sivanesan Chettiar died intestate in the year 1985, and by operation of law, the plaintiffs are entitled to 21/85th share in the schedule mentioned properties. They were enjoying the same, and hence, the suit was to be decreed. 3.The suit was contested by the defendants inter alia stating that Sivanesan Chettiar never married the first plaintiff in 1948 as the second wife; that it was a deliberate falsehood; that even assuming that such a marriage has gone through, it was a void one, and hence, it would not entitle her to the status of a wife in law conferring any rights as claimed by her; that even as per the https://hcservices.ecourts.gov.in/hcservices/ plaintiffs' case, Sivanesaan Chettiar already married one Amirthavalli Ammal even before 1945, and the defendants 1 to 8 are the children born out of the lawful wedlock; that under the circumstances, the said Amirthavalli Ammal and the children who are the defendants herein, were the legal heirs of Sivanesan Chettiar to the exclusion of all others; that it was a tissue of falsehood to state that there was a marriage between Sivanesan Chettiar and the first plaintiff and at the time of the marriage, lot of jewels, gifts and sums of money were given to her, and she gave all those amounts to him for improving the business of Sivanesan Chettiar and also for the purchase of properties in her name; that it is true that Door No.7 (New Door No.31), Sivaraman Street, Triplicane, Madras, is an ancestral property, and hence, the plaintiffs have no right and could not lay any claim over the same; that the averments that Sivanesan Chettiar was living with the first plaintiff and he executed a Will in 1977 bequeathing the property in her favour and subsequently the same was also revoked were all nothing but false; that the first plaintiff was not having any good relationship with Sivanesan Chettiar; that the first plaintiff having already secured as much as she could from him, taking advantage of his death has adopted different kinds of tactics in order to secure properties belonging to the defendants, and thus, either the plaintiffs or the 10th defendant cannot claim any right over the suit properties; that it is true that she was permitted to live in a portion of the property mentioned as item No.1 in 'A' Schedule, for enabling him to visit in proximity of neighbourhood; that taking advantage of the same, now she has come along with the children with the false suit claiming that she was the second wife of Sivanesan Chettiar; that all the plaintiffs were out of possession of the plaint Schedule properties; that under such circumstances, the averment found that they were in joint possession of the property was nothing but false, and hence, the suit was to be dismissed. 4.On the above pleadings, four issues were framed. During trial, 3 witnesses were examined on the side of the plaintiffs, and 2 were examined on the side of the defendants. The plaintiffs have marked 10 documents, while the defendants have marked 11 documents. On consideration of the evidence available both oral and documentary, the learned Single Judge took the view that the plaintiffs are not entitled for the claim and hence, dismissed the suit. Hence, this appeal at the instance of the plaintiffs. 5.The only point which would arise for determination in this appeal, is whether the plaintiffs are entitled for a partition of the suit mentioned properties along with the vacant possession as claimed by them. 6.Advancing the arguments on behalf of the appellants, the learned Senior Counsel Mr.T.R.Rajagopalan would submit that the plaintiffs adduced sufficient proof in order to establish the factum of marriage between the first plaintiff and Sivanesan Chettiar; that the first plaintiff herself was examined as a witness; that from her evidence, it would be quite clear that the marriage between herself and Sivanesan Chettiar had actually taken place in 1954; that she is the best person to speak about that fact; that she has deposed to that fact; that though the defendants have pleaded in the written https://hcservices.ecourts.gov.in/hcservices/ statement that the marriage was void, they had not disputed about the factum of marriage; that even D.W.1 had not disputed the marriage in his evidence; that the first plaintiff and Sivanesan Chettiar had lived for nearly three decades; that the long cohabitation was also proved, which would be indicative of the factum of marriage; that Sivanesan Chettiar had executed a Will as found in Ex.P2; that subsequently, he has also revoked the same under Ex.P3; that a perusal of Ex.P2 would indicate that the 7th item of property was reserved for the second wife namely the first plaintiff herein; that while he revoked the same by Ex.P3, on more than one occasion he has referred to Chandrammal, the first plaintiff, as his wife; that both these documents would clearly indicate the factum of marriage; that apart from that, D.W.1 has categorically admitted the execution of the Will and also the revocation; that he has also deposed that they were in possession of the property pursuant to the revocation made under Ex.P3; that admittedly, the first plaintiff had 8 children who are the plaintiffs 2 to 8 and the 10th defendant, through Sivanesan Chettiar; that the marriage invitation cards were placed which would clearly indicate that it was in the name of Sivanesan Chettiar inviting for the marriage of the plaintiffs 2 to 6 at different points of time describing them as daughter or son as the case may be; that the learned Single Judge has placed undue weight to the inconsistencies found as to the year and place of marriage; that even during the life time of Sivanesan Chettiar, the first plaintiff had issued a notice under Ex.D1 wherein she was described as the wife of Sivanesan Chettiar; that he has issued a reply wherein he has not denied that fact; that she has also filed a maintenance case making a demand of maintenance for herself and for her four minor children before the Judicial Magistrate; that it went in their favour; and that Sivanesan Chettiar took it on revision before this Court wherein the maintenance in respect of the minor children was ordered, though it was denied to the first plaintiff stating that she has not acquired the status of wife. 7.Added further the learned Senior Counsel that there was sufficient proof adduced by the plaintiffs' side as to the factum of marriage between Sivanesan Chettiar and the first plaintiff; that it is true that since the marriage had taken place in the year 1954 when the first wife was alive, she could not claim the status of wife or ask for a partition in the properties of her husband; that so long the factum of marriage between herself and Sivanesan Chettiar was proved by sufficient evidence, she was the second wife and the children born to her who are the plaintiffs 2 to 8 and the 10th defendant, were illegitimate children who are entitled to have the respective share by operation of law, and hence, the suit has got to be decreed to that extent. 8.In support of his contention, the learned Senior Counsel relied on the following decisions: (i) 100 L.W. 58 (SEERANGAMMAL (DIED) AND OTHERS V. E.B. VENKATASUBRAMANIAN AND OTHERS); (ii) 1998-2-L.W. 348 (SIVALINGAM V. SAKTHIVEL AND ANOTHER) and (iii) 2002-4-L.W. 783 (A.MURUGESAN V. ANGAMUTHU GOUNDER AND OTHERS). https://hcservices.ecourts.gov.in/hcservices/ 9.Arguing for the for the respondents 1 to 8 and 13 to 15, the learned Counsel would submit that the plaintiffs have not proved their case; that it is true that the first plaintiff was examined as P.W.1; but, as far as the factum of marriage is concerned, it remained disproved by her own evidence; that when the plaintiffs came forward to get a decree of partition alleging that there was a marriage between the first plaintiff and Sivanesan Chettiar in the year 1948, a duty was cast upon the plaintiffs to prove the marriage; that so long there is no proof or material to substantiate the fact that the first plaintiff was the legally wedded wife of Sivanesan Chettiar, she could not make any claim since she had no status of wife; that as far as the other plaintiffs 2 to 8 and the 10th defendant were concerned, if they were to make a claim for partition, they must prove the factum of marriage; but, in the instant case, not only the proof placed was insufficient, but also there was no proof at all; that the only evidence that was adduced was P.W.1 and her own sister P.W.3; that as far as the evidence of P.W.1 is concerned, according to her, Sivanesan Chettiar married her in June 1954; but, as could be seen from the averments in the plaint, it was specifically stated that the marriage had taken place in the year 1948; that at the time of the maintenance proceedings, it was mentioned as July 1954; that the marriage is an important and significant incident in a human life, and certainly it should have caused a dent in the memory; that if to be so, there was no possibility of coming out with such inconsistency; that even the place of marriage at one place is mentioned as Tiruporur, and in the other, as Tiruthani; that it is also found to be different; that under the circumstances, the time and place of marriage is found to be discrepant with full inconsistency, and hence, the learned Single Judge thought it fit to reject the evidence and found that the factum of marriage as put forth by the plaintiffs could not be accepted. 10.The learned Counsel would further add that the plaintiffs in order to substantiate their case, relied on number of invitations alleged to have been issued by Sivanesan Chettiar for the marriages of the plaintiffs 2 to 6; but, these invitations should have been produced in order to prejudice the mind of the Court; that if such a marriage has actually taken place as put forth by the appellants, at least one could have been examined in that regard, but not done so; that these are all created for the purpose of getting such a relief; that apart from that, as far as the factum of marriage is concerned, had it taken place as put forth by the plaintiffs' side between the first plaintiff and Sivanesan Chettiar, at least either the third person or the relations who attended the marriage, should have been examined, but not done so; that the plaintiffs before the trial Court placed much reliance on Ex.P2, the Will, and also Ex.P3, the revocation of the Will; that these documents have been rightly rejected by the learned Single Judge for the simple reason that they were not probated; that even for the collateral purpose, they cannot be taken as evidence; that the evidence of D.W.1 even if it is taken as an admission, cannot have any evidentiary value, and that has got to be rejected. 11.Added further the learned Counsel that there was originally a notice issued by Chandrammal, the first plaintiff, to her husband https://hcservices.ecourts.gov.in/hcservices/ Sivanesan Chettiar through a lawyer wherein it was stated "your wife"; that merely because that has not been denied by him, it cannot be taken as a proof of marriage; that there was originally a case of maintenance filed by the first plaintiff for herself and for minor children in the year 1979; that the same was challenged before this Court by Sivanesan Chettiar; that the status of wife could not be considered as per the orders passed by this Court in the civil revision petition; that even assuming that the said proceedings have been challenged by Sivanesan Chettiar, he has not recognized the first plaintiff as his wife; that in the instant case, there is no proof for long cohabitation; that it is true that 8 children were born; that the same would indicate that she is only a concubine; and that in the absence of any proof of marriage, they cannot make a claim as illegitimate children. 12.Relying on a decision of this Court reported in 1995-1-L.W. 487 (MUNUSWAMI GOUNDER AND ANOTHER V. M.GOVINDARAJU AND FOUR OTHERS), the learned Counsel would submit that to get the relief for the plaintiffs 2 to 8 under Sec.16 of the Hindu Marriage Act in a case where the marriage is void, as illegitimate children, they must clearly prove the factum of marriage; that so long the factum of marriage is not proved, they could not have the benefit of that provision; that in the instant case, there was no proof at all; that it was actually considered by the learned Single Judge, and the entire case was rejected, and accordingly, the judgment has got to be sustained. 13.The learned Counsel appearing for the 9th defendant would submit that the property was actually sold to him before the litigation by way of a sale deed executed by Sivanesan Chettiar along with the other children; that the property actually stood in the name of Sivanesan Chettiar; that under the circumstances, the plaintiffs have unnecessarily dragged the 9th defendant to the Court; that the trial Court has recorded a finding that the title originally vested as per the sale deed on the 9th defendant would continue to have its force, and hence, it has got to be sustained. 14.The Court paid its anxious consideration on the submissions made and looked into all the materials available. 15.As could be seen above, the plaintiffs who are the appellants herein, sought the relief of partition in 'A' and 'B' Schedule properties annexed to the plaint. The only property shown in 'B' Schedule is, admittedly, an ancestral property, and hence, the plaintiffs could not lay any claim over the same. Though it is averred by the plaintiffs in the plaint that at the time of marriage, the first plaintiff had received lot of moneys and gifts, and after the marriage of the first plaintiff with Sivanesan Chettiar, all those moneys and gifts were handed over to him for augmentation of his business and also for the purchase of property, it is further averred that the properties purchased have become joint family properties, and hence, no claim was made. Therefore, that part of the plaint does not arise for consideration. 16.Even as per the averments, the said Sivanesan Chettiar married one Amirthavalli Ammal prior to 1945, and she was also alive https://hcservices.ecourts.gov.in/hcservices/ at the time of the alleged marriage between Sivanesan Chettiar and the first plaintiff. Hence, the first plaintiff could not make the claim as wife. So long as she is not able to prove that either she is the wife or having the status of wife, she could not make any claim as wife in the property of Sivanesan Chettiar. In such circumstances, her claim for the property has got to be negatived. Accordingly, it is rejected. 17.As far as the other plaintiffs 2 to 8 are concerned, they could make a claim under Sec.16 of the Hindu Marriage Act, if they were able to show that they were illegitimate children, and whether the factum of marriage between Sivanesan Chettiar and the first plaintiff is proved. It would be fit and proper to reproduce Sec.16 (1) of the Hindu Marriage Act as follows: "16.Legitimacy of children of void and voidable marriages:- (1) Notwithstanding that marriage is null and void under Section 11, any child born of such marriage, who would have been legitimate if the marriage had been valid, shall be legitimate, whether such child is born before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976), and whether or not a decree of nullity is granted in respect of that marriage under this Act and whether or not the marriage is held to be void otherwise than on a petition under this Act." 18.In order to get the benefit of the above provision, the plaintiffs 2 to 8 have to prove the factum of marriage between the said Sivanesan Chettiar and the first plaintiff. In the instant case, the plaintiffs came forward with the specific allegations that the marriage had taken place in the year 1948. But, some discrepancy is found in the evidence as to the time and place of marriage. The Court has to see the totality of the circumstances which attended over the case. This Court is able to see number of circumstances which would indicate that such a marriage should have taken place between Sivanesan Chettiar and the first plaintiff. 19.Firstly, in one of the properties which belonged to Sivanesan Chettiar, she was permitted to reside and that too in near vicinity. It is also categorically stated in paragraph 11 of the written statement "permitting her to live in a portion of the property mentioned as item 1 in Schedule 'A' of the plaint for enabling him to visit in proximity of neighbourhood". According to the first plaintiff examined as P.W.1, the marriage had taken place between herself and Sivanesan Chettiar. The best piece of evidence could be from the mouth of the first plaintiff or from Sivanesan Chettiar. Admittedly, Sivanesan Chettiar died in the year 1985, and he was not alive at the time of the proceedings. It is also an admitted position that the first plaintiff had got 8 children who were plaintiffs 2 to 8 and also the 10th defendant through Sivanesan Chettiar. The factum of parentage though specifically averred, is not denied in the entire written statement, and thus, the fact that those children were born to the first plaintiff through Sivanesan Chettiar stood proved. It could also be seen that for nearly 3 decades they have been living together, and this would be indicative of the long cohabitation between them. https://hcservices.ecourts.gov.in/hcservices/ 20.According to the plaintiffs, Sivanesan Chettiar executed Ex.P2, the Will, and also Ex.P3, the revocation. The plaintiffs relied on the documents to show that as far as Ex.P2, the Will, was concerned, it is found that the 7th item of property was reserved for his second wife namely the first plaintiff herein, and as far as Ex.P3, the revocation, is concerned, in more than one place the first plaintiff Chandrammal is shown as his wife, and thereby, Sivanesan Chettiar clearly expressed his mind that he has got other wife also. As far as these two documents are concerned, the learned Counsel for the respondents 1 to 8 and 13 to 15 vehemently opposed that it cannot have any evidentiary value for the reason that the Will was not probated and therefore, no evidentiary value could be attached. This contention cannot be countenanced for the simple reason that originally Sivanesan Chettiar had executed a Will, and subsequently, the Will had become revoked. Once the Will has become revoked, thereafter there was no reason or circumstance to approach a Court for probating the same. This Court is able to see an admission made by D.W.1. He has categorically deposed that Sivanesan Chettiar executed Ex.P2, the Will, and also revoked by Ex.P3, and they have been in possession pursuant to the revocation made under Ex.P3. To this extent, this admission would be available to the plaintiffs to indicate that Sivanesan Chettiar had executed the Will and also the revocation. 21.Now, at this juncture, it is pertinent to point out that it is not in controversy that the plaintiffs 2 to 8 and the 10th defendant were born to the first plaintiff through Sivanesan Chettiar. During the life time of Sivanesan Chettiar, the marriage of the plaintiffs 2 to 6 had taken place. The invitation cards have been placed and marked which were actually in the name of Sivanesan Chettiar as the invitor and issued to the third parties wherein those plaintiffs have been mentioned as the son or the daughter as the case might be. 22.Apart from the above, during the life time of Sivanesan Chettiar due to the strained relationship, the first plaintiff filed a maintenance case in M.C.No.1181/79 before the XII Metropolitan Magistrate, Madras, and it was also for herself and on behalf of four minor children. The same was ordered on contest, and it also culminated in CRP proceedings before this Court. The order in that revision is also perused which would clearly indicate that nowhere it was to the effect that Sivanesan Chettiar has in any way denied the marriage or has challenged the status. Further, Ex.P2, the Will, Ex.P3, the revocation, all the invitations issued by Sivanesan Chettiar and the maintenance proceedings were all anterior in point of time, and they have come into existence even before the controversy that has arisen between the parties. This Court is of the considered opinion that those documents have got to be given due weight to which they deserve. 23.In the instant case, it is