IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:19.9.2008 Coram: THE HONOURABLE MR.JUSTICE G.RAJASURIA A.S.NO.1325 1995 1.Kuppan @ Gopal 2.K.P.Subramanyam .. Appellants/Plaintiffs vs. 1.Kuppusamy Gounder 2.Pappal 3. Govindasamy 4.Pappal @ Pachayee 5.Panjali 6.Chinnaponnu 7.Mayiliammal .. Respondents /Defendants Appeal filed under sec.96 of C.P.C preferred against the judgment and decree dated 23.8.1993 passed in O.S.No.173 of 1985 by the Subordinate Judge, Sankari. For Appellants : Mrs.P.T.Asha for M/s.Sarvabhauman Associates For Respondents : M/s.R.Subramanian JUDGMENT This appeal is focussed as against the judgment and decree dated 23.8.1993 passed in O.S.No.173 of 1985, which is a suit for partition, by the Subordinate Judge, Sankari. For convenience sake, the parties are referred to here under according to their ligitative status before the trial Court. 2. The portrayal and parodying of the case of the plaintiffs, pithily and precisely, as stood exposited from the plaint, could be as under: (a) D1-Pachayanna Gounder and his wife Kuppayee gave birth to D2- their son, D5, D6, D7 and D8-their daughters. D4 is the son of D2. After the death of the said Kuppayee, D1 married D3, the younger sister of the deceased Kuppayee and during the wed lock, they gave birth to the plaintiffs. (b) The suit 'A' schedule property happened to be the ancestral property of D1, who got it in the partition as per Ex.A1-the partition deed dated 27.2.1950, which emerged between D1 and his https://hcservices.ecourts.gov.in/hcservices/ brother Periyanna Gounder. (c) From out of the income generated from the 'A' scheduled property D1 purchased the 'B' Scheduled property. Accordingly, plaintiffs 1 and 2 and D1 and D2 are each entitled to 1/4th share in the suit properties. (d) 'C' scheduled movable properties are also belonged to the joint family and accordingly, the plaintiffs are entitled to 1/4th share each. (e) D1 developed mental illness even 20 years anterior to the filing of the suit and ever since that time, he was not capable of understanding things properly. Taking undue advance of D1's mental illness, D2 got executed some fictitious deeds from him, which are void ones. (f) Nine years before the filing of the suit, D1 tortured and drove away D3 from the matrimonial home. D2, acting as svengali over D1, got executed from him-the registered settlement deed in favour of D4, concerning the suit properties. By using the same influence D2 stage-managed as though D1 created a mortgage in favour of Co- operative Land Market Bank, Omalur in respect of the suit properties, even though the suit properties were fetching an annual income of Rs.5000/-, (g) the plaintiffs' request for amicable partition ended in a fiasco, whereupon the suit was filed for partition. 3. Remonstrating and refuting, gainsaying and contradicting the allegations/averments in the plaint, D1 during his life time filed the the written statement-he died during the pendency of the suit-and the same was adopted by D2, the warp and woof of them would run thus: (i) The plaintiffs are not the biological sons of D1. No marriage took place between D1 and D3 and there was no marital relationship also between them. In fact, the plaintiffs 1 and 2 are the sons of the couple, namely, Semmanna Gounder and D3. Matrimonial dispute erupted between Semmanna Gounder and D3, whereupon D1 helped plaintiffs 1 and 2 in their studies. (ii) The 'A' scheduled property is not the ancestral property of D1. 'A' schedule property and one other property originally belonged to D1's mother Chinnammal and her property alone was got partitioned as per Ex.A1 between D1 and his brother Periyanna Gounder. (iii) 'B' Schedule property is the self-acquired property of D1, who by undertaking cultivation of lands on lease basis ever since 1945 for about 10 years, earned income and out of that he purchased the 'B' Scheduled property. https://hcservices.ecourts.gov.in/hcservices/ (iv) the allegations in the plaint to the contrary are all false. The marriage between D3 and Semmana Gounder subsisted till the death of Semmanna Gounder, who died 10 years anterior to the filing of the suit. (v) 'B' Schedule property was gifted by D1 to his grand son-D4 vide registered Settlement Deed dated 30.3.1965 and ever since the date of such settlement D4 has been in possession and enjoyment of the said property. Accordingly, D1 and D2 prayed for the dismissal of the suit. 4. D3 filed the written statement in support of the case of the plaintiffs by contending that the marriage between D3 and Semmanna Gounder got dissolved in the customary way by return of 'Thali' to him and thereafter she married D1 and during the wedlock she gave birth to the plaintiffs. 5. D1 filed additional written statement, which was adopted by D2 and D4, the gist and kernal of them would run thus:- D1 helped the plaintiffs to get themselves admitted in school, as their guardian and not as their father. 6. One other additional written statement filed by D2, which was adopted by D4 and D5, would run thus: D1 executed the Gift Settlement Deed dated 30.3.1965 in favour of D4 gifting the suit properties, which happened to be the self- acquired properties of the settlee. The plaintiffs are not entitled to any share. 7. The second plaintiff filed the reply, which was adopted by the first plaintiff, the pith and marrow of them would run thus:- The allegations/averments in the written statements are all false. The marriage between D3 and Semmanna Gounder was dissolved in the customary way by return of 'thali' by the wife to the husband and subsequently D3 got married D1 at Kottai Mariammal Koil, Omalur, as solemnized by the Poojari and during the wed lock the plaintiffs were born to them. D1 got the plaintiffs admitted in school in his capacity as their father and not as their guardian. Accordingly, the plaintiffs prayed for setting aside the judgment and decree of the trial Court and for decreeing the suit. 8. The trial Court framed the relevant issues. During trial the second plaintiff examined himself as P.W.1 along with P.W.2 to 5 and Ex.A1 to Ex.A10 were marked on the plaintiffs' side. On the side of the defendants the 3rd defendant examined herself as D.W.1. The 2nd https://hcservices.ecourts.gov.in/hcservices/ defendant examined himself as D.W.2 and the 4th defendant was examined as D.W.3 along with D.W.4, 5 and 6 and Ex.B1 to Ex.B21 were marked. 9. Ultimately, the trial Court dismissed the suit. Being dis- satisfied with and aggrieved by the judgment and decree of the trial Court, the plaintiffs filed this appeal setting out various grounds, the nitty-gritty of them would run thus:- (a) ignoring the testimony of D.Ws.1 to 5 the trial Court disbelieved the theory of customary divorce, which emerged between D3 and Semmanna Gounder. (b) The trial Court was wrong in holding that the plaintiffs have not proved that they are the legitimate children of D1. (c) the trial Court failed to adhere to the trite proposition that long cohabitation between a male and female would lead to the presumption of marriage between them as the status that of husband and wife. (d) the trial Court also has not considered that Ex.B14- Settlement Deed was not proved in accordance with law. (e) The trial Court failed to consider that D3 was given in marriage to Semmana Gounder, even before she attained puberty and that she did not live with him as his wife at all. Accordingly, the plaintiffs prayed for setting aside the judgment and decree of the trial Court and for decreeing the original suit. 10. The points for consideration are as to : (i) Whether the plaintiffs are the biological legitimate children of D1 and D3? (ii) Whether the suit properties are the ancestral properties of the co-parcenary? and if so, whether the Settlement Deed Ex.B14-dated 30.3.1965 is valid and whether it was proved in accordance with law? (iv) Whether the plaintiffs are entitled to get the original suit decreed in their favour? 11. Point No.(i): Indubitably and indisputably D3 got married to Semmanna Gounder and the parties are Hindus. There is no Court decree of divorce, dissolving the said marriage between D3 and Semmanna Gounder, who died only on 2.2.1964, as revealed by Ex.B3-the death certificate. In this factual matrix it has to be seen as to when the plaintiffs were born. 12. Ex.B1-is the certificate issued by the Headmaster of the Panchayat Union Middle School, Kottagoundampatti, which would refer https://hcservices.ecourts.gov.in/hcservices/ to the first plaintiff as the son of Semmanna Gounder and the guardian's name is found mentioned therein as Pachayanna Gounder(D1); whereas the second plaintiff is found described therein as the son of D1 and the guardian's name is specified as D3. 13. Ex.A3-is the SSLC Book relating to the second plaintiff, which would reveal that Pachayanna Gounder affixed his thumb impression and in that column he was described as the father and the date of birth of the second plaintiff was found specified as 1.6.1953. 14. Ex.A4 is the birth certificate of the second plaintiff, which would reveal that he was born on 1.4.1953. As such, there is slight discrepancy relating to the month, but regarding the year of birth is concerned, there is no discrepancy and in that birth certificate D1 and D3 are shown as the parents of the second plaintiff. 15. Ex.B2 is the certificate issued by the Headmaster of Panchayat Union Middle School, Kottagoundampatti, which would demonstrate that the first plaintiff was born on 19.6.1958 and his father's name is found specified as Semmanna Gounder and his guardian's name is mentioned as Pachayanna Gounder(D1). 16. As such both sides filed documents as set out supra relating to the parentage of the plaintiffs. At this juncture my mind is redolent with the following decisions of the Honourable Apex Court: (i) (1975) 2 SCC 564 (Lala Satyanarain Prasad vs. Gadadhar Ram) and (ii) 2006 AIR SCW 2648 ( Ravinder Singh Gorkhi vs. State of U.P.). Certain excerpts from the above decisions would run thus: (1975) 2 SCC 564 : "7. The High Court rightly did not place any reliance on the certificate. The truth of the contents of the certificate could not be proved by a clerk who only proved the handwriting on the certificate. The Head Master, who issued the certificate, was not examined. The original admission register on the basis of which the certificate was given was not proved. The clerk, who proved the handwritings of the certificate, could not say who made the original entry in the admission register." 2006 AIR SCW 2648: "16. The purported school leaving Certificate was sought to be proved by Chandra Pal Singh, Headmaster of the Primary Pathshala, Hajratpur. In his cross-examination, he categorically stated that the date of birth of the appellant might have been disclosed by the appellant at the time of admission. He did not have any personal knowledge with https://hcservices.ecourts.gov.in/hcservices/ regard thereto. No enquiry was made as regards the age of the appellant while he was admitted in the institution. He accepted that it was quite possible that the age disclosed by the guardian may be more or less. 17. The School leaving Certificate was said to have been issued in the year 1998. A bare perusal of the said Certificate would show that the appellant was said to have been admtited on 01.08.1967 and his name was struck of from the roll of the institution on 6.5.1972. The said school leaving certificate was not issued in ordinary course of business of the school. There is nothing on record to show that the said date of birth was recorded in a register maintained by the school in terms of the requirements of law as contained in Section 35 of the Indian Evidence Act. No statement has further been made by the said Headmaster that either of the parents of the appellant who accompanied him to the school at the time of his admission therein made statement or submitted any proof in regard thereto. The entries made in the school leaving certificate, evidently had been prepared for the purpose of the case. All the necessary columns were filled up including the character of the appellant. It was not the case of the said Headmaster that before he had made entries in the register, age was verified. If any register in regular course of business was maintained in the school; there was no reason as to why the same had not been produced. 21. Determination of the date of birth of a person before a court of law, whether in a civil proceeding or a criminal proceeding, would depend upon the facts and circumstances of each case. Such a date of birth has to be determined on the basis of the materials on records. It will be a matter of appreciation of evidence adduced by the parties. Different standards having regard to the provision of Section 35 of the Evidence Act cannot be applied in a civil case or a criminal case." 17. A mere perusal of those decisions would highlight and spotlight the fact that mere marking of certificates issued by School authorities are not sufficient, but they should be proved by summoning the relevant registers and also examining the authorities concerned. But in this case it was not done so. However the plaintiffs even though produced Ex.A3 and Ex.A4 to prove the paternity of the second plaintiff, for reasons known to them, they have not chosen to produce evidence relating to the paternity of the first plaintiff. Ex facie those documents would reveal that the document filed on the plaintiffs side as well as the defendants side would unambiguously and unequivocally highlight the fact that the first plaintiff was born to Semmanna Gounder and the second plaintiff https://hcservices.ecourts.gov.in/hcservices/ was born to Pachayanna Gounder(D1). 18. The trial Court has also adverting to such documents and evidence held that there is enough material to come to the conclusion that the first plaintiff was born to Semmanna Gounder and the second plaintiff was born to Pachayanna Gounder(D1). Over and above that, it is an admitted case of D1 himself in his written statement, which he filed during his life time and it was not disputed by the other defendants, that there arose matrimonial dispute between D3 and her husband Semmanna Gounder, whereupon D3 sought the help of D1 and it was D1 who helped the plaintiffs in their educational pursuit. The preponderance of probabilities would govern the adjudication in civil cases and the probabilities coupled with the documents on either side tend the Court to arrive at the conclusion that the first plaintiff was born to Semmanna Gounder and the second plaintiff was born to D1. 19. Absolutely there is no exiguous or iota of evidence to demonstrate that D3 was given in marriage to Semmanna Gounder even while she did not attain puberty and that she did not live with him etc. Had really the first plaintiff not been born to D3 and Semmanna Gounder then in the documents referred to supra such description of the first plaintiff and second plaintiff as found detailed therein would not have emerged. 20. The core question arises as to whether during the life time of Semmanna Gounder it could be taken that D3 and D1 validly got married. 21. Apparently my above discussion, based on documentary evidence, would exemplify that Semmanna Gounder died long after the birth of the two plaintiffs and in such a case, if at all the plaintiffs should succeed, they must be in a position to show that there was valid divorce between D3 and Semmanna Gounder. But in this case, admittedly there was no Court decree of divorce dissolving the marriage of D3 and Semmanna Gounder. 22. It is common or garden principle in Hindu Law that during the life time of the husband, the wife cannot marry one other person and that is the legal position both before the Hindu Marriage Act and after the Hindu Marriage Act. The customary divorce as put forth by D3 is something which she ought to have proved or the plaintiffs should have proved, but they have not done so. There is nothing to demonstrate that in their community there existed a customary practice of divorce. Even though on the plaintiffs' side along with the second plaintiff, P.Ws.2 to 5 were examined but there is no clinching evidence to prove customary divorce. The falsity of P.W.2's evidence could readily be seen from his deposition that he would narrate as though D3 got married for the first time Semmanna Gounder and within six months, she married for the second time. The documentary evidence relied on by both sides are totally antithetical https://hcservices.ecourts.gov.in/hcservices/ to such a version. The alleged marriage between D3 and D1 has not been proved by producing any receipt from the temple, namely, Kottai Mariamman Temple referred to in the written statement of D3, where the marriage was claimed to have been solemnized. The comments offered to disbelieve the evidence of P.W.2 would also be applicable as against the depositions of P.W.3 and P.W.5. 23. P.W.4-Meenakshi Sundaram claiming to be the Headmaster of the Panchayat Union Middle School of Kottagundampatti, without any reference to record, would speak as though he knew about the family of D1 and the relationship between D1 and D3 and that he issued the Transfer Certificate relating to the first plaintiff. Quite artificially he would depose that the first plaintiff is the son of Pachayanna Gounder, without referring to any records. 24. Had really the contesting defendants wanted to project a false case then they would have even projected as though P2 born to Semmanna Gounder. But in all fairness they produced documentary evidence as set out supra showing that the first plaintiff was born to Semmanna Gounder and the second plaintiff was born to D1. Even though P.W.2, P.W.3 and P.W.5 simply stated as though there was customary divorce, they have not specified when it took place and when the alleged marriage between D1 and D3 took place. 25. Even though in the written statement of D3 it is found spelt out that the alleged marriage between D1 and D3 took place in Kottaimariammal Temple at Omalur and that Poojari of the temple solemnized the marriage, nonetheless no evidence was adduced in that regard. The plaint averments are vague as vagueness could be relating to the alleged marriage between D1 and D3. 26. Even though it is a trite proposition that continuous cohabitation between a male and female as husband and wife in the eye of the general public and more specifically the near and dear would lead to the presumption of legitimate relationship between the two, nonetheless there should be clinching evidence to the effect that they were treated so by the community and that neither of them had any legal disability to have legitimate marital relationship between them. 27. In this case, admittedly D3, till the death of Semmanna Gounder remained as his wife and in such a case the plaintiffs and D3 cannot be allowed to contend that during the life time of Semmanna Gounder D3 had legitimate marital relationship with D1 and gave birth to P2 or any children for that matter. In view of my finding above Section 16 of the Hindu Marriage Act cannot be pressed into service by even P2. Hence, the trial Court was right in its finding, which is based on au fait with law and au courant with factual evidence available on record. Accordingly, point No.(i) is is decided. https://hcservices.ecourts.gov.in/hcservices/ 28. Point No.(ii): In view of the discussion supra, the suit of the plaintiffs should be dismissed. However, for the purpose of comprehensively deciding the appeal I would proceed to decide point No.(ii) also. 29. The perusal of Ex.A1 would not in any way demonstrate that D1 and his brother Periyanna Gounder ever admitted that the 'A' scheduled property belonged to their ancestors. What are all found set out in Ex.A1 is that they acknowledged that they were in joint possession. Mere recital that they were in joint possession would not enure to the benefit of the plaintiffs to contend that the said 'A' schedule property is the ancestral property. In order to prove that a property is an ancestral property there should be clear evidence, which should unambiguously and unequivocally exemplify the fact that from a male ancestor it devolved on the younger generation. But in this case absolutely there is no such evidence. In that aspect the trial Court may not be correct in holding that the first item of the suit property is an ancestral property. After partition, as found set out in Ex.A1, 'A' schedule property became the absolute property of D1. It is the contention of D1 that he cultivated lease hold properties and earned money and from out of the income derived, he purchased 'B' schedule property. There is also nothing to show that there was any income generating ancestral nucleus and from out of that, the 'B' schedule property was purchased. Hence, it could rightly be held that suit 'A' and 'B' schedule properties happened to be the absolute property of D1, who had alienable right over it. 30. Ex.B6 is the partition deed dated 17.6.1959, which emerged between D1 and his son D2, which is a formal document in this case. Ex.B14 is the settlement deed dated 30.3.1965 executed by D1 in favour of D2's son D4, bequeathing various items of properties, which cannot be found fault with, as Ex.B14 is a registered deed. At this juncture I am reminiscent of the following decision of the Honourable Apex Court reported in (2005) 8 SCC 67- Pentakota Satyanarayana v. Pentakota Seetharatnam, certain excerpts from it would run thus: "25. A perusal of Ex.B9 (in original) would show that the signatures of the Registering Officer and of the identifying witnesses affixed to the registration endorsement were, in our opinion, sufficient attestation within the meaning of the Act. The endorsement by the sub-registrar that the executant has acknowledged before him execution did also amount to attestation. In the original document the executants signature was taken by the sub-registrar. The signature and thumb impression of the identifying witnesses were also taken in the document. After all this, the sub-registrar signed the deed. Unlike other documents the Will speaks from the death of the testator and so, when it is propounded or produced before a court, the testator who has already departed the world cannot say whether it is his Will or https://hcservices.ecourts.gov.in/hcservices/ not and this aspect naturally introduces an element of solemnity in the decision of the question as to whether the document propounded is proved to be the last Will and the testament of departed testator. 26. In the instant case, the propounders were called upon to show by satisfactory evidence that the Will was signed by the testator, that the testator at the relevant time was in a sound and disposing state of mind, that he understood the nature and effect of the dispositions and put his signature to the document on his own freewill. In other words, the onus of the propounder can be taken to be discharged on proof of the essential facts indicated above. It was argued by learned counsel for the respondent that popounders themselves took a prominent part in the execution of the Will which will confer on them substantial benefits. In the instant case, propounders who were required to remove the said suspicion have let in clear and satisfactory evidence. In the instant case, there was unequivocal admission of the Will in the written statement filed by P.Srirammurthy. In his written statement, he has specifically averred that he had executed the Will and also described the appellants as his sons and Alla Kantamma as his wife as the admission was found in the pleadings. The case of the appellants cannot be thrown out. As already noticed, the first defendant has specifically pleaded that he had executed a Will in the year 1980 and such admissions cannot be easily brushed aside. However, the testator could not be examined as