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Annavi v. A.Ganesan - S.A.No.1559 OF 1995  RD-TN 1705 (16 May 2007)
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 16/05/2007
THE HONOURABLE MR.JUSTICE V.DHANAPALAN
S.A.No.1559 OF 1995
4.Thirumayee ... Appellants Vs.
A.Ganesan ... Respondent Second Appeal filed under Section 100 C.P.C. against the judgment and decree dated 02.09.1994 made in A.S.No.266 of 1993 on the file of the Principal Sub-Judge, Trichy confirming the judgment and decree made in O.S.No.319 of 1990 dated 22.09.1993 on the file of the District Munsif Court, Musiri. For Appellants ... Mr.K.Prabhakar For Respondent ... Mr.G.Manikanda Raja for M/s.Sarvabhauman Associates :JUDGMENT
Aggrieved by the judgment, dated 02.09.1994 made in A.S.No.266 of 1993 passed by the Principal Sub-Judge, Trichy confirming the judgment and decree made in O.S.No.319 of 1990, dated 22.09.1993 on the file of the District Munsif Court, Musiri, the defendants have preferred this appeal.
2. The plaintiff, Ganesan claims to be the son of the first defendant, Annavi. It is his case that the first defendant, Annavi married his mother, Pazhaniammal according to Hindu customs and rites and law before 40 years and out of their wedlock, the plaintiff was born on 11.06.1952. While so, the first defendant was keeping the fourth defendant, Thirumayee as concubine for the past 25 years and defendants 2 and 3, namely, Ganesan and Rajendiran were born to them. According to the plaintiff, defendants 2 and 3 are the illegitimate children of the first defendant through Thirumayee. The plaintiff and the first defendant were members of the Hindu joint family. At the instigation of the fourth defendant, the first defendant attempted to create fraudulent documents and when the plaintiff questioned the same, the first defendant drove him out. The plaintiff demanded partition through mediators on 21.09.2006 and the first defendant was not willing for an amicable partition. Hence, the plaintiff filed a suit for partition in O.S.No.319 of 1990 in respect of his 1 . share in the suit properties.
3. The defendants filed a Written Statement stating that the fourth defendant, Thirumayee is the legally wedded wife of the first defendant, namely, Annavi. The case of the first defendant is that the suit properties are his absolute properties and he had executed a registered Settlement deed in favour of his wife, the fourth defendant, of the suit property on 29.07.1969, marked as Ex.B1. The possession of the property had been delivered to and taken by the fourth defendant even on the date of the settlement and she is in possession of the property. The fourth defendant denied the allegation that she is an exclusively kept concubine of the first defendant. Defendants further stated that Palaniamal is not the wife of the first defendant and the plaintiff, namely, Ganesan is not the son of the first defendant. According to the defendants, the suit is not sustainable without a prayer for declaration of the plaintiff's title and since there is no cause of action for the suit, they prayed for dismissal of the same.
4. The Trial Court framed issues and found that there is no dispute that the Suit property is an ancestral property and the first defendant also admitted the same in his evidence. Ex.A1, Birth Certificate of the plaintiff, which shows that the plaintiff was born to Annavi and Pazhaniammal on 11.06.1952 was not disputed as fraudulent one. But, the first defendant in his evidence has stated that there are four persons in Kalluraipatti Village, having the name, Annavi. The plaintiff's mother, Pazhaniammal was examined as P.W.2. In her evidence, she stated that the first defendant married her and the plaintiff was born to them, which was not disproved by the first defendant in his evidence. The first defendant stated in his evidence that before filing of the suit, he knew that P.W.2, Pazhaniammal belongs to a different caste, which was not pleaded in the written statement.
5. In Ex.B1, Settlement Deed executed by the first defendant, he has stated that if any heirs were born to him and Thirumayee, the fourth defendant, the property will go to his heirs. At the time of execution of the Settlement Deed, Ex.B1, the first defendant did not have any sisters or brothers. When the first defendant has stated in the Settlement Deed that the property would go to his heirs, it becomes an established fact that the first defendant is having legal heirs. In 1993, the first defendant has deposed that the marriage between him and the fourth defendant took place before 45 years, but, in the cross- examination, he has stated that his marriage with the fourth defendant was held in the year 1969. The difference between 1969 and 1993 is only 24 years, not 45 years. The Trial Court found that the marriage of Pazhaniammal and the first defendant took place in the year 1947.
6. The first defendant has stated in his examination that the Settlement Deed was executed after two months from the date of marriage and he further gave a contrary evidence that the marriage between him and Thirumayee was solemnized within one week after the execution of Ex.B1. It is also seen that the plaintiff has paid the Land Tax on behalf of the first defendant, which shows that the plaintiff has paid the Tax as the son of the first defendant. The Trial Court held that the fourth defendant is not the legally wedded wife of the first defendant and that defendants 2 and 3 are the illegitimate children of the first defendant. On consideration of the above facts and on evaluation of the evidence on record, the Trial Court allowed the suit and answered in favour of the plaintiff. Aggrieved by the finding of the Trial Court, the defendants preferred an appeal before the Lower Appellate Court.
7. On a perusal of the facts of the case and the evidence on record, the Lower Appellate Court took into consideration the following points : (i) The first defendant has admitted that there is no custom in issuing the Wedding Invitation in their period and the marriage was solemnized by way of giving betel nut. The first defendant has not established his marriage by way of documentary evidence.
(ii) P.W.2, Pazhaniammal has stated in her evidence that her marriage with the first defendant was held in the year 1947 and Ex.A1, Birth Extract shows that a male child was born in Kalluraipatti Village to Annavi and Pazhaniammal on 14.05.1952.
(iii) The first defendant has himself stated in his evidence that there are four persons in Kalluraipatti having the name, Annavi, but, none of them is aged 41 years. The said statement itself proves that the plaintiff is the son of the first defendant.
(iv) There is contrary evidence given by the first defendant regarding the execution of Ex.B1-Settlement Deed and the date of his marriage. (v) The defendant has stated in Ex.B1 that if any heirs were born to him and the fourth defendant, Thirumayee, the property will go to his heirs. This statement itself shows that in the absence of any sister or brother to the first defendant, he had legal heirs.
8. The Lower Appellate Court on consideration of the above points found that the plaintiff is the son of the first defendant and upheld the finding of the Trial Court. Aggrieved by the finding of the Lower Appellate Court, the defendants have preferred the present Second Appeal.
9. At the time of admitting this Second Appeal on 06.12.1995, this Court raised the following substantial question of law: "Whether the interpretation of the word "Abhimana Bariyal" in the Settlement Deed dated 29.07.1969 by the Lower Appellate Court as Concubine is correct overlooking the principle laid down by a Division Bench of this Hon'ble Court reported in 100 L.W. 58 wherein even a concubine has a right to claim wifehood?"
10. Learned Counsel for the appellants/defendants contended that the Lower Appellate Court erred in holding that a suit for partition is maintainable when there is no prayer for setting aside the registered Settlement Deed, dated 29.07.1969 executed by the first defendant in favour of the fourth defendant. He also contended that even a concubine will not take away her right to claim wifehood, which was the first principle laid down by this Court. It was his further contention that just because the first defendant has admitted that he has married 45 years back does not mean he has married the plaintiff's mother.
11. In support of his contentions, learned Counsel for the appellants/defendants has placed reliance on the following decisions : (i) 1993 (II) MLJ 17 (Kamakshi vs. Minor Ramalingam @ Munusami and another)
(ii) 100 L.W. 58 (Seerangammal (died) and others vs. E.B.Venkatasubramanian & others)
(iii) AIR 1972 Madras 200 (Ponnamma Kaliamma vs. Kumara Pillai and others)
(iv) 2004 (5) CTC 182 (Bommi and another vs. Munirathnam) (v) 100 L.W. 895 (Pravin Kumar vs. P.Rajeswaran and others) (vi) AIR 1964 SC 510 (Guramma Bhratar Chanbasappa Deshmukh and others vs. Mallappa Chanbasappa and another)
(vii) 1992 (II) MLJ 116 (Dhanasekaran Vs. Manoranjithammal and others)
(viii) 1956 (II) MLJ (FB) 411 (Sankaranarayana Pillai and another vs. Kandasami Pillai)
(ix) 1952 (I) MLJ (SC) 746 (Mummareddi Nagi Reddi and others vs. Pitti Durairaja Naidu and others) (x) 1969 (II) MLJ 125 (Samiappa Gounder and others vs. Sivabalan and others)
(xi) 1992 (II) Civil L.J. (Orissa) 672 (Surendra Kumar Patra and others vs. Arjun Charan Patra)
(xii) 2005 (3) CTC 504 (Govindaraju vs. Mariamman) (xiii) 2005 (4) CTC 573 (Phool Pata and another vs. Vishwanath Singh and others)
(xiv) AIR 1979 (FB) 1 (The Additional Commissioner of Income Tax, Madras-1, vs. P.L.Karuppan Chettiar)
(xv) AIR 1986 SC 1753 (Commissioner of Wealth Tax, Kanpur etc. vs. Chander Sen etc.
(xvi) 1995 (3) Civil LJ 608 (C.Selvaraj (died) and others vs. The Corporation of Madras represented by its Commissioner and others)
12. The decisions relied on by the Counsel for the appellants, as stated supra, in detail, are as follows :
(i) In 1993 (II) MLJ 17 in the case of Minor Ramalingam alias Munusami and another, this Court has held as follows:
"9. So, from the very evidence of P.Ws.1 and 2, it can be safely concluded that the factum of the alleged marriage between Singarammal and the first defendant cannot be said to have been established by the plaintiff, and the finding of the Trial Court in this regard, is correct. Further, the abovesaid Ex.A2-Birth Extract of the plaintiff cannot also be relied on to prove the parentage of the plaintiff, or in other words, to prove the factum of marriage between the 1st defendant and Singarammal. It has also been held so in Nagayasami Naidu vs. Kochadai Naidu, 81 L.W. 436 ; AIR 1969 Madras 329 (D.B.), while dealing with the scope of Section 35 of the Evidence Act, Rajambal vs. Veeramuthu Udayar, 99 L.W. 175 (D.B.) has also held likewise. It relied on an earlier decision in Nagayasami Naidu vs. Kochadai Naidu, A.I.R. 1969 Mad. 329: 81 L.W. 436, which observed : "Under Section 35 of the Evidence Act (I of 1872), it is only the entry made by a public servant in the discharge of his official duties that is admissible as a relevant fact. Other particulars not strictly covered by the entries are not admissible under Section 35 of the Evidence Act."
10. Then regarding the above referred to recital in Ex.B1-Sale Deed wherein the 1st defendant, the executant is stated to have executed the document on behalf of Munusami also, even though it could be assumed that Munusami referred to therein is only the alias name of the plaintiff, that by itself cannot go to prove the factum of marriage between the 1st defendant and Singarammal in the light of the above referred to evidence given by P.W.1 and P.W.2 and the other features pointed out above. For all these reasons, I agree with the Trial Court in holding that the factum of the abovesaid marriage has not been proved."
(ii) In AIR 1972 Madras 200 in the case of Ponnamma Kaliamma vs. Kumara Pillai and others, this Court has held as follows:
6. Appellant Ponnamma was born to Veeramoni Iyer, who kept the appellant's mother belonging to eighth gudi as his concubine. The evidence of P.W.2, Sivathanoo Pillai is that hundred years back Iyers used to have kudipravarthis as concubines. He denied the suggestion that after the tying of the pottu, kudipravarthis lead a loose life. But he admitted that Kudipravarthi women were permanently kept concubines of persons who maintained them. The evidence of P.W.3, Padmanabha Pillai, a classmate of Adhikesavaperumal Pillai, is that Adhikesavaperumal Pillai asked him about Ponnamma, that he told him that he (she?) would be dutiful, that he questioned why he wanted to have her and that Adhikesavaperumal Pillai told him that he wanted to lead a happy and jolly life. Adhikesavaperumal had married in his own community and had a son by her. P.W.1, Subramania Pillai could not give any reason why Adhikesavaperumal Pillai married Ponnamma when he had his wife Baghavathi Ammal and had a son Kumara Pillai through her. The evidence of the appellant-plaintiff is that simply because Kudipravarthi girls like herself got tallies tied in the temple, people say all sorts of things. It is clear from her evidence that she kept one Parameswaran Pillai and had a son through him, that she subsequently married one Sundaram Pillai and had a son through him and that after the death of Sundaram Pillai, she claims to have married Adhikesavaperumal Pillai. According to her, she cursed her fate for two years after the death of Sundaram Pillai and later Adhikesavaperumal Pillai came to her and wanted her to be his concubine and offered to pay money. But she claimed to have told him that he should marry her to the knowledge of the villagers. According to her, Adhikesavaperumal Pillai came to her with two others and remained in her house for an hour, but she did not know him before and she did not even enquire who he was. ....
9. ...The learned Subordinate Judge has dealt with this aspect of the case. He has posed the question, whether the plaintiff's living with Adhikesavaperumal Pillai as husband and wife in the plaintiff's house for over 34 or even 45 years is sufficient to draw the presumption that they were legally wedded husband and wife. ..."
(iii) This Court in 2004 (5) CTC 182, in the case of Bommi and another vs. Munirathinam, has held as follows:
"15. As seen from the pleadings in the plaint, though the 1st plaintiff has stated that the second plaintiff is the daughter born to her, through the defendant, she has not given the exact date of birth of the child also, to coincide with the joint living of the defendant with the 1st plaintiff, whether it is legal or illegal. Paragraph 4 of the plaint says, that the first plaintiff gave birth to a female child, in pursuance of the marriage took place on 17.10.1985, failing to enlighten the Court, on what date, where she begotten the second plaintiff, etc. Paragraph - 7 of the plaint says, that the defendant/respondent abandoned or deserted, as the case may be, the plaintiffs, for the past more than 12 years. If we read these two paragraphs together, a doubt would arise naturally in the minds of the Court, whether the second plaintiff was born to the first plaintiff when the defendant had access with her, since in this case, the marriage itself is denied. However, the defendant in his written statement had admitted, that he had some connection with the first plaintiff, whether legal or illegal, which should be decided at the time of the suit. In case, during that time, if the first plaintiff had conceived and gave birth, the gene of the second plaintiff may suit with the gene of the defendant and for that purpose alone, DNA is contemplated in this case. By looking the case from this angle also, I feel directing the parties to undergo DNA may not be prejudicial to anybody and in fact, it is beneficial to both.
20. Considering the appreciable improvement in the medical science, the result of a genuine DNA test is said to be scientifically accurate, as observed by the Apex Court in Smt. Kamti Devi vs. Poshi Ram, AIR 2001 SC 2226. In this case, the Apex Court considering Section 112 of the Indian Evidence Act, as well as the fact that a child was born during the subsistence of a valid marriage, took the view, that the conclusive presumption that child is of the husband, which is available under Section 112 of the Evidence Act, cannot be rebutted by DNA Test. As aforementioned, in the case on hand, the marriage is in dispute, thereby showing that there is no case between the parties, that the child born during the subsistence of a valid marriage. When the marriage itself is in dispute, from the alleged, question of raising presumption under Section 112 of the Indian Evidence Act in favour of a child, may not arise for consideration." (iv) In AIR 1964 SC 510 in the case of Guramma Bhratar Chanbassappa Deshmukh and others vs. Mallappa Chanbasappa and another, the Supreme Court has held as follows :
"13. ... We must therefore, proceed on the basis that the alienations were made by one of the members of the joint family without the consent of the other members of the family. If so, at the time the alienations were made, Chanbasappa had not the absolute power to alienate the family property, but only a limited one to do so for the purpose of necessity or benefit of the estate. The relevant principles are well-settled. A coparcener, whether he is natural born or adopted into the family, acquires an interest by birth or adoption, as the case may be, in the ancestral property of the family. A managing member of the family has power to alienate for value joint family property either for family necessity or for the benefit of the estate. As alienation can also be made by a managing member with the consent of all the coparceners of the family. The sole surviving member of a coparcenary has an absolute power to alienate the family property, as at the time of alienation there is no other member who has joint interest in the family. If another members was in existence or in the womb of his mother at the time of the alienation, the power of the manager was circumscribed as aforesaid and his alienation would be voidable at the instance of the existing member who was in the womb but was subsequently born, as the case may be, unless it was made for purposes binding on the members of the family or the existing member consented to it or the subsequently born member ratified it after he attained majority. If another members was conceived in the family or inducted therein by adoption before such consent or ratification, his right to avoid the alienated will not be affected." (v) In 1956 (II) MLJ 411, in the case of Sankaranarayana Pillai and another vs. Kandasamia Pillai, this Court has held as follows: "If the matter is looked at in this way there is no difficulty in reconciling the various cases and we do not propose to analyse at length the large body of case-law cited at the Bar. The distinction between a void and voidable transaction has been brought out in a number of cases and we need only refer to a few of them : Chingacham Vitil Sankaran Nair vs. Chingacham Vitil Gopala Menon, Bijoy Gopal Mukerji vs. Krishna Mahishi Debi, Fairappa Limmanna vs. Lumanna Bin Mahadu, Bali Reddi vs. Khatipulal Sab, Ankamma vs. Kameswaramma, Raja Ramaswami vs. Govindammal and Vallabhacharyulu vs. Rangacharyulu. There is no doubt whatever that a transaction entered into by a guardian relating to the minor's properties is not valid and if the minor does not sue to set it aside within three years of his attaining majority, it becomes valid under Article 44 of the Limitation Act. In such a case, the minor is deemed to be a party to the transaction. But, where the document is executed by a manager of the family and it is not binding on the family, the minor or any other member can ignore the transaction and recover possession of the property. To such a case, Section 7(v) of the Court-fees Act will apply. We are here not concerned with decrees to which the minor is eo nomine a party. Our answer to the first question is that if the minor is eo nomine a party to a sale deed or other document of alienations, he must sue for the cancellation of the document under section 7(iv-A) of the Court-fees Act and it is no enough if he applies for possession under Section 7(v) of the Act; and to the second question our answer is that there can be no distinction whether the father as guardian of the minor and not as the manager of the joint family executes the deed. Even in that case also, the document has to be set aside.
(vi) In 1952 (I) MLJ 746, in the case of Mummareddi Nagi Reddi and others vs. Pitti Durairaja Naidu and others, the Supreme Court has held as follows: "There is no rule of law that no mesne profits can be allowed in a case where the alienation cannot be described as absolutely void. The decisions of the Judicial Committee in Bhagwat Dayal vs. Debi Dayal and Satgur Prasa vs. Har Narain Das may be cited as illustrations where mesne profits were allowed in transactions which were only voidable. We think further that there is a difference between the alienee of a widow and the transferee of joint property from a Mitakshara father. A son of a Mitakshara father is bound to set aside an alienation made by the father within the period laid down in Article 125 of the Indian Limitation Act and it is only on the alienation being set aside that he is entitled to recover possession of the property. The High Court, in our opinion, was perfectly right in holding that the decision in Banwarilal vs. Mahesh which related to a suit instituted by a son against an alienee of the father under the Mitakshara law does not apply to the facts of the present case. It is true that as regards defendants 2 and 3 the decree is a conditional decree and the plaintiff cannot recover possession unless he pays a certain amount of money to the extent of which the widow's estate has been held to be benefited, but the High Court has very properly allowed interest upon this amount to the alienee while making the latter liable for the mesne profits."
(vii) In 1969 (II) MLJ 125 in the case of Samiappa Gounder and others vs. Sivabalan and others, this Court has held as follows: "But their Lordships are inclined to think that the sale was not necessarily void, but was only voidable if objection were taken to it by the other members of the joint family.
A son of a Mitakshara father is bound to set aside an alienation made by the father within the period laid down in Article 125, Indian Limitation Act, and it is only on the alienation being set aside that he is entitled to recover possession of the property."
(viii) In 1992 (II) Civil L.J. (Orissa) 672 in the case of Surendra Kumar Patra and others vs. Arjun Charan Patra, the Orissa High Court has held as follows :
"In view of the rival submissions made at the Bar and undisputedly the property being the ancestral property wherein Surendra, petitioner No.1, gets right by birth, the first question that arises for consideration is whether Baishnab, the father, had the right to gift the joint family property in favour of Arjun, who happens to be the donor's natural son and was given in adoption to the donor's brother Adwait. Mr.Das, the learned counsel for the petitioners relying upon Article 258 of the Mulla's Hindu Law contends that no coparcener can dispose of his undivided interest in coparcenary property by gift and such transaction being void, there is no estoppel or other kind of personal bar which precludes the donor from asserting his right to recover the transferred property. He has, however, right to make a gift with the consent of other coparceners. Since consent of Surendra had not been obtained while executing the gift, the gift is void. The expression "no coparcener" used in Article 258 does not include the father as a Hindu father has special powers with regard to alienation of coparcenary property. Article 256 of Mulla's Hindu Law indicates that a Hindu father as such has special powers of alienating coparcenary property which no other coparcener has and in exercise of those powers he may make a gift of ancestral immovable property to the extent mentioned in Article 226. Article 226 clearly indicates that a Hindu father has the power to make a gift within reasonable limits of ancestral immovable property, but it must be by an act inter vivos. The Supreme Court has examined the question in the case of Guramma Bhratar Chanbasappa Desmukh and others etc. vs. Mallappa Chanbasappa and another, etc., AIR 1964 SC 510 and has held that it was competent for a Hindu father to make a gift of immovable property to a daughter if the gift is of a reasonable extent having regard to the properties held by the family. ... The question of his consent would not arise as he was not in a position to give consent. A minor obviously could not have given consent nor his consent could have been obtained. In the aforesaid premises, the gift deed executed by the father cannot be held to be void. ..."
(ix) In 2005 (3) CTC 504 in the case of Govindaraju vs. Mariamman, the Supreme Court has held as follows:
"16. As per settled law, the scope of exercise of the jurisdiction by the High Court in Second Appeal under Section 100, is limited to the substantial questions of law framed at the time of admission of the appeal or additional substantial questions of law framed at a later date after recording reasons for the same. It was observed in Santosh Hazari's case that a point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law. To be a 'substantial' question of law must be debatable, not previously settled by law of the land or a binding precedent and answer to the same will have a material bearing as to the rights of the parties before the Court. As to what would be the question of law 'involving in the case', it was observed that to be a question of law 'involving in the case' there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by the court of facts and it must be necessary to decide the questions of law for a just and proper decision between the parties."
(x) The Supreme Court in 2005 (4) CTC 573 in the case of Phool Pata and another vs. Vishwanath Singh and others has held as follows : "8. As a bare perusal of the provision shows, nothing in sub-section (5) takes away or abridges power of the High Court to hear for reasons to be recorded, the appeal on any other substantial question, nor formulated earlier, if it is satisfied that the case involves such question." (xi) In AIR 1979 (FB) 1, in the case of The Additional Commissioner of Income Tax, Madras-1 vs. P.L.Karuppan Chettiar, this Court has held as follows: "... We have dealt with the effect of Section 8 earlier and it is clear that here Karuppan alone took the properties of his father Palaniappa which the latter had obtained in the partition, and irrespective of the question whether it was ancestral property in the hands of Karuppan or not, he would exclude his son. Since the existing grandson at the time of the death of the grandfather has been excluded, we think that an after-born son of Karuppan will also not get any interest which Karuppan inherited from his father. Thus, the principles of Hindu Law are not applicable. It is impossible to visualise or envisage any Hindu undivided family in regard to the property which Karuppan got. This is the view that we have taken in the decision in T.C.No.276 of 1972 : (1977 Tax LR 1420) (Mad) Addl. Commr. of Income Tax Madras vs. V.R.A.Manicka Mudaliar to which one of us was a party. We respectfully agree with the view expressed in that decision and answer the question referred to us in the affirmative., i.e. In favour of the assessee and against the Department. .. "
13. Opposing the above contentions, learned Counsel for the respondent/plaintiff contended that the plaintiff has established that he is the son of the first defendant, Annavi, by means of marking his Birth Certificate as Ex.A1. It has also been established that Pazhaniammal is the wife of the first defendant, Annavi as per Ex.A2, which is the Pension Book, dated 24.06.1985 issued by the Government of Tamil Nadu under the Pension Scheme. He contended that since both the Courts below on a careful consideration of the facts of the case have given a concurrent finding that the plaintiff is the son of the first defendant and that he is entitled to claim his share in the suit properties, the contention of the appellants/defendants that the plaintiff is not the son of the first defendant should not be accepted and that the Second Appeal may be dismissed.
14. Learned Counsel for the respondent/plaintiff has placed reliance on the following decisions, in support of his contentions: (i) 1993 (1) MLJ 339 (Indirani Ammal vs. E.Chandra and another) (ii) 1989 (2) LW 50 (Mohan & another vs. Santha Bai Ammal & others)
(iii) AIR 1967 SC 569 (Ammathayee @ Perumalakkal and another vs. Kumaresan @ Balakrishnan and others)
(iv) 2004 (2) MLJ 457 (Shanmugaiyah and another vs. Thirumalayandi alias Thirumalai Pandaram and others) (v) 1993 (4) SCC 392 (Pavitri Devi and another vs. Darbari Singh and others)
(vi) 2000 (7) SCC 409 (Thimmaiah and others vs. Ningamma and another)
(vii) AIR 1966 SC 1879 (Eramma vs. Veerupana and others) (viii) 1988 (1) LW 103 (Margabandhu and another vs. Kothandarama Mandhiri and others)
(ix) 2001 (1) CTC 649 (Rajamani and another vs. Somasundaram and 3 others)
(x) 2004 (4) MLJ 708 (Jayakumari Babu vs. B.Amilnathan-now- B.Amalanathan and others)
(xi) AIR 1997 SC 2517 (Kshitish Chandra Purkait vs. Santosh Kumar Purkait)
(xii) AIR 1999 SC 1614 (Oil and Natural Gas Commission vs. M.C.Clelland Engineers S.A.)
15. The decisions as cited supra, in detail, are as follows : (i) In 1993 (1) MLJ 339 in the case of Indirani Ammal vs. E.Chandra and another, this Court has held as follows:
"21. No one has spoken to any such marriage. The only argument is that it is even admitted by the plaintiff herself that Gopalan Nair and Thayarammal had been living as husband and wife throughout and from this it could be presumed that there was marriage. That would arise only in case if Ezhumalai had died. May be in the reply notice sent by the first defendant's counsel to the plaintiff's counsel it is stated that Thayarammal became the wife of Gopalan Nair in or about 1952. But this version by the first defendant herself will help her to establish that there was any marriage between Gopalan Nair and Thayarammal. Ex.A1-Sale Deed, dated 19.04.1972 executed by Saroja Somayaji in favour of Gopalan Nair and Thayarammal it is mentioned that Thayarammal is the wife of Gopalan Nair. May be thinking
that Thayarammal is the wife of Gopalan Nair, the vendor mentioned so in the document.
A reference in Winslow's A comprehensive Tamil and English Dictionary at page 27 would show that the meaning of 'Abhimana Bariyal' which means 'Abhimana Manaivi' would only mean someone other than the real wife and that could be concubine. If a wife is to be referred to only as wife (Manaivi) and there is absolutely no necessity to refer to her as 'abhimana manaivi' or abhimana bariyal' is not a wife. It is therefore clear that it cannot be held that Thayarammal was the wife of Gopalan Nair as the Trial Court did. " (ii) In 1989 (2) L.W. 50 in the case of Mohan and another vs. Santha Bai Ammal and others, this Court has held as follows: "On a careful consideration of these decisions and the facts involved in the present case, we find that none of the decisions referred to above can be of any help to the plaintiffs in this case. On facts, we have come to the conclusion that there is absolutely no proof about the alleged marriage of P.W.2 with late Subnbarayulu Naidu and that she was living with him only as his "Abhimana Manaivi" as evidence by the registered documents Exs.B1 and B2. In those circumstances, the presumption of marriage arising out of long cohabitation as husband and wife does not arise in this case." (iii) In AIR 1967 SC 569 in the case of Ammathayee alias Perumalakkal and another vs. Kumaresan alias Balakrishnan, the Supreme Court has held as follows: "So far as moveable ancestral property is concerned, a gift out of affection may be made to a wife, to a daughter and even to a son, provided the gift is within reasonable limits. A gift, for example, of the whole or almost the whole of the ancestral moveable property cannot be upheld as a gift through affection. But so far as immovable ancestral property is concerned, the power of gift is much more circumscribed than in the case of moveable ancestral property. A Hindu father or any other managing member has power to make a gift of ancestral immovable property within reasonable limits for "pious purposes". What is generally understood by "pious purposes" is gift for charitable and/or religious purposes. It also includes cases where a Hindu father makes a gift within reasonable limits of immovable ancestral property to his daughter in fulfilment of an antenuptial promise made on the occasion of the settlement of the terms of her marriage, and the same can also be done by the mother in case the father is dead.
But the gift made to wife by her husband of ancestral immovable property, out of affection, cannot be upheld, even where the husband is carrying out his father's wishes, for no such gift is permitted under Hindu Law insofar as immovable property is concerned. Even the father-in-law if he had desired to make a gift at the time of the marriage of his daughter-in-law, would not be competent to do so insofar as immovable ancestral property is concerned." (iv) In 2004 (2) MLJ 457 in the case of Shanmugaiah and another vs. Thirumalayandi alias Thirumalai Pandaram and others, this Court has held as follows:
"... It is well settled proposition of law that one of the coparceners in the coparcenary without the consent of the other coparceners cannot execute a settlement deed, as one done in the case on hand. In the instant case, there has been a clear averment in the plaint to the effect that at the time of execution of the settlement deed under Ex.A1 by the second defendant, his wife, both of his brothers were also consenting parties to the same. But, nowhere it is stated so in Ex.A1 document. One of the witnesses to Ex.A1 is the first defendant as identifying witness to the settlor, and thus, at no stretch of imagination, it can be taken that he was a consenting party to such a settlement being made.
(v) In 1993 (4) SCC 392 in the case of Pavitri Devi and another vs. Darbari Singh and others, the Supreme Court has held as follows: "12. In Dwarampudi Nagaratnamba vs. Kunuku Ramayya, this Court held that under the Madras School of Mitakshara law by which V was governed, he had no power to make gift of his undivided interest in the coparcenary property to his concubine. But a gift by one coparcener of his undivided share to another coparcener, to the exclusion
of the others is not invalid (Thamma Venkata Subbamma vs. Thamma Rattamma). This Court in Mukund Singh vs. Wazir Singh held that a gift of coparcener's property by a member is void. In other words, it is settled law that a disposition intra vivos by gift of coparcenary property except either with the consent of other coparceners or between coparceners on in exceptional circumstances is void. Since the gift being not for consideration is void in toto and operates eo instanti during the lifetime of the donor, it is not a testamentary succession under Section 30 of the Act. Section 30 of the Act, therefore, brought about change in law of testamentary disposition of a Hindu coparcener of his interest in coparcenary property governed by Mitakshara school of Hindu Law worked out in accordance with Section 55 read with Schedule III of Indian Succession Act or any other law in force to the above extent. The appellant, donee acquires no interest by devolution under the gift to represent the interest of the deceased plaintiff under Order 22 Rule 10 of CPC. Therefore, though for different reasons, we uphold the finding of the High Court in this behalf that the appellant is not a successor-in-interest by devolution by operation of Order 22 Rule 10. Accordingly, we reject the claim of the appellant on that premise.
(vi) The Supreme Court in 2000 (7) SCC 409 in the case of Thimmaiah and others vs. Ningamma and another has held as follows : "19. This Court in Guramma Bhratar Chanbasappa Deshmukh vs. Mallappa Chanbasappa has envisaged three situations of voidable transactions: It was held that a managing member may alienate joint family property in three situations, namely : (i) legal necessity, or (ii) benefit of the estate or (iii) with the consent of all the coparceners of the family. Where the alienation is not with the consent of all the coparceners, it is voidable at the instance of the coparcener whose consent has not been obtained. Needless to say, where there is only a sole surviving coparcener and no other member of the family who has a joint interest in the property, there are no fetters on the alienation of the property. Assuming that the principle enunciated in Guramma vs. Mallappa would apply to void alienations or joint family property, the question of consent of all interested parties would still remain."
(vii) In AIR 1966 SC 1879 in the case of Eramma vs. Veerupana and others, the Supreme Court has held as follows :
"4. There is nothing in the language of this section to suggest that it has retrospective operation. The words "The property of a male Hindu dying intestate" and the words "shall devolve": occurring in the section make it very clear that the property whose devolution is provided for by that section must be the property of a person who dies after the commencement of the Hindu Succession Act.
5. It is clear from the express language of the section that it applies only to coparcenary property of the male Hindu holder who dies after the commencement of the Act. It is manifest that the language of Section 8 must be construed in the context of Section 6 of the Act. We accordingly hold that the provisions of Section 8 of the Hindu Succession Act are not retrospective in operation and where a male Hindu died before the Act came into force i.e., where succession opened before the Act. Section 8 of the Act will have no application.
(viii) In 1998 (1) LW 103 in the case of Margabandhu and another vs. Kothadarama Mandhiri and others, this Court has held as follows : "The learned Judge held that the principle laid down in the Bench decision in 89 L.W. 706 (D.B. - Veeraswami, C.J.) had to be followed and it was omitted to be noticed. It was held by the Division Bench that the illegitimate children will be entitled only to a share in the father's share of the property and that the share of illegitimate children in the properties are confined only to the interest of their parents."
(ix) In 2001 (1) CTC 649 in the case of Rajamani and another vs. Somasundaram and 3 others, the High Court has held as follows : "15. ... When a person seeking to establish a title and finds himself threatened by a decree or sale deed cancelled in toto. ie.. a thing which can only be done by parties to the decree or deed, or their representatives. In such circumstances, by the very conduct, when the appellants have created a situation by resorting to some ingenious method with an eye on future legal remedy and thereby attempt to prevent a party from getting his legally enforceable right to be validly adjudicated upon, some vicious attempt cannot be permitted to be fructified. In other words, if the attempt of the Appellants are allowed to succeed, that would approach by putting its seal of approval. Certainly, the Court cannot and will not be a party to such and one other, form of abuse of process of Court being adopted by such parties. (x) In 2004 (4) MLJ 708 in the case of Jayakumari Babu vs. B.Amilnathan- now-B.Amalanathan and others, this Court has held as follows: "Since the appellant has not taken the jurisdictional competence of Trial Court at the earliest point of time, it is not open to the appellant to raise such issue now at this stage."
(xi) In AIR 1997 SC 2517 in the case of Kshitish Chandra Purkait vs. Santosh Kumar Purkait, the Supreme Court has held as follows : "8. In the light of the legal position stated above, we are of the view that the High Court acted illegally and in excess of jurisdiction in entertaining the new plea, as it did, and consequently in allowing the Second Appeal. Even according to the High Court, the point urged on behalf of the appellant was only a "legal plea" though no specific plea was taken or no precise issues were framed in that behalf. The High Court failed to bear in mind that it is not every question of law that could be permitted to be raised in Second Appeal. The parameters within which a new legal plea could be permitted to be raised, are specifically stated in sub-section (5) of Section 100, C.P.C. Under the proviso, the Court should be "satisfied" that the case involves a "substantial question of law" and not a mere "question of law". The reason for permitting the substantial question of law to be raised, should be "recorded" by the Court. It is implicit therefrom, that on compliance of the above, the opposite party should be afforded a fair or proper opportunity to meet the same. It is not any legal plea that could be raised at the stage of Second Appeal. It should be a substantial question of law. The reasons for permitting the plea to be raised should also be recorded. Thereafter, the opposite party should be given a fair or proper opportunity to meet the same. In the present case, as the extracts from the judgment quoted hereinabove, would show, the High Court has totally ignored the mandatory provisions of Section 100, C.P.C. The High Court proceeded to entertain the new plea and rendered its decision without following the mandatory provisions of Section 100, C.P.C. On this short ground, we are of the view that the judgment and decree of the High Court dated 30th November, 1982 are illegal and in excess of jurisdiction and so unsustainable and deserve to be set aside. We hereby do so. The appeal is allowed with costs, including advocates fee which we estimate at Rs.10,000/-. (xii) The Supreme Court in AIR 1999 SC 1614 in the case of Oil and Natural Gas Commission vs. M.C. Clelland Engineers S.A., has held as follows: "This is a very bald statement without setting out the details as to how the claim made by the respondent before the Arbitrators have become barred by the limitation particularly when the stand of the respondent is that they had running bills and payments were made from time to time and an account has to be taken as to what amount became due and when; the same has to be worked out. Whether all such details have to be worked out and whether the transactions between the appellant and the respondent did not become complete until the payment of final amount are matters of adjudication. Thus, it becomes very difficult to appreciate that the plea raised before the Arbitrators was sufficient to meet the situation to defeat the claim on the bar of limitation. Therefore, we do not think that we can examine the matter in the light suggested now by the learned senior counsel for the appellant when no foundation has been laid in the course of the proceedings before the Arbitrators either in the pleadings or in the evidence. We are, therefore, of the view that the High Court was justified in dismissing the appeal against the decree passed in terms of the award."
16. Heard both sides and I have given careful consideration to the arguments of the learned counsel on either side and the citations relied on by them in support of their arguments.
17. It is seen that the respondent/plaintiff has filed a suit for partition in respect of his 1 . share in the suit properties against his father, the first defendant on the ground that the plaintiff is the son of the first defendant through his wife, Pazhaniammal. The plaintiff claimed his share with the support of his Birth Extract, marked as Ex.A1. It is also seen that the first defendant married the plaintiff's mother according to Hindu rites and customs about 40 years ago and out of their wedlock, the plaintiff was born on 11.06.1952. Defendants 2 and 3 were born to the first defendant and the fourth defendant was kept as his concubine (Abimana Bariyal) for about 25 years. It is further seen that the first defendant has contested the case that he married the fourth defendant alone and out of the wedlock with the fourth defendant, defendants 2 and 3 were born and therefore, the first defendant denied the status of the plaintiff as his son, on the ground that he had not married Pazhaniammal.
18. The plaintiff and the first defendant were members of a Hindu joint family and when there were attempts to create certain documents by the first defendant, and when the plaintiff questioned the same, the first defendant drove the plaintiff out, six months prior to the filing of the suit. The plaintiff claimed partition through mediation and the first defendant was not willing for an amicable partition and therefore, the suit has been filed.
19. Now, the question that arises for consideration in this appeal is, whether the interpretation of the word "Abhimana Barriyal" in the Settlement Deed, dated 29.07.1969 by the Lower Appellate Court as Concubine is correct overlooking the principle laid down by a Division Bench of this Hon'ble Court reported in 100 L.W. 58 wherein even a concubine has a right to claim wifehood.
20. To decide the above question, it is pertinent to note certain evidences in this case. In the Birth Extract, marked as Ex.A1 by the plaintiff, it is seen that the plaintiff was born to Kalluraipatti Annavi and Pazhaniammal on 11.06.1952. Though the first defendant has deposed that there were four persons in his name in the Village, he has also stated that that no one by name, Annavi had a son, aged 41 years. The name mentioned in Ex.A1 is alone disputed, but Ex.A1 is not disputed as a fraudulent one. Therefore, it is undoubtedly clear that Ex.A1 belongs to the plaintiff.
21. Further, P.W.2, Pazhaniammal stated in her evidence that the first defendant married her and the plaintiff was born through their wedlock and it was not disproved by the defendant in his evidence. Though, the first defendant claimed that P.W.2, Pazhaniammal belongs to a different caste, in the absence of any pleadings in the Written Statement, the said claim cannot be taken into account. It is also seen in Ex.B1, Settlement Deed executed by the first defendant that if any heirs were born to him and the fourth defendant, Thirumayee, the property will go to his heirs. At the time of execution of the Settlement Deed, there were no brothers or sisters to the first defendant, which shows that the property goes to his heirs without having any brothers and sisters. Therefore, it becomes an established fact that the first defendant is having legal heirs. The first defendant in his evidence has stated that after the execution of Ex.B1, he married the fourth defendant before 40 to 45 years. But, in his cross-examination, he has stated that the marriage took place with the fourth defendant in the year 1969. This deposition was recorded in the year 1993. So, the time gap between the marriage with the fourth defendant on the date of deposition is only 24 years; Whereas, the marriage of the plaintiff's mother took place in the year 1947, which a difference of 41 years. Therefore, there is every possibility that the marriage was held between the first defendant and the plaintiff's mother, Pazhaniammal. Further, the first defendant in his evidence has stated that, Ex.B1 was executed after two months from the date of marriage. On the contrary, he further stated that the marriage with Thirumayee was solemnized within one week after the execution of the Settlement Deed.
22. Ex.A2 is the Pension Book issued by the Government of Tamil Nadu under the Pension Scheme, dated 24.06.1985 prior to the filing of the suit and there is no possibility of creating this document for the purpose of this case. Exs.A3 to A7 show that the plaintiff has paid Land Tax on behalf of the first defendant as his son. Ex.A8, dated 03.02.1988 has been issued by the Agricultural Co-operative Society for the membership of the plaintiff, in which the name of the plaintiff has been shown as son of Kalluraipatti Annavi.
23. Therefore, the conclusion arrived at by the Trial Court that the plaintiff is the son of the first defendant and that the marriage with Pazhanimaml is subsisted; the marriage of the first defendant with the fourth defendant is not a valid one. Defendants 2 and 3 are the illegitimate children of the first defendant and they can claim through their father's share. Therefore, the Settlement Deed executed by the first defendant to any person without the consent of the coparcener, namely, the plaintiff is not valid and accordingly, the suit filed by the plaintiff has been decreed on the ground that the plaintiff is the legitimate son of the first defendant, and the fourth defendant is described as concubine and the finding of the Trial Court has been confirmed by the First Appellate Court.
24. The main question that has to be decided in this appeal is as to whether the conclusion arrived at by the Courts below holding that the fourth defendant is 'Abimana Bariyal' (concubine) of the first defendant or she is the wife of the first defendant. Though, other points have been advanced by the learned Counsel for the appellants/defendants, the only question that arises for consideration is whether the fourth defendant is the Abimana Bariyal (concubine) or wife of the first defendant.
25. In a decision reported in 100 L.W. 58 in the case of Seerangammal (died) and others vs. E.B.Venkatasubramanian & others, this Court in paragraphs 19 and 20 has held as follows:
"19. In those days an impression was injected into the minds of every Hindu and in particular with women and which had its origin in ancient Hindu scriptures that evil would befall in the hands of God if wrongs are done or spoken about Brahmins. Ranganatha had already married Bagirathi, a Brahmin woman. It was during her life time, first plaintiff was taken into the household, and nearly during nine years of her existence, first plaintiff's companionship was taken advantage of by Ranganatha. Ranganatha himself stated in the Will that first plaintiff was the devoted wife to him. In describing her, in contra distinction to Bagirathi, in Ex.A33, he had used the expression 'vaipu manaivi' in the opening part of the will, but in the oter portions of the will, in ever so many places, he had stated categorically and in unmistakable words that the first plaintiff was his wife. Hence, when he had used the expression 'vaipu manaivi' for a very limited purpose, she had not the strength to speak anything different from the manner in which he had statedin the will in a particular context. She must have honestly thought that if she was to claim that she was 'wife' even during Bagirathi's life time, evil would befall upon her. It was not improbable. . . .To reiterate, in the wil the solitary expression 'vaipu manaivi' had been used only in the opening part of it, whereas in all other later sentences of the will unflinchingly he had referred to herself living with him as his endearing and devoted wife. Hence, it cannot be an admission on her part of her legal status nor a destructive factor as claimed by defendants.
20. If the expression used by her in the opening part of her deposition and by him in the opening part of the will, i.e., in two places alone are to be given meaning, and not the rest of the expressions and categoric statements made by both of them in the other parts of the depositions, will and other documents it would then be doing injustice to their true intentions and how they lived as husband and wife. This is not a case where in concubinage referred to by them, is the only expression used from beginning till end, resulting in total admission of the said status. Excepting for these two instances, in no other place, at any point of time, they had stated anything to militate against her wifehood. It is absolutely essential to take the totality of the circumstances into account to give the intended meaning to the expression used in other portions of the deposition and the will, etc. The expressions used in the will undoubtedly outweighs and brings about the correct status of the first plaintiff."
26. In AIR 1986 SC 1753 in the case of Commissioner of Wealth Tax, Kanpur, etc vs. Chander Sen etc,. the Honourable Supreme Court has held as follows:
"19. It is necessary to bear in mind the Preamble to the Hindu Succession Act, 1956. The Preamble states that it was an Act to amend and codify the law relating to intestate succession among Hindus.
20. In view of the Preamble to the Act, i.e., that to modify where necessary and to codify the law, in our opinion, it is not possible, when Schedule indicates heirs in Class I and only includes son and does not include son's son but does not include son of a predeceased son, to say that when son inherits the property in the situation contemplated by S.8, he takes it as karta of his own undivided family. The Gujarat High Court's view noted above, if accepted, would mean that though the son of a predeceased son and not the son of a son who is intended to be excluded under S.8 to inherit, the latter would by applying the old Hindu law get a right by birth of the said property contrary to the scheme outlines in S.8. Furthermore, as noted by the Andhra Pradesh High Court the Act makes it clear by S.4 that one should look to the Act in case of doubt and not to the pre-existing Hindu law. It would be difficult to hold today the property which devolved on a Hindu under S.8 of the Hindu Succession Act would be Hindu Undivided property in his hand vis-a-vis his own son; that would amount to creating two classes among the heirs in whose hands it will be joint Hindu family property and vis-a-vis son and female heirs with respect to whom no such concept could be applied or contemplated. It may be mentioned that heirs in Class I of Schedule under S.8 of the Act included widow, mother, daughter of predeceased son etc.
21. Before we conclude we may state that we have noted the observations of Mulla's Commentary on Hindu Law, 15th Edn. Dealing with Section 6 of the Hindu Succession Act at page 924-26 as well as Mayne's on Hindu Law, 12th Edition, pages 918-919.
22. The express words of Section 8 of The Hindu Succession Act, 1956 cannot be ignored and must prevail. The Preamble to the Act reiterates that the Act is, inter alia, to 'amend' the law. With that background the express language which excludes son's son but included son of a predeceased son cannot be ignored."
27. Having regard to the facts and circumstances of the case and upon perusal of the evidence on record, the marriage of the plaintiff's mother, Pazhaniammal with the first defendant, Annavi is proved. It is seen that the fourth defendant, Thirumayee is not the legally wedded wife of the first defendant and therefore, the claim of half share in the suit property by the respondent/plaintiff as held by the Courts below concurrently is perfectly in accordance with law as per the Hindu Succession Act, 1956 and also as per the legal propositions laid in the judgments as cited supra. Therefore, I do not find any reason to interfere with the concurrent findings rendered by the Courts below. Accordingly, there is no merit in this appeal and the question which has arisen in this Second Appeal is answered in favour of the respondent/plaintiff and the claim of the appellants/defendants is negatived. V.DHANAPALAN,J.
In the result, the Second Appeal is dismissed. No costs. To
1. The Principal Sub Judge, Trichy
2. The District Munsif Court, Musiri.
3. The Section Officer, V.R.Section, High Court of Madras, Chennai.
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