IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 29/03/2004
CORAM
THE HON'BLE MR.JUTICE M. CHOCKALINGAM
SECOND APPEAL NO.1273 OF 1993
1. Vellammal
2. Papathi
3. Kannammal
4. Veerasangili
5. Ganapathy Konar
6. Jayalakshmi
7. Jayadevi
8. Devi (minor)
9. Ganesan
10.Karuppan
(Appellants 6 to 8 are rep.
by Power of Attorney agent
fifth appellant herein) .. Appellants
-Vs-
Minor Ramalakshmi
rep by mother and guardian
Subbalakshmi alias Valliammal .. Respondent
This second appeal is preferred under Section 100 of CPC against the
judgment and decree of the learned District Judge, Chidambaranar District,
Tuticorin passed in AS No.36 of 1992 dated 9.7.1993 modifying the judgment and
decree on the file of the learned Subordinate Judge, Tuticorin passed in OS
No.100 of 1984 dated 12.8.1991.
!For Appellants : Mr.K.Srinivasan
^For Respondent : Mr.P.Rathinadurai
:JUDGMENT
Aggrieved over the judgment of the learned District Judge, Tuticorin
made in AS No.36 of 1992 wherein the judgment of the trial Court, namely, the
Subordinate Judge, Tuticorin, in a suit for partition was affirmed, the
defendants 1,6, 7, 9, 10 and 13 to 17 have brought forth this second appeal.
2. Minor plaintiff sought for division asking for 1/3rd share in the
property of one Kanniahdas alleging that the said Kanniahdas married her
mother Subbalakshmi as his second wife; that the said Kanniahdas died on
28.1.1984 leaving behind him his first wife, the first defendant and the
plaintiff’s mother, the second defendant; that the said Kanniahdass did not
make any arrangement regarding the property; that by operation of law, she was
entitled to 1/3rd share.
3. The suit was resisted by the defendants stating that the alleged
marriage between Kanniahdas and the mother of the plaintiff was a false one
and the plaintiff was not born to the said Subbalakshmi through Kanniahdas,
and hence, she was not entitled to any share by operation of law.
4. The trial court framed necessary issues, tried the suit and
decreed the same granting 1/6th share in all the schedule mentioned properties
except 4th item of B schedule. An appeal was preferred by the aggrieved
defendants and the same was dismissed. Hence, this second appeal has been
brought forth challenging the judgment of courts below.
5. At the time of admission, the following substantial questions of
law were formulated by this Court for consideration:
1) Whether the finding of the courts below are vitiated by its failure
to draw the legal inferences on the proved and admitted facts set out in the
grounds as regards the factum of second marriage between Kaniah doss and
Subbalakshmi?
2) Whether the courts below is right in granting a decree by virtue of
Section 16 of the Hindu Marriage Act in the absence of the factum of marriage
not established beyond the suspicious circumstances?
3) Whether the findings of the courts below are vitiated by its
erroneous approach relying upon the birth extract which is inadmissible in
evidence and the statements made before the Criminal court under Exhibits A-9
to A-11 which are inadmissible in evidence before the Civil Court?
6. This court has paid its full attention of the submissions made by
the learned counsel for the appellants and also the learned counsel for the
respondent on those contentions.
7. The plaintiff sought the relief of partition in respect of her
1/3rd share in the property of one Kanniahdas alleging that she is the
daughter of the said Kanniahdas through his second wife. The same was
resisted by the defendants inter-alia stating that there was no marriage
between the said Kanniahdas and Subbalakshmi, the mother of the minor
plaintiff and that she is not entitled to partition.
8. Both the courts below have discussed the evidence, in extenso and
have recorded a concurrent finding that there was a marriage between the said
Subbalakshmi, the mother of the minor plaintiff and the said Kanniahdas, but
the marriage is void in view of the subsistence of the marriage between the
said Kanniahdas and the first defendant and though the plaintiff was an
illegitimate child, she was entitled to her share in view of the fact that the
property belonged to the joint family of the said Kanniahdas and his father
and Kanniahdas was entitled to half share and in that half share minor
plaintiff was entitled to 1/3rd share and in that way, the plaintiff was
entitled to 1/6th share in the entire property, except the 4th item in the B
schedule in respect of which, the plaintiff did not press her relief.
9. Advancing his arguments, the learned counsel for the appellants
would submit that both the courts below have found that the property what was
available for division was the ancestral property and not that of Kanniahdas
and the property continued to be joint even at the time when the partition was
sought for. In view of Section 16(3) of the Hindu Marriage Act, the minor
plaintiff could be treated as legitimate, though illegitimate for the purpose
of succession or inheritance which can only be confined to an extent of the
property of Kanniahdas and not in respect of the joint family property
available. In support of his contention, the learned counsel relied on the
following decisions :
1)1989-LW-Mad.706 (SIVAGNANAVADIVU NACHIAR & OTHERS VS.
KRISHNAKANTHAN AND OTHERS)
2) 1996(2) MLJ (SC) 82 (SMT. PARAYANKANDIYAL ERAVATH KANAPRAVA
KALLIANI AMMA AND OTHERS VS. K. DEVI AND OTHERS)
3) 2003 (1) CTC 250 (JINIA KEOTIN & ORS. VS. KUMAR SITARAM MANJHI &
ORS.)
4) 2003(3) LW 621 (RANGASAMI VS. KASIAPPA GOUNDER AND TWO OTHERS)
10. In answer to the above contentions, the learned counsel for the
respondent would submit that on the day when partition was sought for by the
plaintiff, the said Kanniahdas was entitled to half share in the property.
The application was confined only to the succession or inheritance in the
property of the parents only. In the instant case, Kanniahdas was entitled to
half share in th e property. The learned counsel would further add that
nowhere it was found in the provisions of Section 16(3) of the Act that the
children though illegitimate, they can be treated as legitimate in view of the
application of Section 16 of the Act and they can have the remedy only in
respect of the self acquisition, and hence, the contention of the appellants’
side have got to be rejected. Added further the learned counsel that the
first defendant has filed a suit against the said Kanniahdas in OS No.5 04 of
1983 before the District Munsif, Srivaikundam alleging that the property in
respect of which she proceeded was shown therein and she has characterised
that all the properties belonged to Kanniahdas.
11. After careful consideration of the positions, both factual and
legal, this Court is of the considered opinion that though attractive the
contention put forth by the appellants’ side may be, it would not stand the
scrutiny of law. The prime contention now put forth in this Court is that the
property in respect of which partition sought for by the minor plaintiff
belonged to the joint family of Kanniahdas and his father and the property
continued to be joint on the death of Kanniahdas and the minor plaintiff,
though illegitimate because of the void marriage, has to be treated as
legitimate by application of Section 16 of the Act and the application has got
to be confined only to an extent of succession or inheritance to the
properties of the said Kanniahdas, but in the instant case, the properties
were ancestral, and hence, the claim has got to be rejected. This contention
cannot be countenanced for more reason than one. From the very averment in
the plaint, it would be abundantly clear that the plaintiff sought for the
relief of division of 1/3rd share alleging that the properties mentioned in
the schedule belonged to her father Kanniahdas; that the first defendant is
the first wife and the second defendant, who is the mother were entitled to
2/3rd share and the minor plaintiff was entitled to 1/3rd share. Nowhere has
she whispered that the properties in question were joint or ancestral.
12. A reading of the written statement would make it clear that the
properties were originally enjoyed by the said Kanniahdas and his mother the
second defendant and on his death, they were jointly enjoyed by the first
defendant and the second defendant. Nowhere it is averred in the written
statement that the properties were the ancestral or joint family property. It
is pertinent to point out that there was a suit filed by the first defendant
seeking for the relief in OS No.504 of 1983 and the copy of which was marked
as Ex.A.1 where the identical properties were shown as the properties of
Kanniahdas and not mentioned as ancestral property, and thus, from the
available materials, nothing is available to hold that the properties were
ancestral properties, but the properties were left by Kanniahdas as the
properties of his own. There cannot be any quarrel that by operation of law
under Section 16 of the Act that the children though illegitimate had to be
treated as legitimate notwithstanding that the marriage between their parents
was void or voidable for the purpose of succession or inheritance and that
which is available only to the property of the parents only. In the instant
case, partition was sought for only in respect of the properties of Kanniahdas
what was available in the hands of the defendants at the time when the
partition was sought for. Therefore, there cannot be any legal impediment for
the grant of relief in view of Section 16 of the Act. It is not the case
where any attempt was made by demanding division of the property, which were
ancestral or joint, but the properties of the Kanniahdas in the hands of the
defendants at the time when the relief was sought for, and hence, both the
courts below were perfectly correct in granting the relief to the plaintiff.
The judgment of both the courts below do not require for any interference.
13. In the result, this second appeal fails and the same is
dismissed, leaving the parties to bear their costs.
Index : Yes
Internet : Yes
vvk
To
1. The District Judge, Tuticorin.
2. The Subordinate Judge, Tuticorin.
3. The Record Keeper, VR Section,
High Court, Madras