JUDGMENT
A.R. Lakshmanan, J.
1. Defendants 1 and 6 are the appellants in this appeal. The 1st respondent/plaintiff filed O.S. No. 170 of 1980 on the file of the Subordinate Judge, Thiruppathur, for directing division of the suit properties, put him in sepalate possession of his l/7th share and for other allied reliefs. The 1st appellant is the 1st defendant in the suit. The 2nd appellant is one of the sons of the 1st defendant through one Peruma Ammal. The 1st respondent/plaintiff is the son of one Pappammal. The 2nd respondent/2nd defendant is the son of the 1st defendant through his first wife Mari. Respondents 3 to 5/Defendants 3 to 5 are the sons of the 1st defendant through his third wife Peruma Ammal.
2. The case of the plaintif in short is as follows :
The 1st defendant is his father. On the death of Mari, his first wife, in or about 1941, the 1st defendant married one Pappammal, who is the mother of the plaintiff, in or about 1942 according to Hindu Law, custom and rites at Perumapattu village. The plaintiff is the son of the lst defendant and the said Pappammal. During the pendency of the said marriage, the 1st defendant married another lady by name Peruma Ammal, whose children are defendants 3 to 6. Thus, the plaintiff and all the defendants are part and parcel of a Hindu undivided family and the properties described in the plaint schedule are the ancestral and joint family properties of the plaintiff and the defendants. Since the 1st defendant, who is the Kartha of the Hindu undivided family, refused to effect a partition and give the plaintiff his due share inspite of his notice dated 1.4.1980, the plaintiff has filed the suit for partition and separate possession, and for mesne profits. The plaintiff is entitled to 1 /7th share in the joint family properties and the defendants are each entitled to 1 /7th share.
3. The 1st defendant filed a written statement alongwith the 6th defendant. According to them, the plaintiff is not entitled to claim any share either in the plaint schedule properties or in any other properties. It is absolutely false to state that the lst defendant is the father of the plaintiff. On the other hand, the plaintiff is the illegitimate son of the 1st defendant and not his legitimate son. It is equally false to state that the 1st defendant had married one Pappammal, who is the mother of the plaintiff, in or about 1942 according to Hindu Law, custom and rites. The 1st defendant married one Mari Ammal as his first wife and she died during 1941 leaving behind her one son viz., the 2nd defendant and two daughters. After the death of Mari Ammal, the 1st defendant married one Samathammal as his second wife. The said Samathammal left the family house within a few years. Subsequently, the 1st defendant married one Peruma Ammal as his third wife in or about 1944. After the marriage with Samathammal, the 1st defendant contracted illicit intimacy with the said Pappammal who had been already married. There is no valid marriage between the 1st defendant and Pappammal. No marriage took place between them as the husband of Pappammal was alive at the time of her illicit intimacy with the 1st defendant. Pappammal’s husband is even now living. Pappammal and her husband Koola Goundan were living together when the 1st defendant contracted illicit intimacy with Pappammal. The illicit intimacy continued for two or three years and during the course of the said illicit intimacy, the plaintiff was born to Pappammal and the 1st defendant. Thereafter, there was absolutely no intimacy between Pappammal and lstdefendantand they were living separately for nearly 34 years. She had absolutely no connection with the defendants’ family. Defendants 2 to 6 are the legitimate sons of the 1st defendant and none else. The plaintiff, is not a member of the joint Hindu family. Equally it is false to state that the plaint schedule properties are the ancestral properties or the joint family properties of the plaintiff and the defendants. The plaintiff has included several self-acquired properties of defendants 2 to 6 and he is not entitled to any share in the plaint schedule properties. The 1st defendant has got 22.61 acres of land in the family partition between himself and his brothers. He has purchased 4.13 acres out of the income from the joint family properties during 1954. Thus, the 1st defendant owned 26.74 acres, and due to family quarrels, there was a partition between himself and defendants 2 to 5 at the end of 1956. On the date of the abovesaid partition, defendants 2 to 5 were minors and the 6th defendant was not born. The 1st defendant for himself and as guardian for the then minors defendants 3 to 5, divided the properties into five equal shares, retained one such share for him and allotted four shares to defendants 2 to 5. A Kurchit was also executed, under which the extent of 26.74 acres was allotted to the 1st defendant’s four sons and the 1st defendant took one such share for himself. Subsequently, after the birth of the 6th defendant, the 1st defendant allotted his share, which he got in the aforesaid partition, to the 6th defendant. The 6th defendant is now in possession and enjoyment of the lands so allotted. The 5th defendant purchased from and out of the income from the properties got under the partition, one acre in Survey No. 321/1 and 1.50 acres in Survey No. 322. Likewise, the other defendants have also purchased different extent of lands. The said items are all their self-acquired properties. The plaintiff is not entitled to any share in the suit properties. There is absolutely no cause of action for the suit and the plaintiff is not entitled to any relief in the suit.
4. Defendants 2 to 5 filed a separate written statement contending that they became divided even in the year 1956 and have been in separate possession and enjoyment of their shares. They have also acquired properties by borrowing and from out of the income from the properties which they got in the partition between themselves and the 1st defendant in the year 1956. The plaintiff, therefore, is not entitled to any share in the plaint schedule properties. On the side of the plaintiff, he examined himself as P.W. 1 and one Muruga Gounder as P.W. 2. On the side of the defendants, the 1st defendant examined himself as D.W. 1 and examined three others as D. Ws. 2 to 4. Exs. A-l to A-33 were marked on the side of the plaintiff and Exs. B-l to B-12 were marked on the side of the defendants.
5. On the above pleadings, the learned Subordinate Judge framed the necessary issues and Tried the suit. The trial Court held that the plaintiff was born to the 1st defendant and Pappammal that he is the legitimate son born to them, that the marriage between Pappammal and 1st defendant is legally valid and that the plaintiff is not bound by the partition arrangement entered into between the 1st defendant and defendants 2 to 5 on 26.12.1956. The Trial Court has also held that the plaint schedule properties are the ancestral properties and as such, they are available for partition, that defendants 2 to 6 have not acquired any separate properties and that those properties were purchased from and out of the income from the ancestral properties. On the above findings, the Trial Court passed a preliminary decree for partition and separate possession of 1/7th share to the plaintiff in the suit properties and relegated the issue in regard to mesne profits under Order 20, Rule 12, C.P.C. Aggrieved against the judgment and decree of the Trial Court, defendants 1 and 6 have filed the present appeal.
6. It is the case of the plaintiff that he is the son of the 1st defendant through one Pappammal, that the marriage between the 1st defendant and Pappammal was performed according to Hindu Law, custom and rites at Perumapattu village and that as the son born to the 1st defendant and Pappammal, the plaintiff is entitled to 1 /7th share in the ancestral and joint family properties which are under the management of the 1st defendant, who is the Kartha of the entire Hindu Undivided Family.
7. It is the specific case of the 1st defendant that Pappammal is not his wife, that she is the wife of one Koola Gounder, whose marriage is still subsisting and that the 1st defendant had contracted illicit intimacy with the said Pappammal, during the course of which the plaintiff was born to Pappammal and that thereafter there was absolutely no intimacy between the said Pappammal and the 1st defendant, who was living separately for nearly 34 years without any connection with the defendants’ family. Therefore, the 1st defendant contended that the plaintiff is not the legitimate child and that defendants 2 to 6 alone are the legitimate sons of the 1st defendant and as such, the plaintiff is not a member of the joint Hindu family and therefore, not entitled to any share in the suit properties.
8. In the face of the above plea, the burden of proof falls on the plaintiff to prove the factum of marriage between the 1st defendant and Pappammal. His entitlement to a share in the joint family properties entirely depends upon the proof of marriage between Pappammal and the 1st defendant. It is settled law that even the illegitimate children are entitled to a share in the estate in view of the provisions of Section 16 of the Hindu Marriage Act as amended by the Amendment Act of 1976. As per Section 16(1) of the Hindu Marriage Act, any child born of a marriage, who would have been legitimate if the marriage had been valid, shall be legitimate irrespective of the fact that that marriage is null and void under Section 11, and whether such child is born before or after the commencement of the Marriage Laws (Amendment) Act, 1976, and whether or not a decree of nullity is granted in respect of that marriage under the Hindu Marriage Act and whether the marriage is held to be void otherwise than on a petition under that Act. We are of the view that Section 16(1) of the Hindu Marriage Act comes into operation only in a case in which a marriage is in fact proved to have taken place between two persons but which may be null and void as per the provisions of the Act. We have, therefore, to see, whether the case on hand is a case of marriage having been performed between Pappammal and the 1st defendant or whether it is a case of no marriage between these two. If the plaintiff is able to prove that the present is a case of marriage between Pappammal and the 1st defendant, he would be entitled to a share in the properties of his father as per Section 16(1) of the Hindu Marriage Act, since, according to the said provision, any child born of a marriage would have been legitimate if the marriage had been valid, and shall be legitimate irrespective of the fact that the marriage is null and void under Section 11 of the Hindu Marriage Act. If the plaintiff fails to prove the factum of marriage, he would not be entitled to any share in the suit properties. We shall now proceed to consider the evidence tendered in this case.
9. The plaintiff examined himself as P.W. 1. According to him, the 1st defendant married Pappammal in the year 1943 as his second wife. He deposed that his mother is mentally ill because of a car accident, that she is hard of hearing, that she has no proper vision and that she is bed-ridden. It is to be noticed that the other side has let in evidence to show that Pappammal was hale and healthy and was mentally all right, and even though she was in a position to depose before Court, she was not examined as a witness in this case. In support of their contention, the defendants have marked certain documents which we shall deal with at the appropriate stage.
10. P.W. 1 further deposed that the 1st defendant has purchased a house in the name of Pappammal and made them to live in that house. He has denied that factum of partition under Ex. B-6 in the year 1956. He has further relied on Ex. A-2, wherein Pappammal was described as the wife of the 1st defendant. Ex. A- 31 is the voters’ list wherein the plaintiff has been mentioned as the son of the 1st defendant. In Serial No. 370, Pappammal has been described as the wife of the 1st defendant and Door No. 3 has been mentioned as their address, which is the ancestral house of the 1st defendant. Serial Nos. 368 and 369 are the names of the 1st defendant’s brother and his wife. In the cross-examination the plaintiff has deposed that he came to know about the marriage between Pappammal and the 1st defendant when he was about ten years old and that the said news was conveyed to him by one Sottayappa Gounder, his father’s brother. It is also pertinent to notice that the said Sottayappa Gounder was not examined as a witness on the side of the plaintiff. He has also denied a suggestion in regard to the subsistence of the marriage between his mother Pappammal and Koola Gounder. He says that he came to know about the marriage between Pappammal and the 1st defendant after eleven years and that he did not enquire about the factum of marriage with others. He has admitted in cross-examination that Koola Gounder is still alive and is living in Perumapattu village. He has deposed that he did not produce any document to show that his mother was taking treatment in the Government Hospital and that his mother is not in a position to converse anything with others and also not in a position to understand anything from others. When the photos of his mother marked as Exs. B-l to B-3 were shown to P.W. 1 during cross-examination, he conceded that they were taken when his mother was bringing water on her head and that it is the photo of his mother. However, he denied the suggestion that his mother is capable of talking to others and that she is in a position to freely walk and attend to her personal needs.
11. P.W. 2 is one Muruga Gounder living in the adjacent village. In chief- examination he denied that the plaintiff’s mother Pappammal was the wife of one Koolan Gounder and that the 1st defendant was keeping her as his concubine. He deposed that the plaintiff has married the 1st defendant’s sister’s daughter and that marriage was performed by the 1st defendant himself. In cross- examination he said that Pappammal is still alive and that he had talked to her one and a half years before his giving evidence and that Pappammal is owning some cows and is also doing cooli work.
12. The 1st defendant examined himself as D.W. 1. According to him, a marriage was performed between Pappammal and Koola Gounder in Perumapattu village, that he attended the said marriage which was performed by one Ramaswcrmi lyer, that Pappammal and Koola Gounder were living together for sometime, that due to difference of opinion, Pappammal came out of the matrimonial home and thereupon, he developed illicit intimacy with the said Pappammal and that the said illicit intimacy started one year after his marriage with his second wife Peruma Ammal. He further deposed that he did not give any money to Pappammal to purchase any house property, that they were not in talking terms and that Pappammal is hale and healthy and she is also doing cooli work. D.W. 1 has denied the suggestion that Pappammal is mentally ill and her eye sight is poor. He has identified the picture of Pappammal in Exs. B-l and B-2 and according to him, the said pictures were taken recently by one photographer from Santhi Studio of Thiruppathur. He has also produced Ex. B-4 receipt dated 26.8.1983 for effecting payment for the said photographs. He has further deposed that under Ex. B-6, the properties were divided between him and his eldest son Vediappan. Thereupon, the properties were divided between himself and his sons defendants 2 to 6 and those properties are in the enjoyment of his legitimate sons defendants 2 to 6. He also deposed that defendants 2 to 6 have also acquired other properties from and out of the income from the landed properties allotted to them under the partition Ex. B-6. He has specifically denied a suggestion in the cross-examination that the plaintiff was born to him and that he was keeping Pappammal as his concubine.
13. D.W. 2 is an attestor to Ex. B-6. It is his evidence that Pappammal was not married to the 1st defendant and that the said Pappammal was married to one Koola Gounder, which marriage he attended. D.W. 2 was aged about 80 at the time of giving evidence. He would depose that the 1st defendant is living with his wife Peruma Ammal even now and that a partition took place between the 1st defendant and his sons in 1956 and mat Ex. B-6 was written evidencing the said partition. He is also one of the witnesses to Ex. B-6. He has denied the suggestion that Ex. B-6 was invented for the purpose of this case.
14. D.W. 3 is one Saravana Gounder aged about 75. He deposed that Pappammal was married to one Koola Gounder, that she left the matrimonial home of Koola Gounder two years after the marriage and that the 1st defendant was keeping the said Pappammal as his kept mistress. In cross-examination, though he deposed that a Panchayat was convened for cancelling the marriage between Koola Gounder and Pappammal, he did not say what happened in the Panchayat or whether the said marital tie was really severed. Not even a suggestion seems to have been made that such severance took place either in the said Panchayat or otherwise. On the other hand, he only added, after referring to the said Panchayat.
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15. D.W. 4 is one C. Annamalai Gounder of Perumapattu. He is aged about 65 years. It is his evidence that Pappammal married Koola Gounder and that the 1st defendant was having connection with the said Pappammal even during the subsistence of marriage between Koola Gounder and Pappammal. He has denied the suggestion that Pappammal is mentally ill. He deposed that Koola Gounder had another wife by name Lakshmi and that the said Lakshmi and the children born to her through Koola Gounder are still alive.
16. Mr. K. Surendranath, learned Counsel for the appellants, contended that there is no valid marriage between the 1st defendant and Pappammal and that the plaintiff has miserably failed to prove that the marriage between the 1st defendant and Pappammal was performed in accordance with the Hindu rites and custom. He has also pointed out certain inconsistencies in the pleadings and evidence adduced on the side of the plaintiff as regards the date and place of marriage between Pappammal and the 1st defendant. The only witness who speaks about the marriage is P.W. 2. We have already considered the oral and documentary evidence tendered by both sides in extenso, which, in our view, does not disclose that the rites and customs as required were performed. Therefore, we are unable to draw any inference of any valid marriage between the 1st defendant and Pappammal. In our opinion, P.W. 2’s evidence cannot be relied on for the following reasons :
(a) P.W. 2 does not know when the 1st defendant married Mari Ammal.
(b) P.W. 2 deposed that the 1st defendant and Mari Ammal lived for ten years and Mari Ammal died about thirty years prior to the suit, i.e., in about 1950, and that the second marriage of the 1st defendant took place in 1952. His evidence is contrary to the pleadings set out in the plaint.
(c) P.W. 2doesnotknow the persons who attended the alleged marriage.
The evidence of P.W. 2, in our opinion, is vague, interested and untrustworthy. He does not remember any other marriage except the alleged marriage between the 1st defendant and Pappammal.
17. As rightly pointed out by the learned Counsel for the appellants, the Trial Court ought not to have placed any reliance on the evidence of P.W. 1 as his evidence as regards the year of marriage is self-contradictory. In chief-examination he says that the marriage was in the year 1943 but in the cross-examination he deposed that the marriage has taken place in the year 1942. His evidence that only at the age of ten he came to know about the alleged marriage between the 1st defendant and Pappammal is highly artificial. He admits that no marriage invitation was printed for his marriage when invitations were printed in respect of the marriages of the other children of the 1st defendant. We are of the view that the plaintiff has come forward with a suit with untrue allegations viz., that his mother Pappammal is mentally and physically sick and bed-ridden for the past several years and that she is hard of hearing and her eye sight is poor whereas it has been amply demonstrated by oral and documentary evidence by the 1st defendant that she was not only hale and healthy mentally stable but was also doing cooli work. In spite of the evidence tendered by all the D.Ws., the Court below has failed to see that Pappammal was already married to one Koola Gounder, that the said Koola Gounder still alive and that therefore, there could not have been any marriage whatsoever between Pappammal and the 1st defendant.
18. Mr. K. Sukumaran, learned Counsel for the 1st respondent, strenuously contended that the 1st defendant has, in fact, married Pappammal and lived with her as man and woman for several years and therefore it must be presumed that they lived as husband and wife. He contended that a strong presumption arises in favour of the wedlock where the partners have lived together for a long spell as husband and wife. He has also invited our attention to some of the documents filed viz., Ex. A-l dated 7.7.1944, birth extract, Ex. A-2 dated 6.2.1976, a sale deed in favour of Pappammal wherein she has been described as the wife of the 1st defendant, and the voters’ list Ex. A-31 besides Exs. A-32 and A-33 which are lease deed and mortgage deed. It is pointed out from the voters’ list that Pappammal has been described as the wife of the 1st defendant. However, the learned Counsel for the 1st respondent was not in a position to explain satisfactorily as to why Pappammal, who is proved to be hale and healthy and is doing cooli work and mentally all right, was not examined as a witness to prove the factum of marriage between her and the 1st defendant. In our opinion, the non-examination of Pappammal, who is the best person to speak about her marriage with the 1st defendant, is fatal to the whole case. Merely because Pappammal’s name has been described as the wife of the 1st defendant in some documents and in the voters’ list, that will not prove the factum of marriage. There is no positive evidence of any marriage having taken place between Pappammal and the 1st defendant. At the risk of repetition, we would like to point out that the plain tiff except examining himself as P.W. 1 and another person as P.W. 2, has not examined any other independent witness to speak about the factum of marriage between Pappammal and the 1st defendant. On the other hand, the defendants have let in ample evidence to show that the 1st defendant was having some illicit intimacy with Pappammal for some years and the 1st defendant has not been established. The birth extract Ex. A-l is strongly relied on by the plaintiff. The entry therein cannot, in our view, act as proof either regarding the paternity or the relationship between the parties except the fact that a child was born on such and such a date.
19. The decision reported in Andrews v. Anthony John [1986 (II) M.L.J. 235] was cited by the learned Counsel for the appellants to show that the entries in the electoral role are not conclusive and they cannot be taken as a conclusive evidence. M. Srinivasan, J., after referring to a number of earlier decisions, pointed out that the entries are admissible in evidence in order to prove the matters relating thereto and that under Section 35 of the Evidence Act, it is only the entry made by a public servant in the discharge of his official duties that is admissible as a relevant fact.
20. Learned Counsel for the 1st respondent relied on the decision reported in Bikash Kumar Mukherjee v. Nanda Rani Mukherjee to say that when a man and a woman were living together for long time, the man acknowledged the woman’s children as his own children and treated the woman as his wife, they were recognised by all persons concerned as man and wife and so described in documents like ration card, voters’ list, etc., and therefore, there is a strong presumption that the woman was the wife of the man and the children were legitimate children. But, in the present case, the said presumption cannot be made since it has been proved in this case that Pappammal was married to one Koola Gounder prior to her alleged marriage with the 1st defendant and that the said marriage with the said Koola Gounder has not been proved to have been dissolved. This is clear from the evidence of a very elderly person viz., D.W. 3, as already pointed out in paragraph 15 above. It has also been held in Gokal Chand v. Parvin Kumari (A.I.R. 1952 S.C. 231), dealing with the abovesaid presumption under Section 114 of the Evidence Act, thus :
“But the presumption which may be drawn from long cohabitation is rebuttable, and if there are circumstances which weaken or destroy that presumption, the Court cannot ignore them.”
In the present case, there are such circumstances. Hence, this Court is not justified in the circumstances of the case in raising the legal presumption of lawful marriage arising out of long cohabitation and repute. Hence, we are of the view, that the aforesaid decision will be of no assistance to the plaintiff.
21. The decision reported in Challammal v. Ranganatham Pillai [(1911) I.L.R. 34 Madras 277] was to the effect that the fact that a woman was living under the control and protection of a man, who generally lived with her and acknowledged her children as his, will raise a strong presumption that she is the wife of that man. However, this presumption will be rebutted by proof of facts which show that no marriage could have taken place. In that case, a Division Bench of our High Court held that where relations and castemen, who would have been present at the marriage if it had taken place, are not called as witnesses, and persons who would have been invited have received no invitation, the presumption will be that no marriage has taken place. As pointed out earlier, none was examined in this case to prove that factum of marriage except the interested testimony of P.Ws. 1 and 2. Therefore, the conclusion is that no marriage had taken place between Pappammal and the 1st defendant. The decision reported in Badri Prasad v. Deputy Director of Consolidation is again cited to show that a man and woman lived as husband and wife for fifty years and therefore, the presumption is in favour of the wedlock. There is no dispute or quarrel about the proposition of law laid down in the said case. However, as pointed out earlier, such a presumption cannot be raised in the present case.
22. Then, once the factum of marriage is not proved, we have to treat this case as a case of no marriage and therefore, Section 16(1) of the Hindu Marriage Act is not attracted and the children born out of such relationship cannot get the benefit of Section 16(1) of the Hindu Marriage Act. The Court below having very many vital factors in considering the factum of marriage between Pappammal and the 1st defendant, has miserably failed to render a correct finding. In our view, the Court below has rendered a finding without properly appreciating the oral and the documentary evidence filed on the side of the parties. Therefore, we are unable to agree with the view taken by the Trial Court. As pointed out earlier, the properties were partitioned between the 1st defendant and his other children under Ex. B-6 as early as 26.12.1956 and eversince the parties are in possession and enjoyment of their respective shares. Therefore, there cannot be a further partition between the parties. To substantiate their contention, the defendants have also filed Exs. B-7 to B-12 sale deeds which amply show that the parties have acquired properties and have dealt with the properties separately in their own exclusive names. This will show that they are in possession and enjoyment of their separate shares. The judgment of the Court below is based on surmises and assumptions and we are not satisfied with the reasons assigned by the Court below in decreeing the suit.
23. For the fore-going reasons, the appeal is allowed, the judgment and decree of the Trial Court are set aside and the suit is dismissed. However, there will be no order as to costs throughout.