IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 16/08/2002
CORAM
THE HON'BLE MR. JUSTICE K. SAMPATH
S.A.No.1285 of 1992
A. Murugesan,
S/o Angamuthu Gounder,
Karaiyanur,
Kannandheri P.O.,
Sankari Taluk,
Salem District. ... Appellant
-Vs-
1. Angamuthu Gounder,
S/o Chinna Gounder.
2. Manickam,
S/o Angamuthu Gounder.
3. Palanisami,
S/o Angamuthu Gounder.
(All reside at Karaiyanur,
Kannandheri P.O.,
Sankari Taluk,
Salem District. ... Respondents
For Appellant: ... Mr.T. Murugamanickam
For Respondents: ... Mr.M. Sathyanarayanan
This second appeal is filed against the judgment and decree
dated 1 9-4-1989 made in A.S.No.165/89 on the file of the learned First
Additional District Judge, Salem.
:JUDGMENT
The plaintiff in O.S.No.505/85 on the file of the learned
Subordinate Judge, Sangagiri, is the appellant in the second appeal. He filed
the suit for partition and separate possession of his one half share in the
suit properties. The defendants were his father Angamuthu and his sons
through one Chinnathayee.
2. His case as set out in the plaint is as follows:
The suit properties fell to the share of the first defendant
in a partition dated 17-4-1973. The first defendant married the plaintiff’s
mother one Thailammal in 1935 as per custom in the community. The plaintiff
and one Thankamma were born to them. Out of the income from the joint family
properties, the first defendant constructed houses, dug up wells and purchased
properties. The plaintiff was entitled to one half share in the suit
properties. There were no debts to the family. The first defendant had an
elder brother by name Sengoda Gounder. He died leaving behind two wives,
Thaiyamuthammal and Chinnathayee. The first defendant was keeping
Chinnathayee as his concubine. Defendants 2 and 3 and three female children
were born to them. There was misunderstanding between the plaintiff and the
first defendant because of defendants 2 and 3. The plaintiff caused a notice
to be issued on7-2-1985 for partition. The first defendant sent a reply
stating that the plaintiff was only his second wife’s son and defendants 2 and
3 were his sons through his first wife Chinnathayee and they were also
entitled to a share. The suit was therefore necessitated.
3. The first defendant filed a written statement contending
inter alia as follows:
He married the plaintiff’s mother Thailammal in 1937; she was
his second wife and Chinnathayee was his first wife and mother of defendants 2
and 3; six months prior to his marrying Thailammal, the first defendant
married Chinnathayee, widow of his elder brother Sengoda Gounder, who died in
March, 1936; the first defendant belonged to Vanniyakula Kshatriya and he
married Chinnathayee as per custom in the Community; it is not correct to say
that Chinnathayee was his concubine; there is a custom in the Community for
remarriage of widows; defendants 2 and 3 are legitimate children and they are
entitled to a share; the first defendant purchased house and other properties
on 24-11-1943 ; they were his separate properties; a division was effected in
1940 originally, though the partition deed was executed only in 1973; In that
partition, the first defendant gave away his self-earned properties to his
brother’s children and took their property in S.No.94, which was subdivided as
S.Nos.94/1 and 94/1-A; he dug a well in the property and put up a house in
1961; the thatched house was put up in 1943 and tiled house in 1969 out of his
own earnings; there is debt of Rs.10,000/-; It is not correct to say that till
date there had been no division; there was an oral division on 4-6-1971; the
properties were divided into four equal shares; the movables were also divided
and ever since the division the respective sharers were in separate
possession; the oral division was effected in the presence of panchayathars;
in 1978 misunderstanding arose between the plaintiff and the first defendant;
the plaintiff gave a criminal complaint against the first defendant; it is not
correct to say that the plaintiff is in enjoyment of the joint family
properties; the plaintiff is enjoying the properties allotted to him
separately; in case, a fresh division is to be effected, the self-earned
properties of the first defendant may be left out and there can be a partition
of the other properties and provisions should be made for repayment of the
debt in a sum of Rs.10,000 /-.
4. Defendants 2 and 3 supported the case of the first
defendant and contended that they were legitimate children of the first
defendant; they were entitled to 1/4th share; even assuming that they were not
legitimate children of the first defendant, they were entitled to 1/4 th
share; in any event, they had been in long possession and enjoyment from 1971
and there was an oral partition and they had prescribed for title by adverse
possession.
5. On the above pleadings, the learned Subordinate Judge
framed the necessary issues and on the oral and the documentary evidence, held
that defendants 2 and 3 were the legitimate children of the first defendant,
that there was no oral partition as contended by the defendants in 1971 and
that the plaintiff was entitled to partition and separate possession of his
1/4th share. So holding by judgment and decree dated 30-9-1988, the learned
Subordinate Judge passed a preliminary decree for partition.
6. In so far as the plaintiff had been granted only a 1/4th
share in the properties, he filed an appeal in A.S.No.165/88 before the
Additional District Judge, Salem, who by his judgment and decree dated 19
-4-1989, confirmed the decision of the trial Court and dismissed the appeal.
7. It is as against that, the present second appeal has been
filed. At the time of admission, the following substantial question of law
was framed for decision in the second appeal:
“Whether the Court below was right in law in stating that a presumption of a
valid marriage must be drawn between the first defendant and Chinnathayee?
8. Mr. Murugamanickam, learned Counsel for the appellant,
submitted that there were vital discrepancies in the evidence of the first
defendant, that if we go by his evidence, it would be clear that Chinnathayee
could not have married the first defendant prior to his marriage with
Thailammal, that the Courts below were in error in presuming a valid marriage
overlooking the following material circumstances:
(1) Chinnathayee herself was already married to the first
defendant’s brother Sengoda Gounder and it is most unlikely that the first
defendant married the widow first and married the mother of the plaintiff
thereafter.
(2) There is no independent evidence with regard to the
marriage of Chinnathayee, a widow with a male issue.
(3) Non-examination of Chinnathayee to prove the marriage is a
strong piece of evidence against the probability of a valid marriage.
9. The Courts below, in the submission of the learned
Counsel, were in error in not deciding the question
as to whether the plaintiff’s mother was married first or the alleged marriage
with Chinnathayee took place first.
10. Further, according to the learned Counsel, it could be
seen that the second defendant was born within four months of the alleged
marriage with chinnathayee. The learned Counsel for the appellant relied on
the following decisions in support of his contentions:
1. SEERANGAMMAL (DIED) AND OTHERS VS. E.B. VENKATASUBRAMANIAN & OTHERS (100
L.W. 58)
2. K. MUNUSWAMI GOUNDER AND ANOTHER VS. M. GOVINDARAJU AND 4 OTHERS
(1995-I L.W. 487.
11. As regards the powers of this Court to interfere under
Section 100 of the Code of Civil Procedure, the learned Counsel relied on the
following decisions:
1. MAJOR SINGH VS. RATTAN SINGH (DEAD) BY L.RS. AND OTHERS (1997(3) SCC
546)
2. V. MANAKKAN AND FIVE OTHERS VS. VEERA PERUMAL (1998-2 CTC 157)
3. RAJIAH NADAR VS. MANONMANI AMMAL (1999-1 CTC 245) and
4. KRISHNAN AND OTHERS VS. SUBHASHINI AND OTHERS (2000-3 MLJ 629).
The learned Counsel lastly submitted that in any event, there should be a
remand for consideration afresh as to whether the first defendant married
Chinnathayee first or Thailammal first.
12. Per contra, Mr.M. Sathyanarayanan, learned Counsel for
the respondents, submitted that the Courts below have as a question of fact
come to a conclusion that there was a valid marriage between the first
defendant and Chinnathayee and that defendants 2 and 3 were born to them and
that Thailammal married the first defendant only after his marriage with
Chinnathayee. This being a question of fact, absolutely no interference is
called for.
13. According to the learned Counsel Mr. Murugamanickam, the
trial Court merely sets out the evidence of P.W.3. It does not accept or
reject his evidence. The evidence of P.W.2 is not considered at all. The
learned Counsel in this connection only, relied on the decision in K.
MUNUSWAMI GOUNDER AND ANOTHER VS. M. GOVINDARAJU AND 4 OTHERS (1995-1 LW
487) and submitted that once a perso n sets up a marriage and is not able to
prove the factum of the marriage, he cannot rely upon presumption on the basis
of long cohabitation.
14. The case of the first defendant is that he married
Chinnathayee prior to his marrying Thailammal. The custom in the Community
that there could be widow remarriage is not disputed. It is also not in
dispute that the alleged marriages of the first defendant took place prior to
the introduction of the Bigamy Prohibition Act, 1949.
15. Let us now have a look at the oral evidence. P.W.1 is
the plaintiff and his evidence in this regard is practically useless. He is
not a competent witness to speak about the marriage of his father. P.W.2 is
Thailammal. In her chief examination, she has stated that the first defendant
is her maternal uncle, that at the time of her marriage, his brother Sengoda
Gounder was alive, that he died only after her marriage, that he had a son
through Chinnathayee, that all of them lived together after the death of
Sengoda Gounder, that at that time Chinnathayee was pregnant through the first
defendant, that there was no marriage between the first defendant and
Chinnathayee, that he started keeping her, that she was upset and went away to
her father’s house, that she returned to the marital home one and a half years
thereafter after a panchayat and that there was no division between the first
defendant and the plaintiff. In the cross examination, she has admitted about
the custom prevailing in the Community regarding the widows remarriage, that
the custom was in vogue for a long time, that her brothers-in-law had each two
wives, that it was not correct to say that Sengoda Gounder died prior to her
marriage, that the first defendant, Chinnathayee and herself lived jointly in
the same house, that she could not say when Sengoda Gounder died, that she was
married to the first defendant in 1935 and that it was not correct to say that
she was the second wife, but she was the first wife.
16. P.W.3 is one Naina Gounder aged 80 years in 1988. In his
chief examination, he stated that Sengoda Gounder died one year after the
marriage between the first defendant and Thailammal, that after the death of
Sengoda Gounder, the first defendant, Sengoda Gounder’s wife and others were
living together, that Thailammal was upset over Chinnathayee living with the
first defendant and being pregnant 5 or 6 months and therefore she went away
to her mother’s place, that there was a panchayat and the first defendant told
him that he had not married Chinnathayee and that only he was keeping her. In
crossexamination, he stated that the plaintiff was known to him, that he did
not remember the panchayat date and he could not give the date, that it was
not correct to say that there was no panchayat. He admitted that the first
defendant was living with both his wives as a single family.
17. The first defendant has examined himself as D.W.1. He
has stated in his chief examination that he was married in 1937 to
Chinnathayee and thereafter married P.W.2 Thailammal, that he married the
widow of his brother Sengoda Gounder as per family custom, that he was living
with his two wives as a single family, that defendants 2 and 3 were his
children through his first wife Chinnathayee and the plaintiff was his only
son through his second wife Thailammal, that it was not correct to say that he
did not marry Chinnathayee and that Thailammal was his first wife and that one
year after his marriage with P.W.2, he took Chinnathayee as his concubine. In
cross-examination, he stated that his brother died on 20th of Masi, that he
had no connection with his brother’s wife while he was alive, that one year
after his brother’s death, he married Chinnathayee and it was in Aani and he
married P.W.2 in Aippasi, that P.W.2 did not quarrel with him because he
married Chinnathayee nor did she go away to her mother’s place and that at the
time of his marriage to P.W.2, he had a son through Chinnathayee.
18. D.W.2 is one Manickam. It is not necessary to refer to
his evidence. One Pachiannan has been examined as D.W.3. He has said about
the marriage of D.W.1 with Chinnathayee, that he attended the marriage, that
six months thereafter, the first defendant married P.W.2 and that at the time
of the first defendant’s marriage with Chinnathayee, he was 21 years old. His
evidence, according to the learned Counsel Mr. Murugamanickam, cannot be
accepted as he would have been very young at the time of the alleged marriage
between Chinnathayee and the first defendant. I do not think that such a
contention can be accepted. The memory of a person can be pretty good even if
several years have passed by. It is very likely that one may not remember
what happened yesterday, but, is able to recollect something that happened 30
years or 40 years back.
19. Whatever it is, the Courts below chose to accept the
marriage between the first defendant and Chinnathayee as having taken place
prior to the first defendant’s marriage with Thailammal, mother of the
plaintiff. The marriage between the first defendant and Chinnathayee, in my
view, has been satisfactorily established and that the Courts below have
proceeded on probabilities, particularly when evidence as regards the exact
date and time of marriage wo uld not be available at this distance of time,
having not merely relied on presumption arising out of long cohabitation.
Even otherwise, on the evidence I am satisfied that it has been established
that the first defendant married Chinnathayee before he married Thailammal.
20. I will now refer to the various decisions relied on by
the learned Counsel for the appellant.
21. In SEERANGAMMAL (DIED) AND OTHERS VS. E.B.
VENKATASUBRAMANIAN & OTHERS (100 LW 58) a Division Bench of this Court held
that,
“presumption of marriage from long cohabitation and evidence from materials
like school records, letters, voters’ list, money order coupons, etc. would
be sufficient to show that a woman was treated by a man as his wife.”
In that case, the description of the lady in the Will as “vaippu manaivi” was
held not to mean a concubine in view of the fact that in several documents she
had been described as wife. In that case, the recognition of her as wife by
the husband himself, even though origin was in the nature of concubinage and
long cohabitation with her, after the death of the first wife and on the
materials to show that society treated her as his wife, the Bench held that
those things would be sufficient to draw the presumption under Section 114 of
the Evidence Act. In paragraph 24 this is what the Bench stated:
“Yet another plea of defendants is that marriage ceremony as claimed in para
12 of the plaint having not been established, the presumption under Section
114 of the Evidence Act cannot exist. Failure to establish by legal evidence
about ceremonies was due to the fact that they took place inside the family
house and in the presence of selected relatives and well wishes of Ranganatha.
To prevent publicity and with an obvious aim of preventing prestige, secrecy
had been maintained. No invitations were printed. Under such circumstances,
her inability to prove the marriage and more so when Ranganatha’s relations
who could alone speak about it are antagonistic and aim at getting at the
property; this failure to sustain a form of marriage attempted by her would
not act as a bar against her from invoking Section 114 of the Evidence Act.
This is neither a conflicting nor an alternative plea put forth, but one mode
of proof adduced but not established due to special circumstances obtaining
when such acts are committed by men aimed at benefitting themselves. Factum
of continued cohabitation as husband and wife to the knowledge of the world
thus made out, the failure to prove marriage would not stand in the way of
presumption being drawn.”
22. In K. MUNUSWAMI GOUNDER AND ANOTHER VS. M. GOVINDARAJU
AND 4 OTHERS (1995-1 LW 487) it has been held that presumption of marriage
under Section 114 of the Evidence Act cannot be drawn when facts show that no
marriage could have taken place between the man and the woman by rebuttal
evidence.
23. The learned Counsel for the appellant submitted that once
a person comes forward with a case of marriage and fails to prove it, then he
cannot fall back on the presumption under the Evidence Act. This is not a
case where any presumption is sought to be drawn. In fact, there is an
admission on the side of the plaintiff that Chinnathayee was the wife, but she
was only the second wife. When there was no prohibition for a second marriage
and when there was also a custom in the Community for marrying a brother’s
widow and when P.W.3 in cross examination has stated that the first defendant
was living with his two wives as a single family and this coupled with the
evidence of D.W.1 that he married Chinnathayee first and thereafter Thailammal
would conclusively show that there was indeed a marriage between the first
defendant and Chinnathayee.
24. In BADRI PRASAD VS. DEPUTY DIRECTOR OF CONSOLIDATION AND
OTHERS (1978-3 SCC 527) a three Judges of the Supreme Court held that from a
man and a woman living together for 50 years a strong presumption of marriage
between them arises under Sections 114 and 101 to 103 of the Evidence Act and
the burden was very heavy on anyone seeking to rebut such presumption. It was
also held that if men and women who live as husband and wife in society are
compelled to prove, half a century later,by eyewitness evidence that they were
validly married, a few will succeed.
25. In SURJIT KAUR VS. GARJA SINGH AND OTHERS (AIR 1994 SC
135 = 19 94-1 LW 38) the Supreme court held that in the absence of proof,
pleading of customary marriage and living together as husband and wife by
itself, would not confer the status of husband and wife. In that case, the
wife was in the habit of changing husbands frequently. Merely because they
lived as husband and wife, the Supreme Court held that the status of wife was
not conferred on the person claiming to have married.
26. The instant case is one where the custom is accepted and
the marriage also is accepted, though P.W.2 claims that she is the first
defendant’s first wife. She has admitted the custom regarding marriage
between the man and his brother’s widow and the man having more than one wife
at a time.
27. Having regard to the state of evidence, I have no
hesitation in concurring with the view taken by the Courts below and
confirming the decree for 1/4th share in favour of the plaintiff and
dismissing his appeal claiming more share. No interference is called for.
The substantial question of law is answered against the appellant. The second
appeal fails and the same is dismissed. However, there will be no order as to
costs.
Index: Yes
Internet: Yes
IGP
To
1. The First Additional
District Judge, Salem,
(with records)
2. The Subordinate Judge,
Sangagiri.
3. The Record Keeper,
V.R. Section,
High Court,
Madras.
K. SAMPATH, J.
Judgment in S.A.No.1285 of 1992