V.V. Kannan And Anr. vs K. Sridhar on 30 April, 2004

ORDER

S.K. Krishnan, J.

1. Aggrieved by the judgment of the learned Judge of this Court, the appellants under Clause 15 of the Letters Patent have come forward with this appeal.

2. The factual background of this appeal, in a nutshell, is as follows:

Defendants in O.S.No.1 of 1986 on the file of the Principal Subordinate Judge, Chengleput, are the appellants. Plaintiff/respondent filed a said suit for partition of the suit properties into two equal shares and for allotment of one half share on the ground that he is the only son of the first defendant. After partition in the year 1975, the first defendant wanted to marry again and since the same was disputed by the plaintiff as well as his mother Dhanalakshmi, they have been living separately. Taking advantage of the same, the first defendant’s brothers and their sons were attempting to sell the suit properties belonged to the first defendant and therefore, the plaintiff urged the first defendant for partition of the suit properties. On 13.10.1985, the plaintiff filed a petition before the Sub Registrar Office, Chengleput, objecting to the registration of any document being executed by the first defendant. The Sub Registrar, Chengalpattu, informed the plaintiff that his remedy lies only in the Civil Court. On 29.10.1985, the plaintiff issued a registered notice to the first defendant demanding partition. A reply was sent by the first appellant stating that the plaintiff is not his son and the first defendant still is a celibate. The first defendant also claimed that since the properties were owned by him, he has got every right to deal with the same in any manner. Hence, the said suit was filed by the plaintiff.

3. Heard the learned counsel for the appellants as well as the respondent.

4. The learned counsel for the appellants, assailing the concurrent findings of this Court and the Court below, would contend that the first appellant has never married and still he is leading a celibacy life and therefore, the said Dhamannal is neither the wife of the first appellant nor the plaintiff is the son of the first appellant and in such circumstances, the plaintiff cannot claim any share in the suit properties which were owned by the first appellant and thereby he is having absolute right over the suit properties.

5. In reply, the learned counsel for the respondent, supporting the judgments of this Court as well as the Court below, would contend that the first defendant married one Dhanalakshmi in June 1955 at Vedal Village and she gave birth to the plaintiff, namely, Sridhar, and therefore, the plaintiff is having every right to claim his share in the suit properties and therefore, the appeal may be dismissed.

6. This Letters Patent Appeal has been preferred against the concurrent findings of this Court and the Court below. The respondent herein, claims to be the son of the first appellant, filed a partition suit before the Subordinate Judge, Chenglepattu.

7. The main contention of the respondent before the Subordinate Judge is that, he is entitled to claim a half share in the suit properties on the basis that he is the only legitimate son of the first appellant.

8. It is to be seen that the first appellant herein totally denied the relationship of father and son and has gone to the extent of denying the marital relationship with the mother of the plaintiff one Dhanammal. It was his contention that no marriage was taken place between him and the mother of the respondent, namely, Dhannammal at any point of time and thereby, he totally denied that the respondent was never born to the first appellant. However, on the basis of the oral and documentary evidence, the learned Subordinate Judge, decreed the suit in favour of the respondent/plaintiff directing the first appellant to allot a half share to the respondent/plaintiff in the suit properties.

9. As against the judgment and decree passed by the learned Subordinate Judge, Chengalpattu, the appellants herein, have preferred an appeal suit before this Court. It is seen that, this Court, after analysing the entire facts and also the legal position, came to the definite conclusion that the respondent is the son of the first appellant and he is entitled to claim a half share in the suit properties and therefore, it dismissed the appeal suit confirming the judgment and decree of the Court below. The learned Judge of this Court has elaborately discussed the various facts relating to the marital relationship of the first appellant with the mother of the respondent and also father and son relationship between the respondent and the first appellant.

10. It is seen that the learned Judge of this Court, while analysing the evidence of P.W.1 to 4 elaborately, the learned Judge also discussed the relevant facts mentioned in Exs.A.4, A5 and A6 and therefore, he came to the inevitable conclusion that the judgment and decree passed by the learned Subordinate Judge, Chengalpattu, was to be confirmed. Accordingly, he dismissed the appeal suit, against which, the appellants herein have preferred this Letters Patent Appeal.

11. For deciding this appeal, the following points are necessarily to be discussed for arriving a just conclusion.

a. Whether the factum of marriage of the first appellant with the mother of the respondent, namely, Dhanammal, was proved or not ?

b. Whether the Dhanammal gave birth to the respondent as a result of the marriage with the first appellant held in the year 1955 ?

c. Whether the respondent is entitled to claim a half share from the suit properties ?

12. For proving the marriage of Dhanammal with the first appellant, Ex.A.6, marriage invitation card, was produced by P.W.1, the son of Dhanammal. Even though P.W.1 is not competent to speak about the solemnisation of the marriage between Dhanammal and the first appellant, P.W.1 produced Ex.A.6 after obtaining the same from his grandfather. In this connection, P.W.1 has categorically stated in his evidence as follows:

13. P.W.1, in his cross examination, has stated about the availability of Ex.A.6, as follows:

14. From the above evidence of P.W.1, it is clear that Ex.A.6 is the marriage invitation card of his parents, which he had got from his grandfather, who had had given the same to the P.W.1, for the purpose of the suit. When a suggestion was put to P.W.1 by the defendants’ counsel, he denied the suggestion that Ex.A.6 was printed only after the institution of the suit.

15. Regarding the marriage of the first appellant with Dhanammal, place of marriage, the genuineness of Ex.A.6, P.Ws.2 to 4 have given clinching and corroborative evidence, which are as follows:

a. P.W.2 has deposed as follows:

b. P.W.3, in his evidence has stated as follows:

c. P.W.4, who is the sister of the first appellant, also corroborated the evidence adduced by P.W.1, 2 and 3 with regard to solemnisation of the marriage of the first appellant with Dhanammal and she has deposed as follows:

16. On a careful analysis of the evidence of P.Ws.1, 2, 3 and 4 and also considering the genuineness of Ex.A.6, it is clear that the marriage of the first appellant with Dhanammal was held on 26.5.1955 at Vedal Village.

17. According to P.W.1 and P.W.2, as soon as the partition was effected among the brothers of the first appellant during the year 1975, the first appellant was trying to have a second marriage and since the same was disputed and objected to by P.W.1 and 2, some misunderstanding arose between Dhanammal and the first appellant. Then, the first appellant left Dhanammal and has been living separately at his rice mill. This fact has been stated by all the witnesses. The first appellant has also admitted that he has been staying separately at his rice mill along with one Bangaruammal. It is to be noted that even though D.W.1 has categorically denied that no such marriage has taken place between him and Dhanammal, he indirectly admitted the stay of Dhanammal with her son Sridhar with their joint family. It is seen that subsequently, after having been deserted by the first appellant, Dhanammal and her son have been living in a cattle shed of the first appellant. This factum of living has been corroborated by P.W.3 and P.W.4. In this connection, P.W.4 has stated as follows:

18. As already stated above, P.W.4 is none other than the sister of the first appellant. She has categorically established the factum of the marriage of his brother with Dhanammal at Vedal Village. Had the marriage between the first appellant and Dhanammal not taken place, neither the first appellant nor his brothers and sisters would not have allowed Dhanammal and her son, namely, P.W.2 and P.W.1, to stay in their property. Even with regard to the factum of stay of Dhanammal with her son with the joint family, the first appellant has indirectly admitted as follows:

19. With regard to the staying of Dhanammal with her son Sridhar P.W.3 has stated as follows:

20. Therefore, it is revealed from the above, the P.W.2 and P.W.1 have been living in a cattle shed belonging to the first appellant, who has been living in his rice mill separately.

21. It is seen that the learned Judge of this Court, with regard to the factum of marriage of the first appellant with Dhanammal, has elaborately discussed the entire facts relating to the marriage in a proper manner.

22. The learned Judge, after analysing the evidence adduced by P.W. 1 to 4, and also considering the relevancy of Ex.A6, rightly concluded that the marriage was held at Vedal Village between the first appellant and Dhanammal on 26.5.1955 and thereby the first appellant is the husband of Dhanammal.

23. In support of his contention, the learned counsel appearing for the appellants, relied on the following reported decisions for consideration.

a. In Dolgobinda Paricka, v. Nimai Charan Misra and Ors., the Supreme Court discussed the essential requirements of Section 50 of the Evidence Act, which are as follows:

“Under Section 50, when the Court has to form an opinion as to the relationship of one person to another the opinion expressed by conduct as to the existence of such relationship is a relevant fact. The essential requirements of the section are: (1) there must be a case where the Court has to form an opinion as to the relationship of one person to another; (2) in such a case, the opinion expressed by conduct as to the existence of such relationship is a relevant fact; (3) but the person whose opinion expressed by conduct is relevant must be a person who as a member of the family or otherwise has special means of knowledge on the particular subject of relationship; in other words, the person must fulfil the condition laid down in the latter part of the section. If the person fulfils that condition, then what is relevant is his opinion expressed by conduct. Opinion means something more than mere retailing of gossiper of hearsay; it means judgment or belief, that is, a belief a conviction resulting from what one thinks on a particular question. The “belief or conviction may manifest itself in conduct or behaviour which indicates the existence of the belief or opinion. What the section says is that such conduct or outward behaviour as evidence of the opinion held is relevant and may, therefore, be proved.”

b. In Tmt. Girija alias Shanmuga Easwari, W/o. Periasamy, Tiruvartambur, Tricky, v. Tmt. Saraswathi Ammal W/o. Late. V.M. Palaniappan and three Ors., 1999 (1) L.W.261, this Court held that the recitals in Birth Extract and School Certificate would not be sufficient to establish marriage, when it is disputed.

c. The above said principle is neither relevant nor applicable to the case on hand, since there is clinching and corroborative oral and documentary evidence with regard to the marriage of the first appellant and Dhanammal.

d. In Mohan and Anr. v. Santha Bai Ammal and Ors., 1989 (2) L.W. 197, the Division Bench of this Court held that mere production of receipt for payment of money for marriage is not sufficient to establish marriage.

e. This decision also would not lend any support to the contention of the learned counsel for the appellants, since the marriage of the first appellant with Dhanammal, in this case, has not sought for the support of any receipt, rather, it was proved by the undisputed and corroborated oral and documentary evidence of P.Ws.1 to 4 and Ex.A.6.

24. Emphasising the factum of marriage and the legal position, the learned counsel appearing for the respondent relied on the following decisions for consideration.

a. In Rajagopal Pillai and Ors. v. Pakkiam Ammal and Anr., 1968 (2) MLJ 411, the Division Bench of this Court, the presumption of marriage of the parties has been discussed as follows:

“The marriage state being the chief foundation on which the superstructure of society rests, presumption of the marriage arising from cohabitation of spouses is a very strong presumption. Where a man and a woman had lived together as man and wife, the law will presume, until the contrary is proved, that they were living together by virtue of a legal marriage and not in concubinage.

The presumption of law is the strongest of legal presumptions and is not lightly to be repelled by a mere balance of probabilities and the evidence repelling that presumption must be strong, distinct and satisfactory. Every intendment is made in favour of a marriage de facto and the more distant, the date of the marriage, the more readily is the presumption drawn, based upon cohabitation and repute The weight of the presumption gets strengthened when it is proved that the party whose marriage is in question distinctly intended to marry and went through a form of a marriage with that intent and also subsequently lived together as man and wife and were esteemed and reputed as such by those who knew them. The presumption still exits, even when there is no positive evidence of any marriage having taken place. Reference may be made to the following statement of law in 19 halsbury’s Laws of England, third edition (Simonds) page 812, paragraphs 1323 and 1324:

“Presumption from cohabitation – Whether a man and woman have cohabited for such a length of time and in such circumstances as to have acquired the reputation of being man and wife, a lawful marriage between them will generally be presumed, though there may be, no positive evidence of any marriage having taken place, and the presumption can be rebutted only by strong and weighty evidence to the contrary.

Presumption of validity – Where there is evidence of a ceremony of marriage having been gone through followed by the cohabitation of the party, everything necessary for the validity of the marriage will be presumed, in the absence of decisive evidence to the contrary, even though it may be necessary to presume the grant of a special licence.”

b. In Sarangapani and Ors. v. Varadhan and Ors., , which relates to a partition suit, while analysing the legal position of presumption of marriage between the parties, this Court relied on the observations made in above said case, which are as follows:

8-A: Dealing with the above said presumption under Section 114 of the Evidence Act, it is also significant to note the following observation of a Division Bench of this Court in Rajagopal Pillai v. Pakkiam ammal, 1968 (2) MLJ 411:

“The marriage state being the chief foundation on which the superstructure of society rests, presumption of the marriage arising from cohabitation of spouses is a very strong presumption. Where a man and a woman had lived together as man and wife, the law will presume, until the contrary is proved, that they were living together by virtue of a legal marriage and not in concubinage. The presumption of law is the strongest of legal presumptions, and is not lightly to be repelled by a mere balance of probabilities and the evidence repelling that presumption must be strong, distinct and satisfactory. Every intendment is made in favour of a marriage de facto and the more distant, the date of the marriage, the more readily is the presumption drawn, based upon cohabitation and repute. … The presumption still exists, even when there is no positive evidence of any marriage having taken place. ” .

25. From the above direct, distinct, satisfactory and corroborative oral evidence of P.Ws.2 to 4, it is clear that marriage was held between the first appellant and Dhanammal on 26.5.1955 at Vedal Village, which was also corroborated by the documentary evidence, namely, Ex.A6, marriage invitation card, and in such circumstances, we are of the view that there is no necessity to form an opinion as to the relationship as said in Section 50 of the Evidence Act and though the oral evidence of the said witnesses would very well satisfy the essential requirements of Section 50 of the Evidence Act, there is no need to put such direct, distinct, satisfactory, corroborative oral evidence to test whether such evidence would satisfy the essential requirements of Section 50 of the Evidence Act, as dealt with in the decision relied on by the appellants, when especially, P.W.4, who is none other than the sister of the first appellant, has deposed that Dhanam is the wife of Kannan and their marriage was held in the house of P.W.4 at Vedal Village, corroborating the evidence of P.W.2 and P.W.3 and also Ex.A.6, which would repel the presumption of marriage and therefore, the decision relied on by the learned counsel would not lend any support to his contention. In the above circumstances, we, unequivocally, hold that the marriage between the first appellant and Dhanammal was held on 26.5.1955 at Vedal Village and thus the first appellant is the husband of Dhanammal.

26. With regard to the second point, the factum of birth of the respondent to Dhanammal through the first appellant has been proved by the production of the documentary evidence Exs.A.4 and A5; Ex.A.4 is a birth extract of the respondent. Ex.A.5 is the S.S.L.C Book. The date of birth and the place of birth have been referred to in Ex.A.4 and the names of the parents and the guardian, who is none other than the uncle of P.W.1 was working as a teacher in a School in which P.W.1 studied, have been mentioned in Ex.A.5.

27. On a careful perusal of Ex.A.4, it is seen that P.W.1 was born at Vedal Village on 15.1.58. To strengthen the case of the respondent, P.W.1 also produced another document Ex.A5, the S.S.L.C. Book. On the first page of the S.S.L.C. Book, as already stated above, the names of the parents and the guardian have been referred to in by Ex.A.5. According to P.W.1, he was born at Kandavaratty Village, which is the native place of his mother.

28. With regard to the birth of P.W. 1, P.W.2, the mother of P.W. 1 has categorically stated as follows:

29. P.W.3, who is the brother of P.W.2, has categorically stated about the birth of P.W. 1 as follows:

30. P.W.4 also stated about the birth of P.W.1, While affirming the marriage of the first defendant with Dhanammal, as follows:

31. While emphasising the birth of P.W.1, the learned counsel appearing for the respondent would contend that P.W.1 married the P.W.4’s husband’s sister’s daughter.

32. Further, in support of his contention, the learned counsel for the respondent, strongly relied on the decision in M. Govindaraju v. K. Munisami Gounder and Ors., , wherein, the Supreme Court held thus:

“If the people, especially the relatives, had treated and acknowledged the appellant as the legitimate son of his father by forging a bond of matrimony of the sort aforementioned, it is a strong piece of evidence to hold that the appellant was a legitimate offspring of his father. The High Court thus clearly fell in error in illegitimising him. We reverse that view.”

33. With regard to the birth of P.W.1, it is clear from the oral evidence of, apart from P.W.1, P.Ws.2 to 4 and Exs.A4 and A5, that P.W.1 was born to the first appellant and Dhanammal on 15.1.1958 at Kandavaratty Village, which is the native place of the respondent’s mother. In other words, the above oral and documentary evidence in respect of the birth of P.W.1 is a strong piece of evidence as termed in the decision relied on by the respondent. When there is no evidence to the contra, we have to hold that P.W.1 was born to the first appellant and Dhanammal on 15.1.1958 at Kandavaratty Village and therefore, the first appellant is the father of P.W.1. Therefore, we have no hesitation in holding that P.W.1, namely, Sridhar, is the son of the first appellant, namely, Kannan and Dhanammal.

34. Since we have already concluded that the marriage between the first appellant and Dhanammal was held on 26.5.1955 at Vedal Village and out of such wedlock, P.W.1 was born to them, we hold that the respondent is having every right to claim a half share in the suit properties.

35. In this view of the matter, the Letters patent Appeal fails and is dismissed, affirming the judgment of this Court and the Court below. Consequently, the C.M.P.No. 14297 of 1999 is also dismissed. No costs.