{"id":33485,"date":"2011-02-15T00:00:00","date_gmt":"2011-02-14T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/tmt-rajakani-vs-sumathi-on-15-february-2011"},"modified":"2018-12-08T09:52:30","modified_gmt":"2018-12-08T04:22:30","slug":"tmt-rajakani-vs-sumathi-on-15-february-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/tmt-rajakani-vs-sumathi-on-15-february-2011","title":{"rendered":"Tmt.Rajakani vs Sumathi on 15 February, 2011"},"content":{"rendered":"
Madras High Court<\/div>\n
Tmt.Rajakani vs Sumathi on 15 February, 2011<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\nDATED: 15\/02\/2011\n\nCORAM\nTHE HONOURABLE MR. JUSTICE P.R.SHIVAKUMAR\n\nS.A(MD)NO.63 of 2011\nand\nS.A(MD)NO.64 of 2011\n\t\t\t\n\t\t\t\t\nS.A.No.63 of 2011\n\n1.  Tmt.Rajakani\n\n2.  Manoj Kumar, minor,\n    represented by his next friend, guardian\n    and mother, the first appellant herein.\n\n3.  Petchiammal\t\t\t\t...Appellants\n\n\t\t\t\nvs\n\n1.  Sumathi\n\n2.  R.Gowtham, minor,\n    represented by his next friend, guardian and mother,\n    the first respondent herein Sumathi.<\/pre>\n
3.  The Tahsildar,
\n    Uthamapalayam Taluk,
\n    Theni District.\t\t\t…Respondents<\/p>\n
S.A.No.64 of 2011<\/p>\n
Tmt.Rajakani\t\t\t\t…Appellant<\/p>\n
vs<\/p>\n
1.  Sumathi<\/p>\n
2.  R.Gowtham, minor,
\n    represented by his next friend and guardian
\n    and mother, the first respondent herein.\n<\/p>\n
3.  The Forest Ranger,
\n    Oddanchathiram
\n    Dinidgul District.<\/p>\n
\n\n4. The District Forest Officer,\n   Dindigul.\t\t\t\t...Respondents.\n\n\nPRAYER in S.A.No.63 of 2011\n\nSecond Appeal filed under Section 100 of Civil\n<\/pre>\n
Procedure Code, praying this Court  to set aside the judgement and decree made
\nin A.S.No.8 of 2006,dated 26.06.2006, on the file of the Subordinate Judge,
\nUthamapalayam, partly allowing the judgment and decree made in O.S.No.67 of
\n2004, dated 21.09.2005, on the file of the  District Munsif,Uthamapalayam.\n<\/p>\n
PRAYER in S.A.No.64 of 2011<\/p>\n
Second Appeal filed under Section 100 of Civil
\nProcedure Code, praying this Court  to set aside the judgement and decree made
\nin A.S.No.7 of 2006,dated 26.06.2006, on the file of the Subordinate Judge,
\nUthamapalayam,confirming the judgment and decree made in O.S.No.89 of 2004,
\ndated 21.09.2005, on the file of the  District Munsif,Uthamapalayam.<\/p>\n
\n\n!For Appellant  ... Mr.V.Saravanan\nin both S.As'\t    for M\/s.R.Narayanan\n\n^For Respondents ... M\/s.A.Saravanan\nin both S.As'\t\t\n\t\t\n:COMMON JUDGMENT\n\n\n<\/pre>\n
\tThe Plaintiffs in O.S.No.67 of 2004, on the file of the learned District
\nMunsif, Uthamapalayam are the appellants in Second Appeal No.63 of 2011. The
\ndefendants therein are the respondents in the second appeal, namely S.A.No.63 of
\n2011. The appellants in S.A.No.63 of 2011 filed the above said original suit
\nO.S.No.67 of 2004, on the file of the learned District Munsif, Uthamapalayam for
\nthe reliefs of declaration that the appellants in S.A.No.63 of 2004 and the
\nsecond respondent in the said second appeal,namely minor R.Gowtham alone were
\nthe legal heirs of deceased Ponniah.\n<\/p>\n
\t2. The respondents 1 and 2, namely Sumathi and minor Gowtham had filed
\nanother suit on the file of the very same court as O.S.No.89 of 2004 arraying
\nRajakani, the first plaintiff in O.S.No.67 of 2004 and one Petchiammal as
\ndefendants 1 and 5, besides arraying the officials as defendants 2 to 4 praying
\nfor a declaration that Sumathi and minor Gowtham and Petchiammal alone were the
\nlegal heirs of the deceased Ponniah and for a consequential direction to pay the
\nterminal-cum-death benefits of Ponniah to Sumathi, minor Gowtham and
\nPetchiammal.\n<\/p>\n
\t3. Both the suits were tried together by the trial court and the trial
\ncourt dismissed the suit  O.S.No.67 of 2004 and decreed the suit O.S.No.89 of
\n2004.  The common judgment and decrees were passed on 21.09.2005. The plaintiffs
\nin O.S.No.67 of 2004 preferred an appeal on the file of the learned Subordinate
\nJudge, Uthamapalayam as A.S.No.8 of 2006 against the decree passed by the trial
\ncourt dismissing O.S.No.67 of 2004. Similarly, Kani @ Rajakani, who figured as
\nthe first defendant in O.S.No.89 of 2004 preferred another appeal in A.S.No.7 of
\n2006, on the file of the learned Subordinate Judge, Uthamapalayam challenging
\nthe decree passed by the trial court in O.S.No.89 of 2004.\n<\/p>\n
\t4. Both the appeals were tried together and the learned Subordinate Judge,
\nUthamapalayam allowed the appeal A.S.No.7 of 2006 in part and modified the
\ndecree passed by the trial court to the effect that along with the plaintiffs in
\nO.S.No.89 of 2004, namely Sumathi and minor Gowtham and the fifth defendant
\ntherein  namely Petchiammal, minor Manoj Kumar, who figured as the second
\nplaintiff in the connected suit, namely O.S.No.67 of 2004 was also the legal
\nheir of the deceased Ponniah and that Sumathi and Gowtham were entitled to
\nproportionate share in the terminal-cum-death benefits of the deceased Ponniah.
\nSimilarly, A.S.No.8 of 2006 was allowed in part and minor Manoj Kumar,
\nPetchiammal, Sumathi and minor Gowtham were declared as the legal heirs of the
\ndeceased Ponniah.\n<\/p>\n
\t5. Questioning the correctness of the decrees passed by the lower
\nappellate court, second appeal No.63 of 2011 has been filed by Tmt.Rajakani,
\nminor Manojkumar and Petchiammal, who figured as plaintiffs in O.S.No.67 of 2004
\nand Tmt. Rajakani alone preferred an appeal in S.A.No.64 of 2011.\n<\/p>\n
\t6.  Both the second appeals involve one and the same issue.  Admittedly,
\nLate Ponniah married Sumathi and through Sumathi, got a son by name
\nGowtham(minor). Petchiammal is the mother of the said Ponniah.  It is also not
\nin dispute that minor Manoj Kumar is also a son of the late.Ponniah born through
\nTmt.Rajakani.  It is the contention of the appelants in both the second appeals
\nthat the marriage between Late.Ponniah and Sumathi got dissolved by a customary
\ndivorce and thereafter, he married Rajakani and out of the said wedlock, minor
\nManojKumar was born.  Based on the said pleading, the appellants in S.A.No.63 of
\n2011, who were the plaintiffs in O.S.No.67 of 2004 have taken a stand that they
\nalone were the legal heirs of the deceased Ponniah and that Sumathi and her son
\nGowtham were not the legal heirs of the Late.Ponniah.\n<\/p>\n
\t7.  Per contra, it is the contention of sumathi and minor Gowtham, the
\nrespondents 1 and 2  in both the appeals,who figured as plaintiffs 1 and 2 in
\nO.S.NO.89 of 2004 and defendants 1 and 2 in O.S.No.67 of 2004, that they and
\nPetchiammal alone are the legal heirs of deceased Ponniah. It is their
\ncontention that the alleged customary divorce was not true and hence the
\nmarriage of Ponniah with Rajakani was not legally valid and minor ManojKumar,
\nhaving been born not out of lawful wedlock, would not become the legal heir of
\nlate Ponniah.  Though, the trial court dismissed the suit O.S.No.67 of 2004 in
\nentirety and decreed the suit filed by Sumathi and Gowtham as prayed for, on
\nappeal the lower appellate court has modified the decrees passed in both the
\nsuits by holding that though the customary divorce pleaded by the appellants
\nherein was not proved and hence, the marriage of Ponniah with Rajakani was not
\nlegally valid, minor Manoj Kumar was also a legal heir of Late. Ponniah by
\nvirtue of Section 16 of the Hindu Marriage Act, 1955, since admittedly, he was
\nborn out of the marriage between Late. Ponniah and Rajakani which shall be void
\nbecause of the fact that it took place during the lifetime of  the legally
\nwedded wife Sumathi and that marriage had not been dissolved by then.  Thus the
\nlearned first appellate Judge has held that Sumathi the legally wedded wifeof
\nPonniah, minor Gowtham the son born through Sumathi, Petchiammal, mother of
\nPonniah and son born out of a void marriage, namely minor Manoj Kumar were the
\nlegal heirs of deceased Ponniah.\n<\/p>\n
\t8. Questioning the correctness of the judgments and decees of the first
\nappellate court, insofar as the finding relating to the issue of the alleged
\ncustomary divorce dissolving the marriage between Ponniah and Sumathi and the
\nresultant consequences in the relationship, the appellants have preferred these
\ntwo second appeals.  The decision in both the second appeals revolves around the
\nresolution of the issue as to whether the appellants were able to substantiate
\ntheir contention that a custom of having extra judicial divorce is prevailing in
\nthe community of Piranmalai Kallar of Theni District and whether actually such a
\ncustomary divorce took place before the marriage of Ponniah with Rajakani. Since
\nthe issues are common and since both the cases were tried together by the trial
\ncourt as well as the first appellate court and disposed by common judgement,
\nthis Court also deems it fit and convenient to hear both the appeals jointly and
\ndispose of the same by the following common judgement.\n<\/p>\n
\t9.  The arugments advanced by Mr.V.Srinivasan, learned counsel for the
\nappellants appearing on behalf of M\/s.R.Narayanan (Counsel on record) in both
\nthe second appeals, regarding the admission of the second appeals  were heard.
\nThe grounds of appeal, copies of the judgments of the courts below, copies of
\nthe decrees of the courts below and copies of other documents produced in the
\nform of typed-set of papers were also perused.\n<\/p>\n
\t10.  Under Section 100 of Civil Procedure Code, an appeal from the decree
\nof an appellate court subordinate to the High Court shall be entertained by the
\nHigh Court only on a substantial question of law.  In this case, the learned
\ncounsel for the appellants has made an attempt to show that these second appeals
\ninvolve a substantial question of law.  It is the contention of the learned
\ncounsel for the appellants that though a specific plea  of custom prevailing in
\nthe community was made by the appellants and such a plea was disputed by the
\ncontesting respondents, namely respondents 1 and 2, the trial court failed to
\nframe a specific issue in this regard and the non-framing  of such issue could
\nbe projected as a substantial question of law in the second appeals.  It is also
\nthe contention of the learned counsel for the appellants that though the lower
\nappellate court has framed a specific point for determination in this regard,
\nthe defect caused in the proceedings of the trial court does not stand cured by
\nthe same and that both the courts below have erroneously held that even assuming
\nthe existence of such custom, actual divorce was not proved by reliable
\nevidence.  In support of his contention, the learned counsel for the appellants
\ncited a judgment of the Honourable Supreme Court in subramani and others .vs.
\nM.Chandralekha reported in 2005-2\/L.W.158.\n<\/p>\n
\t11. This Court  paid its anxious consideration to the above said
\nsubmission made by the learned counsel for the appellants.  This Court also
\nperused the relevant portion of the pleadings and evidence in order to find out
\nwhether any finding of fact could be termed perverse. The attraction of the
\nobservation made by the Honourable Supreme Court in the above said judgment
\ncited by the learned counsel for the appellants  was also considered by this
\nCourt. Upon such consideration, this Court comes to the conclusion that the
\nfacts of the case  which went before the Supreme Court are somewhat different
\nfrom the facts of the case on hand.  In the said case before the Supreme Court,
\na document styled as divorce deed was accepted by the court without considering
\nthe question whether there was any custom recognizing extra judicial divorce.
\nThe said mistake was not corrected till the matter went upto the Supreme Court.
\nThat is the reason why the Honourable Supreme Court in the said case, made an
\nobservation that the trial court  ought to have framed a specific issue
\nregarding the existence of such a custom and decided that issue.\n<\/p>\n
\t12. But, in the case on hand, the existence of the custom was pleaded by
\nthe appellants herein and the same was denied and disputed by the contesting
\nrespondents, namely respondents 1 and 2. The trial court, no doubt, failed to
\nframe a specific issue regarding the said plea. Nevertheless it chose to discuss
\nthe pleading and evidence while answering issue No.1 in both the cases, namely
\nissue regarding the question of legal heirship of the deceased Ponniah. There
\nare umpty number of judgments  in which it has been held that the non-framing of
\nan issue may not affect or vitiate the judgement, provided the parties went for
\ntrial knowing fully well what their rival pleadings are and what are the points
\nin dispute are and that in such a case,the said defect would be only an
\nirregularity that can be corrected by the first appellate court or second
\nappellate court.  In this case,though the trial court did not frame an issue
\nregarding the plea of the appellants that there existed a custom granting extra
\njudicial divorce, the parties knowing fully well that the same was the main
\nissue involved in this case, let in evidence to the full extent  and the said
\nissue was decided by the trial court based on the said evidence. When the matter
\nwas taken up on appeal to the lower appellate court, the lower appellate court
\nframed a specific point for determination and  decided the same on the strength
\nof the evidence both oral and documentary, that had been adduced  on either
\nside. Therefore the said irregularity stands cured by the judgment of the lower
\nappellate court. No longer, the said plea on the basis of non-framing of a
\nspecific issue is available to the appellants.  Hence, the first question
\nsought to be projected as a substantial question of law cannot be accepted as a
\nsubstantial question of law involved in this case.\n<\/p>\n
\t13.  The next contention of the learned counsel for the appellants  is to
\nthe effect that the finding of the courts below negativing the plea of the
\nappellants that there exists a custom of getting extra judicial divorce is
\nperverse and hence, this Court should interfere with the judgment of the lower
\nappellate court in this regard.  It is also the contention of the learned
\ncounsel for the appellants that the further finding of the courts below that
\nsuch extra judicial divorce as per Ex.A7-divorce deed was not factually
\nsubstantiated is also perverse, since the courts below took into consideration
\nthe evidence adduced on the side of the appellants alone and omitted to consider
\nthe evidence adduced on the side of the contesting  respondents, namely
\nrespondents 1 and 2.  Approaching the court for dissolution of marriage is the
\nrecongnized mode of getting such relief.  Permitting to have extra judicial
\ndivorce based on custom which has acquired the force of law is only an exception
\nto the general principle.  Whoever pleads such a custom, which is an exception
\nto the general principle, is bound to give strict proof of the same.  To prove a
\ncustom, one should let in evidence to the effect that there existed such an
\nusage from time immemorial and due to continuous adoption of such usage  and
\npractice, it has acquired the force of law and in fact, it has been recognized
\nto be a part of law.  To be successful in substantiating such a plea of custom,
\ncontinuous  and frequent instances without any deviation should be proved.\n<\/p>\n
\t14. In this case, it is not the evidence of the appellants that the
\nmembers of the community to which the parties belong never approached the court
\nfor divorce and they were adopting a practice of having extra judicial divorce
\nobtained in Panchayat. It is also not the case of the appellants that no one in
\nthe community of the said district had ever chosen to challenge the existence of
\nsuch a custom.  It is also an admitted fact that so far, there is no case in
\nwhich the existence of such a custom in the concerned community is recognized in
\na judicial proceedings by a court of law.  Apart from that, there is also lack
\nof evidence citing instances showing unbroken routine practice of getting extra
\njudicial divorce. All these aspects were considered by the courts below in
\nproper perspective and upon such consideration, the courts below have come to a
\ncorrect and concurrent conclusion that the existence of such an alleged custom
\nwas not proved by the appellants herein.  The said finding cannot be termed
\neither defective or infirm, much less perverse. The same deserves no
\ninterference.\n<\/p>\n
\t15.  Since it has been held supra, that the appellants had miserably
\nfailed to substantiate their case that there was a custom in their community
\nunder which extra judicial divorces are obtained, even if it is assumed that
\nthere was an understanding between Ponniah and Sumathi at the intervention of
\nPanchayatdars which resulted in the execution of Ex.A7-divorce deed, the same
\nshall have no legal effect and it would not have the effect of dissolving the
\nmarriage between them.  On that score alone, the appellants’contention that
\nSumathi was no longer the legally wedded wife of Ponniah should be
\ndiscountenanced.  Even assuming that the appellants were able to show that there
\nwas a custom prevailing in the said community, the appellants  were not
\nsuccessful in proving that actually there was a divorce. Customary divorce
\ncannot be equivated with a divorce deed.  The appellants have produced Ex.A7 as
\na divorce deed. The respondents 1 and 2 have categorically denied and disputed
\nthe genuineness of Ex.A7-divorce deed and they have also contended that in fact
\nno such divorce ever took place. When such is the contention, the burden of
\nproving the same shall lie  heavily on the appellants. The learned trial Judge
\nas well as the learned first appellate Judge, after analysing the evidence, came
\nto the conclusion that Ex.A7 could not be true. The courts below have also, on
\nappreciation of evidence, arrived at a conclusion that the oral or documentary
\nevidence adduced on the side of the appellants were not enough to substantiate
\ntheir contention that actually such an extra judicial divorce took place. When
\nthe onus is heavily on the appellants, there is nothing wrong in the courts
\nbelow discussing the evidence adduced on the side of the appellants and give a
\nfinding that the onus has not been discharged  as the evidence is not
\nsufficient. In the case on hand, besides discussing the evidence adduced on the
\nside of the appellants, the courts below have also discussed the evidence
\nadduced by the first respondent herein as D.W.1 and arrived at a conclusion that
\nthe above said plea of the appellants was not proved.  This Court is not able to
\nfind any defect or infirmity in the said finding. The said finding, being a
\nfinding of fact, cannot be interferred with by the second appellate court unless
\nsuch a finding is proved to be perverse.  As pointed out supra, there is no
\ndefect or infirmity in the said finding of the courts below. Therefore, there is
\nno question  of stamping it as perverse.   Accordingly, this Court comes to the
\nconclusion that the attempt on the part of the appellants to project the same as
\na substantial question of law has also ended in failure.\n<\/p>\n
\t16.  For all the reasons stated above, this Court comes to the conclusion
\nthat the appellants have not proved that any substantial question of law is
\ninvolved in these second appeals and that hence both the second appeals are
\nbound to be dismissed at the stage of admission itself.\n<\/p>\n
\t17.  In the result,the Second Appeals are dismisse. No costs.\n<\/p>\n
vsn<\/p>\n
To<\/p>\n
1. The Subordinate Judge,
\n   Uthamapalayam.\n<\/p>\n
2. The District Munsif,
\n   Uthamapalayam.\n<\/p><\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court Tmt.Rajakani vs Sumathi on 15 February, 2011 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 15\/02\/2011 CORAM THE HONOURABLE MR. JUSTICE P.R.SHIVAKUMAR S.A(MD)NO.63 of 2011 and S.A(MD)NO.64 of 2011 S.A.No.63 of 2011 1. Tmt.Rajakani 2. Manoj Kumar, minor, represented by his next friend, guardian and mother, the first appellant herein. 3. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-33485","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nTmt.Rajakani vs Sumathi on 15 February, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/tmt-rajakani-vs-sumathi-on-15-february-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Tmt.Rajakani vs Sumathi on 15 February, 2011 - 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