{"id":35443,"date":"2002-08-16T00:00:00","date_gmt":"2002-08-15T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/a-murugesan-vs-angamuthu-gounder-on-16-august-2002"},"modified":"2014-08-21T10:13:57","modified_gmt":"2014-08-21T04:43:57","slug":"a-murugesan-vs-angamuthu-gounder-on-16-august-2002","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/a-murugesan-vs-angamuthu-gounder-on-16-august-2002","title":{"rendered":"A. Murugesan vs Angamuthu Gounder on 16 August, 2002"},"content":{"rendered":"
Madras High Court<\/div>\n
A. Murugesan vs Angamuthu Gounder on 16 August, 2002<\/div>\n
       \n\n  \n\n  \n\n \n \n IN THE HIGH COURT OF JUDICATURE AT MADRAS\n\nDATED: 16\/08\/2002\n\nCORAM\n\nTHE HON'BLE MR. JUSTICE K. SAMPATH\n\nS.A.No.1285 of 1992\n\nA. Murugesan,\nS\/o Angamuthu Gounder,\nKaraiyanur,\nKannandheri P.O.,\nSankari Taluk,\nSalem District.                 ...             Appellant\n\n-Vs-\n\n1. Angamuthu Gounder,\n   S\/o Chinna Gounder.\n\n2. Manickam,\n   S\/o Angamuthu Gounder.\n\n3. Palanisami,\n   S\/o Angamuthu Gounder.\n   (All reside at Karaiyanur,\n   Kannandheri P.O.,\n   Sankari Taluk,\n   Salem District.                      ...             Respondents\n\n\nFor Appellant:         ...     Mr.T. Murugamanickam\n\nFor Respondents:       ...     Mr.M. Sathyanarayanan\n\n\n                This second appeal is filed against the  judgment  and  decree\ndated  1  9-4-1989  made  in  A.S.No.165\/89  on  the file of the learned First\nAdditional District Judge, Salem.\n\n:JUDGMENT\n<\/pre>\n
                The plaintiff in O.S.No.505\/85 on  the  file  of  the  learned
\nSubordinate Judge, Sangagiri, is the appellant in the second appeal.  He filed
\nthe  suit  for  partition and separate possession of his one half share in the
\nsuit properties.  The defendants  were  his  father  Angamuthu  and  his  sons
\nthrough one Chinnathayee.\n<\/p>\n
                2.  His case as set out in the plaint is as follows:\n<\/p>\n
                The  suit  properties fell to the share of the first defendant
\nin a partition dated 17-4-1973.  The first defendant married  the  plaintiff’s
\nmother one  Thailammal  in 1935 as per custom in the community.  The plaintiff
\nand one Thankamma were born to them.  Out of the income from the joint  family
\nproperties, the first defendant constructed houses, dug up wells and purchased
\nproperties.   The  plaintiff  was  entitled  to  one  half  share  in the suit
\nproperties.  There were no debts to the family.  The first  defendant  had  an
\nelder brother  by  name  Sengoda  Gounder.   He died leaving behind two wives,
\nThaiyamuthammal and  Chinnathayee.     The   first   defendant   was   keeping
\nChinnathayee as  his  concubine.  Defendants 2 and 3 and three female children
\nwere born to them.  There was misunderstanding between the plaintiff  and  the
\nfirst defendant  because of defendants 2 and 3.  The plaintiff caused a notice
\nto be issued on7-2-1985 for partition.   The  first  defendant  sent  a  reply
\nstating that the plaintiff was only his second wife’s son and defendants 2 and
\n3  were  his  sons  through  his  first  wife  Chinnathayee and they were also
\nentitled to a share.  The suit was therefore necessitated.\n<\/p>\n
                3.  The first defendant filed a written  statement  contending
\ninter alia as follows:\n<\/p>\n
                He  married the plaintiff’s mother Thailammal in 1937; she was
\nhis second wife and Chinnathayee was his first wife and mother of defendants 2
\nand 3; six months prior  to  his  marrying  Thailammal,  the  first  defendant
\nmarried  Chinnathayee, widow of his elder brother Sengoda Gounder, who died in
\nMarch, 1936; the first defendant belonged  to  Vanniyakula  Kshatriya  and  he
\nmarried  Chinnathayee as per custom in the Community; it is not correct to say
\nthat Chinnathayee was his concubine; there is a custom in  the  Community  for
\nremarriage  of widows; defendants 2 and 3 are legitimate children and they are
\nentitled to a share; the first defendant purchased house and other  properties
\non  24-11-1943 ; they were his separate properties; a division was effected in
\n1940 originally, though the partition deed was executed only in 1973; In  that
\npartition,  the  first  defendant  gave away his self-earned properties to his
\nbrother’s children and took their property in S.No.94, which was subdivided as
\nS.Nos.94\/1 and 94\/1-A; he dug a well in the property and put  up  a  house  in
\n1961; the thatched house was put up in 1943 and tiled house in 1969 out of his
\nown earnings; there is debt of Rs.10,000\/-; It is not correct to say that till
\ndate  there  had been no division; there was an oral division on 4-6-1971; the
\nproperties were divided into four equal shares; the movables were also divided
\nand  ever  since  the  division  the  respective  sharers  were  in   separate
\npossession;  the  oral division was effected in the presence of panchayathars;
\nin 1978 misunderstanding arose between the plaintiff and the first  defendant;
\nthe plaintiff gave a criminal complaint against the first defendant; it is not
\ncorrect  to  say  that  the  plaintiff  is  in  enjoyment  of the joint family
\nproperties;  the  plaintiff  is  enjoying  the  properties  allotted  to   him
\nseparately;  in  case,  a  fresh  division  is to be effected, the self-earned
\nproperties of the first defendant may be left out and there can be a partition
\nof the other properties and provisions should be made  for  repayment  of  the
\ndebt in a sum of Rs.10,000 \/-.\n<\/p>\n
                4.   Defendants  2  and  3  supported  the  case  of the first
\ndefendant and contended that  they  were  legitimate  children  of  the  first
\ndefendant; they were entitled to 1\/4th share; even assuming that they were not
\nlegitimate  children  of  the  first  defendant,  they were entitled to 1\/4 th
\nshare; in any event, they had been in long possession and enjoyment from  1971
\nand  there  was an oral partition and they had prescribed for title by adverse
\npossession.\n<\/p>\n
                5.  On the above  pleadings,  the  learned  Subordinate  Judge
\nframed the necessary issues and on the oral and the documentary evidence, held
\nthat  defendants  2 and 3 were the legitimate children of the first defendant,
\nthat there was no oral partition as contended by the defendants  in  1971  and
\nthat  the  plaintiff  was entitled to partition and separate possession of his
\n1\/4th share.  So holding by judgment and decree dated 30-9-1988,  the  learned
\nSubordinate Judge passed a preliminary decree for partition.\n<\/p>\n
                6.   In  so far as the plaintiff had been granted only a 1\/4th
\nshare in the properties, he  filed  an  appeal  in  A.S.No.165\/88  before  the
\nAdditional  District  Judge,  Salem,  who  by his judgment and decree dated 19\n<\/p>\n
-4-1989, confirmed the decision of the trial Court and dismissed the appeal.\n<\/p>\n
                7.  It is as against that, the present second appeal has  been
\nfiled.   At  the  time of admission, the following substantial question of law
\nwas framed for decision in the second appeal:\n<\/p>\n
“Whether the Court below was right in law in stating that a presumption  of  a
\nvalid marriage must be drawn between the first defendant and Chinnathayee?\n<\/p>\n
                8.  Mr.    Murugamanickam,  learned Counsel for the appellant,
\nsubmitted that there were vital discrepancies in the  evidence  of  the  first
\ndefendant,  that if we go by his evidence, it would be clear that Chinnathayee
\ncould not have  married  the  first  defendant  prior  to  his  marriage  with
\nThailammal,  that the Courts below were in error in presuming a valid marriage
\noverlooking the following material circumstances:\n<\/p>\n
                (1) Chinnathayee herself was  already  married  to  the  first
\ndefendant’s  brother  Sengoda  Gounder  and it is most unlikely that the first
\ndefendant married the widow first and married  the  mother  of  the  plaintiff
\nthereafter.\n<\/p>\n
                (2)  There  is  no  independent  evidence  with  regard to the
\nmarriage of Chinnathayee, a widow with a male issue.\n<\/p>\n
                (3) Non-examination of Chinnathayee to prove the marriage is a
\nstrong piece of evidence against the probability of a valid marriage.\n<\/p>\n
                9.  The  Courts  below,  in  the  submission  of  the  learned
\nCounsel, were in error in not deciding the question
\nas to whether the plaintiff’s mother was married first or the alleged marriage
\nwith Chinnathayee took place first.\n<\/p>\n
                10.   Further,  according  to the learned Counsel, it could be
\nseen that the second defendant was born within  four  months  of  the  alleged
\nmarriage with  chinnathayee.   The learned Counsel for the appellant relied on
\nthe following decisions in support of his contentions:\n<\/p>\n
1.  SEERANGAMMAL (DIED) AND OTHERS VS.  E.B.  VENKATASUBRAMANIAN & OTHERS (100
\nL.W.  58)<\/p>\n
2.  K.  MUNUSWAMI GOUNDER AND ANOTHER VS.    M.    GOVINDARAJU  AND  4  OTHERS
\n(1995-I L.W.  487.\n<\/p>\n
                11.   As  regards  the powers of this Court to interfere under
\nSection 100 of the Code of Civil Procedure, the learned Counsel relied on  the
\nfollowing decisions:\n<\/p>\n
1.  MAJOR SINGH  VS.    RATTAN  SINGH (DEAD) BY L.RS.  AND OTHERS (1997(3) SCC\n<\/p>\n
546)<\/p>\n
2.  V.  MANAKKAN AND FIVE OTHERS VS.  VEERA PERUMAL (1998-2 CTC 157)<\/p>\n
3.  RAJIAH NADAR VS.  MANONMANI AMMAL (1999-1 CTC 245) and<\/p>\n
4.  KRISHNAN AND OTHERS VS.  SUBHASHINI AND OTHERS (2000-3 MLJ 629).\n<\/p>\n
The learned Counsel lastly submitted that in any  event,  there  should  be  a
\nremand  for  consideration  afresh  as  to whether the first defendant married
\nChinnathayee first or Thailammal first.\n<\/p>\n
                12.  Per contra, Mr.M.  Sathyanarayanan, learned  Counsel  for
\nthe  respondents,  submitted  that the Courts below have as a question of fact
\ncome to a conclusion that  there  was  a  valid  marriage  between  the  first
\ndefendant  and  Chinnathayee and that defendants 2 and 3 were born to them and
\nthat Thailammal married the first  defendant  only  after  his  marriage  with
\nChinnathayee.   This  being  a question of fact, absolutely no interference is
\ncalled for.\n<\/p>\n
                13.  According to the learned Counsel Mr.  Murugamanickam, the
\ntrial Court merely sets out the evidence of P.W.3.   It  does  not  accept  or
\nreject his evidence.    The  evidence  of P.W.2 is not considered at all.  The
\nlearned Counsel in  this  connection  only,  relied  on  the  decision  in  K.
\nMUNUSWAMI GOUNDER AND  ANOTHER  VS.    M.  GOVINDARAJU AND 4 OTHERS (1995-1 LW\n<\/p>\n
487) and submitted that once a perso n sets up a marriage and is not  able  to
\nprove the factum of the marriage, he cannot rely upon presumption on the basis
\nof long cohabitation.\n<\/p>\n
                14.   The  case  of  the  first  defendant  is that he married
\nChinnathayee prior to his marrying Thailammal.  The custom  in  the  Community
\nthat there  could  be  widow  remarriage  is  not disputed.  It is also not in
\ndispute that the alleged marriages of the first defendant took place prior  to
\nthe introduction of the Bigamy Prohibition Act, 1949.\n<\/p>\n
                15.  Let  us  now  have a look at the oral evidence.  P.W.1 is
\nthe plaintiff and his evidence in this regard is practically useless.   He  is
\nnot a  competent  witness to speak about the marriage of his father.  P.W.2 is
\nThailammal.  In her chief examination, she has stated that the first defendant
\nis her maternal uncle, that at the time of her marriage, his  brother  Sengoda
\nGounder  was  alive,  that  he died only after her marriage, that he had a son
\nthrough Chinnathayee, that all of them  lived  together  after  the  death  of
\nSengoda Gounder, that at that time Chinnathayee was pregnant through the first
\ndefendant,  that  there  was  no  marriage  between  the  first  defendant and
\nChinnathayee, that he started keeping her, that she was upset and went away to
\nher father’s house, that she returned to the marital home one and a half years
\nthereafter after a panchayat and that there was no division between the  first
\ndefendant and the plaintiff.  In the cross examination, she has admitted about
\nthe  custom  prevailing in the Community regarding the widows remarriage, that
\nthe custom was in vogue for a long time, that her brothers-in-law had each two
\nwives, that it was not correct to say that Sengoda Gounder died prior  to  her
\nmarriage,  that the first defendant, Chinnathayee and herself lived jointly in
\nthe same house, that she could not say when Sengoda Gounder died, that she was
\nmarried to the first defendant in 1935 and that it was not correct to say that
\nshe was the second wife, but she was the first wife.\n<\/p>\n
                16.  P.W.3 is one Naina Gounder aged 80 years in 1988.  In his
\nchief examination, he stated that Sengoda Gounder  died  one  year  after  the
\nmarriage  between  the first defendant and Thailammal, that after the death of
\nSengoda Gounder, the first defendant, Sengoda Gounder’s wife and  others  were
\nliving  together,  that Thailammal was upset over Chinnathayee living with the
\nfirst defendant and being pregnant 5 or 6 months and therefore she  went  away
\nto her mother’s place, that there was a panchayat and the first defendant told
\nhim that he had not married Chinnathayee and that only he was keeping her.  In
\ncrossexamination,  he  stated that the plaintiff was known to him, that he did
\nnot remember the panchayat date and he could not give the date,  that  it  was
\nnot correct  to  say  that there was no panchayat.  He admitted that the first
\ndefendant was living with both his wives as a single family.\n<\/p>\n
                17.  The first defendant has examined himself as  D.W.1.    He
\nhas  stated  in  his  chief  examination  that  he  was  married  in  1937  to
\nChinnathayee and thereafter married P.W.2  Thailammal,  that  he  married  the
\nwidow  of his brother Sengoda Gounder as per family custom, that he was living
\nwith his two wives as a single family,  that  defendants  2  and  3  were  his
\nchildren  through  his  first wife Chinnathayee and the plaintiff was his only
\nson through his second wife Thailammal, that it was not correct to say that he
\ndid not marry Chinnathayee and that Thailammal was his first wife and that one
\nyear after his marriage with P.W.2, he took Chinnathayee as his concubine.  In
\ncross-examination, he stated that his brother died on 20th of  Masi,  that  he
\nhad  no  connection  with his brother’s wife while he was alive, that one year
\nafter his brother’s death, he married Chinnathayee and it was in Aani  and  he
\nmarried  P.W.2  in  Aippasi,  that  P.W.2  did not quarrel with him because he
\nmarried Chinnathayee nor did she go away to her mother’s place and that at the
\ntime of his marriage to P.W.2, he had a son through Chinnathayee.\n<\/p>\n
                18.  D.W.2 is one Manickam.  It is not necessary to  refer  to
\nhis evidence.   One  Pachiannan has been examined as D.W.3.  He has said about
\nthe marriage of D.W.1 with Chinnathayee, that he attended the  marriage,  that
\nsix  months thereafter, the first defendant married P.W.2 and that at the time
\nof the first defendant’s marriage with Chinnathayee, he was 21 years old.  His
\nevidence, according to the learned Counsel  Mr.    Murugamanickam,  cannot  be
\naccepted  as he would have been very young at the time of the alleged marriage
\nbetween Chinnathayee and the first defendant.  I do  not  think  that  such  a
\ncontention can be accepted.  The memory of a person can be pretty good even if
\nseveral years  have  passed  by.   It is very likely that one may not remember
\nwhat happened yesterday, but, is able to recollect something that happened  30
\nyears or 40 years back.\n<\/p>\n
                19.   Whatever  it  is,  the  Courts below chose to accept the
\nmarriage between the first defendant and Chinnathayee as  having  taken  place
\nprior  to  the  first  defendant’s  marriage  with  Thailammal,  mother of the
\nplaintiff.  The marriage between the first defendant and Chinnathayee,  in  my
\nview,  has  been  satisfactorily  established  and  that the Courts below have
\nproceeded on probabilities, particularly when evidence as  regards  the  exact
\ndate  and  time  of marriage wo uld not be available at this distance of time,
\nhaving not merely relied on presumption  arising  out  of  long  cohabitation.
\nEven  otherwise,  on  the evidence I am satisfied that it has been established
\nthat the first defendant married Chinnathayee before he married Thailammal.\n<\/p>\n
                20.  I will now refer to the various decisions  relied  on  by
\nthe learned Counsel for the appellant.\n<\/p>\n
                21.  In   SEERANGAMMAL   (DIED)   AND   OTHERS   VS.      E.B.\n<\/p>\n
VENKATASUBRAMANIAN & OTHERS (100 LW 58) a Division Bench of  this  Court  held
\nthat,<\/p>\n
“presumption  of  marriage  from long cohabitation and evidence from materials
\nlike school records, letters, voters’ list, money order coupons, etc.    would
\nbe sufficient to show that a woman was treated by a man as his wife.”\n<\/p>\n
In  that case, the description of the lady in the Will as “vaippu manaivi” was
\nheld not to mean a concubine in view of the fact that in several documents she
\nhad been described as wife.  In that case, the recognition of her as  wife  by
\nthe  husband  himself, even though origin was in the nature of concubinage and
\nlong cohabitation with her, after the death of  the  first  wife  and  on  the
\nmaterials  to  show  that society treated her as his wife, the Bench held that
\nthose things would be sufficient to draw the presumption under Section 114  of
\nthe Evidence Act.  In paragraph 24 this is what the Bench stated:\n<\/p>\n
“Yet  another  plea of defendants is that marriage ceremony as claimed in para
\n12 of the plaint having not been established, the  presumption  under  Section
\n114 of  the Evidence Act cannot exist.  Failure to establish by legal evidence
\nabout ceremonies was due to the fact that they took place  inside  the  family
\nhouse and in the presence of selected relatives and well wishes of Ranganatha.
\nTo  prevent  publicity and with an obvious aim of preventing prestige, secrecy
\nhad been maintained.  No invitations were printed.  Under such  circumstances,
\nher  inability  to  prove the marriage and more so when Ranganatha’s relations
\nwho could alone speak about it are antagonistic and  aim  at  getting  at  the
\nproperty;  this  failure  to sustain a form of marriage attempted by her would
\nnot act as a bar against her from invoking Section 114 of  the  Evidence  Act.
\nThis  is neither a conflicting nor an alternative plea put forth, but one mode
\nof proof adduced but not established due to  special  circumstances  obtaining
\nwhen such  acts  are committed by men aimed at benefitting themselves.  Factum
\nof continued cohabitation as husband and wife to the knowledge  of  the  world
\nthus  made  out,  the  failure to prove marriage would not stand in the way of
\npresumption being drawn.”\n<\/p>\n
                22.  In K.  MUNUSWAMI GOUNDER AND ANOTHER VS.  M.  GOVINDARAJU
\nAND 4 OTHERS (1995-1 LW 487) it has been held  that  presumption  of  marriage
\nunder  Section 114 of the Evidence Act cannot be drawn when facts show that no
\nmarriage could have taken place between the man  and  the  woman  by  rebuttal
\nevidence.\n<\/p>\n
                23.  The learned Counsel for the appellant submitted that once
\na  person comes forward with a case of marriage and fails to prove it, then he
\ncannot fall back on the presumption under the Evidence Act.   This  is  not  a
\ncase where  any  presumption  is  sought  to  be  drawn.  In fact, there is an
\nadmission on the side of the plaintiff that Chinnathayee was the wife, but she
\nwas only the second wife.  When there was no prohibition for a second marriage
\nand when there was also a custom in the Community  for  marrying  a  brother’s
\nwidow  and when P.W.3 in cross examination has stated that the first defendant
\nwas living with his two wives as a single family and  this  coupled  with  the
\nevidence of D.W.1 that he married Chinnathayee first and thereafter Thailammal
\nwould  conclusively  show  that  there was indeed a marriage between the first
\ndefendant and Chinnathayee.\n<\/p>\n
                24.  In BADRI PRASAD VS.  DEPUTY DIRECTOR OF CONSOLIDATION AND
\nOTHERS (1978-3 SCC 527) a three Judges of the Supreme Court held that  from  a
\nman  and a woman living together for 50 years a strong presumption of marriage
\nbetween them arises under Sections 114 and 101 to 103 of the Evidence Act  and
\nthe burden was very heavy on anyone seeking to rebut such presumption.  It was
\nalso  held  that  if men and women who live as husband and wife in society are
\ncompelled to prove, half a century later,by eyewitness evidence that they were
\nvalidly married, a few will succeed.\n<\/p>\n
                25.  In SURJIT KAUR VS.  GARJA SINGH AND OTHERS (AIR  1994  SC
\n135  =  19  94-1  LW  38) the Supreme court held that in the absence of proof,
\npleading of customary marriage and living together  as  husband  and  wife  by
\nitself, would  not  confer  the status of husband and wife.  In that case, the
\nwife was in the habit of changing husbands frequently.   Merely  because  they
\nlived  as husband and wife, the Supreme Court held that the status of wife was
\nnot conferred on the person claiming to have married.\n<\/p>\n
                26.  The instant case is one where the custom is accepted  and
\nthe  marriage  also  is  accepted,  though  P.W.2 claims that she is the first
\ndefendant’s first wife.   She  has  admitted  the  custom  regarding  marriage
\nbetween  the man and his brother’s widow and the man having more than one wife
\nat a time.\n<\/p>\n
                27.  Having regard  to  the  state  of  evidence,  I  have  no
\nhesitation  in  concurring  with  the  view  taken  by  the  Courts  below and
\nconfirming the  decree  for  1\/4th  share  in  favour  of  the  plaintiff  and
\ndismissing his  appeal  claiming  more  share.  No interference is called for.
\nThe substantial question of law is answered against the appellant.  The second
\nappeal fails and the same is dismissed.  However, there will be no order as to
\ncosts.\n<\/p>\n
Index:  Yes
\nInternet:  Yes<\/p>\n
IGP<\/p>\n
To<\/p>\n
1.  The First Additional
\nDistrict Judge, Salem,
\n(with records)<\/p>\n
2.  The Subordinate Judge,
\nSangagiri.\n<\/p>\n
3.  The Record Keeper,
\nV.R.  Section,
\nHigh Court,
\nMadras.\n<\/p>\n
K.  SAMPATH, J.\n<\/p>\n
Judgment in S.A.No.1285 of 1992<\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court A. Murugesan vs Angamuthu Gounder on 16 August, 2002 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, […]<\/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-35443","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nA. 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