Madras High Court
Vaalammal @ Balammal vs Chellammal on 10 August, 2021
S.A.(MD)No.1239 of 2011
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 10.08.2021
CORAM:
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD)No.1239 of 2011
and
M.P.(MD)Nos.2 & 3 of 2011
Vaalammal @ Balammal ... Appellant / Appellant / Plaintiff
-Vs-
1.Chellammal
2.Mallammal
3.Jeyakumar
4.Murugan
5.Rajasekar
6.Packialakshmi
7.Sandhanamaari ... Respondents / Respondents / Defendants
PRAYER: Second Appeal filed under Section 100 of the Civil Procedure
Code, against the judgment and decree in A.S.No.14 of 2008 on the file of
the Additional District Court cum Fast Track Court No.II, Thoothukudi,
dated 15.10.2009, confirming the judgment and decree passed in O.S.No.37
of 2004, dated 30.11.2007, Sub Court, Thoothukudi.
For Appellant : Mr.R.Vijaya Kumar
For R1 : Dismissed
For R2 to R7 : Mr.C.Dhanaseelan
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S.A.(MD)No.1239 of 2011
JUDGMENT
The plaintiff in O.S.No.37 of 2004 on the file of the Sub Court,
Thoothukudi, is the appellant in this second appeal.
2. The suit was for partition. The case of the plaintiff is that she was
born through the wedlock between her mother Chellammal and father
Chelladurai in the year 1964. Chelladurai dissolved the marriage through a
registered document dated 20.11.1964 (Ex.A2). Thereafter, Chelladurai
got married to the second defendant Mallammal. Through Mallammal, D3
to D7 were born. Chelladurai died in the year 2004. He died intestate.
He left behind the suit properties. According to the plaintiff, the marriage
between her mother and father could not have been dissolved through
Ex.A2. The marriage between them should be deemed to have been legally
subsisting. Therefore, the second defendant cannot be conferred the status
of a wife. The second defendant cannot claim any share in the ancestral
properties of Chelladurai. She also would contend that the suit first item
which stands in the name of Chelladurai was purchased out of the ancestral
nucleus and out of the said funds, Chelladurai purchased the other items in
the name of the second defendant Mallammal.
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S.A.(MD)No.1239 of 2011
3.The plaintiff's mother was shown as first defendant. But she
remained exparte. The defendants 2 to 7 filed their written statement
controverting the plaint averments. According to them, the marriage
between Mallammal and Chelladurai took place some time in the year 1962
and thereafter, Chelladurai developed an illicit intimacy with Chellammal.
It was suggested that the plaintiff might be an illegitimate child born
through the said relationship. According to the defendants 2 to 7, the suit
is clearly not maintainable. Since according to the plaintiff herself, the suit
properties were purchased out of the ancestral nucleus, an illegitimate child
is not entitled to any share in the suit properties. Based on the divergent
pleadings, the learned trial Judge framed the necessary issues. The plaintiff
examined herself as P.W.1 and Ex.A1 to Ex.A17 were marked. The second
defendant examined herself as D.W.1. Three other children were examined
as D.W.2 to D.W.4. Ex.B1 to Ex.B40 were marked. After a consideration
of the evidence on record, the trial Judge, by judgment and decree dated
30.11.2007, dismissed the suit. Aggrieved by the same, the plaintiff filed
A.S.No.14 of 2008 before the Additional District Judge/Fast Track Court
No.II, Thoothukudi. The first Appellate Court, by the impugned judgment
and decree dated 15.10.2009, confirmed the decision of the trial Court.
Challenging the same, this second appeal came to be filed. The second
appeal has not been admitted so far, though notice was ordered.
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S.A.(MD)No.1239 of 2011
4.Heard the learned counsel on either side.
5.As rightly pointed out by the learned counsel appearing for the
appellant, when both the parties have fully adduced the respective
evidence, even the pleadings and the case put forth would pale into
insignificance and the Court will have to arrive at the right conclusion
based on the evidence available on record. Even though the plaintiff
might have come out with a case that the suit properties were purchased
out of the ancestral nucleus, the fact remains that suit item No.1 is the
absolute property of Chelladurai. There is no dispute that Chelladurai died
intestate. The question that arises for my consideration is whether the
plaintiff will be entitled to any share in suit item No.1. Even though the
learned counsel for the appellant would contend that Chelladurai and
Chellammal got married and through the said wedlock, the appellant was
born, the averments set out in Ex.A2-certified copy of the deed of divorce
dated 20.11.1964 do not support the said claim. The original deed was
marked by the defendants D2 to D7 as Ex.B3. The contents of the said
document are not challenged by both the parties. In the said document,
there is no claim made to the effect that there was marriage between
Chelladurai and Chellammal. It only reads that Chelladurai and
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S.A.(MD)No.1239 of 2011
Chellammal were like husband and wife. The expression “living as
husband and wife” is absent in the said document. I conclude that
Chellammal and Chelladurai were in a live-in relationship, as a result of
which, the appellant was born.
6.It is relevant to note that the plaintiff's mother Chellammal did not
enter the witness box. She was the best person to speak about the nature of
relationship between herself and Chelladurai. Chellammal is very much
alive and she was also made as first defendant in the suit. She chose to
keep away from the witness box. Thus, the best evidence that could have
established the case of the plaintiff was not forthcoming. Therefore, the
Courts below rightly came to the conclusion that marriage between
Chellammal and Chelladurai was not established. No case has been made
out for dislodging such concurrent finding of fact. However, it is admitted
by the contesting defendants themselves that the plaintiff is an illegitimate
child of Chelladurai. In Ex.A2, the plaintiff's name is very much
mentioned. Therefore, I conclude that the plaintiff / appellant herein is
very much the daughter of Chelladurai born through Chellammal.
7.Once I conclude that she is the daughter of Chelladurai, her status
of legitimacy pales into insignificance, when it comes to her entitlement to
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S.A.(MD)No.1239 of 2011
the absolute property of Chelladurai. From a perusal of Ex.A5, one can
come to the safe conclusion that the suit item No.1 was an absolute
property of Chelladurai. Even though there is no definite evidence
regarding the marriage of Chelladurai and Mallammal, still, it is obvious
that Mallammal is the legitimate wife of Chelladurai. It is clear from the
fact that D3 to D7 were born through Mallammal and long co-habitation as
husband and wife is a clear pointer to her status as legitimate wife of
Chelladurai. D.W.4 is said to be the person who witnessed the marriage
between Mallammal and Chelladurai. The Courts below have concurrently
given a finding that Mallammal is the legitimate wife of Chelladurai and I
confirm the said finding. When Chelladurai passed away, he left behind
his wife, children D3 to D7 born through Mallammal and the appellant
herein. Thus, the appellant will have 1/7th share in the first suit item. The
finding of the Courts below regarding disentitlement of the appellant in
respect of the other suit items is confirmed. No other substantial question
of law arises for consideration. The judgment and decree passed by the
Courts below are accordingly modified. The plaintiff is granted
preliminary decree allotting her 1/7th share in suit item No.1.
9. The learned counsel for the appellant states that the final decree
application will be filed within eight weeks from the date of copy of the
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S.A.(MD)No.1239 of 2011
decree. The trial Court is directed to conclude the final decree proceedings
within a period of nine months after such filing.
10. The second appeal is partly allowed. No costs. Consequently,
connected miscellaneous petitions are closed.
10.08.2021
Internet : Yes/No
Index : Yes/No
rmi
To
1.The Additional District Court cum Fast Track Court No.II, Thoothukudi.
2. The Sub Court, Thoothukudi.
3.The Section Officer,
Vernacular Records,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis/
S.A.(MD)No.1239 of 2011
G.R.SWAMINATHAN.J.,
rmi
Judgment made in
S.A.(MD)No.1239 of 2011
and
M.P.(MD)Nos.2 & 3 of 2011
10.08.2021
https://www.mhc.tn.gov.in/judis/
