Madras High Court
Devasahayam vs Subbammal on 6 July, 2021
AS(MD)No.204 of 2017
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 06.07.2021
CORAM
THE HONOURABLE MR.JUSTICE G.R.SWAMINATHAN
AS(MD)No.204 of 2017
and
CMP(MD)No.11692 of 2017
Devasahayam ... Appellant/Plaintiff
Vs.
1.Subbammal
2.Velmurugan
3.Mariammal
4.Azhaguvalli ... Respondents /Defendants
PRAYER: First Appeal filed Section 96 of Civil Procedure Code,
1908 r/w. Order 41 Rule 1 of Civil Procedure Code, to set aside
the judgment and decree dated 06.09.2017 made in O.S No.100 of
2015 on the file of the 2nd Additional District Court, Thoothukudi
and decree the suit.
For Appellant : Mr.A.Arumugam
For Respondents : Mr.G.Prabhu Rajadurai
No appearance for R3 & R4
***
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AS(MD)No.204 of 2017
JUDGMENT
The unsuccessful plaintiff in O.S No.100 of 2015 on the
file of the 2nd Additional District Judge, Thoothukudi is the
appellant herein. The suit was filed for the relief of declaration
and recovery of possession. The case of the plaintiff was that the
suit property belonged to one Chinnamalaisami. He had
purchased the same by way of a sale on 25.01.1978.
Chinnamalaisamy's wife Guruvammal passed away on 04.12.2005.
They did not have any children. Following the demise of
Guruvammal, Chinnamalaisamy married one Muthulakshmi as his
second wife and they were living together in the suit property.
Chinnamalaisamy passed away on 01.02.2015. Muthulakshmi,
the second wife of Chinnamalaisamy was his sole legal heir. To
this effect, the Tahsildar, Thoothukudi issued a legal heir
certificate on 10.07.2015. Muthulakshmi executed a power of
attorney dated 11.08.2015 in favour of one Arumugam of the suit
property. Pursuant to the said power of attorney, the said
Arumugam sold the property in favour of the plaintiff
Devasahayam vide a registered sale deed dated 02.09.2015 for
valuable consideration.
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AS(MD)No.204 of 2017
2.The specific allegation of the plaintiff is that the
defendants who are the Class-II legal heirs of the deceased
Chinnamalaisamy had illegally trespassed into the suit property on
03.09.2015 and prevented the plaintiff from enjoying the same.
When the plaintiff lodged police complaint, he was advised to
move the jurisdictional civil court. Therefore, seeking the relief
of declaration and recovery of possession, the suit came to be
filed. The defendants who are the Class-II legal heirs of the
deceased Chinnamalaisamy filed their written statement opposing
the suit claim. While admitting that Guruvammal passed away on
04.12.2005, it was denied that Chinnammal married
Muthulakshmi as his second wife. They would state that
Muthulakshmi was only a servant maid. It was also alleged that
Muthulakshmi had a husband by name, Kombaiyathevar and that
three children were born through the wedlock. The specific
allegation is that to grab the suit property, documents have been
fabricated and the suit has been instituted on that basis.
3.The learned Trial Judge based on the divergent
pleadings framed the necessary issues. The plaintiff examined
himself as PW.1. Exs.A1 to A3 were marked. The defendants
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AS(MD)No.204 of 2017
examined three witnesses and Exs.B1 to B10 were marked. After
a detailed consideration of the evidence on record, by judgment
and decree dated 06.09.2017, the suit was dismissed. Questioning
the same, this appeal came to be filed. In this appeal, CMP(MD)
No.11693 of 2017 and CMP(MD)No.1207 of 2020 were filed for
reception of additional evidence. The said applications were
allowed on 16.2.2021 and the learned Trial Judge was directed to
receive the documents as additional evidence and record the
evidence after giving opportunity to both sides and produce the
same before this court. Pursuant to the said direction, Exs.A4 to
A11 were marked. PW.2 to PW.4 were also examined. P.W.1
also examined himself further.
4.The point for determination is (a) whether the
appellant/plaintiff is entitled to the relief sought for, (b) whether it
has been established that Muthulakshmi was the legally wedded
wife of the deceased Chinnamalaisamy and (c) whether the Will
Ex.A4 has been proved in the manner known to law.
5.The learned counsel appearing for the appellant
submitted that the best person to speak about the marital status of
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AS(MD)No.204 of 2017
Muthulakshmi with Chinnamalaisamy could only be
Chinnamalaisamy. Of course, he is no more. But, he had executed
a Will dated 29.04.2008 in which Muthulakshmi had been
specifically described as his second wife. It is a registered
document. It had been marked as Ex.A4. PW.2 was one of the
attestors of the Will and by examining him, the appellant had
complied with the requirement set out in Section 68 of the Indian
Evidence Act, 1872.
6.The learned counsel for the appellant pointed out that
in Ex.A6 Aadhar card, it has been mentioned that
Chinnamalaisamy is the husband of Muthulakshmi. This Aadhar
card was generated in the year 2009, ie., a full six years prior to
the decease of Chinnamalaisamy. He also submitted that in the
Voter ID card issued in the year 2008 Muthulakshmi has been
described as the wife of Chinnamalaisamy. These three documents
when cumulatively taken together would clearly establish the
marital status of Muthulakshmi as the second wife of
Chinnamalaisamy.
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AS(MD)No.204 of 2017
7.It is the contention of the learned counsel for the
appellant that Muthulakshmi was admittedly residing with
Chinnamalaisamy right up to his demise. He also would submit
that the defendants herein filed O.S No.244 of 2015 before the
Principal District Munsif Court, Thoothukdi claimng declaration
that they are the Class-II legal heirs of Chinnamalaisamy and that
the said suit was dismissed on 27.11.2018. When the declaration
sought for by the defendants had been negatived by the
jurisdictional civil court, the defendants cannot now maintain their
claim that they are Class-II legal heirs. The learned counsel for
the appellant would further submit that in civil proceedings the
standard of proof is only 'balance of probabilities. In the case on
hand, the appellant had produced a host of documents and he had
proved his title to the hilt. He, therefore, called upon this Court
to set aside the impugned judgment and decree passed by the trial
court and allow this appeal.
8.Per contra, the learned counsel appearing for the
respondents submitted that the impugned judgment passed by the
trial court does not call for any interference and he pressed for
dismissal of the first appeal.
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AS(MD)No.204 of 2017
9.I carefully considered the rival contentions and went
through the evidence on record. The primary issue that calls for
my determination is whether the marital status of Muthulakshmi
has been established. Unfortunately, in this case, the concerned
parties are not before the Court. Chinnamalaisamy had passed
away in the year 2015 and Muthulakshmi is also said to have
passed away in the year 2016. If Muthulakshmi had been present
before the court, it would be possible to unearth the truth. Before
the court, three documents are available, namely, the Will dated
29.04.2008 said to have been executed by Chinnamalaisami,
Aadhar card and voter identity card of Muthulakshmi. Apart from
these three documents, there is no other evidence on record. In
the Will dated 29.04.2008, it has been mentioned that he was
suffering from stroke. The reason given for bequeathing the suit
property in favour of Muthulakshmi was that she was taking care
of him. She has been described as his second wife. But this Will
dated 29.04.2008 was subsequently cancelled on 02.01.2015.
While the Will dated 29.04.2008 has been signed, in the deed
dated 02.01.2015 cancelling the Will, there is only a thumb
impression of Chinnamalaisami. In the cancellation deed dated
02.01.2015, there is absolutely no reference to Muthulakshmi. All
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AS(MD)No.204 of 2017
that the document dated 02.01.2015 states is that the earlier
Document No.51 of 2008 stood cancelled. The learned counsel
for the appellant would comment that in the subsequent
cancellation deed dated 02.01.2015, Chinnamalaisamy has not
denied the marital status of Muthulakshmi.
10.As rightly pointed out by the learned counsel for the
respondents, a marriage will have to be solemnized in the
presence of witnesses. If a marriage is to be solemnized,
ceremonies will have to be performed. If it is a self-respect
marriage, then, it requires witnesses. Marriage is a legal as well
as social institution. In the case on hand, the details regarding the
marriage are wholly absent. One does not know when the
marriage between Chinnamalaisami and Muthulakshmi took place.
The venue has not been specified. There are no photographs
covering the event. The neighbors have not been examined to
show that Chinnamalaisami and Muthulakshmi were living as
husband and wife. In these circumstances, based on the recitals
in the Will dated 29.04.2008 which was subsequently cancelled, it
would be unsafe to come to the conclusion that Muthulakshmi
was the legally wedded wife of Chinnamalaisami.
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AS(MD)No.204 of 2017
11.The entire case of the appellant rests on the marital
status of Chinnamalaisamy with Muthulakshmi. If Muthulakshmi
was the legally wedded wife of Chinnamalaisami, she would
inherit the property as his legal heir and in view of the suit sale
deed, the appellant's title would stand established. The additional
evidence also cannot make any difference. At the same time, I
cannot lose sight of the contention advanced by the learned
counsel for the appellant. The defendants herein filed O.S No.244
of 2015 before the Principal District Munsif Court, Thoothukudi
claiming declaration that they are the class-II legal heirs of the
deceased Chinnamalaisami. The said suit was filed in the year
2015. During the relevant time, Muthulakshmi was very much
alive. The defendants knew very well that Muthulakshmi was
staking a claim that she was the legally wedded wife of
Chinnamalaisami. But, without arraying Muthulakshmi as
defendant, behind her back the suit was filed and the same was
dismissed by the court. It is stated that AS.No.54 of 2019 has
been filed by the defendants before the first appellate court and
that it is still pending. If the jurisdictional civil court grants the
declaration sought for by the defendants, they will be entitled to
inherit the property of Chinnamalaisami. It is well settled that if
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AS(MD)No.204 of 2017
there is no claim to the property of an individual, it will have to be
escheated to the Government. Therefore, the rights of the
defendants will abide by the outcome of A.S No.54 of 2019
pending on the file of the Sub Court, Thoothukudi. If the said
appeal is dismissed, then, the suit property will be escheated to
the Government.
12.With this direction, the first appeal is dismissed. No
costs. Consequently, connected miscellaneous petition is closed.
06.07.2021
Index : Yes / No,
Internet : Yes/ No
skm
Note : In view of the present lock down owing to
COVID-19 pandemic, a web copy of the order may be
utilized for official purposes, but, ensuring that the copy of
the order that is presented is the correct copy, shall be the
responsibility of the advocate/litigant concerned.
To
1.II Additional District Judge, Thoothukudi
2.The Sub Judge, Thoothukudi.
Copy to :
https://www.mhc.tn.gov.in/judis/
AS(MD)No.204 of 2017
The Record Keeper,
V.R.Section,
Madurai Bench of the Madras High Court.
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AS(MD)No.204 of 2017
G.R.SWAMINATHAN, J.
skm
AS(MD)No.204 of 2017
06.07.2021
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