Madras High Court
Jayammal vs C.R.Arulanand on 22 September, 2021
SA NO.321 OF 2015
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 22 / 09 / 2021
CORAM:
THE HON'BLE MR.JUSTICE M.GOVINDARAJ
SECOND APPEAL NO.321 OF 2015
AND MP NO.1 OF 2015
1.Jayammal
2.Sundarambal
3.Jayaraman
4.Sivagami ... Appellants
Vs.
1.C.R.Arulanand
2.Subramani ... Respondents
PRAYER: Second Appeal filed under Section 100 of Civil Procedure Code
against the judgment and decree dated 28.11.2014 made in A.S.No.28 of
2014 on the file of the Principal District Judge, Namakkal, confirming the
judgment and decree dated 14.02.2014 made in O.S.No.46 of 2011 on the file
of the Subordinate Judge, Rasipuram.
For Appellants : Mr.S.Senthil
For Respondents : Mr.T.L.Thirumalaisamy
1/19
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SA NO.321 OF 2015
JUDGMENT
The unsuccessful defendants are the appellants before this Court.
For the sake of convenience, the parties are called as per their litigative status
in the Suit.
2.The plaintiff / first respondent filed a Suit for partition and
permanent injunction restraining the third defendant / third appellant from
alienating or encumbering the Suit property. According to the plaintiff, the
property originally belonged to one Sellappa Gounder. He died intestate. After
his demise, his legal heirs are enjoying the property jointly without partition.
The first defendant is the first wife of Sellappa Gounder and defendants 2 to 4
are her children. The fifth defendant / second respondent is the son of
Sellappa Gounder born through his second wife Vasantha. One another
daughter namely Chitra was also born to Sellappa Gounder through his
second wife Vasantha. Thus, after the demise of Sellappa Gounder, all these
children are entitled to 1/6th share in the Suit property. The daughter Chitra
demanded partition from the defendants on so many occasions. But, they
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SA NO.321 OF 2015
were not amenable for the same. Due to her son's ill health and for family
necessity, Chitra sold her undivided share in the Suit property to the plaintiff
by virtue of two different Sale Deeds dated 30.04.2010 and 04.08.2010, for
valid consideration. The said Sellappa Gounder derived this property by virtue
of a Partition Deed dated 19.04.1972 from his brother. The third defendant
with an ulterior motive to grab the property is attempting to alienate the same
to third parties. The Patta stands in the name of the plaintiff and having
stepped into the shoes of one of the legal heirs of Sellappa Gounder, the
plaintiff filed a Suit for partition and injunction.
3.In the written statement, the defendants have taken a stand that
the property originally belonged to Sellappa Gounder and he died intestate.
But the averments that the fifth defendant born to Sellappa Gounder through
his second wife Vasantha was denied. According to them, there is only one
wife to Sellappa Gounder and he had no other wife. It is false to state that the
fifth defendant and Chitra are the legal heirs of the deceased Sellappa
Gounder. Further, as per law, without getting divorce, Sellappa Gounder said
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SA NO.321 OF 2015
to have married the second wife, which is not legally sustainable and the
second wife is not a legal wife. The property was not enjoyed jointly by the
legal heirs of first and second wife. On the other hand, the property was
exclusively enjoyed only by the defendants 1 to 4. It is false to state that the
said Chitra is a legal heir and that she has 1/6th share in the Suit property. The
averments made in the plaint are false. The property is an ancestral property
of Sellappa Gounder and he got the same by virtue of a Partition Deed dated
19.04.1972 and the Patta stands in the name of the defendants. The plaintiff
fraudulently transferred the Patta in his name. Therefore, the Suit is legally
unsustainable.
4.The Trial Court has framed appropriate issues and decreed the
Suit in favour of the plaintiff. The First Appellate Court has also confirmed
the findings on the basis of the Legal Heirship Certificate and the Transfer
Certificate issued by the School Authorities as well as on the basis of the oral
evidence let in by P.W.1 to P.W.3.
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SA NO.321 OF 2015
5.This Court admitted the Second Appeal on 29.04.2015 on the
following substantial questions of law:-
“a. Whether the findings of the Courts below are
vitiated without rendering a finding about the factum of
second marriage between Vasantha and Sellappa Gounder?
b. Whether the proof of the second marriage between
Sellappa Gounder and Vasantha is the sine quo non for the
plaintiff to maintain the suit for partition as a purchaser
through P.W.2.?
c. Whether in any event, the illegitimate issues are
not entitled to inherit the joint family properties and
consequently, the plaintiff is not entitled to maintain the
suit for partition ?”
6.The crucial issue which is to be decided is as to whether it can
be presumed that Vasantha is the second wife of Sellappa Gounder and the
marriage was proved and whether the burden lies on the defendants to prove
that Vasantha is not the second wife and that the illegitimate children are
entitled to partition or not ?
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SA NO.321 OF 2015
7.Admittedly, the plaintiff is the purchaser from one of the legal
heirs of Sellappa Gounder of the undivided 1/6th share of his property. But,
neither the vendor of the Suit property nor the said Vasantha who is said to
have been the second wife of Sellappa Gounder were impleaded as parties.
The plaint averments categorically shows that the property is an ancestral
property and it was derived by Sellappa Gounder by virtue of Partition Deed
dated 19.04.1972. In that event, it is clear that the property is an ancestral
property and the moot question whether the illegitimate children are entitled
to share in the ancestral property is a matter sub-judiced before the Hon'ble
Supreme Court. The plaintiff said to have stepped into the shoes of one of the
legal heirs, namely Chitra, born to Sellappa Gounder through his second wife
Vasantha.
8.It is well settled that for determination of validity of marriage,
the conduct of marriage would be relevant. The long cohabitation and how the
Society treated them would also be relevant. If it is proved that a man and
woman, were living together as man and wife, it can be presumed that they
were legally wedded and living together as husband and wife.
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SA NO.321 OF 2015
9.Further, it is to be seen as to whether the material placed
before the Court give rise to the presumption or not? In the evidence of Chitra,
who was examined as P.W.2, she would simply state that the first defendant
Jayammal and her mother Vasantha are sisters. Jayammal is the first wife and
Vasantha is the second wife of Sellappa Gounder. Chitra is one of the legal
heirs of Sellappa Gounder born through Vasantha. The Legal Heirship
Certificate issued by the Tahsildar is marked as Ex.X1 and the Transfer
Certificate issued by the School Authorities is marked as Ex.X2. Other than
this, there is no evidence as to the marriage that was said to have happened
between Sellappa Gounder and her mother Vasantha nor about the
cohabitation of Sellappa Gounder and Vasantha under the same roof. There is
no iota of evidence that the Sellappa Gounder was living with Vasantha. On
the other hand, during her cross examination, P.W.2 would depose that till his
death, the said Sellappa Gounder was living with Jayammal. Therefore, it can
be easily inferred that P.W.2 who claims to be the daughter of deceased
Sellappa Gounder has not spoken about the cohabitation of Sellappa Gounder
with her mother or her usual routines in staying with him. P.W.3 is an
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SA NO.321 OF 2015
independent witness examined to prove that Chitra was born to Sellappa
Gounder through his second wife Vasantha. But in the cross examination, he
would state that he had not been to the second marriage of Sellappa Gounder
and that he heard from the residents of the area that Chitra was the second
wife's daughter and that he does not know the fact directly. He would come to
the Court on the request of his friend, C.R.Arulanand, the plaintiff herein.
This witness also does not prove the basic issue that the said Sellappa
Gounder and Vasantha got married and they were living together as husband
and wife. In other words, the relationship between Sellappa Gounder and
Vasantha or marriage between them was not at all proved.
10.The Hon'ble Supreme Court in REVANASIDDAPPA VS.
MALLIKARJUN [2011 (11) SCC 1] has referred the issue as to whether the
children of void or voidable marriages are entitled to father's property,
whether it is self acquired or ancestral. The matter is still sub-judice before
the Hon'ble Supreme Court.
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SA NO.321 OF 2015
11.When there is a conflicting position as to whether Section
6(3) of the Hindu Succession Act, 1956 will apply to devolution of property is
restricted only to the father's property or even to ancestral property, it is not
proper to decide the issue on that point. Even assuming that the children born
out of void or voidable marriages are entitled to share in the ancestral
property, it shall be proved that they were born through void or voidable
marriages.
12.In the instant case, other than the Legal Heirship Certificate
issued by the Tahsildar vide Ex.X1 and the Transfer Certificate issued by the
School Authority vide Ex.X2, there is no other document to indicate that there
was a marriage between Vasantha and Sellappa Gounder and that the vendor
of plaintiff born to Sellappa Gounder. The other evidences like Birth
Certificate, Ration Card are independent, which can speak about the
relationship between Sellappa Gounder and Vasantha were not produced
before the Court. It is true to state that the Transfer Certificate issued by the
School Authorities, will support the paternity of a person, but a perusal of the
Transfer Certificate does not contain the signature of the father at all. Usually,
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SA NO.321 OF 2015
in a School Transfer Certificate, father's signature would be found. But, it is
not there in Ex.X2. It is also well settled that the person from whose custody
the certificate is produced should be examined to prove the same. But, in the
instant case, neither the School Authorities nor the Tahsildar who issued the
Certificates were examined as witnesses.
13.It is also pertinent to note that a best witness to speak about
the long relationship as man and wife is the second wife herself. She was
neither made as a party nor called as a witness before the Trial Court. It is
curious to note that the vendor who sold her undivided share claiming to be
the legal heir of Sellappa Gounder was not also arrayed as a party. The
plaintiff, who is a subsequent purchaser claims that he stepped into the shoes
of legal heirs and filed the Suit is not sustainable without proof of legal
heirship. The Legal Heirship Certificate and the School Transfer Certificate
are not conclusive proof as nobody identified that it is the very same Sellappa
Gounder who is the father of the defendants 2 to 4 was the father of the
vendor of the plaintiff also.
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14.The learned counsel appearing for the respondents would rely
on a judgment of this Court in KUPPAN VS. MUNIAMMAL AND
ANOTHER [2010 (2) CTC 622]. But the facts and circumstances of that case
is entirely different. In para 18 of the said judgment, it is recorded as under:
“18.In his evidence, PW1 (2nd Plaintiff) has stated
that family was living together and in fact for some time,
2nd Plaintiff was living with Defendant in Chennai in
Saligramam. While so living with Defendant in Chennai,
2nd Plaintiff had also sent Money Order to his mother
Muniammal (1st Plaintiff) as seen from Ex.A9 – Money
Order coupon. It is also pertinent to note that even
according to Defendant in the panchayat lands were given
to Plaintiffs in S.No.142/1A and 1/9 th share in the Well
Electric Motor and Pumpset situated in S.No.152/A.
Allotment of certain extent of lands to Plaintiffs is a clear
recognition of their status. Overwhelming documentary and
oral evidence would clearly show that 2nd Plaintiff is the
son of Sadasiva Gounder and 1st Plaintiff.”
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15.In that case, the conduct of the deceased father was proved.
The school certificate corroborated the status of the illegitimate child. But, in
the instant case, there is no iota of evidence to prove the conduct of the father
or relationship of Sellappa Gounder and Vasantha. Therefore, the said
judgment will not apply to the case on hand.
16.This Court in THANGAVEL AND OTHERS VS.
DHANABAGYAM AND OTHERS [2020 (6) CTC 181] has observed as
under:
“24. In Ibramsa Kowther (Minor) & Others vs-
Sheik Meerasa reported in 1972 (85) LW 596 = 1972
AIR(Mad) 467 the doctrine of lost grant and presumed
ouster where the exclusive possession of one co-owner was
for a considerable length of time been explained and
discussed referring all the leading judgments on this
aspect. Since this judgment vividly explains the difference
between the claim of ouster by stranger and a co-sharer,
the relevant portions are extracted below for buttressing
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my reasoning.
8. We shall briefly summaries the legal position.
There is a basic distinction between adverse possession as
between strangers and ouster and exclusion of co-owners.
In the case of adverse possession as against strangers, it is
sufficient that adverse possession is overt and without
any
attempt at concealment so that the person, against whom
time is running, ought, with the exercise of due vigilance,
to be aware of what is happening. It is not necessary that
adverse possession should be brought home to the
knowledge of the owner. If his rights, have been openly
usurped (not secretly), he cannot be heard to complain that
the fact of adverse possession was not brought to his
knowledge. If the adverse possession is open, visible and
notorious, even if the owner remains ignorant and
indifferent, it is his own fault. The observations in some
of the cases, in general, that, in the case of adverse
possession between strangers, knowledge of adverse
possession on the part of the owner is an essential element
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of adverse possession are too widely expressed and do not
represent the correct legal position. Vide: the following
observations of Lord Macmillan in Secretary of State for
India in Council v. Debendralal Khan, ILR 61 Cal 262 at
p.266 : AIR 1934 PC 23:
"The classical requirement is that the possession
should be Nec Vi, Nec Clam, Nec Precario. Mr.Dunne for
the Crown appeared to desiderate that the adverse
possession should be shown to have been brought to the
knowledge of the Crown "but in their Lordships' opinion,
there is no Authority for this Requirement.
" It is sufficient that the possession be overt and
without any attempt at concealment so that the person,
against whom time is running, ought, if he exercises due
vigilance, to be aware of what is happening".
In a case of ouster of a co-owner, the position is
entirely different. The possession of one co-owner is
presumed to be on behalf of all the co-owners in view of
the unity of title and possession. Because of this
presumption of joint ownership in the case of co-owners,
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the law requires, to constitute ouster, proof of something
more than mere exclusive possession and exclusive receipt
of income. Along with exclusive possession there must be
an ouster, a hostile, open denial and an open repudiation
of the other co-owner's right to the latter's knowledge. The
co-owner in exclusive possession cannot render his
possession adverse to the other co-owner merely by any
secret, hostile animus on his own part in derogation of
other co-owner's title. Vide the observations in P.
Lakshmi Reddy v. L. Lakshmi Reddy, AIR 1957 SC 314
at pp.317 and 318; Sinnaraj Pillai v. Ramayee Animal,
(1968) 2 Mad LJ 639 at pp.647 and 648 : AIR 1969
Madras 96 and Shambhu Prasad v. Phool Kumari, AIR
1971 SC 1337 at p.1345.”
17.The learned counsel for the respondents also relied on the
judgment of the Hon'ble Supreme Court in UDAY GUPTA VS. AYSHA AND
ANOTHER [SLP (CRL) NO.3390 OF 2014 DECIDED ON 21.04.2014]. In
the said judgment, the Hon'ble Supreme Court relied on its judgment in
MADAN MOHAN SINGH AND OTHERS VS. RAJNI KANT AND
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ANOTHER [AIR 2010 SC 2933] and reproduced the relevant portion as
under:
“21.The courts have consistently held that the law
presumes in favour of marriage and against concubinage,
when a man and woman have cohabited continuously for a
number of years. However, such presumption can be
rebutted by leading unimpeachable evidence. (Vide:
Mohabbat Ali Khan Vs. Mohd. Ibrahim Khan, AIR 1929
PC 135; Gokalchand Vs.. Parvin Kumar, AIR 1952 SC
231; S.P.S. Balasubramanyam Vs. Suruttayan, (1994) 1
SCC 460; Ranganath Parmeshwar Panditrao Mali Vs.
Eknath Gajanan Kulkarni, (1996) 7 SCC 681; and Sobha
Hymavathi Devi Vs. Setti Gangadhara Swamy & Ors.,
(2005) 2 SCC 244). “
But, there is no such presumption arises in the present case. Therefore, the
findings of the Courts below on the basis of Exs.X1 and X2, the Legal
Heirship Certificate and the School Transfer Certificate are not unsustainable
and there is no proof to show that the vendor of the plaintiff was born out of
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void marriage between the said Sellappa Gounder and Vasantha. In that
event, the concurrent findings rendered by the Courts below are not legally
sustainable and they are liable to be interfered with.
18.Accordingly, the judgment and decree dated 28.11.2014
passed in A.S.No.28 of 2014 by the learned Principal District Judge,
Namakkal, confirming the judgment and decree dated 14.02.2014 passed in
O.S.No.46 of 2011 by the learned Subordinate Judge, Rasipuram stands set
aside and the substantial questions of law are answered in favour of the
appellants.
19.In fine, the Second Appeal stands allowed. No costs.
Consequently, connected miscellaneous petition is closed.
22 / 09 / 2021
Index : Yes/No
Internet : Yes/No
Speaking / Non-speaking order
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SA NO.321 OF 2015
TK
M.GOVINDARAJ, J.
TK
To
1.The Principal District Judge
Principal District Court
Namakkal.
2.The Subordinate Judge
Subordinate Court
Rasipuram.
SECOND APPEAL NO.321 OF 2015
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SA NO.321 OF 2015
22 / 09 / 2021
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