Madras High Court
Balasubramanian vs Vannamuthammal Was Not Examined ... on 8 April, 2022
S.A.(MD)No.407 of 2010
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 08.04.2022
CORAM:
THE HON'BLE MR.JUSTICE G.R.SWAMINATHAN
S.A.(MD) No.407 of 2010
Balasubramanian ... Appellant/Appellant/
2nd Defendant
v.
1.Vijayalakshmi (Died)
2.Thiruvannamalai Ammal
3.Amuthavalli
4.Boominathan
5.Paramakalyanasundram
6.Balasubramanian
7.Nagarani
8.Meenakumari
9.Harikrishnan
10.Subramania Nadar ..
Respondents/Respondents/
Plaintiffs & 1st Defendant
[10 respondent given up]
th
[Memo presented before the Court on 22.12.2021 is
recorded as R1 died and respondents 2 to 10 who are
already on record, are recorded as LRs of the deceased R1
vide Court order dated 22.12.2021 made in S.A.(MD) No.407
of 2010]
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S.A.(MD)No.407 of 2010
Prayer :- Second Appeal filed under Section 100 of Civil Procedure
Code to set aside the judgment and decree dated 30.01.2010 made in
A.S.No.42 of 2006 on the file of Sub Court, Ambasamudram confirming
the judgment and decree dated 29.12.2005 made in O.S.No.44 of 2004
on the file of Principal District Munsif Court, Ambasamudram.
For Appellant : Mr.A.Arumugam
For RR2 to 9 : Mr.V.Meenakshi Sundaram
JUDGMENT
The 2nd defendant in O.S No. 49 of 1996 on the file of Sub Court,
Ambasamudram (later transferred and renumbered as O.S No.44 of
2004 on the file of the Principal District Munsif Court, Ambasamudram)
is the appellant in this second appeal. The suit was filed by
respondents 1 to 9 herein for declaring that the suit property belongs to
them and for recovery of possession from the 1st defendant, namely,
Subramania Nadar. During the pendency of the suit, Subramania Nadar
sold the suit property in favour of the appellant who got impleaded as
the 2nd defendant on 03.10.1997.
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2.The stand of the plaintiffs is as follows :
The suit property belonged to Chidambaram Pillai; the 1st
plaintiff, Vijayalakshmi was his second wife, the first wife being Gomathi
@ Vannamuthammal; the other plaintiffs were born to Vijayalakshmi
through Chidambaram Pillai; Chidambaram Pillai executed settlement
deed dated 30.03.1959 settling the suit property in favour of the
plaintiffs ; Chidambaram Pillai and the 1st plaintiff were residing in the
said property; Chidambaram Pillai passed away on 25.06.1981;
suppressing the said settlement deed, Vannamuthammal, the 1st wife of
Chidambaram Pillai mortgaged the suit property in favour of the 1st
defendant on 02.04.1987; upon coming to know of the same, the 1 st
plaintiff issued notice dated 22.07.1987 to the 1st defendant cautioning
him; the 1st defendant did not respond; on 26.06.1991, the 1st
defendant obtained a sale deed from Vannamuthammal and her
daughters; since Vannamuthammal and her daughters did not have any
right to alienate the suit property in favour of the 1st defendant, the
plaintiffs filed the suit.
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S.A.(MD)No.407 of 2010
3.The plaintiffs filed pauper OP in the year 1991. It was
numbered as POP No.34 of 1992 on the file of the Sub Court, Tenkasi.
It was later transferred to Sub Court Ambasamudram and numbered as
O.S No.49 of 1996. During the pendency of the suit, the 2nd defendant
purchased the suit property from the 1st defendant and got impleaded
in the year 1997. It was then transferred to Principal District Munsif
Court, Ambasamudram. The 1st defendant remained exparte. The 2nd
defendant filed written statement controverting the plaint averments.
Based on the divergent pleadings, the trial court framed the necessary
issues. The 1st plaintiff examined herself as P.W.1. Ex.A1 to Ex.A5 were
marked. The 1st defendant though remained exparte, entered the
witness box in support of the 2nd defendant. He was examined as D.W.
2. Three other witnesses were examined on the side of the defendants.
Ex.B1 to Ex.B20 were marked. After consideration of the evidence on
record, the trial court by judgment and decree dated 29.12.2005
decreed the suit as prayed for. The defendants were directed to
handover possession of the suit property to the plaintiffs. Aggrieved by
the same, the 2nd defendant filed A.S.No.42 of 2006 before the Sub
Court, Ambasamudram. By the impugned judgment and decree dated
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S.A.(MD)No.407 of 2010
30.01.2010, the decision of the trial court was confirmed and the first
appeal was dismissed. Challenging the same, this second appeal came
to be filed.
4.The second appeal was admitted on 29.04.2010. The
enforceability of the settlement deed (Ex.A5) was formulated as the
substantial question of law. The learned counsel appearing for the
appellant first contended that the marriage between Chidambaram Pillai
and Vijayalakshmi (P1) was not at all established. He challenged the
very paternity of the other plaintiffs. According to him, they were not
born to Chidambaram Pillai. In the alternative, he submitted that since
Ex.A5 had been executed for an unlawful object, it was void. He
reiterated the contentions set out in the memorandum of grounds and
called upon this Court to answer the substantial question of law in
favour of the appellant and set aside the impugned judgment and
decrees and dismiss the suit. Per contra, the learned counsel appearing
for the plaintiffs submitted that the impugned judgment and decree do
not call for any interference.
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5.I carefully considered the rival contentions and went through
the evidence on record. There is no dispute regarding the following
three facts : a) the suit property belonged to Chidambaram Pillai.
b) Chidambaram Pillai got married to Gomathi @ Vannamuthammal and
begot two daughters through her and c) during the subsistence of the
said marriage, he executed Ex.A5 settling the suit property in favour of
his second wife and her heirs.
6.According to the learned counsel for the appellant, marriage
between Chidambaram Pillai and Vijayalakshmi had not at all been
proved. This contention is without any merit. In Ex.B2 marked by the
appellant, Vijayalakshmi has been described only as the wife of
Chidambaram Pillai. When a document marked by the appellant himself
describes Vijalakshmi and Vannamuthammal as the wives of
Chidambaram Pillai, it is too late in the day for his counsel to question
her status. Ex.A5 was executed on 30.03.1959. It states that
Vijayalakshmi was the second wife of the executant of Ex.A5. The
appellant filed the written statement in the year 1997. Chidambaram
Pillai had passed away in 1981 itself. In such circumstances, it is
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ridiculous to demand that the first plaintiff must prove that she actually
got married to Chidambaram Pillai in 1958. In Badri Prasad v.
Director of Consolidation (1978) 3 SCC 527, it was observed that
if men and women who live as husband and wife in society are
compelled to prove, half a century later, by eyewitness evidence that
they were validly married, few will succeed. I therefore hold that
Vijayalakshmi was very much the wife of Chidambaram Pillai, of course
the character of marriage being bigamous.
7.Plaintiffs 2 to 9 have categorically asserted that they are the
children of Chidambaram Pillai and Vijayalakshmi. In the written
statement, the paternity of P2 to P9 has been questioned. I wondered
if P2 to P9 can invoke Section 112 of the Indian Evidence Act, 1872.
Section 112 is as follows :
“Birth during marriage, conclusive proof of
legitimacy.—The fact that any person was born during
the continuance of a valid marriage between his
mother and any man, or within two hundred and eighty
days after its dissolution, the mother remaining
unmarried, shall be conclusive proof that he is the
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S.A.(MD)No.407 of 2010
legitimate son of that man, unless it can be shown that
the parties to the marriage had no access to each
other at any time when he could have been begotten.”
Valid marriage must be established for invoking the aforesaid
presumption. In this case, the parties are Hindus. Section 5 of Act 25
of 1955 sets out the conditions for a hindu marriage. The first condition
is that neither party has a spouse living at the time of marriage.
Section 11 of the said Act states that any marriage solemnized in
contravention of the conditions specified in clauses (i), (iv) and (v) of
Section 5 of the Act shall be null and void. A bigamous marriage is
regarded as null and void from the very beginning. What is void can
never be valid or validated. Of course, when Section 112 was originally
incorporated, there was no statutory bar against second marriage. The
Hon'ble Supreme Court in Ammathayi v. Kumaresan (AIR 1967 SC
569) invoked the said provision in favour of the son born to through a
bigamous marriage. The bigamous marriage had taken place in the
year 1943 when there was no statutory prohibition against such
marriages in the then Madras Presidency. After the enactment of laws
prohibiting bigamy and more particularly, after the coming into force of
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S.A.(MD)No.407 of 2010
the Hindu Marriage Act, 1955, a bigamous marriage ceased to be valid.
Hence, children born through bigamous marriage cannot invoke the
conclusive presumption set out in Section 112 of the Indian Evidence
Act, 1872.
8.Sham Lal v. Sanjeev Kumar (2009) 12 SCC 454 refers to
the maxim odiosa et inhonesta non sunt in lege praesumenda
(nothing odious or dishonourable will be presumed by the law).
Ashok Kumar v. Raj Gupta (2022) 1 SCC 20 approvingly quotes
another maxim pater est quem nuptiae demonstrant (he is the
father whom the marriage indicates). When the marriage between a
person's mother and a man has been established, while he or she may
not be able to invoke Section 112 of the Indian Evidence Act, 1872 if
the marriage is bigamous, law will yet presume that that man was the
said person's father and throw on the person questioning the paternity
the whole burden of proving it. In this case, the burden lay entirely on
the appellant to disprove the claim of paternity put forth by plaintiffs 2
to 9. This burden has not at all been discharged.
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S.A.(MD)No.407 of 2010
9.Next comes the vital question as to whether the settlement
deed-Ex.A5 dated 30.03.1959 is valid. The original document as well as
the certified copy have been marked. The execution of the document
stands proved in view of the presumptions under Section 60 of the
Registration Act and Section 90 of the Indian Evidence Act. Proof of
execution is onething and validity is another. Ex.A5 reads that
Chidambaram Pillai had executed the same pursuant to the assurance
given by him when marrying Vijayalakshmi (P1). It clearly states that
Vijayalakshmi was his second wife and that the said marriage was
solemnized six months earlier. The settlor and the settlee were to enjoy
the suit property in common and it was to devolve absolutely on
Vijayalakshmi and her heirs after the demise of the settlor. It stipulates
that during the lifetime of the settlor, the settlee must amicably live with
him and that if she did not do so, the settlement can be revoked.
10.As per Section 6(h) of the Transfer of Property Act, no transfer
can be made for an unlawful object or consideration within the meaning
of Section 23 of the Indian Contract Act, 1872. As per Section 10 of the
Indian Contract Act, 1872, agreements must be for a lawful
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S.A.(MD)No.407 of 2010
consideration and with a lawful object. Section 23 of the said Act states
that the consideration or object of an agreement is lawful unless it is
forbidden by law. Every agreement of which the object or consideration
is unlawful is void. The suit settlement deed was executed to sustain a
bigamous marriage. Section 494 of IPC penalizes any person (excluding
male muslims) contracting bigamous marriage. The punishment may
extend for a term upto seven years. Section 40 of IPC defines “offence”
as denoting a thing made punishable by the Code. What has been made
punishable is obviously forbidden by law. I therefore come to the
conclusion that an act of bigamy within the meaning of Section 494 of
IPC is forbidden by law and hence, a settlement deed executed to
sustain a bigamous marriage is void since the object is not lawful.
11.I do not find force in the contention of the learned counsel for
the plaintiffs that Ex.A5 should be sustained in the light of the decision
reported in AIR 1982 Rajasthan 43 (Pyara Mohan vs. Smt.
Narayani). This is because unlike in the Rajasthan case where the
consideration was the past conduct of the beneficiary, Chidambaram
Pillai executed Ex.A5 by stipulating that Vijayalakshmi must continue to
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S.A.(MD)No.407 of 2010
live with him amicably and that he could revoke the same, if she did not
do so. The courts below have proceeded on the premise that if the first
wife had consented, the second marriage should be deemed as valid.
Vannamuthammal was not examined as a witness by the defendants.
Ex.B2 marked by them was entered into between Vannamuthammal
and Vijayalakshmi. In these circumstances, the courts below came to
the conclusion that Ex.A5 was sustainable. This approach is patently
erroneous. When law declares that a bigamous marriage is void, it
cannot be validated by the consent of the first wife. Of course,
normaly, it is only the first wife who can prosecute the offence of
bigamy by filing a private complaint. That there was no prosecution
again cannot lead to the conclusion that a bigamous marriage is valid.
I therefore answer the substantial question of law in favour of the
appellant and hold that Ex.A5 settlement deed is void. As a result, the
judgments and decrees passed by the courts below will have to be
interfered with.
12.This is not the end of the matter. I have already held that
Vijayalakshmi was Chidambaram Pillai's second wife and that P2 to P9
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are the sons of Chidambaram Pillai. As per Section 16 of the Hindu
Marriage Act, there cannot be any distinction between legitimate and
illegitimate children. P2 to P9 will have share in the suit property along
with Vannamuthammal and her two daughters. They will have 9/12 th
share, while Vannamuthammal and her daughters will have 3/12th
share. The appellant herein having purchased the suit property from
Vannamuthammal and her daughters will only have 3/12th share. Even
though the plaintiffs filed a suit for declaration and recovery of
possession and I have set aside the judgment and decree passed by the
trial court, I am bound to pass a decree which the facts of the case
demand and which law permits. A lesser relief than what is sought for
can always be passed. While denying the relief of declaration and
recovery of possession to the plaintiffs, I grant preliminary decree for
partition allotting 9/12th share in their favour. The share of the
appellant in the suit property is 3/12. The impugned judgment and
decree are modified accordingy. The plaintiffs have been fighting for
their rights for more than three decades. Therefore, the petition for
passing final decree shall be disposed of within eight months from the
date of such filing.
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S.A.(MD)No.407 of 2010
13.The Second Appeal is partly allowed with the aforesaid
direction. No costs.
08.04.2022
Internet : Yes/No
Index : Yes/No
skm
To
1.The Sub Judge, Ambasamudram.
2.The District Munsif, Ambasamudram.
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S.A.(MD)No.407 of 2010
G.R.SWAMINATHAN, J.
skm
S.A.(MD) No.407 of 2010
08.04.2022
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