Madras High Court
Tmt.Chinna Palaniammal vs Tmt.Periya Palaniammal on 9 June, 2022
A.S. (MD) No.197 of 2006
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 09.06.2022
CORAM
THE HONOURABLE MR.JUSTICE P.VELMURUGAN
A.S. (MD) No.197 of 2006
and
C.M.P. (MD) No.1 of 2006
1.Tmt.Chinna Palaniammal
2.Thiru.Kandasamy
3.Tmt.Pappathy
4.Thiru.Velusamy
5.Tmt.Chittu @ Karuppayee ... Defendants/Appellants
Vs.
1.Tmt.Periya Palaniammal
2.Tmt.A.Myilvel
3.Tmt.P.Angammal
4.Tmt.R.Palaniammal
5.Anjalai ... Plaintiffs/Respondents
PRAYER: Appeal Suit filed under Section 96 r/w Order 41 Rule 1 of the
Civil Procedure Code, 1908 against the judgment and preliminary decree of
the learned Fast Track Court (Additional District and Sessions Judge),
Dindigul, dated 24.07.2006 in O.S.No.312 of 2004.
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For Appellants : Mr.J.Lawrence
For Respondents : Mr.H.Lakshmisankar
JUDGMENT
This Appeal Suit has been preferred challenging the judgment and
decree of the learned Fast Track Court (Additional District and Sessions
Judge), Dindigul, dated 24.07.2006 made in O.S.No.312 of 2004.
2. The appellants are the defendants in the suit. The suit has been
filed by the plaintiffs for the relief of partition.
3. According to the case of the plaintiffs as per the plaint, the suit
property and other properties originally belonged to one Gurunathan Servai.
He had two sons, namely, Karupanan @ Chinnakalai and Palanichamy.
After the death of Gurunathan Servai, Karupanan @ Chinnakalai and
Palanichamy partitioned the suit properties among themselves. The suit
schedule properties are allotted to the share of Karupanan Servai. The said
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Karupanan Servai had two wives, namely, Periya Palaniammal, who is the
1st plaintiff and through her, he had four children, viz., who are the
plaintiffs 2 to 5 in the suit. Thereafter, the said Karuppnnan Servai married
Chinna Palaniammal as his second wife, who is the sister of the Periya
Palaniammal, during the existence of the first marriage. The said Chinna
Palaniammal is the 1st defendant and the defendants 2 to 5 are the children
born through her. The said Karuppannan Servai died in the year 1989.
The second wife is not entitled to any share in the partition of the suit
property, since the first marriage with the said Periya Palaniyammal was not
dissolved and is in existence during the second marriage. The suit properties
were jointly enjoyed by the plaintiffs and the defendants 2 to 5, hence, they
are entitled to partition in the suit property. At this juncture, the plaintiffs
filed a suit for partition against the defendants before the Fast Track Court,
Dindigul in O.S.No.256 of 2004. The Court below has ordered to settle the
matter out of court, as the first defendant was not added as a party to the lis
as per the written statement made on 29.10.2004. Since the parties are not
ready to settle the matter out of the Court, the present suit has been filed.
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4. The defendants resisted the suit by filing a written statement
stating that the averments contained in the plaint are all false. Further, it is
stated that the first plaintiff is the second wife of the said Karuppannan
Servai. The marriage between Karupannan Servai and first plaintiff and also
Karuppannan Servai and Chinna Palaniammal was performed jointly.
Further, after accepting the Chinna Palaniammal as the first wife, then only
the first plaintiff was married for the second time as second wife. The details
about the children are true and the children are born when they are in joint
family system. The male heir of the said Karuppanan, the second defendant
had maintained the suit properties. The second defendant only performed
the marriage of the plaintiffs 2 to 4 and defendants 3 to 5. He has only
repaid the loan amount of the family and spent a sum of Rs.1,00,000/-
towards marriage and other expenses. The debts of Palanichammy, who is
the husband of third plaintiff, to the tune of Rs.80,000/- while he was doing
in the agriculture, was repaid by the first defendant. The suit was filed with
false allegations. Further, a sum of Rs.75,000/- was spent for digging a well
and while partitioned the suit property on 21.04.1982, the plaintiffs have
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A.S. (MD) No.197 of 2006
agreed to pay a sum of Rs.25,000/- towards the debt amount to the first
defendant. However, they have refused to pay the same after partition and
agreed to enjoy the suit property as partitioned by them. As per the
partition the first defendant had obtained patta and enjoyed the property
allotted to him. The suit was filed on the ill-advise of third parties and as
such, the plaintiffs have no right over the suit property and more over the
plaint was bad for misjointer of unnecessary parties and the suit is liable to
be dismissed.
5. The plaintiffs have filed a rejoinder to the written statement
which reads as follows:- It is not true to state that the first plaintiff was
married as second wife by the said Karuppannan Servai. The first plaintiff
is the first wife and the first defendant is the second wife. More over, there
is no opportunity to get debt for the family. They have not spoken about the
partition on the payment of a sum of Rs.2,25,000/- during Panchayat. It is
not true to state that the first defendant has enjoyed the suit property and
hence, the plaintiffs have no right over the same.
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A.S. (MD) No.197 of 2006
6. On the basis of the above pleadings, the learned trial Judge
framed the following issues for consideration:
(i) Whether the plaintiffs are entitled to 5/9 share in the
suit properties?
(ii) Whether the plaintiffs are entitled to mesne profits
from the suit properties?
(iii) To what other reliefs the plaintiffs are entitled to? ?
7. In order to substantiate the claim of the plaintiffs, on the side
of the plaintiffs, two witnesses were examined as PW1 and PW2 and two
documents were marked as Exs.A1 and A2. On the side of the defendants,
three witnesses were examined as DW1 to DW3 and no document was
marked.
8. After completing the trial and on hearing of arguments
advanced on either side, the learned trial Judge, considered the evidence
available on record and decreed the suit for partition declaring that the
plaintiffs are entitled to 5/9 share without costs and directed the plaintiffs to
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take proceedings under Order 20 Rule 12 of CPC regarding mesne profits.
Aggrieved over that, the defendants have preferred this Appeal.
9. The appellants have taken the main grounds in the appeal are
that the 1st appellant herein as the second wife of Late.Karuppannan as per
Section 16 of Hindu Marriage Act,the respondents herein are entitled not
more than 5/ 27 shares in the suit properties. No independent witness was
examined to prove as to who is first wife of Late.Karuppannan among 1st
plaintiff and 1st defendant in the suit. It is held only on assumption and
presumption. Since Periya Palaniammal and Chinna Palaniammal were
twins and Periya Palaniammal is elder and so naturally Thali would have
been tied first to the elder sister as the marriage took simultaneously on one
and the same stage. The trial Court failed to consider the evidence of D.W.
3, the elder brother of 1st plaintiff and 1st defendant as the Thali was tied
first to the first defendant and on compulsion, the first plaintiff was married
to Late. Karuppannan on the same day and on the same stage and further
failed to see that the 2nd appellant is the eldest among the children of two
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wives i.e., 1st plaintiff and 1st defendant, which fact is corroborating the
evidence of D.W.3. The trial Court having considered the contradictory
evidence of P.W.2 and who is younger brother of 1st plaintiff and 1st
defendant and who has also married the daughter of 1st plaintiff, ought to
have dismissed the suit as the 1st plaintiff failed to discharge the burden of
proof of her marriage with Late. Karuppannan first. The trial Court is not
correct in rejecting the evidence of D.W.3, as he is not in good terms with
the 1st plaintiff. The trial Court erred in shifting the burden of proof on 1st
defendant and decreeing the suit as there is no independent witness to
support the evidence of D.W.2. The trial Court failed to see that P.W.2 is an
interested witness, who married the daughter of P.W.1 and erred in holding
that the evidence of PW2 is supporting the evidence of PW1 which is
unsustainable in law. The trial Court erred in law in decreeing the suit only
on assumption and presumption and without any iota of proof. The trial
Court erred in holding that the 1st defendant was second wife of Late
Karuppannan and so, she is not entitled to get any share in the suit property.
The trial Court is not correct in law in holding the plaintiffs are entitled 5
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out of 9 shares in the suit properties. The trial Court is not correct in law in
holding that the plaintiffs are also entitled to mense profits as the suit
property are enjoyed by the second defendant. In any event, the findings of
the trial Court are perverse and not sustainable in law. The trial Court failed
to see that there is no denial as to the averments that the second defendant
had performed the marriages of the children of the 1st plaintiff and so, the
trial Court ought to have rejected the claim of mesne profits.
10. The specific case of the plaintiffs is that the first plaintiff is
the first wife of Late.Karuppannan Servai. The plaintiffs 2 to 5 are the son
and daughters born to them. The first defendant/1st appellant herein is the
second wife, who is none other than the younger sister of the first plaintiff
and the plaintiffs 2 to 5 are the daughters of the first plaintiff. The suit
property belonged to Late.Karuppannan Servai, after demise of the said
Karuppannan Servai, his first wife and her children i.e., plaintiffs and
defendants 2 to 5 are entitled to get share in the suit property. The first
defendant is not legally wedded wife of the Late.Karuppanan Servai
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therefore, she is not entitled to get any share, therefore, plaintiffs are entitled
to get 5/9 share in the suit properties.
11. The case of the appellants/defendants is that the first appellant
is the first wife of the Late.Karuppannan and the second appellant is the son.
Since the first respondent is the second wife, she is not entitled to get any
share. Already there is an oral partition, therefore, the suit for partition is
not maintainable, hence, liable to be dismissed.
12. The learned counsel for the appellants would submit that the
first appellant is the first wife of Late.Karuppannan and the first respondent
is only a second wife and therefore, she is not legally wedded wife and
hence, she is not entitled to get the share in the property of
Late.Karuppannan. He would also further submit that as the first
plaintiff/first respondent has not proved that she is the first wife. It is the
bounden duty of the plaintiffs to prove their case and they cannot take the
advantage of the loopholes left by the defendants. Further, he examined the
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brother of the first appellant and first respondent. He had deposed that
though the first appellant is the first wife of the Late.Karuppannan, she is
younger to the first respondent, but the Karuppannan married only the first
appellant as first wife. Thereafter only he married the first respondent.
Therefore, the first appellant is the legally wedded wife. The first
respondent is not legally wedded wife. Therefore, she is not entitled to get
any share in the suit property. The trial Court failed to appreciate the fact
that the respondents/plaintiffs have not proved the fact that the first
respondent is the first wife of Late.Karuppannan, she is a legally wedded
wife and simply, the trial Court ignored the evidence of brother of the first
respondent without any valid reason. He would further submit that the
second appellant is elder son of the Late.Karuppanan and he enjoyed the
suit property. Without considering the facts, the trial Court ordered for
mesne profits which is also legally not sustainable.
13. The learned counsel for the respondents would submit that
both the first appellant and the first respondent are twins. The first
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respondent is the elder sister and P.W.2 is the younger brother to them.
Though in the village as per the customs, one man could marry two sisters,
in that case he would marry only the elder sister first and the younger sister
next and if the elder sister is available, they would not allow to marry the
younger sister first and hence, in this case both sisters married Late.
Karuppannan. He married the first respondent as the first wife and later
married the first appellant as second wife. The appellants have not
established that Late.Karuppannan married only the first appellant as first
wife. The trial Court rightly appreciated the oral and documentary
evidence of both the parties and found that the case of the first respondent
is genuine and therefore prayed for dismissal of the appeal.
14. Heard the learned counsel appearing for the appellants and the
respondents, perused the pleadings and the issues framed before the trial
Court and the oral and documentary evidence adduced and produced by
both parties.
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15. It is the case of the respondents that the first respondent is the
legally wedded wife of the Late.Karuppannan and she has got four daughter
respondents 2 to 5 and on the same day of her marriage, her husband
married the first appellant as second wife. She is none other than her own
sister. But as per the law, she is not legally wedded wife. The respondents
and the appellants 2 to 5 are only entitled to get the share from the
properties of Late.Karuppannan and not the first appellant. The appellants
denied in their written statement that the first respondent is not the first
wife of the Late.Karuppannan and she is only the second wife. The first
appellant is the first wife. Therefore, the share allotted to the first
respondent is not valid. However, both the first appellant and the first
respondent went to the witness box and gave evidence, but none of them
have specifically stated the date of marriage. Both of them have admitted
that the said Karuppannan married both of them. Though the
appellants/defendants put the question before the first respondent/first
plaintiff, she is not first wife, for which, the first respondent denied the
suggestion. Vice Versa, the first appellant was also examined in this aspect
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and in her deposition, she stated that the first respondent is not the first
wife. But unfortunately, both parties have not examined any independent
witness or elders to the said village, those who have attended the marriage
to prove the said fact and they have not produced any documents to show
the date of marriage and also both parties have admitted that the marriage
with the both first appellant and the first respondent with Karuppannan
taken place on the same day at one and the same stage, but no documentary
evidence to show that whether the first respondent is the first wife of the
Karuppannan or the first appellant is the first wife. However, though they
are twins and admittedly the first respondent is the elder sister and the first
appellant is the younger sister and the marriage with the Karuppannan took
place on the same day, it is not out of place to say as per the customs in the
village, same time a man would marry two sisters, if that be the case,
normally first would marry the elder sister and later marry the younger
sister. So in the absence of any specific proof, the trial Court has presumed
that the first respondent is the first wife based on the preponderance of
probabilities. Since there is no contra evidence are produced by the
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appellants/defendants that Late.Karuppannan married the first appellant first
and then married the first respondent later. Since this Court as the first
appellate Court is a fact finding Court it has to re-appreciate the entire
evidence and give an independent findings. It is not the case of the
appellants that the marriage taken place before the Hindu Marriage Act
1955 came into force. The marriage is after the enactment of the Hindu
Marriage Act, hence the validity of the second marriage would arise. So in
this case, there is no date of marriage has been mentioned. Both the parties
have not mentioned the date of marriage. The marriage not took place prior
to the Hindu Marriage Act come into force. Therefore, considering the
above, the trial Court has come to the conclusion that the marriage took
place after the Hindu Marriage Act came into force, since the first appellant
and the first respondent are twins and the marriage took place on the very
same day at one and the same stage to Late.Karuppannan. In the absence of
any specific proof, the trial Court is of the opinion that Late. Karuppannan
married the elder sister first and younger sister second. Therefore, the first
appellant is not the first wife and is not legally wedded wife and she is not
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entitled to get any share. Hence, the trial Court has allotted the share to the
first wife and the children born through first wife and second wife. Further,
appellants have not proved the earlier partition as averred them in their
written statement. This Court does not find any reason to interfere with the
findings of the trial Court.
16. Accordingly, this appeal is dismissed and the judgment and
decree passed by the Fast Track Court (Additional District and Sessions
Judge), Dindigul in O.S.No.312 of 2004 is confirmed. No costs.
Consequently, connected miscellaneous petition is closed.
Index : Yes / No 09.06.2022
Speaking Order : Yes / No
am
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A.S. (MD) No.197 of 2006
To
1. The Fast Track Court
(Additional District and Sessions Judge),
Dindigul.
2. The Section Officer,
VR Section,
Madurai Bench of Madras High Court,
Madurai.
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A.S. (MD) No.197 of 2006
P.VELMURUGAN, J.
am
A.S. (MD) No.197 of 2006
and
C.M.P. (MD) No.1 of 2006
09.06.2022
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