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TMI Blog2017 (8) TMI 1656X X X X Extracts X X X X X X X X Extracts X X X X ..... ince both the appeals are arising out of the same judgment, dated 13.10.1992 in O.S.No.95 of 1989 on the file of Subordinate Court, Thanjavur, we decide to dispose of both the appeals in a common judgment. 3. For the sake of convenience the parties are arrayed as per their own ranking before the Trial Court. The brief facts of the plaintiffs case is as follows:- The plaintiffs are children of one Durairaj, born through their mother Kamalambal. Though the first defendant married Durairaj in the year 1953, the female child born to her died immediately. Thereafter, in the year 1957, the second defendant herein was born to Durairaj and first defendant. Since both the children born to first defendant happened to be female children and after that, the first defendant did not conceive for some time, late Durairaj, who was the Zamindar of Pappanadu, wanted to have a male child. Hence, he thought of going for a 2nd marriage. Accordingly, the said Durairaj married Kamalambal as the second wife on 05.06.1960 at 30, Ganapathy Nagar, Thanjavur in the presence of relation of Kamalambal and Durairaj. The said Kamalambal was already living along with her mother, who was managing the house hold w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... puted as wife of Durairaj by those who know her. She has no reputation of having been married to late Durairaj. It is also denied by the defendants that Durairaj wanted to have a male child, therefore he contracted the second marriage. Similarly, the alleged exchange of garlands and tying of thali is also denied by the defendants. The allegation that Durairaj and Kamalambal living as husband and wife from 1960 is also denied. 5. It is the further contention of the defendants that Raja Kalai Arangam, a cinema theater, was absolutely belong to the first defendant and her husband executed a settlement deed in the year 1959. There were civil suit in respect of the same and ultimately there is a compromise. In view of the litigations, the first defendant's husband wanted to execute a power deed in his favour for attending the cinema theatre business. The first defendant has signed the papers under the premises that she is executing the power of attorney and signed in several blank papers. 6. It is the contention of the defendants that the first defendant's signature which was obtained in blank papers were used or misused for preparing a settlement deed in his favour. The settl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urairaj was Zamindar of Pappanadu and they are living in a family house and out of the wedlock, the second defendant was born to the first defendant and Durairaj. When the first marriage was existing very much, the said Durairaj marrying one Kamalambal in the year 1960 is highly improbable. Further, the contention of the plaintiffs that since Durairaj did not have any male heir and therefore he wanted to have a second marriage to have a male heir, is also highly improbable. Admittedly, the marriage between the first defendant and Durairaj took place in the year 1953. Out of the wedlock the female child already born to Durairaj, through the first defendant was died after sometime. Thereafter, the second defendant was born to them. That being so, contracting 2nd marriage to have a male heir is highly improbable. Admittedly the first defendant was also cabable of delivering a child at the relevant time. Therefore, without waiting for the first defendant to deliver a child, Durairaj marrying Kamalambal only for the purpose of male child is highly improbable and unbelieavable. 11. It is the further contention of the learned Senior Counsel that the alleged marriage plea by the plaintiff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ether for a sufficiently long period and were treated as husband and wife by their relations and the public.Where a man had already married a woman and had children by her, there is no presumption that another lady with whom he is said to have lived is his wife or his children by her are legitimate" ii) Vol.81 LW 200 (Rajagopal Pillai v. Pakkiam Ammal), wherein it is held as follows:- "The marriage state being chief foundation on which the superstructure of society rests, presumption of the marriage arising from cohabitation of spouses is a very strong presumption. Where a man and a woman had lived together as man and wife, the law will presume, until the contrary is proved, that they were living together by virtue of a legal marriage and not in concubinage." iii) 1972 TLNJ 464 (Kumarayya Chettiar & Ors. V. Cheyyalachi & Ors), wherein it is held as follows:- "The question is whether in a case where the parties adduce evidence in proof of a fact, but fail to establish the fact, the Court should still draw the presumption merely on account of the existence of certain cricumstances. In other words, the question is whether the presumption of marriage can be drawn merely from the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... circumstances pointed out earlier considerably weaken the drawing of such a presumption, there is really no scope for such a presumption at all." vii) 1989 (2) LW 197 (Moham v. Santha Bai Ammal), wherein it is held as follows:- "Ex.A2 to A5 will only show that the plaintiffs were born to their mother Drowpathi through late Subbarayalu Naidu. As alredy stated, their paternity is not disputed by the defendants and the main dispute is as to the status of their mother Drowpathi. Therefore, these documents are of no use to the plaintiffs to prove the factum of a valid marriage of their mother." viii) 1994 (1) SCC 460 (S.P.S.Balasubramanyam v. Suruttayan), wherein it is held as follows:- "If a man and woman live together for long years as husband and wife then a presumption arises in law of legality of marriage existing between the two. But the presumption is rebuttable." ix) 1995 (1) LW 487 (Munuswami Gounder and another v. M.Govindaraju & 4 Ors), wherein it is held as follows:- "23. Then, once the factum of marriage is not proved, we have to treat this case as a case of no marriage and therefore, Section 16(1) of the Hindu Marriage Act is not attracted and the children b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... repute a child is born, there can be no occasion whatsoever for making available the statutory presumption envisaged under S.16 of the Hindu Marriage Act, 1955 securing the status of a legitimate child in favour of such a child born out of a union which was either void ab initio or declared to be so under a decree passed under S.11 of 12 of the Hindu Marriage Act, 1955." xiii) 2001 (3) CTC 513 (Kanagavalli v. Saroja), wherein it is held as follows:- "14.. I have already referred to how because of nonregistration of marrige, woman, who has given herself physically, emotionally and otherwise, gains nothing but stands to lose everything if the marriage is denied by the man. The other compelling factor is the trauma that a child may face going through his formative years with his paternity in doubt. This assault on a child's sensibilities can be easily avoided if there is a certificate of registration of marriage between his mother and father which though may not validate the marriage if otherwise void, will atlest bear testimony to the identity of his biological parents." xiv) 2001 (1) LW 472 (Subba Reddiar v. Vasantha Ammal & Anr), wherein it is held as follows:- "Ex.A-18 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... factum of marriage by examining the priest and other witnesses not necessary." ii) 1994 (1) SCC 460 (S.P.S. Balasubramanyam v. Suruttayan), wherein it is held as follows: "It appears unnecessary to express any opinion as to whether the relationship between Chinathambi and Pavayee was adulterous and if it was sufficient to destroy the presumption in law as this plea does not appear to have been raised in the written statement nor any issue was framed on it nor any of the Courts have recorded any finding on it." iii) 1988 (1) LW 358 (Indirani v. Vellathal) wherein it is held as follows: " When a married person putsforth a version as to the form or the manner or the procedure followed in going through the marriage ceremony, unless the claim so putforth is substantiated by relevant, appropriate and precise evidence, it is not for the Court from the avilable evidence to hold that the marriage had taken place by following a method which is permissble in law, even though no such plea is put forth, and rather a different stand had been taken in the pleadings." iv) 1997 (2) LW 459 (Shantinath Ramu Danole & Another v. Jambu Ramu Danole & Others), wherein it is stated as follows:- "It m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecific case of the plaintiffs that their mother Kamalambal married Durairaj on 05.06.1960 in the presence of relatives and friends. The marriage took place at 30, Ganapathinagar, Thanjavur. It is also the case of the plaintiffs that since Durairaj did not have any male heir through the first wife, he decided to marry Kamalambal as second wife and the plaintiffs' mother was residing in the family house of Durairaj, along with her mother, and the marriage was performed in the presence of relatives of both Durairaj and Kamalambal. Though the defendants in their defence denied the allegation of the plaintiffs that they born to Durairaj and Kamalambal, through the valid marriage, during the cross-examination of the plaintiffs and the witnesses produced by the plaintiffs, infact, the entire cross-examination by the defendants proceeded as if the plaintiffs are children born to Durairaj and Kamalambal. 19. On the side of the plaintiffs PW1 to PW11 were examined and Ex.A1 to Ex.A79 were marked. PW1/Selvakumar, is the first plaintiff, PW2/Gajendran is the 3rd plaintiff and PW4/Kalaiselvi is the 4th plaintiff and plaintiffs' mother was examined as PW5. When the entire evidence of PW ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Durairaj's uncle Pandithurai, 2nd marriage was fixed with Kamalambal. Accordingly, on 05.06.1960, marriage was performed in the pooja room and Durairaj tied thali and also exchanged garlands. In fact Pandithurai uncle of Durairaj blessed the couple by handing over the thali to Durairaj. The evidence of PW4 with regard to a cermony about the marriage exchanging garlands and tying of thali in the presence of witnesses, not even specifically denied in the cross-examination by defendants except denying that there was no marriage between Kamalambal and Durairaj. The specific facts spoken with regard to the solemnising of marriage not even denied in the cross-examination. 22. Similarly PW5/Kamalambal, the mother of the plaintiffs, in her evidence has stated that the marriage was performed on 05.06.1960 by exhanging garlands and Pandithurai uncle of Durairaj, handed over thali to Durairaj and Durairaj tyed thali. After marriage she was residing with Durairaj for 32 years and at later point of time, Durairaj suffered certain ailment and took treatment in Vijaya Hospital at Chennai and PW5 was taking care of him and both of them residing at Chennai. Thereafter, he died in the year 1985 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he plaintiffs' case that in order to have a male child, Durairaj infact has decided to marry Kamalambal. The cross-examination of DW1 also clearly show that when Kamalambal was at the age of 16 there was illegal connection between her husband and Kamalambal and she has also stated that Kamalambal was living in Ganapathinagar house from the year 1957 till date. Further, she has also admitted that she never objected Kamalambal living in Ganapathinagar house. She also admitted that only her husband has kept Kamalambal in Ganapathinagar house. The cross-examination clearly indicate that Kamalambal and Durairaj was living together from the year 1957. It is to be noted that though the first wife namely, the first defendant claimed to be aware of the illegal connection of her husband with PW5, namely Kamalambal, while she was at the age of 16 years, DW1 has never made any objection with regard to such alleged illegal contact. Her conduct assumes significance. If really any husband develops illegal connection to a lady totally conncted with him, a prudent wife would not keep quiet without taking any action against her husband or against the so called concubine. But, DW1 has not taken a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e first plaintiff. The ration card/Ex.A29 also shows that Durairaj is the Head of the family along with Kamalambal and others. The address of the house is shown as Ganapathinagar, North Street. From the above documents, the plaintiffs clearly establish the fact that Durairaj not only treat the plaintiffs as children but also resides with them along with PW5/ Kamalambal at Ganapathinagar. 28. Ex.A30 is the gift deed executed by the first defendant in the name of PW5, Kamalambal. Though DW1 in her statement pleaded that her husband has obtained signatures in blank papers, and such blank papers were used for creating these documents, it is to be noted that PW8 one of the attestor of the gift deed also examined in this case. In the chief examination he has clearly spoken about the exeuction of the document by the first defendant and he has seen the signature of the first defendant along with other attesting witnesses, whereas in the cross-examination, he has turned hostile. But the fact remains that DW1 has herself admitted her signature in Ex.A30. What she tried to project her case is that she was not aware of the contents of the documents and he has signed the documents at the insta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... children born through Durairaj, now she is estopped from stating that there was no marriage between Kamalambal and Durairaj and plaintiffs are not born to Durairaj and Kamalambal. 30. Further, in Ex.A32/sale deed, dated 28.09.1985 executed by one Muthugopan, infavour of the minor son of Durairaj, wherein Kamalambal has made as guardian. The above sale deed shows Kamalambal as wife of Durairaj. It is relevant to note that even third parties have treated Kamalambal as wife of Durairaj. From Ex.A40, it is also relevant to note that how Durairaj has developed hatredness towards the defendants. Ex.A39 letter written by the second defendant to her father Durairaj, while he was in Chennai, seeking a http://www.judis.nic.in permission to meet her father in Chennai. But Durairaj has declined permission to the second defendant to meet her. The tenor of letters Ex.A40 clearly shows that infact Durairaj father of the second defendant and husband of the first defendant is not happy with them. Ex.A41, is authorisation letter signed by Durairaj, wherein he himself appointed Gajendran, the third plaintiff, son of Durairaj as a licensee to act and represent as manager of the cinema hall owned by h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re sent to the first defendant in the name of Durairaj that itself cannot be a ground to hold that there was no marriage between Kamalambal and Durairaj in the year 1960. From the oral and documentary evidence, particularly non-denial of the specific evidence as to solemnisation of marriage in the year 1960 coupled with the admission of Durairaj himself treating the children as his own children and also treating Kamalambal as the mother of plaintiffs and Ex.P44 and Ex.P45 as discussed above, this Court is of the view that merely because Durairaj has not described Kamalambal as wife in the registered document that itself cannot be a ground to non suit the plaintiffs. It is to be noted that contracting second marriage while the first marriage in existence is an offence under Indian Penal Code. Therefore, no prudent man would make it an official 2nd marraige attracting legal consequences. That being a position it cannot be said that there was no marriage at all. Though the second marriage during the existence of first marriage is void, under Section 11 of the Hindu Marriage Act, it is to be noted that children born to such marriage cannot be defeated legitimacy to claim property of th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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