Judgment : Defendant in O.S. No.757 of 1981, on the file of District Munsif s Court at Srivaikuntam, is the appellant herein. 2. The above suit was filed by one Kovil Pillai Nadar, brother of the appellant, seeking partition of the plaint schedule properties and to allot one half share in those items. It is averred in the plaint that the schedule items originally belonged to one Isakku Nadar, father of plaintiff and defendant (appellant). The acquirer died about 50 years prior to the institution of the suit. It is further stated that Isakku Nadar as well as his children are Christians, and the acquirer died intestate, leaving behind his wife Nesamani Animal. Apart from plaintiff and defendant (appellant), the acquirer had also one more son by name Samidas Nadar and daughter by name Pushpakani Ammal. Samidas Nadar died unmarried and issueless. On the death of Isakku Nadar, the properties devolved as per the provisions of Indian Succession Act, the widow taking one-third share, and me remaining two-third share was inherited by plaintiff, defendant /appellant and their sister Pushpakani Ammal. Pushpakani Ammal released all her rights in favour of the two brothers, as per deed dated 12. 1949. The widow Nesamani Ammal filed a suit as O.S. No.143 of 1955, on the file of District Munsifs Court, Srivaikuntam, claiming partition of the one-third share, which was decreed, and a final decree was passed in that suit, and Nesamani Ammal obtained physical possession of her share. Later, she sold her one-third share in favour of one Lingasami Nadar, from whom, appellant (defendant)‘s wife purchased the properties. The plaint properties are only those properties which were left after the share allotted to Nesamani Ammal, for which plaintiff and the defendant are entitled. It is said that the first plaintiff left for Ceylon long time before and he came to India sometime in September, 1978. He had some funds with him out of which he paid Rs.1,000 to the defendant on the understanding that the same should be returned with interest on demand. Some mis-understanding arose between the brothers and when the plaintiff demanded for return of the amount, defendant denied receipt of any amount. He had some funds with him out of which he paid Rs.1,000 to the defendant on the understanding that the same should be returned with interest on demand. Some mis-understanding arose between the brothers and when the plaintiff demanded for return of the amount, defendant denied receipt of any amount. It is in those circumstances, the above suit was filed for partition, and for allotment of one half share to the plaintiffs, in respect of the plaint items, and also for return of Rs.1,000 alleged to have been entrusted to the appellant. 3. In the written statement filed by the appellant (defendant), he denied that the first plaintiff is his brother. According to him, Kovil Pillai Nadar died in Ceylon, and the person who has come forward with the plaint is an impostor. 4. Pending suit before the trial court, Kovil Pillai Nadar died and plaintiffs 2 and 3 were additionally impleaded as his legal representatives. Second plaintiff alleged that she is the widow of Kovil Pillai Nadar and the third plaintiff is their minor son born in that marriage. In view of the death of Kovil Pillai Nadar, his right over the property was inherited by them.. Therefore, she prayed that a preliminary decree may be passed in their favour. On impleading plaintiffs 2 and 3, plaint was amended. 5. After the filing of the Second Appeal, second respondent (son) died and first respondent (mother) has been recorded as his sole representative. 6. After amendment of the plaint, an additional written statement was filed contending that as between the decreased first plaintiff and second plaintiff, there was no marriage and none has recognised the second plaintiff as the widow of deceased Kovil Pillai Nadar. It was contended that Kovil Pillai Nadar died intestate, and plaintiffs 2 and 3 not being his legal heirs, are not entitled to any share. 7. A reply statement was filed by plaintiffs 2 and 3 wherein they said that the second plaintiff is none other than the appellant’s sister’s daughter, i.e., defendant’s niece, and that the marriage was also evidenced by a registered document dated 28. 1980 marked as Ex. A-10 in the suit. It is said that the third plaintiff was born in that wedlock. 1980 marked as Ex. A-10 in the suit. It is said that the third plaintiff was born in that wedlock. It is further said that all relations are aware of the marriage between plaintiffs 1 and 2, and, therefore, the defendant (appellant) is not entitled to contend that she (2nd plaintiff) is not the legally wedded wife. .8. On the above pleadings, trial court took oral and documentary evidence. Exs.A-1 to A-10 were marked on the side of the plaintiffs, and Exs.B-1 to B-44 were marked on the side of the defendant (appellant). Exs.B-1 to B-43 are tax demands all receipts for payment of the same, and Ex.B-44 is the ration card. Second plaintiff was examined as P.W.I, and an independent witness was also examined as P.W.2. Defendant got himself examined as D.W.1. 9. The trial court, after evaluating the entire evidence, came to the conclusion that the plaintiffs are the legal heirs of deceased Kovil Pillai Nadar, and, accordingly preliminary decree for partition was passed. Regarding the claim for refund of Rs.1,000 alleged to have been entrusted to the appellant, the finding was against the plaintiffs. It was further found that the claim of ouster pleaded by the defendant is also not substantiated. The trial court further found that the plaintiff who instituted the suit is the brother of the defendant, and the defendant’s contention that he is an impostor is not correct. 10. Against the preliminary decree, an appeal was filed by the appellant in-A.S. No.76 of 1985, on the file of Subordinate Judge, Tuticorin. The lower appellate court also affirmed all the findings of the trial court, and dismissed the appeal. Aggrieved by that, the. defendant has preferred this second appeal. .11. At the time of admission of the second appeal, the following substantial question of law was raised for consideration: .“Whether Ex.A-10 wedlock agreement would establish the factum and legality of marriage between plaintiffs 1 and 2?” 12. Even though the findings of the courts below are concurrent, I feel that the decisions of the courts below are against settled legal position. From a reading of the decisions, I feel that preliminary decree has been passed only out of sympathy though it is against law. 13. In the plaint, it is admitted that Isakku Nadar, Kovil Pillai Nadar, respondent herein and also the appellant are all Christians. From a reading of the decisions, I feel that preliminary decree has been passed only out of sympathy though it is against law. 13. In the plaint, it is admitted that Isakku Nadar, Kovil Pillai Nadar, respondent herein and also the appellant are all Christians. It is further averred that on the death of Isakku Nadar, parties inherited his estate under Indian Succession Act, the widow claiming one-third share, and the remaining two-third share was inherited by the children. On the death of Kovil Pillai Nadar, second plaintiff got herself impleaded along with the deceased second respondent, claiming themselves as widow and child of Kovil Pillai Nadar. In the additional written statement, the status of the first respondent was denied, and it was contended that as between Kovil Pillai Nadar and first respondent herein, there was no marriage and, therefore, they cannot be treated as legal heirs. The question that has-to be considered is, whether there was a valid marriage between Kovil Pillai Nadar, deceased plaintiff, and first respondent herein. When the additional written statement was filed, the same was replied by second plaintiff/ first respondent stating that she is none other than the daughter of Pushpakani, i.e., niece of deceased plaintiff Kovil Pillai Nadar and the appellant. She further said that evidencing the marriage, a registered deed was also executed between Kovil Pillai Nadar and the first respondent herein, on 28. 1980, which has been marked as Ex.A-10 in the suit. According to her, Ex.A-10 evidences the marriage. It is better to extract the document which read thus: The document has been attested by three witnesses, one of whom is the brother of the respondent. The third attestor is also related to the respondent. On a reading of the registere document Ex.A-10, it is clear that there was no marriage between ‘K’ and the respondent. It only says that for about six months prior to that document both of them were loving each other and were co-habitating as man and wife and that relationship has to be recorded by executing the document. It further says that hereafter they will cohabitate as man and wife as per Hindu customs, and children born to them in that relationship also will be their legal heirs. It further says that hereafter they will cohabitate as man and wife as per Hindu customs, and children born to them in that relationship also will be their legal heirs. If for any reason they have to live apart due to any misunderstanding, Kovil Pillai Nadar agreed to pay a sum of Rs.10,000 towards maintenance of the respondent. Raja Jyothi. This document has been registered in Book IV of Registrar’s Office at Madurai. Stamp papers were also purchased in the name of the first respondent. In Ex.A-10, there is no reference to the caste or community to which they belong. But, as I said earlier, there is an admission in the plaint that all of them belong to Christian religion. 14. What is the effect of Ex.A-10, is the most important point to be considered in this case. 15. As I have said already, all the parties agree that they are Christians and they are governed by the Indian Christian Marriage Act, 1872. Sec.4 of Part I of the said Act says thus: "Every marriage between persons, one or both of whom is or are a Christian or Christians, shall be solemnised in accordance with the provisions of the next following section; and any such marriage solemnised otherwise than in accordance with such provisions shall be void" [Italics supplied] Sec.5 of the said Act deals with solemnisation of marriage. It reads thus: "Persons by whom marriages may be solemnised: Marriages may be solemnized in India. .(1) by any person who has received episcopal ordination. Provided that the marriage be solemnised according to the rules, rites, ceremonies and customs of the Church of which he is a Minister, .(2) by any Clergyman of the Church of Scotland, provided that such marriage be solemnized according to the rules, rites,, ceremonies and customs of the Church of Scotland; .(3) by any Minister of Religion licensed under this Act to solemnize marriage; .(4) by, or in the presence of, a Marriage Registrar, appointed under this Act; .(5) by any person licensed under this Act to grant certificates of marriage between Indian Christians." (Since the other provisions of the Act are not relevant, the same are not considered). I have already said that Ex. A-10 makes it clear that no marriage was conducted in terms of Secs.4 and 5 of the Act. 16. I have already said that Ex. A-10 makes it clear that no marriage was conducted in terms of Secs.4 and 5 of the Act. 16. In a recent decision of the Supreme Court reported in Molly Joseph v. George Sebastian, (1996)6 S.C.C. 337 , the question that came for consideration was, whether on Ecclesiaslical Tribunal has the power to grant divorce or annual a marriage. In paragraph 4 of the Reports, their Lordships said as to what is the effect of legislation in respect of personal law. It has been held thus: "...It is well settled that when legislature enacts a law even in respect of the personal law of a group of persons following a particular religion, then such statutory provisions shall prevail and override any personal law, usage or custom prevailing before coming into force of such Act....," From a reading of Sec.4 of the Act it is clear that even if there was any custom anterior, that will not have any" validity and the statute says that the solemnisation will be only in accordance with the provisions of that Act and not in any other manner. It is further seen that both Secs.4 and 5 contemplate the solemnisation of marriage and not a written contract. 17. Further, Ex.A-10 makes it clear that before the execution of that deed, the deceased as well as the sole respondent were living together only for about six months and they were living each other. It is not a long cohabitation, and the reason for executing such a deed is also clear, i.e., since both of them were loving each other, the same should be recorded by a registered document. The consequence of such a deed is that both of them agreed to live as man and wife, and if any child was born, it was declared that it will be their legal heir. It is only an agreement of cohabitation and not an evidence of marriage. The document further makes it clear that no marriage was solemnised. Of course when P.W.1 was examined, she has said that before marriage, both of them converted themselves to Hindu Religion, and that is why in Ex. A-10 it is said that they will continue to live as per Hindu Customs. The document further makes it clear that no marriage was solemnised. Of course when P.W.1 was examined, she has said that before marriage, both of them converted themselves to Hindu Religion, and that is why in Ex. A-10 it is said that they will continue to live as per Hindu Customs. As I have said already, such a case was never pleaded, and the admission in the plaint that the parties are Christians will show that P.W.I has deposed as aforementioned is only to suit the statement made in Ex. A 10. Even if they had converted themselves to Hindu Religion, then also Ex.A-10 will only show that there was no solemnisation of marriage under the Hindu Marriages Act. Either way the only conclusion that could be arrived at from Ex.A-10 is that there was only evidence of cohabitation and not evidence of solemnisation of a marriage. What is the legal consequence of such a document? .18. In one of the earlier Full Bench decisions of our High Court reported in Kolandaivelu, .In re., I.L.R. 80 Mad. 1030, it was held that ‘A Hindu by religion performing a marriage according to the Hindu made between two persons one of whom is a Christian, commits an offence under Sec.68 of the Christian Marriage Act. ‘Their Lordships also interpreted as to what is the meaning of the word ‘solemnisation. According to that decision, ‘solemnisation’ means ‘to perform the marriage according to rules, rites, ceremonies and customs of a Christian Church’ and, ‘to solemnise’ means ‘to celebrate’. It may further be noted that when the marriage is disputed, It is for the person who sets up marriage, to prove the same. .19. In E.Adinarayana v. Abelu, (1964)2 An. W.R. 136 at page 138, it was held thus: ."...Normally, when a person sets up a marriage between and another, it would necessarily connote that he is pleading the existence of a valid marriage. Therefore, every circumstance which would render it other than valid will have to be shown not to exist....." 20. In one of the very early decisions under the Christian Marriage Act reported in Consterdin v. Smine, A.I.R. 1918 Lower Burma 83, the learned Judge said that ‘the word "solemnised" in Sec.5, Christian Marriage Act means "celebrated" and refers to the ceremony only’. In one of the very early decisions under the Christian Marriage Act reported in Consterdin v. Smine, A.I.R. 1918 Lower Burma 83, the learned Judge said that ‘the word "solemnised" in Sec.5, Christian Marriage Act means "celebrated" and refers to the ceremony only’. The learned Judge further said that ‘Sec.5, Christian Marriage Act, deals only with the ceremony and the person who may perform it.‘ .21. In Kochan Nadar v. Rayappan Nadar, A.I.R. 1955 T.C 183, a Division Bench of that Court held thus: ."No doubt a presumption of marriage can be drown from cohabitation for a long time. The courts generally presume marriage where the matrimonial intent can be shown to exist, but this presumption is not an irrebuttable one. Where the fact marriage is admitted or proved, it may be safe to presume that the marriage is unquestioned. Where according to the admissions of the parties the man and woman were Roman Catholic Christians, that the alleged marriage did not take place in a Church and that no priest officiated at the ceremony, these admissions clearly show that a Christian marriage could not have taken place. A marriage according to Christian rites alone would be valid where both parties are Christians. " [Italics supplied] .22. In Swapna Mukheries v. Basanta Ranjan, A.I.R. 1955 Cal. 533, a Division Bench of that High Court held thus: ."In order that a person may be convicted of an offence of bigamy, under Sec.494, the second marriage must be a form of marriage recognised by law, otherwise it would be simply an adulterous union and it will not be hit by the provisions of Sec.494. Where A born Christian and having a Christian wife living, marries once again a Hindu woman, the marriage being celebrated according to Hindu rites, the subsequent marriage between A and the Hindu woman is a void marriage not because of the existence of the Christian wife of A but because of the fact that there cannot be availed form of marriage between an Indian Christian and a Hindu woman celebrated according to Hindu rites. And as one of the essential ingredi- ents of Sec.494, namely, that the second marriage must be void by reason of its taking place during the lifetime of the husband or the wife of the first marriage, is not satisfied, A, when prosecuted under Sec.494, deserves to be acquitted." .23. And as one of the essential ingredi- ents of Sec.494, namely, that the second marriage must be void by reason of its taking place during the lifetime of the husband or the wife of the first marriage, is not satisfied, A, when prosecuted under Sec.494, deserves to be acquitted." .23. The meaning of the word ‘solemnisation’ under the Hindu Marriage Act came for consideration in the decision reported in Bhaurao Shankar Lokhande v. The State of Maharashtra, A.I.R. 1965 S.C. 1564, wherein it was held thus: ."...The-word ‘solemnise’ means, in connection with a marriage ‘to celebrate the marriage with proper ceremonies and in due form. ‘It follows, therefore, that unless the marriage is ‘celebrated or performed with proper ceremonies and due form’, it cannot be said to be ‘solemnised’. It is, therefore, essential, for the purpose of Sec.17 of the Act that the marriage to which Sec.494, I.P.C. applies on account of the provisions of the Act, should have been celebrated with proper ceremonies and in due form. Merely going through certain ceremonies with the intention that the parties be taken to be married, will not make the ceremonies prescribed by law or accrued by any established custom...." .24. In Kanwal Ram v. H.P., Administration, A.I.R. 1966 S.C. 614, it was held that unless essential ceremonies of the marriage are performed, there is no marriage, and unless that is proved, a person undergoing some ceremony cannot be convicted for bigamy. .Similar is the decision reported in Priya Bala v. Suresh Chandra, A.I.R. 1971 S.C. 1153. 25. In a similar circumstance, a Division Bench of the Kerala High Court has held in Kali v. Kamalakshmi Ammal, 1987 K.L.T. 1063. In that case, their Lordships said that, ‘the document is at once an admission of co-habitation, and a negation of a marriage having taken place between the parties. A document will not solemnize a marriage between the parties. "To marry" is to go through a form of marriage known to law and not merely to make an averment in a document." 26. In the case on hand, the evidence of P.W.1 does not prove the factum of marriage under Christian Marriages Act to which religion the parties belong. 27. "To marry" is to go through a form of marriage known to law and not merely to make an averment in a document." 26. In the case on hand, the evidence of P.W.1 does not prove the factum of marriage under Christian Marriages Act to which religion the parties belong. 27. Our High Court also had occasion to consider what is the effect of a document executed between a man and a woman, and the decision therein is reported in Raghuvir Kumar v. Shanmugavadivu, A.I.R. 1971 Mad. 330. There, a Division Bench of our High Court considered the validity of marriage under Sec.7-A of the Hindu Marriage Act, inserted by Sec.2 of Madras Act 21 of 1967 (Suyamariyadhai Marriages), and held thus: "Sec.7-A(2)(b) validates all marriages to which Sec.7-A(l) applied and further provides that such marriages even if solemnised at any time before the commencement of the Act shall be deemed to have been good and valid in law with effect from the date of such soleminisation. Where an agreement executed between husband and wife does not purport to inaugurate the relationship between the spouses on that day but merely recognizes the existing relationship between them, it is doubtful whether Sec.7-A(l)(a) can be applied to such cases as amounting to a solemnisation of a marriage by declaration which inaugurates the connection between the spouses and not a validation of an existing relationship." [Italics supplied] P. W.1 has not stated either in chief-examination or in cross-examination whether there was any solemnization, or regarding the form in which the marriage took place. Prima facie there is no evidence to show that there was any marriage. The second plaintiff, therefore, cannot claim any share over the property as the widow of Kovil Pillai Nadar. 28. Learned counsel for the appellant relied on the decision reported in S.Sethurathnam Pillai v. Lucy Baskara Josephine, (1977)2 M.L.J. 141 to contend that even in the case of long cohabitation, there cannot be any question of presumption of marriage unless it is proved that they had been living together as man and wife. They should also be treated as man and wife by relations and friends. Being a status in society, recognition by relations and friends is also very material. 29. They should also be treated as man and wife by relations and friends. Being a status in society, recognition by relations and friends is also very material. 29. In this case, there cannot be any question of long cohabitation since it is admitted that Kovil Pillai Nadar was in Ceylon till September, 1978 and Ex.A-10 was executed in the year 1980. Even the document states that their relationship began only prior to the execution of the document. Before marriage, even if they had resided together, admittedly their relationship is uncle and niece. The circumstances as well as evidence adduced in this case conclusively prove that there was no marriage at all between the deceased Kovil Pillai Nadar and the first respondent. The question of law is, therefore, found is favour of the appellant. 30. But the answer to the question of law will not finally, determine the rights of parties in this case.Though the first respondent claims to be a legal heir as the widow of the deceased, even if that relationship is not proved or declared void, if she is a legal heir under the Indian Succession Act, the question is, whether she is entitled to claim a share over the property. Of course, such a claim was not put forward though the relationship was admitted by both parties. In the reply statement, the respondent has stated that she is none other than the daughter of Pushpakani Ammal, the only sister of the original plaintiff and the appellant (defendant). In the chief-examination of P.W.I also, she has spoken about the relationship, and the said relationship is not denied by the appellant. 31. According to me, taking into consideration the admitted relationship of the deceased with the first respondent, I feel this is a fit case where the provisions of O.7, Rule 7, G.P.C. could be applied. O.7, Rule 7, C.P.C. says that the court is competent to grant general or other relief which it may think just and necessary, though the same had not been sought for. .32. In Ramesh Kumar v. Kasho Ram, A.I.R. 1982 S. C. 700, their Lordships, while considering about moulding a relief in view of subsequent events, have held thus: ."....The-court, if it finds that having regard to the nature of the allegations, it is necessary to record oral evidence tested by oral cross-examination, may have recourse to that procedure. .32. In Ramesh Kumar v. Kasho Ram, A.I.R. 1982 S. C. 700, their Lordships, while considering about moulding a relief in view of subsequent events, have held thus: ."....The-court, if it finds that having regard to the nature of the allegations, it is necessary to record oral evidence tested by oral cross-examination, may have recourse to that procedure. It may record the evidence itself or remit the matter for an enquiry and evidence. All these depend upon the factual and situational differences characterising a particular case and the nature of the plea raised. There can be no hard and fast rule governing the matter. The procedure is not to be burdened with technicalities." [Italics supplied] .33. In S.B. Noronahv. Prem Kumari Khanna, (1980)1 S.C.C. 52 , in paragraph 6 (at page 54), their Lordships have said thus: ."Pleadings are not statutes and legalism is not verbalism. Commonsense should not be kept in cold storage when, pleadings are construed. It is too plain for words that the petition for eviction referred to the lease between the parties which undoubtedly was in writing. The application, read as a whole, did imply that and we are clear that law should not be stultified by courts by sanctifying little omissions as fatal flaws. The application for vacant possession suffered from no verbal lacuae and there was no need to amend at all. Parties win or lose on substantial questions, not technical tortures’ and courts cannot be abettors’. “ 34. In Mulla’s ‘Code of Civil Procedure’ Fifteenth Edition (1996), commenting on Order 7, Rule 7, the learned Author thus: ”Where a relief is claimed upon a specific ground, the Court grant it upon a ground different from that on which it is claimed in the plaint, if the ground is disclosed by the allegation in the plaint and the evidence in the case. ...“ 35.. In Sobana Bai v. S.Eppsi (Minor) and others, (1985)1 M.L.J. 226 parties claimed their rights under the Indian Succession Act. It was found that the parties were not entitled to claim their rights under the Indian Succession Act, but under the Travancore Christian Succession Act. This Court held that ‘When the court comes to the conclusion that the Act relief upon by the plaintiff is not applicable, its duty is to give relief in the matter of partition as per the provision of law found applicable.” 36. This Court held that ‘When the court comes to the conclusion that the Act relief upon by the plaintiff is not applicable, its duty is to give relief in the matter of partition as per the provision of law found applicable.” 36. The first respondent claimed relief as if she is the widow and legal heir of deceased Kovil Pillai Nadar. That was in two capacities. Even if she is now a widow, she is a legal heir. The claim is based only as a person claiming under the deceased plaintiff, who is the brother of the appellant. By giving a relief on that basis, I do not think, the appellant will be prejudiced in any way. But, even though such a relief could be granted, I do not think that this Court will be in a position to grant the same since on admitted evidence, some more parties will have to be added in the case. While narrating the facts, I said that in Ex.A-10, there are three attestors, of whom attestors 2 and 3 are relations of the first respondent, and the second attestor is none other than her own brother. Under Sec.47 of the Indian Succession Act, the brother also will be a legal heir along with the first respondent. If he is alive, naturally, those persons also will have to be impleaded in the suit, without which an effective adjudication cannot be had. But, since I am holding that the first respondent is also a legal heir, I do not want to dismiss the suit for the reason that she is not the widow of Koil Pillai Nadar. I feel that interests of justice will be met if the suit is remanded to the trial court, and the first respondent is given an opportunity to implead the other legal heirs of the deceased Kovil Pillai Nadar and accordingly amend the plaint. Even thought he suit is fairly old, the same being of the year 1981, I feel that if the first respondent is driven to file another litigation, that will not be in the interests of justice, to protest her rights. At the same time, I confirm the decisions of the trial court as well as the lower appellate court regarding the identity of the original plaintiff and also the finding that the suit is also barred by adverse possession and limitation. Those findings are confirmed. At the same time, I confirm the decisions of the trial court as well as the lower appellate court regarding the identity of the original plaintiff and also the finding that the suit is also barred by adverse possession and limitation. Those findings are confirmed. 37. In the result, I set aside the judgments of both the courts below and remand O.S. No.757 of 1981, on the file of District Munsif s Court, Srivaikuntam, to that court. The trial court, on receipt a copy of this judgment, shall restore the suit to its file and permit the first respondent herein to implead the other legal heirs of deceased Kovil Pillai Nadar under Sec.47 of the Indian Succession Act and also permit the first respondent herein to effect necessary amendment to the plaint, in consequence thereof. Thereafter, the trial court shall decide the suit in accordance with law. The second appeal is allowed and the judgments of both the courts below are set aside, and the suit is remanded for fresh disposal in the light of the directions given above. There will be no order as to costs in this second appeal. The parties will appear before the trial court on 37. 1997.