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2002 DIGILAW 655 (MAD)

V. Leela & Others v. D. Rajammal(died) & Others

2002-07-22

PRABHA SRIDEVAN

body2002
Judgment :- This appeal records the deep-rooted caste prejudices that prevail in our society. The appellants are the plaintiffs claiming to be the wife and children of CDV ('CDV' in short) and seeking partition of the properties belonging to him. The respondent is CDV's mother. The suit was dismissed. 2. CDV belong to an affluent well-known family of Devanga Chetty. The first appellant is a Harijan. According to her, she and CDV were married thirty years before the date of suit and the other appellants were born to them. The respondent, CDV's mother resisted the claim accusing the first appellant leading a life of immortality and ill-repute denying the marriage and also citing the insanity of CDV to prove that there could not have been any marriage. 3. The learned counsel for the appellants would submit that documents have been filed to show that C.D.Varadarajan and the first appellant lived together in the same house. Witnesses have been examined to prove that there was a marriage. School records have been marked to show that C.D.Varadarajan was the father of the appellants 2 to 2 and therefore, there was no justification to deny them their right. 4. The learned counsel for the respondents on the other hand submitted that there was undeniable proof that the first appellant was married to one Ezhumalai, marriage certificate has been marked. The School records will really not help the case of the appellants since the signature in the school records are of the mother's and as against the name of the father the entry is Varadaraju, but the respondent's son's name is Varadarajan. Documents had also been marked to show that CDV had been treated in Kilpauk Mental Hospital and he was suffering from schizophrenia and the communication of the Hospital were addressed only to the mother and therefore, this would support the case that Varadarajan died a bachelor and he was living with his mother. In the evidence of P.W.1, the first appellant would say that she has absolutely no knowledge regarding the family of CDV which would prove that she was never married to him. The whole suit, according to the learned counsel was engineered by Ezhumalai to snatch the property of CDV. 5. In the evidence of P.W.1, the first appellant would say that she has absolutely no knowledge regarding the family of CDV which would prove that she was never married to him. The whole suit, according to the learned counsel was engineered by Ezhumalai to snatch the property of CDV. 5. In her evidence, the first appellant has stated that CDV would come to play football in the ground close to where she lived and that is how their assocation started. She has admitted that he was not mentally stable but according to her she had taken him to Kilpauk. She has asserted that she does not know Ezhumalai and that she was not married to any such person. She has also stated that all her children were only born to CDV. 6. There is no documentary evidence to show that the first appellant and CDV were married. In Ex.A.2 dated 9.3.1984 the appellants' counsel merely states that CDV got married to the first appellant and the other appellants are their children. The date of the marriage is not given. The marriage is denied by the respondent in Ex-A3, reply. According to this reply, the deceased, C.D.Varadarajan died unmarried and he has been insane for the last 25 years. The date of reply is in the year 1984. So the probable date of insanity is from 1960. A marriage is denied and doubt is cast on the paternity of the children by the respondent and the Trial Court has accepted this. Now law leans in favour of existence and validity of marriage and legitimacy of children so the oral and documentary evidence must be scrutinised with care. Ex-A4 is an electoral roll of the year 1978 and it shows that Varadarajan, son of Kuchibabu Chettiar and Leela, wife of Varadaraj were residing in Adi Dravidar Street. The fact that the father of C.D.Varadarajan was also known as Kuchibabu Chettiar was not denied. Ex-A5 is of the year 1965 and this electoral roll also shows that the above two persons were residing in the said address. Ex-A6 is the application form of the fourth appellant for joining the School. It shows that the date of birth is 15-05-1970 and the father's name is shown as C. Varadaraju and the mother's name as Leela and the caste is described as "Adi Dravidar". This is signed only by Leela, the first appellant. Ex-A6 is the application form of the fourth appellant for joining the School. It shows that the date of birth is 15-05-1970 and the father's name is shown as C. Varadaraju and the mother's name as Leela and the caste is described as "Adi Dravidar". This is signed only by Leela, the first appellant. Ex-A7 is the mark sheet of the same appellant, which again shows the name of the fourth appellant as Kamaraj and his father's name as Varadaraju. Ex-A8 is the second appellant's scholarship form and it shows the second appellant as CDV and the community as 'Scheduled Caste'. The parent who had signed it is the first appellant. Ex-A9 is the School application form of the third appellant and in this the name of the parent is shown as Varadaraji(Raepdt[ ,y;iy). Under these exhibits it is seen that the class for which the admission is sought is the Sixth Class. When one sees the mark sheet it shows that this appellant was promoted from V standard on 05-05-1979. Therefore, on 1979 atleast CDV's mental illness is established. Ex-A11 is the re-joining form for the third appellant and it shows the name of Varadaraju and Leela as the parents. This is acknowledged by the mother Leela. Ex-A12 is the application form for admission of the second appellant, Thilagavathy. The admission that was sought for in this form, Ex-A12 is for VI Class and as against the signature of the parent, the thumb impression of Varadaraju has been affixed. This must be around 1975, since Ex.A.15 shows that this appellant passed out of 5th standard in 1975. Ex-A15, A16, A17 all show Varadaraju's name as the father's name. Therefore, these are the school records in which Varadaraju's name is shown as the father and except for one document where Varadaraju's mark is found, the others are all signed by Leela, the first appellant. P.W.1, the first appellant would say that she and Varadaraju were married thirty years ago. Her evidence is in 12.12.1985. In the cross examination, she says, 7. P.W.2 the daughter has given evidence that it was CDV who performed her marriage. She was 23 years old at that time and it must be remembered that in 1978 when her brother left the fifth class Varadaraju was already insane. She refers to this also and says that, So he was already mentally deranged in 1972. P.W.2 the daughter has given evidence that it was CDV who performed her marriage. She was 23 years old at that time and it must be remembered that in 1978 when her brother left the fifth class Varadaraju was already insane. She refers to this also and says that, So he was already mentally deranged in 1972. The question is whether it would be possible that he would have performed the marriage of second appellant. Since in 1972 she would have been around 10 years old, because in her cross- examination, she had stated that, 8. To what extent we can accept her evidence that he performed her marriage is doubtful. She also states that, 9. P.W.3 is the person who speaks of the marriage. He says that marriage was performed in Mariamman Koil about thirty years ago. 10. P.W.4, who lives in the same street as the appellants says that he knows Varadarajan and that Varadarajan and Leela loved each other and that they got married in Mariamman Koil. He speaks of a written document to show the marriage. It is his case that at a later stage since nobody should say that there was no witness for the marriage this was done. But no such evidence has been produced. This witness also says that he only knows the birth of P2 to P5. 11. P.W.4 is Kuthan and P.W.3 is Periannan. P.W.4 says that at the time of marriage Munian, Thabasi Gounder and Arumugam were present. Whereas according P.W.3, Munian, Arumugam and Dos were present. According to P.W.3, five persons were present including the above three and three persons died. 12. According to P.W.5, the four persons mentioned above were present but they are dead. But P.W.3 does not say P.W.4 was present and P.W.4 does not refer to P.W.3's presence. 13. D.W.3, the Headmaster has stated that Kennedy's father is Ezhumalai as per the school records. P.W.2, the Headmistress says that as per the records the father of Kennedy and Kamarajan is Ezhumalai. 14. According to D.W.4 the brother Varadarajan became mentally disturbed. In 1961, he was admitted in Gunaseelam and then the mental disorder increased in 1972 and he was admitted by the Police in Kilpauk Hospital sometime in 1972. P.W.2, the Headmistress says that as per the records the father of Kennedy and Kamarajan is Ezhumalai. 14. According to D.W.4 the brother Varadarajan became mentally disturbed. In 1961, he was admitted in Gunaseelam and then the mental disorder increased in 1972 and he was admitted by the Police in Kilpauk Hospital sometime in 1972. The witness refers to the sale deed under which Varadarajan had sold the property from 1968 to 1975 and that in these sale deeds he has only given the house address as his residential address. According to him, Varadarajan was incapable of procreation. 15. D.W.5 is the Doctor, who had treated Varadarajan and in his evidence he says that he treated him from 1975 till his death. According to him he had chronic schizophrenia and also that the brother would bring him for treatment. He has also stated that before he saw him he was admitted by the Police in the Mental Hospital. 16. D.W.6 says that he has been the Pujari for forty years in Mariamman Temple and marriages do not take place there. He also says that Varadarajan did not get married because he was mad. But however, he would also say that Varadarajan was always mad in fact, right from his birth. This is obviously not correct because we have the school records of Varadarajan. 17. In his evidence, D.W.7 has stated as follows: In the cross-examination he says, 18. Many documents were filed to show CDV's mental condition. (a) Ex-B58 is the letter addressed by the Superintendent, Kilpauk Mental Hospital to the respondent. From this it is seen that Varadarajan was admitted on 15-04-1975 and by the exhibit dated 19-06-1975, the respondents were informed that there is improvement in his condition and that they should take him back. (b) Ex-B52 shows that CDV was born on 07-05-1933. He passed out of school on 25-03-1955. So he appears to have been 22 years when he passed out of school. The doubt occurs whether this is evidence of already existing mental slowness. His School records show that he was outstanding in football and good at cricket and has represented school. (c) Ex-B53 is again a letter issued by the Government Mental Hospital and it shows that Varadarajan was admitted on 08-06-1972 and discharged on 08-08-1972. His age is shown as 35 years. His School records show that he was outstanding in football and good at cricket and has represented school. (c) Ex-B53 is again a letter issued by the Government Mental Hospital and it shows that Varadarajan was admitted on 08-06-1972 and discharged on 08-08-1972. His age is shown as 35 years. (d) Ex-B50 is the birth extract of a male child on 19-11-1979 born to Ezhumalai and Leela. (e) Ex-B49 is the marriage extract which shows that Ezhumalai was married to Leela and the marriage was on 16-01-1971. P.W.1 was asked the names of her parents and Ezhumalai parents and her answers are in agreement with the names given in Ex-B49. (f) The Electoral Rolls were marked by both sides to show that Varadarajan was living only with them. The census record is marked as Exs-B11 and B12 for the year 1979-80 and it shows Varadaraju as the head of the family and the names of Varadarajan, Leela, Thilagavathi, Chockalingam, Kamaraj, Sitharanjandas, Kamarajini, Kennedy and Moses. (g) If the documents showing the admission of Varadarajan in Mental Hospital in the year 1972 is accepted as true then atleast Sitharanjandas and the other three persons, should have been born to him after he became insane. Exs-B9 and B10 show Ezhumalai's name as the father or guardian of Kennedy and Kamarajini. (h) Ex-B7 has been signed by Sitharanjandas, who gives his initial as 'E'. (i) Ex-A14 is the record sheet of Thilagavathi whose date of birth is shown as 03-06-1962, father's name is shown as CDV and for religion and caste, the original entry is 'Devanga Chetty' and it is scored off and the word 'Adi Dravidar' is written. (j) Ex-A17 gives the date of birth of Chockalingam as 06-06-1969. (k) Ex-A16 gives the date of birth of Kamaraj as 16-05-1970. (l) Ex-A13 is the application for renewal of scholarship of V. Thilagavathi. The name of the parent is shown as CDV. The signature of the parent shows CDV. (m) Ex-A13 has been issued when Thilagavathi is studying in VIII standard and the signature of CDV is found whereas in Ex-A12 which has been issued to Thilagavathi while seeking admission for the VI class the thumb impression of Varadarajan alone is seen where the signature should be affixed. (n) In Ex-A11, the thumb impression of the mother is found. (o) In Ex-A9 also the thumb impression of the mother is found. (n) In Ex-A11, the thumb impression of the mother is found. (o) In Ex-A9 also the thumb impression of the mother is found. (p) In Ex-A8 the signature of the mother as Leela is found. (q) In Ex-A6, the thumb impression of Leela is found. 19. The evidence regarding the parentage of appellants 2 to 5 is not free from ambiguity for establishing that the father is CDV. If at all it is only with regard to the second appellant, Thilagavathi, P.W.2, one has the exhibits referred to above, which would show that there is a signature of C.D.Varadarajan, where the father should have signed and the curious feature of the caste name being altered. But whether that is sufficient to grant a decree in favour of the appellant is doubtful. There is virtually no evidence regarding the year and month of marriage. Even if the realities of situation is kept in mind that the appellant belongs to a community which has suffered oppression and has definitely not had the benefit of education, the elder people, who have given evidence regarding the marriage at Mariamman Koil are definitely capable of atleast giving the Tamil month or date. There is absolutely no evidence regarding the date of marriage. Long cohabitation is also not established. The first appellant is unable to say how many years after the marriage, Thilagavathi was born. Whereas P.W.4's evidence would indicate that Varadarajan wanted to marry the appellant because of some urgency. It may be that the first appellant was already pregnant. But in 1985, P.W.1 states that she was married 30 years ago, which is in the year 1955. This is supported by P.W.3's evidence also. The school records show that Varadarajan came out of the school in 1955. Of course as per the date of birth entered in the school, he must have been 22 years when he came out of the school. In any event, this would mean that they got married soon after he came out of school and if the date of birth in the marriage register is taken into account, it was found that the first appellant got married to Varadarajan when she was 9 years old. The evidence therefore is so inadequate that if one accepts one exhibit it throws out another as unacceptable and the oral evidence is also not satisfactory. 20. The evidence therefore is so inadequate that if one accepts one exhibit it throws out another as unacceptable and the oral evidence is also not satisfactory. 20. It is extremely likely that when Varadarajan was studying in school, he came into contact with the first appellant. Because she also says that when she was picking coal near the railway track, he would come to play football, that there might have been attraction between the two is also quite likely. But in the absence of any evidence of marriage or even long cohabitation, it is difficult to accept that there was a marriage between Varadarajan and the first appellant. 21. Under the Hindu Succession Act, the proviso to section 3 clearly lays down that the word "related" means related by legitimate kinship and the proviso is that illegitimate shall be deemed to be related to their mother and to one another and their legitimate descendants shall be deemed to be related to them and to one another. 22. N.R. Ragavachariar's Hindu Law, 9th Edition, page 1142 deals with illegitimate children and it states that legitimacy is an express pre-condition of succession, which alone can constitute the foundation of the right under the Act to succeed. The proviso to section 3(1) of the Hindu Succession Act makes the position clear. Illegitimate children cannot be included within the meaning of the words son, daughter, etc. They cannot invoke the general rules in section 8 of the Hindu Succession Act to succeed to the estate of his or her putative father. S.16 of the Hindu Marriage Act confers the status of legitimacy though limited on children born of void and voidable marriages so that their parentage is recognized. The provision is for the benefit of the children and will have to be applied in full so as to confer status for inheriting the property. S.16 of the Hindu Marriage Act also will not apply to a case where the factum of marriage has not been proved. 23. In this case it is not as if there is any evidence of a void or a voidable marriage. There is absolutely very little evidence of marriage nor of long cohabitation. The respondents have produced documents to show that atleast from 1972, Varadarajan had been taking treatment. 23. In this case it is not as if there is any evidence of a void or a voidable marriage. There is absolutely very little evidence of marriage nor of long cohabitation. The respondents have produced documents to show that atleast from 1972, Varadarajan had been taking treatment. It is their case that even prior to that he was unwell and he had been taken to the temple at Gunaseelam for treatment and right from 1972 till her death there is documentary evidence to show that only the respondent and not the appellant who was in charge of the mentally unsound Varadarajan. It may be that in her impoverished circumstance the burden of a insane person could not be borne. But the fact remains that there is nothing to show that Varadarajan lived with her atleast after 1972. This also fortifies the evidence relating to marriage with Ezhulamai in 1971. There is no evidence to show that atleast from 1962 to 1972 they were living together. The year 1962 is fixed because it is the date of birth of Thilagavathi. Ex-B66 is the earliest sale deed executed by CDV and this is of the year 1966 and Varadarajan gives the address of his mother, as his address, that is his father's families residence as his address and not the Periyar Road address where the first appellant lived. P.W.2's evidence goes against their interest. According to her, it was only her mother who took care of them and the father was neither taking care of them but was also staying away from them and had dissipated the property. In fact, the appellant herself does not make any claim, on behalf of the children, who have been born after Sitharanjandas. 24. The Trial Court holds that merely because CDV's name is found in one of the school records, that will not prove either marriage or long cohabitation. The Trial Court gives a finding that in the absence of any explanation regarding the marriage certificate, Ex-B24 it has to be presumed that there was a marriage in 1971 between Ezhumalai and Leela, the first appellant. The original marriage register was summoned by the Trial Court and after comparison it was returned. In this register, the year of birth of the first appellant is shown as 1946. The original marriage register was summoned by the Trial Court and after comparison it was returned. In this register, the year of birth of the first appellant is shown as 1946. This is why the Trial Court observes that it is unlikely she would have been married in 1955 because then she would have been 9 years old. Had there been stronger evidence on the side of the appellant and yet, the Trial Court had rejected her case there might be some grievance. 25. In Kamakshi Vs. Minor Ramalingam alias Munusami (1993 II MLJ 17) it was held that the birth extract of the plaintiff cannot be relied on to prove the parentage of the plaintiff or in other words to prove the factum of marriage and also if the factum of marriage is not proved there is no scope for application of S.16 of the Hindu Marriage Act and in Gokal Chand Vs. Parvin Kumari ( AIR 1952 SC 231 = 1952 LW 646) it was held that, "continuous cohabitation of a man and a woman as husband and wife and their treatment as such for a number of years may raise the presumption of marriage. But the presumption which may be drawn from long cohabitation is rebuttable and if there are circumstances which weaken or destroy that presumption, the Court cannot ignore them." and in that case, the Supreme Court held the cumulative effect of the evidence warranted the conclusion that the marriage was not proved. 26. In Tmt. Girija alias Shanmuga Easwari etc., Vs. Smt. Saraswathi Ammal etc. & 3 others (1999 I LW 261) it was held that recitals in birth extract and school certificate will not be sufficient to establish marriage when it is disputed. 27. In this case also the date from which the alleged cohabitation is not certain and atleast from 1971, if not the date when CDV was alleged to have been taken to Gunaseelam, there has been no cohabitation. The date of commencement of cohabitation is not clear and the date, till which it continued is also not clear, in view of the residential address given by CDV in the various sale deeds commencing from 1968 and there is the document to show marriage between the first appellant and Ezhumalai in 1971 and evidence of CDV being taken for treatment atleast from 1972. Therefore, even assuming that cohabitation has been pleaded and proved, the evidence is enough to destroy the presumption of marriage. 28. The Trial Court had looked at all the probabilities and had to hold that there was no acceptable evidence to show the date of marriage. The approach cannot be said to be perverse or irregular. There might have been some kind of an emotional attachment between Varadarajan and the first appellant and they might have even had children but these are matters of conjecture. 29. The social prejudices being as they are, it is quite likely that the family of Varadarajan had strongly opposed it. In D.W.4's evidence to show the sudden onset of mental illness there is admission that Varadarajan was taken to Gunaseelam and kept there for six months. Even normal people if incarcerated in a place like Gunaseelam may easily lose their mental equilibrium. Why a healthy young man who was excellent in football and cricket suddenly turned into schizophrenic we do not know. What were the compulsions from the side of his family? There is even a suggestion that the brother tried to do away with Varadarajan. The picture that comes up is a horrible one which cannot be dismissed as impossible, given the deep-rooted social attitudes. What stares in the face from all the materials on record is resigned acceptance of P.W.1 and her daughter P.W.2, of their possession they would always stand outside the house of CDV. They would not be admitted inside and they were not allowed to take part in any of the family functions etc. The evidence of the defence witness also seems to indicate that it is impossible that a person belonging to the community of Devanga Chetty would have associated himself with a Harijan. The social situation is not under discussion now; what is crucial is, whether there is any evidence regarding the marriage or not. 30. If the evidence had been stronger it might have been possible for this Court to grant a decree in favour of this woman who had the misfortune to get attached to an affluent man of a higher caste and to her daughter, both of whom were not even permitted to cross the doors of the other family. 31. Without any evidence one cannot interfere with the reasoning of the Trial Court and the appeal is also dismissed. No costs.