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2012 DIGILAW 4362 (MAD)

K. Ramachandran v. Kanna Gounde

2012-10-17

G.RAJASURIA

body2012
Judgment :- The second appeal is focussed by the plaintiff as against the judgement and decree dated 30.11.2004 passed by the Principal Subordinate Judge, Tindivanam, in A.S.No.89 of 2002 confirming the judgement and decree dated 30.10.2002 passed by the District Munsif, Gingee, in O.S.No.475 of 1989, which was filed for partition. 2. The parties, for convenience sake, are referred to here under according to their litigative status and ranking before the trial Court. 3. A summation and summarisation of the germane facts absolutely necessary for the disposal of this second appeal would run thus: (i) The appellant herein, as plaintiff, filed the suit as against the defendants seeking the following reliefs: "a) to declare that the plaintiff is entitled to half share in the suit properties and divide the same into two equal shares and allot one such share to the plaintiff and pass a pre.decree for the same. b) to direct the defendants to pay at the rate of Rs.500/-as mesne profits for the past 3 years prior to the date of suit. c) to make a direction in the pre.decee to enquire in to the mesne profits due to the plaintiff from the date of suit till delivery and pass a decree for the sake and further mesne profits due to the plaintiff. d) a direction in the decree to appoint a commissioner at FD stage to divide the suit properties in the metes and bounds into two equal shares and allot one such share to the plaintiff. e) direct the defendant to pay the costs of the suit to the plaintiff. (extracted as such) (ii) The gist and kernel, the pith and marrow of the averments in the plaint would run thus: (a) The first defendant-Kanna Kounder @ Thiruvengada Kounder and the plaintiff's mother Pachaiammal-P.W.3 got married and during their wed lock, the plaintiff was born; while so, the said Kanna Kounder/D1 was arrested by the Law Enforcement Agency, in connection with a prohibition case and he was detained in the jail. (b) In the meanwhile, the plaintiff's mother P.W.3-Pachaiammal migrated from Odiathur village to Chennai and started living with one Perumal Gounder and she gave birth to children. However, the plaintiff was brought up and educated by Pachaiammal's brother-Pachiappa Gounder (P.W.2). (b) In the meanwhile, the plaintiff's mother P.W.3-Pachaiammal migrated from Odiathur village to Chennai and started living with one Perumal Gounder and she gave birth to children. However, the plaintiff was brought up and educated by Pachaiammal's brother-Pachiappa Gounder (P.W.2). (c) Whereas, D1-Kanna Kounder, after his release from jail inclined to live with P.W.3-Pachaimmal, but the latter refused; whereupon he started living with one Unnamalai and gave birth to D2, D3 and D4. (d) There was joint family status between the plaintiff and D1 and hence, the plaintiff is entitled to half share in the suit properties. (iii) Per contra, D1 filed the written statement. Subsequently D2 to D4 were impleaded and they adopted the written statement filed by D1 and they also filed separate written statements, inconcinnity with the written statement filed by D1. The warp and woof of the averments in the written statement would run thus: (a) P.W.3-Pachaiammal was stranger to D1-Kanna Kounder. There was no marriage took place, as alleged by the plaintiff; the plaintiff is not the son of D1, born through P.W.3-Pachaiammal. (b) D1-Kanna Kounder married only once and that too, Unnamalai Ammal and during the wed lock D2, D3 and D4 were born to them. (c) The ancestral properties were already sold in Court auction. D1, out of his own efforts, acquired the suit properties, over which, the plaintiff assuming himself as the son of D1, cannot make any claim. Accordingly, the defendants prayed for the dismissal of the suit. (iv) Whereupon issues were framed. (v) Up went to the trial, during which, the plaintiff examined himself as P.W.1 along with P.W.2-Pachaiappa Gounder (plaintiff's maternal uncle) and P.W.3-Pachaiammal and Exs.A1 to A7 were marked on his side. The first defendant-Kanna Gounder examined himself as D.W.1 along with D.W.2, D.W.3, D.W.4(D2), D.W.5(D3) and D.W.6(D4) and Exs.B1 to B21 were marked on the defendants' side. (vi) Ultimately, the trial Court dismissed the suit, as against which, the appeal was filed for nothing but to be dismissed by the first appellate Court, confirming the judgement and decree of the trial Court. 4. Challenging and impugning the judgements and decrees of both the Courts below, this second appeal has been focussed by the plaintiff on various grounds and also suggesting substantial questions of law. 5. 4. Challenging and impugning the judgements and decrees of both the Courts below, this second appeal has been focussed by the plaintiff on various grounds and also suggesting substantial questions of law. 5. My learned predecessor formulated the following substantial questions of law: "1.Whether the Courts below have permitted the illegality in not considering the scope of Section 112 of the Evidence Act, particularly when it was not shown that the parents of the plaintiff had no access to each other at any time when the plaintiff could have been begotten. 2. Whether the Courts below committed illegality in not considering the effect of the recital in the sale deed Ex.A4, wherein it was sated that the plaintiff is the son of the first defendant." (extracted as such) 6. The learned counsel for the plaintiff, placing reliance on the grounds of appeal, would pyramid his arguements, which could succinctly and precisely be set out thus: (i) Ex.A4 (Ex.B2)-the sale deed dated 22.3.1964 would evince and evidence that D1 himself candidly and categorically, in the registered document, acknowledged and admitted that the plaintiff happened to be his son and he executed the sale deed on his behalf and on behalf of his minor son, namely, the plaintiff herein, transferring the properties specified therein. (ii) Both the Courts below did not advert to the said fact in rendering the judgements. (iii) Ex.A3-the mark-sheet of the plaintiff dated 3.6.1969 would show that the plaintiff was born on 10.8.1955 and that would probabilize that as on the date of emergence of Ex.A4-the sale deed dated 22.3.1964, the plaintiff was a minor and he was represented by his father therein. (iv) During cross-examination of P.W.3-Pachaimmal, it is the suggestion of the defendants that there took place a marriage between the plaintiff's mother Pachaiammal-P.W.3 and D1; however, rift erupted even on the first day of the marriage, which resulted in both of them living separately; P.W.3 had illicit intimacy with one Perumal Gounder even before marriage and that was why within seven months from the date of marriage between P.W.3 and D1, the plaintiff was born. The Courts below have not at all adverted to the said fact. The Courts below have not at all adverted to the said fact. (v) There is absolutely no clarity in the deposition of the witnesses examined on the defendants' side as D.W.3-Kannammal -the cousin sister of D1, so to say, D1's brother's daughter, would depose as though marriage between D1 and Unnamalai Ammal took place 25 years anterior to 2002, in Thiruvannamalai Temple, which means, the marriage allegedly took place during the year 1976, which is not the case of D1. If that is true, then in 1964, as claimed by D1, he might not have represented his minor son D2-Ramakrishnan as Ramachandran. (vi) D1, D2, D3 and D4 examined themselves as D.W.1, D.W.4, D.W.5 and D.W.6 respectively and their depositions are the ipse dixit of them. D.W.2 is the 'sambandhi' of D1 and his evidence is an interested one having no probative force. Accordingly, the learned counsel for the appellant/plaintiff would pray for setting aside the judgements and decrees of both the Courts below and for decreeing the suit. 7. Per contra, in a bid to torpedo and pulversie the arguements on the side of the plaintiff, the learned counsel for the defendants would advance his arguements, which could pithily and precisely be set out thus: (i) The burden of proof is on the plaintiff, who miserably failed to prove the alleged marriage, which took place between P.W.3 and D1. (ii) There is nothing to indicate and exemplify that the plaintiff was born to D1. (iii) The ancestral properties were all sold in public auction and the properties found described in the schedule of the plaint happened to be the self-acquired properties of D1, in which, the plaintiff assuming himself as the son of D1, cannot claim any right. (iv) Both the Courts below correctly analysing and understanding the evidence on record, decided the lis. (v) In second appeal, the plaintiff cannot pray the Court to once again evaluate the evidence. The first appellate Court happened to be the last Court of facts, which correctly and legally, applying the law, decided the lis, warranting no interference in second appeal. Accordingly, the learned counsel would pray for the dismissal of the second appeal. 8. (v) In second appeal, the plaintiff cannot pray the Court to once again evaluate the evidence. The first appellate Court happened to be the last Court of facts, which correctly and legally, applying the law, decided the lis, warranting no interference in second appeal. Accordingly, the learned counsel would pray for the dismissal of the second appeal. 8. The learned counsel for the appellant/plaintiff would make an extempore submission, while submitting his arguements, that the plaintiff is not particular in claiming right over the suit properties, but he is only concerned with his status as the son of D1, born through Pachaiammal-P.W.3 and nothing more and to that effect, he is ready to make endorsement. In fact, the learned counsel also made endorsement. 9. On hearing both sides and on perusal of the records what I could understand is that the plaintiff is particular in asserting his status as that of the son of D1, born through P.W.3 and nothing more. In the wake of the endorsement made by the learned counsel for the plaintiff as under:- "The appellant/plaintiff is not interested in any of the properties belonging to the 1st respondent/1st defendant, and so, the appellant is not claiming any relief of partition in the suit properties or any other properties, standing in the names of the respondents. The appellant is restricting his grievance, only in respect of the finding that the appellant is not the son of the first respondent. This endorsement is made as per the instructions of the instructions given by the appellant to the counsel." (extracted as such) this court could only confine itself to the fact as to whether such a declaration could be made, from the available evidence. The recitals in Ex.A4(Ex.B2)-the sale deed dated 20.3.1964 would run thus: Tamil 10. There is no denial of such recitals in the aforesaid document on the defendants' side; however, they would try to explain and expound by pointing out that the name Ramachandran referred to therein did not refer to the plaintiff, but to D2-Ramakrishnan, who was also known as Ramachandran. 11. In such a case, it has to be found out as to whom the name 'Ramachandran' in Ex.A4-the sale deed refers to. 12. Ex facie and prima facie, the plaintiff's name is proved to be Ramachandran. Ex.A3-the school record would clearly evince and evidence that the plaintiff's name is Ramachandran. 11. In such a case, it has to be found out as to whom the name 'Ramachandran' in Ex.A4-the sale deed refers to. 12. Ex facie and prima facie, the plaintiff's name is proved to be Ramachandran. Ex.A3-the school record would clearly evince and evidence that the plaintiff's name is Ramachandran. However, it is the contention of the defendants that D2-Ramakrishnan was also known as Ramachandran and that was why in Ex.A4-the sale deed, his name has been mentioned as Ramachandran instead of Ramakrishnan. 13. The 'onus of proof' relating to that point is concerned, is on the defendants. It is quite obvious that 'onus probandi' is ambulatory and not static. With regard to certain points, the onus might be on the plaintiff and relating to certain other points it might be on the defendants and that would also be shifting from one side to another side depending upon the circumstances. 14. At this juncture, I call up and recollect the following maxims: (i) Affirmatis est probare He who affirms must prove. (ii) Affirmanti, non neganti incumbit probatio The burden of proof lies upon him who affirms, not upon one who denies. 15. The above maxims would unambiguously and unequivocally highlight and spotlight the fact that the burden is on the plaintiff in this case to prove the marriage between P.W.3-Pachaiammal and D1-Kanna Gounder and also the fact that the plaintiff was born to them. 16. It has to be seen as to whether the plaintiff discharged his burden. 17. At this juncture, it is worthwhile to refer to the evidence on record. Trite the proposition of law is that the admitted facts need not be proved. The relevant portion of the deposition of P.W.3 during cross-examination is extracted hereunder for ready reference: Tamil 18. A mere running of the eye over the excerpt would unambiguously and unequivocally point up and show up, accentuate and display that the defendants' side categorical case during trial was that there took place a marriage between D1-Kanna Kounder and P.W.3-Pachaiammal; that on the first day of marriage itself, there was misunderstanding between the couple, which resulted in a rift and that they started living separately from each other. It is also the case of the defendants that P.W.3 had illicit intimacy with one Perumal Gounder even before marriage and that was why she gave birth to the plaintiff even before seven months since the marriage between herself and D1. When such is the clear and categorical case put forth by the defendants during trial, they cannot simply veer round and have a volte face and take an about turn and contend that P.W.3 was an utter stranger to D1. 19. I recollect and call up the maxim: 'Allegans contraria non est audiendus' A person making contradictory allegations is not to be heard. 20. Accordingly if viewed it is crystal clear that in the written statement the defendants suppressed the materials evidence, which attracts the maxims: (i) Suppressio veri suggestio falsi Suppression of the truth is equivalent to the suggestion of what is false (ii) Suppressio veri, expressio falsi Suppression of the truth is equivalent to the expression of what is false. 21. No doubt, 'Omnia praesumuntur contra spoliatorem' All presumptions are against one who wrongfully dispossesses another, cannot be bulldozed into the entire case of the defendants, because, the maxim 'Falsus in uno, falsus in omnibus' False in one thing, false in everything, cannot be adopted in the Indian settings as per the precedents of the Honourable Apex Court. However, one fact is clear that the defendants have not come forward with the clear case of their own and their written statement is fraught with falsity and mendacity also. On the plaintiff's side P.W.2-Pachaiappa Gounder, the brother of P.W.3-Pachaiammal, would detail and delineate, portray and parody as to what actually took place in the family. He would narrate about the marriage, which took place between P.W.3 and D1. 22. In my considered opinion and that too, in the wake of the falsity involved in the defence of the defendants, the evidence of P.W.2 is of almost importance and significance and the fact also remains that it was he who brought up the plaintiff and educated him also. 23. Accordingly, if the recitals in Ex.A4(Ex.B2)-the sale deed is viewed it is crystal clear that D1-Kanna Kounder acknowledged the plaintiff as his son and he acted as the guardian for his son-the plaintiff and executed the sale deed-Ex.A4 on his behalf also. 23. Accordingly, if the recitals in Ex.A4(Ex.B2)-the sale deed is viewed it is crystal clear that D1-Kanna Kounder acknowledged the plaintiff as his son and he acted as the guardian for his son-the plaintiff and executed the sale deed-Ex.A4 on his behalf also. Only as an after though he did choose to veer round and take such a false plea in the written statement. Even D1's plea in the written statement was given a go-by during the trial by him. 24. 'Preponderance of probabilities would govern the adjudication' in civil cases. In the wake of the aforesaid probabilities available on the side of the plaintiff, both the Courts should have been very careful in not bastardizing the plaintiff. 25. At this juncture I recollect the following decisions of the Honourable Apex Court: (i) AIR 1971 SC 2352 (Perumal Nadar (dead) by Legal Representative vs. Ponnuswami Nadar (Minor) would run thus: "12. Nor can we accept the contention that the plaintiff Ponnuswami is an illegitimate child. If it be accepted that there was a valid marriage between Perumal and Annapazham and during the subsistence of the marriage the plaintiff was born, a conclusive presumption arises that he was the son of Perumal, unless it be established that at the time when the plaintiff was conceived, Perumal had no access to Annapazham. There is evidence on the record that there were in 1957 some disputes between Annapazham and Perumal. Annapazham had lodged a complaint before the Magistrate?s court that Perumal had contracted marriage with one Bhagavathi. That complaint was dismissed and the order was confirmed by the High Court of Madras. Because of this complaint, the relations between the parties were strained and they were living apart. But it is still common ground that Perumal and Annapazham were living in the same village, and unless Perumal was able to establish absence of access, the presumption raised by Section 112 of the Indian Evidence Act will not be displaced. 13. In Chilukuri Venkateswarlu v. Chilukuri Venkatanarayana3 in a suit filed by a Hindu son against his father for partition it was contended that the plaintiff was not the legitimate child of the defendant. 13. In Chilukuri Venkateswarlu v. Chilukuri Venkatanarayana3 in a suit filed by a Hindu son against his father for partition it was contended that the plaintiff was not the legitimate child of the defendant. The defendant relied upon certain documents by which he had agreed to pay maintenance to the plaintiff?s mother and upon a deed gifting a house to her and assertions made in a previous suit that he had no intercourse with her after he married a second wife. The Court in that case observed, following the judgment of the Privy Council in Karapaya v. Mayandi4 that ?non-access could be established not merely by positive or direct evidence; it can be proved undoubtedly like any other physical fact by evidence, either direct or circumstantial, which is relevant to the issue under the provisions of the Indian Evidence Act, though as the presumption of legitimacy is highly favoured by law it is necessary that proof of non-access must be clear and satisfactory?, and since on the basis of that proof there was evidence on the record that the plaintiff?s mother lived in the house gifted to her by her husband and there was no impossibility of cohabitation between the parties, there was no acceptable evidence of non-access." (emphasis supplied) (ii) An excerpt from the decision of the Hon'ble Apex Court reported in AIR 1993 SC 2295 (Goutam Kundu vs. State of West Bengal and another) would run thus: "21. above is the dicta laid down by the various High Courts. In matters of this kind the court must have regard to Section 112 of the Evidence Act. This section is based on the well-known maxim pater est quem nuptiae demonstrant (he is the father whom the marriage indicates). The presumption of legitimacy is this, that a child born of a married women is deemed to be legitimate, it throws on the person who is interested in making out the illegitimacy, the whole burden of proving it. The law presumes both that a marriage ceremony is valid, and that every person is legitimate. Marriage or filiation (parentage) may be presumed, the law in general presuming against vice and immorality. 22. It is a rebuttable presumption of law that a child born during the lawful wedlock is legitimate, and that access occurred between the parents. The law presumes both that a marriage ceremony is valid, and that every person is legitimate. Marriage or filiation (parentage) may be presumed, the law in general presuming against vice and immorality. 22. It is a rebuttable presumption of law that a child born during the lawful wedlock is legitimate, and that access occurred between the parents. This presumption can only be displaced by a strong preponderance of evidence, and not by a mere balance of probabilities. (emphasis supplied) 23. Dukhtar Jahan (Smt) v. Mohammed Farooq this Court held: (SCC p. 629, para 12) “... Section 112 lays down that if a 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 and the mother remains unmarried, it shall be taken as conclusive proof that he is the 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. This rule of law based on the dictates of justice has always made the courts incline towards upholding the legitimacy of a child unless the facts are so compulsive and clinching as to necessarily warrant a finding that the child could not at all have been begotten to the father and as such a legitimation of the child would result in rank injustice to the father. Courts have always desisted from lightly or hastily rendering a verdict and that too, on the basis of slender materials, which will have the effect of branding a child as a bastard and its mother an unchaste woman.” 24. This section requires the party disputing the paternity to prove non-access in order to dispel the presumption. “Access” and “non-access” mean the existence or non-existence of opportunities for sexual intercourse; it does not mean actual “cohabitation”. (emphasis supplied) 26. The quintessence of the legal point that could be understood from the aforesaid decisions is that the presumption contemplated under Section 112 of the Indian Evidence Act is only a rebuttable one. It is therefore, just and necessary to extract the relevant Section, viz., Section 112 of the Indian Evidence Act. "112. (emphasis supplied) 26. The quintessence of the legal point that could be understood from the aforesaid decisions is that the presumption contemplated under Section 112 of the Indian Evidence Act is only a rebuttable one. It is therefore, just and necessary to extract the relevant Section, viz., Section 112 of the Indian Evidence Act. "112. 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, them other remaining unmarried, shall be conclusive proof that he is the 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." 27. A mere running of the eye over those precedents would highlight the fact that the Court should be reluctant to bastardize a person. By picking holes here and there in the evidence, if one party tries to bastardize the other party, the Court should not allow such approach. There is not even any itsy-bitsy evidence on defendants' side to expatiate and indicate, prove and establish that the plaintiff was not born during the wedlock of P.W.3 and D1 and that too, after candidly admitting by the defendants that P.W.3 and D1 got married and P.W.1 (the plaintiff) was born during such subsistence of marriage. There is no miniscule or jot of evidence that P.W.1 was born within seven months since the marriage between P.W.3 and D1. 28. Wherefore it is clear from the judgements of both the Courts below that they never adhered to the aforesaid principle and in fact, they never considered Ex.A4-the sale deed as well as the deposition of P.W.3 during cross in proper perspective in rendering the judgements. 29. Now then the plaintiff also took a specific stand that he is not at all interested in the suit properties and he is giving up his right also in seeking partition. Hence, I need not decide the plaintiff's right to get partitioned the suit poperties, because now it is explicitly clear that the plaintiff is not at all interested in the properties of D1 and the suit properties. Hence, I would like to hold, from the available evidence, that the plaintiff is the son of D1-Kanna Kounder born through Pachaiammal-P.W.3. 30. Hence, I need not decide the plaintiff's right to get partitioned the suit poperties, because now it is explicitly clear that the plaintiff is not at all interested in the properties of D1 and the suit properties. Hence, I would like to hold, from the available evidence, that the plaintiff is the son of D1-Kanna Kounder born through Pachaiammal-P.W.3. 30. Accordingly, the substantial questions of law are answered as under: Substantial Question of law (1) is answered to the effect that the Courts below have committed illegality in not considering the scope of Section 112 of the Evidence Act, particularly when it was not shown that the parents of the plaintiff had no access to each other at any time when the plaintiff could have been begotten. Substantial Question of law No.2 is answered to the effect that the Courts below committed illegality in not considering the effect of the recital in the sale deed Ex.A4, wherein it was sated that the plaintiff is the son of the first defendant. 31. In the result, the judgements and decrees of both the Courts below are set aside and the second appeal is allowed to the limited extent as set out supra. However, there is no order as to costs.