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2012 DIGILAW 780 (MAD)

Janamejeyam v. Sivaraj

2012-02-14

G.RAJASURIA

body2012
Judgment :- 1. This appeal is filed by the defendant in the suit as against the judgment and decree dated 2.6.2009 passed by the Principal District Judge, Villupuram, in O.S.No.70 of 2005, 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. Despite printing the names of the respondents, after due service, they did not choose to enter appearance. Heard the arguments of the learned counsel for the appellant/defendant. 4. A thumbnail sketch of the relevant facts absolutely necessary and germane for the disposal of this appeal would run thus: (i) The plaintiffs, three in number, filed the suit as against their father for partition, seeking 3/4th share in favour of them, in respect of the suit properties, alleging that those properties happened to be the ancestral properties. (ii) The appellant/defendant resisted the suit by filing the written statement. Whereupon issues were framed. (iii) During trial, on the plaintiffs' side, the second plaintiff examined herself as P.W.1 and Exs.A1 to A4 were marked. On the defendant's side, the defendant examined himself as D.W.1 and Exs.B1 to B6 were marked. (iv) Ultimately, the trial Court decreed the suit as prayed for and preliminary decree was passed. 5. Being aggrieved by and dissatisfied with the preliminary decree of the trial Court, the defendant preferred this appeal on various grounds. 6. The learned counsel for the appellant/defendant, by placing reliance on the grounds of appeal, would pilot his arguements, inviting the attention of this Court to various portions of the judgement, the pith and marrow of them would run thus: (i) The suit was bad for non-joinder of necessary party, namely, the minor Mohanasundaram. (ii) The lower Court failed to consider the fact that after the death of the first wife, through whom the plaintiffs were born, the defendant married one Agilandeswari and gave birth to Mohanasundaram, legitimately. (iii) In the chief-examination affidavit of the defendant, as D.W.1, he clearly spelt out that he was agreeable for dividing the properties into five shares and allotting one share each to the plaintiffs, the defendant and the minor Mohanasundaram, but that was not considered at all by the trial Court. (iii) In the chief-examination affidavit of the defendant, as D.W.1, he clearly spelt out that he was agreeable for dividing the properties into five shares and allotting one share each to the plaintiffs, the defendant and the minor Mohanasundaram, but that was not considered at all by the trial Court. (iv) The loans incurred by the defendant also were not considered by the trial Court and whenever partition takes place, the sharers should share the liabilities towards repayment of the joint family loans also. (v) The defendant incurred loans for development of the properties and for the family expenses. (vi) The fact of the leasehold property already vacated by the defendant was not taken into consideration. Accordingly, the learned counsel would pray for setting aside the judgement and preliminary decree of the trial Court. 7. The points for consideration are as follows: (i) Whether issues were properly framed by the trial Court? (ii) Whether the trial Court failed to apply the correct proposition of law in rendering the finding that the defendant did not prove that he married Agilandeswari and legitimately gave birth to Mohanasundaram. (iii) Whether the trial Court did not take into account the entire evidence on record, in deciding the lis? (iv) Whether there is any perversity or illegality in the judgement of the trial Court. 8. All the points are taken together for discussion, as they are interwoven and interlinked, interconnected and entwined with one another. 9. At the outset itself I would like to recollect the trite law that in a partition suit, the plaintiff is defendant and vice versa. Even though in the written statement in very many words the defendant did not plead that the suit was bad for non-joinder of the minor-Mohanasundaram as one of the parties, still he pleaded in the written statement about the existence of the minor Mohanasundaram as his son born through his second wife. D.W.1 in his deposition contended that the suit was bad for non-joinder of necessary parties. No doubt, the defendant could have very well taken steps to file application for impleading the minor-Mohanasundaram also, as the guardian of the said minor-Mohanasundaram, but that was not done so. There was no issue at all framed relating to non-joinder of necessary party. 10. The Court is expected to frame appropriate issues taking into account the pleadings of the parties. There was no issue at all framed relating to non-joinder of necessary party. 10. The Court is expected to frame appropriate issues taking into account the pleadings of the parties. In a partition suit, the duty of the Court is paramount to see that necessary issues are framed taking into account the materials available on record. The issues framed are far from satisfactory. Hence, I am of the considered view that the trial Court was wrong in not framing the proper issues. 11. The application of Section 16 of the Hindu Marriage Act also was not considered. While observing so, I do not hold that the trial Court was justified in giving a finding that there was no legal marriage between the appellant/defendant and Agilandeswari. The lower Court simply disbelieved the marriage between the defendant and Agilandeswari, by stating that mere marking of the birth certificate of minor Mohanasundaram, revealing the names of his parents as the defendant and Agilandeswari, would not amount to proving the parents' legitimate marriage. 12. I would like to refer to the decision of the Honourable Supreme Court in REVANASIDDAPPA AND ANOTHER V. MALLIKARJUN AND OTHERS ( 2011) 11 SCC, certain excerpts from it would run thus: "28. The legislature has used the word "property" in Section 16(3) and is silent on whether such property is meant to be ancestral or self-acquired. Section 16 contains an express mandate that such children are only entitled to the property of their parents, and not of any other relation. 29. On a careful reading of Section 16(3) of the Act we are of the view that the amended section postulates that such children would not be entitled to any rights in the property of any person who is not his parent if he was not entitled to them, by virtue of his illegitimacy, before the passing of the amendment. However, the said prohibition does not apply to the property of his parents. Clauses (1) and (2) of Section 16 expressly declare that such children shall be legitimate. If they have been declared legitimate, then they cannot be discriminated against and they will be on a par with other legitimate children, and be entitled to all the rights in the property of their parents, both self-acquired and ancestral. Clauses (1) and (2) of Section 16 expressly declare that such children shall be legitimate. If they have been declared legitimate, then they cannot be discriminated against and they will be on a par with other legitimate children, and be entitled to all the rights in the property of their parents, both self-acquired and ancestral. The prohibition contained in Section 16(3) will apply to such children with respect to property of any person other than their parents. 30. With changing social norms of legitimacy in every society, including ours, what was illegitimate in the past may be legitimate today. The concept of legitimacy stems from social consensus, in the shaping of which various social groups play a vital role. Very often a dominant group loses its primacy over other groups in view of ever changing socio-economic scenario and the consequential vicissitudes in human relationship. Law takes its own time to articulate such social changes through a process of amendment. That is why in a changing society law cannot afford to remain static. If one looks at the history of development of Hindu Law it will be clear that it was never static and has changed from time to time to meet the challenges of the changing social patternh in different times. 36. With the amendment of Section 16(3), the common law view that the offspring of marriage which is void and voidable are illegitimate "ipso jure" has to change completely. We must recognise the status of such children which has been legislatively declared legitimate and simultaneously law recognises the rights such children in the property of their parents. This is a law to advance the socially beneficial purpose of removing the stigma of illegitimacy on such children who are as innocent as any other children. 39. We are constrained to differ from the interpretation of Section 16(3) rendered by this Court in Jinia Keotin and, thereafter, in Neelamma and Bharatha Matha in view of the constitutional values enshrined in the preamble of our Constitution which focuses on the concept of equality of status and opportunity and also on individual dignity. The Court has to remember that relationship between the parents may not be sanctioned by law but the birth of a child in such relationship has to be viewed independently of the relationship of the parents. The Court has to remember that relationship between the parents may not be sanctioned by law but the birth of a child in such relationship has to be viewed independently of the relationship of the parents. A child born in such relationship is innocent and is entitled to all the rights which are given to other children born in valid marriage. This is the crux of the amendment in Section 16(3). However, some limitation on the property rights of such children is still there in the sense their right is confined to the property of their parents. Such rights cannot be further restricted in view of the pre-existing common law view discussed above." The Honourable Bench of the Supreme Court expressed their opinion to place the matter before the larger Bench. 13. No doubt, the defendant also could have examined Agilandeswari and also adduced better evidence in support of his contention that he legitimately got married Agilandeswari. In the alternative, application of Section 16 of the Act also should have been considered by the trial Court. As such, non-joinder of minor-Mohanasundaram and non-framing of proper issues are fatal to the judgement rendered by the trial Court. Hence, I am of the view that the judgement and preliminary decree of the trial Court should necessarily be set aside and the matter remitted back to the trial Court to frame proper issues and also give due opportunity to both sides to file additional pleadings and adduce additional evidence and accordingly, it is ordered. The appellant/defendant also is at liberty to file necessary application for impleading the minor Mohanasundaram. The parties shall appear before the trial Court on 19.3.20112. The trial Court shall see to it that the matter is disposed of as expeditiously as possible. 14. The appeal is disposed of accordingly. However, there is no order as to costs. Connected miscellaneous petition is closed.