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2013 DIGILAW 1975 (MAD)

Balagopal v. Vijayakumar

2013-06-12

R.S.RAMANATHAN

body2013
JUDGMENT 1. The plaintiff in O.S. No.530 of 1985 on the file of the Principal Sub Court, Coimbatore is the deceased appellant. The plaintiff filed a suit for partition of his 5/8th share in the suit properties and the Trial Court granted the decree of 1/6th share in the suit property and aggrieved by the same, this First Appeal is filed. 2. The case of the plaintiff as seen from the plaint was as follows: Ponnaan was the father of the plaintiff and Chinnammal who was arrayed as eighth defendant, was the mother. The third defendant was the brother of the plaintiff. Defendants 1 and 2 were born to Ponnan/the father of the plaintiff through his concubine Sankarammal. The suit properties were the joint family properties in the hands of Ponnaan and he died on 24.09.1984 and Ponnaan had another daughter and she died leaving the ninth defendant as a legal heir and therefore on the death of Ponnaan, plaintiff became entitled to 5/8th share and therefore the suit was filed for partition of 5/8th share. 3. Defendants 1 and 2 filed the statement that defendants 4 to 7 are the tenants in Door No.15/4 and defendants 1 and 2 are the legitimate children of Ponnaan and Sangarammal and Ponnaan married Sangarammal/the mother of defendants 1 and 2 and the mother of the plaintiff/appellant Chinnammal, divorced Ponnaan and married one Somasundaram and therefore defendants 1 and 2 are the legitimate children of Ponnaan through his legitimate wife Sangarammal and the properties were the self acquired properties of Ponnaan and therefore, the plaintiff was not entitled to the relief prayed for. 4. The third defendant filed his statement admitting that he and the plaintiff were the children of Ponnaan and Chinnammal/the eighth defendant, who was the legally wedded wife of Ponnaan and Ponnaan got the properties from his father and as Ponnaan was having illicit relationship with Sangarammal, the legally wedded wife of Ponnaan viz., Chinnammal was living separately and defendants 1 and 2 were not the legitimate children of Ponnaan and the properties were the self acquired properties of Ponnaan and he gifted the properties to the third defendant. 5. On the basis of the pleadings, the Trial Court framed the following issues: 1) Whether the plaintiff is entitled to claim partition, if so, whether the plaintiff is entitled to 5/8th share? 5. On the basis of the pleadings, the Trial Court framed the following issues: 1) Whether the plaintiff is entitled to claim partition, if so, whether the plaintiff is entitled to 5/8th share? 2) Whether the plaintiff is not entitled to claim any partition for the reasons stated in the written statement of D1? 3) Whether defendants 4 to 7 were not liable to render any accounts as they are not tenants? 4) Whether the third defendant relinquished his right of share in favour of defendants 1 and 2? 5) Whether the suit is barred for non-joinder of necessary parties namely Sangarammal and Gomathy? 6) To what relief? 6. The Trial Court tried issue Nos.1 to 4 and held that the plaintiff was the son of Ponnaan and Chinnammal and there was no legal marriage between Ponnaan and Sangarammal and therefore defendants 1 and 2 were not born to Ponnaan through lawful marriage and the plaintiff has not relinquished his right to his share in favour of defendants. The Trial Court further held that there was no proof that Door No.15/3 was possessed by Ponnaan and therefore in respect of Door No.15/3, the plaintiff was not entitled to any relief and in respect of Door No.15/4, the plaintiff was entitled to 1/6th share and the defendants 4 to 7 who are the tenants, have vacated and therefore, the plaintiff was not entitled to claim any relief against defendants 4 to 7 and the suit was not barred for non-joinder of necessary parties and the plaintiff was entitled to 1/6th share in respect of Door No.15/4. Aggrieved by the same, the present appeal is filed. 7. Mr.V.Nicholas, learned counsel appearing for the appellants submitted that the Court below, having held that the suit property was the separate property of Ponnaan, ought to have granted preliminary decree in respect of ¼ share in favour of the plaintiff and erred in passing a decree in respect of 1/6th share. 7. Mr.V.Nicholas, learned counsel appearing for the appellants submitted that the Court below, having held that the suit property was the separate property of Ponnaan, ought to have granted preliminary decree in respect of ¼ share in favour of the plaintiff and erred in passing a decree in respect of 1/6th share. Learned counsel appearing for the appellants submitted that the Court below, having held that there was no proof for the marriage of Ponnaan with Sangarammal and Sangarammal, who herself admitted in Ex.D3 that she was the wife of Venkitan, ought to have held that the plaintiff, eighth defendant, third defendant and ninth defendant alone were entitled to succeed to the estate of Ponnaan and each of them were entitled to 1/4th share and ought to have granted a decree of 1/4th share in favour of the plaintiff. 8. On the other hand, learned counsel for respondents 1 and 2 submitted that the Court below rightly granted preliminary decree in respect of 1/6th share in favour of the plaintiff and though the Trial Court held that the marriage between Ponnaan and Sangarammal was not proved, the Trial Court failed to appreciate the evidence of DW2, who spoke about the marriage and he also attended the marriage. He further submitted that the marriage took place in the year 1951 and when evidence was taken in the year 1991, one cannot expect any other proof regarding marriage and evidence of DW2 would also make it clear that the marriage between Ponnaan and Sangarammal took place in a temple and he was present and in that temple, no receipt was given and therefore, the Court below ought to have believed the evidence of DW2 and held that Ponnaan married Sangarammal and through her lawful wedlock, D1 and D2 were born and the Trial Court had rightly passed a preliminary decree in respect of 1/6th share and therefore, there is no need to interfere with the findings of the Trial Court. 9. On the basis of the argument advanced by learned counsel for the appellants and respondents, the following points for consideration arise in this appeal: 1) Whether the Trial Court was right in granting preliminary decree in respect of 1/6th share instead ¼ share? 9. On the basis of the argument advanced by learned counsel for the appellants and respondents, the following points for consideration arise in this appeal: 1) Whether the Trial Court was right in granting preliminary decree in respect of 1/6th share instead ¼ share? 2) Whether the Trial Court was right in granting preliminary decree in respect of 1/6th share in favour of the plaintiff, after holding that there was no marriage between Ponnaan and Sangarammal? 10. The case of the plaintiff was that Ponnaan married Chinnammal/the eight defendant and through her, he had two sons and one daughter. She later died and ninth defendant was the son of the deceased daughter. It was the further case of the plaintiff that the suit property was the ancestral property in the hands of Ponnaan. Though the plaintiff claimed that the property was the ancestral property in the hands of Ponnaan, considering Ex.A3, the sale deed in favour of Ponnaan in the year 1960, learned counsel appearing for the appellants submitted that the property was the self acquired property of Ponnaan and there was no evidence to arrive at the conclusion that the property was the ancestral property in the hands of Ponnaan. 11. The case of the respondents 1 and 2 was also that the property was the self acquired property of Ponnaan. Therefore, having regard to Ex.A3, the Trial Court has rightly held that the property was the self acquired property of Ponnaan. If the property was the self acquired property of Ponnaan, the next question arises for consideration is to what share the appellants are entitled to. To decide that question, we will have to decide the status of respondents 1 and 2. The case of the respondents 1 and 2 was that they were the legitimate children of Ponnaan through Sangarammal. On the other hand, the case of the appellants was that respondents 1 and 2 were not the legitimate children of Ponnaan and they were born through his concubine Sangarammal and therefore, they are illegitimate children and hence they are not entitled to claim any share in the suit property. On the other hand, the case of the appellants was that respondents 1 and 2 were not the legitimate children of Ponnaan and they were born through his concubine Sangarammal and therefore, they are illegitimate children and hence they are not entitled to claim any share in the suit property. To prove that respondents 1 and 2 are the legitimate children of Ponnaan through his second wife Sangarammal, respondents 1 and 2 examined DW2, who spoke about the marriage between Ponnaan and Sangarammal in the year 1951 and also gave evidence that he was present at the time of marriage and also filed Ex.D3/mortgage deed executed by Sangarammaland Ex.D6/the Pass Book issued in favour of Sangarammal. 12. According to me, the Trial Court has rightly rejected the evidence of DW2 and rightly held that there was no valid marriage between Sangarammal and Ponnaan. In the written statement, respondents 1 and 2 stated that Ponnaan married Sangarammal lawfully in the year 1949, as per the community custom and through Sangarammal, defendants 1 and 2 were born. DW2 deposed that the marriage between Ponnaan and Sangarammal took place in the year 1951 in the village temple. In the statement, no particulars about the marriage between Ponnaan and Sangarammal were stated and the only information about the marriage was that the marriage took place in the year 1949. Whereas DW2 deposed that the marriage took place in the year 1951. Further, Sangarammal was alive during trial and for reasons best known to respondents 1 and 2, Sangarammal was not examined on the side of respondents 1 and 2. 13. According to me, Sangarammal was the competent witness, who can speak about the marriage between her and Ponnaan and non-examination of Sangarmmal would only lead to the conclusion that if she were examined that would go against the interest of respondents 1 and 2. Further Ex.D3 was the mortgage deed dated 20.04.1979 executed by Sangarammal, Ponnaan and Vijayakumar/ first respondent. In the mortgage deed, Sangarammal described herself as the wife of Venkitan and described the first respondent as the son born to her through Ponnaan. In that document, she has not stated that the first respondent was born to her through her husband. On the other hand, she has stated that after the death of her husband Venkitan, the first respondent Vijayakumar was born to her through Ponnaan. In that document, she has not stated that the first respondent was born to her through her husband. On the other hand, she has stated that after the death of her husband Venkitan, the first respondent Vijayakumar was born to her through Ponnaan. Therefore, in Ex.D3/the mortgage deed executed in the year 1970, she did not state that she married Ponnaan, after the death of her first husband Venkitan. Therefore, the non-examination of Sangarammal, the admission of Sangarammal in Ex.D3 that she was the wife of Venkitan, the difference in the year of marriage as stated in the written statement as well as in the evidence of PW2 would lead to conclusion that the marriage between Ponnaan and Sangarammal was not proved by defendants 1 and 2. When there was no legal marriage between Ponnaan and Sangarammal, defendants 1 and 2/respondents 1 and 2 cannot be considered as legitimate children of Ponnaan and therefore they are not entitled to claim any share in the property of Ponnaan. 14. Under Section 16 of the Hindu Marriage Act, any child born through a form of marriage, shall be legitimate and any child born when the parents did not undergo any form of marriage, cannot be characterised as legitimate. As stated supra, there was no proof of marriage between Ponnaan and Sangarammal and on the other hand, Sangarammal herself admitted in the Ex.D3 that she was the wife of Venkitan and she also did not enter the box to prove her marriage. Therefore, respondents 1 and 2 cannot be considered as legitimate children of Ponnaan, though they were born to Ponnaan through Sangarammal. As they are not the legitimate children, they are not entitled to claim any share in the suit property and therefore, the Court below has erred in granting of 1/6th share to the plaintiff and the Court below ought to have granted 1/4th share to the plaintiff. Therefore, I hold that the Trial Court ought to have granted 1/4th share in favour of the plaintiff and erred in granting 1/6th share. 15. Therefore, I hold that the Trial Court ought to have granted 1/4th share in favour of the plaintiff and erred in granting 1/6th share. 15. Having held that respondents 1 and 2 are not the legitimate children of Ponnaan through Sangarammal, the appeal is partly allowed and the judgment and decree dated 07.10.1991 in O.S. No.530 of 1985 on the file of Principal Subordinate Judge, Coimbatore is modified and I hold that the appellants are entitled to ¼th share in respect of property in Door No.15/4. No costs.