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2018 DIGILAW 3706 (MAD)

Muthammal (Died) v. Vijayakumari

2018-10-10

C.V.KARTHIKEYAN

body2018
JUDGMENT : C.V. Karthikeyan, J. The first and second defendants in O.S.No.14 of 2004 on the file of the Additional District and Sessions Judge (Fast Track Court), Dindigul are the appellants herein. 2. O.S.No.14 of 2004 had been filed by the plaintiffs Tmt. Vijayakumari, Rajamanoharan, and Selvi. Menaka, seeking 5/8th undivided share in the suit schedule properties and also mesne profits. The said suit came up for consideration on 17.01.2005 and the Additional District and Sessions Judge (Fast Track Court), Dindigul, decreed the suit in so far as the second and third plaintiffs were concerned and granted 1/4th undivided share in the A and B schedule properties and dismissed the suit with respect to C and D schedule properties and also with respect to the claim for past mesne profits. The suit was dismissed as against the first plaintiff. 3. Challenging the said Judgment and decree the first and second defendants have filed the present appeal. O.S.No.14 of 2004: 4. In the plaint, it had been claimed that the first plaintiff Tmt.Vijayakumari, was the legally wedded second wife of Late. Velusamy. The second defendant Lakshmiammal, was said to be the legally wedded first wife of Late. Velusamy. The first defendant Muthammal was the mother of Late. Velusamy. The second and third plaintiffs Rajamanoharan and Menaka were said to be the children of Late. Velusamy, born through the first plaintiff Vijayakumari. The third defendant M. Jamal Mohammed, had been impleaded since it was stated that he had entered into an agreement to purchase the suit schedule properties. However, he remained exparte in the suit. 5. The plaintiffs, claimed that Late. Velusamy, had married the second defendant Lakshmiammal in the year 1965. They did not have any children. The first defendant Muthammal and the second defendant Lakshmiammal themselves arranged the marriage of Velusamy with the first plaintiff Vijayakumari as his second wife. It was further stated that the second and third defendants Rajamanoharan and Menaka, were born to Vijayakumari out of the said wedlock. It was stated that Velusamy died on 06.04.1989. 6. The A schedule properties were lands in Alakkuvarpatti Village, Dindigul. The B schedule property was house in Chettinayakanpatti Village, Dindigul. The C schedule properties were gold jewels weighing 50 sovereigns. The D schedule properties were vessels and utensils. It was stated that Velusamy died on 06.04.1989. 6. The A schedule properties were lands in Alakkuvarpatti Village, Dindigul. The B schedule property was house in Chettinayakanpatti Village, Dindigul. The C schedule properties were gold jewels weighing 50 sovereigns. The D schedule properties were vessels and utensils. The plaintiffs claimed themselves as legal representatives of deceased Velusamy and stated that, the first defendant was entitled to 1/4th share and the first plaintiff and second defendant were jointly entitled to an undivided 1/4th share and the second and third plaintiffs were entitled to an undivided + share. Consequently, claiming partition and separate possession of the 5/8th undivided share in the suit schedule properties, the plaintiffs filed the said suit. 7. The second defendant filed a written statement which was adopted by the first defendant. In the said written statement, it was stated that the first plaintiff Vijayakumari, was not the legally wedded wife of Velusamy. It was stated that there were earlier proceedings in O.S.No.327 of 1989 relating to the status of the plaintiffs and since that suit went against the present defendants they filed A.S.No.226 of 1994 before the District Court Dindigul, and it was decided that the first plaintiff was not the wife of Velusamy. It was stated that the plaintiffs were not entitled to any share in the suit properties. 8. The third defendant did not file any written statement and remained as exparte. 9. On the basis of the above pleadings, the following issues were framed: (i) Whether the suit barred by res judicata? (ii) Whether the plaintiffs are entitled to partition and separate possession and past mesne profits? (iii) To what reliefs are the plaintiffs entitled to? 10. During trial, the first plaintiff Vijayakumari was examined as PW-1 and another witness Murugesan was examined as PW-2. On the side of the defendants, the second defendant Lakshmiammal was examined as DW-1 and another witness Sundarajan, was examined as DW-2. The plaintiffs marked Exs. A1 to A9. Ex.A2 and A3 were the birth certificates of the second and third plaintiffs. Ex.A5 was the notice issued to the defendants. Ex.A9 was the reply notice issued by the defendants. On the side of the defendants, Ex.B1 was the Judgment in A.S.No.226 of 1994 dated 29.07.1997. During trial, Ex. The plaintiffs marked Exs. A1 to A9. Ex.A2 and A3 were the birth certificates of the second and third plaintiffs. Ex.A5 was the notice issued to the defendants. Ex.A9 was the reply notice issued by the defendants. On the side of the defendants, Ex.B1 was the Judgment in A.S.No.226 of 1994 dated 29.07.1997. During trial, Ex. X1 and X2 were the Judgment and decree in O.S.No.693 of 1998 on the file of the Additional District Munsif Court, Dindigul, Ex.X3 was the Judgment in A.S.No.32 of 2000 on the file of the Additional District Court, Dindigul. 11. The learned Judge held on the basis of the evidence that the first plaintiff was not the legally wedded wife of the Late. Velusamy. However, it had been held that the second and third plaintiffs were born to Velusamy through Vijayakumari. The learned Judge, therefore held that though they are illegitimate children they were entitled to and undivided 1/4th share each in the A and B schedule properties. It was also held that the first and second defendants Muthammal and Lakshmiammal, the mother and wife of Velusamy were each entitled to an undivided 1/4th share in A and B schedule properties. The suit was dismissed with respect to C and D schedule properties and also with respect to claim for past mesne profits, the suit was also dismissed with respect to future mesne profits, the parties were directed to file necessary application for final decree under Order XX Rule 12 of CPC. A.S(MD) No.70 of 2005: 12. Challenging the said Judgment and decree, particularly with grant of share to the 2nd and 3rd plaintiffs, the first and second defendants, Muthammal and Lakshmiammal filed the said first appeal. Pending the appeal, Muthammal died and by order dated 27.01.2017, the second appellant/second defendant Lakshmiammal was recognized as her legal heir. Subsequently, by order dated 07.03.2017, the second and third respondents/second and third plaintiffs Rajamanoharan and Menaka were also recognized as her legal representatives. 13. Heard arguments advanced by Mr. S. Ramesh, learned counsel for the appellants and Mr. P.T.S. Narendravasan, learned counsel for the first, second and third respondents. The fourth respondent Jamal Mohammed, who was the third defendant in the suit and who remained as exparte in the suit did not participate in the judicial proceedings. 14. The points for determination are: "1. Heard arguments advanced by Mr. S. Ramesh, learned counsel for the appellants and Mr. P.T.S. Narendravasan, learned counsel for the first, second and third respondents. The fourth respondent Jamal Mohammed, who was the third defendant in the suit and who remained as exparte in the suit did not participate in the judicial proceedings. 14. The points for determination are: "1. Whether the findings of the Trial Court that the suit in O.S.No.14 of 2004 was barred for res judicata in view of the findings in A.S.No.226 of 1994, on the file of the Principal District Court, Dindigul is correct? 2. Whether the second and third respondents were also entitled to a share in the properties left behind by Velusamy? 3. Whether Judgment and decree of the Trial Court has to be interfered with?" The points discussed and answered: 15. The first appellant Muthammal, was the mother of Late. Velusamy. Velusamy died on 06.04.1989. The second appellant Lakshmiammal was his legally married wife. They were married in the year 1965. They did not have any children. It is claimed by the first respondent Vijajakumari, that she then married Velusamy in the year 1981. She further claimed that her marriage was solemnized by the first and second appellants at Kallipatti Murugan Temple. This statement has been disputed by the appellants. They denied the factum of marriage between Velusamy and Vijayakumari. 16. There were earlier proceedings in O.S.No.327 of 1989 on the file of the District Munsif Court, Dindigul between the parties. That suit had been filed by the appellants herein against the first, second and third respondents and also against one Azhagumalaipillai, who was shown as the first defendant. That suit related to seeking accounts of a joint business run by the parties. In that suit, the appellants herein who were the plaintiffs had also sought for a declaration that the first respondent herein Vijayakumari was not the legally wedded wife of Velusamy and that the second and third respondents Rajamanoharan and Menaka were not the children of Velusamy. That suit was decided against the present appellants. As against that they filed A.S.No.226 of 1994 before the District Court, Dindigul. The Judgment in that appeal had been marked as Ex.B1. 17. In the Judgment, it was held that the first respondent Vijayakumari, was not the legally wedded wife of Velusamy. That suit was decided against the present appellants. As against that they filed A.S.No.226 of 1994 before the District Court, Dindigul. The Judgment in that appeal had been marked as Ex.B1. 17. In the Judgment, it was held that the first respondent Vijayakumari, was not the legally wedded wife of Velusamy. It was however, held that the second and third respondents were born to Vijayakumari, in consequence of co-habitation with Velusamy. That Judgment was not challenged further by any of the parties. Ex.A2 is the birth certificate of the second respondent Rajamanoharan. He was born on 07.05.1982, Ex.A3 is the birth certificate of the third respondent Menaka. She was born on 11.01.1985. In both the birth certificate the name of the father had been given as Velusamy. In the evidence of the first respondent in cross examination, she admitted that she did not file any appeal against Ex.B1, Judgment in A.S.No.226 of 1994. She further admitted that in the said Judgment it had been declared that the second and third respondents were born to Velusamy. 18. It is seen that this Court has also recognized the fact that the second and third respondents are also the legal representatives of the deceased first appellant. This was because they claimed to be her grand children, though illegitimate children of her son Velusamy. The rights of illegitimate children to a share of their father's property had been upheld continuously and has also been recognized. 19. I hold that the learned Trial Judge was correct in stating that the claim of the respondents was barred by the findings in the Judgment in A.S.No.226 of 1994. The first respondent does not get any share in the property of Velusamy. However, the second and third respondent would get an equal one half share in the properties left behind by Late. Velusamy. This would mean that the first appellant Muthammal, the second appellant Lakshmiammal, the second respondent Rajamanoharan and the third respondent Menaka would each be entitled to an undivided 1/4th share in A and B schedule properties. 20. On the death of the first appellant Muthammal, pending this appeal her undivided 1/4th share will devolve on to the second appellant Lakshmiammal, second respondent Rajamanoharan and third respondent Menaka in equal shares. Consequently, their shares would increase to undivided 4/12th each. 20. On the death of the first appellant Muthammal, pending this appeal her undivided 1/4th share will devolve on to the second appellant Lakshmiammal, second respondent Rajamanoharan and third respondent Menaka in equal shares. Consequently, their shares would increase to undivided 4/12th each. In the result, except for this modification consequent to the death of the first appellant, the appeal stands dismissed in other respects. 21. The Judgment and decree of the Trial Court is modified by holding that the Lakshmiammal ? second appellant/second defendant, Rajamanoharan ? second respondent/second plaintiff and Menaka - third respondent/third plaintiff, would each get an undivided 4/12th share in the A and B schedule properties. The parties are directed to file application for final decree under Order XX Rule 12 of CPC. 22. Appeal suit is dismissed with the above observations. No Costs. CMP(MD).No.5211 of 2005 which has been filed for stay is closed.