2017 (8) TMI 1656 - HC - Indian Laws

Preliminary decree in respect of 3rd item of the property namely deposit in the bank - legal heirs of late Durairaj - Validity of alleged marriage between Kamalambal and Durairaj - bigamy - Whether the first item of the property belonged to Durairaj and if so, the plaintiffs are entitled to share?? - entitlement to partition - HELD THAT - When the evidence of DW1/first wife of Durairaj, when carefully analysed, in the chief examination, she has stated that Kamalambal was never given a status as wife of Durairaj. DW1 also admitted that her first child was born in the year 1955 and immediately died after 9 days. Thereafter, the second defendant born in the year 1958. Afterwards 3rd child was born and died after 5 days. These events, infact probablised the plaintiffs' case that in order to have a male child, Durairaj infact has decided to marry Kamalambal. The cross-examination of DW1 also clearly show that when Kamalambal was at the age of 16 there was illegal connection between her husband and Kamalambal and she has also stated that Kamalambal was living in Ganapathinagar house from the year 1957 till date. Further, she has also admitted that she never objected Kamalambal living in Ganapathinagar house. She also admitted that only her husband has kept Kamalambal in Ganapathinagar house. The cross-examination clearly indicate that Kamalambal and Durairaj was living together from the year 1957. The conduct of DW1 probablise the plaintiffs' case that there was a second marriage to Durairaj and Kamalambal in the year 1960 itself. Further, in the cross-examination of DW1 also, she has not denied the specific question that from 1960 onwards her husband was living with Kamalambal. What she tried to say is that her husband also used to come to Abraham Panditham street, where DW1 was living. These facts clearly shows that from the year 1960, Kamalambal and Durairaj, were living together and evidence of PW3, PW4, PW5, PW7 and PW9 clearly probablised the plaintiff case that there was a 2nd marriage performed between Durairaj and Kamalambal. It is to be noted that DW1 is the sister of an important personality in Thanjavur. As per the evidence, her brother is also politically connected and also Member of Parliament for some time. Therefore, the witnesses turning hostile may be due to various reasons. The same is not germane for consideration. In the entire evidence of PW8, the chief examination itself is sufficient to prove Ex.A30. In view of the evidence of PW8 in chief, one of the attesting witnesses coupled with the non denial of the signature of DW1 in the gift deed/Ex.A30, there is no difficulty for this Court to hold that Ex.A30 has been executed by DW1, infact DW1 has not challenged the document in all these days. This is also one of the grounds to hold that this document has been duly executed by herself. The factum of marriage not only clearly established by the oral evidence but also by the documentary evidence. The conduct of DW1 treating the mother of the plaintiffs as life partner of her husband and executed the gift deed would go to show there was a second marriage - Further conduct of first wife not objecting for such relationship of her husband from from the very inception i.e. from the year 1960 till his death, and also consideration of natural events in the family of Durairaj in entirety, this Court also draw the presumption under Section 114 of the Indian Evidence Act to hold that there was a second marriage. Further the oral evidence on the side of the plaintiffs particularly, PW4, PW5, PW7 and PW9, also not assailed in the cross-examination. That apart, as stated above, from the documentary evidence and the conduct of the party, one could see that there was a marriage between Kamalambal and Durairaj. The amount deposited is not lying with the 3rd defendant bank as admitted by both sides and the above factum was also informed to the plaintiffs in the year 1989 itself and there is no amount lying with the third defendant bank, granting preliminary decree for the amount which was not in existence is liable to be interferred - Application disposed off.

Summary

Issues Involved:
1. Legitimacy of the plaintiffs as legal heirs of late Durairaj.
2. Validity of the alleged marriage between Kamalambal and Durairaj on 05.06.1960.
3. Entitlement of the plaintiffs to partition and share in the properties of Durairaj.
4. Validity of the preliminary decree regarding bank deposits.

Detailed Analysis:

1. Legitimacy of the Plaintiffs as Legal Heirs of Late Durairaj:

The plaintiffs claimed to be the children of Durairaj and Kamalambal, asserting their right to a share in Durairaj's estate. The defendants, Durairaj's first wife and daughter, denied the marriage between Durairaj and Kamalambal, alleging that Kamalambal was merely a concubine. The court examined evidence including letters, birth certificates, and testimonies of witnesses (PW1 to PW11). The court found that the plaintiffs were indeed born to Durairaj and Kamalambal, as evidenced by documents like Ex.A1 (birth certificate) and Ex.A2 (transfer certificate). The court concluded that the plaintiffs were legitimate children of Durairaj, thereby entitled to a share in his estate.

2. Validity of the Alleged Marriage between Kamalambal and Durairaj on 05.06.1960:

The plaintiffs provided evidence of the marriage ceremony, including testimonies from witnesses who attended the wedding. PW4, PW5, PW7, and PW9 testified about the marriage, which included traditional rituals like exchanging garlands and tying thali. The defendants' cross-examination did not effectively dispute these claims. The court also considered the long cohabitation of Durairaj and Kamalambal as husband and wife, supported by various documents (Ex.A43 to Ex.A45, letters from Durairaj). The court held that the marriage was valid under the presumption of legality from long cohabitation, despite the first marriage being in existence, as per Section 11 of the Hindu Marriage Act.

3. Entitlement of the Plaintiffs to Partition and Share in the Properties of Durairaj:

The court examined various documents proving the relationship between Durairaj and Kamalambal, including Ex.A30 (gift deed) and Ex.A32 (sale deed). The evidence showed that Durairaj treated Kamalambal as his wife and the plaintiffs as his children. The court found that the plaintiffs were entitled to a 6/8th share in the properties of Durairaj, as decreed by the trial court. The court confirmed the preliminary decree regarding the properties listed as items 1, 2, 4, and 7.

4. Validity of the Preliminary Decree Regarding Bank Deposits:

The third defendant, the bank, appealed against the preliminary decree concerning a deposit of ?2,00,000. The bank had already adjusted the deposit against a housing mortgage loan and paid the remaining amount to the first defendant after obtaining an indemnity bond. The plaintiffs conceded that no amount was available in the bank at the time of filing the suit. The court set aside the preliminary decree concerning the bank deposit, acknowledging that the amount was not available for partition.

Conclusion:

The court dismissed the appeal (A.S.No.926 of 1992) by the first and second defendants, confirming the plaintiffs' entitlement to a 6/8th share in Durairaj's properties. The court allowed the bank's appeal (A.S.No.986 of 1993), setting aside the preliminary decree concerning the bank deposit. The judgment of the trial court was thus upheld in part and modified in respect of the bank deposit. No costs were awarded.