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TMI Blog2017 (8) TMI 1656X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , Mrs.N. Krishnaveni, Senior Counsel for Mr.P.Thiagarajan COMMON JUDGMENT N. SATHISH KUMAR, J. Aggrieved over the preliminary decree passed in respect of item Nos. 1, 2, 4 and 7 declaring the plaintiffs are entitled to 6/8th share, the defendants 1 and 2 filed the appeal in A.S.No.926 of 1992. Similarly, aggrieved over the preliminary decree in respect of 3rd item of the property namely deposit in the bank, the bank /3rd defendant has filed the appeal A.S.No.986 of 1993. 2. Since both the appeals are arising out of the same judgment, dated 13.10.1992 in O.S.No.95 of 1989 on the file of Subordinate Court, Thanjavur, we decide to dispose of both the appeals in a common judgment. 3. For the sake of convenience the parties are arrayed as per their own ranking before the Trial Court. The brief facts of the plaintiffs case is as follows:- The plaintiffs are children of one Durairaj, born through their mother Kamalambal. Though the first defendant married Durairaj in the year 1953, the female child born to her died immediately. Thereafter, in the year 1957, the second defendant herein was born to Durairaj and first defendant. Since both the children born to fir ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pt as concubine and she was the servant maid in the house. Because of the influence and improper advice of Kamalambal, there was some love loss in the family. Late Durairaj was a puppet in the hands of Kamalambal and her children and he had lost his independent thinking and balance. He was behaving in a questionable manner. Kamalambal was never treated or considered or given the status of wife by Late Durairaj at any point of time. She was never recognized as wife of Durairaj. She was not esteemed or reputed as wife of Durairaj by those who know her. She has no reputation of having been married to late Durairaj. It is also denied by the defendants that Durairaj wanted to have a male child, therefore he contracted the second marriage. Similarly, the alleged exchange of garlands and tying of thali is also denied by the defendants. The allegation that Durairaj and Kamalambal living as husband and wife from 1960 is also denied. 5. It is the further contention of the defendants that Raja Kalai Arangam, a cinema theater, was absolutely belong to the first defendant and her husband executed a settlement deed in the year 1959. There were civil suit in respect of the same and ultimately ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... led to 6/8 share in the above items. However dismissed the suit in repsect of other items of the suit properties. Aggrieved over the same, the defendant 1 and 2 filed an appeal in A.S.No.926 of 1992 and the third defendnt/bank has filed an appeal in A.S.No.986 of 1993 challenging the preliminary decree in respect of 3rd item of the suit properties. 10. The learned Senior Counsel appearing for the appellants in A.S.No.926 of 1992 submitted that admittedly, the first defendant is the wife of the late Durairaj and late Durairaj was Zamindar of Pappanadu and they are living in a family house and out of the wedlock, the second defendant was born to the first defendant and Durairaj. When the first marriage was existing very much, the said Durairaj marrying one Kamalambal in the year 1960 is highly improbable. Further, the contention of the plaintiffs that since Durairaj did not have any male heir and therefore he wanted to have a second marriage to have a male heir, is also highly improbable. Admittedly, the marriage between the first defendant and Durairaj took place in the year 1953. Out of the wedlock the female child already born to Durairaj, through the first defendant was died a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h available and submitted that the Trial Court has not considered the entire aspect and simply decreed the suit. Hence, prayed for allowing the appeal. In support of his arguments, the learned Senior Counsel relied upon on the following judgments:- i)VOL. 46 MLJ 8 (SN),dated 18.01.1924, S.A.No.592 of 1921 wherein it is held as follows:- If a marriage in fact is proved then it might be presumed to be valid..... The presumption of a marriage from repute arises only where the evidence shows that the parties were living together for a sufficiently long period and were treated as husband and wife by their relations and the public.Where a man had already married a woman and had children by her, there is no presumption that another lady with whom he is said to have lived is his wife or his children by her are legitimate ii) Vol.81 LW 200 (Rajagopal Pillai v. Pakkiam Ammal), wherein it is held as follows:- The marriage state being chief foundation on which the superstructure of society rests, presumption of the marriage arising from cohabitation of spouses is a very strong presumption. Where a man and a woman had lived together as man and wife, the law will presume, until t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ur concubinage, but that the presumption is in favour of a marriage when a man and a woman are shown to have cohabited continously for a long number of years, though such a presumption is a rebuttable one and can be destroyed or weakened by the presence of other circumstances. It is pointed out that no doubt the presumption of law is in favour of marriage and against concubinage, but where a person is already married, no presumption of a second marriage arises by reason of long cohabitation. In the present case, apart from the fact that the circumstances pointed out earlier considerably weaken the drawing of such a presumption, there is really no scope for such a presumption at all. vii) 1989 (2) LW 197 (Moham v. Santha Bai Ammal), wherein it is held as follows:- Ex.A2 to A5 will only show that the plaintiffs were born to their mother Drowpathi through late Subbarayalu Naidu. As alredy stated, their paternity is not disputed by the defendants and the main dispute is as to the status of their mother Drowpathi. Therefore, these documents are of no use to the plaintiffs to prove the factum of a valid marriage of their mother. viii) 1994 (1) SCC 460 (S.P.S.Balasubramany ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cluding succession to the properties of their parents, have to be treated as legitimate. They cannot, however, succeed to the property of any other relation on the basis of this rule, which in its operation, is limited to the properties of the parents. xii) AIR 2000 MP 288 (Ramkali anr. V. Mahila Shyamwati Ors), where it is held as follows - When there is no proof of solemnisation of marriage and there is further no proof that there was a de jure marriage or even a de facto marriage where during long cohabitation as husband and wife with habit and repute a child is born, there can be no occasion whatsoever for making available the statutory presumption envisaged under S.16 of the Hindu Marriage Act, 1955 securing the status of a legitimate child in favour of such a child born out of a union which was either void ab initio or declared to be so under a decree passed under S.11 of 12 of the Hindu Marriage Act, 1955. xiii) 2001 (3) CTC 513 (Kanagavalli v. Saroja), wherein it is held as follows:- 14.. I have already referred to how because of nonregistration of marrige, woman, who has given herself physically, emotionally and otherwise, gains nothing but stands to los ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... timate children of Durairaj, have certainly entitled to shares in the property of Durairaj. The learned Trial Judge has considered the entire matter and righly arrived just conclusion. Hence, prayed for dismissal of the appeal. The learned counsel appearing for the respondents also relied upon the following judgments in support of his contention:- i) AIR 1978 (SC) 1557 (Badri Prasad v. Dy. Director Consolidation), wherein it is held as follows:- A man and a Woman living as husband and wife for about 50 years. Strong presumption arises in favour of wedlock. Proof as to factum of marriage by examining the priest and other witnesses not necessary. ii) 1994 (1) SCC 460 (S.P.S. Balasubramanyam v. Suruttayan), wherein it is held as follows: It appears unnecessary to express any opinion as to whether the relationship between Chinathambi and Pavayee was adulterous and if it was sufficient to destroy the presumption in law as this plea does not appear to have been raised in the written statement nor any issue was framed on it nor any of the Courts have recorded any finding on it. iii) 1988 (1) LW 358 (Indirani v. Vellathal) wherein it is held as follows: When a marri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n law. Hence prayed for allowing the appeal A.S.No.986 of 1993. 16. The learned counsel appearing for the respondents in A.S.No.986 of 1983 fairly conceded that since there was no amount available with the bank, they are not claiming any share in respect of 3rd item of the suit property namely deposit in the bank. 17. In the light of the above submissions, the point now arises for consideration in A.S.No.986 of 1993 is that whether the 3rd item of the suit property namely deposit of ₹ 2,00,000/- available with the 3rd defendant bank for partition? A.S.No.926 of 1992 Points 1 to 3 18. It is the specific case of the plaintiffs that their mother Kamalambal married Durairaj on 05.06.1960 in the presence of relatives and friends. The marriage took place at 30, Ganapathinagar, Thanjavur. It is also the case of the plaintiffs that since Durairaj did not have any male heir through the first wife, he decided to marry Kamalambal as second wife and the plaintiffs' mother was residing in the family house of Durairaj, along with her mother, and the marriage was performed in the presence of relatives of both Durairaj and Kamalambal. Though the defendants in their d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ves around the marriage between Durairaj and Kamalambal, which stated to have been taken place on 05.06.1960. PW4, the brother of Kamalambal in his evidence has stated that the family has moved towards the Durairaj house in the year 1948 itself and her mother was manging the house hold works and PW4 was also living in the above house and Durairaj has married the first defendant in the year 1953. After the second defendant born, the doctor has advised that the first defendant would not be able to deliver any more child. In order to have a male child, Durairaj decided to go for 2nd marriage. At that point of time, as suggested by Durairaj's uncle Pandithurai, 2nd marriage was fixed with Kamalambal. Accordingly, on 05.06.1960, marriage was performed in the pooja room and Durairaj tied thali and also exchanged garlands. In fact Pandithurai uncle of Durairaj blessed the couple by handing over the thali to Durairaj. The evidence of PW4 with regard to a cermony about the marriage exchanging garlands and tying of thali in the presence of witnesses, not even specifically denied in the cross-examination by defendants except denying that there was no marriage between Kamalambal and Durair ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d marriage and the solemnising of the second marriage in the presence of witnesses is neither controverted nor denied and the same is nothing but an admission on the part of the defendants. 25. In the light of the above, 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 cr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iraj. Ex.A26, sale deed executed by Durairaj on 27.07.1985 clearly proves the fact that at relevant point of time, he was residing in No.30 Ganapathinagar, where the plaintiffs are residing. Ex.A27 the acknowledgment issued by the Sub Inspector of Police clearly shows that arms were handed over by the first plaintiff. Proceedings of the Superintendent of Police, dated 22.05.1992 marked as Ex.A28 also indicate that the weapons were deposited by Selvakumar, the first plaintiff. These facts clearly shows that the arms possessed by the father namely Durairaj were infact kept in the place where he was residing and that has been handed over by the first plaintiff. The ration card/Ex.A29 also shows that Durairaj is the Head of the family along with Kamalambal and others. The address of the house is shown as Ganapathinagar, North Street. From the above documents, the plaintiffs clearly establish the fact that Durairaj not only treat the plaintiffs as children but also resides with them along with PW5/ Kamalambal at Ganapathinagar. 28. Ex.A30 is the gift deed executed by the first defendant in the name of PW5, Kamalambal. Though DW1 in her statement pleaded that her husband has obtained ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... At any event, the evidence of PW8 in chief coupled with admission of signature in Ex.A30 by DW1 and Ex.A14, this Court hold that Ex.A30 is clearly established by law. When Ex.A30/gift deed carefully seen, the first defendant has executed the gift in favour of Kamalambal, the second wife. Though Kamalambal, was not described as wife of Durairaj, her initial has been shown as 'D', denoting her husband. Further, recitals in the documents clearly reads as follows:- image 1 indicate that all along Kamalambal was treated as wife of late Durairaj. Once, the first defendant has admitted in her document about the status of Kamalambal, and her children born through Durairaj, now she is estopped from stating that there was no marriage between Kamalambal and Durairaj and plaintiffs are not born to Durairaj and Kamalambal. 30. Further, in Ex.A32/sale deed, dated 28.09.1985 executed by one Muthugopan, infavour of the minor son of Durairaj, wherein Kamalambal has made as guardian. The above sale deed shows Kamalambal as wife of Durairaj. It is relevant to note that even third parties have treated Kamalambal as wife of Durairaj. From Ex.A40, it is also relevant to note that how Du ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e in the national armoury. All these facts clearly shows arms owned by Durairaj were deposited by the first plaintiff. 31. Ex.B1, the document also clearly shows that Selvakumar has purchased certain property wherein the address of Selvakumar, first defendant is shown as Ganapathinagar. Though the defendants have filed wealth tax assessment notice issued to Durairaj in the address of Abraham Panditham, it is to be noted that DW1 in her cross examination, has stated that Durairaj not only residing at Ganapathinagar and also used to go to Abraham Panditham, where the first defendant is residing. Therefore, merely because some official correspondence are sent to the first defendant in the name of Durairaj that itself cannot be a ground to hold that there was no marriage between Kamalambal and Durairaj in the year 1960. From the oral and documentary evidence, particularly non-denial of the specific evidence as to solemnisation of marriage in the year 1960 coupled with the admission of Durairaj himself treating the children as his own children and also treating Kamalambal as the mother of plaintiffs and Ex.P44 and Ex.P45 as discussed above, this Court is of the view that merely becau ..... X X X X Extracts X X X X X X X X Extracts X X X X
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