MADURAI BENCH OF MADRAS HIGH COURT = suit for partition and separate possession = can not be considered as Exclusive possession = However, having regard to their claim that the third defendant is entitled only to 1/4th share, their exclusive possession pleaded by them cannot be taken as a plea of a stranger claiming exclusive right over the entire property but as a joint owner. Though the property is settled in favour of first plaintiff and first defendant under the Will Ex.A3, the possession and enjoyment of the first item of property by the third defendant cannot be taken as one by a person who is entitled to be in possession as an exclusive owner. It was only because Dr.Jayaraman died, suddenly in a road accident, the property is in the enjoyment of third defendant as a person living along with Dr.Jayaraman during his life time and not as a person having independent title ; Since the Hindu Succession (Amendment) Act, 2005, came after the death of Dr.Jayaraman and the succession opens immediately upon the death of Dr.Jayaraman, a specific ground was raised in the appeal memorandum that the third defendant is entitled to 1/4th share in items 5 to 9. = State Amendment to the Hindu Succession Act, 1956.= As pointed out earlier, items 5 to 9 of the suit properties are allotted to Dr.Jayaraman in a family partition and it has been held by the trial Court that they are his ancestral properties. After the death of Dr.Jayaraman in the year 2002, his two daughters are entitled to equal share as that of Dr.Jayaraman and as a result, the plaintiffs and first defendant are entitled to 5/12 share and the first wife of Dr.Jayaraman, namely, the second plaintiff and third defendant, the illegitimate son of Dr.Jayaraman are entitled to 1/12 share. This is by virtue of the State Amendment to the Hindu Succession Act, 1956.

http://judis.nic.in/HCS/list_new2.asp?FileName=129549&Table_Main_Txt=cheordtext
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 09.10.2017
Reserved on: 02.01.2017
Delivered on: 09.10.2017
CORAM
THE HONOURABLE MR.JUSTICE S.S.SUNDAR
Appeal Suit (MD) No.291 of 2008
and
M.P.(MD)Nos.1 of 2008 and 1 of 2014

1.Ezhilmathi
2.Karthikeyan : Appellants / Defendants 2 & 3
-Vs-
1.Karthika : 1st Respondent/1st Plaintiff
2.Megalai : 2nd Respondent/2nd Plaintiff
3.Rohini : 3rd Respondent/1st Defendant
Prayer: Appeal Suit filed under Section 96 of the Civil Procedure Code,
against the judgment made in O.S.No.167 of 2004, dated 24.04.2008 on the file
of the First Additional District Judge, Tiruchirappalli.
!For Appellants : Mr.S.Ramasamy
Senior Counsel
for AN.Ramanathan

^For Respondents 1&2: Mr.K.S.Vamsidhar
For Respondent 3 : Mr.S.Ramakrishnan

:JUDGMENT
The defendants 2 and 3 in O.S.No.167 of 2004 on the file of the
First Additional District Court, Tiruchirappalli, are the appellants in the
above appeal.
2.The respondents 1 and 2 in this appeal are plaintiffs 1 and 2
in the suit and third respondent in this appeal is the first defendant in the
suit.
3.The respondents 1 and 2 herein, as plaintiffs filed the suit in
O.S.No.167 of 2004 for partition and separate possession of + share in the
suit first item and for + share for the plaintiffs 1 and 2 in respect of
items 1 to 3 and item 10 of suit properties. Insofar as first item is
concerned, the plaintiffs also prayed for + share to the first defendant.
The plaintiffs also prayed for alternative relief for division of properties
item 1 to 3 and 10 of the suit properties into four equal shares and to allot
two shares to the plaintiffs and , share to the first defendant, in case, the
Court comes to the conclusion that the Will relied upon by them is held to be
not valid.
4.The first plaintiff is the daughter of second plaintiff who is
the first wife of Late Dr.Jayaraman. The first defendant is none else than
the sister of first plaintiff and the daughter of second plaintiff. The
second defendant in the suit is the second wife of Late Dr.Jayaraman and she
is also the sister of second plaintiff. The third defendant in the suit is
the son of Late Dr.Jayaraman through the second defendant.
5.The case of the plaintiff is that the suit first item was
purchased by Dr.Jayaraman by a registered sale deed dated 22.04.1981 and that
he constructed a clinic in the suit first item and was running the same in
the name and style of ?Krithika Nursing Home?. It is further stated that
Dr.Jayaraman executed a Will on 17.06.1986 bequeathing the suit first item to
his two daughters, namely, the first plaintiff and the first defendant. It
is not in dispute that Dr.Jayaraman died on 03.02.2002 in a road accident.
6.Though the suit was filed only in respect of suit first item,
the contesting defendants namely defendants 2 and 3 raised a plea stating
that all the properties of Dr.Jayaraman were not included in the suit.
Subsequently, the suit items 2 and 3 were included. Thereafter, the
defendants filed a petition to include other properties in the suit, namely,
items 4 to 9. Subsequently, item 10 in the suit schedule also included and
the same is a car bearing registration No.TN-45-Q-3838.
7.The case of the plaintiffs is that the suit items 1 to 3 are
the self-acquired properties of Dr.Jayaraman. The fourth item was included
in the suit schedule. It is the specific case of the plaintiffs that the
properties referred to in item 4 are the exclusive properties of the second
plaintiff, namely, the first wife of Dr.Jayaraman. It is also the case of
the plaintiffs that items 5 to 9 in the suit are the ancestral properties of
Dr.Jayaraman, who got the same in a family partition and that the third
defendant being the illegitimate son of Dr.Jayaraman through the second
defendant whose marriage is void, is not entitled to any share in the
ancestral properties.
8.The second defendant filed a detailed written statement which
was also adopted by the third defendant. It is the case of the appellants
that the third defendant along with second defendant is living in the suit
first item and that therefore, the suit for partition between the plaintiffs
and the first defendant, bye-passing the claim of third defendant is not
maintainable, as the relief of partition must be preceded by a relief for
recovery of possession from the third defendant.
9.It was further stated in the written statement that
Dr.Jayaraman married the second defendant, as he had no male child through
his first wife, namely, the second plaintiff. It is the case of the
defendants 2 and 3 that Dr.Jayaraman was living with them at Manapparai in
the suit first item ever since their marriage and that after the sudden and
sad demise of Dr.Jayaraman, defendants 2 and 3 continued to live in the
residential portion of suit first item whereas the plaintiffs and defendants
1 and 2 are living in Sakthi Nagar, Tiruchirappalli.
10.It is also the further case of the defendants 2 and 3 that at
the time of marriage between Dr.Jayaraman and second defendant, the second
plaintiff, namely, the first wife of Dr.Jayaraman pressurised Dr.Jayaraman to
settle the suit first item in her favour under threat, duress, intimidation
and coercion and Dr.Jayaraman was asked to settle the entire hospital
premises, namely, first item of suit property in favour of second plaintiff.
The Will alleged to have been executed by Dr.Jayaraman on 17.06.1986
bequeathing the suit first item in favour of the plaintiffs and first
defendant is specifically challenged by disputing the truth, validity,
execution and attestation of the Will dated 17.06.1986. Stating that the
Will dated 17.06.1986 is a concocted, fabricated and ante-dated document, it
was contended that the Will had been specially invented to knock away the
valuable properties from the hands of the third defendant. With regard to
the execution of the Will dated 17.06.1986, the contesting defendants /
appellants further relied upon the circumstances by which the petition for
divorce was presented by Dr.Jayaraman as against the second plaintiff on
16.06.1986. It was specifically pleaded that there was no occasion for
Dr.Jayaraman to execute the Will and further relied upon few circumstances
under which the Will came into existence. Though a specific plea was raised
by the appellants stating that the suit is bad for partial partition, by
inclusion of other properties which were allotted to Dr.Jayaraman under a
registered partition deed dated 28.02.1997, the said plea has now become
irrelevant.
11.The trial Court though framed originally certain issues only
in relation to the items 4 to 9, after hearing the arguments, framed the
following issues:
1.Whether the document which is marked as Ex.A3 is a Will or settlement deed
and whether it is validly executed by Dr.Jayaraman and further whether the
execution of the document is true and genuine?
2.Whether the 1st plaintiff and the defendants 1 and 2 are in joint
possession and enjoyment of the item 1 of the suit properties nad in case if
the Court decides that on 17.06.1986 document is a valid and enforceable then
whether the plaintiffs have to file a separate suit for recovery of
possession or not?
3.Whether the 2nd and 3rd defendants are entitled to share in the suit
properties?
4.To what relief the plaintiffs are entitled to?
12.Having regard to the pleadings and the evidence, the trial
Court observed that there is no dispute with regard to the character of suit
first item, as the self acquired property of Dr.Jayaraman. Since the claim
of + share by the first plaintiff and first defendant is only on the basis of
the Will, the trial Court considered the issue whether the document, namely,
the Will dated 17.06.1986, marked as Ex.A3 is a Will or settlement. Though
the document is styled as a settlement deed, since there was no transfer in
praesenti under the document, it was concluded by the trial Court that the
document Ex.A3 is only a Will. After referring to several judgments on this
issue, the trial Court observed that what was conveyed under Ex.A3 in favour
of plaintiff and first defendant should go to them only after the death of
Dr.Jayaraman. The trial Court found that Ex.A3 was executed as a Will,
though it was styled as a document of settlement. The trial Court thereafter
examined the truth and validity of the Will. Since the plaintiffs have
examined P.W.2, one of the attestors of the Will, his evidence was believed
by the trial Court, the trial Court had come to the conclusion that the Will
under Ex.A3 had been duly executed and attested in accordance with the
requirements of law.
13.The next question considered by the trial Court was regarding
the maintainability of suit for partition. A specific plea was raised by
the appellants stating that the suit for partition is not maintainable, as
the property is admittedly in the physical possession of the appellants, who
are not admitted as co-owners in respect of the suit first item. The plea of
appellants was negatived on the ground that the appellants themselves have
claimed , share in the suit first item by assuming that they are in joint
possession and that there is no necessity to file a separate suit for
recovery of possession. As regards item No.4 of the suit property, the trial
Court held that out of three plots, plot Nos.71 and 72 are the exclusive
property of the second plaintiff and that plot No.73 is the property of
Dr.Jayaraman. Since the appellants have not proved that the entire sale
consideration came from Dr.Jayaraman, the plea of appellants was not accepted
by the trial Court. Pointing out that Dr.Jayaraman is an income tax assessee
and that if he had advanced money for the purchase of the property in the
name of the second plaintiff, it could have been stated so in his accounts
and that the non-production of such documents by defendants 2 and 3 would
show that plot Nos.71 and 72 are the absolute properties of second plaintiff.
Though the plaintiffs did not admit the right of appellants to claim share in
items 5 to 9 on the ground that they are the ancestral properties of
Dr.Jayaraman, in the plaint, they practically conceded before the trial
Court. As a result, the trial Court found that in respect of items 5 to 9,
the first plaintiff and first defendant are entitled to 5/12 share and the
second plaintiff and third defendant are entitled to each 1/12 share. Since
the claim for partition in respect of item No.10 was conceded, the plaintiff
was not given any relief insofar as item No.10. Thus, the plaintiffs and
first defendant were given + share in item No.1 of the suit properties.
Thus, preliminary decree was passed granting + share each in favour of the
first plaintiff and first defendant in respect of item No.1 and , share each
to the plaintiffs and first defendant in respect of items 2 and 3 of the suit
properties and each 5/12 share in items 5 to 9 of the suit properties to the
first plaintiff and the first defendant and 1/12th share each to the second
plaintiff and third defendant. The suit is also dismissed as against item 4
and item No.10. Even though Plot No.73 is held to be the property of
Dr.Jayaraman, no share is given to the third defendant.
14.Aggrieved by the preliminary decree for partition, the
appellants, who are the defendants 2 and 3 in the suit, have preferred the
above appeal.
15.Though the appellants have raised several grounds challenging
the findings regarding all the items in the suit schedule and regarding the
character of the document Ex.A3 and its truth and validity, the learned
Senior Counsel appearing for the appellants submitted that he has not
challenged any of the findings of the trial Court except the conclusion that
the suit is maintainable, without seeking a relief of recovery of possession
by paying ad valorem court fee.
16.The learned Senior Counsel appearing for the appellants
submitted that the suit first item is not claimed to be a property in
enjoyment of either the first plaintiff or the first defendant. The fact
that the defendants 2 and 3 are residing in the suit first item is admitted
even in the plaint. When the suit first item is claimed on the basis of the
Will whereby suit first item is exclusively given to the first plaintiff and
first defendant who are not in enjoyment it was argued by the learned Senior
Counsel that the suit for partition cannot be sustained. Though the third
defendant is recognised as the son of Dr.Jayaraman, through his second wife,
for granting equal share to the third defendant in respect of the self-
acquired properties of Dr.Jayaraman, the failure to give any share in one of
the plots, namely, Plot No.73 is not challenged before this Court by the
learned Senor Counsel for the appellants. The learned Senior Counsel for the
appellants submitted that the trial Court should have given 1/4th share to
the first defendant in respect of items 5 to 9 as it was granted in respect
of other items which are held to be self-acquired properties of Dr.Jayaraman.
Since the Hindu Succession (Amendment) Act, 2005, came after the death of
Dr.Jayaraman and the succession opens immediately upon the death of
Dr.Jayaraman, a specific ground was raised in the appeal memorandum that the
third defendant is entitled to 1/4th share in items 5 to 9.
17.In order to appreciate the submission of the learned Senior
Counsel for the appellants as regards the maintainability of the suit for
partition in respect of first item of suit property, the following facts are
to be noted:
(a) The suit first item was purchased by Dr.Jayaraman by a
registered sale deed dated 22.04.1981 and it was the property in which he put
up his own clinic under the name and style of ?Krithika Nursing Home? and
practising medicine successfully till his death.
(b) Defendants 2 and 3 are residing only in the residential
portion of the building which was in upstairs.
(c) After the death of Dr.Jayaraman though it is stated in the
written statement that the suit first item is in possession of the third
defendant, the right of plaintiffs to claim a share in the property was not
disputed. In other words, the defendants have not claimed any exclusive
ownership over the suit first item. The third defendant's claim is that he
is also entitled to , share.

18.It is in the above background, the plea regarding the
maintainability of the suit has to be considered. The case of defendants 2
and 3 is that they were living with Dr.Jayaraman in the residential portion
of the clinic at first floor along with Dr.Jayaraman. D.W.1, namely, the
second defendant even in her chief examination stated that her son, the third
defendant, is entitled to , share in all the suit properties. After the
demise of Dr.Jayaraman, no doubt it is true that the appellants alone are in
enjoyment of the entire property. However, having regard to their claim that
the third defendant is entitled only to 1/4th share, their exclusive
possession pleaded by them cannot be taken as a plea of a stranger claiming
exclusive right over the entire property but as a joint owner. Though the
property is settled in favour of first plaintiff and first defendant under
the Will Ex.A3, the possession and enjoyment of the first item of property by
the third defendant cannot be taken as one by a person who is entitled to be
in possession as an exclusive owner. It was only because Dr.Jayaraman died,
suddenly in a road accident, the property is in the enjoyment of third
defendant as a person living along with Dr.Jayaraman during his life time and
not as a person having independent title. Apart from the right of an
illegitimate son, who is also entitled to have a share in the property of his
father, the third defendant does not claim any other right. When the suit
was filed in 2004, the third defendant was still a minor and the possession
of appellants, in these circumstances, can only be treated as permissive.
The right of plaintiff as a co-owner entitled to seek partition was never
disputed by the third defendant. In such circumstances, the plea of
appellants that the suit itself is not maintainable without asking for
recovery of possession has no merits.
19.The learned Senior Counsel appearing for the appellants made
an attempt to establish that the document Ex.A3 is not a Will but a
settlement deed. A reading of the Will clearly discloses the fact that
Dr.Jayaraman wanted the document to come into effect only after his life
time. His intention was clear that the legatees under the Will do not get
any right during his life time. It is not a case where there was mere
postponement of enjoyment. There is no clause which confers any right in
praesenti in favour of the legatees under the Will. Therefore, the
submission of the learned Senior Counsel for the appellants has no merits.
20.It is true that the document Ex.A3 is a described as a
settlement deed. It has been repeatedly held by this Court and the Hon'ble
Supreme Court that the form or nomenclature of the instrument is not
conclusive and that the Court is required to look into the substance of the
document when an issue arises as to the character of the document whether it
is a Will or a settlement deed or gift. In the case of P.K.Mohan Ram v.
B.N.Ananthachary and others reported in AIR 2010 SC 1725 the Hon'ble Supreme
Court has held in paragraph 13 as follows:
?13. Having noticed the distinction between vested interest and contingent
interest, we shall now consider whether Ex.A-2 was a Settlement Deed or a
Will. Although, no strait-jacket formula has been evolved for construction of
such instruments, the consistent view of this Court and various High Courts
is that while interpreting an instrument to find out whether it is of a
testamentary character, which will take effect after the life time of the
executant or it is an instrument creating a vested interest in praesenti in
favour of a person, the Court has to very carefully examine the document as a
whole, look into the substance thereof, the treatment of the subject by the
settlor/executant, the intention appearing both by the expressed language
employed in the instrument and by necessary implication and the prohibition,
if any, contained against revocation thereof. It has also been held that form
or nomenclature of the instrument is not conclusive and the Court is required
to look into the substance thereof.?
21.A Division Bench of this Court in the case of Arthur Mary
Ammal v. Aruldoss Pillai (deceased by L.Rs.) and others reported in AIR 2004
Madras 57 has considered several judgments of the Hon'ble Supreme Court and
this Court and approved the view that unless there is a disposition in
praesenti, though a document is styled as settlement deed and registered as
such, when the intention of the testator is very clear that the property can
be enjoyed by the legatees only after the life time of testator, it can be
termed only as a Will.
22.The findings of the trial Court that Ex.A3 is only a Will and
not a settlement and that the due execution, attestation and validity of
Ex.A3 is proved in accordance with law, has not been seriously argued before
this Court. Hence, this Court has no hesitation to confirm the findings of
the trial Court that the Will under Ex.A3 comes into effect only after the
death of Dr.Jayaraman and that it has been validly proved as a genuine and
valid Will of Dr.Jayaraman. With regard to the character of properties,
namely, the three plots referred in item No.4 of suit schedule, as it has
been held by the trial Court, except plot No.73, other two plots, namely,
plot Nos.71 and 72 are the exclusive properties of the second plaintiff and
they are not available for partition. As pointed out earlier, items 5 to 9
of the suit properties are allotted to Dr.Jayaraman in a family partition and
it has been held by the trial Court that they are his ancestral properties.
After the death of Dr.Jayaraman in the year 2002, his two daughters are
entitled to equal share as that of Dr.Jayaraman and as a result, the
plaintiffs and first defendant are entitled to 5/12 share and the first wife
of Dr.Jayaraman, namely, the second plaintiff and third defendant, the
illegitimate son of Dr.Jayaraman are entitled to 1/12 share. This is by
virtue of the State Amendment to the Hindu Succession Act, 1956. Having
regard to the specific findings of the trial Court and the arguments of the
learned Senior Counsel appearing for the appellants, this Court does not find
any legal infirmity in the judgment and decree of the trial court, except
plot No.73 described as part of item No.4. The conclusion of the trial Court
is not reflected in the operative portion of the judgment. Hence, the
judgment and decree of the trial Court is required to be modified by holding
that the plaintiffs and defendants 1 and 3 are entitled to , share in plot
No.73 described as part of item No.4 of suit schedule. Regarding other
aspects, the findings of the trial Court are supported by reasons and
evidence let in by both the parties. As a result, this appeal is partly
allowed. The plaintiffs and defendants 1 and 3 are entitled to equal , share
in Plot No.73. Hence, this judgment and decree of the trial Court is
modified insofar as the suit item No.4. While the judgment and decree of
trial Court is upheld in respect of Plot No.71 and 72 in suit item No.4, it
is concluded that the plaintiffs and defendants are entitled to , share each
in respect of plot No.73 which is held to be the absolute property of
Dr.Jayaraman. Hence, subject to the modification pointed out above, the
judgment and decree of the trial Court is affirmed. However, there is no
order as to costs. Consequently, the connected miscellaneous petitions are
closed.
To
1.The First Additional District Judge,
Tiruchirappalli.
2.The Section Officer,
Vernacular Records,
Madurai Bench of Madras High Court,
Madurai..

MADURAI BENCH OF MADRAS HIGH COURT - Section 16(1) of the Hindu Marriage Act =the plaintiffs have miserably failed to establish that there has been a valid marriage between Rajammal and Rathinam Pillai and that the plaintiffs have been born out of the said wedlock or even born to him through Rajammal illegally, it is found that the plaintiffs as such are not entitled to claim any share in the suit properties even on the footing that they are the illegitimate children of Rathinam Pillai and accordingly, it is found that the plaintiffs are not entitled to invoke Section 16(1) of the Hindu Marriage Act for claiming the limited reliefs as prayed for in the plaint.= I hold that Rajammal is not the legally wedded wife of the deceased Rathinam Pillai, I further hold that the plaintiffs are not the children of the deceased Rathinam Pillai. Consequently, I hold that the plaintiffs are not entitled to claim any partition and separate possession of their respective shares in the suit properties as prayed for. I further hold that Rajeswari is the legally wedded wife of the deceased Rathinam Pillai and the defendants are the children of the deceased Rathinam Pillai. Accordingly, Point Nos.I to IV are answered against the plaintiffs and in favour of the defendants.

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 17.08.2017
Date of Reserving the Judgment
Date of Pronouncing the Judgment
02.08.2017
17.08.2017

CORAM
THE HONOURABLE MR.JUSTICE T.RAVINDRAN
A.S.No.276 of 2004
and
M.P.(MD) Nos.1 of 2011 & 1 of 2013
and
C.M.P.(MD) No.6506 of 2017

1.Rajaselvi
2.Maheswari ... Appellants
-vs-

1.Meenatchi
2.Ponnu Velammal
3.Karthigairani ... Respondents
PRAYER: Appeal is filed under Section 96 of the Code of Civil Procedure to
set aside the Judgment and Decree, dated 27.09.2002 made in O.S.No.66 of
1985, on the file of the Sub Court, Periyakulam.
!For Appellants : Mr.M.Thirunavukkarasu

^For Respondents : No appearance for R1
Mr.R.Vijayakumar for R2 & R3
:JUDGMENT
Impugning the Judgment and Decree, dated 27.09.2002, passed in O.S.No.66 of
1985, on the file of the Sub Court, Periyakulam, the first appeal has been
preferred by the plaintiffs.
2. The suit in O.S.No.66 of 1985 has been laid by the plaintiffs for
partition and separate possession of the suit properties.
3. The averments contained in the plaint are briefly stated as follows:
3.1. The suit properties originally belonged to Murugapillai alias Rathinam
Pillai and he died intestate on 24.11.1976 and when he was alive, he had
taken Rajammal as his wife and through her, the plaintiffs were born and all
along Rajammal was living with Rathinam Pillai and Rathinam Pillai had two
elder sisters, namely, Palaniammal and Sakunthala and at the instance of his
sisters, Rathinam Pillai had married Rajeswari, who is the daughter of
Sakunthala, as his second wife and through Rajeswari, the defendants 1 to 3
were born to Rathinam Pillai. Rathinam Pillai had shown equal affection to
all his daughters and he spent for their eduction and after his death, the
second wife Rajeswari had developed contact with one Viputhi Veeramuthuswamy
and thereby, she eloped with him and also took away the first defendant along
with her and subsequently, the plaintiffs learnt that Rajeswari married
Viputhi Veeramuthuswamy and the two other daughters of the deceased Rathinam
Pillai, namely, defendants 2 and 3, were under the care and custody of their
aunt Palaniammal. Hence, Rajeswari as such is not entitled to any share in
her husband's properties on account of her above said conduct and as
misunderstandings had arisen between the parties and the plaintiffs finding
that it is no longer possible to be in the joint possession of the suit
properties and thereby demanded partition and separate possession and
inasmuch as the defendants did not come forward to effect amicable partition
of the same, according to the plaintiffs, they had been necessitated to lay
the suit for partition claiming their 2/5th share in the same. Further,
according to the plaintiffs, if the Court for any reason comes to the
conclusion that the marriage of Rathinam Pillai with Rajammal is not proved,
still she being kept as the exclusive mistress of the deceased Rathinam
Pillai, the plaintiffs should be treated as his illegitimate children and
thus, would be entitled to 1/4th share in the suit properties.
4. The averments contained in the written statement filed by the defendants 2
and 3 in brief are as follows:
4.1. The suit properties originally belonged to Murugapillai alias Rathinam
Pillai and it is correct to state that Rathinam Pillai died intestate on
24.11.1976. It is false to state that he had taken Rajammal as his wife when
he was alive and the plaintiffs were born through Rajammal out of the above
said alleged marriage between Rajammal and Rathinam Pillai and it is false to
state that Rajammal was all along living with Rathinam Pillai. The date of
marriage has not been given in the plaint for the reasons best known to the
plaintiffs. It is true that Rathinam Pillai had two sisters, namely,
Palaniammal and Sakunthala. It is false to state that Rathinam Pillai had
married Rajeswari, who is the daughter of Sakunthala, as his second wife, on
the other hand, Rajeswari was the only wife of Rathinam Pillai and out of the
said wedlock, the defendants were born to Rathinam Pillai and Rajeswari. The
plaintiffs are not the daughters of Rathinam Pillai and he expired on
24.11.1976. It is false to state that after his death, Rajeswari developed
contact with one Vibuthi Veeramuthuswamy and eloped with him and took the
first defendant along with her. It is true that she married Vibuthi
Veeramuthuswamy and leading a married life with him. It is false to state
that Rajeswari is not entitled to claim any share in suit properties. The
plaintiffs not being the legal heirs of the deceased Rathinam Pillai, they
cannot be deemed to be in joint possession of the suit properties and it is
false to state that the plaintiffs demanded partition of the suit properties
and the defendants failed to effect amicable partition. Rathinam Pillai
never married Rajammal and the same had also been described by Rathinam
Pillai in the settlement deed effected by him in favour of Rajammal and the
plaintiffs are, thus, not entitled to claim share in the suit properties as
the legal heirs of the deceased Rathinam Pillai and the Court fee paid is
incorrect and hence, the suit is liable to be dismissed.
5. On the basis of the pleadings set out by the respective parties, the
following issues were framed by the Trial Court:
i. Whether the plaintiffs are entitled to obtain the decree as prayed for
in the plaint?
ii. Whether the plaintiffs are the legal representatives of the deceased
Rathinam Pillai?
iii. Whether the suit is maintainable?
iv. Whether the Court fee paid by the plaintiffs is correct? and
v. To what relief the plaintiffs are entitled to?
6. In support of the plaintiffs' case, P.Ws.1 to 4 were examined and Exs.P1
to P17 were marked and on the side of the defendants' D.Ws.1 and 2 were
examined and Exs.D1 to D13 were marked.
7. On a consideration of the oral and documentary evidence adduced by the
respective parties, the Court below was pleased to dismiss the suit.
Challenging the same, the present appeal has been preferred.
8. Pending first appeal, the appellants have filed M.P.(MD) No.1 of 2011,
under Order XLI Rule 27 C.P.C., for reception of certain documents as
additional evidence in support of their case.
9. The averments contained in the affidavit appended to the said
miscellaneous petition are briefly stated as follows:
9.1. The appellants have preferred the appeal impugning the Judgment and
Decree of the Court below rendered in their suit for partition and separate
possession and according to them, they were unaware of the legal issues
involved in the suit and the school transfer certificate of the first
appellant got misplaced and thereby, she preferred a complaint to the S.I. of
Police, Uthamapalayam Police Station, who issued a non-traceable certificate
to her on 31.07.2011 and they are now able to get the four documents detailed
in the petition being marriage invitation card of the second appellant, birth
certificate of a female child born to Rajammal and Rathinam Pillai on
20.12.1970, school transfer certificate issued to the first appellant by
Mohamed Fathima Girls High School, Uthamapalayam and the certificate issued
by S.I.of Police, Uthamapalayam Police Station, which would clinchingly
establish the appellants / plaintiffs case that they are the legal heirs of
the deceased Rathinam Pillai and hence, according to them, the said documents
should be received as additional documents in this appeal and hence, the
miscellaneous petition.
10. The averments contained in the counter affidavit of the respondents 2 and
3 / defendants 2 and 3 to the said miscellaneous petition are briefly stated
as follows:
10.1. The said miscellaneous petition is not maintainable either in law or on
facts. The documents sought to be produced as additional documents cannot be
received in evidence as such. The alleged birth certificate of the second
appellant / second plaintiff shows that she was born in Madurai. However,
there is no pleading in the plaint that at any point of time, Rajammal and
the deceased Rathinam Pillai were residing in Madurai and further the said
document being obtained during the pendency of the appeal cannot be received
in evidence and it is not admissible in evidence. The marriage invitation
card of the second appellant / second plaintiff is inadmissible as in the
settlement deed marked as Ex.D1, it has been clearly averred by the deceased
Rathinam Pillai that the second plaintiff is the daughter of Rajammal and not
his daughter and hence, the said document is also inadmissible. Further, the
school transfer certificate of the first appellant / first plaintiff shows
the date of birth as 17.03.1962, whereas the school transfer certificate
already produced and marked as Ex.D11 shows her date of birth as 04.05.1962
and the name of her parents as Shanmugavel and Rajammal and further in Column
No.19, it is shown as the first appellant has studied 6th to 8th Standards
during the academic year 1973 ? 1974, which is unbelievable and hence, the
said document is also not genuine and inadmissible in evidence. Further, the
certificate issued by S.I.of Police, Uthamapalayam Police Station, is not
genuine and would not in any manner advance the case of the appellants /
plaintiffs and further inasmuch as the ingredients of Order XLI Rule 27
C.P.C., have not been complied with and the documents sought to be produced
are found to be in contravention of the pleadings and the evidence already
adduced, the above said miscellaneous petition is liable to be dismissed.
11. In addition to the above said miscellaneous petition, the appellants /
plaintiffs have also filed C.M.P.(MD) No.6506 of 2017 under the same
provision of law for reception of the marriage registration certificate of
the first appellant / first plaintiff as an additional document in support of
their case.

12. The averments contained in the affidavit appended to the said
miscellaneous petition are briefly stated as follows:
12.1. The petitioners / appellants have laid the first appeal impugning the
Judgment and Decree rendered by the Court below in the suit laid by them for
partition and separate possession. It is stated that the marriage of the
first appellant / first plaintiff was solemnized with P.W.4 at Arulmigu
Meenakshi Sundareswarar Temple, Madurai, on 21.01.1977 and the same was
registered, wherein her father's name was mentioned as M.R.P.Rathinam Pillai
and the name of the village was mentioned as Uthamapalayam and further, the
deceased Rathinam Pillai had put his signature in the marriage register and
the marriage registration certificate had come to the knowledge of the first
appellant / first plaintiff only recently and obtained the certificate of the
same from the Officer concerned and hence, the said document should be
received in evidence as additional document to substantiate her case and
hence, the petition.

13. The averments contained in the counter affidavit of the respondents 2 and
3 / defendants and 3 to the said miscellaneous petition are briefly stated as
follows:
13.1. The miscellaneous petition is not maintainable either in law or on
facts and as per the oral evidence tendered on the side of the plaintiffs,
the marriage of the first appellant / first plaintiff took place at
Thiruparankundram Temple, however, the present additional document sought to
be marked states that her marriage had taken place at Arulmigu Meenakshi
Sundareswarar Temple, Madurai, which goes to show the contradictions in the
case of the plaintiffs and further, the deceased Rathinam Pillai, who is
alleged to have signed in the marriage register for the marriage of the first
appellant / first plaintiff at Meenakshi Amman Temple, Madurai, which took
place on 21.01.1977, but the fact remains that Rathinam Pillai died on
24.11.1976 as averred in Paragraph No.4 of the plaint and hence, the
projected additional document is false and it is a forged document and not
admissible in evidence and further, the ingredients of Order XLI Rule 27 have
not been complied with and hence, the petition is liable to be rejected.
14. The following points arise for consideration in this first appeal:
i. Whether Rajammal is the legally wedded wife of the deceased Rathinam
Pillai?
ii. Whether the appellants / plaintiffs are the legal heirs of the deceased
Rathinam Pillai born to him out of the lawful wedlock with Rajammal?
iii. Whether the appellants / plaintiffs are entitled to claim partition and
separate possession of their respective shares in the suit properties as
claimed in the plaint?
iv. Whether Rajeswari is the legally wedded wife of the deceased Rathinam
Pillai and whether the respondents / defendants are the children of the
deceased Rathinam Pillai?
v. To what relief the appellants / plaintiffs are entitled to? and
vi. Whether the miscellaneous petitions in M.P.(MD) No.1 of 2011 and
C.M.P.(MD) No.6506 of 2017, under Order XLI Rule 27 C.P.C., are entitled for
acceptance?

POINT NOS.I TO IV:
15. The plaintiffs have laid the suit claiming partition and separate
possession in the suit properties on the footing that Rathinam Pillai married
their mother Rajammal and out of the said wedlock, they were born and thus,
they are the legal heirs of the deceased Rathinam Pillai, who died on
24.11.1976 and further, it is the case of the plaintiffs that Rathinam Pillai
had married one Rajeswari, who is none other than the daughter of his elder
sister, namely, Sakunthala, as his second wife and out of the said wedlock,
the defendants were born and thus, according to the plaintiffs, they and the
defendants are the children of the deceased Rathinam Pillai and thus, it is
the case of the plaintiffs that they are entitled to their respective shares
in the suit properties as the legal heirs of the deceased Rathinam Pillai and
hence, the suit for the above mentioned reliefs. The plaintiffs have also
taken a plea in the plaint itself that in case the Court holds that Rajammal
is not married to Rathinam Pillai and that she had been kept as the exclusive
mistress of the deceased Rathinam Pillai, the status of the plaintiffs shall
be treated as the illegitimate children of the deceased Rathinam Pillai and
thus, they are entitled to get their respective shares in the suit properties
and accordingly, the relief should be moulded in their favour.

16. The defendants have taken a specific defence that Rajammal is not the
legally wedded wife of the deceased Rathinam Pillai as projected by the
plaintiffs and at no point of time, Rajammal lived with Rathinam Pillai as
his wife and it is the further case of the defendants that the plaintiffs are
not the children born to Rathinam Pillai through Rajammal and the plaintiffs
are not the legal heirs of the deceased Rathinam Pillai. It is the further
case of the defendants that the deceased Rathinam Pillai married only
Rajeswari during his lifetime and out of the said wedlock, the defendants
were born to him and Rajeswari and thus, it is contended that it is only the
defendants, who are the legal heirs of the deceased Rathinam Pillai and
therefore, the plaintiffs cannot lay any claim or share in the suit
properties.
17. It is not in dispute that the suit properties belonged to the deceased
Rathinam Pillai. Originally, when the suit had come to be laid, the second
plaintiff, being a minor, it is found that Rajammal was shown as the mother
and guardian of the minor second plaintiff. It is therefore found that on
the date of laying of the suit, Rajammal was alive. Therefore, the immediate
question that arises for consideration is, if according to the plaintiffs
Rajammal is the legally wedded wife of the deceased Rathinam Pillai, then she
would also be entitled to claim her due share in the suit properties left
behind by the deceased Rathinam Pillai. However, it is found that only the
plaintiffs have chosen to lay the suit for partition and separate possession
leaving their mother away. This itself raises a suspicion as to whether
Rajammal is the legally wedded wife of the deceased Rathinam Pillai.
18. Be that as it may, though the plaintiffs in the plaint would claim that
the deceased Rathinam Pillai had married Rajammal, as put forth by the
defendants, it is strange that the plaintiffs have not whispered anything in
the plaint averments as to when the marriage between Rathinam Pillai and
Rajammal had taken place, the venue of the marriage and the persons, who had
attended the marriage etc. All that has been stated in the plaint is that
Rajammal was taken as the wife of Rathinam Pillai and through Rajammal, the
plaintiffs were born. As adverted above, the defendants have taken a
specific plea in the written statement that Rajammal is not the legally
wedded wife of the deceased Rathinam Pillai and that no marriage took place
between Rathinam Pillai and Rajammal as per law and further, they have also
taken a specific plea that the plaintiffs were not born to the deceased
Rathinam Pillai and Rajammal and hence, the plaintiffs are not the legal
heirs of the deceased Rathinam Pillai. Such being the defence projected by
the defendants, it could be seen, as rightly argued by the learned counsel
for the defendants 2 and 3, that the best person, who could throw light on
the factum of the marriage between Rathinam Pillai and Rajammal, would be
only Rajammal. If according to the plaintiffs Rajammal was the legally
wedded wife of the deceased Rathinam Pillai and if she is his first wife as
pleaded in the plaint, the defendants having repudiated the same in black and
white, it is for the plaintiffs to examine their mother Rajammal to establish
their case, but peculiarly, they have not chosen to examine Rajammal to
substantiate their case. This would only go to show as rightly determined by
the Court below that inasmuch as the plaintiffs' case that Rajammal married
Rathinam Pillai is not true and the plaintiffs were not born to Rathinam
Pillai through Rajammal, it is found that the plaintiffs though were in
possession of the best evidence, did not evince any interest to project the
same for the reasons best known to them. This further raises a strong
suspicion in the case projected by the plaintiffs.
19. The plaintiffs, in order to establish the factum of marriage between
Rajammal and the deceased Rathinam Pillai, have adduced oral evidence through
P.Ws.1 to 4. P.W.1 is the first plaintiff and as seen from the evidence
tendered by her during both chief as well as the cross-examination, as
rightly found the Court below, admittedly her evidence regarding the factum
of the marriage of Rajammal and Rathinam Pillai being only a hearsay evidence
and when further according to P.W.1, she had derived the knowledge of the
same only through her mother Rajammal, it is rightly held by the Court below,
the evidence of P.W.1 would not in any manner serve the case of the
plaintiffs. Therefore, it is found that the evidence of P.W.1 cannot be
taken into consideration for upholding the plaintiffs' case.
20. The next witness P.W.2 ? Rajangam would claim to have attended the
wedding reception of the marriage between Rajammal and Rathinam Pillai at
Uthamapalayam. It is, therefore, found that he had not attended the alleged
marriage between Rajammal and Rathinam Pillai. According to P.W.2, as seen
from his evidence that the marriage between Rajammal and Rathinam Pillai took
place during 1959 or 1960. However, based upon the above said oral evidence
of P.W.2, as rightly held by the Court below, we cannot safely conclude that
a valid marriage had taken place between Rajammal and Rathinam Pillai as
deposed by P.W.2 when the fact remains that he has not witnessed the
marriage. That apart, it is also found that P.W.2 was under the employment
of P.W.4 ? Manikandan, who is none other than the husband of P.W.1.
Therefore, it could be seen that the evidence of P.W.2 has to be accepted
only with the pinch of salt and cannot be relied upon straightaway to accept
the case of the plaintiffs.

21. P.W.3 ? Munusamy has also admitted that he has only heard about the
marriage, which took place between Rajammal and Rathinam Pillai. However,
according to him, he had attended the wedding reception, which took place at
the Karnam house at Uthamapalayam and on the basis of the above piece of
evidence, the plaintiffs have endeavoured to establish the factum of marriage
between Rajammal and the deceased Rathinam Pillai. However, as rightly found
by the Court below, his evidence cannot also be accepted as the same being in
the nature of the hearsay evidence. Further, P.W.3 has also admitted that he
is cultivating the lands of P.W.4 ? Manikandan on othi basis. Therefore, it
is found that P.W.3 is also an interested evidence and his evidence, without
any basis or material, cannot be relied upon to accept the plaintiffs' case.
22. From the evidence of P.Ws.2 and 3, it is found that the plaintiffs' case
is that the wedding reception of Rajammal and Rathinam Pillai took place at
the Karnam house, Uthamapalayam. As seen earlier, according to them, the
marriage took place during 1959 or 1960. In this connection, Manikandan, who
is the husband of P.W.1 and examined as P.W.4, has deposed that the marriage
between Rajammal and Rathinam Pillai took place at Srivilliputtur Krishnan
Temple in 1959 and further he has clearly admitted that Rathinam Pillai
married Rajarajeswari on 08.02.1962 and the marriage invitation card
pertaining to the said marriage is Ex.D6 and further, he has also admitted
that on the previous day i.e., on 07.02.1962, reception was held and the
above said function was conducted in Karnam house at Uthamapalayam. A
perusal of Ex.D6 coupled with the admission of P.W.4 would go to show that on
08.02.1962, the marriage between Rathinam Pillai and Rajarajeswari took place
in the newly constructed house of Rathinam Pillai at Uthamapalayam and it is
also found that on the same date, the housewarming ceremony of the newly
constructed house was also celebrated and in such view of the matter, when
the housewarming ceremony of the newly constructed house i.e., Karnam's house
at Uthamapalayam was celebrated only on 08.02.1962 along with the marriage of
Rathinam Pillai and Rajarajeswari, the case of the plaintiffs as spoken to
through P.Ws.2 and 3 that the wedding reception of Rathinam Pillai and
Rajammal took place in Karnam house at Uthamapalayam cannot be believed as
the Karnam house had been completely constructed only on 08.02.1962.
Therefore, the above aspect of the matter also throws a serious doubt in the
case projected by the plaintiffs that Rajammal had been taken as the wife of
Rathinam Pillai through a lawful wedlock. It is not out of place to mention
here that P.W.4 is none other than the brother of Rajarajeswari and
therefore, as rightly found by the Court below, P.W.4 is competent to depose
about the marriage of his sister Rajarajeswari with Rathinam Pillai and
therefore, it is found that through the evidence of P.W.4 and the document
marked as Ex.D6 i.e., wedding invitation card, the lawful marriage between
Rajarajeswari and Rathinam Pillai had been duly established. As regards the
evidence of P.W.4 with reference to the alleged marriage between Rajammal and
the deceased Rathinam Pillai, it could be seen that he is also not in the
know of things directly and in such view of the matter, his evidence cannot
also be relied upon to hold that there has been a valid marriage between
Rajammal and Rathinam Pillai.
23. In the light of the above said discussions, it is found that the case of
the plaintiffs that Rathinam Pillai had taken Rajammal as his first wife and
only thereafter, he married Rajeswari as the second wife is not true. On the
other hand, the oral evidence tendered by the plaintiffs to establish the
alleged marriage between Rajammal and the deceased Rathinam Pillai being of
the above nature, which could not be safely relied upon for the reasons
afore-stated and when there is no convincing material to hold that there has
been a valid lawful marriage between Rajammal and the deceased Rathinam
Pillai, it is found that the case of the plaintiffs as regards the above fact
cannot be upheld, particularly, solely based on the oral evidence of P.Ws.1
to 4.

24. The defendants have examined Rathinam Pillai's sister, namely,
Palaniammal as D.W.1. As rightly found by the Trial Court, D.W.1 being the
eldest person in the family, would be in the know of things about the marital
status of Rathinam Pillai, he being her brother, it is found that the
evidence of D.W.1 requires consideration in this matter. As seen from the
evidence of D.W.1, it is found that Rajammal and her husband, namely,
Shanmugavel were in the employment at the house of Rathinam Pillai and in
such circumstances, according to D.W.1, there has been an illegitimate
relationship between Rajammal and Rathinam Pillai and as the said issue had
cropped up at one point of time, according to D.W.1, Rajammal was taken by
her husband to her native place at Rajapalayam and therefore, it is found
from the evidence of D.W.1 that there has been some illegitimate connection
or relationship between Rajammal and Rathinam Pillai at that point of time
and the same had not developed into any valid marriage as such between them
and it is further found that Rajammal even at that point of time was married
to one Shanmugavel. Therefore, it is found that Rajammal being the legally
wedded wife of Shanmugavel and when it is further found that the plaintiffs
have miserably failed to establish the factum of marriage between Rajammal
and Rathinam Pillai as projected by them and when it is found that Rathinam
Pillai was having only illicit relationship with Rajammal, it is seen that
Rajammal at no point of time has been taken or treated as the wife of
Rathinam Pillai either by Rathinam Pillai or by the Society at large.
25. In this lis, the letters said to have been sent by Rajammal to Rathinam
Pillai have been marked as Exs.D8 to D10 and that the said letters are
written only by Rajammal has been admitted and her signatures in the said
letters had come to be marked as Exs.D3 to D5. Therefore, the Court below
has taken into consideration the contents of the above said letters to assess
the merits of the case at hand. It is not the case of the plaintiffs that
the above said letters have not been written by Rajammal. Further, to
controvert that the above said letters have not been written by Rajammal, the
plaintiffs have not chosen to examine their mother Rajammal with reference to
the same. Therefore, no fault could be attributed on the part of the Court
for relying upon the contents of the above said letters for determining the
issues involved in the matter. It is found from Ex.D8 that there is a clear
reference by Rajammal herself that her husband is only Shanmugavel and such
being the position, the case of the plaintiffs that Rajammal had married
Rathinam Pillai as such cannot be accepted in any manner. Further, as seen
from the contents of Ex.D10, it is found that only the illicit relationship
of Rajammal with Rathinam Pillai was adverted to and the said letter, dated
03.04.1963, would only probablize the case as spoken to by D.W.1 that during
the stay of Rajammal at Rathinam Pillai's house, when she was in employment,
there has been some illicit relationship between them and therefore, it is
found that the same had been adverted to by Rajammal in Ex.D10. Therefore,
the contents of Ex.D10 would also only improbablize the case of the
plaintiffs that she is the legally wedded wife of the deceased Rathinam
Pillai. That apart, the contents of Ex.D9 would go to show that following
the estrangement between the couples i.e., Rajammal and Shanmugavel, it is
found that Shanmugavel and his family members demanded the custody of the
first plaintiff from Rajammal and she had refused to accede to the request
stating that she cannot handover the custody of the first plaintiff, she
being the girl baby. From the contents of Ex.D9, it is found that the demand
for the custody of the first plaintiff was made by Shanmugavel and his family
members on the footing that the first plaintiff was born to Shanmugavel
through Rajammal. This piece of evidence would only go to show that inasmuch
as Rajammal was the wife of Shanmugavel and the first plaintiff was born to
them through the said wedlock, it is found that Shanmugavel as a matter of
right demanded the custody of the first plaintiff following the difference of
opinion between them. Therefore, the contents found in Exs.D8 to D10, which
had not been repudiated by Rajammal or by the plaintiffs as the case may be,
only go to establish the falsity of the plaintiffs' case that Rathinam Pillai
had married Rajammal and taken her as his wife and that the plaintiffs are
the children born to Rathinam Pillai through Rajammal.
26. In addition to that it is found that Rathinam Pillai had executed a
settlement deed in favour of Rajammal, which has come to be marked as Ex.D1
and on a perusal of the same, would only go to show that therein Rathinam
Pillai has only described Rajammal as his ?mgpkhd!;jphp? and not his wife as
such and further, he has described the plaintiffs in the said settlement deed
as only the daughters of Rajammal and not as his daughters. This also would
only strengthen the defence version put forth by the defendants that Rathinam
Pillai had never taken Rajammal as his wife at any point of time and further,
inasmuch as the plaintiffs were not born to Rathinam Pillai through Rajammal,
he has described the plaintiffs as the daughters of Rajammal and not as his
daughters. The above said averments contained in Ex.D1 cannot be repudiated
by the plaintiffs inasmuch as the plaintiffs thereafter along with their
mother had alienated the subject property under Ex.D2 and therefore, it is
found that through Ex.D1, the defendants have exposed the falsity of the
plaintiffs' case. That apart, on the same date of Ex.D1, Rathinam Pillai had
executed settlement deeds marked as Exs.D12 and D13 in favour of
Rajarajeswari and her children, namely, defendants, wherein he has clearly
described Rajarajeswari as his wife and the defendants as his children and
therefore, Rathinam Pillai being fully aware about the status of
Rajarajeswari and the defendants born to him through her has clearly spelt
out the said relationship in the above said documents and accordingly, he
also being aware of the status of Rajammal has clearly described her as his
?mgpkhd!;jphp? in Ex.D1. Therefore, the above documents marked as Exs.D1,
D12 and D13 cumulatively would only go to establish that Rajammal is not the
legally wedded wife of the deceased Rathinam Pillai and that the plaintiffs
were not born to the deceased Rathinam Pillai through Rajammal.
27. The marriage between Rajammal and Shanmugavel having come to be
established or in other words, Rajammal being the wife of Shanmugavel, which
fact having been admitted by Rajammal herself in Ex.D8 and when the said
marriage has not been annulled in the manner known to law, it is found that
as rightly determined by the Court below and also invoking Section 112 of the
Indian Evidence Act, inasmuch as it is only Rajammal and Shanmugavel, who had
been having access to each other during the continuance of their marriage, it
is found that even the second plaintiff born to Rajammal is only an offspring
through Shanmugavel and therefore, it cannot be held that the second
plaintiff was born to Rajammal through Rathinam Pillai without any basis or
material.
28. However, the plaintiffs have projected the transfer certificate of the
second plaintiff as Ex.P2 to show that Rathinam Pillai was the father of the
second plaintiff. However, a perusal of Ex.P2 would only go to show that the
second plaintiff therein has been described as Maheswari.R, thereby alone it
cannot be construed that the initial ?R? stands for Rathinam Pillai without
any material or hold. As rightly found by the Court below, ?R? may also
denote her mother Rajammal and therefore, by Ex.P2 alone it cannot be
construed that there bas been a valid marriage between Rajammal and Rathinam
Pillai as put forth by the plaintiffs and that the second plaintiff Maheswari
was born to Rathinam Pillai through Rajammal. Therefore, Ex.P2 would not in
any manner support of the plaintiffs' case. The marriage invitation card of
the first plaintiff with P.W.4 has been marked as Ex.P3 and this document is
relied upon by the plaintiffs on the footing that in the same, the deceased
Rathinam Pillai has been shown as the father of the first plaintiff. As
rightly found by the Court below, the said invitation card has come be
printed after the death of Rathinam Pillai and it has not been established as
to who had been instrumental in bringing the above said printing card.
Therefore, the mere reference of Rathinam Pillai as the father of the first
plaintiff in the invitation card marked as Ex.P3 after his death alone would
not in any manner lead to the conclusion that Rajammal had been taken as the
lawful wedded wife by the Rathinam Pillai and that the first plaintiff was
born out of the said wedlock. On the other hand, when it is found that
Shanmugavel is the husband of Rajammal and when it is not clear on what basis
the above said description had come to be incorporated in the invitation
card, it is found that the same cannot be the deciding factor for upholding
the plaintiffs' case.
29. The other document on which the plaintiffs have placed reliance is Ex.P8,
which is the proposal given to the Insurance Corporation by Rathinam Pillai
in respect of the first plaintiff. Merely on the basis of the same, when it
has not been established that the contents found in the same are mooted by
Rathinam Pillai and further when any further action has been initiated
thereupon, as rightly determined by the Court below, the same having not been
established to have emanated from deceased Rathinam Pillai, in my opinion,
the said document cannot be considered as a valid piece of evidence to accept
the plaintiffs' case.
30. On the other hand, it is seen from Ex.D11, the birth certificate of the
first plaintiff, which document is not in dispute, it is found that the first
plaintiff is stated to have been born on 03.05.1962 at Uthamapalayam South
Street and the name of the parents of the first plaintiff has been clearly
stated as Shanmugavel and Rajammal. Therefore, when it is found from Ex.D11
that the first plaintiff is shown to have been born only to Shanmugavel and
Rajammal, the whole case of the plaintiffs get belied on the above said
document also and therefore, the reference about Rathinam Pillai as the
father of the first plaintiff in Exs.P3 and P8 could not in any manner be
believed and equally, the reference of the second plaintiff as R.Maheswari in
Ex.P2 also would not serve any purpose to establish the plaintiffs' case.
Coupled with the facts that as discussed above, when Rajammal herself has
admitted that she is only the wife of Shanmugavel as seen from Ex.P8 and also
refused to handover the custody of the first plaintiff to Shanmugavel as
being the female daughter and when Rathinam Pillai himself has described
Rajammal only as his ?mgpkhd!;jphp? and the plaintiffs as the daughters of
Rajammal in Ex.D1, all these facts cumulatively would only go to establish
that there has been no marriage at all muchless a valid marriage between
Rajammal and the deceased Rathinam Pillai and consequently, it is found that
the plaintiffs are not the children born to Rathinam Pillai through Rajammal
out of the said wedlock.
31. In support of his contentions, the learned counsel for the plaintiffs
placed reliance upon the decisions reported in 2004-TLNJ-383 [V.V.Kannan and
another vs. K.Sridhar], 2008 (3) LW 471 [Chandrammal and others vs. S.Sankar
(died) and others], 2009 (3) CTC 760 [Balamani and another vs.
S.Balasundaram], 2009 (4) CTC 440 [K.V.Ramasamy vs. K.V.Raghavan and others],
2009 (9) SCC 52 [R.Mahalakshmi vs. A.V.Anantharaman and others] and 2010 (2)
CTC 622 [Kuppan vs. Muniammal and another]. Similarly, the learned counsel
for the defendants 2 and 3 placed reliance upon the decisions reported in
2008(1) MLJ 1253 (SC) [K.R.Mohan Reddy vs. Net Work INC.], 2017 (1) MWN(C)
225 [S.K.P.Subramaniam and another vs. S.K.Chinnarsaj (Deceased) and others],
2015 (4) LW 509 [Baby @ Rohini (Deceased) and others vs. Kamalam Kumerasan
and others], 1995 (1) LW 487 [K.Munuswami Gounder and another vs.
M.Govindaraju and others] and 1989 (2) LW 197 (DB) [Mohan and another vs.
Santha Bai Ammal and others]. The principles of the law outlined in the
above said decisions are taken into consideration and followed as applicable
to the facts and circumstances of the case at hand.
32. Considering the fact that the plaintiffs have miserably failed to
establish that there has been a valid marriage between Rajammal and Rathinam
Pillai and that the plaintiffs have been born out of the said wedlock or even
born to him through Rajammal illegally, it is found that the plaintiffs as
such are not entitled to claim any share in the suit properties even on the
footing that they are the illegitimate children of Rathinam Pillai and
accordingly, it is found that the plaintiffs are not entitled to invoke
Section 16(1) of the Hindu Marriage Act for claiming the limited reliefs as
prayed for in the plaint.
33. In the light of the above discussions, I hold that Rajammal is not the
legally wedded wife of the deceased Rathinam Pillai, I further hold that the
plaintiffs are not the children of the deceased Rathinam Pillai.
Consequently, I hold that the plaintiffs are not entitled to claim any
partition and separate possession of their respective shares in the suit
properties as prayed for. I further hold that Rajeswari is the legally
wedded wife of the deceased Rathinam Pillai and the defendants are the
children of the deceased Rathinam Pillai. Accordingly, Point Nos.I to IV are
answered against the plaintiffs and in favour of the defendants.
POINT NO.VI:
34. During the appeal proceedings, the plaintiffs have chosen to file two
miscellaneous petitions for the reception of additional evidence, under Order
XLI Rule 27 C.P.C., in order to substantiate their case. Under M.P.(MD) No.1
of 2011, they seek to produce four documents as additional evidence. As
regards the first document, namely, marriage invitation of the second
plaintiff dated 15.12.1985, as rightly argued by the learned counsel for the
defendants 2 and 3, the said document / invitation card has come into
existence after the death of Rathinam Pillai and therefore, it could be seen
that Rathinam Pillai cannot be construed as the author of the said document.
That apart when Rathinam Pillai has described the plaintiffs as the daughters
of Rajammal in Ex.D1, it is found that the above said document would not in
any manner advance the case of the plaintiffs and that apart no valid reason
has been adduced by the plaintiffs as to why they have not chosen to mark the
said document before the Court below.
35. The second document, namely, birth certificate, dated 28.07.2011, which
according to the plaintiffs would show that Rathinam Pillai was the father of
the female child mentioned therein through Rajammal, has come to be issued by
Madurai Corporation and when there is no plea in the plaint that at that
point of time, Rajammal was living as the wedded wife of Rathinam Pillai at
Madurai and on the other hand, when the evidence disclose as pointed out
earlier that Rajammal was the wife of Shanmugavel, it is found that the above
said document / birth certificate would also not in any manner be helpful to
sustain the case of the plaintiffs.
36. The third document, namely, the school transfer certificate projected by
the plaintiffs would only go to show that the date of birth of the first
plaintiff is 17.03.1962, whereas her birth certificate had also been marked
as Ex.D11, wherein her date of birth is shown as 04.05.1962 and her parents
are described as Shanmugavel and Rajammal. On the other hand, the projected
document shows that her date of birth is 17.03.1962 and described her father
as P.Rathinam and further it is also mentioned that during one academic year,
the first plaintiff had studied Standards VI to VIII. This also is found to
be against the pleadings already set out in the plaint and evidence of the
parties and hence, the same cannot be countenanced and no explanation
whatsoever is placed as to why the said document has not been marked in the
Court below.
37. The fourth document, namely, the certificate issued by the Police
Department regarding loss of transfer certificate. However, as rightly
argued by the learned counsel for the defendants 2 and 3, the said document
not shown to be established by the due authority as per law, by producing the
other connected documents, it is found that the said document also cannot be
accepted as additional document in support of the plaintiffs' case.
38. Through C.M.P.No.6506 of 2017, the plaintiffs are endeavouring to mark
the marriage certificate of the first plaintiff and P.W.4, which would only
go to that the marriage had taken place at Meenakshi Amman Temple, Madurai.
But, in the evidence deposed in the matter, the marriage is said to have been
taken place at Thirupparankundram Temple and therefore, on the face of it,
the said projected document is found to be unacceptable. That apart, when it
has been admitted in black and white in the plaint that Rathinam Pillai had
died on 24.11.1976, the case of the plaintiffs that Rathinam Pillai had
signed in the marriage register of the first plaintiff, which took place on
21.01.1977 also would expose the falsity of the document and therefore, as
rightly put forth by the learned counsel for the defendants 2 and 3, the said
document also does not merit acceptance for reception of the same as
additional evidence.
39. The above documents sought to be produced as additional evidence during
the course of this appeal are not marked during the original suit
proceedings. It has not been explained by the plaintiff properly as to why
the said documents had not been marked before the Court below. The case of
the plaintiffs that they had come to know about the said documents only
recently as such cannot be straightaway accepted. When the case of the
plaintiffs has been stoutly resisted by the defendants in all aspects, the
plaintiffs knowing about their status even at that point of time should have
endeavoured to mark all the documents in support of their case before the
Court below. On the other hand, failing to do and subsequently when their
case has been thrown out by the Trial Court and the plaintiffs now coming
forward with the plea that only recently they had come to know of the above
said documents and therefore, the same should be received as additional
evidence, cannot be accepted without any material to substantiate their case.
That apart, as rightly argued by the learned counsel for the defendants 2 and
3, when the above said documents are not referred to in the plaint and
further also not disclosed during the course of evidence tendered by the
plaintiffs one way or the other and on the other hand, when the documents
projected are found to be inconsistent with the pleadings set out in the
plaint and also the evidence adduced in the matter and further, when it is
found that the above said petitions for the reception of the additional
evidence also do not comply with the ingredients of Order XLI Rule 27 C.P.C.,
as rightly put forth by the learned counsel for the defendants 2 and 3, the
above said petitions preferred for the reception of the additional evidence
cannot be accepted and hence, they are dismissed. Accordingly, Point No.VI
is answered.
POINT NO.V:
40. In conclusion,
i. The Judgment and Decree, dated 27.09.2002, passed in O.S.No.66 of 1985,
on the file of the Sub Court, Periyakulam, are confirmed and resultantly, the
first appeal is dismissed with costs;
ii. M.P.(MD) No.1 of 2011 and C.M.P.(MD) No.6506 of 2017 are also
dismissed; and
iii. Consequently, the other connected M.P.(MD) No.1 of 2013 is closed.

To:
The Sub Judge,
Periyakulam.


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