KANAGAVALLI Vs. SAROJA

JUDGEMENT

(1.) The substantial question of law that arises in the second appeal is with regard to the application of S.16 of the Hindu Marriage Act, 1955 to the appellants 2 to 5 herein and the construction of documents for deciding the paternity of these appellants. The appellants case is that they are the legal heirs of one Natarajan. This Natarajan was originally married to the 1st respondent herein. The 2nd respondent is their son. The 3rd respondent is the mother of Natarajan. The relationship between the said Natararjan and the 1st respondent was not good and she was living separately and even after natarajan obtained a decree for restitution of conjugal rights, there was no reunion between the two. Subsequently, the 1st appellant claims to have married the said Natarajan in 1976 and the appellants 2 to 5 were born to them. Natarajan was working in Cholan Roadways Corporation when he died on 24-2-1993. Therefore, the suit was filed for a declaration that the appellants are the legal heirs of the said Natarajan along with respondents 1 to 3, entitled to the amounts due from Cholan Roadways Corporation and consequential injunction restraining the respondent 4 from paying this amount to respondents 1 to 3. The trial Court dismissed the suit as regards the claim of the 1st appellant herein, but declared that the appellants 2 to 5 are the heirs of the said Natarajan. Against this, the respondents 1 and 2 filed an appeal and the appeal was allowed. Aggrieved by this, the present Second Appeal has been filed.

(2.) Mr. Dhanapalan, learned counsel for the appellants argued that the evidence on record spoke of the continuous cohabitation between Natrajan and the 1st appellant and therefore, the Court below ought to have held that the appellants 2 to 5 were children born out of the union of Natarajan and the 1st appellant. He submitted that there is the evidence of P.W.2 to the effect that Natarajan and the 1st appellant were married and even assuming without admitting that their marriage was not valid, the children would be entitled to the estate of their father. He referred to the various exhibits which are exhibits P1 to P10 which are the free family pass, the form filed by the deceased Natarajan in the office of the transport Corporation, the application form for admitting appellants 2 to 5 in school etc. All these would show that all along as far as the appellants 2 to 5 were concerned, there are records to show that the deceased Natarajan called himself their father and in the absence of any evidence to the contrary, their rights should not be denied to them. He referred to (1983) 2 Mad LJ 445 : (AIR 1984 Madras 270) Margabandhu v. Kothandarama Mandhiri, (2000) 2 SCC 431 : (AIR 2000 SC 735), Rameshwari Devi v. State of Bihar and AIR 1992 SC 756 paragraph 3 (S.P.S. Balasubramanyam v. Suruttayan to support his case that the children born even of a void marriage are deemed to be legitimate. In particular, he pointed out to the following paragraph in the trial Court judgment which would show that the respondents had admitted that appellants 2 to 5 are the heirs of Natarajan. (Vernacular matter omitted) Therefore, in the face of admission by the parties themselves, it was not open to the appellate Court to reverse the trial Court's decree.

(3.) Mr. Sankaravadivel, learned counsel for the respondents, on the other hand pointedly denied that there was any such admission by the respondents regarding the paternity of appellants 2 to 5. In particular, he submitted that it was their case in the written statement that the 1st appellant had a liaison with one Veeragavan and it was while she was pregnant with his child, that she came in touch with Natarajan. Therefore, according to the learned counsel, the 2nd appellant was definitely not the son of Natarajan and therefore, nor entitled to such a declaration. As regrards the appellants also, he would submit that there is no satisfactory proof that they were born to the 1st appellant and deceased Natarajan.