RAJAM Vs. CHIDAMBARAVADIVU

JUDGEMENT

(1.) THE unsuccessful plaintiffs before the Sub Court, Tuticorin are the appellants herein. THE plaintiffs filed the suit for partition of 42/96 share and mesne profits. THE brief facts which are necessary for the disposal of this appeal are as follows.

(2.) THE first plaintiff claims to be the wife of late Muthukrishna Pillai. According to her, he died on 12.11.86 leaving behind him, the plaintiffs 2 to 6 and the children of the first respondent as his heirs to succeed to the properties mentioned in the schedule. THE case of the respondents before the Sub Court was that the first plaintiff was not the wife of late Muthukrishna Pillai and the plaintiffs 2 to 6 were not born out of lawful wedlock; that the late Muthukrishna Pillai was not living with her as husband and wife and that the late Muthukrishna Pillai had already partitioned the entire suit properties among himself and his sons by partition deed dated 29.1.81 and therefore, the suit was not maintainable. THE other written statements of the respondents are not relevant for the disposal of this appeal and hence, they are not referred to. On the above pleadings, the learned Subordinate Judge, Tuticorin framed nine issues, marked Exhibits A-1 to A-24, B-1 to B-5 and after considering the oral evidence of P.W.1 and D.W.1, held that the first plaintiff was not the legally wedded wife of Muthukrishna Pillai and the children born to them are not legitimate and consequently, dismissed the suit.

(3.) IN " K. Munuswami Gounder and another v. M. Govindaraju and 4 others (1995 (1) L.W. 487)", another Division Bench of this Court, following the decision in " Chellammal v. Ranganatham Pillai (1911 (I) ILR 34 Madras 277" which was to the effect that the fact that a woman was living under the control and protection of a man who generally lived with her and acknowledged her children as his, will raise a strong presumption that she is the wife of that man, held that however, this presumption was rebuttable by proof of facts which show that no marriage could have taken place. The Division Bench further held that when once the factum of marriage is not proved, it has to be treated as a case of no marriage and therefore. Section 16(1) of the Hindu Marriage Act is not attracted and the children born out of such marriage cannot get the benefit of Section 16(1) of the Hindu Marriage Act. Another Division Bench of this Court in " Ponnamma v. Kumara Pillai and two others (1972 (I) MLJ 364 = 85 L.W. 29)" held that circumstances will preclude the possibility of invoking presumption of a legal marriage between the parties and in that case, the appellant was a kudipravarthi woman whose status corresponds to that of Dasis in Tamil Nadu. The facts in this case are somewhat similar to that case which preclude us from invoking the presumption of a legal marriage considering the fact in which the first appellant was born and in the absence of any acceptable oral and documentary evidence. On the other hand, there is one clinching and crucial evidence let in by the respondents in the form of Ex.B-1, lawyers notice issued on behalf of the first appellant as against her own mother. IN that notice, the counsel for first appellant states on her behalf that she is not the wife of late Muthukrishna Pillai and that the counsel categorically asserts on her behalf that no marriage in any of the accepted forms known to Hindu Law or Sastras was gone through by his client and that she belonged to Devadasi community and succession of property is determined by law and custom applicable to that community. On this assertion, the first appellant went for a trial in the suit in O.S. No. 67 of 1963 on the file of the District Munsif Court, Tuticorin wherein her mother filed a suit for declaration of title to the suit property and for recovery of possession thereof with future profits. The first appellant contested the suit contending that she was entitled to the possession of the suit property as a owner. The suit was decreed and the first appellant filed an appeal before the Sub Court, Tuticorin in A.S. No. 103 of 1964, a copy of which was marked as Ex.B-4. IN that judgment, it is observed that the evidence of D.W.3 cannot be discredited merely on the ground that it was suggested to him that he was related to Muthukrishna Pillai who is alleged to be the husband of the defendant. The learned Judge observed in paragraph 15 that it is unthinkable that Vellammal (plaintiff/mother) could have lived with the defendant (first appellant herein) when the defendant was living with Muthukrishna Pillai, much to the dislike of Vellammal. The learned Judge also observed that Ex.A-1 dated 25.4.47 which is an application made by the defendant for admission to the training school where the name and address of the guardian is shown as "Velammal, 75-G East Car Street" cannot by itself be sufficient to discredit the case that the defendant was living in the suit house and not with Velammal, if the same is fou nd to be true on other evidence on record. From Ex.B-5, ration card, the first appellant was shown as the head of the family. The fact which is not disputed is that the first appellant was living separately whereas, Muthukrishna Pillai was living with his wife and children independently in the same town. Therefore, in the light of the first appellant's own assertion that there was no factum of marriage between Muthukrishna Pillai and the first appellant and that she belonged to "Devadasi" community coupled with separate living of Muthukrishna Pillai with his wife and children goes to show that even assuming, for the sake of arguments, the children were born to Muthukrishna Pillai, they were not living as husband and wife. Hence, we fully concur with the view of the Court below that there was no marriage at all and that they were not living as husband and wife and that too in the absence of proof of long cohabitation.