Back
Madras High Court
GOKULAKRISHNAN
V.S.Subba Reddiar - Appellant
Versus
Seetharaman - Respondent
Decided On : 09/02/1971
CUSTOM - MARRIAGE - VALIDITY - RES JUDICATA - SUIT FOR DECLARATION OF LEGITIMACY AND POSSESSION OF PROPERTY - CUSTOMARY MARRIAGE BETWEEN MOTHER'S FATHER'S BROTHER'S DAUGHTER AND SON - VALIDITY - PROOF - RES JUDICATA - APPLICABILITY - JUDGMENT IN PRIOR SUIT LEAVING OPEN QUESTION OF CUSTOM - SUBSEQUENT SUIT FOR DECLARATION OF LEGITIMACY AND POSSESSION - MAINTAINABILITY.
Fact of the Case:
The plaintiffs filed a suit for declaration that they are the legitimate children of the second defendant and Punnayammal and for permanent injunction restraining the defendants from interfering with the possession and enjoyment of the plaintiff's of the properties mentioned in the schedule to the plaint, which were allotted to their share in pursuance of the final decree proceedings in O.S. No.42 of 1945. on the file of Sub Court, Tuticorin, or, in the alternative, for recovery of possession of the properties from the defendants. The second defendant herein, who was the first defendant in O.S. No.42 of 1945, never denied that the plaintiffs were not born to him. In the year 1956, the third defendant filed O.S. No.168 of 1956, on the file of the Court of the District Munsif of Kovilpatti, for declaration that properties mentioned in the plaint schedule in that suit were in her possession and for an injunction restraining the present plaintiff from interfering with her enjoyment of the same. It was alleged in the said suit O.S. No.168 of 1956, that the mother of the plaintiffs. Punnayammal, was ten years older to her husband, that her husband being the son of her first cousin was within the prohibited degree of relationship for marriage and that she was associated with one Subba Reddiar and all the plaintiffs were born to him only.
Finding of the Court:
The trial Court found that the custom alleged by the plaintiffs was true and valid, having the force of law and binding on the parties, that the marriage between Punnayammal and the second defendant was legal and valid, that the plaintiff's were the sons of the second defendant, that the plaintiffs were estopped from raising other pleas in the present suit excepting that of the existence of the custom alleged on the principle of res judicata, that the plaintiffs were not in possession of the suit properties, that the relief of possession claimed by the plaintiffs was not barred by Section 47. Civil P.C. and that the preliminary and final decrees in O.S. No.42 of 1945 did not operate as res judicata in the present claim. The suit was decreed, therefore, by the trial court for declaration and possession as prayed for. Aggrieved by the decree and Judgment of the trial Court, the respondents herein preferred the first appeal to the Court of the Subordinate Judge, Tuticorin, in A.S. No.125 of 1965. The lower appellate Court reversed the judgment and decree of the trial Court and found that the suit was barred by res judicata by reason of the decision of the High Court in S.A. No.1445 of 3959 (Mad) and that the plaintiffs are estopped from raising the pleas other than the relief relating to the question of the existence and validity of the alleged custom. The lower appellate Court has also held that the second defendant was not old enough to be able to procreate when the plaintiffs were born and as such the plaintiff's are not the sons of the second defendant and Punnayammal. On the question as to whether the proceedings in O.S. No.42 of 1945 would operate as res judicata as far as the contentions of the defendants were concerned, the lower appellate Court answered it in the negative. The lower appellate Court has also held that the present suit so far as possession was concerned was barred by Section 47, Civil P.C. and that the question as to whether the execution of the decree in O.S. No.42 of 1945 has become barred by limitation did not arise in this suit. Nevertheless, the lower appellate Court, on an elaborate discussion of the materials and evidence on record, came to the conclusion that "marriages of persons with their mothers' sisters or with the daughters of the brothers of the mothers' fathers have taken place and the same have been customary among the members of the community concerned in the suit and also approved and recognised by the community as lawful". On these findings, the lower appellate Court held that custom pleaded as proved.
Issues: None
Ratio Decidendi: The judgment under Ex.A-4 is clear to the effect that the decision arrived at thereunder is not a 'final' one, but 'subject to' the decision in the present suit. Section 11, Civil P.C. or Explanation IV to S.11 will never come in the way or be a bar to the present suit, inasmuch as I am of the view that the judgment under Ex.A-4 is clear to the effect that the decision arrived at thereunder is not a 'final' one, but 'subject to' the decision in the present suit.
Final Decision: Appeal allowed.
JUDGMENT:- The plaintiff's are the appellants.
2. The suit was for declaration that the plaintiffs are the legitimate children of the second defendant and Punnayammal and for permanent injunction restraining the defendants from interfering with the possession and enjoyment of the plaintiff's of the properties mentioned in the schedule to the plaint, which were allotted to their share in pursuance of the final decree proceedings in O.S. No.42 of 1945. on the file of Sub Court, Tuticorin, or, in the alternative, for recovery of possession of the properties from the defendants.
3. The facts were: The plaintiffs are the children of one Punnayammal. Punnayammal is the wife of the second defendant. The third defendant, though she alleges that she is the lawfully wedded wife of the second defendant, is not the legitimate wife of the second defendant and hence the first defendant is not the legitimate son of second defendant There was litigation in O.S. No.42 of 1945, on the file of the trial Court, for partition. Since the plaintiff's thought that the second defendant herein was acting against their interests by associating himself with the third defendant and purchasing properties in her name, the said suit ended in favour of the plaintiffs and a final decree was passed on 17-12-1955. From 17-12-1955, the plaintiffs have been in possession of the suit properties in their own right. The second defendant herein, who was the first defendant in O.S. No.42 of 1945, never denied that the plaintiffs were not born to him. In the year 1956, the third defendant filed O.S. No.168 of 1956, on the file of the Court of the District Munsif of Kovilpatti, for declaration that properties mentioned in the plaint schedule in that suit were in her possession and for an injunction restraining the present plaintiff from interfering with her enjoyment of the same. It was alleged in the said suit O.S. No.168 of 1956, that the mother of the plaintiffs. Punnayammal, was ten years older to her husband, that her husband being the son of her first cousin was within the prohibited degree of relationship for marriage and that she was associated with one Subba Reddiar and all the plaintiffs were born to him only. The plaintiffs herein alleged in the present suit that the third defendant falsely alleged in O.S. No.168 of 1956 that the plaintiffs herein were not in possession of the suit properties in spite of the final decree in the partition suit. O.S. No.42 of 1955. The second defendant herein remained ex parte in that case and did not file any written statement. The plaintiffs herein further alleged in the present suit that even assuming that the relationship between Punnayammal and the second defendant was within the prohibited degree for marriage, according to the Hindu Law Texts and Sastras, the marriage between Punnayammal and the second defendant could not be questioned, as there was an ancient custom in the community of Reddis permitting such marriage and even the marriage of a person to his mother's sister. The plaintiffs as defendants in O.S. No.168 of 1956 succeeded in that suit as well as in the appeal. The plaintiff's in that suit filed S.A. No.1445 of 1959 before this Court. This Court found that the evidence regarding custom was meagre and unsatisfactory
and allowed the second appeal with a reservation that the respondents in the appeal (plaintiffs herein) would be entitled to establish the custom and legality of the marriage of their parents by a comprehensive suit and by letting in adequate evidence relating to the ancient character and reasonableness of the same in a properly instituted declaratory suit for that purpose.
4. In the present suit the plaintiffs pleaded the custom which permitted their mother's marriage with the second defendant. She is the mother's father's brother's daughter of the second defendant. According to Hindu Law, he is in the prohibited degree, but. nevertheless the custom in the Reddi community of Tirunelveli Distri
AI
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
