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High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE SRINIVASAN & THE HONOURABLE MR. JUSTICE THANGAMANI
Subbaraya Pillai alias Subbaraya Manthiri & Another
Versus
Lakshmiammal & Others
Appeal No. 516 of 1983
Decided On :Decided on : 07-10-1993
HINDU LAW - PARTITION - ILLEGITIMATE SONS OF SUDRA FATHER - RIGHT TO SHARE - FATHER'S CHOICE - EXERCISE OF RIGHT - TIME - DIVISION IN STATUS - EFFECT - POWER OF FATHER TO GIVE EQUAL SHARE TO ILLEGITIMATE SONS - BONA FIDES - INEQUITY - PRELIMINARY DECREE - SETTING ASIDE - IMPLEADING ILLEGITIMATE SONS AS PARTIES - SUO MOTU POWERS OF COURT.
Fact of the Case:
The first defendant, who is the first appellant herein married the first plaintiff Lakshmi Ammal, his sisters daughter in about 1947, They had no issue till about 1954. According to him, she requested him to marry again and have children. He agreed to that request and married another sisters daughter Munirathnammal, who is the second appellant second defendant. No doubt, the first plaintiff, who is the first respondent herein, denies that she wanted her husband to marry again. According to her, there was no such marriage and all on a sudden, her husband brought Munirathnammal to his house and she quarrelled with him and went out of her husbands house. But, in her evidence, she admits that all the members of the family including the plaintiffs and the defendants were living together as one family till about a year and half prior to the filing of the suit.
Finding of the Court:
The evidence makes out that the second marriage was only with the consent of Lakshmi Ammal, the first plaintiff and not as pleaded by her. The first appellant executed a settlement deed Ex. B7 in the first instance on 2.6.1954 giving certain properties to the first plaintiff so that she could maintain herself in case the second wifes children neglect her. But she refused to accept the same as they were too small. He executed another settlement deed, Ex. B1 dated 5.7.1954 giving to her one half of Survey Number 226/4 of a total extent of 3.39 acres. Thus, she was given 1.69-1/2 acres. She was also given a part of another property adjacent to suit item No. 9. The remaining half of Survey No. 226/4 is item No. 1 in the plaint schedule. Little did they know the plans of the Lord at that time. As the great Vaishnavite Savant Sri Vedanta Desika said (Sri Paduka Sahasra Ch. XXVIII V. 6) (That The Lordss mind is inscrutable, is evident here. The first defendant got sons through both wives almost simultaneously. The first son of the first plaintiff was born on 18.10.1955. At about the same time, the first son of the second defendant was also born, though the exact date of birth is not known. The first son of the first plaintiff died very shortly thereafter. She got two other sons, who are plaintiffs 2 and 3, born in about 1960 and 1970 respectively. The second defendant begot two more sons. The sons of the second defendant are not impleaded as parties to these proceedings. It is the case of the plaintiffs that the marriage between the first defendant and second defendant was void in law.
Issues: 1. Whether the marriage between the first defendant and the second defendant was void in view of the provisions of the Madras Hindu (Bigamy Prevention and Divorce) Act No. 6 of 1949. 2. Whether items 1, 2 and 9 are the ancestral properties of the first defendant. 3. Whether items 3 to 8 are the self acquired properties of the first defendant 4. Whether the outstandings are subsisting and they should be divided. 5. Whether the debts mentioned by the first defendant are binding on the plaintiffs and without making any provision for payment of debts, the plaintiffs cannot have their share in the properties even if they are joint family properties. 6. Whether the suit is bad for partial partition as the other part of Survey Number 226/4 is not included in the plaint schedule. 7. Whether the suit is bad for non-joinder of parties. 8. Whether the plaintiffs are entitled to get a share as claimed in the plaint. 9. Whether the reliefs should be granted as prayed for in the plaint. Additional Issue: Whether the first plaintiffs eldest son died after the Hindu Succession Act 30 of 1956.
Ratio Decidendi: 1. The marriage between the first defendant and the second defendant is void in view of the provisions of the Madras Hindu (Bigamy Prevention and Divorce) Act No. 6 of 1949. 2. Items 1, 2 and 9 are the ancestral properties of the first defendant. 3. Items 3 to 8 are the self acquired properties of the first defendant. 4. Two outstandings are subsisting and they should be divided. 5. The debts mentioned by the first defendant are not binding on the plaintiffs and they can have their share in the properties even if they are joint family properties. 6. The suit is not bad for partial partition as the other part of Survey Number 226/4 is not included in the plaint schedule. 7. The suit is bad for non-joinder of parties. 8. The plaintiffs are entitled to get a share as claimed in the plaint. 9. The reliefs should be granted as prayed for in the plaint. Additional Issue: The first plaintiffs eldest son died after the Hindu Succession Act 30 of 1956.
Final Decision: The appeal is allowed on the above terms. The appellants will get their costs from the respondents.
SRINIVASAN, J.
1. The facts of this case remind us in a way of the story of Abram and Sarai in the old testament. Sarai was the wife of Abram, but she was barren. She requested her husband to have a child through her Egyptian handmaid Hagar. He complied with the request and got a son named Ishmael. But, with the blessings of God, Sarai begot a son by name Isaac. The Lord named Abram as Abraham and Sarai as Sarah. In the present case also, the first defendant, who is the first appellant herein married the first plaintiff Lakshmi Ammal, his sisters daughter in about 1947, They had no issue till about 1954. According to him, she requested him to marry again and have children. He agreed to that request and married another sisters daughter Munirathnammal, who is the second appellant second defendant. No doubt, the first plaintiff, who is the first respondent herein, denies that she wanted her husband to marry again. According to her, there was no such marriage and all on a sudden, her husband brought Munirathnammal to his house and she quarrelled with him and went out of her husbands house. But, in her evidence, she admits that all the members of the family including the plaintiffs and the defendants were living together as one family till about a year and half prior to the filing of the suit. The evidence makes out that the second marriage was only with the consent of Lakshmi Ammal, the first plaintiff and not as pleaded by her.
2. The first appellant executed a settlement deed Ex. B7 in the first instance on 2.6.1954 giving certain properties to the first plaintiff so that she could maintain herself in case the second wifes children neglect her. But she refused to accept the same as they were too small. He executed another settlement deed, Ex. B1 dated 5.7.1954 giving to her one half of Survey Number 226/4 of a total extent of 3.39 acres. Thus, she was given 1.69-1/2 acres. She was also given a part of another property adjacent to suit item No. 9. The remaining half of Survey No. 226/4 is item No. 1 in the plaint schedule.
3. Little did they know the plans of the Lord at that time. As the great Vaishnavite Savant Sri Vedanta Desika said (Sri Paduka Sahasra Ch. XXVIII V. 6) (That The Lordss mind is inscrutable, is evident here. The first defendant got sons through both wives almost simultaneously. The first son of the first plaintiff was born on 18.10.1955. At about the same time, the first son of the second defendant was also born, though the exact date of birth is not known. The first son of the first plaintiff died very shortly thereafter. She got two other sons, who are plaintiffs 2 and 3, born in about 1960 and 1970 respectively. The second defendant begot two more sons. The sons of the second defendant are not impleaded as parties to these proceedings. It is the case of the plaintiffs that the marriage between the first defendant and second defendant was void in law.
4. Till about 1978, there was no dispute between the parties and admittedly they were all living together as one family. Thereafter, quarrels arose which led to the filing of the present suit for partition and separate possession. The property which was given to the first plaintiff under the settlement Ex. B1 is not made subject matter of the suit. The remaining properties are shown in the schedule to the plaint. It is the case of the plaintiffs that all the properties are joint family properties in as much as items 1, 2 and 9 of plaint schedule are ancestral properties and items 3 to 8 are acquired with the ancestral nucleus. Schedule ‘B’ sets out outstandings due to the first defendant. The first plaintiff will be entitled to one half share in the property as her eldest son Rajendran died after the passing of the Hindu Succession Act. According to her, Rajendrans half share passed on to her as his only legal heir under the said Act. In the remaining half, which was owned by the first defendant, plaintiffs 2 and 3 had by birth 1/3rd share each. Thus, ac
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