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1984 Supreme(Mad) 326
High Court of Judicature at Madras
THE HONOURABLE MR. JUSTICE MOHAN & THE HONOURABLE MR. JUSTICE SWAMIKKANNU
Krishnaveni Ammal & Another
Versus
Premavathi & Others
App. No. 121 of 1978
Decided On :Decided on : 07-08-1984
T.R. Rajagopalan & T.R. Rajaraman for the 1st Applt.D.K. Srinivasagopalan for the 2nd Applt.
B. Rajagopalan for 1st Respt. S. Basil Philip for 2nd Respt. V.N. Krishna Rao for 3rd Respt. G.P. Krishnan, G.K. Selvarajan & C. Mani for 5th Respt.
A presumption of marriage arises in favor of wedlock where the partners have lived together for a long spell as husband and wife.
Headnote:
HINDU LAW - SUCCESSION - ADOPTION - WILL - MARRIAGE - PRESUMPTION - EVIDENCE ACT, S. 32(6).
Fact of the Case:
Plaintiff, the adopted daughter of Natesa Mudaliar, filed a suit for partition of the suit properties into two equal shares and for allotment of one such share to the plaintiff, for possession of the same and to direct the defendants to account for the profits from the plaint schedule properties. The defendants claimed that the plaintiff was not the adopted daughter of Natesa Mudaliar and that Natesa had executed a will in their favor. The second defendant claimed to be the legally wedded wife of Natesa Mudaliar.
Finding of the Court:
The court found that the plaintiff was not the adopted daughter of Natesa Mudaliar, that the will executed by Natesa Mudaliar was true and valid, and that the second defendant was the legally wedded wife of Natesa Mudaliar.
Issues: 1. Whether the plaintiff is the adopted daughter of Natesa Mudaliar? 2. Whether the will dated 22nd July, 1964 set up by the defendant is true and valid? 3. Whether the suit properties are available for partition as claimed by the plaintiff? 4. Whether the second defendant is the kept mistress of Natesa Mudaliar? 5. Whether the second defendant is a legally wedded wife of Natesa viudaliar entitled to a share in the suit properties? 6. Whether the suit is bad for the non-joinder of the parties mentioned in paragraph 21 of the written statement of the first defendant? 7. Whether the suit has not been properly valued for the purposes of Court-fees ? 8. Whether the plaintiff is entitled to the relief of accounting and mesne profits? 9. To what relief, if any the plaintiff is entitled?
Ratio Decidendi: 1. The court held that the plaintiff was not the adopted daughter of Natesa Mudaliar based on the evidence presented. 2. The court held that the will executed by Natesa Mudaliar was true and valid based on the evidence presented. 3. The court held that the suit properties were available for partition as claimed by the plaintiff since the will did not cover item 6. 4. The court held that the second defendant was the legally wedded wife of Natesa Mudaliar based on the evidence presented, including the presumption of marriage arising from cohabitation and repute. 5. The court held that the suit was not bad for non-joinder of necessary parties since all necessary parties had been impleaded.
Final Decision: The court dismissed the appeal and upheld the preliminary decree passed with reference to item No. 6.
MOHAN, J.
1. Defendants land 5 are the appellants before us in this appeal, which arises out of O.S. No. 221/69 on the file of the Court of the subordinate Judge of Vellore. The said suit was filed by the first respondent-plaintiff for partition of the suit properties into two equal shares and for allotment of one such share to the plaintiff, for possession of the same and to direct the defendants to account for the profits from the plaint schedule properties.
2. The averments in the plaint are short. The plaintiff is the adopted daughter of one late Natesa Mudaliar. The said Natesa Mudaliar died on 13th September, 1969 leaving behind htm his heirs, viz., the plaintiff, the adopted daughter of Natesa Mudaliar, and his widow, the first defendant. Both of them are entitled to an equal share in all the assets of late Natesa Mudaliar. Natesa Mudaliar was doing extensive business and he was also doing partnership business in printing press under the name and style o f Prabath Press and a film distributing business under the name and style of ‘Ambiga Pictures’ at Vellore. He had 34% share in the Prabath Press business and a half share in the said film business. He died intestate leaving behind him the plaintiff and the first defendant as his heirs. Natesa Mudaliar was a licensed drinker and he was not always in his senses. Natesa Mudaliar till the marriage of the plaintiff in 1966 did not leave any document disposing of his properties. But she has been intimated in the reply notices, dated 11th October, 1969 and 16th October, 1969 that Natesa bad executed a will in favour of the defendants. But the said will is a forgery and not a true document. It was not executed in a sound and disposing state of mind. The second defendant is not a heir entitled to inherit the estate of Natesa Mudaliar and she is not legally wedded wife of Natesa Mudaliar; but was only his kept mistress and hence she cannot be called as a heir in any sense. Since she was claiming some right to the estate of Natesa, second defendant has been impleaded as a party, so that there could be an effective adjudication. Natesa appeared to have insured his life for a sum of Rs. 1,000 and another sum of Rs. 10,000 and defendants 1 and 2 are the nominees. They are trying to take away the money. At the time of the marriage of the plaintiff, Natesa executed a registered deed of adoption dated 28th July, 1965, (Ex. A1) acknowledging the fact that the plaintiff is the adopted daughter. In fact, it was Natesa along with the first defendant, who performed the marriage of the plaintiff. The third defendant claims to be a creditor of late Natesa Mudaliar and is trying to draw the insurance premium which had been matured. Defendants 4 and 5 also lay a claim to a portion of the estate of late Natesa Mudaliar under the forged will. Therefore they have been impleaded as defendants to the suit. In items 1 and 2 of the plaint schedule, the seventh defendant as a partner along with Natesa claimed that he was in possession and enjoyment of the share of Natesa in respect of those two items and he appeared to have made some compromise or arrangement with defendants 1 and 4 and the deceased second defendant, which is not valid and binding on the plaintiff. When a partition was demanded under Ex. A4 dated 19th September, 1969, the request was not acceded. Hence, the suit.
3. In the written statement of the first defendant, the adoption of the plaintiff was denied. It is equally denied that there was any deed of adoption as claimed by the plaintiff. No doubt, Natesa Mudaliar performed the marriage of the plaintiff, but it is out of charity and not on account of any relationship Natesa had executed a registered will on 22nd July, 1964 (Ex. B1) in a sound and disposing state of mind. He had bequeathed his properties to the extent of 37 paise in a rupee to the first defendant with a gift over of the same in favour of her brother Subramanian, another 37 paise in a rupee to the second defen
