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2014 Supreme(Mad) 3055
High Court of Judicature at Madras
PUSHPA SATHYANARAYANA, J.
Deenamma & Others
Versus
Lizia & Others
Second Appeal No. 1445 of 2007
Decided on: 09-09-2014
Advocate Appeared:
For the Appellants:Sarfudeen Ali Ahmed, Advocate.
For the Respondents:RR1 to R3, Pa. Kadirvel, Advocate, R4, No appearance.
Headnote:
Hindu Marriage Act - Section 11 - Hindu Succession Act, 1956 - Section 8 - Criminal Procedure Code - Section 125 – Civil Procedure Code - Section 100 - Permanent injunction - Legal Heirship Certificate - Employed as a Godown Clerk - First plaintiff is mother of deceased who was employed as a Godown Clerk in Government Central Press while second plaintiff is wife and the plaintiffs 3 to 6 are children - Second plaintiff claimed that she married according to Hindu rites and customs and begot plaintiffs 3 to 6 - While so according to plaintiffs first defendant who professes Christianity had relationship with deceased and gave birth to defendants 2 and 3 - According to second plaintiff wedding was celebrated as per Hindu rites and customs and he remained to be a Hindu till his death - While so first defendant filed under Section 125 of Code of Criminal Procedure against deceased for maintenance of herself and her two children and an Award was granted - After death plaintiffs claiming to be heirs of deceased approached Tahsildar Fort Taluk for issuance of Legal Heirship Certificate and obtained same - Based on Legal Heirship Certificate plaintiffs applied to employer of deceased for disbursement of amount due to estate of deceased – However authorities directed plaintiffs and defendants to get Legal Heirship Certificate from Court to claim amount - Plaintiffs further contended that body of deceased was buried in Burial Ground according to Hindu rites and customs as it was professed to which they belong and she also received funeral expenses from employer – Held, From above evidence it is clear that deceased only professing Christianity and he had married first defendant as well as second plaintiff in accordance with Christian rites and customs and marriages were solemnised only in Church - Even though plaintiffs have sought for relief of declaration that professed and belonged to Hindu Religion and succession to his estate is governed by provisions of Hindu Succession Act, 1956 it is pertinent to point out at this juncture that name of father of second plaintiff and therefore by any stretch of imagination it cannot be accepted that was practising Hindu customs and that his estate is to be inherited by heirs according to Hindu Succession Act - Documents which were relied on by appellants herein were filed before Lower Appellate Court - Same were not received and not taken to file - Counsel appearing for appellants pleaded that additional documents if received would show that deceased was a Hindu - There is no application to receive said documents filed before this Court - Therefore those documents cannot be looked into without following proper procedure known to law - As defendants have established beyond doubt that there was an earlier marriage subsisting at time of second marriage with second plaintiff and deceased was practising only Christianity claim of appellants/plaintiffs in absence of any material evidence independent of what was produced by defendants cannot be accepted - From foregoing discussion it is clear that plaintiffs have not established their claim and concurrent findings of Courts below are correct - It is a settled principle that scope for interference with concurrent finding of fact while exercising jurisdiction under Section 100 CPC is very limited - Re-appreciation of evidence is not permissible unless Courts below had misdirected themselves in appreciating facts or placed onus on wrong party - Courts below being final fact finding Courts it is not within domain of this Court to investigate grounds on which such findings were arrived at - In case on hand no question of law much less a substantial question of law arises for consideration – Appeal dismissed
1. The unsuccessful plaintiffs before the Courts below have projected the instant Second Appeal.
2. The plaintiffs/appellants herein filed O.S. No. 6064 of 1991 for declaration that late K. Shantha Rao professed and belonged to Hindu Religion and succession to his estate is governed by the provisions of Hindu Succession Act, 1956 and as such, they are entitled to succeed to the estate of the deceased and for permanent injunction restraining the defendants and their men from collecting the amount due to the estate of the deceased.
3. The first plaintiff is the mother of the deceased Shantha Rao, who was employed as a Godown Clerk in the Government Central Press, Madras while the second plaintiff is the wife and the plaintiffs 3 to 6 are the children of late Shantha Rao. The second plaintiff claimed that she married late Shantha Rao according to the Hindu rites and customs in the year 1974 and begot the plaintiffs 3 to 6. While so, according to the plaintiffs, the first defendant, who professes Christianity, had relationship with the deceased and gave birth to defendants 2 and 3. According to the second plaintiff, the wedding was celebrated as per the Hindu rites and customs and he remained to be a Hindu till his death. While so, the first defendant filed M.C. No. 2254 of 1976 under Section 125 of the Code of Criminal Procedure against the deceased for maintenance of herself and her two children and an Award of Rs. 75/-per month was granted in 1977. After the death of Shantha Rao, on 23.10.1988, the plaintiffs claiming to be the heirs of the deceased, approached the Tahsildar, Fort Tondiarpet Taluk, for issuance of Legal Heirship Certificate and obtained the same on 03.02.1989. Based on the Legal Heirship Certificate, the plaintiffs applied to the employer of the deceased for disbursement of the amount due to the estate of the deceased. However, the authorities directed the plaintiffs and defendants to get the Legal Heirship Certificate from the Court to claim the amount. The plaintiffs further contended that the body of the deceased was buried in the Kasimedu Burial Ground according to the Hindu rites and customs as it was professed by Adi-Andras to which they belong and she also received the funeral expenses from the employer. In the meanwhile, the defendants filed O.P. No. 29 of 1990 on the file of this Court for issuance of Succession Certificate. The further case of the plaintiffs is that though in the said petition, the first defendant claimed to have married the deceased on 20.3.1964 in Telugu Baptist Chruch, Chennai, and the marriage is alleged to be registered in the Office of the Registrar of Births and Deaths, the certificate of marriage is not acceptable to them. However, the Certificate was issued on 28.3.1990 against which O.S.A. No. 74 of 1991 was preferred and the same came to be allowed on 09.7.1991. Thereafter, Application Number 3714 of 1990 was heard and dismissed on 20.8.1991. Hence, the suit has been filed.
4. The defendants contested inter alia that the second plaintiff had not given any particulars about the date of marriage and the religion under which it was solemnised. According to the first defendant, she was married to the deceased Shantha Rao on 20.3.1964 in the Telugu Baptist Church, Washermenpet, Madras, and the marriage is also registered. The first defendant further contended that her marriage was in 1964 solemnised in Baptist Church in 1964 whereas the second plaintiff's claim that she was married to the said Shantha Rao in 1974 during the subsistence of the marriage can only be declared as void. The first defendant had further contended that when she was away for the delivery of the second child in 1974, late Shantha Rao had illegally married the second plaintiff. The defendants' further claim is that even the second marriage was performed only in the Christian manner in a Baptist Church at Jalathanki in Andhra Pradesh and the deceased professed only Christian religion till his death. Th
