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IN THE HIGH COURT OF JUDICATURE AT MADRAS
G. JAYACHANDRAN, J.
Chinnamuniamma – Appellant
Versus
Pattammal (Deceased) – Respondent
Second Appeal No. 162 of 1998
Decided On : 09-08-2017
Indian Penal Code,1860 – Section 494,495,497 and 478 -Indian Divorce Act,1869 – Indian Evidence Act – Section 90,67 ,78 and 91 – Hindu Marriage Act,1955 - Defendants in suit are appellants in this second appea - Suit was laid by plaintiffs on premise that first plaintiff is the first wife and the second plaintiff is the daughter born through said wedlock - Since, both had no male issues, they adopted the third plaintiff as their son - Later, married the first defendant - Through whom, he begotten, one son and one daughter - After death of plaintiffs were driven out of the joint family residence and hence, notice was issued seeking partition - Thereafter, a panchayat was held in the presence of elders wherein, defendants agreed to give the share to the plaintiffs - As agreed, for few years, during the time of Ugadhi, they were sharing the yield from the property with the plaintiffs but, not given any share in the property as agreed. - When the defendants tried to alienate the property to the 6th defendant, it was questioned by the plaintiffs. Thereafter, the defendants stopped sharing, even the yield from the joint family property with the plaintiffs. Hence, the suit for partition – Held, Learned Judge of High Court in the decision held that there is no evidence as to the factum of marriage and the mere fact that the alleged wife was described as a wife in some of the documents ranging did not establish that she is the lawfully wedded wife of one and refused to invoke the presumption of marriage on the facts of that case. second marriage cannot be presumed from long cohabitation and repute, as such a marriage cannot be recognised in law - In our opinion mere fact that there was an earlier marriage subsisting in this case, it cannot be considered sufficient to rebut the presumption of a marriage arising out of long cohabitation and repute - Therefore, when there is no evidence to show long cohabitation and when there is no evidence to show second plaintiff born to except self serving documents and self serving testimony of interested persons, a presumption which is rebuttable cannot be drawn - In this case, the recitals found are not proved - Therefore, through these documents, a presumption of paternity or long cohabitation cannot be drawn - In view of the foregoing discussions, the judgment and decree passed by the First Appellate Court is liable to be set aside and substantial questions of law framed in this second appeal are answered in favour of appellants - In result, second appeal is allowed and decree and judgment passed by first Appellate Court is set aside and the decree and judgment passed by the trial Court is restored – Order accordingly.
1. The defendants in the suit are the appellants in this second appeal. The suit was laid by the plaintiffs on the premise that the first plaintiff-Chennamma is the first wife of Muniveerappa and the second plaintiff is the daughter born through the said wedlock. Since, Muniveerappa and Chennamma had no male issues, they adopted the third plaintiff-Krishnappa as their son. Later, Muniveerappa, married the first defendant- Chinnamuniamma. Through whom, he begotten, one son Ramachandrappa and one daughter Seethamma.
2. After the death of Muniveerappa, the plaintiffs were driven out of the joint family residence and hence, notice was issued on 24.05.1974 seeking partition. Thereafter, a panchayat was held in the presence of elders wherein, the defendants agreed to give the share to the plaintiffs. As agreed, for few years, during the time of Ugadhi, they were sharing the yield from the property with the plaintiffs but, not given any share in the property as agreed. When the defendants tried to alienate the property to the 6th defendant, it was questioned by the plaintiffs. Thereafter, the defendants stopped sharing, even the yield from the joint family property with the plaintiffs. Hence, the suit for partition.
3. The defendants resisted the plaint on the ground that the first plaintiff is not the first wife of Muniveerappa. The plaintiffs are nowhere related to Muniveerappa. The first defendant Chinnamuniamma, is one and only wife of Muniveerappa and the second defendant is their son. The third, fourth and fifth defendants are the legal representatives of Seethamma daughter of Muniveerappa.
4. According to the defendants, the plaintiffs never been in joint possession and enjoyment of the property. They have no right or title over the suit property as claimed by them. The alleged marriage between the first plaintiff and Muniveerappa is denied as false. The alleged adoption of the third plaintiff by Muniveerappa is false. Hence, the plaintiffs are not entitled for any relief.
5. Based on the pleadings of the rival parties, the trial Court framed the following issues:-
1. Among the parties, in case the suit properties divided into 18 equal share and out of which, whether the plaintiffs are entitled for 9 equal shares?
2. Whether the plaintiffs are entitled to claim 9/18 share over the suit properties?
3. Whether the first plaintiff is the first wife of Muniveerappa? Whether the second plaintiff born to them and whether Muniveerappa adopted the third plaintiff?
4. Whether, the plaintiffs are entitled to claim right over the suit properties and the suit filed by them is maintainable?
5. Whether the adoption of the third plaintiff by Muniveerappa as claimed by the plaintiffs is true or not and if it is true whether the same is valid or not?
6. Whether notice dated 24.05.1974 is true or not?
7. Whether the Sale deed dated 16.04.1971 executed by the second defendant is true or not?
8. Whether the suit is barred in view of O.S. No. 350/1988 pending in respect of the suit property?
9. Whether the sale made by the defendants 1 & 2 in favour of 6th defendant is true and valid?
10. What other reliefs the plaintiffs are entitled to?
6. On behalf of the plaintiffs, five witnesses were examined and seven documents were marked. On behalf of the defendants, the second defendant was examined as DW-1 and six exhibits were marked.
7. The trial Court after appreciating the evidence found that the plaintiffs have not proved the adoption of third plaintiff by Muniveerappa and also found that the plaintiffs have not proved that the first plaintiff is the first wife of Muniveerappa and the second plaintiff is the daughter born through the said wedlock. Therefore, while dismissing the suit, the trial Court found no fault in alienating the property by the second defendant in favour of the 6th defendant which, the second defendant has in his name purchased out of his personal income independently on 16.04.1971.
8. On appeal, the First Appellate Court, re-apprecia
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