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2023 Supreme(Mad) 32
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
S. SOUNTHAR, J.
Subban and Anr. – Appellants
Versus
Nallamuthu Ambalam(died), Rengarajan and Ors. – Respondents
S.A. No.437 Of 2001
Decided On : 06-02-2023
For the Appellants : Ms. Parkavi for Mr. N.C. Ashok Kumar.
For the Respondents: Ms. R. Jegatheeswari for Mr. K. Marimuthu, Mr. G. Thandayuthapani.
Headnote:
Civil Procedure Code, 1908 - Section 100 - Second Appeal - Confirming the judgment - Plaintiffs in suit are appellants - Suit is for partition and same was dismissed by trial Court - Aggrieved by same, plaintiffs have filed an appeal in A.S. and findings of trial Court was confirmed by first appellate Court - Held, Court finds no perversity in above said findings of Courts below to exercise jurisdiction under Section 100 of Civil Procedure Code - Apart from that, judgment relied on by learned counsel for appellants would not help appellants in any way - Even assuming that long cohabitation between Periyammal and first respondent has been proved by appellants, long cohabitation would only give raise to a presumption of marriage between Periyammal and the first respondent - As far as this case is concerned, in view of admitted fact that Kannamal is the legally wedded wife of first respondent, unless appellants are able to establish that marriage of periyammal with first respondent had taken place prior to his marriage, appellants cannot claim themselves as legitimate children of the first respondent and claim share in ancestral properties of first respondent - Therefore, looking at any angle, findings of Courts below that appellants failed to make out a case for partition is correct and hence, Second Appeal is devoid of merits - Second Appeal dismissed.
JUDGMENT :
[PRAYER: Second Appeal filed under Section 100 of Civil Procedure Code against the judgment and decree made in A.S.No.82 of 1999, dated 10.10.2000, on the file of the Principal District Judge, Pudukkottai, confirming the judgment and decree made in O.S.No. 153 of 1993, dated 21.07.1998, on the file of the District Munsif Court, Sivakasi.]
1. The plaintiffs in the suit are the appellants. The suit is for partition and the same was dismissed by the trial Court.Aggrieved by the same, the plaintiffs have filed an appeal in A.S.No.82 of 1999 and the findings of the trial Court was confirmed by the first appellate Court. Aggrieved by the findings of the first appellate Court, the plaintiffs have filed the present Second appeal before this Court.
2. According to the appellants, the suit properties are ancestral properties of the first respondent-Nallamuthu Ambalam. It was claimed by the appellants that they are the sons of the first respondent through his first wife namely, Periyammal. The other respondents are the children of the first respondent through his second wife, namely, Kannammal. On these pleadings, the appellants claim 1/5th share in the suit property and laid a suit for partition.
3. The respondents have filed a written statement denying the legal status of the appellants as his son and that of their mother Periyammal as the legally wedded wife of the first respondent. It was the case of the respondents that the mother of the appellants namely, Periyammal was given in marriage to one Azhagan of Manamettupatti and the appellants are the sons of the said Azhagan. It was further averred that after the death of the said Azhagan, on account of the close relationship namely, sister of the first respondent's wife Kannammal, Periyammal was allowed to live along with the family of the first respondent. It was also claimed that the first respondent also helped Periyammal to maintain her children on humanitarian considerations. Therefore, the respondents have prayed for dismissal of the suit.
4. The Trial Court, on appreciation of evidence, came to the conclusion that the appellants had failed to prove that their mother Periyammal was the legally wedded wife of the first respondent and the appellants were the sons of the first respondent and consequently, dismissed the suit. The trial Court also non- suited the appellants on the technical ground that the suit was bad for non-joinder of necessary parties namely, daughters of Kannammal. Aggrieved by the said findings, the appellants preferred an appeal in A.S.No.82 of 1999, on the file of the Additional Principal District Judge, Pudukkottai. The first appellate Court also, on independent appreciation of oral and documentary evidence available on record, confirmed the findings of the trial Court. Aggrieved by the concurrent findings of the Courts below, the appellants are before this Court with the present Second Appeal.
5. The learned counsel for the appellants vehemently contended that the appellants produced the Voter's List to prove that Periyammal and the appellants lived along with the first respondent's family. The learned counsel further contended that the appellants have examined the President of the Village Panchayat namely, D.W.2 to prove the marriage of Periyamal along with the first respondent. The learned counsel also relied on the judgment of the Honourable Apex Court in the case of Kattukandi Edathil Krishnan and another .vs. Kattukandi Edathil Valsan and others reported in 2022(4) CTC 149, for the proposition that if a man and woman live together for long years as husband and wife, it would raise a presumption in favour of a legally wedded wife.
6. Per contra, the learned counsel for the respondents submitted that the first respondent himself had appeared before the trial Court and denied the alleged marriage between himself and Periyammal. The learned counsel further submitted that the evidence of independent witnesses namely, D.W.2 and D.W.3 support the ca
