TaxTMI 
TaxTMI 
2017 (8) TMI 1656
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....ed the appeal A.S.No.986 of 1993. 2. Since both the appeals are arising out of the same judgment, dated 13.10.1992 in O.S.No.95 of 1989 on the file of Subordinate Court, Thanjavur, we decide to dispose of both the appeals in a common judgment. 3. For the sake of convenience the parties are arrayed as per their own ranking before the Trial Court. The brief facts of the plaintiffs case is as follows:- The plaintiffs are children of one Durairaj, born through their mother Kamalambal. Though the first defendant married Durairaj in the year 1953, the female child born to her died immediately. Thereafter, in the year 1957, the second defendant herein was born to Durairaj and first defendant. Since both the children born to first defendant happened to be female children and after that, the first defendant did not conceive for some time, late Durairaj, who was the Zamindar of Pappanadu, wanted to have a male child. Hence, he thought of going for a 2nd marriage. Accordingly, the said Durairaj married Kamalambal as the second wife on 05.06.1960 at 30, Ganapathy Nagar, Thanjavur in the presence of relation of Kamalambal and Durairaj. The said Kamalambal was already living along with ....
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....as wife of Durairaj. She was not esteemed or reputed as wife of Durairaj by those who know her. She has no reputation of having been married to late Durairaj. It is also denied by the defendants that Durairaj wanted to have a male child, therefore he contracted the second marriage. Similarly, the alleged exchange of garlands and tying of thali is also denied by the defendants. The allegation that Durairaj and Kamalambal living as husband and wife from 1960 is also denied. 5. It is the further contention of the defendants that Raja Kalai Arangam, a cinema theater, was absolutely belong to the first defendant and her husband executed a settlement deed in the year 1959. There were civil suit in respect of the same and ultimately there is a compromise. In view of the litigations, the first defendant's husband wanted to execute a power deed in his favour for attending the cinema theatre business. The first defendant has signed the papers under the premises that she is executing the power of attorney and signed in several blank papers. 6. It is the contention of the defendants that the first defendant's signature which was obtained in blank papers were used or misused for p....
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....26 of 1992 submitted that admittedly, the first defendant is the wife of the late Durairaj and late Durairaj was Zamindar of Pappanadu and they are living in a family house and out of the wedlock, the second defendant was born to the first defendant and Durairaj. When the first marriage was existing very much, the said Durairaj marrying one Kamalambal in the year 1960 is highly improbable. Further, the contention of the plaintiffs that since Durairaj did not have any male heir and therefore he wanted to have a second marriage to have a male heir, is also highly improbable. Admittedly, the marriage between the first defendant and Durairaj took place in the year 1953. Out of the wedlock the female child already born to Durairaj, through the first defendant was died after sometime. Thereafter, the second defendant was born to them. That being so, contracting 2nd marriage to have a male heir is highly improbable. Admittedly the first defendant was also cabable of delivering a child at the relevant time. Therefore, without waiting for the first defendant to deliver a child, Durairaj marrying Kamalambal only for the purpose of male child is highly improbable and unbelieavable. 11. It ....
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...... The presumption of a marriage from repute arises only where the evidence shows that the parties were living together for a sufficiently long period and were treated as husband and wife by their relations and the public.Where a man had already married a woman and had children by her, there is no presumption that another lady with whom he is said to have lived is his wife or his children by her are legitimate" ii) Vol.81 LW 200 (Rajagopal Pillai v. Pakkiam Ammal), wherein it is held as follows:- "The marriage state being chief foundation on which the superstructure of society rests, presumption of the marriage arising from cohabitation of spouses is a very strong presumption. Where a man and a woman had lived together as man and wife, the law will presume, until the contrary is proved, that they were living together by virtue of a legal marriage and not in concubinage." iii) 1972 TLNJ 464 (Kumarayya Chettiar & Ors. V. Cheyyalachi & Ors), wherein it is held as follows:- "The question is whether in a case where the parties adduce evidence in proof of a fact, but fail to establish the fact, the Court should still draw the presumption merely on account of the e....
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.... where a person is already married, no presumption of a second marriage arises by reason of long cohabitation. In the present case, apart from the fact that the circumstances pointed out earlier considerably weaken the drawing of such a presumption, there is really no scope for such a presumption at all." vii) 1989 (2) LW 197 (Moham v. Santha Bai Ammal), wherein it is held as follows:- "Ex.A2 to A5 will only show that the plaintiffs were born to their mother Drowpathi through late Subbarayalu Naidu. As alredy stated, their paternity is not disputed by the defendants and the main dispute is as to the status of their mother Drowpathi. Therefore, these documents are of no use to the plaintiffs to prove the factum of a valid marriage of their mother." viii) 1994 (1) SCC 460 (S.P.S.Balasubramanyam v. Suruttayan), wherein it is held as follows:- "If a man and woman live together for long years as husband and wife then a presumption arises in law of legality of marriage existing between the two. But the presumption is rebuttable." ix) 1995 (1) LW 487 (Munuswami Gounder and another v. M.Govindaraju & 4 Ors), wherein it is held as follows:- "23. The....
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.... When there is no proof of solemnisation of marriage and there is further no proof that there was a de jure marriage or even a de facto marriage where during long cohabitation as husband and wife with habit and repute a child is born, there can be no occasion whatsoever for making available the statutory presumption envisaged under S.16 of the Hindu Marriage Act, 1955 securing the status of a legitimate child in favour of such a child born out of a union which was either void ab initio or declared to be so under a decree passed under S.11 of 12 of the Hindu Marriage Act, 1955." xiii) 2001 (3) CTC 513 (Kanagavalli v. Saroja), wherein it is held as follows:- "14.. I have already referred to how because of nonregistration of marrige, woman, who has given herself physically, emotionally and otherwise, gains nothing but stands to lose everything if the marriage is denied by the man. The other compelling factor is the trauma that a child may face going through his formative years with his paternity in doubt. This assault on a child's sensibilities can be easily avoided if there is a certificate of registration of marriage between his mother and father which though may not valid....
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....) AIR 1978 (SC) 1557 (Badri Prasad v. Dy. Director Consolidation), wherein it is held as follows:- "A man and a Woman living as husband and wife for about 50 years. Strong presumption arises in favour of wedlock. Proof as to factum of marriage by examining the priest and other witnesses not necessary." ii) 1994 (1) SCC 460 (S.P.S. Balasubramanyam v. Suruttayan), wherein it is held as follows: "It appears unnecessary to express any opinion as to whether the relationship between Chinathambi and Pavayee was adulterous and if it was sufficient to destroy the presumption in law as this plea does not appear to have been raised in the written statement nor any issue was framed on it nor any of the Courts have recorded any finding on it." iii) 1988 (1) LW 358 (Indirani v. Vellathal) wherein it is held as follows: " When a married person putsforth a version as to the form or the manner or the procedure followed in going through the marriage ceremony, unless the claim so putforth is substantiated by relevant, appropriate and precise evidence, it is not for the Court from the avilable evidence to hold that the marriage had taken place by following a method which is permissble i....
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....sions, the point now arises for consideration in A.S.No.986 of 1993 is that whether the 3rd item of the suit property namely deposit of Rs. 2,00,000/- available with the 3rd defendant bank for partition? A.S.No.926 of 1992 Points 1 to 3 18. It is the specific case of the plaintiffs that their mother Kamalambal married Durairaj on 05.06.1960 in the presence of relatives and friends. The marriage took place at 30, Ganapathinagar, Thanjavur. It is also the case of the plaintiffs that since Durairaj did not have any male heir through the first wife, he decided to marry Kamalambal as second wife and the plaintiffs' mother was residing in the family house of Durairaj, along with her mother, and the marriage was performed in the presence of relatives of both Durairaj and Kamalambal. Though the defendants in their defence denied the allegation of the plaintiffs that they born to Durairaj and Kamalambal, through the valid marriage, during the cross-examination of the plaintiffs and the witnesses produced by the plaintiffs, infact, the entire cross-examination by the defendants proceeded as if the plaintiffs are children born to Durairaj and Kamalambal. 19. On the side of the....
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....st defendant in the year 1953. After the second defendant born, the doctor has advised that the first defendant would not be able to deliver any more child. In order to have a male child, Durairaj decided to go for 2nd marriage. At that point of time, as suggested by Durairaj's uncle Pandithurai, 2nd marriage was fixed with Kamalambal. Accordingly, on 05.06.1960, marriage was performed in the pooja room and Durairaj tied thali and also exchanged garlands. In fact Pandithurai uncle of Durairaj blessed the couple by handing over the thali to Durairaj. The evidence of PW4 with regard to a cermony about the marriage exchanging garlands and tying of thali in the presence of witnesses, not even specifically denied in the cross-examination by defendants except denying that there was no marriage between Kamalambal and Durairaj. The specific facts spoken with regard to the solemnising of marriage not even denied in the cross-examination. 22. Similarly PW5/Kamalambal, the mother of the plaintiffs, in her evidence has stated that the marriage was performed on 05.06.1960 by exhanging garlands and Pandithurai uncle of Durairaj, handed over thali to Durairaj and Durairaj tyed thali. After....
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....en a status as wife of Durairaj. DW1 also admitted that her first child was born in the year 1955 and immediately died after 9 days. Thereafter, the second defendant born in the year 1958. Afterwards 3rd child was born and died after 5 days. These events, infact probablised the plaintiffs' case that in order to have a male child, Durairaj infact has decided to marry Kamalambal. The cross-examination of DW1 also clearly show that when Kamalambal was at the age of 16 there was illegal connection between her husband and Kamalambal and she has also stated that Kamalambal was living in Ganapathinagar house from the year 1957 till date. Further, she has also admitted that she never objected Kamalambal living in Ganapathinagar house. She also admitted that only her husband has kept Kamalambal in Ganapathinagar house. The cross-examination clearly indicate that Kamalambal and Durairaj was living together from the year 1957. It is to be noted that though the first wife namely, the first defendant claimed to be aware of the illegal connection of her husband with PW5, namely Kamalambal, while she was at the age of 16 years, DW1 has never made any objection with regard to such alleged ille....
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....ed 22.05.1992 marked as Ex.A28 also indicate that the weapons were deposited by Selvakumar, the first plaintiff. These facts clearly shows that the arms possessed by the father namely Durairaj were infact kept in the place where he was residing and that has been handed over by the first plaintiff. The ration card/Ex.A29 also shows that Durairaj is the Head of the family along with Kamalambal and others. The address of the house is shown as Ganapathinagar, North Street. From the above documents, the plaintiffs clearly establish the fact that Durairaj not only treat the plaintiffs as children but also resides with them along with PW5/ Kamalambal at Ganapathinagar. 28. Ex.A30 is the gift deed executed by the first defendant in the name of PW5, Kamalambal. Though DW1 in her statement pleaded that her husband has obtained signatures in blank papers, and such blank papers were used for creating these documents, it is to be noted that PW8 one of the attestor of the gift deed also examined in this case. In the chief examination he has clearly spoken about the exeuction of the document by the first defendant and he has seen the signature of the first defendant along with other attesting ....
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....shown as 'D', denoting her husband. Further, recitals in the documents clearly reads as follows:- image 1 indicate that all along Kamalambal was treated as wife of late Durairaj. Once, the first defendant has admitted in her document about the status of Kamalambal, and her children born through Durairaj, now she is estopped from stating that there was no marriage between Kamalambal and Durairaj and plaintiffs are not born to Durairaj and Kamalambal. 30. Further, in Ex.A32/sale deed, dated 28.09.1985 executed by one Muthugopan, infavour of the minor son of Durairaj, wherein Kamalambal has made as guardian. The above sale deed shows Kamalambal as wife of Durairaj. It is relevant to note that even third parties have treated Kamalambal as wife of Durairaj. From Ex.A40, it is also relevant to note that how Durairaj has developed hatredness towards the defendants. Ex.A39 letter written by the second defendant to her father Durairaj, while he was in Chennai, seeking a http://www.judis.nic.in permission to meet her father in Chennai. But Durairaj has declined permission to the second defendant to meet her. The tenor of letters Ex.A40 clearly shows that infact Durairaj fath....
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....raj in the address of Abraham Panditham, it is to be noted that DW1 in her cross examination, has stated that Durairaj not only residing at Ganapathinagar and also used to go to Abraham Panditham, where the first defendant is residing. Therefore, merely because some official correspondence are sent to the first defendant in the name of Durairaj that itself cannot be a ground to hold that there was no marriage between Kamalambal and Durairaj in the year 1960. From the oral and documentary evidence, particularly non-denial of the specific evidence as to solemnisation of marriage in the year 1960 coupled with the admission of Durairaj himself treating the children as his own children and also treating Kamalambal as the mother of plaintiffs and Ex.P44 and Ex.P45 as discussed above, this Court is of the view that merely because Durairaj has not described Kamalambal as wife in the registered document that itself cannot be a ground to non suit the plaintiffs. It is to be noted that contracting second marriage while the first marriage in existence is an offence under Indian Penal Code. Therefore, no prudent man would make it an official 2nd marraige attracting legal consequences. That bein....