In this second appeal regarding partition and mesne profits, the Madras High Court dismissed the appeal. The court found the evidence insufficient to prove the marriage between the plaintiffs and the deceased husband, thereby rejecting their claims to the ancestral property and upholding the validity of the sale deeds executed by the defendants.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 24.01.2017
CORAM:
THE HONOURABLE MR.JUSTICE M.DURAISWAMY
S.A.(MD)No.39 of 2011
1.K.Thangam 2.K.Mathiyarasi
.. Appellants/Appellants/ Plaintiffs
Vs.
1.Subburaj
2.C.Rengaraj
3.Muthulakshmi
4.Sankarammal
5.Angammal
7.Dineshkumar
9.Soundararajan .. Respondents/Respondents/
Defendants
Prayer: Second Appeal filed under Section 100 of the Civil Procedure Code against the Decree and Judgment of the Principal District Court, Tirunelveli, made in A.S.No.42 of 2008, dated 14.08.2009, confirming the Decree and Judgment of the Additional Subordinate Court, Tenkasi made in O.S.No.44 of 2005, dated 08.08.2008.
For Appellants : Mr.V.Kalyanasundaram For Respondents : Mr.P.Velmurugan for R.1 to R.8
JUDGMENT
Aggrieved over the judgment and decree passed in A.S.No.42 of 2008, on the file of the Principal District Court, Tirunelveli, confirming the judgment and decree passed in O.S.No.44 of 2005, on the file of the Additional Subordinate Court, Tenkasi, the plaintiffs have filed the above Second Appeal.
(i) According to the plaintiffs, the suit properties are originally belonged to the family of one Kalidass, who is the https://hcservices.ecourts.gov.in/hcservices/ husband of the first plaintiff. The father-in-law of the first
plaintiff had died 35 years prior to the filing of the suit and he had three sons. The husband of the first plaintiff viz., Kalidass died on 19.12.2003. The defendants 1 and 2 are the brothers of Kalidass. The defendants 3 and 4 are the sisters of Kalidass.
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The defendants 1 to 4 are the legal heirs of one Chelliah Naidu. The said Chelliah Naidu died intestate. The marriage between the first plaintiff and Kalidass had taken place 30 years prior to the filing of the suit.
(ii) According to the plaintiffs, Kalidass and the first plaintiff had two daughters viz., Usharani and the second plaintiff. Later, the first daughter Usharani had died. Kalidass married the fifth defendant as his second wife. The defendants 6 to 8 are the children of Kalidass and the fifth defendant. The marriage between Kalidass and the fifth defendant is an invalid marriage, since the marriage with the first plaintiff was subsisting. Since the properties are ancestral properties, the defendants 5 to 8 are not entitled to the properties, after the demise of Kalidass. The plaintiffs are entitled to 6/20 share and the defendants 1 and 2 are each entitled to 6/20 share. The defendants 3 and 4 are each entitled to 1/20 share. The properties are in joint possession of the parties. Since the defendants 1 to 4 did not partition the properties, the plaintiffs have filed the suit.
According to the defendants, the first plaintiff is not the wife of Late Kalidass. The second plaintiff is also not the daughter of Kalidass. The defendants 1 to 4 did not know who are the plaintiffs. The first plaintiff and Kalidass did not live as husband and wife. The marriage between Kalidass and the fifth defendant took place on 03.05.1976 at Srivilliputhur. On 19.12.2003, the said Kalidass died leaving behind the defendants 5 to 8 as his legal heirs. When Kalidass was alive, he and his brothers and sisters sold the first item of the properties to the ninth defendant on 12.09.2002. They have also executed an amendment deed on 14.07.2004 in favour of the ninth defendant, since at the time of execution of the amendment deed, Kalidass was not alive. His wife Angammal and the defendants 1 to 4 have executed the amendment deed. The said Kalidass partitioned the third item of the property through the defendants 1 and 2 and with the permission of the defendants 3 and 4. In these circumstances, the defendants prayed for dismissal of the suit.
The ninth defendant had reiterated the averments stated in the written statement filed by the defendants 1 to 5 and 8 and further stated that under two sale deeds dated 12.09.2002, he purchased the first item of the properties. The ninth defendant also prayed for dismissal of the suit.
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trial Court, the plaintiffs filed an appeal in A.S.No.42 of 2008 and the lower Appellate Court also confirmed the judgment and decree of the trial Court and dismissed the appeal. Aggrieved over the concurrent findings of the Courts below, the plaintiffs have filed the above Second Appeal.
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defendant was also marked on the side of the defendants. The birth certificate and the transfer certificate pertaining to the sixth defendant were also marked before the trial Court. The marriage took place on 03.05.1976. This was also admitted by P.W.1 in her evidence. Taking into consideration the oral and documentary evidences let in by the defendants, the Courts below have rightly come to the conclusion that the fifth defendant is the legally wedded wife of Kalidass and the defendants 6 to 8 are born to them.
Sd/Assistant Registrar(CO)
/TRUE COPY/
Sub Assistant Registrar
To
+3 cc to MR.V.Kalyanasundaram,ADVOCATE, SR NO:4445,4180
S.A.(MD)No.39 of 2011 24.01.2017
ssl
sva/sv/mms/08.02.2017/4p/6c
3 issues framed by the court
Whether the Courts below committed an error in holding the second plaintiff was not born of lawful wedlock without framing a paternity issue?
Whether the findings that the marriage between the first appellant and Kalidass was not proved are perverse?
If the marriage is not proved, whether the appellants have any right over the suit properties or if the sale deeds are valid?
K.Thangam
K.Mathiyarasi
Subburaj
M.Duraiswamy
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
