Dispute over who was the legally wedded wife of a deceased man between his alleged widow and another claimant. Both courts below upheld the plaintiff's marriage certificate and rejected the defendant's earlier-marriage proof. The High Court found no perversity in those concurrent findings and dismissed the second appeal.
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.
S.A.No.411 of 2008
1
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Received on :18.12.2023
Pronounced on : 11.01.2024
CORAM :
THE HONOURABLE Mr. JUSTICE C.KUMARAPPAN
S.A.No.411 of 2008 and
C.M.P(MD)No.11380 of 2023
Hilda Sarojini Devi (Died)
...2nd Defendant/Appellant/ Appellant
2.Marry Reena Subashini 3.Madhubalu
4.Satishkumar (A2 to A4 are brought on record as LRS of the deceased sole appellant, vide order dated 24.06.2021)
Vs.
1.Ambujam Florence Anbu @ Ambujam John Thaskood(Died)
...Plaintiff/Respondent-1/ Respondent-1
2.Esther
3.B.Ravi
4.B.Jones
...Defendants1,3,4/Respondents 2 to 4/Respondents 2 to 4
5.Vinoth
(R5 is brought on record as LR of the deceased 1st respondent vide Court order dated 03.02.2020)
2 S.A.No.411 of 2008
Prayer: Second Appeal is filed under Section 100 of the Code of Civil Procedure, to set aside the judgment and decree dated 22.03.2007 made in A.S.No.75 of 2006 on the file of the Subordinate Court, Nilgiris, Uthagamandalam, confirming the judgment and decree dated 27.12.2005 made in O.S.No.296 of 1995 on the file of the District Munsif Court, Coonoor.
For Appellant : M/s.L.Dhamodaran For R2 to R5 : M/s.R.Sunilkumar For R1 : (Died) ****
J U D G M E N T
This second appeal is filed at the instance of the second defendant (since deceased). The respondents 2 to 4 are the defendants before the trial Court.
The brief facts which give rise to the instant Second Appeal are as
follows:
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S.A.No.411 of 2008
defendant, the suit properties were originally belonged to one Paul Thaskood, who is the father of the first defendant and her brother Johnson @ John Thaskood. After the demise of the said Paul Thaskood, the suit properties devolved upon the first defendant and his brother Johnson @ John Thaskood. According to the first defendant, John Thaskood died on 21.12.1990 leaving behind his wife Hilda Sarojini Devi viz., the second defendant herein and his children. As such, the defendants are the absolute owners of the suit properties. The first defendant further submits that the Adi Thravida Welfare Officer handed over the possession of the suit property to the first defendant after removing encroachment. Thus, the first defendant prays to dismiss the suit.
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S.A.No.411 of 2008
some illness, she was advised to stay at Ooty. Hence, she stayed at Ooty for the last about 10 years. The second defendant further submits that while she was in Ooty, there was a relationship between the plaintiff and the second defendant's husband and taking advantage of such affair outside the wedlock of the second defendant, the plaintiff claimed the status of the wife of Late John Thaskood. The second defendant dispute the birth of child to the plaintiff through John Thaskood. Even if a child was born to John Thaskood, still he has to be construed as an illegitimate child. She further stated that by taking advantage of the relationship between John Thaskood, the plaintiff stealthily obtained the tax receipts. It is the submission of the second defendant that the plaintiff has filed the suit only to grab the property of John Thaskood and to deprive the defendant, who is the legally wedded wife. Even if there was a marriage between the plaintiff and the late John Thaskood, the same cannot be construed as a valid marriage, as the same is subsequent to the marriage of the second defendant. Hence, she prays to dismiss the suit.
Evidence and Documents:
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S.A.No.411 of 2008
Exs.A1 to A12. On behalf of the defendants, two witnesses were examined as
D.W.1 and D.W.2 and twenty six documents were marked as Exs.B1 to B26.
Finding of both the Courts below
evidence, has ultimately arrived at a conclusion that the plaintiff is the legally wedded wife of the deceased John Thaskood. Further, the trial Court has also held that the children of the second defendant are the legal heirs of John Thaskood and directed them to work out their remedy by filing a partition suit. Aggrieved by the said findings, the second defendant preferred an appeal in A.S.No.75 of 2006. The first appellate Court, on re-appreciation of evidence, has concurred with the findings rendered by the trial Court and dismissed the second appeal. Being not satisfied with the order of the first appellate Court, the second defendant preferred the instant second appeal.
Substantial questions of law:
“(1)Whether the lower Courts failed to give due credence to the material documents, Ex.B.17, and Ex.B.25 which
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S.A.No.411 of 2008
clinch the main issue that the appellant is the legally wedded wife of the deceased John Thaskood?
(2)Whether the failure on the part of the lower Court, to consider Ex.B.25 under Section 32 of the Indian Evidence Act vitiates their findings regarding the status of the appellant and first respondent with the deceased John Thaskood?”
Submissions on either side:
would vehemently contend that when there was a relationship between the second defendant and John Thaskood and there was a finding that the second defendant begotten three children through late John Thaskood, granting declaration in favour of the plaintiff is erroneous and perverse. The learned counsel would further contend that Ex.B17-Marriage Certificate and the affidavit of the witness to the marriage viz., T.R.Kuppu Rao would demonstrate that even prior to the alleged marriage between the plaintiff and the late John Thaskood, the second defendant married with the said John Thaskood, during 1961. Therefore, contended that the plaintiff cannot be construed as a legally wedded wife, though she had a romantic relationship outside the wedlock of the late John Thaskood and the second defendant. The learned counsel would
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further contend that the second defendant all along agitated their rights in every Tribunal and that the Government has delivered the possession of the suit property with the defendants. It is the further contention of the learned counsel for the second defendant that there was a significant age difference between the late John Thaskood and the plaintiff. Therefore, there could not have been any probability for the plaintiff to marry with the John Thaskood. Therefore, the learned counsel for the second defendant would contend that both the Court below have erred and gave perverse findings. Therefore, he prayed to allow the second appeal.
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was accepted by the second defendant and that the said marriage was proved by producing Marriage Certificate and when the second defendant failed to discharge her onus to prove her marriage, the finding of fact recorded by both the Courts below are in accordance with law and liable to be sustained. Hence, prayed to dismiss the second appeal.
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S.A.No.411 of 2008
marriage of John Thaskood with the second defendant.
13.Both the Courts relied upon Ex.A1-Marriage Certificate of plaintiff with the said John Thaskood. Further, the trial Court has relied upon the evidence of D.W.1 as to the relationship between the plaintiff and the late John Thaskood. It is pertinent to mention here that the second defendant's sonin-law was examined on behalf of the plaintiff, who stated that his father-in-law never be called as John Suresh. Therefore, by relying on the evidence of P.W1, who is the plaintiff and by relying Ex.A1-Marriage Certificate, the trial Court arrived at a conclusion that there was a marriage between the plaintiff and the late John Thaskood.
14.However, the second defendant though admits the relationship between the plaintiff and John Thaskood, would urge before the Court that her marriage with John Thaskood was on 30.08.1961. Therefore, though there is a Marriage Certificate-Ex.A1, she cannot be declared as a legally wedded wife as the second defendant married with John Thaskood was prior in point of time. In this regard, the learned counsel for the plaintiff would invite the attention of
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this Court in respect of the Certificate of Marriage-Ex.A1. Wherein, against the name of P.John, his condition is referred as a Bachelor. Therefore, it is the contention of the plaintiff that as on the date of marriage, Mr.John was Bachelor. Therefore, the burden is heavily upon the second defendant to prove that John Thaskood has married her during 1961.
15.In order to substantiate her contention, she relied upon Ex.B17Marriage Certificate, wherein the parties name referred as John and Hilda Sarojini Devi. However, the trial Court has considered Ex.B22 viz., the Marriage Invitation of the second defendant with Ex.B17-Marriage Certificate. In Ex.B22-Marriage Invitation, the bridegroom name was mentioned as John Suresh. Through the evidence of D.W1, the trial Court found that Johnson and John Suresh are two different persons. However, the learned counsel for the second defendant would urge before this Court that one Kuppu Rao was the attester to Ex.B17-Marriage Certificate and that he has given an affidavit in Ex.B25 and such affidavit is a relevant piece of evidence under Section 32 of the Indian Evidence Act, 1872.
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S.A.No.411 of 2008
evidence to the effect that the said Kuppu Rao, referred to in the Marriage Certificate-Ex.B17, is as that of Kuppu Rao signed the affidavit in Ex.B25. It was also found by the trial Court as well as the first Appellate Court that as on the date of trial there are no evidence as to such Kuppu Rao is alive or not. Therefore, the trial Court held that Ex.B17 could not be relied as a conclusive proof about the marriage between John Thaskood and the second defendant. However, the learned counsel for the second defendant would contend that when there is a finding of fact that the second defendant begotten a child for John Thaskood, such findings assume much importance and would exemplify that the second defendant is a wife.
17.At this juncture, this Court would like to refer to the judgment of the Hon'ble supreme Court in Hero Vinoth(Minor)-Vs-Seshammal, reported in (2006)5 Supreme Court Cases 545 . From the narration of the trial Court as well as the first appellate Court, this Court could not find any perversity in the findings. However, as rightly contended by the learned counsel for the second defendant, there is a possibility for different view. But as held by the Hon'ble
S.A.No.411 of 2008
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Supreme Court in the Hero Vinoth case (cited supra) , since because there exist of different view apart from the view expressed by the trial Court as well as the first appellate Court, cannot be a reason to interfere with the order of the trial Court as well as the first appellate Court. Therefore, this Court is of the view that the doubt expressed by both the Courts below in respect of Ex.B17Certificate of Marriage of the second defendant, based upon Ex.B22-Marriage Invitation of the second defendant cannot be held to be perverse.
18.Thus, the finding of fact recorded by the trial Court as well as the first appellate Court, that Ex.B25 could not be relied on in the absence of proof to the effect that Kuppu Rao referred to Ex.B17-Certificate of Marriage, is that the person referred to in Ex.B.25 affidavit, and also in the absence of proof that whether such Kuppu Rao is alive or not on the date of examination of the witnesses, cannot be found faulted.
19.At this juncture, it is relevant to deal about the application filed by
the appellant under Order 41 Rule 27 of C.P.C., to receive Certain Documents viz., Legal Heirship Certificate of one John Thaskood and Driving License of
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S.A.No.411 of 2008
John Thaskood's daughter and the Certificate given by the Tahsildar to the effect that John and John Thaskood are one and the same person. The learned
counsel for the appellant urges this Court to allow the petition in C.M.P.No.11380 of 2023.
20.These are all the documents subsequent to the filing of the suit. Furthermore, when the issue in respect of the status of the appellant is under challenge, the document which they have obtained subsequent to the filing of
the suit may not have relevance. It is pertinent to mention here that the relief under Order 41 Rule 27 of C.P.C., is exceptional relief and the same cannot be used to fill up the lacunas. Here when an issue before the civil Court in respect of the status of the appellant is pending, the certificate issued by the Revenue Authorities subsequent to the filing of the suit will in no way advance the substantial justice. Hence, this Court do not find any merit in the said application. Hence, this Civil Miscellaneous petition is liable to be dismissed.
21.Thus, this Court is of the firm view that there is no perversity in the finding recorded by both Courts below and that no materials were projected
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to deviate from the said findings. In view of the above discussion, the substantial questions of law are answered in favour of the respondents.
22.In the result, this Second Appeal as well as the Civil
Miscellaneous Petition stand dismissed. No costs.
11.01.2024
NCC:Yes/No Index:Yes/No Internet:Yes/No Ns To
1.The Subordinate Court, Nilgiris, Uthagamandalam.
S.A.No.411 of 2008
16
C.KUMARAPPAN.,J Ns
S.A.No.411 of 2008 and C.M.P(MD)No.11380 of 2023
11.01.2024
2 issues framed by the court
Whether the plaintiff was proved to be the legally wedded wife of the deceased John Thaskood in preference to the second defendant's claim of an earlier marriage?
Whether the courts below erred in doubting Ex.B17 marriage certificate and Ex.B25 affidavit under Section 32 of the Evidence Act?
Colour shows how this judgement treated each authority
Hero Vinoth (Minor) Vs SeshammalRelied on¶17
(2006)5 Supreme Court Cases 545
3 provisions across 2 enactments
Hilda Sarojini Devi (Died)
Marry Reena Subashini
Madhubalu
Satishkumar
Ambujam Florence Anbu @ Ambujam John Thaskood (Died)
Esther
C.Kumarappan
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
