Dismissed¶¶65

Kaliamurthi v. Dhanabhakiyam

Madras HC26 Feb 2025AS/401/2022

Case brief

AI extract

What is this about?

Proof of Hindu marriage 'in the manner known to law'; concubine recital in Ex.B6 negativing wedlock; long cohabitation and birth of children confer no status of wife or share; illegitimate child entitled to father's share; D.W.3 cross-examination demeanor; Section 96 CPC first appeal; O.S.No.90 of 2019, III Additional District and Sessions Judge, Cuddalore at Virudhachalam; 1/9th share upheld; claim of 13/25 shares; parties: Kaliamurthi, Pachhamuthu, Ashok Kumar v. Dhanabhakiyam, Pachhayammal; estate of Mayyamuthu Udayar; judgment confirmed 26.02.2025.

What did the court decide?

Appeal Suit dismissed; judgment and decree of the Trial Court (granting 1/9th share to the 1st plaintiff) confirmed; no costs; connected Miscellaneous Petition (C.M.P.No.14347 of 2022) closed. ¶¶65

Kaliamurthi Vs Dhanabhakiyam — Madras HC (2025) — LawSathi Research

What the court decided

AI extract

Outcome

Appeal Suit dismissed; judgment and decree of the Trial Court (granting 1/9th share to the 1st plaintiff) confirmed; no costs; connected Miscellaneous Petition (C.M.P.No.14347 of 2022) closed.

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Issue for consideration

Whether the marriage of the 2nd plaintiff with Mayyamuthu Udayar is proved in the manner known to law? +3 more

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Court's answer

Since the document Ex.B6 clearly recites that the 2nd plaintiff was kept as a concubine, there was no valid marriage between the 2nd plaintiff and Mayyamuthu Udayar.

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Ratio / Principle

The evidence of D.W.3 alone cannot establish a valid marriage, as he stated in cross-examination that he was not aware whether the marriage took place.

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Key takeaways

Despite long cohabitation, the factum of marriage between the 2nd plaintiff and Mayyamuthu Udayar was not established; merely because children were born out of such cohabitation, she cannot claim the status of wife or a share in Mayyamuthu Udayar's property.ratio¶¶60
In view of the defendants' admission that the 1st plaintiff was born out of the relationship and the long cohabitation, the 1st plaintiff is to be considered an illegitimate child of Mayyamuthu Udayar entitled to her father's share; the Trial Court's allotment of 1/9th share to her requires no interference.ratio¶¶65

Detailed headnote1 paragraphs

Madras High Court (N. Sathish Kumar, J., 26.02.2025) dismissed the defendants' appeal under Section 96 CPC against the judgment and decree in O.S.No.90 of 2019 (III Additional District and Sessions Judge, Cuddalore at Virudhachalam, dated 31.03.2022), which had granted the 1st plaintiff a 1/9th share and dismissed the suit against the 2nd plaintiff; the Trial Court judgment was confirmed. Held: (i) the marriage of the 2nd plaintiff with Mayyamuthu Udayar was not proved in the manner known to law — the recital in Ex.B6 described her as a concubine, and D.W.3's testimony, vacillating in cross-examination, could not establish a valid marriage; (ii) merely because children were born out of long cohabitation, the 2nd plaintiff could not claim the status of wife or a share in Mayyamuthu Udayar's property; (iii) since the defendants admitted the 1st plaintiff was born out of the relationship, she was to be considered an illegitimate child entitled to her father's share, and the Trial Court's allotment of 1/9th share required no interference. As the 2nd plaintiff filed no appeal or cross-objection, the appeal was dismissed with no costs and the connected miscellaneous petition closed.

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A.S.No.401 of 2022

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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DATED: 26.02.2025

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CORAM

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THE HON'BLE MR.JUSTICE N.SATHISH KUMAR

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A.S.No.401 of 2022 and

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C.M.P.No.14347 of 2022

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Kaliamurthi

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Pachhamuthu 3. Ashok Kumar ... Appellants/Defendants

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-vs-

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Dhanabhakiyam 2. Pachhayammal ... Respondents/Plaintiffs Prayer : Appeal Suit is filed under Section 96 of CPC to set aside the judgment and decree in O.S.No.90 of 2019 on the file of the III Additional District and Sessions Judge, Cuddalore at Virudhachalam dated 31.03.2022 as illegal, incompetent and without jurisdiction.

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For Appellants : Mr.V.Raghavachari, Senior Counsel For M/s.V.Srimathi For Respondents : Mr.C.Munusamy

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J U D G M E N T

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Challenging the decree and judgment of the Trial Court,

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granting 1/9^th share in favour of the 1^st plaintiff, dismissing the suit as

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against the 2^nd plaintiff, the present appeal has been filed by the defendants.

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1/9

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https://www.mhc.tn.gov.in/judis

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A.S.No.401 of 2022

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The suit has been filed by the plaintiffs, claiming that one Mayyamuthu Udayar was the original owner and the 2^nd plaintiff is the 2^nd wife of the said Mayyamuthu Udayar. The 1^st plaintiff was born to the 2^nd plaintiff. The defendants 1 to 3 were born through the 1^st wife of Mayyamuthu Udayar, namely, Dhanabakkiyam. According to the plaintiffs, after the death of the 1^st wife 57 years ago, the said Mayyamuthu Udayar married the 2^nd plaintiff. It is the case of the plaintiffs that two daughters were born to the 2^nd plaintiff through Mayyamuthu Udayar, out of whom, the 1^st daughter died at the age of six months and therefore, the plaintiffs are entitled to 13/25 shares in the property.

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3 It is the stand of the defendants that the 2^nd plaintiff was never married to Mayyamuthu Udayar and she was kept as a concubine. However, it was admitted that the 1^st plaintiff was born to Mayyamuthu Udayar through the 2^nd plaintiff. It was contended that the 1^st plaintiff cannot claim any share in the ancestral property and similarly, the 2^nd plaintiff is also not entitled to any share, as she is not a legally wedded wife. It was the contention that Item Nos.18, 19, 24, 25, 29, 32, 37 are separate properties of the 1^st defendant, which has been disputed by the plaintiffs.

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2/9

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https://www.mhc.tn.gov.in/judis

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A.S.No.401 of 2022

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The Trial Court, on the basis of the aforesaid pleadings,

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framed the following issues:

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i) Whether it is true that Pachhayammal is not the wife of Mayyamuthu Udayar?

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ii) Whether it is true that suit properties belong to the plaintiffs and defendants?

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iii) Whether the plaintiffs are entitled to share in the property?

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iv) Whether the plaintiffs are entitled for the relief of permanent injunction?

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v) To what other relief do the plaintiffs are entitled for?

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On the side of the plaintiffs, P.W.1 to P.W.3 were examined

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and Ex.A1 to Ex.A17 were marked. On the side of the defendants, D.W.1 to D.W.4 were examined and Ex.B1 to Ex.B9 were marked. The evidences of

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P.W.2 and D.W.2 were eschewed.

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The Trial Court, after considering the entire evidence, held that the marriage of the 2^nd plaintiff with Mayyamuthu Udayar has not been established and since the 1^st plaintiff is born out of the relationship, she is entitled to a share from Mayyamuthu Udayar and accordingly, granted 1/9^th share in the property.

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3/9

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https://www.mhc.tn.gov.in/judis

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A.S.No.401 of 2022

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Learned Senior Counsel for the appellants challenged the

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decree and judgment of the Trial Court on the ground that the marriage of the 2^nd plaintiff with Mayyamuthu Udayar has not been established and the Trial Court ought not to have granted any share in the property to the 1^st plaintiff.

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Per contra, learned counsel for the respondents contended

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that P.W.3 in his evidence clearly deposed that after the death of the 1^st wife of Mayyamuthu Udayar, he married the 2^nd plaintiff legally to take care of children born to the 1^st wife. It was his contention that the Trial Court ought to have considered this aspect and granted share to the 2^nd plaintiff.

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In the light of the above, the points for consideration in this appeal are as follows:

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i) Whether the marriage of the 2^nd plaintiff with Mayyamuthu Udayar is proved in the manner known to law?

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ii) Whether the 2^nd plaintiff is a legally wedded wife of

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Mayyamuthu Udayar

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4/9

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https://www.mhc.tn.gov.in/judis

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A.S.No.401 of 2022

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iii) To what other relief do the plaintiffs are entitled for?

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POINTS:

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The parties have not disputed the relationship. The core contention of the 2^nd plaintiff is that she is a legally wedded wife of Mayyamuthu Udayar and after the death of the 1^st wife of Mayyamuthu Udayar, she married him. Out of their marriage, the 1^st plaintiff was born and the other daughter born to them died. Whereas it is the specific case of the defendants that there was no marriage between the 2^nd plaintiff and the said Mayyamuthu Udayar and the 2^nd plaintiff was kept as a concubine all along by Mayyamuthu Udayar.

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Though D.W.3 stated in his evidence that there was a marriage between the 2^nd plaintiff and Mayyamuthu Udayar, during cross examination, he stated that he is not aware whether the marriage took place or not. When he was questioned as to whether the 1^st plaintiff was born to the 2^nd plaintiff through Mayyamuthu Udayar, he was silent for long time and his demeanor was noted by the Trial Court. Therefore, only on the basis of the evidence of D.W.3, it cannot be held that there was a valid marriage.

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5/9

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https://www.mhc.tn.gov.in/judis

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A.S.No.401 of 2022

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This fact has been fortified by the very recital in the document Ex.B6, which shows that the property has been purchased in favour of the 1^st plaintiff by the mother, namely, the 2^nd plaintiff, wherein the status of the 2^nd plaintiff has been clearly mentioned as concubine. When the document clearly recites that the 2^nd plaintiff was kept as a concubine, it is to be held that there was no valid marriage between the 2^nd plaintiff and Mayyamuthu Udayar.

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It appears that there was a long cohabitation between the 2^nd

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plaintiff and the said Mayyamuthu Udayar. However, the factum of marriage between them has not been established. In the document / Ex.B6, the 2^nd plaintiff has been described as a concubine and the benefit was also taken by her in the document. Merely because children were born out of such cohabitation, it cannot be said that she is entitled to claim the status of wife and also claim the share in the property of Mayyamuthu Udayar. The points are answered accordingly.

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It was admitted by the defendants that the 1^st plaintiff was born out of the relationship between the 2^nd plaintiff and Mayyamuthu

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6/9

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https://www.mhc.tn.gov.in/judis

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A.S.No.401 of 2022

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Udayar. Considering the said admission, the Trial Court has granted 1/9^th share to the 1^st plaintiff. Though there was no marriage that took place between the 2^nd plaintiff and Mayyamuthu Udayar to consider the 1^st plaintiff as an illegitimate child, in view of the admission by the defendants that the 1^st plaintiff was born out of the relationship and in view of long cohabitation, this Court is of the view that the 1^st plaintiff has to be considered as an illegitimate child of Mayyamuthu Udayar and she is entitled to her father's share, which was rightly allotted by the Trial Court. The finding in respect of allotment of share to the 1^st plaintiff does not require any interference by this Court . Since the 2^nd plaintiff has not filed any appeal or cross objection as against the judgment and decree of the Trial Court, the instant Appeal Suit is dismissed and the judgment of the Trial Court is confirmed. No costs. Consequently, connected Miscellaneous Petition is closed.