Annapottu Ammal(died) Vs Tamilmani

Beeman 17.Santhameena 18.Senthil 19.Kavitha 20.Vijayakumar ...Legal Heirs of 2^nd Respondent 21.Geetha 22.Kamalesh 23.Sneha ...Legal Heirs of 12^nd Respondent

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(R15 died vide Court order dated 01.04.2025)

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(Respondents 16 to 20 /LRs of the deceased 2^nd respondent are suot motu impleaded vide Court order dated 01.04.2025)

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(Respondents 21 to 23 /LRs of the deceased 12^nd respondent are suot motu impleaded vide Court order dated 01.04.2025)

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Prayer: The First Appeal filed under Section 96 of C.P.C, to set aside the judgment and decree in O.S.No.20 of 2009 on the file of I Additional District and Sessions Judge (PCR), Thanjavur dated 18.02.2013 allow this appeal by modifying the shares of all the parties in tune with the points raised in the grounds.

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For Appellant : Mr.V.Balaji For Respondents : M/s.K.Shwathini For R1, R3 to R6, R16 to R20

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:Mr.P.Thiyagarajan For R11 & R22 : M/s.N.Ratna For Mr.N.Balakrishnan For R7 to R10 : R21 & R23 – No appearance : R13 & R 14 dismissed

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J U D G M E N T

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(Made by R.VIJAYAKUMAR,J. )

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Defendants 1 and 4 in a suit for partition have preferred the present first appeal challenging the judgment and decree of the trial Court.

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(A)Factual Matrix:

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2.As per admitted genealogy, one Duraisamy Udaiyar had two wives namely Annapottu Ammal and Gandhimathi Ammal. Annapottu Ammal (D1) is his first wife and Gandhimathi Ammal (D7) is his second wife. The plaintiffs 1 to 3, 7 to 10 are the children and grandchildren through the first defendant. The plaintiffs 4 to 6 are the children through the second wife. Defendants 2 and 3 are the sons through the second wife. The 4^th defendant is the son of the first wife (D1). Defendants 5 and 6 are the daughters of one Vasanthi (died) who is the daughter of the 1^st defendant. 7^th defendant is the second wife. This genealogy is not in dispute.

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3.Totally 125 properties have been shown as suit schedule properties. According to the plaintiffs, the deceased Duraisamy Udaiyar had constructed a rice mill in 122^nd item of the suit property at Neivasal Village and later, he extended his rice mill to Thanjavur with his partner Ramasamy Chettiyar. Both of them have purchased properties in their joint names through registered sale deeds. After death of Ramasamy Chettiyar, his shares were allotted to one Karuppaiyan who belongs to the family of Ramasamy Chettiyar. The said Karuppaiyan and late Duraisamy Udaiyar partitioned the above said property under a registered partition deed dated 03.09.2001. Under the partition deed, 123^rd item of the suit property was allotted to Duraisamy Udaiyar as his absolute property.

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4.It is further contended by the plaintiffs that Duraisamy Udaiyar had purchased 124^th item and has constructed a multistoried building and rented out to various third parties. 125^th item is a self-acquired property of Duraisamy Udaiyar. It is further contended in the plaint that the said Duraisamy Udaiyar had married the 1^st defendant as his first wife through whom he had got five daughters and two sons namely Amsavalli, Tamilmani, Mallika, Padmavathi and Vasanthi. Duraisamy Udaiyar had married the 7^th defendant as his second wife while his first wife was alive and therefore, it is not a valid marriage. Hence, the 7^th defendant is not entitled for any share in the suit property. She had been added only as a proper and necessary party.

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The Duraisamy Udaiyar got three daughters and two sons through his second wife. He had died intestate on 17.03.2007. The suit properties are the selfacquired properties of late Duraisamy Udaiyar and hence, the plaintiffs 1 to 6 and defendants 1 to 4 are each entitled to 1/12 share respectively in the suit properties. Plaintiffs 7 to 10 had each 1/48 share and the defendants 5 and 6 are each entitled to 1/24 share. According to the plaintiffs, despite several demands for partition, the defendants have not responded and hence, an Advocate notice was issued. Therefore, the present suit for partition.

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5.Defendants 1 to 4 filed a written statement contending that the deceased Duraisamy Udaiyar had just 10 Maa of lands as ancestral properties. The other properties are self-acquired properties and some of them were acquired through both the wives. The defendants had further contended

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that Duraisamy Udaiyar had undergone second marriage in the year 1957. Items 122 to 125 are not the self-acquired properties of Duraisamy Udaiyar. They are the properties acquired through joint efforts of Duraisamy Udaiyar and defendants 2, 3 and 4.

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6.The defendants had further contended that the first defendant is the absolute owner of Item Nos.105 to 121. The plaintiffs 1 to 6 were given adequate Sreedhana at the time of marriage even during the life time of Duraisamy Udaiyar. Therefore, they are not entitled to seek any partition. All the properties are under joint possession and enjoyment of defendants 2, 3

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and 4. Therefore, the plaintiffs are not entitled to seek any partition. The properties standing in the name of the 2^nd defendant were purchased by Duraisamy Udaiyar when the 2^nd defendant was minor while he was studying.

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7.The defendants 2 and 3 had filed their independent written statement contending that the second marriage of Duraisamy Udaiyar with Gandhimathi Ammal had taken place prior to 1949 and therefore, the said marriage is a valid one. With the consent of the first wife, Duraisamy Udaiyar had married his first wife's sister. All the properties have been purchased only from the ancestral nucleus. Duraisamy Udaiyar was enjoying the properties as Kartha of the joint family. Even 125^th item of the property was not purchased by Duraisamy Udaiyar and it is also a joint family property.

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8.The defendants 2 and 3 had further contended that several properties belong to the 7^th defendant. The plaintiffs 1 to 6 and defendants 5 and 6 were given adequate Sreedhana at the time of their marriage during the life time of Duraisamy Udaiyar and therefore, they are not entitled to seek any partition.

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9.It is further contended by the defendants 2 and 3 that the properties standing in the name of Duraisamy Udaiyar being ancestral properties, the plaintiff would be entitled to only 1/4^th share and the female heirs cannot make a claim for an equal share. That apart, the plaintiffs are not in joint possession of the suit property and the plaintiffs have never received any share from the suit schedule property. Therefore, proper Court fee has not

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been paid. The plaintiffs are not entitled to seek partition of residential houses since they are residing separately. Hence, they prayed for dismissal of the suit.

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(B).Findings of the trial Court:

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10(i).The marriage of Duraisamy Udaiyar with 7^th defendant has been

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held prior to 1949. In such circumstances, the 7^th defendant is the legally wedded wife of the deceased Duraisamy Udaiyar.

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(ii).Item Nos.77 to 90 and 93 are the absolute properties of the 7^th defendant. Therefore, the plaintiffs are not entitled to seek partition with regard to those items.

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(iii).Item Nos. 94 to 104 were purchased by Duraisamy Udaiyar from the income of the family properties in the name of 2^nd defendant and therefore, it is not the absolute properties of the 2^nd defendant. Hence, the plaintiffs are entitled to a share in those properties.

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(iv).The other items are the self-acquired properties of the deceased Duraisamy Udaiyar.

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11.Based upon the findings, the trial Court passed a preliminary decree declaring that the plaintiffs 1 to 6 are entitled to 1/12^th share each and the plaintiffs 7 to 10 each entitled to 1/12^th share in Item Nos. 1 to 76, 91, 92, 94 to 104, 122 to 125 of the suit schedule properties. The trial Court proceeded

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to dismiss the suit with regard to Item Nos. 77 to 90, 93, 105 to 121 of the

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suit property.

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12.Challenging the above said findings and the preliminary decree for partition, the defendants 1 and 4 who are the first wife and son through the first wife have filed the present first appeal.

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(C).Submissions of the learned counsels appearing on either side:

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13.The primary contention of the appellant is that the trial Court had erroneously arrived at a finding that the second marriage had taken place prior to 1949 i.e.prior to the commencement of Madras Hindu (Bigamy Prevention and Divorce) Act, 1949. In fact, the second marriage of Duraisamy Udaiyar had taken with the 7^th defendant only in the year 1955 during the subsistence of the first marriage. Therefore, neither the 7^th defendant nor her children are entitled to receive any share in the ancestral properties of deceased Duraisamy Udaiyar.

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14.The learned counsel for the appellant had further submitted that the father of the 7^th defendant has executed a Will in favour of the 7^th defendant describing the 7^th defendant as a minor aged 8 years. Therefore, the marriage of Duraisamy Udaiyar with the 7^th defendant could not have taken place prior to 1949. Hence, the marriage is void and the children born through the said void marriage would not be entitled to make a claim over the ancestral properties of the deceased Duraisamy Udaiyar. In such circumstances, the judgement and decree of the trial Court in granting a share in favour of the

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children of the second wife is not sustainable in the eye of law.

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15.Per contra, the learned counsel appearing for the respondents submitted that even assuming that the marriage of Duraisamy Udaiyar with the 7^th defendant is a void marriage, the children would be entitled to a share in the property allotted to Duraisamy Udaiyar. However, he submitted that the marriage had taken place prior to 1949 and hence, the trial Court had rightly arrived at a finding that the marriage of Duraisamy Udaiyar with 7^th defendant is a legally valid marriage. Hence, he prayed for sustaining the judgement and decree of the trial Court.

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(D).Points for consideration:

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16(a)Whether the suit schedule properties are the ancestral properties of the deceased Duraisamy Udaiyar?

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b)Whether the marriage of the deceased Duraisamy Udaiyar with the 7^th defendant is a legally valid one?

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c)What could be the share of the parties?

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(E).Discussion:

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17.The trial Court has arrived at a finding that Item Nos. 94 to 104

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were purchased by Duraisamy Udaiyar from the income of the joint family properties. It has also arrived at a finding that except Item Nos.77 to 90, 93 and 105 to 121, all other properties are the self-acquired properties of Duraisamy Udaiyar. In the grounds of appeal and during the submissions, the

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findings of the trial Court with regard to the character of the property has not been challenged. Therefore, this Court confirms the findings of the trial Court with regard to the character of each one of the properties.

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18.It should be noted that the first wife and her children and the second wife and her children have not stood separately. The array of parties before the trial Court reveals that the plaintiffs 4 to 6 who are the children through the second wife have joined with the children of the first wife in filing the suit. The first wife and the second are arrayed as defendants 1 and 7 respectively. Among the defendants, 4^th defendant is the son of the first wife and defendants 5 and 6 are the grandchildren of the first wife. Defendants 2 and 3 are the sons through the second wife. Therefore, it is clear that the daughters of Duraisamy Udaiyar born through both the wives have filed the suit jointly as against their brothers born through two different wives.

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CHARACTER OF PROPERTIES:

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(F).Item Nos. 77 to 90 and 93:

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19.The trial Court had held that these items are self-acquired properties of the 7^th defendant and therefore, the plaintiffs are not entitled to seek partition and has rejected the prayer for partition with regard to the above said items. The plaintiffs have not chosen to file any appeal as against this portion of the decree. Therefore, we confirm the decree of the trial Court with regard to these items.

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(G).Item Nos.105 to 121:

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20.The trial Court has specifically found that these items belong to the first defendant absolutely and therefore, they are not liable for partition. The trial Court has rejected the prayer for partition with regard to these items. Since no appeal has been preferred by the plaintiffs as against these portions of the decree, we hereby confirmed the decree of the trial Court with regard to these items.

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(H).Item Nos. 94 to 104:

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21.The trial Court has arrived at a specific findings that these properties stand in the name of the 2^nd defendant and they are joint family properties and liable for partition. The 2^nd defendant has not preferred any appeal as against this portion of the decree. Therefore, we confirm the decree of the trial Court with regard to these items of property.

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(I).Items Nos. 1 to 6, 91, 92, 122 to 125:

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22.The trial Court has arrived at a specific finding that these are the ancestral properties of late Duraisamy Udaiyar. No grounds have been raised in the first appeal challenging the findings of the trial Court with regard to the character of these properties. In fact, in Ground No.8, it is only contended that the trial Court ought not to have granted a decree in favour of the second wife and the children of the second wife after arriving at a finding that these

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properties are ancestral properties of the deceased Duraisamy Udaiyar. No contentions have been raised on the side of the appellant challenging the findings of the trial Court with regard to the character of the properties. Therefore, we confirm the findings of the trial Court that these properties are ancestral properties of late Duraisamy Udaiyar.

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VALIDITY OF THE MARRIAGE OF THE 7TH DEFENDANT:

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23.The plaintiffs have averred that the second marriage of Duraisamy Udaiyar with Gandhimathi Ammal was performed while the first plaintiff namely Annapottu Ammal was alive. In such circumstances, the second marriage is a void marriage and therefore, the 7^th defendant is not entitled to a share in the suit schedule property, but she is added only as a proper party to the suit.

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24.The defendants 1 and 4 in their written statement had contended that the second marriage of Duraisamy Udaiyar with the 7^th defendant took place in the year 1957. The defendants 2 and 3 in their written statement had stated that the second marriage of Duraisamy Udaiyar with the 7^th defendant had taken place prior to 1949. The trial Court had found that the second marriage of Duraisamy Udaiyar took place prior to 1949 and therefore, the 7^th defendant is the legally wedded wife of Duraisamy Udaiyar. However, the said findings are challenged in the present first appeal filed by the first wife and her son ( defendants 1 and 4).

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25.Though the second wife namely Gandhimathi Ammal was arrayed as 7^th defendant and she was also represented through a counsel, she had not chosen to file any independent written statement. The 7^th defendant has chosen to adopt the written statement filed by her sons namely defendants 2 and 3. In the said written statement, it is contended that the marriage had taken place prior to 1949 i.e prior to the coming into Madras Hindu (Bigamy Prevention and Divorce) Act, 1949 which came into force on 29.03.1949.

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26.As per Section 4(2) of the Act, entering into a second marriage while the first marriage is subsisting, was treated to be void. The 7^th defendant is the most competent person to speak about the year of marriage, but has not come forward to grace the witness box, especially when the plaintiffs have contended that the second marriage is void.

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27.The second defendant has been examined as DW1. During his cross examination he has categorically admitted that he is not aware when the second marriage of his father took place. When a suggestion was put to him that his father's second marriage took place only in the year 1955, he feigns ignorance.

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28.The 4^th defendant who is the son through the first wife has been examined as DW2. During his chief examination, he has specifically stated that his father had married the 7^th defendant as his second wife in the year

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During his cross examination, he has stated that his father got married to the 7^th defendant in the year 1957, but he is not personally aware of the same. Therefore, it is clear that the evidence of DW2 has not been discredited during the cross examination. The 7^th defendant has not chosen to grace the witness box to establish the date of her marriage. The trial Court has arrived at a specific finding that DW1 and DW2 are not competent witness to speak about the marriage. Without any basis whatsoever, the trial Court has chosen to presume that the second marriage of Duraisamy Udaiyar with the 7^th defendant has taken place prior to 1949 and therefore, the 7^th defendant is the legally wedded wife of deceased Duraisamy Udaiyar. Such a finding is not based on any oral or documentary evidence and therefore, the same is liable to be set aside.

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QUANTUM OF SHARES OF THE PARTIES:

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(J).The shares of the plaintiffs in the ancestral properties of the

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deceased Duraisamy Udaiyar are as follows:

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29.The trial Court has categorically held that Item Nos.1 to 76, 91, 92, 122 to 125 are the ancestral properties of Duraisamy Udaiyar. The trial Court has also held that Item Nos. 94 to 104, standing in the name of the 2^nd defendant are joint family properties. This Court has confirmed these two findings in the previous paragraphs.

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30.Section 16 of Hindu Marriage Act, 1955 is extracted as follows:

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“ 16.Legitimacy of children of void and voidable marriages. —(1) Notwithstanding that a marriage marriage is null and void under section 11, any child of such marriage who would have been legitimate if the marriage had been valid, shall be legitimate, whether such child is born before or after the commencement of the Marriage Laws (Amendment) Act, 1976 (68 of 1976), and whether or not a decree of nullity is granted in respect of that marriage under this Act and whether or not the marriage is held to be void otherwise than on a petition under this Act.

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(2) Where a decree of nullity is granted in respect of a voidable marriage under section 12, any child begotten or conceived before the decree is made, who would have been the legitimate child of the parties to the marriage if at the date of the decree it had been dissolved instead of being annulled, shall be deemed to be their legitimate child notwithstanding the decree of nullity.

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(3) Nothing contained in sub-section (1) or sub-section (2) shall be construed as conferring upon any child of a marriage which is null and void or which is annulled by a decree of nullity under section 12, any rights in or to the property of any person, other than the parents, in any case where, but for the passing of this Act, such child would have been incapable of possessing or acquiring any such rights by reason of his not being the legitimate child of his parents.”

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31.Section 16(1) of the Hindu Marriage Act, confers legitimacy on the children who were born through a void marriage or through a marriage which

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was later declared as a nullity. As per Section 16(3), legitimacy conferred upon such a child born through a void marriage would not permit the said child to claim any right to the property of any person other than his or her parents. However, the provision has not clarified the term 'property' as to whether it refers to self-acquired or ancestral property.

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32.Section 8 of the Hindu Succession Act 1956 provides mode of succession for the devolution of a property of a male Hindu who died intestate. The Hon'ble Supreme Court in its judgment reported in (2023) 10 SCC 1 (Revanasiddappa and another Vs. Mallikarjun and others) had harmonized the provisions of Hindu Succession Act 1956 with that of Section

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16(3) of Hindu Marriage Act, 1955.

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33.Paragraph Nos. 78 to 80 of the above said judgment are extracted as follows:

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“78.There is a degree of contradiction in the referring judgment in Revanasiddappa which needs to be clarified and set at rest at this stage. The two-judge Bench has, on the one hand, specifically noted that “the prohibition contained in Section 16(3) will apply to such children with respect to property of any person other than their parents” (emphasis in original). The Court has also noted that “ in the case of joint family property such children will be entitled only to a share in their parents'

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property but they cannot claim it on their right”.The Court then holds that logically on the partition of an ancestral property, the property falling in the share of the parents of such children is regarded as their self-acquired and absolute property and there is no reason why such children will have no share in such property since they are equated under the law with legitimate offspring. At the same time, during the lifetime of the parents, such a child cannot seek partition. Moreover, the right is confined to the property of their parents.

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79.From the above observations, it appears that the Court in Revanasiddappa has recognised that while conferring legitimacy in terms of sub-section (1) or sub-section (2) of Section 16 to children born from void or voidable marriages, Parliament has circumscribed the entitlement to the property of such children by observing that nothing contained in those provisions shall be construed as conferring a right in or to the property of any person other than the parents. Having noticed this, the Court has also observed that in the case of joint family property such children will be entitled only to a share in their parent's property but cannot claim it of their own right as a consequence of which they cannot seek partition during the lifetime of their parents. However, the Court has also observed that once such children are declared as legitimate, they will be on a par with other legitimate children. The observation in para 29 of the referring judgment in Revanasiddappa that a child who is conferred with legitimacy under sub-section(1) and sub-section(2) of Section 16 will be on a par with other legitimate children is in the context of recognising the entitlements of such a

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child in the property of their parents and not qua the property of a third person.

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80.The rationale in the referring order in Revanasiddappa cannot be held as treating individuals who have been conferred with legitimacy in terms of either of the two sub-sections of Section 16 to be entitled to full rights in property on a par with children who are born from a valid marriage. Section 16(3) has expressly stipulated that the rights of such a child who is conferred with legitimacy by sub-section(1) or sub-section (2) of Section 16 would be in respect of the property of the parents and not of any other person.

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34.In view of the judgment of the Hon'ble Supreme Court cited supra, it is clear that a child born through a void marriage which is conferred with legitimacy under Section 16(1) of the Hindu Marriage Act, 1955 would not only be entitled to a share in the self-acquired and absolute property of his or her parents, but also the property falling to the share of his or her parents on partition of ancestral property. However, such a child would not be entitled to make a claim for partition during the life time of his or her parent.

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35.In the present case, the marriage of Duraisamy Udaiyar with the 7^th defendant is held to be a void marriage. However, the plaintiffs 4 to 6 and the defendants 2 and 3 have been conferred with legitimacy as per Section 16(1) of the Hindu Marriage Act, 1955. Therefore, they will be entitled to a share over the properties that fell to the share of Duraisamy Udaiyar in the

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properties which have been declared to be ancestral properties.

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36.Item Nos. 1 to 76, 91, 92, 122 to 125, Item Nos.94 to 104 having held to be the ancestral properties and joint family property respectively by the trial Court have been confirmed by this Court. As far as these properties are concerned, all the six children of Duraisamy Udaiyar (through the first wife) and Duraisamy Udaiyar would each be entitled to 1/7^th share.

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37.As far as 1/7^th share of Duraisamy Udaiyar is concerned, six children of Duraisamy Udaiyar through the first wife and his five children born through the second wife would each be entitled to 1/11^th of 1/7^th namely 1/77^th share each. The legal heirs of the first wife would be entitled to 1/7 +1/77 being 12/77^th share each. Therefore, plaintiffs 1 to 3 and the 4^th defendant each would be entitled to 12/77^th share each. The plaintiffs 7 to 10 (the legal heirs of Amsavalli) would be entitled to 12/77^th share jointly. The defendants 5 and 6 who are the legal heirs of deceased Vasanthi would be entitled to 12/77^th share jointly. The legal heirs through the second wife namely plaintiffs 4 to 6 and defendants 2 and 3 would be entitled to 1/77^th share each.

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(K).Shares of the parites in the property of the first defendant:

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38.The first defendant Annapottu Ammal had passed away on 25.01.2017 pending first appeal. The trial Court had dismissed the suit for partition with regard to Item Nos.105 to 121 on the ground that they are the

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absolute properties of Annapottu Ammal. The plaintiffs have not chosen to file an appeal over the said portion of the decree. In order to give quietus to

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the issue, this Court is inclined to declare the share of the plaintiffs with regard to those properties also.

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39.The plaintiffs 1 to 3 and the 4^th defendant are entitled to 1/6^th share each. Plaintiffs 7 to 10 ( legal heir of Amasavalli) are entitled to 1/6^th share jointly. Defendants 5 and 6 ( legal heirs of Vasanthi) are entitled to 1/6^th share jointly. However, the parties would be entitled to file a final decree application only on payment of appropriate Court fee, if not paid already.

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(L).Shares of the parties with regard to the properties of the 7th defendant:

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40.The 7^th defendant who is the second wife of Duraisamy Udaiyar had passed away on 15.10.2019 pending first appeal. The trial Court had dismissed the suit with regard to Item Nos. 77 to 90 and 93 on the ground that

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they are the absolute properties of Gandhimathi Ammal. The plaintiffs have not preferred any appeal over the portion of the said decree. However, in order to give quietus to the issue, this Court is inclined to declare the shares of the parties with regard to those properties also. The plaintiffs 4 to 6 and defendants 2 and 3 would be entitled to 1/5^th share each in these properties. However, the parties would be entitled to file a final decree application only on payment of appropriate Court fee, if not paid already.

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(M).Conclusion:

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41.In view of the above said deliberations, the following judgment is

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passed.

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i). The judgment and decree of the trial Court is partly set aside.

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ii).As far as Item Nos. 1 to 76, 91, 92, 122 to 125, 94 to 104 are concerned, the plaintiffs 1 to 3 are entitled to 12/77^th share each. The plaintiffs 7 to 10 shall be entitled to 12/77^th share jointly. The plaintiffs 4 to 6 shall be entitled to 1/77^th share each.

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iii)As far as Item Nos.105 to 121 are concerned, the plaintiffs 1 to 3 are entitled to 1/6^th share each. The plaintiffs 7 to 10 are entitled to 1/6^th share jointly.

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iv)As far as Item Nos.77 to 90 and 93 are concerned, the

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plaintiffs 4 to 6 are entitled to 1/5^th share each.

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46.Accordingly, the First Appeal is partly allowed to the extent as stated above. No costs. Consequently, connected miscellaneous petition is closed.

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(C.V.K.J.,) (R.V.J.,) 14.11.2025.

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