The Second Appeal has arisen out of the judgment and decree dated 19.12.1991 in A.S.No.26 of 1986 on the file of the learned Subordinate Judge of Devakottai, confirming the judgment and decree dated 14.02.1986 in O.S.No.184 of 1984 on the file of the District Munsif Court, Devakottai.
2. The appellant is the first defendant in O.S.No.184 of 1984 and first appellant in A.S.No.26 of 1986, who lost in both the Courts below. One Vinaitheerthan Chettiar was the plaintiff. Respondents 1 to 6, who are the legal heirs of the said Vinaitheerthan Chettiar, were impleaded as respondents 2 to 7 in A.S.No.26 of 1986. Respondents 7 to 10 are the defendants 2 to 5 in O.S.No.184 of 1984 and appellants 2 to 5 in A.S.No.26 of 1986. Pending second appeal, sixth respondent died and respondents 1 to 5 are recorded as legal heirs of the deceased sixth respondent. Ninth respondent died and respondents 11 to 17 are brought on record as his legal heirs. The parties are referred to as per their ranks in the suit.
3. The plaintiff is the son of one Subban through his third wife Deivanai. The first and second wife of Subban are Veerayi and Umayal and they did not have any children. The said Subban died 43 years ago at the time of filing of the suit. After the death of Subban, the plaintiff, who is the only son of Subban inherited the property and patta No.415 was issued to him. He is paying tax and he is in possession of the property. He has mortgaged the property and borrowed money from the Government. He has cultivated cashew trees, which are 17 years old. Before that, plaintiff was cultivating the land by punja crops. For more than the statutory period, the plaintiff is in possession of the property to the knowledge of all. His father died before the Hindu Women's Rights to Property Act, 1937 and therefore, two wives of Subban did not get any right in the agricultural lands. They did not have any right to sell the property. The defendants purchased the portion of the suit property from the second wife Umayal. The second wife of Subban and defendants 2 and 3 added their names in patta No.415 from the fasili 1393. The plaintiff gave a petition to the Tahsildar, Karaikudi. The said petition was dismissed with a direction to the plaintiff to approach the competent Civil Court for his relief. Based on the patta, defendants 2 to 5 sold 1/3 undivided share to the first defendant. In 1984, the defendants informed the plaintiff that they are going to encroach the suit property. The defendants are not having any right and title in the suit property. Even if the step mother of plaintiff had any share in the suit property, after the death of his stepmothers, plaintiff acquired right to the entire property. The plaintiff, in the circumstance, filed the suit for declaration and injunction.
4. The first defendant filed written statement and denied the averments made in the plaint. The first defendant submitted that Veerayi and Umayal alone are legally wedded wives of Subban. The plaintiff's mother Deivanai was only concubine of Subban. The first two wives Veerayi and Umayal agreed for Subban to have Deivanai as concubine only after Subban agreed to give 1/3rd share each in the properties of Subban. The plaintiff is not the son of legally wedded wife of Subban and therefore, he is not having any share in the suit property. After the death of Subban, plaintiff requested Veerayi and Umayal to declare him as son of Subban. They agreed for the same and a family arrangement was made and in the said family arrangement, 1/3 each shares of Veerayi and Umayal was confirmed and balance 1/3 share was allotted to the plaintiff. The plaintiff in the circumstance cannot question the title and the shares of Veerayi and Umayal. Other properties were enjoyed by Veerayi, Umayal, plaintiff and his mother jointly. It is not correct to state that the plaintiff is in entire possession of the suit property. Cashew saplings were planted by first defendant and they are six to seven years old only. It is not correct to state that they are 17 years old trees.
5. The allegation that the plaintiff was cultivating entire property and by adverse possession perfected title are not correct. Patta pass book and kist receipt will not show that the plaintiff is in conclusive possession of the suit property. The shares of Veerayi and Umayal were purchased by the defendants 2 to 5 and the plaintiff was aware of the same. The plaintiff also executed a sale deed accepting the sale by Veerayi and Umayal. The plaintiff is estopped from denying the title of Veerayi and Umayal. In fact, it is only the plaintiff who instigated the first defendant and his father to purchase the suit property of Umayal and Veerayi. The plaintiff also agreed to sell his share in the suit property for a total consideration of Rs.1,640/- and received a sum of Rs.640/- as an advance. Subsequently, the plaintiff refused to execute the sale deed. The first defendant alone is in possession of the suit property for more than the statutory period and perfected his title by adverse possession. When the first defendant insisted on the plaintiff for executing the sale deed in respect of his 1/3 share, he has filed the suit with false allegations.
6. The defendants 2 to 5 adopted the written statement filed by the first defendant.
7. The learned trial Judge framed necessary issues. Before the trial Court, the plaintiff was examined as P.W.1 and one Velu was examined as P.W.2 and marked 24 documents as Exs.A1 to A24. The second defendant examined himself as D.W.1 and fourth defendant was examined as D.W.2 and one Lakshmanan, Manager of first defendant was examined as D.W.3 and marked 9 documents as Exs.B1 to B9.
8. The learned Judge considering the pleadings, oral and documentary evidence and arguments of the counsel for the parties, decreed the suit holding that the marriage between the plaintiff's mother Deivanai and Subban is valid and plaintiff is legitimate son of Subban; Veerayi and Umayal did not have right over the property of Subban; The defendants have not proved that they have purchased the suit property from Veerayi and Umayal by Exs.B5 and B8; The plaintiff did not agree to sell his share to first defendant.
9. Against the judgment and decree dated 14.02.1986 made in O.S.No.184 of 1984, the defendants filed A.S.No.26 of 1986 before the Sub-Court, Devakottai. The first defendant also filed A.S.No.27 of 1986 against the judgment and decree made in O.S.No.159 of 1984, which was filed by the plaintiff.
10. The learned Subordinate Judge set aside the judgment and decree of the trial Court and remanded the suit to the trial Court on the ground that necessary issues were not framed. Challenging the order of remand, the plaintiff filed A.A.O.Nos.438 and 439/1987 before this Court. By consent of parties, both the appeals were heard together and the parties agreed that there is no necessity to remand the suit to the trial Court, as the first Appellate Court itself can frame necessary issues and dispose the matter. In view of the same, this Court by order dated 09.03.1988 disposed both the appeals in A.A.O.Nos.438 and 439/1987 directing the first Appellate Court to dispose the appeals on merits after framing necessary issues. This Court also held that it is open to the Appellate Court to consider whether additional evidence can be permitted to be adduced in the appeal order. After remand, the defendants filed three applications in I.A.Nos.190, 198 and 241 of 1991 in A.S.No.26 of 1986 for receiving the documents mentioned therein as additional evidence.
11. The learned Judge framed points for consideration to decide the appeals as per the order of this Court.
12. The learned counsel for the plaintiff and defendants advanced their arguments and the learned Appellate Judge considering the pleadings, oral and documentary evidence and judgment of the trial Court, dismissed the appeals holding that the marriage between the plaintiff's mother Deivanai and Subban is valid and the plaintiff is legitimate son of Subban; Veerayi and Umayal did not inherit the suit property and defendants have not proved the family partition put forth by them and the defendants failed to prove that Veerayi and Umayal sold the property to the defendants by Exs.B5 and B8.
13. The learned Subordinate Judge also held that even if Veerayi and Umayal inherited two shares in Subban's property, they have not inherited absolute right in view of the fact that Subban died before 1956 and Veerayi and Umayal were not in possession of the suit property, when the Hindu Succession Act came into force. The learned First Appellate Judge also held that the defendants have not proved that the plaintiff agreed to sell his share of the property to the first defendant.
14. Against the judgment and decree dated 19.12.1991 made in A.S.No.26 of 1986, the present second appeal is filed by the first defendant.
15. At the time of admission, following substantial questions of law were framed:
?1. Whether the first Appellate Court is correct in decreeing the suit disbelieving the family arrangement pleaded by the defendants on the basis of the documents?
2. Whether the first Appellate Court was correct in refusing to admit additional documents sought to be filed to establish the family arrangement??
16. Learned counsel for the appellant/first defendant submitted that the learned First Appellate Judge failed to comply with the direction of this Court dated 09.03.1988 made in A.A.O.Nos.438 and 439 of 1987. The learned Judge did not follow the correct procedure in considering I.A.Nos.190, 198 and 241 of 1991. The learned Judge ought to have considered the applications along with the appeal and erred in considering the application independently and passing order before the appeal was heard. The learned Judge failed to consider the additional documents sought to be filed as additional evidence which are vital to prove the case of the defendants that there was family arrangement and the same was acted upon. The marriage between Subban and Deivanai is a void marriage, as the same is between a male of low caste with a female of high caste. The said marriage is Pratiloma marriage and the same is void and invalid and children born in the said wed lock are illegitimate children. As per the old Hindu law, illegitimate son and widow inherited the property of male Hindu equally. In view of the same, the plaintiff did not inherit the entire property and he will be entitled only half of the properties left behind by Subban. The marriage between Subban and Deivanai was not covered by the Act of 21 of 1967, whereby Section 7-A introduced in the Hindu Marriages Act, 1955 held valid invalid marriages.
17. The learned First Appellate Judge did not frame any issues and any issues framed after reserving judgment behind the back of parties and judgment delivered based on those issues vitiate entire judgment. The learned First Appellate Judge is not right in holding that the defendants failed to prove the alleged family partition between plaintiff, Veerayi and Umayal and that the defendants failed to prove that the properties covered by Exs.B5 and B8 are not related to the suit properties. Therefore, he prayed for allowing the second appeal. In support of his contention, he has relied upon the following judgments:
(i) (1959) 1 M.L.J. 265 in (Velu Niranjan (minor through his maternal uncle and next friend Pakkiri singh) v. Alagammal and others), wherein in pages 267 and 268, the marked portions are extracted hereunder:
? .. .. But there was no proof in this case that among the Yadhavas or the Kshatriyas to which communities these two people belonged, merely going into a temple and tying a tali round the bride's neck by the bridegroom would be sufficient to complete a valid marriage. The whole matter has been discussed at length in a ruling of a Bench of this Court consisting of Satyanarayana Rao and Rajagopalan, JJ., in Devayani Achi v. Chidambaram Chetty (1955) 1 M.L.J. 120. It has been held that some rites or ceremonies are essential unless there is a valid custom to the contrary. The authorities of Tiruparankundram temple were not examined to prove any such custom, or the leaders or the Yadhava and Kshatriya castes.
.. .. He urged that defendant 1, the widow, did not have any rights given to her under the Madras Act of 1947 in agricultural lands till 26th November, 1946, and that, as Rajagopal had died on 7th February, 1946, the plaintiff, his illegitimate son, was the sole heir to his agricultural lands. This is overlooking the simple point that the object of Act XXVI of 1947 was to enlarge women's rights in properties, and not to take away existing rights. Under the ordinary Hindu Law, the widow and illegitimate son of a Sudra would take half and half. So defendant I's right to take a half share in the agricultural lands under the ordinary Hindu Law was not taken away, but subsisted in full force, as remarked by the lower Court which has also quoted the Privy Council ruling in Kamulammal v. Visvanathaswami Naicker (1922) I.L.R. 46 Mad. 167, in support of this view, which is undoubtedly correct. .. .. ?
(ii) 2004 (4) CTC 143 in (K.G.Shivalingappa (dead) by Lrs. And others v. G.S.Eswarappa and others), wherein in para-13 and 14, it is held as follows:
?13. In Nandi Bai v. Gita Bai Kom Rama Gunge, AIR 1958 SC 706, it has been held by this Court that though partition amongst the Hindus may be effected orally but if the parties reduces it in writing to a formal document which is intended to be evidence of partition, it would have the effect of declaring the exclusive title of the coparcener to whom a particular property was allotted in partition and thus the document would be required to be compulsorily registered under
Section 17(1)(b) of the Registration Act. However, if the document did not evidence any partition by metes and bounds, it would be outside the purview of
Section 17(1)(b) of the Indian Registration Act. This decision was followed in Shiromani and Ors. v. Hem Kumar and Ors., AIR 1968 SC 1299 and Roshan Singh v. Zile Singh, AIR 1988 SC
881. In Sk. Sattar Sk. Mohd. Choudhari v. Gundappa Amabadas Bukate, 1996 (6) SCC 373, after analysing the judgments, referred to above, this Court observed:
"Partition, specially among the coparceners, would be a "Transfer" for purposes of Registration Act 1908 or not has been considered in Nani Bai v. Gita Bai Kom Rama Gunge, AIR 1958 SC 706 and it has been held that though a partition may be effected orally, if the parties reduce the transaction to a formal document which was intended to be evidence of partition, it would have the effect of declaring the exclusive title of the coparcener to whom a particular property was allotted (by partition) and thus the document would all within the mischief of
Section 17(1)(b) of the Registration Act under which the document is compulsorily registerable. If, however, that document did not evidence any partition by metes and bounds, it would be outside the purview of that section. This decision has since been followed in Siromani v. Hemkumar and Roshan Singh v. Zile singh, (AIR 1988 SC 881)."
14. We have gone through the judgment of the first Appellate Court with the help of the learned counsel for the parties. The first Appellate Court came to the firm finding of fact that there was a prior partition of the joint family property amongst the three branches of Shivalingappa-(III), Rangappa and Mahadevappa. The document Exh. D-101 though unregistered could be relied upon to establish the severance of status in the joint family. The parties were having separate possession of the properties over several decades and were in enjoyment of the properties that had fallen to the shares of three branches by their respective owners. The branches of Mahadevappa and Rangappa were cultivating equal portions by paying taxes and they had also divided the house which had come to their shares and were living in two portions separately. For the lands acquired, the branches of Rangappa and Mahadevappa had received compensation which was distributed by them amongst themselves to the exclusion of the branch of Shivalingappa-(II), thus, evidencing the fact that the properties were partitioned and the respective branches were enjoying the properties and its usufruct separately. The three branches had been disposing of the properties which had fallen to their shares and had purchased separate properties. The khata entries also indicated that the properties were standing in their names separately. The learned Single Judge has not adverted to or set aside any of the findings recorded by the first Appellate Court. The learned Single Judge has clearly fell in error in reversing the judgment without disturbing any of the findings referred to above.?
(iii) 1995-1-L.W.141 in (Annapoorni v. Janaki), wherein in para-11, it is held as follows:
?11. When this Court finds that a decree suffers from an error of law apparent on the fact of the record owing to non-application of mind of the Court, to the relevant principles of law, this Court cannot keep silent and allow the decree to be in force, particularly, when it causes grave injustice. There can be no doubt whatever that under the Hindu Succession Act, certain persons are designated as Class I heirs and all of them are entitled to succeed to the estate of a deceased Hindu. There is no earthly reason for depriving the mother of the deceased of her legitimate share in the estate which in this case happens to be a moiety. This is a typical case of miscarriage of justice which should be rectified the moment it comes to the notice of this Court. It is only for that reason, I am exercising my powers under Section 115 of Code of Civil Procedure and
Article 227 of the Constitution of India.?
(iv) 2014-4-L-W.474 in (Himayam Engineers and Builders, Represented by its Proprietor P.Ramna Reddy, No.150, Old No.60, Rama Naicken Street, Nungambakkam, Chennai-600 034 v. S.Ravichandran & Others), wherein in para- 5.5, it is held as follows:
?5.5. In the case on hand, admittedly, the parties have not been heard before the framing of the additional issue. The additional issue framed goes to the root of the matter. It has got the effect of making the appellant disentitled to get a relief on merits. Such an issue cannot be framed and decided by the Court without hearing the parties. Therefore, we are of the view that the procedure adopted by the learned single Judge cannot be sustained in the eye of law. .. .. ?
(v) (2001) 8 SCC 487 in (Narayan Govind Hegde v. Kamalakara Shivarama Hegde and another), wherein para-13 is extracted hereunder:
?13. Thus the settled position of law is that the widow succeeds as a heir to her husband. The ownership of properties vests in her. She fully represents the estate, the interest of reversioners therein being only spes successionis. In the case in hand after the death of her husband, the widow- Smt. Yenki, Opposite Party 3 succeeded to the property of her husband and she was entitled to full enjoyment of the estate subject to limited interest known as Hindu Women's Estates. This right includes right to alienate the property for legal necessity of the family. Therefore, the allegation of the applicant that he was the sole owner of the disputed land is not sustainable in law.?
(vi) (1923) 25 BOMLR 577 in (Kamulaamal v. T.B.K.Visvanathswami Naicker) wherein in para-16, it is held as follows:
?16. If the true method of computation be to allot to the illegitimate son one-half of what he would have taken had he been legitimate, then where the competition is between the illegitimate son and the widow the allotment of the respective shares presents no difficulty. Such a son if born of a lawfully-wedded wife would have taken the whole; by reason of his illegitimacy this would be reduced to one-half; and so he and the lawfully- married widow would take in equal shares.?
18. Per contra, learned counsel for the respondents 1 to 5/legal heirs of the plaintiff submitted that the learned First Appellate Judge has framed necessary issues for consideration and both the parties advanced their arguments on all the issues and the learned First Appellate Judge has considered each and every points and rendered judgment. Even if necessary issues are not framed, if parties understood the points for consideration and advanced the arguments, non framing of issues will not vitiate the judgment so rendered on all the issues. The unregistered and unstamped document is inadmissible in evidence and cannot be looked into even for collateral purpose. In view of the well settled judicial pronouncement, the learned Judge has rightly rejected the applications filed by the defendants to let in additional evidence before the learned Appellate Judge. The plaintiff has proved his possession by marking Exs.A1 to A19 including patta pass book, settlement register, A-register and kisth receipts.
19. On the other hand, the defendants have filed joint patta obtaining in the year 1984 after more than 35 years of purchase and single tax receipt for the year 1984. No document was produced to show that the possession of Veerayi and Umayal over the suit property at any point of time. The defendants did not produce any document in respect of the suit property subsequent to their purchase under Exs.B5 and B8. Veerayi and Umayal did not acquire any right over the suit property being agricultural lands during the relevant time under the Hindu Women's Rights to Property Act, 1937. The Hindu Women's Rights to Property Act, 1937 was amended and women had right over the agricultural property only when the amendment came into effect with effect from 18.12.1947. The said amendment did not have retrospective effect. The plaintiff had proved the valid marriage between his mother and Subban. Even if it is Pratiloma type of marriage, by the Hindu Marriages Validity Act, 1949, the said marriage became valid. The said Act had retrospective effect and the plaintiff is the only legal heir and inherited the entire property of his father Subban. The defendants had not proved that the property mentioned in Exs.B5 and B8 related to the suit property and that the plaintiff agreed to sell his share to the first defendant. In support of his contention, he has relied on the following judgments:
(i) In (2005) 10 Supreme Court Cases 51 in (Swamy Atmananda and Others v. Sri Ramakrishna Tapovanam and Others), wherein in para-39, it is held as follows:
?39. If the parties went to the trial knowing fully well the real issues involved and adduced evidence in such a case, without establishing prejudice, it would not be open to a party to raise the question of non-framing of particular issue. ?
(ii) 2003 STPL 17597 Bombay (AIR 2004 BOMBAY 418) in (Krishna Laxman Bhatkar(Since Deceased by LRS) and ETC v. Vithal Ganesh Athavale), wherein in para-10, it is held as follows:
?10. I find considerable force in the submissions made by Mr. Godbole. Supreme Court judgment relied upon by him and referred to above squarely applies to the facts of the case. The appellate Court while deciding the appeal has considered each and every submission made by the appellant and given his findings. The judgment of the appellate Court shows that the appellate Court has applied its mind to all the submissions made, the documents relied upon and the evidence adduced and has given cogent and convincing reasons for accepting or rejecting each of the submissions made by the respective parties arid therefore merely because the points for determination were not framed, like framing of the issue that would not itself vitiate the judgment nor that could be a case for remand to the appellate Court. In the Judgment relied upon by Mr. Rane this judgment of the Supreme Court is not referred. Further the judgment of the Supreme Court relied upon by Mr.Godbole squarely applies to this case, therefore this contention and objection of "Mr. Rane is required to be rejected, Point No. 1 of the substantial question is therefore answered in the negative and against the appellant. ?
(iii) (2001)1 M.L.J.1 in (A.C.Lakshmipathy and another v. A.M.Chakrapani Reddiar and others), wherein in para-41 & 42, it is held as follows:
?41. We hold that the document in question is being an unstamped and unregistered, the same cannot be looked into for any purpose. Similarly, oral evidence cannot be let in about the contents of the said document.
42. To sum up the legal position:
(I) A family arrangement can be made orally.
(II) If made orally, there being no document, no question of registration arises.
(III) If the family arrangement is reduced to writing and it purports to create, declare, assign, limit or extinguish any right, title or interest of any immovable property, it must be properly stamped and duly registered as per the Indian Stamp Act and Indian Registration Act.
(IV) Whether the terms have been reduced to the form of a document is a question of fact in each case to be determined upon a consideration of the nature of phraseology of the writing and the circumstances in which and the purpose with which it was written.
(V) However, a document in the nature of a Memorandum, evidencing a family arrangement already entered into and had been prepared as a record of what had been agreed upon, in order that there are no hazy notions in future, it need not be stamped or registered.
(VI) Only when the parties reduce the family arrangement in writing with the purpose of using that writing as proof of what they had arranged and, where the arrangement is brought about by the document as such, that the document would require registration as it is then that it would be a document of title declaring for future what rights in what properties the parties possess.
(VII) If the family arrangement is stamped but not registered, it can be looked into for collateral purposes.
(VIII) Whether the purpose is a collateral purpose, is a question of fact depending upon facts and circumstances of each case. A person can not claim a right or title to a property under the said document, which is being looked into only for collateral purposes.
(IX) A family arrangement which is not stamped and not registered cannot be looked into for any purpose in view of the specific bar in
Section 35 of the Indian Stamp Act.?
(iv) (2007) 4 Supreme Court Cases 163 in (Chinthamani Ammal V. Nandagopal Gounder and Another), wherein in para-12, it is held as follows:
?12. The legal position that the appellant herein could not claim any right, title and interest, whether in terms of the provisions of the Hindu Women's Right to Property Act, 1937 or as a successor of the said Kesava Gounder, if the joint status was not severed, is not in dispute. The Hindu Women's Right to Property Act was not applicable in relation to agricultural land. The State of Madras made an amendment in that behalf in the year 1947 whereafter, only a widow became entitled to claim limited ownership in the share of her husband. The mother of the appellant i.e. wife of the said Kesava Gounder, thus, did not derive any right, title and interest in the property of her husband in the year 1943, when he expired. Furthermore, admittedly, she left the family and married another person in the year 1945 and thus the question of her deriving any benefit in terms of the 1947 amendment also did not arise.
(v) (2009) 9 Supreme Court Cases 299 in (Challamma V. Tilaga and Others), wherein in para-12, it is held as follows:
?12. It is also well settled that a presumption of a valid marriage although is a rebuttable one, it is for the other party to establish the same. (See Ranganath Parmeshwar Panditrao Modi v. Eknath Gajanan Kulkarni [(1996) 7 SCC 681], and Sobha Hymavathi Devi v. Setti Gangadhara Swamy). Such a presumption can be validly raised having regard to
Section 50 of the Evidence Act. [See Tulsa] A heavy burden, thus, lies on the person who seeks to prove that no marriage has taken place.?
(vi) (2008) 4 Supreme Court Cases 520 in (Tulsa and others v. Durghatiya and others), wherein in para- 12 to 14, it is held as follows:
?12. A number of judicial pronouncements have been made on this aspect of the matter. The Privy Council, on two occasions, considered the scope of the presumption that could be drawn as to the relationship of marriage between two persons living together. In first of them i.e. A. Dinohamy v. W.L. Blahamy1 their Lordships of the Privy Council laid down the general proposition that:(AIR p.187) ?...Where a man and woman are proved to have lived together as man and wife, the law will presume, unless the contrary be clearly proved, that they were living together in consequence of a valid marriage and not in a state of concubinage.?
13. In Mohabbat Ali Khan v. Mohd. Ibrahim Khan their Lordships of the Privy Council once again laid down that: (AIR p. 138) ?The law presumes in favour of marriage and against concubinage when a man and woman have cohabited continuously for number of years.?
14. It was held that such a presumption could be drawn under Section 114 of the Evidence Act.?
(vii) AIR 1964 Supreme Court 1126 (V 51 C 141) in (V.R. Sadagopa Naidu(deceased) and his Legal heirs and others v. Bakthavatsalam and another), wherein in para-9, it is held as follows:
?9.We cannot agree. In our opinion, the use of the words "the issue of no such marriage shall be illegitimate" was not really necessary in S. 1 of the Hindu Widows' Re-Marriage Act, and even without these words the effect of a marriage being valid would necessarily have been that the, issue of the marriage was legitimate. These words were put in the section by the legislature in 1856 as a matter of abundant, caution. The absence of such words in the Hindu Marriages Validity Act, 1949 is of no consequence. If the Act had not retrospectively validated marriages celebrated before the date of the Act, the children of those marriages could not have claimed to be legitimate. The Act was however in terms retrospective and validated marriages that had taken place before the Act between parties belonging to different,, castes, sub-castes and sects. It is idle to contend that the object of the legislature was only to regularise the status of the husband and the wife. That certainly was part of the object. But equally important, or perhaps more important object was that the children of the marriages would become legitimate.?
20. I have heard the submissions made on either side and perused the materials available on record.
21. The first contention of the learned counsel for the first defendant/appellant that the learned First Appellate Judge did not comply with the order of this Court made in A.A.O.Nos.438 and 439 of 1987, dated 09.03.1988 and therefore the judgment vitiated is not correct. The learned First Appellate Judge has framed necessary points for consideration and both the parties advanced their arguments. The learned First Appellate Judge after considering the same, has given findings on each and every issue raised by the parties. The contention of the learned counsel for the respondents 1 to 5/legal heirs of plaintiff that even if any issues are not framed, when the parties understood the issues and advanced their arguments and the Court has considered the submissions and given findings, non framing of issues will not vitiate the judgment, has considerable force. This issue as submitted by the counsel for the respondents 1 to 5 has been decided by various judgments of this Court as well as by the Honourable Apex Court.
22. Similarly, the contention of learned counsel for the first defendant/appellant that the learned First Appellate Judge ought to have considered the three applications filed by the defendants for receiving additional evidence along with an appeal and the procedure adopted by the learned Judge by considering the applications independently and passing order before hearing appeal is not proper procedure, is untenable. At the appellate stage, the Appellate Court has to consider the Order 41 Rule 27 of C.P.C., which deals with production of additional evidence in Appellate Court and whether party has given valid reasons for not filing the document at the earliest stage especially before the trial Court. If the Appellate Court allowed production of additional evidence by way of documents, the parties must be given an opportunity to prove the admissibility and the relevancy of the document to the issues involved as per Order 41 Rule 28 of C.P.C. The other party has a right to challenge the document and prove the inadmissibility and relevancy of the document. In view of the said provision, the learned Judge has rightly considered the applications earlier and dismissed the same. It is not the case of the defendants that they have challenged the said order by initiating further proceedings. They have failed to do so and the order has become final. It is not open to the defendants to challenge the refusal of the learned First Appellate Judge to permit adducing the additional evidence by filing the document in the present second appeal.
23. The next contention of the learned counsel for the first defendant/appellant is that the marriage between the parents of plaintiff (Subban and Deivanai) is void and invalid and the plaintiff is illegitimate son, since the marriage is Pratiloma type of marriage i.e., marriage between Hindu male of low caste with Hindu female of high caste is contrary to law. If marriage between low caste Hindu male with high caste Hindu female is conducted as per the customs of the caste of parties, the same is valid. The Division Bench of this Court reported in (1959) 1 M.L.J. 265 in (Velu Niranjan (minor through his maternal uncle and next friend Pakkiri singh) v. Alagammal and others) held that if Pratiloma marriage was conducted as per the customs of parties, the same is valid. In the present case, P.W.2/nephew of Umayal, second wife of Subban, deposed that marriage between Deivanai and Subban was conducted as per the customs and Subban tied thali as per their customs. He also deposed that he attended the marriage.
24. Per contra, the defendants examined D.W.2 and D.W.3, who deposed that no marriage took place between Subban and Deivanai. Their evidence was disbelieved by the Courts below on the ground that they belong to different village and evidence of P.W.2/nephew of Umayal is acceptable rather than evidence of D.W.2 and D.W.3. The reasons given by the Courts below are valid reasons and there is no error of law for interfering with the said findings. Further the contention of the learned counsel for the plaintiff is that as per the provisions of the Hindu Marriages Validity Act, 1949, the marriage between Subban and Deivanai had been ratified and it has become valid marriage. The provisions of the said Act has retrospective effect. In view of the judgment of this Court reported in (1959) 1 M.L.J. 265 in (Velu Niranjan (minor through his maternal uncle and next friend Pakkiri singh) v. Alagammal and others) and the evidence of P.W.2 and the provisions of Hindu Marriages Validity Act, 1949, I hold that the marriage between Subban and Deivanai is valid marriage and the plaintiff is the legitimate son of Subban. In view of this finding, the judgments reported in (1959) 1 M.L.J. 265 in (Velu Niranjan (minor through his maternal uncle and next friend Pakkiri singh) v. Alagammal and others) and (1923) 25 BOMLR 577 in (Kamulaamal v. T.B.K.Visvanathswami Naicker) relied on by the learned counsel for the first defendant/appellant to contend that the plaintiff is illegitimate son and he has only half share in the suit property, are not applicable to the facts of the present case.
25. Learned counsel for the first defendant/appellant contended that when Subban was alive before taking Deivanai as his concubine, Subban allotted 1/3 share each to his wives Veerayi and Umayal. After the death of Subban, the plaintiff requested Veerayi and Umayal to declare him as son and magnanimously, Veerayi and Umayal accepted the same and gave 1/3 share to him and subsequently, Panchayat was held, in which, all the three persons Veerayi, Umayal and plaintiff were given 1/3 share each in the properties and they acted upon based on the family partition. In the circumstance, the plaintiff is not entitled to dispute the shares of Veerayi and Umayal are untenable. The defendants have not substantiated this claim that while Subban was alive, he allotted 1/3 share each to Veerayi and Umayal. The defendants also failed to prove the Panchayat family partition by any acceptable evidence. They sought to adduce additional evidence by producing the documents relating to family arrangement and the fact that the plaintiff also acted upon the same. These documents were sought to be produced in the First Appeal and the learned First Appellate Judge has rejected the same and the defendants have not taken any further proceedings challenging the said order and the said order has become final.
26. It is pertinent to note that Veerayi and Umayal have not produced any document to show that they were in possession and the defendants have not produced any document to show that they are in possession from the date of purchase. They produced only joint patta issued in the year 1986 and kist receipt for the year 1986. On the other hand, the plaintiff produced the patta and kist receipts to show that he has paid the same for a long period. When the defendants' names were included in the patta issued to the plaintiff, he gave a petition to the Tahsildar, Karaikudi for deletion of names of the defendants. The said petition was rejected directing the plaintiff to approach the competent Civil Court. The plaintiff has filed the suit for declaration and injunction. This fact clearly shows that the plaintiff is in possession and enjoyment of the suit property from the date of death of Subban. This will also amount to perfecting his title by adverse possession.
27. It is admitted by the parties that Subban died in the year 1940 or 1941. At that time, Hindu widows have only limited right in the estate of deceased husband. The same was enlarged by the Hindu Succession Act, 1956 and widows have become absolute owners of the property. But the condition of such enlargement is that Hindu widow must be in possession of the property, when the Act came into force. In the present case, Veerayi and Umayal alleged to have sold the property a long before the said Act came into force. In view of the law prevailing at the time of death of Subban, Veerayi and Umayal did not have absolute right over the properties through their husband Subban. It is settled that a Hindu widow can sell the limited estate in her possession for family necessity. In the present case, it is not the contention of the defendants that Veerayi and Umayal sold the portion of the suit properties for family necessity. In addition to the above position, the Courts below have held that the property purchased by the defendants under Exs.B5 and B8 did not relate to the suit property. The Courts below have concurrently held on the fact that the plaintiff is in possession and enjoyment of the suit property and the defendants did not purchase the portion of the property and there is no circumstance or reason warranting interference to such finding.
28. In view of the findings that the marriage between Subban and Deivanai is valid marriage and the plaintiff is legitimate son of Subban, the judgment reported in (1923) 25 BOMLR 577 in (Kamulaamal v. T.B.K.Visvanathswami Naicker) is not applicable to the facts of the present case. The judgment rendered by the Division Bench of this Court reported in (1959) 1 M.L.J. 265 in (Velu Niranjan (minor through his maternal uncle and next friend Pakkiri singh) v. Alagammal and others), does not advance the case of the first defendant/appellant. On the other hand, it advances the case of the plaintiff.
29. In the result, I hold that:
(i) The marriage between Subban and Deivanai is valid one and the plaintiff is legitimate son of Subban;
(ii) The defendants have failed to prove that Subban, during his lifetime itself, allotted 1/3 share each to Veerayi, Umayal and plaintiff;
(iii) The defendants failed to prove Panchayat and family partition and allotment of 1/3 share each to Veerayi, Umayal and plaintiff and they acted as per the said Panchayat family partition.
(iv) The defendants failed to prove that Veerayi and Umayal were in possession of the properties of Subban, after his death and the defendants were in possession and enjoyment from the date of their purchase by Exs.B5 and B8. The defendants failed to prove that the properties covered by the sale deeds under Exs.B5 and B8 are portions of the suit property.
(v) The plaintiff has proved his possession from the date of death of his father by producing patta and kist receipt;
(vi) The plaintiff also has taken immediate steps to delete the names of the defendants from the patta issued to him. When the petition was rejected, the plaintiff has filed the suit for declaration and injunction;
(vii) The learned First Appellate Judge has correctly followed the procedure while considering the applications filed by the defendants to receive the documents mentioned in the petition as additional documents;
(viii) The defendants are not entitled to challenge the order of rejection to file additional documents in the second appeal as the said order has become final, as the defendants have not taken any further proceedings against the order passed in I.A.Nos.190, 198 and 241 of 1991.
(ix) Veerayi and Umayal did not inherit absolute right in the suit property after the death of their husband Subban and they did not have right to alienate the property;
(x) Accordingly, the substantial questions of law are answered against the first defendant/appellant;
(xi) The second appeal is dismissed;
(xii) There is no order as to costs;
To
1. The Sub-Court, Devakottai.
2. The District Munsif Court, Devakottai. .