1. Suit for partition and separate possession.
2. The plaint averments are as follows :--
The 1st defendant Smt. Lakshmikan-thammal and 2nd defendant Smt. Raja-lakshmi Ammal are senior and junior widows of one late Srinivasalu Naidu who died intestate on 4-5-1980. The 3rd defendant Smt. Sarojini is the daughter of the 1st defendant Smt. Lakshmikanthammal, while 4th defendant Gajalakshmi is the eledest daughter of 2nd defendant Smt. Rajalakshmi Animal. Plaintiff Baghyavathi is her youngest daughter. Srinivasalu Naidu married the second defendant Smt. Rajalakshmi Ammal as his second wife in the year 1948. While items 1 to 3 in the plaint schedule are the self acquired properties of Srinivasalu Naidu, the shipping and clearing agent business carried, on by him as sole proprietor is described as Item 4 in the plaint schedule. The parties herein alone are legal heirs of deceased Srinivasalu Naidu. The plaintiff is entitled to 1/4th share in the said properties. Hence the suit for partition and separate possession of her one fourth share in the said properties. Hence the suit for partition and separate possession of her one fourth share in the plaint properties and for directing the defendants to pay her marriage expenses and for directing the defendants 1 and 2 to render a true and proper account of the mesne profits and pay her due share therein.
3. The 2nd defendant has paid court feesand demanded for partition and separate possession of her share in the properties. She pleads that her marriage with late Srinivasalu Naidu was solemnised at Sri Parthasarathy-swamy temple, Triplicane, Madras according to Hindu rites and customs in the year 1948. Thereafter both of them were living together as husband and wife at Old No. 21, Vinayaga Maistry Street. G.T. Madras. The plaintiff was born to her on 10-5-1951 at the Rainey Hospital, Tondiarpel, Madras during their lawful wedlock. She and late Srinivasalu Naidu lived together at No. 12 Sambier street. George Town from 1949 to 1958. Thereafter they shifted their residence to No. 1/55, Mullah Sahib Street, George Town. They were living at No. 318 Mint street, Madras from the year 1960 to 1976. Her husband Srinivasalu Naidu was very much attached to her and her daughter the plaintiff herein.
4. The 4th defendant practically admits the allegations in the plaint and sails with the plaintiff. She claims that she is the eldest daugher of late Srinivasulu Naidu through his second wife Smt. Rajalakshmi Ammal. And she is entitled to an one fourth share in the suit properties after the death of her father.
5. The 3rd defendant who is the contesting defendant denies in her written statement and additional written statement that either the plaintiff and the 4th defendant are the daughters nor the 2nd defendnt is the wife of M. Srinivasalu Naidu. She and her mother the 1st defendant are the only heirs to the estate of M. Srinivasulu Naidu. The plaintiff and the defendants 2 and 4 belong to Devadasy community who have peculiar customs of their own. M. Srinivasalu Naidu had nothing to do with these three people throughout their life and he lived only with the 1 st defendant in the latter's house and died there. M. Srinivasulu Naidu had not married any one else in his lifetime except the first defendant. In any event, Item No. 1 of the suit property absolutely belongs to the 1st defendant. Srinivasulu Naidu owned Item No. 2 alone. The business of shipping agency described as Item No. 3 does not belong to M. Srinivasulu Naidu exclusively. The said business was carried on by him in partnershipwith this defendant. The partnership was automatically dissolved on the demise of Srinivasulu Naidu on 4-5-1980. At the time of his death Srinivasulu Naidu owed Rs. 89,000/- to the partnership.
6. The 1st defendant by a memo has adopted the written statement of the 3rd defendant. After the death of 1st defendant the 3rd defendant has been recorded as her legal representative.
7. On these pleadings the following issues arise for consideration :--
1. Whether the 2nd defendant Rajalakshmi Ammal is the legally wedded 2nd wife of Srinivasalu Naidu?
2. Whether the plaintiff is the daughter of Srinivasalu Naidu through the 2nd defendant?
3. Whether the plaintiff or the 2nd defendant has any right ir the properties left by Srinivasalu Naidu?
4. Whether the 2nd defendant has to be allotted any share in the suit items?
5. Whether the 4th defendant is the daughter of Srinivasalu Naidu through the 2nd defendant?
6. Whether Item I of the plaint schedule property belongs to the 1st defendant?
7. Whether Item 3 of the plaint 'B' schedule partnership business did not belong to Srinivasalu Naidu exclusively? and whether Srinivasalu Naidu was only debtor of that Firm?
8. Whether the Motor car described in Item 4 of the plaint 'D' schedule did not belong to Srinivasalu Naidu?
9. To what relief?
8. Issues Nos. 1, 2 and 5 :-- There is no dispute that the 1st defendant Smt. Lakshmi-kanthammal and the 3rd defendant Smt. Sarojini are the widow and daughter respectively of late Srinivasalu Naidu who died on 4-5-1980. While they contend that the 1st defendant is the only wife and the 3rd defendantis the only daughter of M. Srinivasalu Naidu, controversy herein relates to the marial status of the second defendant and the paternity of plaintiff and fourth defendant. Though defendants 1 and 3 chose to allege in their pleadings and Ex.P3 Reply Notice issued by them on 21-7-1980 for Ex.P1 Notice dated 1-7-1980 of the plaintif and second defendant that plaintiff and defendants 2 and 4 are total strengers to them and they have nothing to do with Srinivasulu Naidu during trial there was a shift in their stand. When P.W. 1 Bagbya-vathi was in the witness-box, the third defendant has suggested to her in cross-examination that perhaps Srinivasalu Naidu had some affairs or some connection with third defendant Rajalakshmi Ammal, but he was not the lawfully wedded husband of the third defendant. While D.W. 1 Rajalakshmi was cross-examined by third defendant it was also suggested to her that Srinivasalu Naidu had some illegitimate affairs with her and taking advantage of that she has tried to build up a false case. Besides we find from Ex.P4 Birth Register Extract that a female child was born to Rajalakshmi on 20-6-1951 in Rainy Hospital. In this Extract the father's name of the child is shown as M. Sreenivasalu Naidu and his permanent address as 12, Sambier Street. In this connection it is the evidence of P.W. 1 Bhakyavathi that this certificate relates to her birth and M. Srinivasulu Naidu is shown as her father. She was born in Rainy Hospital, Royapuram, Madras. Ex.P11 is her S.S.L.C. Book wherein also her father's name is given as M. Srinivasalu Naidu. Ex. PI I (a) is the signature of her father. Till 1955 they were residing at 12, Sambu Iyer Street, D.W. 3 Rajalakshmi speaks about the birth of P. W. 1 Bhakyavathi at Rainy Hospital, Tondiarpet, Madras in 1951 and the registration of the birth in the hospital itself. Ex.D3 is the S.S.L.C. Book of the fourth defendant Gajalakshmi. In this her date of birth is shown as 10-6-1948 and M. Srinivasan is described as her father. The fourth defendant as D.W. 2 states that her father came to the school and signed on 28-6-1965 in Ex.D3 S.S.L.C. book before the Headmistress. She also says that P.W 1 Bhakyavathi is her younger sister. Thesecond defendant Rajalakshmi Ammal is her mother. She is now working in the Tamil Nadu Housing Board, Nandanam and Ex.D4 is the xerox copy from her Service Book wherein her father is described as M. Srinivasulu Naidu residing at 318, Mint Street, Madras-1, D.W. 1 Rajalakshmi states in her evidence that the fourth defendant Gajalakshmi is her first daughter born to Srinivasulu Naidu in 1948.
9. No doubt P.W. 1 Bagyavathi stated in her evidence that her date of birth is 20-5-1951. While Ex.P4 Birth Register Extract reads that she was born on 20-6-1951, her S.S.L.C. Book Ex.P11 mentions the date as 10-5-1951. The learned counsel for the third defendant argues on the basis of this discrepancy that no reliance could be placed on the entires in these documents. It is true that there is no satisfactory explanation for the discrepancy of the date of birth found in Ex.P4 Birth Extract and Ex.P11 S.S.L.C. Book. However Ex.P9 is an affidavit dated 31-3-1975 filed by Srinivasalu Naidu before the Assistant Chief Accounts Officer, Customs House, Madras-1 declaring that he has not inherited any ancestral property and he has no brother. It is significant to note that the signalure of Srinivasalu Naidu found in Ex.P9 is similar to that occurring in Ex.P11 S.S.L.C. Book. And above all the husband of the third defendant Sarojini who has been examined as D.W. 3 admits in cross-examination that he is acquainted with the signature of Srinivasalu Naidu. Ex.P11(a) is the signature of Srinivasulu Naidu in Ex.P11. So the discrepancy in date of birth found in Ex.P4 and Ex.P11 does not affect the fact that Srinivasulu Naidu has recognised the plaintiff as his daughter.
10. While in Ex.P4 and Ex.P11 the father of the plaintiff is described as M. Srinivasulu Naidu in Ex.D3 the S.S.L.C. book of the 4th defendant Gajalakshmi the father's name is mentioned as M. Srinivasan. The learned counsel for the 3rd defendant argues that in view of the discrepancy in the father's name found in Ex. D3, the father of the plaintiff and the father of the 4th defendant cannot be one and the same person. However we find in thesame page of the S.S.L.C. Book that the father of the pupil has signed as M. Sri-nivasulu Naidu and this has been marked as Ex.D3(a). A comparison of the signatures found in Ex.D3, Ex.P4, Ex.P11 and Ex.P9 would convince anyone that they are of the same individual. Besides D.W. 3 Gopala-krishnan who is the husband of the 3rd defendant candidly admits that he is very much acquainted with the signature of Sri-nivasulu Naidu and Ex.D3(a) is that of the said Srinivasulu Naidu. Be it noted that the Evidence Act contemplates three modes of proving the signature of a person. Under Section 45 of the Evidence Act the opinion of experts on the question whether two handwritings were written by one and the same person or by different persons is relevant. Under Section 47 of the Evidence Act when the Court has to form an opinion as the person by whom any document was written or signed the opinion of any person acquainted with the hand writing of the person by whom it is purported to have been written or signed is a relevant fact. Under Section 73 of the Evidence Act in order to ascertain whether the signature or writing is that of the person by whom it is purported to have been written any signature or writing admitted or proved to the satisfaction of the Court to have been written by that person may be compared with the one which is to be proved. And in this case the admission of D.W. 3 Gopalaksrishan as well as comparison of the disputed with the admitted signatures establish beyond the possibility of any doubt that the signature in Ex. D3(a) is that of M. Srinivasulu Naidu who has also signed Ex.P11 S.S.L.C. Book of the plaintiff. Thus we find that long prior to the dispute between the parties M.Srinivasulu Naidu himself has owned that the plaintiff and 4th defendant are his daughters.
11. It is the evidence of D.W. 1 Rajalakshmi that after her marraige she was living with Srinivasulu Naidu in Vinayaga Maistry Street, Sowcarpet, Madras for about 21/2 years. Thereafter they lived in Sambier Street, Madras. Four years later they shifted their evidence to Mulla Sahib Street Madras. From there they came to reside for about 16years at No. 318, Mint Street, Madras. This version finds support from Ex.P4 Birth Extract, Ex.D4 Service Register Extract, Ex.P5 Radio Licence, Ex.P8 T.V. Licence and Ex.P6 Rent receipts. It is significant to note that in Ex.P4 the permanent address of M. 0Srinivasulu Naidu and Rajalakshmi the parents of the plaintiff is given as No. 12, Sambier street in the year 1951. Ex In P8 T.V. Licence for the period 1979-1985 M. Srinivasulu Naidu is stated to be residing at No. 92, Thaiyappa Mudali Street. Ex.P6 is the Rent Receipts standing in the name of Srinivasulu Naidu for Door No. 318, Mint Street, Madras from 1962-1975. Ex.P5 is the Radio Licence of Srinivasulu Naidu for the period from 1981-1985 wherein also the address is given as No. 318, Mint Street, Madras. In Ex.D4 the 4th defendant Gajalakshmi has given the residence of her father in the year 1971 as 318, Mint Street, Madras. Had Srinivasulu Naidu been a stranger to 2nd defendant Rajalakshmi, plaintiff Baghyavathi and 4th defendant Gajalakshmi Exs.P5 Radio Licence and P8 T. V. Licence Rent Receipts issued to M. Srinivasulu Naidu would not have found their way into the hands of thes three persons. Besides the addresses given in these documents go in support of the evidence of D. W. 1 Rajalakshmi regarding her residence as mentioned above.
12. Ex.P10 is the wedding invitation of the 4th defendant Gajalakshmi. This invitation has been issued in the name of Mrs. and Mr. M. Srinivasulu Naidu for the marriage of Gajalakshmi to be held on 1-3-1973 in a Kalyanamandapam at Mint Street, Madras. D.W. 1 Rajalakshmi deposes in her evidence that in 1973 her husband Srinivasulu Naidu performed the marriage of her daughter 4th defendant Gajalakshmi. Ex.P10 is the marriage invitation printed for that purpose.
13. In the plaint as originally filed the 4th defendant was not a party. The plaint as well as Ex.P1 notice are conspicuously silent about the existence of 4th defendant. They do not contain any reference to her. The original of Ex.P1 notice dated 1-7-1980 has been issued only by plaintiff and 2nd defendant. The Written statement filed by the 2nddefendant merely mentions that she gave birth to a daughter the plaintiff herein on 10-5-1951 at Rainey Hospital, Tendiarpet, Madras. It does not say that the 4th defendant is also her daughter. The 4th defendant was impleaded only after the 3rd defendant brought to the notice of the Court about this. When D.W. 1 Rajalakshmi was asked during her cross-examination by the counsel for the 3rd defendant as to why she has failed to refer in her written statement that she had two daughters, she would only say that there was misunderstanding between Srinivasulu Naidu and the parents-in-law of 4th defendant. The parents-in-law of Gajalakshmi did not permit her to join in the suit. We cannot say that this is a satisfactory explanation for the nonjoinder of the 4th defendant initially in this action. Even if the 4th defendant was not impleaded as a party to the action, nothing prevented the plaintiff and 2nd defendant to refer to the existence of Gajalakshmi in their pleadings. The learned Counsel for the 3rd defendant argued on the basis of this non-inclusion that the 4th defendant was not born to Srinivasuhi Naidu. When D.W. 1 Rajalakshmi was in the witness box it was suggested to her by the counsel for the 3rd defendant that Gajalakshmi was born to her through one Narayanan alias Varathan. This suggestion was promptly denied by D.W. 1 Rajalaksmi. However excepting this suggestion there is nothing in evidence to indicate that Gajalakshmi was not born to Srinivasulu Naidu. And D.W. 3 the only witness examined on the side of the contesting 3rd defendant admits in cross-examination that she does not know anybody by name Varathan alias Narayanan. In any event merely because there is no satisfactory explanation from plaintiff and second defendant for the non-mention of the fourth defendant in their notice and pleadings we cannot conclude that the fourth defendant is not the daughter of Srinivasulu Naidu and Rajalakshmi. The description of Srinivasulu Naidu as father in Ex.D3 S.S.L.C. Book of Gajalakshmi and Ex.D4 Service Book is only in consonance with the theory that D.W.2 Gajalakshmi is the daughter of D.W. 1 Rajalakshmi through Srinivasulu Naidu.
14. Both D.W. 1 Rajalakshmi and P.W. 1Baghyavathi state in their evidence that some six years after the of the house in Thaiyappa Mudali street under the original of Ex.D1 by the former, housewarming ceremony was performed. Exs. P14 and P15 are photographs taken on that occasion. According to D.W. 1 she and Srinivasulu Naidu are found in these photographs. The learned counsel for the 3rd defendant assailed these photographs on the ground that in the absence of their negatives no importance could be attached to them. In these days of advanced photographic purchase technology there is every possibility of producing trick photos (sic). But it may be borne in mind that no objection was taken by the 3rd defendant when these photographs were admitted in evidence during the chief examination of D.W. 1 Rajalakshmi. While so the admissibility of these photographs cannot be questioned (sic) merely on the suggestion put to D.W. 1 Rajalakshmi (sic) that these photographs have been get up for the occasion. And Ex.14 and Ex.P15 photographs coupled with the evidence of P.W. 1 and D.W. 1 also probabilise in view that D.W. 1 Rajalakshmi and Srinivasulu Naidu had a separate residence of their own.
15. D.W. 1 further says that when Srinivasulu Naidu was alive her relationship with the 1st defendant Lakshmikanthammal was cordial. She used to attend the functions in the house of the 1st defendant. She attended the puberty ceremony of Sarojini Ammal's daughter with plaintiff and the 4th defendant. Ex.P16 is the photograph taken on that occasion wherein her two daughters and Sarojini Ammal's daughter are found. The learned counsel for the 3rd defendant argued that in the absence of the negative this photographs also cannot be looked into in evidence. But when this photographs Ex.P16 was marked during the chief examination of D.W. 1 Rajalakshmi no objection was raised hy the contesting 3rd defendant. In any event. D.W. 3 Gopalakrishnan who is the son-in-law of the 3rd defendant has candidly admitted in his cross-examination that the girl standing in the middle in Ex.P-16 photograph is his daughter. The other two persons are plaintiff and the 4th defendant. The occasion for the photo was the puberty ceremony of his daughter. This conduct suggestes that therelationship between the two women was only cordinal and third defendant and her mother well received second defendant's daughters in family functions.
16. From the discussion above these facts emerge :
(1) Defendants 1 and 3 are the wife and daughter of late M. Srinivasulu Naidu. (2) Srinivasulu Naidu was also living with 2nd defendant Rajalakshmi Ammal at Vinayaka Maistry Street, Sowcarpet, No. 12, Sambier Street, No. 92, Thaiyappa Mudali Street and No. 318 Mint Street during 1951-1985. (3) Plaintiff Baghyavathi and 4th defendant Gajalakshmi are daughters born to 2nd defendant Rajalakshmi Ammal. (4) Srinivasulu Naidu has recognised plaintiff and the 4th defendant as his daughters and acknowledged the paternity in their school records. (5) Srinivasuiu Naidu has celebrated the marriage of 4th defendant Gajalakshmi and at that lime the wedding invitation was issued in the names of Mrs. and Mr. M. Srinivasulu Naidu. (6) During the lifetime of Srinivasulu Naidu the relationship between 1st defendant Lakshmikanthammal and 3rd defendant Sarojini on the one hand and the 2nd defendant and her two daughters on the other was nothing but cordial. (7) The 2nd defendant Rajalakshmi Ammal along with her two daughters attended the puberty ceremony of the daughter of the 3rd defendant Sarojini and they were well received by the family.
17. Regarding the factum of marriage between 2nd defendant Rajalakshmi Ammal and M. Srinivasulu Naidu there is no direct evidence except that of D.W. 1 Rajalakshmi in the witness box that the said marriage was solemnised in 1947 as per Hindu customs at Parthasarathy Temple, Triplicane, Madras, and subsequent to the marriage they were living in various places including Sambier Street and No. 318 Mint Street, Madras. She admits in cross-examination that there is no receipt issued by the temple for the payment of marriage fees. She further says that she saw Srinivasulu Naidu for the first time when he came to her house and negotiated with her mother for the marriage. According to her he came alone and that was his first visit toher house. No marriage invitation was printed. Her sister's husband Parthasarathy Naidu and her sister and some other friends attended the marriage. On the whole about 65 guests came to the marriage. But, none of them has been examined to support her version. D.W. 1 Rajalakshmi also says in the course of cross-examination that the 1st defendant Lakshmikanthammal did not attend their marriage. This witness is the only daughter of her mother. She has no brother. Her mother presented her with 15 sovereigns of jewels at the time of marriage. On the day of wedding Srinivasulu Naidu was 38 years old while she was aged about 15 or 17 years. She and her mother were aware of the fact that Srinivasulu Naidu was already married and that the marriage took place without the knowledge and consent of 1st defendant Lakshmikanthammal. She does not know whether the relatives of 1st defendant attended the marriage. It is the arugment of the learned counsel for the 3rd defendant that there is no reason for giving D.W. 1 Rajalakshmi in macriage to M. Srinivasulu Naidu as his second wife while the tirst wife was alive especially when the bride was about 20 years younger than the bridegroom. However, it is in the evidence of D.W. 1 Rajalakshmi that Srinivasulu Naidu had no male issue and so he wanted to marry her as his second wife. Besides, there is no dispute that Srinivasulu Naidu was possessed of several immoveable properties and he was a shipping and clearing agent and he was also owning a car. So there is nothing unnatural in those days people belonging to well-to-do families going in for second marriage in their anxiety to have a male child.
18. In the plaint it is stated that Srinivasulu Naidu married the second defendant as his second wife in the year 1948 whereas P.W. 1 Bagyawathi states in her evidence that the marriage was performed in the year 1947. D.W. 1 Rajalakshmi also deposes in the witness box that the marriage took place in 1947. In Ex.D-3 the S.S.L.C. Certificate of the 4th defendant, her date of birth is given as 10-6-1948. The learned counsel for the 3rd defendant argued that in order to fit in with the date of birth mentioned in Ex.D-3 S.S.L.C. Certificate the plaintiff and D.W. I have changedtheir version regarding the date of marriage. And in view of the inconsistency regarding the year of marriage the evidence of these two witnesses could not be relied upon. However, 1 do not think that this discrepancy in the year of marriage is such a serious one that it goes into the root of the claim. Be it noted that plaintiff being the daughter of Srinivasulu Naidu, she could not have had any personal knowledge about the year of marriage. Considering the fact that the alleged marriage look place some three decade ago, when this plaint came to be prepared, this difference in date cannot affect the veracity of the evidence.
19. Under the original of Ex.D-1 the registration copy of the sale deed dated 14-9-1970 second defendant Rajalakshmi Ammal has purchased Door No. 31, Thaiyappa Mudali Street. In this sale deed she is described as the wife of M. Srinivasulu Naidu. Significantly enough as per the Sub-Registrar's endorsement found in the document M. Srinivasulu Naidu was present in the Sub-Registrar's Office at the lime of registration and had paid the purchase price on behalf of the vendee to the vendor. This fact taken in conjunction with the other circumstances in the case like Srinivasulu celebrating the marriage of the 4th defendant Gajalakshmi by printing the Invitation Card in the name of himself and his wile and the 2nd defendant's active participation along with her two daughters in the puberty ceremony of third defendant's daughter as members of the family goes a long way to probabilise the view that M. Srinivasulu Naidu married the second defendant Rajaiakshmi as his second wife. Had she been only a concubine of Srinivasulu Naidu certainly she would not have been well recehed by the family in the function and her daughters allowed to have Ex.P-16 photograph with the third defendant's daughter.
20. The next argument of the learned counsel for the plaintiit is that apart from the evidence referred to above, the court can also presume that the second defendant Rajalakshmi is the legally wedded second wife of Srinivasulu Naidu in the background of the case. It is true that the bidden is entirely on the plaintiff to prove the marriage betweenher mother and M. Srinivasulu Naidu. But the presumption of marriage under Section 114 of the Evidence Act arises from the fact either that the persons have lived together for length of time or that they have been re-cognised as husband and wife by a certain number of persons. The presumption of marriage arising out of long cohabitation and repute is much stronger than the presumption in regard to other facts. Where a man and woman have cohabited for such a length of time and in such circumstances as to have acquired the reputation of being man and wife, a lawful marriage between them will generally be presumed, though there may be no positive evidence of any marraige having taken place and the presumption can be rebutted only by strong and weighty evidence to the contrary. Where there is evidence of a ceremony of marriage having been gone through, followed by the cohabitation of the parties, everything necessary for the validity of the marriage will be presumed, in the absence of decisive evidence to the contrary. The presumption of law is the strongest of legal presumptions and not lightly to be repelled by a mere balance of probabilities and that the evidence repelling that presumption must be strong, distinct and satisfactory. Every intendment is made in favour of a marriage de facto and the more distant, the date of the marriage, the more readily is the presumption drawn, based upon cohabitation and repute. The presumption is not only with regard to the factum of the marriage, but also with regard to the performance of the requisite ceremonies to constitute a valid marriage. The question of validity of a marriage cannot be tried like any other question of fact which is independent of presumption, for there is a strong presumption in favour of marriage, particularly after the lapse of a great length of time. The presumption of law is not lightly to be repelled. It is not to be broken in upon or shaken by a mere balance of probability. The presumption must prevail unless it is most satisfactorily repelled by the evidence in the cause appearing conclusive to these who have to decide upon that question. Once a presumption is raised from long cohabitation and reputationthere is a very heavy burden to rebut the presumption on persons who allege to the contrary. Needless to add that the circum-stances of the case as discussed above strongly warrant such a presumption.
21. On the other hand, the learned counsel for the 3rd defendant vehemently argues that the second defendant Rajalakshmi Ammal hails from Devadossy Community and there could not have been a valid marriage between her and Srinivasulu Naidu. On this aspect the evidence of P.W. 1 Baghyavathi. D.W. 1 Rajalakshmi D.W. 2 Gajalakshmi is to the effect that they belong to Balija Naidu Community. During the cross-examination it was suggested to them by the 3rd defendant that they are from Devadossy Community. The only witness D. W. 3 Gopalakrishnan examined on the side of the contesting 3rd defendant does not speak anything on this aspect in his chief examination. Curiously enough, only in the cross-examination by the plaintiff he says that he enquired and came to know that they were from Devadossy Class. So the version of the abovesaid three witnesses that they are of Balija Naidu Community remains unre-butted.
22. The learned counsel for the third defendant went on to argue that the institution of the marriage is unknown in Devadossy Community. The 2nd defendant having been bom in that community cannot contract a valid marriage. So there could be no presumption in favour of any such marriage even though the circumstances may warrant such a presumption in other cases. Even if the evidence of D.W. 2 Rajalakshmi that Sri-rivasulu Naidu married her as his second wife in 1947 in Parthasarathy Temple is true, it cannot be a valid marriage by reason of her caste. However, the learned counsel for the respondents could not cite any authority or Text of Hindu Law to support his proposition of law.
23. Whereas it is stated at page 214 of Mulla's Principles of Hindu Law (1982 Edition) that where a woman of the 'dancing girl' caste does not follow her traditional calling but marries and lands the life ofan ordinary married woman and reverts to her original calling after widowhood, it has been held that her position is not different from that of an unchaste married woman and her property devolves on her heirs according to ordinary Hindu law. The same Text Book at page 558 reads that 'It has been held by the Madras High Court that a Nattukottai Chettiar who is a Shudra can legally marry a dancing girl who has not been dedicated to a temple. Whether he could marry a girl who was actually dedicated was not decided in the case.'
But this last question cannot now arise after the advent of Madras Devadasis (Prevention of Dedication) Act XXXI of 1947 on 17-1-1948. In Subbaratna Mudali v. Balakrishna-swami Naidu : (1917)33MLJ207 an interesting question as to the succession to the property of a woman of the dancing girl caste arose. The following observations made by the Division Bench during the course of their judgment is relevant for our present purpose : 'That members of this caste are Hindus is certain, though the ancient writers and their modern exponents find some difficulty in fixing them in one of the four castes: but whether they belong to the Sudra or fourth caste or to a separate fifth caste is immaterial. That male members of this caste are usually governed by the Hindu Law arid usage does not seem to have been questioned, so also when female members marry and have children, as they sometimes do, their family, relation is governed by the Hindu Law and presumably the ordinary Hindu Law of Inheritance will govern succession to their properties. At the same time their female children may remain unmarried and become professional dasis without any degradation or stigma attaching to them so long as they observe the caste customs. It is well known that at least in the Southern Districts they are supposed to be married to the idol of some temple and it is a question not beyond dispute whether after such a marriage, signified by the tying of a bottu and thali by the archaka or priest, they can contract a real marriage with a member of their caste. They are not virgins, are not married women and never become widows. We are led to make theseobservations for showing that there is no such thing as a dissolution of the natural tie of relationship between the members of the caste who remain unmarried and follow their trade and their married relations who lead a respectable life.' In Viswanatha Mudali v. Doraiswami Mudali. : AIR1926Mad289 also the law of succession which was applicable to the descendants of the sons of a dancing woman assuming that the parentage of the sons is unknown and that they are not the sons of one individual came to be considered. While following the decision in : (1917)33MLJ207 the Division Bench in this case has traced the history of the law on this aspect as.extracted below :--
'The plaintiffs and the defendants in this case are Hindus, Hindus by religion, as well as by their customs and manners. If the Hindu Law is not applicable to them, what other law is applicable? Though the Srutis and Smrithis are applicable only to the Aryans, yet the text-writers have extended the law to all the residents of India, and the Courts have applied the Hindu Law to all the races inhabiting this vast country in the absence of proof of any special or local custom. The Dravidians of Southern India who are of Turanian origin had settled in India long before the Aryans entered it. They had their own laws and customs which are prevalent even today. The Aryans when they settled in this part of India attempted to introduce their customs and laws but they were never completely successful. The laws relating to family relations and succession and inheritance laid down by Manu and the commentators like Yajnavalkya and Vignaneswara were never accepted as binding by all the people. It was the East India Company's Courts that held for the first time that the laws contained in the ancient Srutis and Smrithis were applicable to all Hindus in Southern India in the absence of any custom or customary law governing any class of people. Manu in order to extend the influence of the Aryans compendiously uses the term 'Sudras' to the people of this country who are not Aryans in the same way as the Europeans uses the word 'native' to all those who are not of European descent, and postulates that they areall Sudras who have fallen a way from the high place once occupied by them in the Aryan polity as the following verses show :
Chapter X, Verse 43 : 'the following races of Kshatriyas by their omission of holy rites and by seeing no Brahmins have gradually sunk among men to the lowest of the four clases.' Verse 44 : 'Paundrakas. Oodras, Dravidas, Kambojas, Yavanas and Sakas; Paradas, Pahlavas, Chinas, Kiratas. Deradas and Chasas.' Verse 45 : 'All those tribes of men who sprang from the mouth, the arm, the thigh and the loot of Brahma but who became out castes by having neglected their duties are called Dasyus or plunderers, whether they speak the language of the Mlechchas or that of Aryans.' This attempt on the part of the law-giver Manu to extend the influence of the Aryans among the races who inhabited this land was always pushed in the direction of influencing their religion and the rules of succession. When the East Indian Company's Courts were established, the Judges took the law from the Pandits who naturally relied upon the texts of the ancient law-givers and commentators as authority for their opinion. In course of time the Courts have come to regard Manu and the commentators as authoritative expondents of the law applicable to all the inhabitants of this country who don't profess any distinctive faith like Muhammadanism or Christianity. The customary law and considered as an exception to that contained in the Srutis and Smrithis. Under the loose term 'Hindu' all classic of people are brought within the pale of 'Hindu Law' as expounded in the texts of the various Srutis and Smrithis and their commentators. It therefore follows that people who have been horn in India and who are of the Hindu faith and whose customs and manners are those of Hindus are governed by the Hindu Law. In the case of a dancing woman or Hindu prostitute, her religion is Hindu and her customs, manners and observances are Hindu, and her sons are Hindus and the Hindu Law therefore is applicable to them.'
From the passages extracted above it would be evident that women belonging to Devadasi Community are also governed by the Hindu Lawand there is no prohibition in their contracting a valid marriage.
24. The next argument of the learned counsel for the third defendant is that where concubinage is permitted or recognised or where even if it is not expressly permitted it is winked at or condoned by the Seciety to which the parties belong, the presumption in favour of marriage becomes weak. However, the evidence on the conduct of the parties concerned herein as well as their repute justifies the drawing of the presumption of a valid marriage. It is true if the association of two persons living together as husband and wife could not result in a legal marriage between them, it may be that the presumption of marriage could not be raised in such a case. But where they could have married each other and law permits such marriage there is nothing to prevent the presumption coming into play. Since the Madras Hindu (Bigamy Prevention and Divorce) Act 6 of 1949 came into force on 29-3-1949 there could not have been any impediment to the parties contracting a valid marriage.
25. Yet another argument of the learned counsel for the third defendant was that no presumption of a second marriage could arise by reason of long cohabitation. A single Judge of the Andhra Pradesh High Court has held so in Nagarajarmna v. State Bank of India, : AIR1961AP320 . However, Mr. C. Raghunatha Reddy the learned counsel for the third defendant has farily placed before the Court the decision of the Division Bench of this Court in Raghuvir Kumar v. Smt. Shanmu-gravadiva, : AIR1971Mad330 wherein it chose to differ from the view expressed by the single Judge of the Andhra Pradsesh High Court. The Division Bench went on to say that in a society where second marriage is not prohibited under the statute or under the customary law, it is always open for any person to marry a second wife if he so desires and if he goes through a form of marriage and lives with the other party as husband and wife, we find no obstacle to the presumption being raised from the fact of long cohabitation and repute.While so the inference is irresistable in the background of the case that third defendant Rajalakshmi is legally wedded second wife of late M. Srinivasulu Naidu and plaintiff and fourth defendant are their children born out of lawful wedlock. These issues are answered in favour of plaintiff and defandants 2 and 4.
26. Issue Nos. 6 to 8 :-- Item 1 of the suit property is the house bearing Door No. 11, Damodara Mudaliar Street, Kilpauk, Madras. Ex. D8 is the sale deed dated 28-4-1972 in favour of first defendant Lakshmi-kanthammal in respect of this property. Item No. 3 is Door No. 33, First Cross Street, Trustpuram, Kodambakkam. Ex. D-7 is the sale deed dated 7-7-1969 in the name of first defendant Lakshmikanthammal in respect of this house. Evidently plaintiff cannot lay any claim to these two items on the ground that they stand in the name of the first defendant benami for M. Srinivasalu Naidu. Under Section 4 of the Benami Transactions (Prohibition) Act (45 of 1988) no suit to enforce any right in respect of any property held benami against the person in whose name the property is held shall lie by or on behalf of a person claiming to be the real owner of such property. In Mithilesh Kumari v. Prem Behari Khare, : [1989]177ITR97(SC) the Supreme Court has laid down that the Benami Transaction (Prohibition) Act is a piece of prohibitorty legislation and it prohibits benami transactions subject to stated exceptions and makes such transactions punishable and also prohibits the.right to defence against recovery of benami transactions as defined in Section 2(a) of the Act. The Parliament has jurisdiction to pass a declaratory legislation. ' As a result of the provisions of the Act all properties held benami at the moment of the Act coming into force may be affected irrespective of their beginning, duration and origin. This will be so even if the legislation is not retrospective but only retroactive. The Act contains no specific provision making its operation retrospective.
27. The business carried by Srinivasalu Naidu is described as item 1 of 'B' Schedule in the plaint. In this connection third defendant pleads in the written statement thatM. Srinivasalu Naidu and Co., the business of shipping agency referred to in the plaint 'B' Schedule did not solely belong to M. Srinivasalu Naidu. Ever since the year 1960 the said business was carried on by him in partnership with the third defendant and the partnership stood automatically dissolved at his demise on 4-5-1980 and his individual account with the firm showed a debit balance of about Rs. 89,000/-. The present M. Srinivasalu Naidu and Co. is a new firm, constituted after the demise of M. Srinivasalu Naidu of which the partners are the third defendant, her son and daughter. Ex. D-9 the certified copy of Register of Firms indicates that both M. Srinivasalu Naidu and third defendnat were partners of the Firm M. Srinivasalu Naidu and Co. Shipping and Clear-ing Agents. Plaintiff as P.W. 1 has marked Ex.P-17 purports to be the Income and Expenditure Account of the Firm for the year ended 31-3-1982 and this discloses a surplus of Rs. 76,966.70 for the year 1981-82. The third defendant Sarojini has not gone into the witness box. Her husband who is D.W. 3 states on the basis of Ex.D-9 that Srinivasalu Naidu was not the sole proprietor of M. Srinivasalu Naidu and Co. There is no evidence on the part of the third defendant to con-travert the statement of account in Ex.P-17. So it is evident that the tird defendant has to render accounts in respect of the half share of deceased Srinivasalu Naidu in the partnership firm till it got delivered on 9-5-80.
28. An Ambassador Car bearing Registration No. TMC 1458 is described as item 2 of plaint 'B' Schedule. The plaint simply reads that Srinivasalu Naidu was owning the said Ambassador car. There is no evidence on this aspect of the case. In the absence of any material regarding the availability of the car no relief could be granted in respect of the same. So plaintiff can claim relief only in respect of Ambattur house and the half share of Srinivasalu Naidu in the business of M. Srinivasalu Naidu and Co. described as item 2 of plaint 'A' Schedule and item 1 of plaint 'B' Schedule respectively. These issues are answered accordingly.
29. Issue Nos. 3 and 4 :-- The second defendant has paid Court fees and demanded partition and separate possession of her sharein the properties. We have already seen that| the second defendant is the second wife and plaintiff is the daughter of Srinivasalu Naidu and item 2 of plaint 'A' Schedule and item 1 of plaint 'B' Schedule are the properties left by Srinivasalu Naidu. While each daughter is entitled to 1/4 share in these items, the two widows are jointly entitled to the remaining 1/4 share. So the second defendant has to be allotted half of one-fourth share in the above said two items. Besides, in view of the amendment to Section 16(1) of the Hindu Marriage Act, 1955, by Act LXVIII of 1976, right has been given even to illegitimate children even though the marriage might have been void or voidable. What is more, they will share equally with the legitimate children and there is no ambiguity about that at all. Section 16 of the Amended Act clearly treats the illegitimate children also if they would have been legitimate if the marriage had been valid. So the right of the plaintiff to claim her share in the properties left by Srinivasalu along with defendants 1 and 3 cannot be refused at any cost. These issues are answered accordingly.
30. Isssue No. 9 :-- In the result preliminary decree for partition and separate possession in respect of 1 / 4 share in item 2 of plaint 'A' Schedule Ambattur house and 1/8 share in respect of item 1 of plaint 'B' Schedule partnership business in favour of the plaintiff and in respect of (sic) 1/8 share in item 2 of plaint 'A' Schedule and 1/16 share in item 1 of plaint 'B' Schedule in favour of the second defendant is passed. In other respects the suit is dismissed. In the circumstances, parties are to bear their own costs.
31. Order accordingly.