(Appeal filed under Section 100 of C.P.C. against the judgment and decree dated 18.12.1998 passed in A.S.No.25 of 1998 by the District Judge, Cuddalore reversing the judgment and decree dated 11.11.1997 passed in O.S.No.326 of 1991 by the Subordinate Judge, Virudhachalam.)
This appeal is directed against the judgment and decree passed by the 1st Appellate Court in A.S.No.25 of 1998 dated 18.12.1998 in reversing the judgment and decree passed by the trial court made in O.S.No.326 of 1991 dated 11.11.1997 in decreeing the suit.
2. The appellant was the plaintiff and the respondents were the defendants before the Trial Court. For convenience, the ranks of the parties before the Trial Court are maintained in this Judgment.
3. The case of the plaintiffs as stated in her plaint would be as follows:
The suit properties are self acquired properties of the plaintiff's husband Sekar. The defendants 1 and 2 are his parents. Sekar died intestate on 01.09.1991. Therefore, the plaintiff and the first defendant are equally entitled to the suit properties. Due to misunderstanding between the plaintiff and the first defendant, they are unable to be in joint possession. So, the plaintiff demanded her share on 20.11.1991. Since no steps was taken by the first defendant to partition the suit properties, the plaintiff has filed this suit for partition of her half share in the suit properties. Since the 2nd defendant died, his sons and daughter were added as defendants 5 to 7. The C-Schedule properties are with the defendants 3 and 4 and so, they were also added as parties.
4. The case of the defendants 1 and 2 as stated in the written statement would be thus:
The plaintiff is not the wife of Sekar. She was the servant maid of the family. Taking advantage of the same, she has filed this false suit. The 2nd defendant has purchased the suit properties in the name of Sekar out of the income earned when he was working in the Railway. The C-Schedule properties are also belonging to 2nd defendant. Therefore, the plaintiff is not entitled to any share in the suit properties.
5. The case of the 4th defendant would be as follows:
A sum of Rs.50,000/- is in the Savings Bank Account No.5626 of Sekar. The 4th defendant is ready to pay the amount as per the decree.
6. On the above pleadings, the Trial Court framed necessary issues and entered trial. After appraising the evidence adduced before it, the Trial Court had come to the conclusion of decreeing the suit in respect of A Schedule, serial no.1, 2, 5 promissory notes in part 1 of C Schedule and D Schedule properties and in respect of other Schedules, suit was dismissed. As regards the mesne profits of A Schedule property, it was relegated to a separate proceedings and thus a preliminary decree was passed by the Trial Court. The defendants 1, 5 to 7 preferred appeal in A.S.No.25 of 1998 against the said preliminary decree and judgment. Similarly, the plaintiff also filed a cross appeal against the dismissal of the suit in respect of other Schedules. The First Appellate Court heard the appeal and Cross Appeal and had come to the conclusion of allowing the appeal and thereby, the preliminary decree passed by the Trial Court was set aside and the suit was dismissed in toto. Consequently, the cross appeal was also dismissed.
7. Aggrieved by the judgment and decree passed by the First Appellate Court, the plaintiff has preferred the present Second Appeal.
8.On admission of the Second Appeal, this Court has formulated the following Substantial Questions of Law for consideration in the appeal:
"1. Whether the lower Appellate Court is justified in holding that the appellant is not the legally wedded wife of Sekar, when the deceased himself had recognised by nominating her for the purposes of receiving the benefit due to him under Exb.18?
2. Whether the lower Appellate Court is justified in ignoring Exb.A.23 which prove and establishes the appellant is the wife of deceased Sekar?
3. Whether the lower Appellate Court is right in ignoring the admission of the respondents when they have clearly deposed that the appellant had been living with Sekar and on the facts and circumstances of the case, whether it has not misplaced the burden of proof?"
9. Heard Mr.V.Lakshminarayanan, learned counsel for the appellant and Mrs.Manjula for Mr.R.Gururaj, learned counsel for the Respondents 1 to 4. No Appearance for the respondents R5 and R6.
10. The learned counsel for the appellant/ plaintiff would submit in his argument that the First Appellate Court had failed to appreciate that the deceased Sekar himself had admitted that the appellant/ plaintiff was his wife and thus nominated herself in Ex.A18 nomination at his office in order to get his service benefits. He would also submit in his argument that the status of the plaintiff is the criteria for deciding the dispute and the same was clearly established by the plaintiff as the wife of the deceased Sekar by oral and documentary evidence which were not considered by the First Appellate Court.
11. The learned counsel for the appellant/ plaintiff would further submit that the deceased Sekar was ailing from Tuberculosis and the medical records produced as Ex.A3 to Ex.A6 would go to show that the plaintiff was accompanying as wife to look after the treatment of the said Sekar. But the omission to mention the word wife in the place where the address is given in those documents was taken advantage of the First Appellate Court, despite, there are so many documents to show that the plaintiff was the wife of the deceased Sekar. He would also submit that the said attitude of the First Appellate Court would clearly exhibit the bias and perversity on the part of the First Appellate Court.
12. The learned counsel for the appellant/ plaintiff would further submit that the marriage invitation produced in Ex.A2 for the solemnisation of the marriage of Sekar's cousin sister, namely, Kavitha was printed by the defendants 1 and 2 and they themselves had referred the name of the deceased Sekar and the plaintiff as husband and wife in the column listing the receptionists of the marriage. He would also submit that the voter's list produced in Ex.A23 is a public record and it would show that the plaintiff was the wife of the deceased Sekar and was living at the residential house of Sekar.
13. The learned counsel for the appellant/ plaintiff would further submit that the evidence of P.W's. 2 and 3 the Councillor and Villagers would go to show that the marriage was solemnised inbetween the Sekar and the plaintiff in a Pillaiyar temple and the reason stated by the First Appellate Court that no other basic evidence was produced by the plaintiff would establish the perversity of the First Appellate Court since the ample documentary evidence produced in Ex.A2, Ex.A3 to Ex.A6, Ex.A18 and Ex.A23 regarding the status of the plaintiff as wife of Sekar. He would further submit in his argument that the evidence of the defendants would categorically show that the plaintiff was living throughout with them. But they denied the status of the plaintiff as wife of Sekar. But their stand was that the plaintiff was a servant maid.
14. The learned counsel for the appellant/ plaintiff would further submit that the long period of living as husband and wife would draw presumption in accordance with Section 114 of the Evidence Act and the said presumption as to the status of husband and wife is a rebuttable one and the said presumption which has to be drawn on the oral and documentary evidence showing the long period of living as husband and wife by deceased Sekar and the plaintiff was not rebutted by the defendants. He would further submit in his argument that the Trial Court had promptly discussed the points at issue and appreciated the evidence and had come to a conclusion of deciding the plaintiff as the wife of deceased Sekar and had partly decreed the suit.
15. The learned counsel for the appellant/ plaintiff would further submit that the said issue, viz., the decisions, reached by the Trial Court was not considered by the First Appellate Court. But the First Appellate Court had without framing necessary points as required under the provisions of Order 41 Rule 31 of C.P.C. had come to the conclusion of reversing the findings of the Trial Court. He would also submit that the said findings on a perusal would go to show that the judgment of the First Appellate Court was perverse and biased.
16. The learned counsel for the appellant/ plaintiff would also rely upon the Judgment of the Hon'ble Apex Court reported in (2008) 4 Supreme Court Cases 520 (Tulsa and others versus Durghatiya and others) in support of his argument with regard to the presumption under Section 114 of the Evidence Act as to the natural events and conduct of parties. He would also rely upon yet another Judgment of the Hon'ble Apex Court reported in (2009) 9 Supreme Court Cases 304 (Union of India and others versus Muralidhara Menon and another) for the same principle. He would also bring it to the notice of this Court a judgment reported in 1994-2-L.W.125 (Sarangapani and 8 others versus Varadhan and 6 others) regarding the legal presumptions drawn under Section 114 of the Evidence Act as to the status of husband and wife. Yet another judgment has been cited as reported in 1999-2-L.W.404 (Peramayee versus Guruvayee and 2 others) for the same principle.
17. The learned counsel for the appellant/ plaintiff would further submit in his argument that the reasons given by the Trial Court for not decreeing the suit in respect of the B Schedule movable properties and C Schedule utensils and the promissory notes Item 3, 4 and 6 were also available for partition. However, the Trial Court had come to a conclusion that the availability of those properties were not established by the plaintiff is not correct.
18. The learned counsel for the appellant/ plaintiff would further submit in his argument that the evidence adduced by the plaintiff was supported by the Commissioner's report as to the availability of those materials and the promissory notes and therefore, the cross appeal filed by the plaintiff before the First Appellate Court ought to have been allowed by the said court. Therefore, he would request the Court that the judgment and decree passed by the First Appellate Court which is perverse and biased in nature may be interfered and set aside and the Second Appeal be allowed in toto and thereby the suit filed by the plaintiff may be decreed in full.
19. The learned counsel for the respondents 1 to 4/ defendants would submit in her argument that the First Appellate Court had rightly come to a conclusion that the oral evidence cannot be accepted in the absence of any supportive documentary evidence. She would also submit that no marriage will be solemnised in any 'Vinayagar temple' as the deity was a bachelor and the evidence adduced by the plaintiff through P.Ws.2 and 3 would go to show that the marriage inbetween the plaintiff and the deceased Sekar was solemnised in a Pillayar temple near the Virudhachalam railway junction cannot be accepted. She would also submit that even if it is true, the plaintiff could have produced the receipt for the marriage as well as the fees paid towards the priest who conducted the marriage. The further evidence adduced by the plaintiff that the priest who conducted the marriage was dead has not been substantiated through any documentary evidence. All these infirmities in the evidence of the plaintiff would not in any way support the alleged documentary evidence produced in Ex.A18 and Ex.A23 as argued by the learned counsel for the appellant.
20. The learned counsel for the respondents 1 to 4/ defendants would also submit that the nomination form in Ex.A18 was only a xerox copy and the entry in the nomination form as wife cannot be taken as proof for the solemnisation of the marriage. She would also submit that the proof of marriage is very very strict one and it has to be complied with the proof of solemnisation of marriage so as to confer the status of persons. She would also submit that the lacunae in not speaking about solemnisation of marriage would make the witnesses un-trustworthy and therefore, the sheer reference to the plaintiff as wife of the deceased Sekar in the nomination, Ex.A18 and in the voter's list, Ex.A23 will not confer status to the plaintiff as the wife of the deceased Sekar.
21. The learned counsel for the respondents 1 to 4/ defendants would also submit that the marriage invitation cannot be a conclusive evidence to create the status inbetween the parties and thus Ex.A2 which was not printed by the defendants 1 and 2 cannot be estopped from questioning its validity. She would also submit that the First Appellate Court had, even though not framed different points for consideration, had discussed all the points and had found that the Trial Court findings are not in accordance with the evidence adduced before it in certain issues and had also considered the cross objection raised by the plaintiff and had dismissed the cross appeal and allowed the appeal filed by the defendants and therefore, there is no biased attitude or perversity in the mind of the First Appellate Court in passing the judgment against the plaintiff.
22. The learned counsel for the respondents 1 to 4/ defendants would also submit that if really the First Appellate Court was biased it would not have dismissed the application to receive additional evidence filed by the defendants before the said court. She would also submit that the First Appellate Court had appraised the evidence and had come to a correct conclusion in respect of the facts and therefore, the said findings may not be interfered, since there was no grave error committed by the First Appellate Court. She would therefore, request the court to dismiss the appeal filed by the appellant/ plaintiff and to confirm the judgment and decree passed by the First Appellate Court in dismissing the suit.
23. I have given anxious thoughts to the arguments advanced on either side.
24. The suit was filed by the plaintiff for partition and separate possession of the Schedule mentioned properties in respect of her half share. The 2nd defendant was the mother of the deceased Sekar and the 1st defendant was his father.
25. The case of the plaintiff was that she was the legally wedded wife of the deceased Sekar and after the death of the deceased Sekar, the plaintiff and the 2nd defendant were the legal representatives of the deceased Sekar and thus she is entitled to half share in the suit properties.
26. The Trial Court examined the witnesses on either side and had come to the conclusion of preliminarily decreeing the suit in respect of A Schedule, items 1, 2 and 5 in C Schedule and D Schedule properties. But dismissed the suit in respect of other items. The Trial Court while partially decreeing the suit had come to the conclusion that the plaintiff was the legally wedded wife of deceased Sekar. The said decision reached by the Trial Court was challenged in the First Appellate Court by the defendants. The First Appellate Court had after appraising the evidence interfered and set aside the said finding of the Trial Court that the plaintiff was the legally wedded wife of the deceased Sekar.
27.In this appeal, the questions of law framed for consideration would also revolve over the said issue as to whether the plaintiff was the legally wedded wife of the deceased Sekar or not. For that, we have to see whether there was any lacunae, perversity or bias on the part of the First Appellate Court in reversing the findings of the Trial Court. No doubt the status of the plaintiff has to be determined on the basis of the evidence. The Trial Court relied upon the evidence of P.Ws.2 and 3 with the support of Exhibits Ex.A2, Ex.A3 to Ex.A6, Ex.A18 and Ex.A23 in which the name of the plaintiff was shown as wife and the deceased Sekar, as well as the Sekar was under the care of the plaintiff.
28. The argument of the learned counsel for the plaintiff would also go to show that the First Appellate Court had not framed different points for consideration so as to distinguish and differentiate the findings reached by it. But it had framed only one point as to whether the findings of the Trial Court are acceptable. However, it was pointed out that the validity of Ex.A3 and Ex.A2 were not considered by the First Appellate Court.
29. Regarding the status of the plaintiff as the wife of the deceased Sekar, no doubt certain presumptions can be drawn as per the provisions of Section 114 of Indian Evidence Act. For the purpose of drawing such presumption, there must be some evidence and long co-habitation of husband and wife or the instances and the evidence should have been produced to show that those persons were treated as husband and wife. Whether such presumption drawn could be easily rebutted by the person who opposed or denied the status is the question.
30. According to them, the judgment of the Hon'ble Apex Court reported in (2008) 4 Supreme Court Cases 520 (Tulsa and others versus Durghatiya and others), the principle of estoppel and its rebuttal has been explained in detail in paragraph 11 and 15. It is running as follows:-
"11. At this juncture reference may be made to Section 114 of the Evidence Act, 1872 (in short "the Evidence Act"). The provision refers to common course of natural events, human conduct and private business. The court may presume the existence of any fact which it thinks likely to have occurred. Reading the provisions of Sections 50 and 114 of the Evidence Act together, it is clear that the act of marriage can be presumed from the common course of natural events and the conduct of parties as they are borne out by the facts of a particular case.
15. Where the partners lived together for long spell as husband and wife there would be presumption n favour of wedlock. The presumption was rebuttable, but a heavy burden lies on the person who seeks to deprive the relationship of legal origin to prove that no marriage took place. Law leans in favour of legitimacy and frowns upon bastardy."
31. The judgment reported in (2009) 9 Supreme Court Cases 304 (Union of India and others versus Muralidhara Menon and another) would also go to show as to the rebuttal of the presumption of valid marriage. The relevant portion would run 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 RanganathParameshwar Panditrao Moli v. Eknath Gajanan Kulkarni (1996) 7 SCC 681 and Sobha Hymavathi Devi v. Setti Gangadhara Swamy (2005) 2 SCC 244.) Such a presumption can be validly raised having regard to Section 50 of the Evidence Act. (See Tulsa1.) A heavy burden, thus, lies on the person who seeks to prove that no marriage has taken place.)'
32. The said principles were also expressed by this Court reported in 1994-2-L.W.125 (Sarangapani and 8 others versus Varadhan and 6 others) in the following passage:
"Where a man and a woman had lived together as man and wife, the law will presume, until the contrary is proved, that they were living together by virtue of a legal marriage and not in concubinage. The presumption of law is the strongest of legal presumptions and is not lightly to be repelled by a mere balance of probabilities and 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 still exists, even when there is no positive evidence of any marriage having taken place."
33. In yet another judgment of this Court reported in 1999-2-L.W.404 (Peramayee versus Guruvayee and 2 others), the presumption to be drawn under Section 114 of the Evidence Act has been explained as follows:
"14........ From this decision itself it can be inferred that there could be a presumption of a valid marriage under Section 114. That presumption is no doubt rebutable. In the instant case, having regard to the documentary proof, it can be presumed that there was a valid marriage between Kolandasami Gounder and the second respondent as alleged by the second respondent and this presumption had not been rebutted by the appellant. The parties had all been living together and in fact, the appellant's husband was a first cousin of the second respondent."
34. The aforesaid judgments would clearly lay down the principles that once two persons living as husband and wife and it is shown to the Court, it is for the other side who is disputing the status can rebut such presumption. But the burden is very heavily lying upon that person who seeks to deprive the relationship. On that basis, Whether the First Appellate Court was right in interfering with the findings that the plaintiff was the wife of the deceased Sekar, could be sustained.
35. It was rightly pointed out by the learned counsel for the appellant/ plaintiff, that the plaintiff was referred to as the wife of deceased Sekar in Ex.A23 the Voter's list. Similarly, plaintiff was referred as nominee to receive the service benefits of deceased Sekar in the nomination form produced in Ex.A18 which was proved by the Manager examined as P.W.4. In both the documents the name of the plaintiff was found to be the wife of the deceased Sekar.
36. The marriage invitation of one Kavya, the cousin sister of the deceased Sekar was produced in Ex.A2 in which it was found that the persons who had printed the invitation was the defendants 1 and 2. That was not specifically denied with the suggestion that it was created. On the backside of the said invitation in the receptionists column, the deceased Sekar and the plaintiff were mentioned as husband and wife. Even though Sekar was not alive on that day, the name of the plaintiff was included along with Sekar as wife of Sekar. Thus documentary evidence produced would go to show that the plaintiff was living as husband and wife. These documents would go to show that the plaintiff and the deceased were presumed to have lived as husband and wife during the lifetime of the Sekar.
37. It is the case of the defendants that the plaintiff was an 'Aravan' and was brought from Bangalore for doing the household duties for them and she was not living as the wife of the deceased. By virtue of the case, the defendants have categorically admitted the living of the plaintiff at the house of the defendants along with Sekar. When there is an un-impeachable documentary evidence to show that plaintiff was called as the wife of the deceased Sekar, the presumption under Section 114 would get stronger and the burden is lying very heavily upon the defendants 1 to 4 to discharge the same. The dictum laid down by the Hon'ble Apex Court, which was followed by this Court would go to show that unless the proof put forth by the evidence that the plaintiff was not the wife of the deceased Sekar, such presumptions cannot be represented.
38. The only point on which the evidence was sticking upon was that the plaintiff was a servant maid only. No other document to show that she was the wife of some other person or had they shown that she was already married and left his company and came to work as servant maid with the defendants and the deceased Sekar. The evidence of P.W.2 and P.W.3 would go to show that they have attended the marriage of the plaintiff with deceased Sekar in a 'Vinayagar temple'. When there is evidence to show the conduct of marriage in the Temple, this Court cannot infer that no marriage could be solemnised at Pillayar temple when the said custom has not been proved by the defendants 1 to 4. Marriages are normally solemnized during 'Vinayaka Sathurthi' days. Therefore, there may not be any custom that marriages should not be solemnized in the Vinayakar temples. Moreover, the reasons adduced by the First Appellate Court that the death of the priest was not proved and therefore, the solemnisation could not be considered as proved are not reasons to rebut the presumption drawn under Section 114 of the Indian Evidence Act.
39. Furthermore, the First Appellate Court did not consider Ex.A2 the marriage invitation card printed by the defendants themselves showing that the plaintiff was the wife of deceased Sekar. No doubt the First Appellte Court should be very careful before interfering with the factual finding reached by the Trial Court. For that, it ought to have framed various points as contemplated in Order 41 Rule 31 of C.P.C. But the First Appellte Court had framed only one point and even while discussing the various aspects of evidence, it had left certain documentary evidence important for the case of the plaintiff, but it had interfered with the Trial Court's judgment. When the important documentary evidence produced by the plaintiff were not discussed or considered by the First Appellate Court, certainly the findings reached by the First Appellate Court could be considered as perverse. Therefore, I find that the Judgment and decree passed by the First Appellate Court have to be necessarily interfered.
40. The Trial Court had elaborately discussed the evidence and appreciated the same and had come to the conclusion of conferring status to the plaintiff as the wife of the deceased Sekar. That was interfered without any valid reasons and therefore it has become necessary for this Court to approve that the findings of the Trial Court, as correct.
41. As regards the cross appeal, the learned counsel for the plaintiff has not stressed much. The Trial Court had also found that there is no proof for awarding preliminary decree towards B Schedule, items 3, 4 and C Schedule and therefore, the claim was rejected. I also find no reason to reverse the findings of the Trial Court since it was factually decided on the basis of evidence. Therefore, I am of the considered view that the Questions of Law framed by this Court are necessarily to be decided in favour of the appellant.
42. For the foregoing discussions, I am of the considered view that the judgment and decree passed by the First Appellate Court are perverse in nature and therefore it is liable to be interfered and set aside and accordingly, set aside. In fine, the Second Appeal is allowed to that extent and thereby the judgment and decree passed by the First Appellate Court in A.S.No.25 of 1998 are set aside in respect of allowing the appeal preferred by the defendants and in other respects confirmed and thereby the preliminary decree passed by the Trial Court and the judgment are restored. In the peculiar circumstances of the case, there is no order as to costs.