Elizabeth vs Kannimariyal and Yesumoni Mary

P.R. Shivakumar, J.—The Defendant, in the original suit, who suffered a preliminary decree for partition before the trial Court (Additional Sub Court, Nagercoil) which decree was confirmed by the lower appellate Court viz., District Court, Kanyakumari, has come forward with the present second appeal.

Original Suit No. 56 of 2005 was filed by the Respondents herein as Plaintiffs contending that all the suit properties were the properties of Late Packianathan, the husband of the first Respondent herein/first Plaintiff; that the Appellant herein/Defendant and the second Respondent herein/second Plaintiff were the daughters of the said Packianathan; that since the said Packianathan died intestate, the Appellant and the Respondents 1 and 2 became entitled to equal shares in the properties left by Packianathan and that each one of them was entitled to one third share in the said properties. The suit was resisted by the Appellant herein/Defendant contending that though the Appellant herein/Defendant and the second Respondent herein/second Plaintiff were the daughters of the first Respondent/first Plaintiff, the second Respondent/second Plaintiff was not the daughter of Packianathan; that she was born due to the adultery of the first Respondent herein/first Plaintiff with another man; that hence both the Respondents herein/Plaintiffs would not be the legal heirs of deceased Packianathan entitled to succeed to his estate and that the Appellant herein/Defendant, as the sole legal heir of Packianathan, was entitled to succeed to his estates.

Based on the rival pleadings, the learned Trial Judge framed necessary issues and conducted trial, in which the Respondents 1 and 2, were examined as P. Ws. 1 and 2, whereas the Defendant, besides examining herself as D.W.1, examined one mason as D.W.2. Six documents were marked on the side of the Respondents herein/Plaintiffs as Exs.A1 to A6. Twenty five documents were marked on the side of the Appellant herein/Defendant as Exs.P1 to P25.

The learned trial Judge, after the conclusion of trial, heard the arguments advanced on both sides and considered the pleadings and evidence. Upon such consideration, the learned trial Judge came to the conclusion that all the suit properties were the properties of the deceased Packianathan; that the Appellant/Defendant and the Respondents herein/Plaintiffs 1 and 2 were the legal heirs of the deceased Packianathan and that hence each one of them was entitled to one third share in the suit properties.

The contentions of the Appellant/Defendant that the second Respondent/second Plaintiff was not the daughter of Packianathan was negatived by the trial Court. Accordingly, a preliminary decree for partition directing the division of suit properties into three equal shares and allotment of one such share to each one of the Respondents herein/Plaintiffs was passed. Aggrieved by and challenging the preliminary decree passed by the trial Court on 31.03.2006, the Appellant herein/Defendant preferred an appeal on the file of the District Court, Kanyakumari at Nagercoil, in A.S. No. 25 of 2006. The learned First Appellate Judge, after hearing, concurred with the findings of the trial Court in all respects and dismissed the appeal confirming the preliminary decree passed by the trial Court.

As against the said judgment and decree of the lower Appellant Court dated 11.08.2009, made in A.S. No. 25 of 2006, the Appellant herein/Defendant has brought forth the second appeal on various grounds set out in the memorandum of grounds of second appeal.

The submissions made by Mr. K.P. Narayanakumar, learned Counsel for the Appellant were heard. The memorandum of second appeal, copies of the judgments of the courts below and other documents produced in the form of typed-set of papers were also perused. This Court had the benefit of going through the evidence of the witnesses examined on both sides, as the copies were produced by the learned Counsel for the Appellant for the perusal of this Court, in an attempt to substantiate the contention of the Appellant that the findings of fact recorded by the Courts below could be termed perverse. This Court took into consideration the submissions made by the learned Counsel for the Appellant and the materials placed before this Court.

As against the concurrent judgments of both the Courts below, the present second appeal has been filed by the Appellant herein/Defendant, who lost the legal battle in both the courts below. The admitted relationship between the parties are as follows:

First Respondent/first Plaintiff is the mother of both the second Respondent/second Plaintiff and the Appellant/Defendant. The first Respondent was the wife of deceased Packianathan and both of them were the parents of Appellant/Defendant. Though the second Respondent/second Plaintiff is admitted to be the daughter of first Respondent/first Plaintiff, the Appellant/Defendant has contented that the second Respondent/second Plaintiff is not the daughter of deceased Packianathan and that she was born to her mother out of adultery.

Of course, it is true that the Appellant/Defendant, in her written statement, has come out with a plea that she was ready to produce the biological father of the second Respondent/second Plaintiff and was prepared to make arrangements for conducting paternity test for the second Respondent/second Plaintiff, she had not chosen to divulge anything in the pleading as to who was the said adulterer and who was the biological father of the second Respondent/second Plaintiff. Though the Appellant/Defendant has taken such a stand, without furnishing details, she had failed to adduce evidence to the effect that the husband of the Appellant himself happened to be the adulterer and he was the biological father of the second Respondent/second Plaintiff. Such an adultery pleaded by the Appellant/Defendant does not stand substantiated, as there is no other evidence except the interested testimony of D.W.1.

The evidence of D.W.1 in this regard has got vital flaws. First of all, she ought not to have been allowed to lead evidence without there being a specific plea. Any amount of evidence adduced without a plea cannot be looked into. Even assuming that the bald allegation that her mother committed adultery and due to such adultery, she gave birth to the second Respondent/second Plaintiff was enough to allow the Appellant/Defendant to adduce evidence in detail regarding such adultery, the testimony of D.W.1 is not trustworthy. Her evidence in this regard becomes highly motivated and improbable. It is her evidence that, at the age of 17 or 18, she witnessed the adultery of her mother with a man who later on became her husband. The evidence of D.W.1 in this regard is to the effect that in the year 1971 her father had gone to Thalaiyuthu and stayed there for a couple of months in connection with his coolie work; that point of time, the husband of the Appellant (at that point of time the Appellant was not married to him) who was none other than the brother''s son of the first Respondent/first Plaintiff frequented his visit to their house; that during those visits they developed illicit intimacy pursuant to which, the first Respondent was carrying the second Respondent in her womb; that since after two months the Appellant''s father came back and he came to know about such adultery and the pregnancy of the first Respondent and that thereafter, the father of the Appellant did not have any connection with the first Respondent and deserted her. It is quite surprising to note that no action was taken either through Court or through their Church, since they are Christians, regarding the alleged adultery on the part of the first Respondent. Packianathan did not choose to apply for dissolution of marriage or judicial separation on the ground of adultery of his wife or even after the child was born on the ground that his wife was living in adultery and had given birth to a child due to adulterous relationship with another man. Packianathan had also not chosen to prosecute the said adulterer for the said adultery. Curiously, this Court is able to see the paradox that Packianathan himself has chosen to give his own daughter in marriage to the person who had allegedly committed adultery with his wife and gave birth to the second Respondent.

It is also surprising to note that the Appellant who claims to have seen the adulterous relationship between her mother and the said adulterer, consented and chose to marry him. It is quite improbable that they could have acted in such a manner even after knowing the adulterous relationship of the first Respondent and the husband of the Appellant if it was true. On the other hand the tenor of evidence adduced on the side of the Appellant/Defendant would show that she was very much interested in the properties rather than safeguarding the dignity of the family. For grabbing at the properties she has chosen to trade a charge against her own mother as if she was living in adultery and gave birth to the second Respondent herein through the adulterer. The attempts made by the Appellant to see that the properties of her father do not go to others are obvious from the other steps taken by her and her husband. It is the plea of the Appellant/Defendant is that except item No. 3 of other items of suit properties belonged to Packianathan and she became the absolute owner of those properties as the other two were excluded from succession. So far as item 3 is concerned, it is her contention that she is the absolute owner of the property by virtue of a purchase made by her and that the building put up therein was made with the funds of her husband. In this regard, the Appellant/Defendant has produced two documents. They are Exs.B14 and B15. Ex.B14 is a copy of the sale deed dated 18.01.2002 executed by one Daniel Selvin in favour of the Appellant herein/Defendant. Ex.B15 is a copy of another sale deed executed in favour of Appellant herein/Defendant by her own husband as power agent of other persons. Ex.B15 came into existence after the death of Packianathan. Of course, Ex.B14 came into existence one year prior to the death of Packianathan. But the same shall not be enough to substantiate her contention that her father did not have any title to the third item of suit properties and she derived title by virtue of those sales and not by succession to the estate of her father.

It is the evidence of D.W.1 and also D.W.2 that the third item as a vacant site, was given as a gift by her father to the Appellant and in that property, the Appellant and her husband put up a construction. It is also her statement in evidence that the third item of suit properties has been in their possession from the year 1982. Having taken a plea that the suit third item of property was orally gifted to her by her father, she has chosen to produce documents to show as if the third item of property was purchased from a third party. It is not the case of the Appellant/Defendant that the property was not worth more than Rs. 100/-. Above all, there is a clear admission made by the Appellant/Defendant as D.W.1 in her testimony in the Chief-examination, in the form of proof affidavit, itself that all the suit properties were the properties of her father Packianathan and after the death of Packianathan, they are in the possession and enjoyment of herself and her husband. The relevant portion in the proof affidavit is extracted hereunder:

gpuhJ brhj;Jf;fs; vd;Dila je;ij ghf;fpaehjdpd; Kd;BdhUf;Fg; ghj;jpag;gl;lJ vd;gBjhL, mth;fSila fhyj;jpw;F gpd;dpl;L vd;Dila jfg;gdhh; ghf;fpaehjd; kw;Wk; vd;Dila fzth; rjhuf; mDgt mtfhrj;jpYk; nUe;J te;jJ vd;gBjhL, vd;Dila je;ij ghf;fpaehjd; nwg;g[f;Fg; gpd;dh; vd;Dila kw;Wk; vd; fztUila mDgt mtfhrj;jpy;; nUe;J tUfpd;wJ.

Having made such a clear and categorical admission in the opening paragraph of the proof affidavit that the suit properties were the properties of her father, she cannot be heard to say that one of the properties had been purchased subsequently by her from a third party. The greed of the Appellant will also be seen from the fact that her husband has chosen to file a suit against the Respondents and the Appellant and get many of the properties left by Packianathan attached in a suit for recovery of an alleged sum due from Packianathan. It is also evident from the fact that the Appellant/Defendant has gone to the extent of denying the right of her mother, the first Respondent, to have a share in the properties left by her husband Packianathan, solely on the ground that she was allegedly living in adultery at some point of time, before the Appellant got married to her husband. The cumulative effect of all those aspects will give rise to an inference that the Appellant/Defendant is capable of making any averment tarnishing the image of not only her husband but also every body in the family and that is the reason why she has chosen to contend that the second Respondent/second Plaintiff was not the daughter of Packianathan.

In fact, it is not in dispute that the second Respondent/second Plaintiff was not born during the subsistence of the marital tie between first Respondent and Packianathan as wife and husband. It is also not in dispute that the registration of birth contains an entry regarding the birth of the second Respondent showing Packianathan to be the father of the second Respondent. Clear evidence has been adduced on the side of the Respondents/Plaintiffs in this regard. Therefore, this Court is not able to find any defect or infirmity in the concurrent findings of the Courts below that the plea of adultery made by the Appellant herein/Defendant and the plea that the second Respondent/second Plaintiff was not the daughter of Packianathan had not been substantiated by the Appellant herein and that hence the second Respondent, being the daughter of Packianathan was entitled to equal share in the estate of Packianathan along with the Appellant and the first Respondent.

It has also been pointed out supra that the claim of the Appellant that the third item of suit property was not that of Packianathan and she was the absolute owner of the said property in her own right could not be sustained. It is not in dispute that Packianathan died intestate. The Respondents/Plaintiffs rely on an ancient document, namely a registered partition deed of the year 1965 under which Packianathan got the suit properties. Therefore, the first Respondent being the wife of Packianathan and the Appellant and the second Respondent being the daughters of Packianathan are entitled to succeed to the properties of Packianathan. According to Section 33 of the Indian Succession Act, one third of the estate of the Packianathan will go to the widow, namely first Respondent and the balance shall be divided equally among his lineal descendants, namely the Appellant/Defendant and second Respondent/second Plaintiff. Thus, each one of them has become entitled to one third share in the suit properties constituting the estate of deceased Packianathan. The Courts below have rightly held that the Respondents/Plaintiffs are entitled to two third share and that they are entitled to get their shares divided. The preliminary decree granted by the trial Court directs division of the properties into three equal shares and allotment of such shares to the Respondents/Plaintiffs. This Court does not find any defect or infirmity, much less perversity in any one of the findings recorded by the trial Court and confirmed by the lower Appellate Court. There is no merit in the second appeal and the second appeal deserves to be dismissed at the stage of admission itself.

Accordingly, the Second Appeal is dismissed. Consequently, connected M.P.(MD) No. 1 of 2010 is also dismissed. There shall no order as to costs.