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Judgment
I. David Christian , J.—One Sunilkumar S/o. Joseph is the petitioner in Crl.O.P.No.9540 of 1998 and one Sarasammal. who claims to be the second wife of Joseph is the petitioner in other Crl. O.P. The petitioner Sunilkumar filed a complaint on 4.1.1998 to the Sub Inspector of Police, Dindigul Police station alleging that he has kept eight tons of coffee seeds worth about Rs.8 lakhs in his godown which has been stolen by persons at the instance of Sarasammal, whom he has termed as his step-mother. A case was registered on the complaint given by Sunilkumar in Cr.No.21 of 1998 in Dindigul Police Station and during the course of investigation, the coffee seeds were seized from a lorry which is said to belong to a person who is closely connected with Sarasammal. While the complaint refers to about theft of eight tons of coffee seeks, only a small quantity packed in 31 gunny bags and nine Chippams were seized from the lorry by the police and after some delay it has been remanded to the Judicial Magistrate No. II. Dindigul. The complaint in the theft case, namely Sunilkumar and his stepmother Sarasammal preferred claims for return of the said coffee seeds raising various contentions.
On going through the typed set of papers furnished in both the petitioners, the following facts have emerged: One K.M.J. Joseph is the Managing Director of Ponnacholai Estate, Sirumalai, which is the owner of coffee estate having large extent of lands: K.M.J. Joseph was married to one Mariaminal and the parties belong to Christian community and the marriage between Joseph and Manammal was solemnised as per the law governing Christian community. Joseph and Mariammai had only one son Sunilkumar and two daughters by name Suma and Suja. Daughters are given in marriage and well provided for. Joseph is residing with his wife and children and he is residing in the estate of Sirumalai. Even in 1960"s it seems Joseph developed illicit intimacy with one Sarasammal. daughter of one Raghavan Nair. Joseph brought Sarasammal and accommodated her in a house at Dindigul and they were living as husband and wife. Through Sarasammal, Joseph had three sons by name Dilipkumar Prem Kumar and Pramoth Kumar and a daughter. It seems Joseph has provided to Sarasammal and the children born to her by settling valuable properties by way of lands and houses. There is only lawful marriage between Joseph and Mariammai and the subsequent living of Joseph with Sarasammal will not however give any legal status to Sarasammal and she is only a concubine or kept mistress of Joseph. The children born to Joseph are all illegitimate children and they cannot make any lawful claims on the properties of Joseph. For that matter. Sarasammal has also no legal status to make, any claim on Joseph. The fact remains that the relationship between Sarasammal and her children with Joseph remained cordial till about middle of 1990 and during the course of these years. Joseph has provided for Sarasammal and her children by settling number of properties. The dispute somehow has arisen between Sarasammal and her sons on the one hand and Joseph on the other hand. Thereafter the trouble started and parties started giving petitions against each other making various allegations against one another.
Sarasammal has gone to the extent of filing a civil suit O.S. No. 12 of 1998, on the file of the District Munsif. Dindigul and the plaintiffs are Sarasammal and her son Pradheep Kumar and one Unnikrishnan. She has impleaded Joseph as the first defendant, his son Sunilkumar as the second defendant and Deputy Superintendent of Police, Inspector of Police Dindigul Taluk Police Station and the Manager of Canara Bank, Dindigul branch as respondents 3 to 5 respectively.
A reading of the plaint, a copy of which is found in the typed set of papers furnished on her behalf would disclose that Sarasammal got married to Joseph in October, 1966 in Meenakshiamman Temple at Madurai. Even though a claim has been made in the plaint that the marriage was solemnised as per the caste and customary rites, the marriage was void since Joseph was already married to Mariammai and the marriage is admittedly in subsistence. Moreover, even according to the description made in the plaint filed by Sarasammal, she is described as wife of Joseph, a Christian by faith. So. the marriage claimed by Sarasammal with Joseph said to have been solemnised in Meenakshiamman Temple. Madurai is not a valid marriage in the eyes of law. Therefore, even as per the admissions made by Sarasammal in the plaint, she cannot claim legal status of a wife and there can be only one wife and there cannot be a second wife.
As already stated the Christian Law does not recognise illegitimate children and they are not entitled to any right of succession to the properties. The words "Joint Family" has been loosely used by Sarasammal in the plaint filed by her. but there is no question of any joint family property because the property belongs to Joseph and he and he alone is the absolute owner and neither his wife nor children nor any body else can claim any right to the properties of Joseph only because of their birth or relationship. The property belonging to a Christian can be only alienated by him or can be dealt with by him during his lifetime and he can dispose of the property by a will, if he so chooses and if he dies intestate, his property will devolve upon his legal heirs as per the Indian Succession Act. Only the wife and children are entitled to succeed to the estate of a Christian, who is married and who got children born in wedlock.
Here is a case where Joseph is very much alive and so. also his wife Mariammai and the marriage is in subsistence. Therefore, neither Sarasammal nor her children can make any claim to the properties of Joseph. Perhaps this is the reason why even during the life time of Joseph he has chose to settle extensive properties in favour of Sarasammal and the children born to her through him. There is no dispute with regard to the properties which has been so with by Joseph in favour of Sarasammal and her children.
Even with regard to the suit filed by Sarasammal. She has only claimed title in respect of three houses, whose door numbers are given stated to be situate in Sirumalai and according to Sarasammal the dispute was in respect of those three houses. Sarasammal no doubt has made some claims in respect of the properties standing in the name of Joseph to make it appear as if some of the properties have been acquired by joint efforts of Sarasammal and Joseph and also from out of the monies provided by her father. But, so far as the suit is concerned she has not claimed right, title or possession in respect of any properties by purchase said to have been made out of joint efforts or said to have purchased from out of the monies allegedly provided by her father. It is also not probable that Sarasammal or her father would have been in a position to provide any funds and her father would be the last person if really he has furnished funds to purchase the properties from his monies in the name of Joseph, who has no valid marital ties with his daughter. But, we are not very much concerned with regard to all these disputes or issues and all the above stated facts are stated only to understand the background in which disputes have arisen wherein allegations are freely made and even police officials in the rank of Deputy Superintendent of Police have been brought in for adverse comments by the parties concerned.
Since the properties i.e. coffee seeds concerned in Cr.No.21 of 1998 has been remanded to the Court Judicial Magistrate No.2, Dindigul. Sarasammal filed a petition for return of property and so also Sunilkumar filed another petition. Learned Magistrate in view of the contents raised and in view of the claim made by Sarasammal that coffee seeds seized by the police have been actually harvested from the lands in her possession and kept in her godown. has chosen not to pass any others returning the property in favour of either Sarasammal or Sunilkumar. In fact Sarasammal in the meantime has filed the suit, referred to above, wherein she has specifically prayed for a declaration that coffee seeds seized by the police, who are also impleaded in the suit as defendants, actually belong to her. Therefore, the learned Magistrate has correctly held that in view of the rival claims, it will be pre-mature for him to decide with the available materials, as to who among the rival claimants are entitled to coffee seeds which were seized by the police in the case registered on the complaint of Sunilkumar.
Aggrieved at the said order passed by the learned Magistrate. Sunilkumar preferred Crl.M.P.No.397 of 1998 before the Principal District Judge, Dindigul and Sarasammal preferred Crl. M.P.No.424 of 1998 again inviting the learned Judge to decide the question with regard to entitlement of these parties to the coffee seeds seized by the police in the Crime Number. Learned Sessions Judge also after going through the facts and after taking out into consideration the pendency of the suits, where the claims is made by Sarasammal and resisted by Sunilkumar, where disputes can be decided by the parties adducing documentary and other evidence, has also concurred with the opinion of the Magistrate that the coffee seeds cannot be returned to the applicants in the case and therefore directed the Magistrate to sell the coffee seeds produced and seized by the police in the Crime No.21/98 and to deposit the sale proceeds in a bank. As against the order passed by the learned Principal District Sessions Judge. Dindigul Sarasammal has filed Crl.O.P.No.6107 of 1998 and Sunilkumar filed Crl.O.P.No.9540 of 1998.
Initially there was a stay of the operation of the order passed by the learned Principal Sessions Judge directing sale of coffee seeds and depositing the sale proceeds to the credit of the case but subsequently the stay was not extended and now the learned Government Advocate has submitted that Judicial Magistrate No.2. Dindigul has sold the coffee seeds produced in public auction and the learned Magistrate was able to realise the sale proceeds of Rs. 21,000/-. The amount seems to have been deposited to the credit of the criminal case. Therefore, these two petitions have almost become instructions and there is no question of giving interim custody of coffee seeds in crime and it is also not possible at this stage to decide as to whom among the rival claimants are entitled to the sale proceeds of the coffee seeds The Magistrate has deposited the Sale proceeds in criminal court deposit, where the amount will not earn any interest. Hence, the learned Magistrate is directed to withdraw the amount and deposit the same in fixed deposit in a Nationalised bank so that the amount will earn interest which can be awarded to the path who finally succeeds Since Sarasammal has specifically asked for a declaration in the Civil Suit, one has to naturally await for the result of the same and therefore in the meantime instead of money lying idle in Criminal Court deposit, the Judicial Magistrate No.1 I, Dindigul is directed to deposit the same in a fixed deposit in a Nationalised Bank.
Both the petitions arc dismissed since coffee seeds ha\\e already have sold and sale proceeds have been realised.