Sivaraman @ Harikrishnan and Another vs Rajeswari @ Shanthi and Others

R. Banumathi, J.—C.R.P. No. 15 of 2002.-- This Civil Revision Petition is directed against the order dated 2.11.2001 passed by the First

Additional District Munsif, Pondicherry in I.A. No. 1984 of 2001 in O.S. No. 370 of 2001, partly allowing the Petition, ordering to implead the

First Petitioner Devaradjou. In this Civil Revision Petition, the Plaintiffs are the Revision Petitioners.

C.R.P. No. 283 of 2003.-- Aggrieved over the order dated 2.11.2001 passed by the First Additional District Munsif, Pondicherry in I.A. No.

1984 of 2001 in O.S. No. 370 of 2001 declining to implead Canagame as Legal Representative of Govindaradjalou Naicker, the proposed

parties have filed this Revision Petition.

The parties are related as under:

Govindaradjalou Naicker

Died on 5.12.1989

Vislatchy Canagame

Died on 12.11.1997 (2nd proposed party)

|

| (Second Wife)

| (Status in dispute)

| |

| Devaradjou |

|

_____________________________________________________

| | | |

Sivaraman Pakkialatchumi Krishna moorthy Seethapathy

P-1 P-2 =Mala (D-3)

=Rajeswari@ |

Shanthi (D-1)________________

| | |

Arul Balan Lakshmipathi Gokilam

(D-2) (D-4) (D-5)

O.S. No. 370 of 2001.-- The Plaintiffs have filed this Suit for declaring that the Plaintiffs 1 and 2 and Defendants 1 to 5 are the Legal Heirs of

Govindaradjalou Naicker, who died on 5.12.1989 at Pillaichavady, Pondicherry. Case of the Plaintiffs is that their Mother - Visalatchy was

married to the Plaintiffs Father Govindaradjalou Naicker on 7.7.1935. Out of the lawful wedlock, the Plaintiffs and other sons - Krishnamoorthy

and Seethapathy were born. Govindaradjalou Naicker died on 5.12.1989 at Pillaichavady, Pondicherry. Visalatchy also died on 12.11.1997.

After the death of Govindaradjalou Naicker, only the Plaintiffs 1 and 2 and Defendants 1 to 5 are the Legal Heirs of Deceased Govindaradjalou

Naicker. Hence, the Plaintiffs have filed the Suit for Declaration to declare them that they are the only Legal Heirs of Deceased- Govindaradjalou

Naicker and Visalatchy.

I.A. No. 1984 of 2001.-- The proposed parties viz., Wife of Govindaradjalou Naicker - Canagame and Son Devaradjou have filed this

Application under Order 1 Rule 10(2) read with Section 151, C.P.C. to implead themselves as Defendants 6 and 7. Case of the Petitioners is that

the Second Petitioner - Canagame is the legally wedded wife of Deceased Govindaradjalou Naicker. Out of the said lawful wedlock, the First

Petitioner - Devaradjou was born on 15.6.1950, which was registered under Registration No. 80/1950. Canagame and Devaradjou are also the

Legal Heirs of the Deceased - Govindaradjalou Naicker. From Dinamalar Daily Newspaper dated 9.8.2000, the Petitioners came to know about

the filing of the Suit and hence, they have filed the Application for impleading themselves as Defendants 6 and 7.

Opposing the Application, the Plaintiffs have filed their Counter Statement contending that only Visalatchy was the legally wedded wife of

Govindaradjalou Naicker. The Second Petitioner - Canagame married one Kuppusamy. She claimed the compensation amount in L.A.O.P. No.

127 of 1987 on the file of First Additional District Judge Court, Pondicherry, claiming as the Wife of said Kuppusamy. The First Petitioner

Devaradjou is not the legitimate Son of Govindaradjalou Naicker. The Petitioners have no legitimate right to implead themselves as parties to the

Suit and hence, the Application is not maintainable.

Upon consideration of the contentions of both parties, learned District Munsif partly allowed the Application, ordering impleading of First

Petitioner - Devaradjou. Placing reliance upon the documents Exs.P-1 to P.5, the lower Court found that the legitimacy of the First Petitioner -

Devaradjou has been satisfactorily proved. Finding that no document has been produced to prove the marriage of Canagame with

Govindaradjalou Naicker, the lower Court declined to implead Canagame as the Defendant. Learned District Munsif has also found that the

Second Petitioner -Canagame cannot acquire any status and hence, cannot be impleaded as Party to the Suit.

Aggrieved over the Impugned Order, both the Plaintiffs and the Second Petitioner - Canagame have preferred these Civil Revision Petitions.

Learned counsel for the Plaintiffs has pointed out that in L.A.O.P. No. 127 of 1987 where the Second Petitioner - Canagame claiming herself as

the Wife of Kuppusamy had withdrawn the amount and now, she cannot claim to be the legally wedded wife of Govindaradjalou Naicker.

Drawing the attention of the Court to the Sale Deed of the year 1975 wherein the Second Petitioner claimed to be the Wife of Govindaradjalou

Naicker and concubine of Kuppusamy, learned counsel for the Plaintiffs has submitted that the Second Petitioner - Canagame being a concubine

of Govindaradjalou Naicker, now cannot claim the status of the Wife of Govindaradjalou Naicker. Further contention of the learned counsel is that

when Canagame herself was the concubine, the lower Court erred in finding that the First Petitioner - Devaradjou is a legitimate son of

Govindaradjalou Naicker and the Impugned Order cannot be sustained. Contending that the Second Petitioner cannot alter her status by taking

two different stand, learned counsel for the Plaintiffs assails the Impunged Order.

Countering the arguments, learned counsel for the proposed parties has laid emphasis upon the documents Exs.P-1 to P-5, which clearly show

that Devaradjou is the Son of Govindaradjalou Naicker and the Second Petitioner - Canagame and that Devaradjou has been treated as the Son

of Govindaradjalou Naicker by the family members. Submitting that declaration of status as Legal Heirs of Govindaradjalou Naicker has serious

implication, learned counsel for the proposed parties has contended that the main point whether Canagame is the legally wedded wife or the

concubine of Govindaradjalou Naicker is to be gone into only at the time of Trial. Learned counsel for the proposed parties has further contended

that it would be too pre-mature to form any opinion regarding the status of the Second Petitioner - Canagame at this initial stage.

Upon consideration of the contentions of both parties, the Impugned Order and materials on record, the points that arise for consideration are:

The Impugned Order directing impleading of First Petitioner -Devaradjou and refusal to implead the Second Petitioner - Canagame is correct ?

Whether the Impugned Order suffers from any material irregularity warranting interference ?

Firstly, let us confine to the correctness of the order of impleading the First Petitioner - Devaradjou. There is overwhelming evidence, proving

that the First Petitioner - Devaradjou is son of the Deceased -Govindaradjalou Naicker and the Second Petitioner - Canagame. Ex.P-1 is the

Certificate of Birth of Devaradjou showing his date of birth as 15.6.1950. Name of Father and Mother are stated as ""Govindaradjalou Naicker

and Canagame"". Ex.P-1-Birth Certificate clearly brings home the paternity of the First Petitioner.

Sufficient documentary evidence is adduced showing that in all the family functions, Devaradjou had been acknowledged and treated as Son of

Govindaradjalou Naicker.

Ex.P-2 : Death Information of Govindaradjalou Naicker

Ex.P-3 : Invitation for performing obsequies

Both in Exs.P-2 and P-3, the First Petitioner Devaradjou has been shown to be the son of Govindaradjalou Naicker. His name is shown down

below the names of other sons viz., the First Plaintiff and other Sons Krishnamoorthy and Seethapathy. Likewise, in Ex.P-4. Invitation for

performing obsequies and the rites of Deceased Visalatchy, the name of the First Petitioner is shown as the Son of Govindaradjalou Naicker. His

name has been printed down below the name of other sons of Govindaradjalou Naicker. Ex.P-5 is the Marriage Invitation for solemnisation of

marriage of Ashoka Raj, Son of Sivaraman, the First Plaintiff. In the Marriage Invitation also, the name of the First Petitioner Devaradjou has been

shown as Exs.P-1 to P-5 clinchingly shows that the First Petitioner Devaradjou has been accepted and treated as Son of Govindaradjalou

Naicker. Exs.P-1 to P-5 lead to irresistible conclusion that the First Petitioner is the Son of Govindaradjalou Naicker. No amount of arguments

could upset the definite conclusion that the First Petitioner - Devaradjou is son of Deceased -Govindaradjalou Naicker.

It is stated that Second Petitioner - Canagame is not the legally wedded wife of Deceased-Govindaradjalou Naicker and that her marriage (if

any) with Govindaradjalou Naicker is not a valid marriage since the First Wife - Visalatchy was living. u/s 16 of the Hindu Marriage Act,

notwithstanding that a marriage is null and void any child of such marriage would have been legitimate if the marriage has been valid shall be

legitimate, where such child is born before or after the commencement of the Marriage Laws (Amendment), Act 1976. The Section enacts a

complete Code with regard to the children of void or voidable marriages. First, it declares the status of such a child as legitimate. Secondly, it

recognises their right to the property of their parents. The provision is for the benefit of the children and will have to be applied in full so as to

confer status. The provision removes the disability of such children so far as the property of their parents is concerned. Thus, the First Petitioner -

Devaradjou who is the legitimate son of Govindaradjalou Naicker is directly and legally interested in the declaration of status of Legal Heirs of

Govindaradjalou Naicker. The order of the learned District Munsif, allowing the Application permitting to implead Devaradjou as the Sixth

Defendant is to be endorsed with.

The next point for consideration is whether the Trial Court was right in refusing to implead the Second Petitioner - Canagame as the Defendant

in the Suit. For better appreciation of the contentious points urged, it is necessary to refer to certain relevant dates:

Hindu Marriage Act XXV of 1955

came into force on : 18.5.1955

Petitioner -- Devaradjou born on : 15.6.1950

Kuppusamy Died on : 28.11.1944

Marriage of Govindaradjalou Naicker

with Canagame registered on : 7.9.1966

This marriage said to be having effect from : 16.9.1949

(vide Marriage Certificate)

In the Marriage Certificate, sought to be marked along with the Application filed in C.M.P. No. 10428 of 2005 under Order 41, Rule 27

C.P.C, it is stated,

...have declared that a ceremony of marriage has been performed between them and that they have been living together as Husband and Wife

since the time of their marriage and that in accordance with their desire to have marriage registered under this Act....

Thus, it is clearly stated that Govindaradjalou Naicker and Second Petitioner - Canagame have been living as Husband and Wife for a long

time and that they have desired to register the marriage on 7.9.1966. Since Canagame is said to have been living as Wife of Govindaradjalou

Naicker, quite reasonably she has a substantial case to put forth in O.S. No. 370 of 2001. The decision in O.S. No. 370 of 2001 determining the

status of Legal Heirs of Deceased Govindaradjalou Naicker has a direct bearing upon the Status and right of the Second Petitioner - Canagame.

Two documents produced by the Plaintiffs seem to have been substantially weighed in the mind of the Trial Court. The documents are

Award Copy in L.A.O.P. No. 127 of 1987 on the file of First Additional District Judge, Pondicherry dated 19.9.1988, wherein the Second

Petitioner claimed compensation amount as Wife of Kuppusamy.

Sale Deed dated 9.9.1975 showing that the Second Petitioner -Canagame is the Wife of Kuppusamy and concubine of Govindaradjalou Naicker.

Learned counsel for the Plaintiffs laid emphasis upon the above documents and contended that when the Second Petitioner herself claimed to

be the wife of Kuppusamy, now it is not open to the Second Petitioner to claim the status of Wife of Govindaradjalou Naicker and cannot seek to

implead herself as party in O.S. No. 370 of 2001. Of course, the Second Petitioner - Canagame has claimed compensation amount in L.A.O.P.

No. 127 of 1987 stating herself to be the Wife of Kuppusamy. Similarly in the Sale Deed dated 9.9.1975, she is stated to be the concubine of

Govindaradjalou Naicker. The question whether the Second Petitioner -Canagame has been elevated to the status of Wife from the position of

concubine is a matter of evidence, which is to be determined only after the parties adduce oral and documentary evidence. At this initial stage, it

cannot finally be concluded that the Second Petitioner - Canagame is the Wife of Kuppusamy and that she has no legal status connecting with

Govindaradjalou Naicker.

Birth Certificate of the First Petitioner - Devaradjou, showing his parents as Govindaradjalou Naicker and Canagame is the strong piece of

evidence that the Second Petitioner Canagame and Deceased-Govindaradjalou Naicker had been living as Husband and Wife. Whether the

Second Petitioner was a concubine and whether she had the status of legally wedded wife of Govindaradjalou Naicker is a matter of evidence.

That evidence is to be appreciated in the light of the laws and legal position applicable to the Territory of Pondicherry. At this stage, it would be

too premature to conclude that the Second Petitioner - Canagame is not a necessary party. She has a direct and tangible interest in the Suit and

hence, she is to be given an opportunity to put forth her case.

Order 1, Rule 10(2), C.P.C. is the provision which enables the Court to add a person as party at any stage in the proceedings if the presence

of such person is necessary to decide, adjudicate all questions, involved in the Suit. In the decision Sampatbai and Another Vs. Madhu Singh

Gambhirji, , the Madhya Pradesh High Court has observed:

The test is not whether the joinder of the person proposed to be added as a defendant would be according to or against the wishes of the plaintiff

or whether the joinder would involve an investigation into a question not arising on the cause of action averred by the Plaintiff. It is whether the

relief claimed by the Plaintiff will directly affect the intervener in the enjoyment of his rights.... The intervener must be directly and legally interested

in the answers to the questions involved in the case.

In another decision Ramesh Hirachand Kundanmal Vs. Municipal Corporation of Greater Bombay and Others, , the Supreme Court held that the

resistence of the Plaintiff to join the new party may not be a relevant consideration if the proposed party''s rights are likely to be affected by the

ultimate decision.

Submitting that addition of parties is purely discretion of the Court, which is to be exercised in view of the facts and circumstances of a

particular case, learned counsel for the proposed parties has relied upon the decision Razia Begum Vs. Sahebzadi Anwar Begum and Others, ,

wherein the Supreme Court inter alia drew the following conclusions:

That the question of addition of parties under Order 1, Rule 10 of the CPC is generally not one of initial jurisdiction of the Court, but of a judicial

discretion which has to be exercised in view of all the facts and circumstances of a particular case; but in some cases, it may raise controversies as

to the power of the court in contradistinction to its inherent jurisdiction, or, in other words, of jurisdiction in the limited sense in which it is used in

Section 115 of the Code;

That in a suit relating to property, in order that a person may be added as a party, he should have a direct interest as distinguished from a

commercial interest, in the subject matter of the litigations.

Where the subject matter of a litigation, is a declaration as regards status or a legal character, the rule of present or direct interest may be relaxed

in a suitable case where the Court is of the opinion that by adding that party, it would be in a better position effectually and completely to

adjudicate upon the controversy.

Learned District Munsif has not considered the facts and circumstances of the case. The lower Court was not right in concluding that the

Second Petitioner - Canagame is not a necessary party. Learned District Munsif ought to have held that the status of the Second Petitioner -

Canagame is a matter of evidence and that she ought to have been given an opportunity to put forth her case. If the opportunity is denied it would

be travesty of justice. In all such cases, it is the duty of the Court to implead the parties whose interest are likely to be affected by the conclusions

to be arrived at in the Suit. Keeping the above decisions in mind, one looks at the facts of the case and the Impugned Order, this Court is of the

view that the Impugned Order, declining to implead the Second Petitioner - Canagame cannot be sustained. The order of impleading the First

Petitioner -Devaradjou is to be confirmed.

C.R.P.No. 15 of 2002.-- For the foregoing reasons, the order dated 2.11.2001 passed by the First Additional District Munsif, Pondicherry in

I.A. No. 1984 of 2001 in O.S. No. 370 of 2001, allowing the Petition to implead the First Petitioner - Devaradjou as the Sixth Defendant in the

Suit is confirmed and this Civil Revision Petition is dismissed.

C.R.P.No. 283 of 2003.-- For the foregoing reasons, the order dated 2.11.2001 passed by the First Additional District Munsif, Pondicherry

in I.A. No. 1984 of 2001 in O.S. No. 370 of 2001, declining to implead the Second Petitioner - Canagame is set aside and this Civil Revision

Petition is allowed. Learned First Additional District Munsif, Pondicherry is directed to implead the Second Petitioner - Canagame as the Seventh

Defendant. The Plaintiffs are directed to suitably amend the Plaint in accordance with the order. Learned First Additional District Munsif,

Pondicherry is further directed to afford opportunity to the proposed parties/newly impleaded Defendants to file their Written Statements and

dispose of the suit in accordance with the law.

In the facts and circumstances of the case, there is no order as to costs in both the Civil Revision Petitions.