1. Plaintiffs are appellant. They filed a suit, O.s. No. 114 of 1971 on the file of Sub-Court, Erode for the relief of declaration and possession, with mesne profits of the suit property, or alternatively for partition and separate possession of one-half share with damges; or alternatively to award past and future maintenance to plaintiffs and for such other reliefs to which they are entitled to.
2. First plaintiff died during the pendency of the appeal, and plantif Rs 2' to 4 being her heirs are already on record.
3. It is not in dispute that the suit property and other properties were ancestral properties of one E.C. Subramania Iyer, who had two sons being E.S Dhandapani Iyer and Ranganatha Iyer.
4. It is claimed by plaintiffs that Ranganatha was employed in a bus transport company and was also having a taxi and that he married one Bagirathi as his first wife. A son by name Pichan was born to them. As his first wife was inflicted with T.B., to care for her, first plaintiff came into the household and as Ranganatha developed a liking to her, the marriage between Ranganatha and first plaintiff took place on 1.2.1933 in the house, in the presence of relatives and well-wishers and before the family deity Muruga. First plaintiff was earlier married ' in her 10th year and lost her husband even before attaining puberty. After the marriage on 1.2.1933, she lived in the house, looking after the ailing senior wife and her son Pichan, Plaintiffs 2 and 3 being the sons and fourth plaintiff the daughter, were born to them. First wife of Ranganatha died in' 1939 or 1940. Ranganatha died on 23.8.1955, leaving behind a will 'dated 1.8.1955. Plaintiffs refer to the financial difficulties experienced by Dhandapani, the elder brother of. Ranganatha and claim that a family arrangement was arrived at leading to the execution of a composition deed dated 18.4.1930 (Exhibit A.34) executed by Subramania Iyer and his two sons, in and by which, the suit property was exclusively allotted to Ranganatha and that subsequently he had been exercising full rights of ownership, by mortgaging it, leasing it out and by paying municipal dues etc., from time to time. At no point, of time, Dhandapani ever exercised any right or interest ever the suit property ever since 1930. After the death of Bagirathi, Dhandapani picked up quarrels with Ranganatha and left the suit, house along with his father, who later died in 1943. Pichan was under the care of first plaintiff and he died in 1955. As Ranganatha was in strained circumtances, on 4.3.1951, he had usufrutuarily mortgaged the suit property to one Meenakshi Ammal, the wife of one S. Krishnasami Iyer, a close relation. When first plaintiff wanted to register the will executed by Ranganatha bequeathing the suit property to the plaintiffs. Dhandapani filed a suit in O.S. No. 279 of 1958, District Munsif's Court, Erode, praying for a declaration that the will was not true, valid and binding upon him. It was decreed on 19.6.1959 and A.S. No. 30 of 1960 was filed as against it and it was allowed on 5.9.1960. Dhandapani filed S.A. No. 762 of 1961 and it was allowed on 27.6.1983 holding that the property being a, joint family property the will is not enforceable Thereafter, Dhandapani filed O.S. No. 32 of 1965, in Sub Court, Erode seeking for redemption of the unsufructuary mortgage, to which plaintiffs were not made as parties. It resulted in a compromise and possession was taken by defendants on 19.10.1967. During the pendency of the suit Dhandapani died on 24.9.1965. This decree is not binding upon plaintiffs. As the said mortgage had not been validly redeemed, possession of the defendants could not destroy the rights of the heirs of the mortgagor Ranganatha. Plaintiffs 2 and 3 are the sons of Ranganatha. By virtue of adverse possession they acquired absolute title to the suit property. If it be held that the suit property is' joint family property, then they are entitled to the relief of partition, as claimed. If it be held that the first plaintiff was in the exclusive keeping of Ranganatha, from 1931 till his death on 23.8.1955, those plaintiffs are entitled to the maintained from and out of the suit property.
5. Defendants I to 6 assert that no marriage ceremony and tying of thali on 1.2.1933 over took place as claimed by plaintiffs, and that she was already married to one Kuppusami and he was alive at the time of alleged marriage and lived for many years thereafter, and that plaintiffs 2 to 4 are not the legitimate children of Ranganatha. The suit property is a joint family property of Subramania Iyer and his two sons, and it devolved on defendants 1 to 3 and their father Dhan-daoani by survivorship, on the death of Ranganatha in 1955, because his wife Bagirathi and his son Pichan predeceased him. 'When he was hospitalised, the will (Exhibit A.33) was fabricated, and even thereinfirst plaintiff was described as a concubine. After the decision in O.S. No. 279 of 1958 and in S.A. No. 762 of 1961, the validity of the will cannot any longer be, nor the character of the property could be, gone into, as the decisions rendered therein would operate as res judicata. As for the composition deed (Exhibit A.34), it having been already hold as totally in -admissible for want of registration, plaintiffs cannot once again rely upon it to claim that the property belonged to Ranganatha as his separate property; and on this aspect also, the earlier decision would operate as res judicata. First plaintiff in her deposition in O.S. No. 279 of 1958 had clearly stated that she was the kept concubine of late Ranganatha and even the alleged concubinage is invalid, and in the context of the. earlier proceedings, the plea of adverse possession is an after-thought and baseless. As Dhandapani and his heirs having acquired rights in the property subsequent 'to 23.8.1955, and having discharged the usufructuary mortgage in their own right, and admittedly defendants having lost possession since 196 7, and the suit having been instituted in 1970, the plea of adverse possession, is unsustainable. The other factual allegations about Dhandapani and Subramania Iyer leaving the suit house and of Pichan not being cared for have been specifically denied as untrue. In the mortgage deed dated 4.3.1951, Ranganatha had described Pichan as his only son, and at no point of time had ever recognised plaintiffs 2 to 4 as his legitimate children. Reference was also made to other proceedings which are referred to in the judgment of the Court below, and it is unnecessary to repeat themherein. When defendants do not admit that plaintiffs 2 to 4 are the legitimate children of Ranganatha, they are not entitled to the relief of partition claimed nor grant of any maintenance whatsoever. Even if first plaintiff is held to be a permanent concubine, she would not be entitled to be maintained out of the income from the joint family property. In spite of the earlier proceedings, the present suit had been instituted. At the instigation of Krishnasami Iyer, who was interested in appropriating the property based on the usufrcutuary mortgage and was resisting redemption of it when defendants took steps in that direction.
6. On behalf of plaintiffs,, plaintiffs 1 and 3 others were examined, whereas 2nd defendant alone was examined on behalf of defendants. Trial Court decreed the 'suit only relating to the relief of maintenance, past and future for plaintiffs 1 to 3 with a charge over the suit property; and in other respects, it dismissed the suit. Aggrieved against it this appeal is filed by plaintiffs whereas defendants have preferred the Memorandum of Cross-Objections.
7. The points arising for consideration in this appeal are:
1. Whether first plaintiff was married to Ranganatha on 1.2.1933?
2. Under the facts and circumstances of this case does long continued cohabitation of Ranganatha and first plaintiff lead to the presumption being drawn under Section 114 of the Evidence Act?
3. Does the failure to prove marriage on 1.2.1933 preclude the first plaintiff from invoking the said presumption?
4. Is the suit property a joint family property and is the decision in O.S. No. 279 of 1956 binding upon the plaintiffs?
5. Whether the plaintiffs have prescribed title by adverse possession?
6. Are plaintiffs 2 and 3 entitled 'to claim relief of partition?
7. Was first plaintiff entitled to claim maintenance?
8. Are plaintiffs entitled to any other relief?
8.Mr. S. Sethurathinam, Learned Counsel for the plaintiffs, would refer to evidence of first plaintiff as P.W.I, and claim that she had given the details about the manner in which her marriage had taken place and her evidence deserves acceptance, though not corroborated by arty other oral or documentary evidence. What she has stated in the plaint she had repeated in the course of her evidence. She states in para 12 of the plaint that she was already married in her 10th year but lost her husband even before attaining puberty, and she came to the house of Ranganatha to eke out her livelihood, and as he had bestowed his affection towards her, in the presence of relatives and well-wishers, she was taken as the second wife in his house before the altar of Muruga, the family deity, and the customary formalities like tying of thali etc., were all observed, and the said marriage took place on 1.2.1933. Such a clainj she had never put: forth, in any of the earlier proceedings. At the time of deposition she was aged 63, and therefore, she must have been aged about 21 years at the time of the alleged marriage. She had not furnished the names of those who attended the marriage nor chosen to examine any of her relations. Therefore, the burden, is heavily upon her to prove that on 1.2.1933, she was married in that manner. In Exhibit A.33 Ranganatha refers to her marrige in childhood and of the husband having died before her puberty. Ranganatha, being an orthodox Brahmin and living with his first wife, his father and brother, could not have mrried first plaintiff as claimed by her, It calls for clinching evidence to be placed before court. Mr. M.R. Narayanasami pleads that one has to visualise the type of Brahmin Society that was existing in 1933, and that there could be no question of surmises or probabilities being considered regarding the factum of such a marriage. She had not examined any elderly person who had attended the marriage. No invitation was ever printed. Ranganatha and his relatives would not have allowed publicity of what he was doing. When secrecy had existed, it was expected of her to prove the factum of marriage as pleaded and as deposed, Except for her self-serving evidence and reliance placed on Exhibit A5, a cudgeon leaf, which could at any time be brought into existence, no other supporting evidence being available, this claim has to be necessarily rejected.
9. The next contention of plaintiffs is that in view of the long cohabitation between first plaintiff and Ranganatha beginning from 1931 and lasting till 1955 in law it shall be deemed that she had acquired the status of a wife. Reliance is placed on more than one letter and some of them written by Ranganatha himself to show that she was treated as a wife and that children born through her were cared for as legitimate children by Ranganatha. In Exhibit A.13 Pichan describes as her Exhibit A.7 she is described as wife. Exhibit A.31 is a notice issued by Arunachalam Nidhi Ltd. describing her as wife. Exhibit A.32 is a discharged promissory noteexecuted by her in which she was styled as the wife of Ranganatha. In Exhibits A.45 and A.46 Ranganatha had written to second plaintiff referring to first plaintiff as mother. Exhibits A.68 and A.6 9 are letters written by Ranganatha to third plaintiff treating him as his son. In Exhibits A. 9 and A.47, he described himself as. School register entries too reflect this paternity (Exhibits A.1 to A.4). While taking L.I.C. Policy in 1949 Ranganatha had named 1st plaintiff as his nominee treating her his wife (Exhibits A. 91). Exhibits A.65 to A.67 are money orders sent by him to second plaintiff treating him as his son. Thus, there is evidence in abundance to show that plaintiffs were under the immediate care and attention of Ranganatha and he gave a lasting impression on the first plaintiff that she was his wife and that the other plaintiffs were born to him. In the context of such evidence existing, Mr.S. Sethuratnam, relies upon the following decisions to plead that long cohabitation and recognition given by parties involved and by society treating them as husband and wife, confer upon first plaintiff the status of wife and that plaintiffs 2 to were being treated as legitimate children of Ranganathan.
10.In Badri Prasad v. Dy. Director, Consolidation : 1SCR1 , it is held that there would be a strong presumption arising in favour of wedlock where the partners have lived together for. a long spell as husband and wife, and such a presumption is rebuttable, and heavy burden lies on him who seeks to deprive the relationship of legal origin, because law leans in favour of legitimacy and frowns upon bastardy.
11. Gokal Chand v. Parvin Kumari : 1SCR825 dealing with the scope of Section 114 of the Evidence Act, it is held that continuous cohabitation, of a man and a woman as husband and wife and their treatment as such for a number of years, may raise the presumption, of marriage, but is rebuttable if the cumulative effect of the circumstances existing weaken or destroy such a presumption the Court cannot then ignore those circumstances. In Rajagopal Pillai v. Pakkiam Ammal (1968) M.L.J. 411 a Division Bench of this Court held that every intendment is made in favour of a marriage having taken place with due ceremonies, if a man and a woman had cohabitated together for a long number of years as if they are husband and wife, and this presumption would exist even, if there is no positive evidence of any marriage, having taken place. This presumption is rebuttable, by proving that it was only concubinage.
11-A, In a case wherein evidence in the form' of voter's list, ration card and School Register and treating a woman as wife and children born to them as his sons, living together for a long time, and factum ,of marriage in some form or other, was adduced it was' held by a Division Bench in Bikash Kumar v. Nanda Rani : AIR1979Cal358 that the presumption under Section 114 of the Evidence Act deserves to be drawn.
12. Mr. M.R. Narayanaswami, Learned Counsel for the defendant, submits that it is not an inexorable rule that long cohabitation in the face of such factors existing should only lead to a presumption of conferring status of wife, on a concubine. He would submit that, when the origin is concubinage and on herself accepting such a status and in the will Ranganatha having described her as a concubine, and when her claim of marriage ceremonies having not been proved; they are destructive of presumption being drawn under Section 114 of the Evidence Act. He too relies upon Gokul Chand v. Parvin Kumari 1952 S.C.J. 331 : A.I.R. 1952 S.C. 231 to point out that it was also a case in which the deposition, the statement in the will against the factum of marriage and status, were treated as valuable pieces of evidence, which would rebut such a presumption being drawn.
13. Muthayya v. Kamu alias Kamala Animal (1981) 84 L.W. I 93 takes the view that it is not sufficient to show as to how they had remained together, but how they have I professed and been treated by the Society, and their conduct of living together, will have to be taken into account. He would refer to what was stated by the husband of the mortagee in the affidavit filed in S.C. No. 241 of 1954, District Munsif's Court, Erode, wherein he had described her as concubine. He is a close relative, and therefore, among the relations she was treated as a concubine. His wife in the mortgage suit O.S. No. 32 of 1965, Sub-Court, Erode, also described her in para 4 of the written statement as permanently kept concubine of Ranganatha. Hence, he relies on these to show that, among relations,she was treated only as concubine. By referring to Rajagopal Pillai v. Pakkiam Ammal : (1968)2MLJ411 , he submits that, it was a case in which evidence was available on so many factors, whereas in the present case she had herself admitted while deposing in O.S. No. 279 of 1958 that she was the kept concubine of late Ranganatha Iyer. As for reliance placed on Raghuvir Kumar v. Smt. Shanmugavadivu : (1970)2MLJ193 he points out that oral and documentary evidence in abundance was available for Court to draw the presumption and that the secrecy maintained or certain inept expressions used by the girl, who claimed the status of a second wife did not outweigh the materials placed to show ,that there was long cohabitation and repute leading to conferment of status of a wife on her. Kumar aya Chettiar v. Cheyyalachi (1972) T.L.N.J 464, holds that if from the evidence itself facts emerge not only to weaken but destroy the presumption itself, then there is no scope for the application of the presumption. A Division Bench of this Court in P.Kaliammal v. K. Pillai : AIR1972Mad200 took into account the factor that a woman belongs to a caste which is very low in the social scale, and that a member of a respectable community would not incur the odium of contracting a marriage with such a person, is a circumstance to weaken or destroy the presumption under Section 114. It was held that public opinion might tolerate illicit union with her but. not treat her as wife because of long cohabitation between a man of high status and a woman of low social status. It was a case in which both of them had chosen not to adhere to morals in life.
14. Indi v. Jaimal (1926) 98 I.C 887 : A.I.R. 1927 Lah.48 and Ghanaffar Ali v. Kanie - Fatima (1910) 20 M.L.J. 579 : I.L.R. (1910) A11.345; are relief upon to plead that long cohabitation raises the presumption, but if it is known that the connection started in mere concubinage the presumption cannot arise. Para 28 of the plaint is referred to wherein she states that 'she has been in the exclusive keeping of E.S. Ranganatha Iyer from 1931 throughout upto the date of his death viz., 23.8.1955'. In Exhibit A.33, the will, she is referred to as Hence M.R. Narayanaswami submits that on her own admission and on what Ranganatha had chosen to describe her in a material document, and the origin being conibinage and which had continued to be so throughout, such a cohabitation in the eye of law, would never confer the status of a wife upon first plaintiff.
15. Plethora of documentary materials exist in the form of letters, school records, voters list and money order coupon's to show that first plaintiff, a Naidu woman was led to the belief by Ranganatha, a Brahmin, that she was being treated as a wife. He has fully enjoyed her comforts and made her to bear three children for him. He took advantage of her, when she came to look after his ailing first wife, who was afflicted with T.B. The son born through her was also cared for by her. The three plaintiffs were also led to the belief that they were born to him and he would care for them. Having exploited the situation to his full advantage, when it came to recognise their legal rights in the property, they have been miserably let down by his relations.
16. Mr. M.R. Narayanaswami claims that the presumption under Section 114 of the Evidence Act cannot be drawn because of the following destructive factors existing in evidence:
1. In her deposition in O.S. No.27 9 of 1 958, she states: 'I am the kept concubine of late Ranganatha Iyer'.
2 In his will dated 1.8.1955 (Exhibits A-33) he describers her as
3. As for the origin of relationship as between them, in para 28 of the plaint, it is stated as follows : 'First plaintiff has been in the exclusive keeping of E.S. Ranganatha Iyer from 1931 throughout upto the date of his death viz., 23.8.1955.'
4. Affidavit filed by Krishnaswami, a relation of Ranganatha in S.C. No. 281 of 1954 describes her as concubine and that other plaintiffs were born through concubine.
5. The mortgage in O.S. No. 32 of 1965 had described her only as a permanently kept concubine.
6. In O.S. No. 279 of 1958, plaintiffs never took up the stand that first plaintiff was the wife, but their claim was to rely upon the composition deed so as to claim that the suit property is a separate property, and therefore, under the will wherein she had been described as concubine, her rights could be secured.
17. On behalf of plaintiffs, it is contended that even though at the outset first plaintiff had stated that she was the kept concubine while deposing in O.S. No. 279 of 1958; in. the later part of her evidence she had claimed Ranganatha alone as her husband. Likewise, Ranganatha in several places in the will had also referred to her, as having continued to remain as his faithful wife. About stand taken by relations, it is claimed that they being motivated to get at the property, have taken such a stand in other proceedings, and this cannot deprive her status of a wife, when third parties have recognised such a relationship in unmistakable manner.
18. How far under the facts and circumstances of this case, these are destructive factors, required to be considered, bearing in mind what Mr. M.R. Narayanaswami had earlier, in different context, asked this Court to visualise the conditions of social behavious of yester years. She was a Naidu girl, and in 1930, she had for her livelihood, walked into an orthodox Brahmin family. Ranganatha's relations, who claim a superior status and which was available under ancient Hindu Law, yet had permitted him to develop intimacies with her and she lived in the house along with them. She had to look after Bagirathi, who was 'afflicted with T.B. Ranganatha himself refers to this active role in his will. In those years, no one would go near such persons and it was a dreaded disease. On himself developing intimacies with her, she lived with him and consorted with him. In spite of having lived with him for 24 long years, and treated as his affectionate wife, could there be a valid reason as to why in the opening sentence of her deposition itself in O.S. No. 279 of 1958, she should state that ' I am the fist defendant. I am the kept concubine of late Ranganatha Iyer?'
19. At first sight it would appear as if it is an admission on her part. That is what the defendants are attempting at, but as Mr. Narayanaswami, has pointed out in a different context, a purposeful study has to be made about the surroundings in which she had lived and what sort of indoctrination she should have gone through for her survival during her existence in that household. In those days an impression was injected into the minds of every Hindu and in particular with women and which had its origin in ancient Hindu scriptures that evil would be fall in the hands of God if wrongs are done or spoken about Brahmins. Ranganatha had already married Bagirathi, a Brahmin woman. It was during her lifetime, first plaintiff was taken into the household, and nearly during nine years of her existence, first plaintiff's companionship was taken advantage of by Ranganatha. Ranganatha himself stated in the will that first plaintiff was the devoted wife to him. In describing her, incontra-distinction to Bagirathi. in Exhibit A-36. he had used the expression in the opening part of the will, but in the other portitions of the will, in ever so many places, he had stated categorically and in unmistakable words that first plaintiff was his wife. Hence, when he had used the expression for a very limited purpose; she had not the strength to speak anything different from the manner in which he had stated in the will a particular contest. She must have honestly thought that if she was to claim that she was 'wife' even during Bagirathi's lifetime, evil would be-fall upon her. It was not improbable. Hence in the opening part of her evidence, she repeated what he had said in the will. O.S. No. 27 9 of 1958 was filed, pertaining to the validity of the will. Therefore in the said proceeding, she had faithfully reproduced the same words used by Ranganatha in the will (Exhibit A-33.) and did not want to claim that she was the wife, when Bagirathi was alive. In the later part of her deposition, she had stated that her husband Ranganatha was sick. In cross - examination, in the opening sentence she stated that he had married a wife in his community and she died 18 years ago. Hence, defendants are trying to take undue advantage of her faithful adherence to what her husband had stated in the opening part of the will, and which she had believed was the manner to start her evidence in that suit. This sort of approach made by her would not take away her right to claim wifehood, because after the death of Bagirathi, she had lived as the wife of Ranganatha. To reiterate, in the will, the solitary, expression, had been used only in the opening part of it, whereas in all other later. sentences of the will, unflinchingly he had [ referred to herself living with him as his endearing and devoted wife. Hence, it cannot be an admission on her part of her legal status nor a destructive factor as claimed by defendants.
20. If the expression used by her in, the opening part of her deposition and by him in the opening part of the will i.e. in 2 places alone are to be given a meaning, and not the rest of the expressions and categoric statements made by both of them in the other parts of the depositions, will and other documents it would then be doing injustice to their true intentions and how they lived as husband and wife. This is not a case wherein concubinage referred to by them, is the only expression used from beginning till end, resulting in total admission of the said status. Excepting for these two instances, in no other place at any point of time, they had stated anything, to militate against her wifehood. It is absolutely essential to take the totality of the circumstances into account to give the intended meaning to the expressions used in the other portions of the deposition and the will etc. The expressions used in the will undoubtedly outweighs and brings about the correct status of the first plaintiff. In Exhibit A-33 Ranganatha had used the following expressions;
All these recitals clearly lead to the only conclusion that the solitary expressions in the opening part of the will, was used while tracing the sequence of events, and what she was to him, during the existence of his first wife. Draftsmen in those years used such expressions, particularly when the woman belongs to a caste which was lower than that of the man, and with whom men had chosen to develop intimacies and lead a family life. A careful reading of' the contents of the will, leads to the. irresistible, conclusion that after the death M the first wife, he had treated her as fob devoted wife and conferred upon her the status of wifehood. He had certified about her virtuous way of life with him.
in unmistakable terms show that he conferred upon her and recognised her as his wife after Bagirathi's death, and they cohabitated as such till his death. Hence, the, expression is not destructive, as claimed.
21. On the third aspect, defendant claims that first plaintiff in para 28 of the plaint contradicted what she had stated in para 12. In the suit three alternative reliefs have been sought. In relation to the relief o: maintenance claimed in para 31(3), pare 28 of the plaint having been drafted, the omission of the counsel to incorporate the words 'without prejudice to the stand taker earlier' cannot be taken advantage of be defendants to contend that she had admit he concubinage throughout. If only while drafting the plaint, for each different alternative relief claimed, the details pleaded have been appropriately put forth, this advantage could not have been pleaded by defendants. Having claimed in para 12 that she was married on 1.2.1933. way should continued concubinage be pleaded in para 28. This contradiction is the making of the counsel, who had, for claiming maintenance had evidently done it, as an alternative case. Hence, this is also not distructive, as claimed.
22. The other point taken by defendants is, if the origin was one of concubinage, it continues to be so for ever, and that once a concubinage always a concubinage. It depends upon facts and circumstances 'of each case. During the lifetime of a wife, an irresponsible husband may develop incestuous relationship with another woman, but if he continues the said relationship after the death of his wedded wife, and thereafter lives exclusively with the other woman treating her as his wife and begets children through her; and recognises them as legitimate children; lives. together as a family for ever to the knowledge of the general public and if the documents executed by him confer1 rights upon them in any of his properties with unstinted intention of treating them as wife and children; then, as pointed out in the decisions above referred to, the evidence on record must be taken into account cumulatively to conclude on wifehood. Hence, for the reasons stated above, the first three aspects relied upon as if they are destructive factors, do not in any manner outweigh the other weighty materials on record in favour of first plaintiff, and which have been referred to above.
23. Regarding the contents of affidavit and written statement (i.e. items 4 and 5); being interested in the usufructuary mortgage, and being relations, they would not have tolerated in those years, a Naidu woman claiming status of the wife of a Brahmin. It is not as if that status could be derived, only if relations recognise. Outside world had treated her as wife, as found in notices by Bank (vide Exhibits A-31 and A-32), election records, Ration cards, etc., and in entries found in school records about plaintiffs 2 to 4. When he had himself recognised her as having lived with him as a devoted, sincere, faithful wife, and duration of cohabitation not being disputed; though the origin was in the nature of a concubinage; after the death of Bagirathi Ammal in 1940, for 15 long years Ranganatha had treated her as his wife, lived with her in the same house and three children were born to them and he had intended to confer upon them rights in the property. But unfortunately, as happens when entire legal aspects are not properly understood, the composition deed (Exhibit A-34) haying not brought forth what was aimed at when his brother was in difficulties; plaintiffs could not derive the advantage under Exhibit A-33 will. As held in Muthayya v. Kamu alias Kamala Ammal (1981) 94 L.W.I 93 multitude of materials exist to show that Society had treated her as wife of Ranganatha. The status acquired by long cohabitation cannot also be lost.
24. Yet another plea of defendants is that, marriage ceremony as claimed in para 12 of plaint having not been established, the presumption under Section 114 of the Evidence Act cannot exist. Failure to establish by legal evidence, about. ceremonies was due to the fact that they took place inside the family house and in the presence of selected relatives and well-wishers of Ranganatha. To prevent publicity and with an obvious, aim of preserving prestige, secrecy had been maintained. No invitations were printed. Under such circumstances, her inability to prove the marriage and more so when Ranganath's relations who could alone speak about it are antagonistic and aim at getting at the property; this failure to sustain a form of marriage attempted by her would not act as a bar against her from invoking Section 114 of the Evidence Act. This is neither a conflicting nor an alternative plea put forth, but one mode off proof adduced but not established due to special circumstances obtaining where such acts are committed by men aimed at benefiting themselves. Factum of continued cohabitation as husband and wife to the knowledge of the world thus made out, the failure to prove marriage would not stand in the way of presumption being drawn.
25. It is necessary to state that both plaintiffs and defendants have relied upon expressions used in Exhibit A-33 in support of their contentions, by taking up the stand that, in the earlier proceedings, it was only held to be unenforceable because it dealt with a joint family property. Hence, for the reasons above stated, the presumption under Section 111 of the Evidence Act comes into play and it is held that first plaintiff was the wife and plaintiffs 2 to 4 are the children of Ranganatha Iyer.
26. Plaintiffs contend that under Exhibits A-34, A-64, A-74, A75 and Exhibits B-22 and B-23, Ranganatha having dealt with the suit property as his own property and first defendant having attested Exhibit A-74; they are entitled to the relief of declaration and possession of the suit property, based on Exhibit A-33. Jeganatham v. Kunjithapatham : AIR1972Mad390 is relied upon to show that on 'attestation done by first defendant, he is stopped from disputing about the selfacquired nature of the property. This contention lacks substance, because the earlier decision in O.S. No. 279 of 1958 which culminated in S.A. No. 762 of 1979 would act as res judicata. The composition deed, which was marked as Exhibit B-5 therein and which is Exhibit A-34 herein, had been declared to be invalid and held as inadmissible in evidence, and when the property should be treated as joint family property which Ranganatha could not dispose of by execution of will (Exhibit A-33), plaintiffs are bound by the said decision.
27. The other contention of plaintiffs, is based on adverse possession. But till 1955, Ranganatha was in occupation of the property and thereafter, suits have been filed and in the light of the findings already rendered in the earlier proceedings that the properties are the joint family properties, unless ouster is established as against co-owners, and when defendant's father had already taken possession of the property from the mortgageeon 19.10.1967, by filing this suit in 1970, there is no scope for consideration of this relief as claimed.
28. Now that it is held that plaintiffs 2 to k are the legitimate children of Ranganatha, they are entitled to the relief of partition and separate possession of one half share in the suit property, which is a joint family property, with damages, as claimed. As for the claim of maintenance, Ranganatha died on 23.8.1955, and Hindu Succession Act came into force only on 1.6.1956. The suit property being a joint family property, and herself being a widow of a coparcener, she is entitled to maintenance from the estate of her deceased husband which is in the hands of his surviving coparceners (Page 218 in Hindu Law by Raghavachari) Therefore, on and from 24.12. 1966, till date of suit at Rs. 75 per month and at Rs. 1 00 per month from the date of suit till her death, she is entitled to maintenance. This amount of maintenance is payable to her heirs. Fourth plaintiff was already married and therefore No. relief was granted to her and cannot now be granted. Ranganatha had thought that all his three children would equally derive income from his property and it is to be seen what brothers do to their sister. Avarice and incalcitrant attitude of his kith and kin had deprived first plaintiff of what she would have enjoyed during her lifetime.
29. Hence this appeal is allowed with costs throughout. The memorandum of cross-objections is dismissed with costs. There will be a preliminary decree for partition and separate possession in respect of one half share to be taken equally by plaintiffs 2 and 3 in the suit -property and for accounting from 19.10.1967 till delivery of possession. Improvements, if any, made to be established in final decree proceedings. The court-fees payable in the suit as well as in the appeal are to be paid by defendants, who have driven the plaintiffs to institute proceedings and deprived them of their rights for 15 long years, and particularly because of the deprivation suffered by first plaintiff at their hands.