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M. Muthayya Vs. Kamu Alias Kamala Ammal and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Reported in(1981)1MLJ107
AppellantM. Muthayya
RespondentKamu Alias Kamala Ammal and ors.
Cases ReferredSethurathnam Pillai v. Lucy Raskara
Excerpt:
- - it was also pointed out that the rules were based on justice, equity and good conscience and compelled the court to treat the second appeal then under consideration as one filed far the benefit of all the alienees so that the appeal was considered to be competent and maintainable. there was a subsequent petition for restoration of the suit which failed and the letters patent appeal against the dismissal of restoration petition was also dismissed. it was held that the whole appeal had failed for non-joinder of the minor-respondent who was a necessary party. it was pointed out at page 248 of the reports that if the appellant was then allowed to add the proposed respondent the result would be that the order in the miscellaneous judicial case as well as in the letters patent appeal.....v. sethuraman, j.1. this appeal has been filed by the second defendant in o.s. no. 89 of 1975 in the court of the subordinate judge of. triuchi. there was one t.m. meenakshisundaram, who died on 28th june, 1967 in the government headquarters hospital, coimbatore, when he was working there as a revenue divisional officer in erode. the first plaintiff claimed that she was married to the said meenakshisundaram as the second wife and that her two daughters plaintiffs 2 and 3 are the children born out of the said wedlock. the first defendant is the first wife of the said meenakshisundaram and the second defendant is their son. it may be mentioned here that the second defendant is an advocate by profession practicing in tiruchirapalli.2. the first defendant gave birth to the second defendant in.....
Judgment:

V. Sethuraman, J.

1. This appeal has been filed by the second defendant in O.S. No. 89 of 1975 in the Court of the Subordinate Judge of. Triuchi. There was one T.M. Meenakshisundaram, who died on 28th June, 1967 in the Government Headquarters Hospital, Coimbatore, when he was working there as a Revenue Divisional Officer in Erode. The first plaintiff claimed that she was married to the said Meenakshisundaram as the second wife and that her two daughters plaintiffs 2 and 3 are the children born out of the said wedlock. The first defendant is the first wife of the said Meenakshisundaram and the second defendant is their son. It may be mentioned here that the second defendant is an advocate by profession practicing in Tiruchirapalli.

2. The first defendant gave birth to the second defendant in or about 1941, and by about 1943, she became mentally and physically afflicted with the result that there could be no conjugal life between Meenakshisundaram and the first defendant. She went over to her parent's place in Dindigul thereafter .

3. Meenakshisundaram was serving as a Government employee in the Revenue Department in several places. According to the first plaintiff her marriage with Meenakshisundaram took place at Srirangam in accordance with Hindu rites and custom of the community on 30th May, 1948. There was said to have been a Parisam preceding this marriage on 27th May at Periakulam. The second plaintiff was born on 30th January, 1957 and the third plaintiff on 24th May, 1963 at Periakulam and Karaikkal respectively. When the third plaintiff was born, Meenakshisundaram was posted as the Administrator of Karaikkal and was functioning there.

4. On 24th September, 1956, Meenakshisundaram executed a registered maintenance deed in favour of the first defendant and in that document, it is stated that the marriage between the first plaintiff and him took place on 30th May, 1948. He got certain properties under the will of one Thayyammal. The plaint A Schedule properties were said to have been acquired by Meenakshisundaram out of his earnings and in item 5 of the A Schedule a house was built with his earnings. The B Schedule contains Bank deposits and National Saving Certificates, which are described as the exclusive assets of Meenakshisundaram. The C Schedule contains certain moveable items in which also the plaintiffs claim a share. According to the plaintiffs, they are entitled to 5/8th share in the properties described in the Schedules A to C.

5. They issued a notice prior to the filing of the suit on 11th July, 1970, demanding partition and rendition of accounts from the second defendant, who was in charge of the properties. The second defendant issued a reply on 15th July, 1970 denying the allegations about the marriage as false. The plaintiffs therefore, came forward with the suit for partition and allotment of 5/8th share in the plaint A to C Schedule properties and for accounting by the second defendant from 28th June, .1967 when Meenakshisundaram died.

6. The first defendant remained ex parte. Among defendants 3 to 23, only defendant 20 filed a written statement stating that he was a tenant in one of the suit properties and that he was willing to pay the rent to whomsoever the Court directed. According to him he was; an unnecessary party to the suit and he was not liable for costs.

7. In the written statement filed by the second defendant, who is the main contestant of the suit, he denied that there was any marriage between the first defendant and Meenakshisundaram in 1948. He denied also the allegations that plaintiffs 2 and 3 were born on the dates mentioned in the plaint out of such lawful wedlock. He disclaimed any knowledge of the maintenance deed said to have been executed on 24th September, 1956 by Meenakshisundaram and even if there was a recital in the said deed to the effect that there was a marriage in 1948 with the first plaintiff, it was, in his submission, a false one. It was also stated that even assuming that there was a marriage, it could only have been in the year 1953 and that such a marriage would be a void one in view of the State enactment prohibiting bigamy among Hindus. According to him, he and his mother, the first defendant, were the only heirs and there was no question of any accounting in favour of the plaintiffs. He denied also that the B Schedule properties were with him or that the C Schedule properties belonged to Meenakshisundaram.

8. The learned Subordinate Judge framed the issues that arose out of the pleadings, and the main issue was whether the first plaintiff was a legally wedded wife of Meenakshisundaram .

9. After referring to the oral and documentary evidence, the learned trial Judge held that the first plaintiff was a legally wedded second wife of the deceased Meenakshisundaram and that the plaintiffs were entitled to 5/8th share in the properties left by Meenakshisundaram and described in Schedules A and B. He rejected the claims of the plaintiffs in relation the C Schedule properties, as it had not been made out that the said properties belonged to Meenakshisundaram. A preliminary decree was accordingly passed and the second defendant has filed the present appeal contesting the passing of the preliminary decree in favour of the plaintiff.

10. As soon as the appeal was opened, the-learned Counsel for the respondents submitted that the first defendant had not been impleaded as a party in the appeal and that the non impleading of the first defendant was fatal to the maintainability of the appeal. In the light of this preliminary objection, the appellant filed C.M.P. No. 2758 of 1980 for impleading the first defendant as the fourth respondent in the appeal. It was stated therein that the parties constituted a joint family, that the appeal was filed by the second defendant as the manager of the joint family, that the first defendant was ex parte in the lower Court and that as the appeal has been filed against the entire decree, it was considered unnecessary to implead the first defendant as a party. In order to avoid further litigation and in the interests of justice, it was stated that it was necessary to impleads her as the fourth respondent in the appeal and that the delay in doing so may be condoned. For the respondent, a counter-affidavit has been filed and it was stated that from the mere fact that the appeal had been filed against the entire decree, it did not follow that there was sufficient and satisfactory explanation for not impleading the first defendant as a party and that the appeal without impleading her is incompetent for non-joinder of necessary parties. The delay in filing this application was also adverted to and it was stated that every sharer in a partition suit should be impleaded and that the non-joinder of a necessary party to a proceeding was fatal to its maintainability and competency. Both sides referred us to certain authorities.

11. Order 41, Rule 4, Civil Procedure Code, is the relevant provision, and it was relied on by Mr. Kesava Iyengar in support of his application. It states:

Where there are more plaintiffs or more defendants, than one in a suit, and the decree appealed from proceeds on any ground common to all, the plaintiffs or to all the defendants, any one of the plaintiffs or of the defendants may appeal from the whole decree, and thereupon the Appellate Court may reverse or vary the decree in favour of all the plaintiffs or defendants. as the case may be.

In this case, the first and the second defendants had a common defence, and, therefore. the provisions of Order 41, Rule 4 would prima facie apply in support of the maintainability of the appeal. A similar question came up for consideration before a Bench of this Court in Kumaraswamy Gounder and Ors. v. D.R. Naniappa Gounder and Ors. (1977) TLNJ 487. In that case the common ground which was agitated before the trial Court and the first appellate Court was whether certain alienations made by defendants 2 and 3 of some of the suit properties were sustainable at all. Some of the alienees, who were dissatisfied with the ultimate decision, came up in appeal raising the question whether the alienations were sustainable or not. This ground was common to all the defendants, and it was held that the fact that some of the defendants had appealed against the whole decree entitled the appellate Court to pass such judgment as the circumstances of the case would require in order to render justice to the party. It was also pointed out that the rules were based on justice, equity and good conscience and compelled the Court to treat the second appeal then under consideration as one filed far the benefit of all the alienees so that the appeal was considered to be competent and maintainable.

12. Mr. K. Sarvabhauman, learned Counsel for the respondents relied on a decision of a single Judge of the Patna High Court in Kamla Devi v. Sheo Prasad : AIR1966Pat247 . Though when there is the Bench decision of this Court, which has dealt with an analogous situation, it would be unnecessary to consider this decision of a learned single Judge of a different High Court, still we may briefly consider it. In that case also the appeal was in a partition suit. The appeal had been dismissed as against the minor respondent on account of non-compliance with the peremptory order directing the appellant to serve notice of appeal on the minor-respondent within a week. There was a subsequent petition for restoration of the suit which failed and the Letters Patent Appeal against the dismissal of restoration petition was also dismissed. It was held that the whole appeal had failed for non-joinder of the minor-respondent who was a necessary party. It may be seen from the narration of the facts that there was an earlier order which had dismissed the appeal. It was pointed out at page 248 of the reports that if the appellant was then allowed to add the proposed respondent the result would be that the order in the miscellaneous judicial case as well as in the Letters Patent appeal would become nugatory and the entire proceedings would constitute mere waste of time, and that valuable rights had been acquired by the respondents and that they could not be divested of those rights by the plaintiff-appellant being allowed now to add the respondent at that stage. The position is not analogous to the situation here. No right has been acquired here by any one, by reason of the non-impleading of the first defendant as a party. Therefore, this decision can have no scope for application.

13. The principle applicable to such situations has been considered in a decision of this Court in Rahima Bivi v. Sirajunnissa Bi (1971) 2 M.L.J. 243. : : (1971)2MLJ243 In that case the plaintiff sold a property to the first defendant who in turn sold it to another and ultimately the sixth defendant became a vendee of the property. The plaintiffs sued for possession of the property and obtained a decree. But the appeal filed by the sixth defendant without impleading the first defendant was allowed and the suit was dismissed. In the second appeal, on the question whether the sixth defendant could get any relief, since she had not impleaded the first defendant in the first appeal, it was held that the first defendant had no interest in the property and that he got no relief by the decree in the trial Court and that, the only person interested was the sixth defendant. Therefore, by the first defendant not being impleaded as a party, no interest of any person was affected and the failure to implead him did not bar the sixth defendant. The principle was stated to be that in cases where the party who had not been impleaded in the appeal had a substantial interest in a portion of the properties concerned in the suit, there could not be two contradictory decrees, one upholding the validity of the transfer in favour of the original transferee and another setting it aside. In such a case, it was held that a, party who had succeeded in the trial Court but who had not been impleaded in the lower appellate Court could not be adversely affected by a decision against his interest in the appellate Court. It would be seen from this decision that if there are separate causes of action against different defendants or if the defences did not embrace the whole of the claim, the non-impleading of a necessary party would have some serious consequence in the maintainability of the appeal. Two conflicting decrees cannot hold the field. But in cases, where the defence is common, the non-impleading cannot have the same result, as there is no possibility of any conflicting decree being left in the field. If the second defendant succeeded the whole suit for partition would fail, and if he failed the plaintiffs were bound to succeed. There would thus. be only one decree.

14. Reference was also made by the respondent to a decision of the Supreme Court in Surat Singh v. Manohar Lal : AIR1971SC240 . In that case the son of the plaintiff with other persons was brought on record on the death of the plaintiff during the pendency of appeal before the High Court. The son was represented by a counsel and the fact of his being impleaded was also within the knowledge of the other party. However when the other party filed the appeal before the Supreme Court, the son, who had been impleaded, was not a party to the appeal. It was held on these facts that the appeal was liable to be dismissed for want of necessary party. In that case also, an application was filed on the date of the decision to implead him as a party. But it was held that it was highly belated and could not be entertained. The said, decision has absolutely no scope for application here, because this is a case where an appeal against the entire decree has been filed, and the. non-impleading was due to the fact that the first defendant had remained ex parte in the Court below. As soon as it was pointed out or realised that she should also be made a party, steps were taken and, therefore, this is a case where it is possible to condone the delay also.

15. One other aspect that has to be remembered with reference to, the above decisions is that these decisions were rendered at a time when the amended provisions of Order 41, Rule 20, Civil Procedure Code, were not there. Under these provisions where it appeared to the Court at the hearing that any person who was a party to the suit in the Court from whose decree the appeal was preferred but who had not been made a party to the appeal was interested in the result of the appeal, the Court may adjourn the hearing to a future date to be fixed by the Court and direct that such person be made a respondent. Clause (2) of Rule 20 of Order 41, Civil Procedure. Code, provides that no respondent shall be added under this rule after the expiry of the period of limitation for appeal, unless the Court, for reasons to be recorded, allows that to be done, on such terms as it thinks fit. Clause (2) would apply only to a case where the party, who is not impleaded, had acquired certain valuable rights by reason of the appeal as against him or her not having been filed. It is only in such cases Clause (2) of Rule 20 would have scope for application. But as far as Clause (1) is concerned the Court may at any stage direct the respondent being impleaded. In this case, it is possible to exercise the discretionary power vested under Order 41, Rule 20(1), Civil Procedure Code, so as to implead the first. defendant also as a party respondent in the interests of justice. Having considered all the objections, we are satisfied that it is necessary to have the first defendant impleaded as the fourth respondent and C.M.P. No. 2758 of 1980 is ordered accordingly. The first defendant is represented before us by counsel, and she sails with the appellant.

16. The only substantial question that arises in this appeal is, whether there was a marriage between the first plaintiff and Meenakshisundaram at any time.

17. Exhibit A-16 is, as already stated, a maintenance deed. This document came into existence on 24th September, 1956, when Meenakshisundaram was the Tahsildar of Karur Taluk. It is stated therein that the first defendant's physical and mental capacity was not proper since 1943 and that he had contracted a second marriage with the first plaintiff in the year 1948. It is further stated therein that with a view to make provision for the maintenance of the first defendant, he provided that a sum of Rs. 25 P.M. should be paid to her as maintenance for the rest of her life time. This document has been attested by the mother of the first defendant. The Court below has proceeded as if the first defendant herself had attested this document. This impression is erroneous. It is significant to note that in Exhibit A-16, the date of the second marriage is not mentioned. As the earliest document coming into existence after the alleged second marriage, one would have expected Meenakshisundaram to have remembered the date of the marriage and to have mentioned it, as it is not far removed from 1948 when the said marriage is said to have taken place. The vague reference to the year 1948 is significant, because in Madras a statute was passed as the Madras Hindu (Bigamy Prevention and Divorce) Act (VI of 1949). As the title itself shows, this Act prevented a second marriage between Hindus, perhaps, it was, considered necessary to select a date anterior to the coming into force of this Act, so that the validity of the second marriage would not be affected by it. The vague reference in Exhibit A-16 to the marriage between the first plaintiff and Meenakshisundaram in 1948 cannot, in these circumstances, be taken to establish as a fact the marriage in 1948. It does not even refer to the place where the second marriage is alleged to have place. Exhibit A-16 is thus of no avail to prove the second marriage.

18. In Exhibit A-8 which is a family pension nomination form and which is dated 19th March, 1965, Meenakshisundaram had described the first plaintiff as his wife and plaintiffs 2 and 3 as his daughters for purposes of nomination for family pension. Even in this form, there is absolutely no reference to the actual date on which such marriage took place. Exhibit A-8 does not establish the marriage with the plaintiff. Therefore, it is not possible to infer the factum of the second marriage, in any event, prior to the Madras Act (VI of 1949) from Exhibit A-8 either.

19. P.W. 2 is the first plaintiff's maternal uncle and P.W. 3 is her mother's sister. P.W. 2 merely states that the marriage took place in the month of May, 1948 on. a Sunday. He does not give any exact date, as the marriage date. The marriage is said to have taken place between 5 A.M. and 6 A.M. on the said date and that an Iyengar officiated as the priest. There is also some description of the ceremony that was gone through. The place of marriage is referred to as Srirangam. if a marriage had taken place, it is too much to believe that the witness, such, a close relation, did not remember it. He is also interested in the first plaintiff. P.W. 3 also does not give any exact date of the marriage though she also refers to the marriage having taken place in the early hours of a particular day. As seen earlier, she is also interested in the first plaintiff and therefore, her testimony cannot be taken as disinterested. Thus the oral evidence also is not helpful to the plaintiffs.

20. There are improbabilities about the marriage having been gone through in the year 1948. It is common that in that year the first plaintiff was employed as a teacher in Periakulam. Her father was working there. The first plaintiff did not inform about the marriage to the school authorities. This explains the reason why the plaintiff was driven to choose a Sunday. As P.W. 4 she stated that she did not even inform her colleagues about the marriage having taken place in that year and about the marital status. This is indeed surprising because there is no reason why this marriage should have been kept such a well-guarded secret. She did not join Meenakshisundaram till about September, 1953. Her explanation for continuing in the school between 1948 and 1953 is somewhat curious. During the training period she claims to have obtained a stipend of Rs. 200 and it was; according to her, not possible to repay that stipend out of the salary of Rs. 40 per month that she was getting from the school. Her father also with his salary could not repay Rs. 200. Apparently her case is that she continued to work in the school in order to see that if she worked for the required term, there was no need for the return of the stipend.

21. Exhibit B-1 dated 22nd June, 1947 is the application made to the school for appointment as teacher by the first plaintiff. In that application she stated that she was undergoing the emergency course in secondary grade training in Madurai and that she would appear for the training school leaving certificate examination in June, 1947. She hoped to come out successful. It is on that basis that she wanted to join the Edward Memorial Higher Elementary School, Periakulam, where she functioned between 1947 to 1953. It is clear from Exhibit B-1 that the school had nothing to do with her training and could not have insisted on her continuing in it for any length of time. If she had already undergone the training as is clear from Exhibit B-1, then there is no reason why the school could not relieve her on her marriage. There is absolutely no evidence to show that there was any obligation to return this stipend of Rs. 200 said to have been received by her. Further, her husband at the relevant time was well-placed in the revenue department in the District of Tiruchi. He must have been earning sufficiently so as to pay the stipend of Rs. 200, at least in adequate instalments, if it was indeed necessary to do so and get her out of the school. It is not suggested that he could not afford Rs. 200.

22. The case of the first plaintiff is that the second marriage became necessary because the first defendant was not in a position to give Meenakshisundaram the marital company. It was obviously considered necessary to go urgently through the form of marriage on 30th May, 1948 which happens to be a Kari Nal, an inauspicious day. If even on such an inauspicious day the marriage had to be performed because of the urgent need of Meenakshisundaram for a female companion, then one would have expected the first plaintiff to have joined him immediately thereafter. The fact that she did not join him for five long years is itself a piece of circumstantial evidence to show that the marriage could not have taken place in the year 1948. Her 'seemantham' was in 1956, and the first child is born in 1957. These events are consistent with the marriage not having taken place in 1948. In the school records it is seen that she has described herself as 'Miss' showing that she was an unmarried woman. No one who was married ,world ordinarily have done so, and there was also no need to do so. It is true that certain other persons are also referred to as not having communicated their marital status to the school. But those persons have not been examined so as to find out the circumstances under which they considered it necessary to keep their marriage a secret from the school which was their employer. Therefore, it is not possible to draw any inference in favour of the plaintiff, from the circumstances which remain unexplained, that some other persons had not also intimated the school authority about the marriage. It is also to be remembered that there is one Mrs. Arumugam who was a teacher working with the first plaintiff in the same school. Mrs. Arumugam is no other than the uncle's wife of Meenakshisundaram. If really a marriage had taken place in the year 1948, she was the best person who would have known about the marriage and could have spoken about it. The learned Subordinate Judge has proceeded as if the non-examination of this lady is of no consequence, as according to him there was criticism on the part of the defendants against the evidence of P.Ws. 3 and 4, who were also similarly related to first plaintiff. There would have been nothing standing in the way of the Court accepting the evidence of the said Mrs. Arumugam, if she was examined and found to be reliable. Even then, the Court may or may not accept the testimony of P.Ws. 3 and 4. The question of believing or disbelieving a witness would arise only after examination and a party cannot decline to produce a witness merely on the presumption that the witness, if produced, could be treated as interested.

23. It is also to be remembered that Meenakshisundaram had worked in several places like Musiri, Perambalur, Karur, Tiruchi etc., P.W. 4 herself admits that in 1951 Meenakshisundaram worked as Deputy Tahsildar, in Lalgudi, and as Taluk Supply Officer, in Thuraiyur; and in 1952 he was the Sub-Magistrate in Perambalur, and in 1953 he came to the Collectorate as Huzur Head Clerk, Tiruchi and also as the Election Deputy Tahsildar. She had not visited any of these places. It is indeed surprising that even during the vacation of the school, she had not visited Meenakshisundaram in any of these places. Thus, having regard to the above features, it is not possible to accept the claim of the first plaintiff that she married Meenakshisundaram in the year 1948.

24. The learned Counsel for the appellant submitted by referring to two decisions that there could be no presumption as regards her marriage. In S.A. No. 592 of 1921 dated 18th January, 1924, the case being reported in short-notes at page 8 of 46, M. L. J; Odgers, J., held that under Section 112 of the Evidence Act the presumption of legitimacy arises only on proof of a marriage, and that if a marriage in fact is proved, then it might be presumed to be valid. He further held that where a man had already married a woman and had children by her, there was no presumption that another lady with whom he was said to have lived was his wife or his children by her were legitimate. There can thus be no presumption in a case like this.

25. In Bhaurao Shankar Lokhaande and Anr. v. The State of Maharashtra and Anr. : 1965CriLJ544 . there is a decision of the Supreme Court in which it is pointed out that the bare fact of a man and a woman living as husband and wife does not at any rate normally give them the status of husband and wife. This observation came to be made in a case involving the consideration of the question whether there was a valid second marriage which would be an offence under Section 17 of the Hindu Marriage Act and Section 484 of the Indian Penal Code. Their Lordships held that if there was not a valid marriage, then it would not be a marriage in the eye of law and therefore, there could be no offence. This decision is not really of any assistance to decide the point at issue. The question as to whether the persons living as husband and wife could be taken to have contracted a valid marriage has been considered by two decisions of this Court, one in Raghvir Kumar v. Shanmughavadivu : AIR1971Mad330 . and the other in Sethurathnam Pillai v. Lucy Raskara (1977) 2 M.L.J. 141 : : (1977)2MLJ141 Josephine. In the first of these decisions, there was some evidence to show that some form of marriage had been gone through, and there was also long cohabitation. It was held that in such a case the presumption of a valid marriage could be drawn. In the other decision it was pointed out that the presumption of marriage taking into account the long cohabitation was a rebuttable one and that it was necessary to show that the man and woman not merely were living together, but professed themselves to be husband and wife and were treated as such by relations and friends, and that such conduct and recognition must extend over a long period of time and if there were circumstances, which weakened or destroyed that presumption, the Court could not ignore them. In the present case we have already adverted to the circumstances militating against the possibility of marriage in 1948. There is no proper proof of any marriage having been solemnised in 1948.

26. The question now arises whether there was a valid marriage at any time subsequently. There is no evidence to show that there was any form of marriage gone through at any time subsequently so that one can draw the inference that there was a marriage on any later date even though the marriage may or may not be valid.

27. The validity of the second marriage would be hit by Madras Act (VI of 1949) if the marriage took place subsequent to 1949 Madras Act (VI of 1949) received the assent the Governor-General on 23rd March, 1949 and was published in the Fort St. George Gazette on 29th March, 1949, and became law immediately thereafter. If the marriage had taken place at any time subsequently then the marriage would not be a valid one as far this State is concerned. In the present case, we have seen that there was no marriage earlier than this Act and we have also to come to the conclusion that there was no marriage at any time subsequently, as there is no evidence to support it.

28. The learned Counsel for the respondent relied on Section 16 of the Hindu Marriage Act, 1955, as amended by Act (LXVIII of 1976). That section provides:

Notwithstanding that a marriage is null and void under Section 11 any child of such marriage who would have been legitimate if the marriage had been valid, shall be legitimate, whether such child is born before or after the commencement of the Marriage Laws Amendment Act, 1976, and whether or not a decree of nullity is granted in respect of that marriage under this Act and whether or not the marriage is held to be void otherwise than on a petition under this Act.

This section would have scope for application only if there was solemnization of marriage at any time. In the present case, we have held that there is no proof of solemnization of marriage so that there is absolutely no scope for invoking Section 16 of the Act to the facts here.

29. The result is there is no proof of any marriage between the first plaintiff and Meenakshisundaram and that the children born cannot also be treated as legitimate children.

30. Mr. Kesava Iyengar, learned Counsel for the appellant during the hearing stated that the second defendant had agreed to make some arrangement for the maintenance of the plaintiffs and for the marriage of the second plaintiff and the third plaintiff either by making a periodical payment or making a lump sum provision. This offer was referred to in paragraph 21 of the judgment of the Court below. The learned Counsel stated quite fairly that he stood by this offer even now. We called upon the appellant to file an affidavit to evidence his sticking to his old proposal undertaking to pay a sum of Rs. 50,000. He had undertaken to do so today itself. He has done so. The only development that requires to be noticed at this stage is that a sum of Rs. 16,000 had been paid during the pendency of the appeal and it was stated for the appellant that he would pay the balance of Rs. 34,000 after giving credit to the sum of Rs. 16,000. Mr. Sarvabhauman learned Counsel for the respondent does not dispute the factum of such payment of Rs. 16,000 pending appeal. This sum would have to be given credit. Out of the sum of Rs. 34,000 agreed to by the second defendant, he will deposit in the lower Court a sum of Rs. 14,000 on or before 30th June, 1980, and the balance on or before 30th September, 1980. Once the second instalment of Rs. 20,000, is deposited, Rs. 10,000 will be paid to the second plaintiff and for the balance the lower Court may after giving notice to the parties pass appropriate orders as to the investment of the amount towards the share of the minor third plaintiff till she attains majority. Accordingly, the affidavit filed undertaking to pay as above to the second and third plaintiffs is recorded and there will be a decree in the above terms.

31. Subject to the above, the appeal is allowed, but in the circumstances, there will be no order as to costs.

32. In view of the appeal being allowed it is unnecessary to go into the ownership of the C Schedule properties. The same reason would hold good with reference to the costs also raised in the memorandum of cross-objections. The result is the memorandum of cross-objections is dismissed. There will be no order as to costs in it either.

33. The learned Counsel for the respondent sought leave of the Court for filing an appeal to the Supreme Court. The discussion above would go to show that we were concerned mainly with the question whether there was in fact a marriage at all between the first plaintiff and Meenakshisundaram. The finding on this question is entirely based on the evidence and therefore, we do not consider that there is any substantial question of law of general importance which would justify our granting leave. The prayer for leave is, therefore, rejected.


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