P.R. Shivakumar, J.@mdashVinayakamurthi, the 9th defendant in the Original Suit No. 347 of 2004 on the file of the III Additional Subordinate
Judge at Coimbatore is the appellant in S.A. Nos. 1080 and 1081 of 2009. Jeeva, K.T. Sri. Manickam and K.T. Gayathri, the defendants 4 to 6
in the above said original suit, are the appellants in S.A. No. 435 of 2010. Jeeva, the fourth defendant in the original suit is the sole appellant in
S.A. No. 436 of 2010. A. Srinivasan and A. Thiagarajan, defendants 7 and 8 in the original suit, are the appellants in S.A. No. 755 of 2009. T.
Mahendran, the plaintiff in the Original Suit is the Cross-Appellant in the Cross Objection No. 45 of 2011 in S.A. No. 755 of 2009. T.
Mahendran, who figures as the first respondent in all the second appeals, namely S.A. Nos. 1080, 1081/2009, 435, 436/2010 and 755/2009,
who is also the Cross-Appellant in Cross Objection No. 45/2011 in S.A. No. 755/2009, as the sole plaintiff, filed O.S. No. 347/2004 on the file
of the trial court, namely the court of the III Additional Subordinate Judge, Coimbatore: 1) for partition and separate possession claiming 1/4th
share in the suit properties; 2) for a permanent injunction restraining the defendants therein from interfering with his possession of the suit
properties; 3) for a declaration that he and the defendant 1 to 3 in the said suit are the legal heirs of deceased Thangavel and 4) for costs of the
suit. The learned trial judge, after trial, dismissed the suit in its entirety with cost by his judgment and decree dated 14.11.2006.
2. As against the decree of the trial court dated 14.11.2006 dismissing the suit, the plaintiff Mahendran filed A.S. No. 18 of 2008. T. Suseela,
Tmt. Chitra Latha and Tmt. Shanmugavalli (defendants 1 to 3 in the original suit) filed a cross-objection supporting the case of the plaintiff and
claiming 1/4th share to each one of them in the suit properties. Similarly, Jeeva (the 4th defendant) filed a cross-objection challenging the finding of
the trial court that the first defendant Suseela alone was the legally wedded wife of deceased Thangavel. The appeal filed by the plaintiff as A.S.
No. 18/2008 and the two cross-objections filed by defendants 1 to 3 and by the 4th defendant respectively, were heard jointly and disposed of by
a common judgment and decree of the lower appellate court dated 04.02.2009, wherein A.S. No. 18/2008 and the cross-objection filed therein
by the defendants 1 to 3 were allowed in part and the cross objection filed by the 4th defendant Jeeva was dismissed and the suit was decreed in
part granting the relief of declaration declaring the plaintiff and the defendants 1 to 3 and the defendants 5 and 6 were the legal heirs of Thangavel
entitled to equal shares in his properties and directing division of the suit properties into six equal shares and allotment of one such share to the
plaintiff and each one of the defendants 1 to 3 and defendants 5 and 6 and dismissing the cross-objection filed by the 4th defendant Jeeva.
3. As against the said decree in so far as the grant of relief of declaration and partition, the 9th defendant, namely Vinayakamurthy has filed S.A.
Nos. 1080 and 1081 of 2009. The defendants 4 to 6 in the original suit have filed S.A. No. 435/2006 as against the reversal of the judgment and
decree of the trial court in part. The 4th defendant Jeeva separately filed another second appeal in S.A. No. 436/2010 for partly reversing the
judgment and decree of the trial court. The defendants 7 and 8 have filed a separate second appeal in S.A. No. 755 of 2009 as against the
reversal the judgment and decree of the trial court dismissing the suit. In the said second appeal, the plaintiff has filed a cross-objection challenging
the finding of the lower appellate court holding that the defendants 5 and 6 were the illegitimate children of deceased Thangavel born out of a void
marriage between the deceased Thangavel and the 4th defendant Jeeva.
4. Since all the appeals and cross objection have been filed against the common judgment and decree passed in the appeals and cross objections
filed before the lower appellate court arising out of one and the same suit, all the second appeals and cross objection are jointly heard and are
being disposed of by a common judgment. In order to avoid confusion and for the sake of convenience, the parties are referred to in accordance
with their rankings in the original suit.
5. The first defendant Suseela is the wife of late Thangavel. T. Mahenderan (plaintiff), Tmt. Chitra Latha (2nd defendant) and Tmt. Shanmugavalli
(3rd defendant) are respectively the son and daughters of Thangavel born through the first defendant Suseela. Admittedly, the deceased Thangavel
was the absolute owner of the suit schedule property of an extent of 5.84 acres comprised in Survey No. 542/3 of Alanthurai village, having
purchased the same from his vendors V. Chandramohan and others under a sale deed dated 02.04.2002 registered as document No. 906/2002 in
the office of Sub Registrar, Thondamuthur. The said Thangavel died on 10.04.2004. The fourth defendant Jeeva claims to be the junior wife of
deceased Thangavel and the defendants 5 and 6, namely K.T. Sree Manickam and K.T. Gayathri are said to be the children of Thangavel born
through the 4th defendant.
6. Claiming that the plaintiff and the defendants 1 to 3 alone are the legal heirs of Thangavel and that the plaintiff and each one of the defendants 1
to 3 became entitled to equal share (1/4th share) in the properties left by late Thangavel and contending that Thangavel died intestate, the plaintiff
filed the Original Suit O.S. No. 347/2004 on the file of III Additional Subordinate Judge at Coimbatore for: 1) the relief of partition directing
division of suit properties into four equal shares and allotment of one such share to the plaintiff; 2) to restrain the defendants from interfering with his
peaceful possession and enjoyment of the suit property and 3) for a declaration declaring that the defendants 1 to 3 and the plaintiff are legal heirs
of deceased Thangavel. The last prayer, though not happily worded is aimed at getting a declaration that they alone are the legal heirs of deceased
Thangavel.
7. The defendants 7 and 8 have claimed that they have purchased portions of the land extending 1.00 acre and 84 cents respectively, from the
Power of Attorney holder of deceased Thangavel. The remaining extent was purchased by the 9th defendant Vinayakamurthy from the 4th
defendant Jeeva and her sisters during the pendency of the suit. The 4th defendant Jeeva claims to have got the said property by virtue of a
registered Will dated 07.04.2004 made by deceased Thangavel, as his last will and testament bequeathing the same to her.
8. It is the contention of the plaintiff, which is also supported by the defendants 1 to 3, that the first defendant Suseela alone was the legally
wedded wife of late Thangavel and he died intestate on 10.04.2004 leaving behind the plaintiff and the defendants 1 to 3 alone as his legal heirs
entitled to succeed to his property. It is their further contention that though the 4th defendant Jeeva would claim to be the junior wife of late
Thangavel, there was no marriage between them and hence the defendants 5 and 6 could not be considered as the legitimate children of late
Thangavel by virtue of section 16 of the Hindu Marriage Act. In an attempt to make the said contention true, the plaintiff had furnished the name of
the husband of the 4th defendant Jeeva and the name of the father of the defendants 5 and 6 as Ponnusamy.
9. The defendants 4 to 6, who filed separate written statements, contended that the plaintiff had wrongly furnished the name of the husband of the
4th defendant and the father of the defendants 5 and 6 as ""Ponnusamy"" with ulterior motive knowing well that Thangavel was the husband of the
4th defendant Jeeva and father of the defendants 5 and 6. According to them, G. Thangavel did not die intestate and on the other hand, while he
was in sound disposing state of mind, executed a registered Will dated 07.04.2004 bequeathing a portion of the suit property, namely 4.00 acres,
in favour of the 4th defendant Jeeva and Jeeva became entitled to the property bequeathed to her and the Will came into effect on the death of
Thangavel. The defendants 4 to 6 also contended that the defendants 4 to 6 alone were entitled to the properties of Thangavel, whereas the
plaintiff and the defendants 1 to 3 did not have any right to claim a share in it. Defendants 7 and 8 claimed to have purchased 1.00 acre and 84
cents of land respectively out of the total extent of 5.84 acres of the suit property by virtue of two sale deeds dated 08.04.2004. Thus defendants
4 to 6 claim that 4.00 acres out of 5.84 acres came to Jeeva (the 4th defendant) and the remaining 1.84 acres became the property of defendants
7 and 8 by virtue of the sale deeds dated 08.04.2004 and that hence neither the plaintiff nor the defendants 1 to 3 did have any right or title in
respect of the suit property. During the pendency of the suit, the 4th defendant along with her sisters sold the 4.00 acres of land, allegedly
bequeathed on her by Thangavel under his Will dated 07.04.2004, to the 9th defendant and hence the 9th defendant was impleaded subsequently.
The 9th defendant also supported the case of the defendants 4 to 8. As the contesting defendants 4 to 9 relied on the registered Will dated
07.04.2004 allegedly executed by Thangavel, the plaintiff filed a reply statement denying the genuineness of the Will and also contending that even
if the Will could be genuine, the same could not have been executed by Thangavel while he was in sound disposing state of mind, since according
to him, Thangavel was suffering from chronic renal failure and also diabetics mellitus, heart ailment and blood pressure and he was unconscious for
10 to 15 days prior to his death. The said averments were also made in the reply statement in order to attack the sale deeds relied on by the
defendants 7 and 8. Based on the above said pleadings, the following issues and additional issues were framed in the trial court.
Issues:
1. Whether the plaintiff is entitled to the relief of partition as claimed in the suit?
2. Whether the plaintiff is entitled to the relief of permanent injunction against the defendants?
3. Whether the plaintiff is entitled to the relief of declaration?
4. To what relief?
Additional Issues:
1. Is it true that the 4th defendant is the legal heir of deceased Thangavel?
2. Whether the Will dated 07.04.2004 is true?
10. Based on the above said issues and additional issues, the parties went for trial and in the trial, as many as four witnesses were examined as
PWs. 1 to 4 and 23 documents were marked as Exs. A1 to A23 on the side of the plaintiff, whereas eight witnesses were examined as DWs. 1 to
8 and 42 documents were marked as Exs. B1 to B42 on the side of the defendants.
11. The learned trial judge, at the conclusion of trial, answered all the issues against the plaintiff and in favour of the contesting defendants leading
to the dismissal of the suit with cost. The said judgment and decree of the trial court dated 14.11.2005 made in O.S. No. 347 of 2004 dismissing
the said suit with cost, was challenged by various parties regarding various parts of the decree in A.S. No. 18 of 2008 and Cross Objection in
A.S. No. 18 of 2008 before the lower appellate court. The particulars are as follows:
i) The plaintiff in O.S. No. 347/2004, namely Mahendran, filed A.S. No. 18 of 2008 challenging the judgment and decree of the trial court.
ii) T. Suseela, Tmt. Chitra Latha and Tmt. Shanmugavalli, the defendants 1 to 3 in the original suit, filed a Cross-Objection in A.S. No. 18/2008
supporting the case of the plaintiff and claiming 1/4th share to each one of them in the suit properties.
iii) Similarly, Jeeva, the 4th defendant filed a Cross-Objection in A.S. No. 18/2008 challenging the finding of the trial court that the first defendant
Suseela alone was the legally wedded wife of deceased Thangavel.
12. The learned lower appellate judge, by a common judgment allowed the appeal filed by the plaintiff and the cross objection of the defendants 1
to 3, set aside the judgment of the trial court dismissing the suit and decreed the suit directing division of suit properties into six equal shares and
allotment of one such share to the plaintiff, holding that the plaintiff, defendants 1 to 3 and defendants 5 and 6 alone were legal heirs of deceased
Thangavel and that the Will propounded by the 4th defendant was not proved to be the last Will made by the deceased Thangavel on 07.04.2004,
while he was in sound disposing state of mind. The learned lower appellate Judge also dismissed the cross objection filed by the 4th defendant.
Consequently, the lower appellate court has held that the sale deeds dated 08.04.2004 are not valid and the sale deed executed in favour of the
9th defendant by the 4th defendant is not binding on the plaintiff.
13. Aggrieved by the same, the 9th defendant has filed separate appeals in S.A. Nos. 1080 and 1081 of 2009. Jeeva, K.T. Sri. Manickam and
K.T. Gayathri (defendants 4 to 6 in the above said original suit) are the appellants in S.A. No. 435 of 2010. Jeeva (fourth defendant) in the original
suit is the sole appellant in S.A. No. 436 of 2010. A. Srinivasan and A. Thiagarajan (defendants 7 and 8 in the original suit) are the appellants in
S.A. No. 755 of 2009. T. Mahendran (plaintiff in the Original Suit) is the Cross-Appellant in the Cross Objection No. 45 of 2011 in S.A. No.
755 of 2009. All the second appeals and the Cross Objection, have been admitted identifying the following substantial questions of law. They are:
Substantial Questions of Law in S.A. Nos. 1080 and 1081 of 2009
1. Whether the lower Appellate Court is correct in law in rejecting the Ex. B20 will especially when the same has been proved in accordance with
the provisions of Section 63-C of the Indian Succession Act and Section 68 of the Indian Evidence Act?
2. Whether the lower Appellate Court is correct in law in decreeing the suit for injunction when the plaintiff has failed to prove possession and the
appellant and his predecessors in title have produced the revenue records to prove their possession?
3. Whether the lower Appellate Court is correct in law in not recognising the sale in favour of the appellant under Ex. B29 especially when the
same has been purchased by him from the rightful owners?
Substantial Questions of Law in S.A. No. 435 of 2010
1. Whether the view taken by both the Courts that the first appellant is not the legal heir of the deceased Thangavel is correct in the light of
overwhelming evidence on record?
2. Whether both the Courts are correct in declaring that the first Appellant is not the legal heir of the deceased Thangavel in view of long
cohabitation of the first appellant and the deceased Thangavel?
3. Whether the first appellate court is correct in holding that the appellants 2 and 3 are the illegitimate children of the deceased Thangavel?
Substantial Questions of Law in S.A. No. 436 of 2010
1. Whether the courts below are correct in holding that the appellant is not the legal heir of the deceased Thangavel in the light of overwhelming
evidence on record?
2. Whether the courts below are correct in declaring that the appellant and respondents 5 and 6 are not the legal heirs of the deceased Thangavel
in view of long cohabitation of the appellant and the deceased Thangavel?
Substantial Question of Law in S.A. No. 755 of 2009
In the absence of knowledge of the death of the principal on the date of registration, whether the lower appellate court is right in holding that the
sale is invalid?
Substantial Question of Law in Cross Objection No. 45 of 2011
Whether the allotment of a share to the respondents 7 and 8 (defendants 5 and 6) is based on a perverse finding regarding the factum of marriage
between Thangavel and Jeeva and hence not sustainable in law?
14. Admittedly, an extent of 5.84 acres of dry land comprised in S. No. 542/3 of Alanthurai village, Thondamuthur Sub-Registration District,
Coimbatore Registration District, more fully described in the plaint schedule, belonged to Late G. Thangavel, who admittedly died on 10.04.2004.
The plaintiff''s case, as per the plaint averment, is that the first defendant Suseela is the legally wedded wife of deceased Thangavel and plaintiff
Mahendran, second defendant Chitralatha and third defendant Shanmugavalli are their children and that plaintiff and the defendants 1 to 3 alone are
the legal heirs of deceased Thangavel. It is their further contention that deceased Thangavel died intestate without having executed any Will
regarding his property. Projecting 4th defendant Jeeva to be the wife of one Ponnusamy and 5th defendant Sri Manickam and 6th defendant
Gayathri to be the son and daughter of Ponnusamy born through the 4th defendant Jeeva, the plaintiff had made averments in the plaint that they
were claiming to be close relatives of Thangavel. However, when summons were sought to be served on the defendants 4 to 6 describing them to
be the wife, son and daughter respectively of Ponnusamy, they refused to receive the summons. Subsequently, summons sent privately through the
advocate of the plaintiff were received, since the first defendant''s husband''s name was not mentioned in the covers in which summons were sent.
Upon such service, defendants 4 to 6 entered appearance describing them to be the wife, son and daughter respectively of Late G. Thangavel. In
fact originally the fifth defendant name was given as Manickam and the sixth defendant name was given as Kala. Subsequently, plaint was amended
by correcting their names to K.T. Sri. Manickam and K.T. Gayathri by virtue of an order dated 24.06.2005 made in I.A. No. 281/2005. Even
after such amendment, the defendants 4, 5 and 6 were continued to be described as the wife, son and daughter respectively of Ponnusamy.
Subsequently, by virtue of an order dated 05.06.2006 made in I.A. No. 273/2006, besides the original descriptions, the 4th, 5th and 6th
defendants came to be described as Jeeva W/o. Late Thangavel, K.T. Sri. Manickam S/o. Late Thangavel and K.T. Gayathri D/o. Late
Thangavel. Besides making such amendment, the plaintiff also included an averment in the plaint that the 4th defendant, proclaiming herself to be
the junior wife of deceased Thangavel, was claiming interest over the suit property.
15. It has also been averred in the plaint that the defendants 4 to 6 are not the legal heirs of Thangavel and they have no manner of right over the
suit property. The defendants 1 to 3, who are the mother and sisters of the plaintiff, have fully supported the case of the plaintiff in this regard. In
short, it is the contention of the plaintiff, as well as defendants 1 to 3, that the defendants 4 to 6 are strangers to the family of deceased Thangavel
and they have no right, whatsoever, over the property of deceased Thangavel. On the contrary, the defendants 4 to 6, in their written statements,
have averred that the 4th defendant Jeeva alone is the legally wedded wife of deceased Thangavel and the defendants 5 and 6 alone are the
legitimate children of deceased Thangavel. It is obvious from the above said rival pleadings that the plaintiff and defendants 1 to 3 refused to
recognise the defendants 5 and 6 to be the son and daughter of Late Thangavel born through the 4th defendant Jeeva, let apart there being any
marital relationship between Thangavel and Jeeva. That is the reason why the plaintiff has averred in his plaint that the defendants 4 to 6 being the
mother, son and daughter, claiming to be the close relatives of Thangavel, cause troubles to the plaintiff with the help of the 7th and 8th defendants.
As a tit for tat reply, defendants 4 to 6 have chosen to contend in their written statements that being the wife and children of late Thangavel they
alone are the legal heirs of Late G. Thangavel. The said contention amounts to the denial of the status of the first defendant Suseela to be the wife
of G. Thangavel and the status of plaintiff and defendants 2 and 3 to be the children of late G. Thangavel. Besides such a defence statement, the
defendants 4 to 6 have also contended that late G. Thangavel did not die intestate and on the other hand, he has left a registered Will dated
07.04.2004 bequeathing 4.00 acres within defined boundaries out of the suit property to the 4th defendant Jeeva. The plaintiff and the defendants
1 to 3, in order to deny the benefit of the bequest to the 4th defendant, have come forward with a plea that the deceased Thangavel was suffering
from multi-complicated diseases and died intestate on 10.04.2004 due to kidney failure; that 10 to 15 days prior to his death, he had lost his
consciousness and that hence, the Will propounded by the 4th defendant could not have been executed by the deceased G. Thangavel while he
was possessing sound disposing state of mind.
16. In short, the following are the rival contentions of the parties to the suit, which can be divided into two groups. Plaintiff and the defendants 1 to
3 form one group and the defendants 4 to 9 form the other group. Their rival contentions can be tabulated as follows:
Sl. Plaintiff and the Defendants 1 to 3 Defendants 4 to 6
No.
1. 1st defendant Suseela alone is the wife of Late4th defendant Jeeva alone is the wife of
Thangavel and Thangavel
2. 4th defendant is the wife of one Ponnusamy 4th defendant is not the wife of Ponnusamy, but
she is the wife of Late G.Thangavel
3. Plaintiff and defendants 1 to 3 are the son andThey are not the son and daughters of Thangavel
daughters of Thangavel
4. Defendants 5 and 6 are not the son and Defendants 5 and 6 are the son and daughter of
daughter of Thangavel Late G.Thangavel
5. Deceased Thangavel died on 10.04.2004 Deceased Thangavel died on 10.04.2004 after
intestate having executed his last Will dated 07.04.2004
bequeathing 4.00 Acres out of 5.84 Acres
shown as the plaint property to the 4th defendant
Jeeva
6. The Will propounded by the 4th defendant Late G.Thangavel executed a registered Will
shall not be genuine and even if genuine, the dated 07.04.2004 while he was in sound
same would not have been made by disposing state of mind
Thangavel while possessing sound disposing
state of mind
The Will propounded by the 4th defendant shall not be genuine and even if genuine, the same would not have been made by Thangavel while
possessing sound disposing state of mind Late G. Thangavel executed a registered Will dated 07.04.2004 while he was in sound disposing state of
mind.
17. The following are the first and second substantial questions of law formulated in S.A. No. 435/2010. "" 1) Whether the view taken by both the
Courts that the first appellant is not the legal heir of the deceased Thangavel is correct in the light of overwhelming evidence on record? 2) Whether
both the Courts are correct in declaring that the first Appellant is not the legal heir of the deceased Thangavel in view of long cohabitation of the
first appellant and the deceased Thangavel?"". The first substantial question of law framed in S.A. No. 436/2006 is as Follows:- ""Whether the
courts below are correct in holding that the appellant is not the legal heir of the deceased Thangavel in the light of overwhelming evidence on
record?"" All the three questions are in effect one and the same and hence they are taken up together for discussion.
18. At the outset, it is pointed out that the above said questions have been projected based on the contention of the defendants 4 to 6 that the 4th
defendant Jeeva was the legally wedded wife of late Thangavel. The said questions seem to have been raised on the premise that the 4th defendant
not only claims to be a legatee under the will of late Thangavel in respect of a portion of the suit property but also a non-testamentary legal heir in
her capacity as the legally wedded wife of late Thangavel. The 4th defendant shall be a non-testamentary legal heir of Thangavel provided she was
the legally wedded wife of late Thangavel and her marriage was a valid marriage. With the above said pleadings, the parties went for trial. No
doubt the defendants 4 to 6 in their written statements had taken a plea that they alone were the legal heirs of deceased Thangavel. But, the
plaintiff, who figured as PW. 1, the first defendant Suseela, who figured as DW. 1 and one Kamalam, who figured as DW. 2, have spoken about
the fact that the first defendant Suseela was the legally wedded wife of late G. Thangavel. More particularly, DW. 2-Kamalam has deposed that
the father of Thangavel by name Ginjappa was her mother-in-law''s brother and hence as a close relative of Thangavel, she knew about the
marriage of Thangavel with the first defendant Suseela. All the above said witnesses have deposed to the effect that the marriage between
Thangavel and the first defendant Suseela took place on 26.09.1966. DW. 2 in her evidence has stated that the said marriage took place
according to Hindu custom observing the seven steps *** in Ramar temple situated on the south of Pasuvanna Temple in Coimbatore Town. It is
also her clear testimony that after their marriage, two children were born earlier and died and their surviving children are the plaintiff Mahendran,
second defendant Chitra Latha and the third defendant Shanmugavalli.
19. Even though DW. 2 would have stated about the said marriage of Thangavel with the first defendant Suseela, she has stated nothing about the
relationship of the 4th defendant Jeeva with the deceased Thangavel. On the other hand, from Ex. B11 and Ex. B12, it is obvious that two family
cards had been issued to G. Thangavel, one bearing No. 13/G/012241 and the other bearing No. 13/G/007365. The address given in Ex. B11 is
Door No. 81C, Tadagam Road 3, Coimbatore. The address given in Ex. B12 is Door No. 690, Thyagi Kumaran Street, Coimbatore. In both the
family cards, deceased G. Thangavel''s name is found as the head of the family. Ex. B11 contains the names of the plaintiff and the first defendant
as two other members of the family. Four other names are also found in the said family card. After the death of Thangavel, on the application made
by the plaintiff, the name of Thangavel was removed and the plaintiff''s name was substituted as the head of the family. Similarly, in Ex. B12,
Thangavel was shown to be the head of the family and defendants 4 to 6 besides one Dhanammal, were shown to be the other members. From the
said documents, it is obvious that the very same person''s photograph is found in both the family cards as the head of the family.
20. Though four witnesses were examined on the side of the plaintiff, PW. 1 (plaintiff) alone spoke about the plaint plea that his mother Suseela,
namely the first defendant was the legally wedded wife of deceased Thangavel and he and defendants 2 and 3 were the children of Thangavel born
through the first defendant Suseela. Again DW. 1, namely the first defendant, in her evidence asserted the fact that she was the legally wedded wife
of late Thangavel; that their marriage took place on 26.09.1966; that two children were born to them in 1967 and 1969 and died and that
thereafter the second defendant Chitralatha, third defendant Shanmugavalli and the plaintiff Mahendran were born on 11.05.1971, 14.05.1973 and
25.03.1975 respectively. Though such a clear assertion was made by DW. 1, she was not cross-examined suggesting that no such marriage
between Thangavel and DW. 1 took place and the plaintiff and defendants 2 and 3 were not their children. In fact, one Kamalam (examined as
DW. 2), a relative of deceased Thangavel, has corroborated the testimony of DW. 1 regarding her marriage with late Thangavel that took place on
26.09.1966.
21. DW. 3 (4th defendant Jeeva) in her evidence in the chief examination, in the form of proof affidavit, simply stated that the 4th defendant alone
was the legally wedded wife of late Thangavel and defendants 5 and 6 were the children of Thangavel born through the 4th defendant. Besides the
above said statement in the proof affidavit, she also contended that late Thangavel had left a Will bequeathing 4.00 acres of land to her. Apart from
that, there is no clear denial of the fact spoken to by DW. 1 and DW. 2 that the marriage of late Thangavel and Suseela (first defendant) took
place according to Hindu customs and rites on 26.09.1966 in Ramar temple situated on the south of Pasuvanna Temple. The same has not been
openly challenged. The plaint averment that the first defendant is the wife of late Thangavel and plaintiff and defendants 2 and 3 are the legal heirs
of Thangavel and first defendant, is also not specifically disputed. On the other hand, DW. 3 (4th defendant), in her proof affidavit, has simply
stated that the onus of proving the said allegation lies on the plaintiff. The relevant part is found in paragraph 8 of the proof affidavit. The same, in
vernacular, is extracted hereunder:
***
From the evidence of DW. 3, it is seen that she was aged about 48 years on 19.09.2006 the date of her examination as a witness before the trial
court. If it is correct she would have been born in or about 1954. But the notarised copies of Driving Licence and Income Tax Pan Card of the 4th
defendant Jeeva have been produced as Exs. B15 and B16. Her date of birth, as per the said documents, is 11.11.1958. According to her own
statement, the fifth defendant was born on 14.08.1976 and after a lapse of 3 = years, the 5th defendant Gayathri was born. From the said
evidence, it is quite obvious that the marriage of Thangavel with Suseela (1st defendant) took place in 1966 itself and the first defendant gave birth
to two children, who died after birth and thereafter the defendants 2 and 3 and the plaintiff were born to them on 11.05.1971, 14.05.1973 and
25.03.1975 respectively. Copy of the Passport of the plaintiff has been produced as Ex. A9. From the same it is found that the date of birth
furnished by him as 25.03.1975 is correct. His father''s name has been shown as Thangavel. Ex. A11 is the birth certificate of Shangmugavalli and
it shows that she was born on 14.05.1973. Her parents'' names have been noted as Thangavel and Suseela. Similarly, the birth certificate of
second defendant Chitralatha has been produced as Ex. A15. Her date of birth is noted as 11.05.1971 and her father''s name is noted as G.
Thangavel. No doubt the 4th defendant (DW. 3) has stated in her proof affidavit that the relationship of plaintiff and defendants 1 to 3 with the
deceased Thangavel should be proved by the plaintiff. But besides absence of categorical denial of their claim, DW. 3 has also given evasive
answer by stating that she knew the first defendant Suseela for about 10 to 15 years, but she did not know what was her relationship with late
Thangavel. Of course in Ex. B20-Will Thangavel has described the fourth defendant Jeeva as his wife. But the same will not be enough to show
that there was no marriage between first defendant and Thangavel and that plaintiff and defendants 2 and 3 are not the children of Thangavel. The
clear evidence adduced on the side of the plaintiff and defendants 1 to 3 would show that Thangavel first married the first defendant Suseela and
through her he got a son, namely the plaintiff and two daughters, namely the defendants 2 and 3. All of them were born before the birth of
defendants 5 and 6. By preponderance of probabilities, the plaintiff and the defendants 1 to 3 have proved that the first defendant Suseela was the
legally wedded wife of late Thangavel and that the plaintiff and the defendants 2 and 3 are the legitimate children of late Thangavel born through
lawful wedlock. Therefore, it is abundantly clear that the case of the plaintiff that late Thangavel married first defendant Suseela on 26.09.1966 and
that plaintiff and defendants 2 and 3 were born to them on 11.05.1971, 14.05.1973 and 25.03.1975 respectively, stands proved. The contesting
defendants cannot contend that plaintiff and defendants 1 to 3 are not the legal heirs of late Thangavel.
22. Similarly, though the plaintiff and defendants 1 to 3 would have refused to accept the relationship of the 4th defendant Jeeva with G. Thangavel
and that of the defendants 5 and 6 with G. Thangavel and on the other hand, they would have chosen to contend that they were the wife and
children of one Ponnusamy, the said contention has not been substantiated by evidence. In fact when the defendants 4 to 6 appeared on protest
contending that the husband''s name of 4th defendant and the father''s name of defendants 5 and 6 were wrongly given as ""Ponnusamy"" instead of
Thangavel"", the plaint was amended by describing them as wife of Thangavel, son of Thangavel and daughter of Thangavel respectively. Even
while adducing evidence, the plaintiff and the defendants 1 to 3 were not able to substantiate their contention that the fourth defendant Jeeva was
the wife of one Ponnusamy and the said Ponnusamy was the father of defendants 5 and 6. In fact, the plaintiff, while deposing as PW. 1 in his
cross-examination, clearly admitted that he did not have any evidence to show that one Ponnusamy was the husband of the 4th defendant Jeeva.
For such a question, he gave an answer that it was not necessary for him to find out whether there was any document to show that one Ponnusamy
was the husband of the 4th defendant Jeeva. Though PW. 1 has stated that on enquiry he came to know that 4th defendant was the wife of
Ponnusamy, he has also expressed his willingness to disclose the source from which he got that information. A property, had been purchased in the
name of the first defendant under a document dated 20.09.1990 bearing document No. 4269/1990 registered on the file of the District Registrar,
Coimbatore. It later on came to be owned by both the first defendant Suseela and the 4th defendant Jeeva by virtue of a Release Deed dated
21.10.1992. The said property was sold by them to one Narayanan. A certified copy of the sale deed executed by the first defendant Suseela and
the fourth defendant Jeeva jointly in favour of the said Narayanan on 21.07.1995 and registered as document No. 2441/1995 has been produced
as Ex. B42. In the said sale deed, both the executants of the Sale Deed, namely Suseela and Jeeva have been described as wives of late G.
Thangavel. DW. 1 has denied having executed such a document, because in the said document both Suseela and Jeeva were described as wives
of Thangavel. The same will make it clear that the first defendant Suseela and the fourth defendant Jeeva were married by one and the same
person-G. Thangavel. This is also corroborated by the copies of the family cards produced as Exs. B11 and B12, in which, the said Thangavel''s
name is shown as head of the families. Apart from the same, there are a number of documents, namely Ex. B14-Bill of Ramakrishna hospital, Ex.
B15-Income Tax Pan Card, Ex. B16-Driving License of the 4th defendant, which show the husband''s name of the 4th defendant Jeeva as
Thangavel. From the said facts and from the absence of sufficient evidence to prove that the 4th defendant Jeeva was the wife of one Ponnusamy
and the defendants 5 and 6 also were the children of Ponnusamy, the finding of the courts below that the defendants 5 and 6 were also the children
of G. Thangavel born through the 4th defendant Jeeva deserves to be confirmed.
23. The fact that G. Thangavel and the 4th defendant Jeeva lived together as husband and wife for quite a long time and defendants 5 and 6 were
born to Thangavel through the 4th defendant will give rise to a presumption that Thangavel married Jeeva, the 4th defendant. But whether such
marriage would have been a legally valid one should also be considered. As pointed out supra, it has been proved by adducing clear evidence on
behalf of the plaintiff and defendants 1 to 3 that Thangavel married the first defendant Suseela on 26.09.1966. That being so, unless the marriage of
the 4th defendant Jeeva with Thangavel had taken place prior to 26.09.1966, her marriage would not have been a valid one. In this case, as we
have seen earlier, the 4th defendant Jeeva was born only on 11.11.1958. So, at the time of marriage of Thangavel with the first defendant Suseela,
the 4th defendant Jeeva would have just completed the age of 8 years. Therefore, the marriage of the 4th defendant Jeeva with Thangavel should
have taken place much later than the marriage of Suseela with Thangavel. In fact, the 4th defendant herself in her evidence has stated that the 5th
defendant was born on 14.08.1976 and she gave birth to the 6th defendant 3 = years later. Therefore, if at all the 4th defendant Jeeva was married
by Thangavel, it would have been around 1974/1975 i.e. much later than the marriage of Thangavel with Suseela. It is not the case of the
contesting defendants that the marriage of Thangavel with Suseela had been legally dissolved before his marriage with Jeeva. The said marriage of
Thangavel with Jeeva being bigamous marriage, the marriage would be a nullity u/s 12 of the Hindu Marriage Act. Therefore, the 4th defendant
Jeeva would not have legally acquired the status of the wife Thangavel. But as per section 16 of the Hindu Marriage Act, children born out of void
marriages are legitimised. Therefore, the defendants 5 and 6, as per section 16 of the Hindu Marriage Act, become the legitimate children of
deceased Thangavel. In this regard, the plaintiff and the defendants 1 to 3 have made a meek attempt to contend that there was no marriage
between Thangavel and Jeeva and the children born to them without there being a marriage (at least a void marriage), will not become the
legitimate children of Thangavel by virtue of section 16 of the Hindu Marriage Act. The said attempt has been made by the plaintiff and the
defendants 1 to 3 to dispute the Will allegedly left by Thangavel in respect of 4.00 acres of land and to defeat any possible claim being made by
the defendants 5 and 6 in respect of the properties of Thangavel not covered by his Will or in the event of the Will being defeated.
24. In this regard, the very fact that in 1995 itself, both Suseela and Jeeva jointly executed a sale deed in favour of one Narayanan, a certified copy
of which has been marked as Ex. B42, describing themselves to be the wives of Thangavel, will make it clear that the said Thangavel had married
Jeeva and through her he got defendants 5 and 6 as his children. The same is also evident from Ex. B12-the family card and also from Exs. B14 to
Ex. B16, namely the medical bills, Income Tax Pan Card and Driving License of the 4th defendant. The finding of the courts below that Thangavel
contracted a second marriage with Jeeva during the life time of the first defendant and during the subsistence of his marital relationship with the first
defendant and that hence the marriage between Thangavel and the 4th defendant Jeeva is a void marriage as per section 12 of the Hindu Marriage
Act, is based on proper appreciation of evidence and the same deserves no interference. The necessary corollary is that the defendants 5 and 6
born out of void marriage are the legitimate children of G. Thangavel entitled to succeed to his separate properties and his share if any, in the
coparcenary property. This will be clear from the fact that though the plaintiff and the defendants 1 to 3 on the one hand and the defendants 4 to 6
on the other hand applied for legal heirship certificate, they were unable to produce the legal heirship certificate showing themselves alone as the
legal heirs of deceased Thangavel. The plaintiff might have burked such a certificate, since defendants 5 and 6 were also shown to be the legal heirs
of deceased Thangavel. Similarly, defendants 4 to 6 might have burked the same, since the 4th defendant would not have been shown as the legal
heir of Thangavel and the plaintiff and the defendants 1 to 3 also would have been shown as the legal heirs of Thangavel. Under such
circumstances, we have to come to the conclusion that the plaintiff, defendants 1 to 3 and defendants 5 and 6 are the non-testamentary legal heirs
of deceased Thangavel. The finding of the courts below in this regard, based on proper appreciation of evidence, does not deserve any
interference. For the above said reasons, this court hereby holds that plaintiff, defendants 1 to 3 and defendants 5 and 6 alone were the non-
testamentary legal heirs of deceased Thangavel and the 4th defendant Jeeva was not a non-testamentary legal heir of deceased Thangavel. The
substantial questions of law 1 and 2 in S.A. No. 435/2010 and the first substantial question of law in S.A. No. 436/2010 are answered
accordingly.
25. ""Whether the lower Appellate Court is correct in law in rejecting the Ex. B20 will especially when the same has been proved in accordance
with the provisions of Section 63-C of the Indian Succession Act and Section 68 of the Indian Evidence Act?"" is the first substantial question of
law framed in S.A. No. 1080 and 1081 of 2009. In view of the above said finding that the plaintiff, defendants 1 to 3 and defendants 5 and 6 are
the non-testamentary legal heirs of deceased Thangavel, all of them would have become equally entitled to the properties left by G. Thangavel in
the absence of any Will. Each one would have become entitled to 1/6th share. Suppose Thangavel had left a Will as contended by the defendants
4 to 6 covering a part of his property, succession to the said property would be governed by the testamentary succession and the testamentary
legal heir (legatee of the Will) will get that property and the non-testamentary legal heirs, namely plaintiff and defendants 1 to 3 and 5 and 6 would
be entitled to the rest of the properties left by Thangavel, which are not covered by the Will.
26. Admittedly, the total extent of the suit property is 5.84 Acres. Out of the said extent, 4.00 acres of land within specified boundaries, according
to the contesting defendants, namely defendants 4 to 9, was bequeathed by late G. Thangavel in favour of the 4th defendant Jeeva by making and
leaving a Will dated 07.04.2004 as his last Will. The said Will has also been registered as document No. 175/2004 in Book 3 by the Joint Sub
Registrar in the office of the District Registrar, Coimbatore and the same has been produced as Ex. B20. The said Will is dated 07.04.2004 and
the same was registered on the very same day. One Venugopal son of Chinnasamy Chettiar and Mukanda Kumar son of Durairaj were the
attestors. R. Uma Raj, document writer, having license No. B4350/84/CBE, has signed as the person who drafted the Will. According to the
contesting defendants, out of the total extent of 5.84 Acres comprised in Survey No. 542/3 in Alandurai village, Coimbatore Taluk, Coimbatore
District, which has been described as the suit property, an extent of 4.00 acres forming the eastern part of the suit property along with a well and
electric motor pump set fitted therein is the property bequeathed under the Will marked as Ex. B20.
27. The legatee under the Will, namely the 4th defendant Jeeva figured as DW. 3. It is her clear and categorical testimony that the testator G.
Thangavel went along with Mukundakumar in the auto-rickshaw of Venugopal on the date of execution of the Will and she was informed of the
execution of the Will by Thangavel in the evening on the same day. It is also her testimony that she read the Will one day after its execution. The
first attestor of the Will, Venugopal has deposed as DW. 5. It is his testimony that he knew Thangavel and Jeeva and their family members for
about 12 years; that he used to park his auto-rickshaw in the Auto Stand situated in Kumaran Street, opposite to the house in which Thangavel
was residing; that on 07.04.2004 at about 10.00 a.m., Thangavel along with one Mukunda Kumar, who was residing in the very same building in
the upstairs, boarded his auto-rickshaw and asked him to go to Gopalapuram; that on the way, Thangavel informed him that he wanted to execute
a Will in favour of his wife Jeeva in respect of 4.00 acres of his land in Alandurai village and directed him to go to the office of Uma Raj, document
writer and that he also informed that the Will had to be registered and requested him to be an attestor of the Will for which he agreed. It is his
further testimony that the document writer Uma Raj prepared the Will and it was typed in the computer; that the will was typed as per the
instructions and particulars given by Thangavel; that after the preparation of the Will, the same was read over to Thangavel; that Thangavel, after
having the same read over to him, admitted the contents to be correct and that thereafter at about 12.00 noon, the Will was registered in the office
of the District Registrar. It is also his clear testimony that he signed as the first attestor, whereas Mukunda Kumar signed as the second attestor and
after them the scribe Uma Raj signed it. It is also his testimony that in the office of the Registrar, he along with Mukunda Kumar signed the
registration endorsement as identifying witnesses. It is his further testimony that the registration fee of Rs. 600/- was paid by Thangavel himself. The
second attestor Mukunda Kumar, who deposed as DW. 6 corroborated the evidence of DW. 5 in all respects. By calling both the attestors and
examining them as witnesses in proof of execution and attestation of Ex. B20-Will, defendants 4 to 6 have satisfied the conditions found in section
68 of the Indian Evidence Act, 1872 in respect of proof of the Will. They have also given clear testimony regarding the date, time, place and the
manner in which the Will was executed by late G. Thangavel. As against the same, the plaintiff and the defendants 1 to 3 simply relied on their
contention that Thangavel died intestate without leaving any will; that Thangavel was suffering from many kinds of ailment for which he was taking
continuous treatment; that for about 15 days before his death he was unconscious and that hence even if the Will could have been executed by him,
the same would not have been executed by him while possessing sound disposing state of mind.
28. It is the testimony of PW. 1 in his chief examination that his father Thangavel was suffering from Diabetes Mellitus, blood pressure and other
diseases, for which he had been taking treatment in the hospitals; that on 10.04.2004, he died of failure of his kidneys and that 10 to 15 days prior
to his death, he lost his consciousness and was unconscious. It is also his testimony in the chief examination that the Will alleged to have been
executed by Thangavel in favour of the 4th defendant Jeeva could have been obtained while Thangavel was not possessed of conscious state of
mind. PW. 1 also would contend that the 4th defendant Jeeva was not the wife of Thangavel and the defendants 5 and 6 were not the children of
Thangavel born through the 4th defendant. We have already seen that the deceased Thangavel had married the 4th defendant Jeeva during the
subsistence of his marriage with the first defendant Suseela; that hence his marriage with the 4th defendant was a void marriage and that the
defendants 5 and 6 being children born to them out of void marriage are their legitimate children as per section 16 of the Hindu Marriage Act,
1955. Various documents evidencing the fact that Thangavel and Jeeva were living as husband and wife were discussed in the earlier paragraphs of
this judgment. Admittedly Thangavel died on 10.04.2004 and the duty medical officer at Sri Ramakrishna Hospital has noted the cause of death in
the treatment file marked as Ex. A22. The cause of death has been noted as (CRF) chronic renal failure, IHA-CHF, diabetes mellitus and cardio-
respiratory arrest. Even during the life time of Thangavel, both the first defendant Suseela and the 4th defendant Jeeva jointly executed a sale deed
on 21.07.1995 in favour of one K.P. Narayanan, conveying a house site measuring 23'' x 17'' along with the building standing thereon bearing old
door No. 17/68 and new door No. 31/312, which was again changed to 315 part and bearing new door No. 684 to 697 part comprised in old
T.S. No. 7/2241 part new T.S. No. 7/1125 part for a sum of Rs. 1,70,000/-. A certified copy of the said sale deed has been produced as Ex.
B42. Execution of the said sale deed jointly by first defendant Suseela and the 4th defendant Jeeva cannot be denied. In the said document both
Suseela (1st defendant) and Jeeva (4th defendant) have been described as wives of Thangavel (***). DW. 1 has admitted that the house bearing
door No. 690 in Kumaran Street belonged to her and that she sold it under a sale deed dated 21.07.1995. But she would deny the fact that the
sale was made jointly by herself and Jeeva. The certified copy of the said document produced as Ex. B42, will show that DW. 1 was suppressing
the fact that the same was sold jointly by herself and the 4th defendant. PW. 1 himself, in his evidence in cross-examination, has not denied the
execution of the said sale deed by Suseela and Jeeva jointly describing them as wives of Thangavel. He has simply pleaded absence of knowledge
in this regard. In this regard, DW. 4-Jeeva has given clear evidence to the effect that the property bearing door No. 690 in Kumaran Street did not
absolutely belong to Suseela; that she had got half share in it and that the same was the reason why both of them jointly sold the property.
Therefore, it is very much obvious that even in 1995, namely 9 years before his death, Thangavel was living with both Suseela and Jeeva.
29. When the propounder of the Will, namely the 4th defendant, has chosen to lead clear evidence through witnesses, including the attestors of the
Will, in proof of execution of the Will by Thangavel while he was possessed of sound disposing state of mind, except the bald statement of PW. 1
that his father was in an unconscious state 10 to 15 days prior to his death, there is no reliable evidence on the side of the plaintiff to show that late
Thangavel was unconscious for about 10 to 15 days prior to his death. Admittedly Thangavel died on 10.04.2004 at 4.10 a.m. at Sri Ramakrishna
Hospital, Coimbatore. Dr. Deepa Jayaram, the Chief Doctor of Rasi Hospital, has been examined as PW. 2. It is her testimony that Thangavel
was admitted in the said hospital on 15.03.2004 as he experienced difficulty in passing urine; that he was treated as an in patient for five days and
thereafter he was discharged after having been diagnosed of failure of kidneys. From the evidence of PW. 2, it is obvious that the deceased
Thangavel was a diabetic patient and for blood pressure he had been taking treatment. It is her further statement that Thangavel had been referred
to their hospital for dialysis, but medical facility of dialysis was not available in their hospital. It is her further testimony that the heart specialist by
name Dr. Siddhaiyan checked Thangavel and informed that since he was a diabetic patient and was also having blood pressure, his heart was
weak. However, she went further and said that Dr. Thiyagarajan, Surgeon examined him and noted that his heart and lungs were in good condition
and was given medication as per the advice of the heart specialist. The purpose of examination of PW. 2 was to show that late Thangavel did have
renal disease, diabetes mellitus and also blood pressure and that under such circumstances, he would not have possessed sound disposing state of
mind. But, much against the expectation of the plaintiff, PW. 2 has given testimony to the effect that Thangavel was possessed of conscious and
sound disposing state of mind so as to give co-operation to the Medical Officers for the treatment; that excepting the above said ailment, all his
four limbs were found in good condition and that he was in a position to do all acts as done by other persons, who are hale and healthy. It is her
further testimony that Thangavel was found capable of doing all things independently without the help of others. It is also her admission that he was
discharged from the hospital when he was maintaining a good health condition. It is also her clear information that the mental faculty will not be
affected by the renal failure and that persons with the complaint of failure of kidneys would be in good conscious state of mind till death.
30. One Dr. S. Krishnaraj, Residential Medical Officer of Sri Ramakrishna Hospital, Coimbatore has been examined as PW. 4. He has produced
the treatment file relating to the treatment given to Thangavel in Sri Ramakrishna Hospital and the same has been marked as Ex. A21. From the
evidence of PW. 4 and Ex. A21, it is obvious that Thangavel had been earlier admitted as an in patient on 19.03.2004 for diabetes, blood
pressure, heart ailment and renal defects. From the evidence of PW. 4, it is clear that though Thangavel was admitted on 19.03.2004, for the renal
failure, dialysis alone was done and no advice for kidney transplantation was made. It is also obvious from his evidence and Ex. A21 that on
25.03.2004 Thangavel was discharged from the said hospital; that subsequently on 09.04.2004 at 1.00 p.m. he was admitted at the said hospital
and at 6.00 p.m. dialysis was done and that at 10.00 p.m. on 09.04.2004, he suddenly fainted and became unconscious and died at 4.10 a.m. on
10.04.2004. PW. 4 has opined that there is possibility of persons having such complications to suddenly collapse and die. The further evidence of
PW. 4 is that till 9.50 p.m. on 09.04.2004, Thangavel was in good condition; that at the time of his admission in the hospital for the first time and at
the time of discharge, he was in good condition and that he was in a good conscious state of mind having all faculties of comprehension when he
was admitted in the hospital for the second time on 09.04.2004. Apart from the said statements made in the chief examination, during cross
examination also, he has again confirmed the fact that from 19.03.2004, when he was first admitted in the hospital, till 25.03.2004, when he was
discharged, he was possessing conscious state of mind and that there was no necessity to admit him in the Intensive Care Unit. It is also his clear
admission that even at the time of admission on 09.04.2004 for the second spell of treatment, till 10.00 p.m. on the said date, Thangavel was in
good conscious state of mind. It is also his clear evidence that he was admitted for the second time on 09.04.2004 for dialysis. When the said
evidence of the above said plaintiff''s side witness is read in conjunction with the admission made by PW. 1, it will be obvious that the deceased
was maintaining conscious state of mind till about 10.00 p.m. on 09.04.2004.
31. Though the plaintiff would have stated that Thangavel lost his consciousness and was unconscious for about 10 to 15 days before his death, it
is not his pleadings, nor is it the pleadings of the defendants 1 to 3, that Thangavel was in the custody of any one of them during the said period. On
the other hand, clear evidence has been adduced on the side of the contesting defendants that it was the 4th defendant Jeeva, who got Thangavel
admitted in the hospital on both the occasions for treatment and that even after the death of Thangavel, the funeral and last rites were done only in
the house of the 4th defendant Jeeva. The admission made by PW. 1 in the vernacular is extracted here under:
The plaintiff''s mother, who is the first defendant, while deposing as DW. 1, stated that she did not know who paid the treatment charges to the
hospital for the treatment given to her husband Thangavel and that she did not know who got the dead body from the hospital. PW. 1 does not say
that he took part in the funeral of his father. DW. 1-Suseela in her evidence would state that her husband''s body was cremated in the crematorium
at Muthanar Tank. But Ex. B8-Receipt issued by the Corporation of Coimbatore for the cremation of the body of Thangavel shows that the
charges for the cremation was paid by Mukunda Kumar and the body was cremated at Sokkanpudur electric crematorium. DW. 2 examined by
the first defendant has not spoken anything about the condition of Thangavel prior to his death.
32. PW. 4-Dr. S. Krishnaraj has clearly stated that it was the fourth defendant Jeeva, who signed in the hospital records at the time of admission
of Thangavel for the first spell. From Ex. A21 also it is found that it was Jeeva, who got him admitted at the first instance. From Ex. A22, it is
found that when he was admitted on 09.04.2004, it was the 6th defendant Gayathri, who signed the document for admission. It is also obvious
from Ex. A22 that only at 10.00 p.m. on the said day, his condition became critical and he was shifted to the Intensive Care Unit and at that point
of time, the 6th defendant Gayathri signed the Medical Report informing that his condition was critical and he was shifted to Intensive Care Unit.
She has signed as daughter of the in-patient. It is also obvious from Ex. A22 that Thangavel was declared dead on 10.04.2004 at 4.10 a.m. From
the above said materials, it is obvious that Late Thangavel was with defendants 4 to 6 during his last days and it was the fourth defendant, who
admitted him at the first instance on 19.03.2004 in the hospital and it was the sixth defendant, who admitted him for the second spell of treatment
on 09.04.2004. The evidence of the medical officers examined on the side of the plaintiff will go against the plaintiff''s case that Thangavel had lost
consciousness and was unconscious for about 10 to 15 days prior to the date of his death. On the other hand, their evidence would make it clear
that Thangavel was oriented, conscious and was possessing sound disposing state of mind till 10.00 p.m. on 09.04.2004 when he had a cardiac
arrest and that due to cardiac attack, which might have been triggered by his chronic renal disease and high blood pressure, Thangavel died at 4.10
a.m. on 10.04.2004.
33. In addition, there is the clear and categorical evidence of DW. 4-Jeeva, DW. 5-Venugopal and DW. 6-Mukunda Kumar to the effect that
Thangavel was maintaining sound disposing state of mind and he was capable of looking after his affairs without the help of others at the time of
alleged execution of Ex. B20-will. The evidence of the said witness, including the attestors of the Will, regarding the sound disposing state of mind
of Thangavel at the time of execution of the Will, coupled with the fact that the Will was registered not in the hospital or in the residence of
Thangavel, but in the office of the Registering Authority, will show that the testator Thangavel was maintaining conscious and sound disposing state
of mind capable of understanding what he was doing. Clear evidence has also been adduced to the effect that Thangavel himself took DWs. 5 and
6 to the scribe and that in their presence the Will was prepared and signed by Thangavel. Clear evidence has also been adduced to the effect that
the Will was properly executed by Thangavel and it was attested by DWs. 5 and 6. It has also been proved that DWs. 5 and 6 also signed as
identifying witnesses at the time of registration of the Will. The said evidence adduced on the side of the contesting defendants shall be enough to
discharge their burden of proof of execution of the Will by the testator while possessing sound disposing state of mind and to cause shifting the
burden on the person disputing the same to prove that the testator was not possessing sound disposing state of mind. We have already seen that
the evidence adduced by the plaintiff through the medical officers go against the plaintiff''s case that the testator Thangavel had lost his
consciousness and was unconscious for about 10 to 15 days prior to his date of death and that the evidence of the medical officers support the
case of the contesting defendants that he was well oriented and was possessing sound disposing state of mind till 10.00 p.m. on 09.04.2004.
Therefore, the finding of the lower appellate court that he could not have possessed sound disposing state of mind at the time of execution of Ex.
B20-will, has to be held infirm, defective and perverse.
34. The will is sought to be challenged by the plaintiff and the defendants 1 to 3, who support the case of the plaintiff, on the ground that the same
is surrounded by suspicious circumstances. The fact that the 4th defendant was referred to as ""wife"" in the Will is sought to be projected as one of
the suspicious circumstances. It is pointed out on behalf of the plaintiff and defendants 1 to 3 that the Will does not even describe the 4th defendant
as ""second wife"". The same is also projected as a ground for showing the Will to be unnatural. In addition, the fact that the 4th defendant was
made the sole legatee under the Will and the legally wedded wife (first defendant) and testator''s children born through the legally wedded wife,
namely plaintiff and defendants 2 and 3, were not given anything under the Will is also sought to be projected as a ground for showing the will to
be unnatural and surrounded by suspicious circumstances. It is true that in the Will, the 4th defendant Jeeva has been described to be the wife of
the testator Thangavel. But the same cannot be taken as a suspicious circumstance. In a way it is quite natural for a person having contracted a
second marriage during the life time of his first wife to make some provision for the woman with whom he contracted the second marriage, as she
would not get anything by way of intestate succession because such marriage shall be void. The same could be the reason for making a separate
provision for the 4th defendant alone. As we have seen supra, in the absence of the will, she would not be entitled to any share in the property left
by Thangavel. Therefore, the said circumstance can be taken as a ground for holding the Will to be natural. Not only the exclusion of the first
defendant (wife) and the children born through the first wife, namely plaintiff and defendants 2 and 3, but also the exclusion of the children born
through 4th defendant Jeeva, namely defendants 5 and 6, is also sought to be projected as a ground to show the will to be unnatural. The answer is
that there are clear admissions to the effect that, apart from the suit property, there are other properties owned by Thangavel. There is also
evidence to show that the first defendant has got separate properties in her name. It is also obvious that the will does not cover the entire suit
property. The total extent of the suit property is 5.84 acres, out of which, an extent of 4.00 acres alone has been bequeathed in favour of the 4th
defendant under Ex. B20-will. Hence the suspicious circumstances projected by the plaintiff and defendants 1 to 3 to show that the Will is
unnatural are not at all a suspicious circumstances, which will make the court hold that the will could not be genuine or that the testator could not
have executed the will while possessing sound disposing state of mind. Further, the disposition made in the Will being unnatural alone is not enough
to hold the will to be invalid. Courts are there to give effect to the wishes of the testator and the courts should not try to find excuses for not giving
effect to the wishes of the testator expressed in the Will, unless the genuineness of the will or the sound disposing state of mind of the testator, at
the time of execution of the will, is in doubt. Wills are made for making deviation from the normal line of succession provided under the rules for
intestate succession. Simply because such deviations are made and some of the legal heirs have not been provided with any share in the property
bequeathed under the Will, whereas some of the persons who would not get any share as per the normal rule of intestate succession have been
given property under the bequest, the court cannot hold the will to be unnatural.
35. In this case, there are sufficient evidence to show that apart from the 4.00 acres of land bequeathed in favour of the 4th defendant, the testator
Thangavel had left other properties including the remaining extent of 1.84 acres, which is also part of the suit property. Therefore, the disinheritance
of plaintiff, defendants 1 to 3 and defendants 5 and 6 in respect of that 4.00 acres shall have no consequence and it will not make the will
unnatural. The fact that the testator preferred the 4th defendant to be the sole legatee under the will, may appear unnatural at the outset. But if the
position of the 4th defendant, who lived with him as his wife for quite a long time until his death and gave birth to two children under the Hindu
Marriage Act, 1955 is taken note of, then one can understand the rational in making a separate provision for the 4th defendant by making the Will
in respect of only a part of the property held by the testator. For all the reasons stated above, this court comes to the conclusion that the Will is not
unnatural; that the alleged suspicious circumstances have been clearly explained and that therefore Ex. B20-Will should be held to be a valid one.
The contrary finding recorded by the lower appellate court is perverse. The first substantial question of law in S.A. Nos. 1080 and 1081 of 2009
is answered accordingly holding that Ex. B20-will propounded by the 4th defendant Jeeva is a valid one and that the finding of the lower appellate
court in this regard is perverse and the same is liable to be reversed.
36. Whether the first appellate court is correct in law in not recognising the sale in favour of the appellant under Ex. B29 especially when the same
has been purchased by him from the rightful owners? is the third substantial question of law framed in S.A. Nos. 1080 and 1081 of 2009. It has
been held in the foregoing discussions that Ex. B20 is the last will executed by late G. Thangavel bequeathing 4.00 acres of the land forming
eastern part of the suit property; that the same was executed by Thangavel while he was possessing sound disposing state of mind and the same
was attested in accordance with the provisions of law and that therefore, the same is a genuine and valid Will. Admittedly, the entire extent of 5.84
acres comprised in S. No. 542/3 in Alandurai Village, Coimbatore Taluk, Coimbatore Registration District and Thondamuthur Sub Registration
District, was purchased by Thangavel under a sale deed dated 02.04.2002 registered as document No. 906/2002 on the file of SRO,
Thondamuthur. Certified copy of the said sale deed has been produced as Ex. A2. Apart from the admission that the suit property was the
separate property of Thangavel, Ex. A2 also clearly shows that the same was the self-acquired property of Thangavel. Hence, Thangavel had
every right to make a bequest in respect of the said property in favour of the person of his choice. Ex. B20-will was executed on 07.04.2004. It
came into effect on the death of Thangavel on 10.04.2004. The 4th defendant Jeeva, being the sole legatee under the Will, became the absolute
owner of the property bequeathed therein, namely 4.00 acres of land forming the eastern part of the total extent of 5.84 acres comprised in survey
No. 542/3 in Alandurai Village, Coimbatore Taluk, Coimbatore Registration District and Thondamuthur Sub Registration District. Apart from the
fact of the fourth defendant becoming entitled to the said property, it is clearly admitted by PW. 1 and DW. 1 in their evidence that the said 4.00
acres of land has been encompassed by a fence leaving the remaining 1.84 acres and the same was enjoyed as a separate plot from the above said
remaining extent. The 4th defendant Jeeva had also been granted patta. The patta pass-book issued in her name has been produced as Ex. B30.
Ex. B18 is nothing but a copy of Ex. B30.
37. However, the 4th defendant seems to have created a document styled as family arrangement with her sisters. Such a family arrangement deed
dated 26.05.2004 is not a registered one and on the other hand, they have got the document notarised. Even the original has not been filed and a
notarised xerox copy of the same has been filed. The said document seems to have been created on the apprehension that the plaintiff and
defendants 1 to 3 might come with a claim in respect of the said property. In addition, the same has also been executed in order to show that the
remaining property comprised in the very same survey number, which was not covered by Ex. B20-Will, had already been sold by G. Thangavel
while he was alive. The said copy of the family arrangement dated 26.05.2004, marked as Ex. B31, shall not be admissible. Even otherwise, it is
the admitted case of the parties that the entire extent of 5.84 acres comprised in the suit survey number was purchased in the name of Thangavel
under a sale deed dated 02.04.2002 marked as Ex. A2. It is also the case of the defendants 4 to 6 and the defendants 7 to 9 that out of the said
property, 4.00 acres had been bequeathed to the 4th defendant Jeeva under the Will and she became the absolute owner of the 4.00 acres of
land, which forms part of the suit property. The same has now been purchased by the 9th defendant Vinayakamurthy (appellant in S.A. Nos. 1080
and 1081 of 2009) under Ex. B29-sale deed dated 31.12.2004. It is also obvious from the documents produced as Exs. B32 to B34 that, the 4th
defendant has brought about a consent decree and a document styled as family arrangement in collusion with her sisters, in an attempt to counter
any possible claim that may be made by the plaintiff and defendants 1 to 3 regarding the 4.00 acres of land bequeathed to her under Ex. B20-Will.
The said arrangement was made to claim that all of them contributed towards the sale consideration and hence all the sisters of the 4th defendant
were entitled to the said property even though the suit property had been purchased in the name of Thangavel. The sisters of the 4th defendant
seem to have filed a suit in O.S. No. 1829/2004 as a collusive suit to show that the property was in their possession, with the intention of grabbing
the entire extent of the property and take the entire extent beyond the reach of the plaintiff and defendants 1 to 3, since the Will had covered only
4.00 acres out of 5.84 acres. Exs. B32 to B34, namely the Consent Memo filed by the 4th defendant and the judgment and decree passed in O.S.
No. 1829/2004, will clearly show that the suit was filed as a suit for injunction on 15.06.2004 and the 4th defendant Jeeva filed the Consent
Memo on 25.06.2004 and the same was recorded and the suit was decreed on 02.07.2004. The same will show that it was a collusive decree. It
should also be noticed that such a claim of the sisters of the 4th defendant Jeeva is hit by the provisions of the Benami Transaction (Prohibition)
Act, 1988 and the plea made by them was nothing but one based on their claim that the property had been purchased benami in the name of
Thangavel. Such a plea is barred u/s 4 of the said Act.
38. Be that as it may, we have seen that deceased Thangavel himself made Ex. B20 dated 07.04.2004 as his last will bequeathing 4.00 acres out
of 5.84 acres of land comprised in S.F. No. 542/3, which is shown as the suit property in the present suit, in favour of 4th defendant Jeeva and on
the death of Thangavel, the 4th defendant became the absolute owner of the 4.00 acres of land forming part of the suit property. Even though an
attempt had been made to show that the property belonged to the sisters of the 4th defendant by producing Exs. B31 to B34, the property came
to be sold to the 9th defendant Vinayakamurthi under Ex. B29-sale deed dated 30.12.2004. No doubt the sisters of the 4th defendant would not
have a transferable title in respect of the 4.00 acres of land covered by the Will. However Ex. B29-sale deed was executed by the 4th defendant
along with her sisters. Therefore, the 9th defendant Vinayakamurthi has acquired a clear title in respect of the 4.00 acres of land covered by Ex.
B20-will. In respect of the said 4.00 acres of land, neither the plaintiff nor the defendants 1 to 3 can claim any right or title as non-testamentary
legal heirs of Thangavel, since it was covered by the last Will and testament of G. Thangavel marked as Ex. B20, which is found to be genuine and
valid. Third substantial question of law framed in S.A. No. 1080 and 1081 of 2009 is answered accordingly holding that the 9th defendant
Vinayakamurthi/appellant in S.A. Nos. 1080 and 1081 of 2009 has derived a valid title under Ex. B29-Sale Deed and that the appellate court has
committed an error in law in not recognising the title of Vinayakamurthi derived under Ex. B29-Sale Deed in respect of 4.00 acres of land forming
eastern part of the suit property.
39. ""In the absence of knowledge of the death of the principal on the date of registration, whether the lower appellate court is right in holding that
the sale is invalid?"" is the only substantial question of law framed in S.A. No. 755 of 2009. In fact the above substantial question of law is
somewhat a modified question framed and incorporated by the 7th and 8th defendants/appellants in S.A. No. 755/2009. The exact question
framed and incorporated by them in the grounds of appeal is as follows:
In the absence of proof of knowledge or proof of death of the Principal on the date of registration, is the Learned District Judge right in holding that
the sale is invalid, especially when the purchaser being a bona fide purchaser and the provisions of Sec. 226 of Contract not only validates but also
binds the Principal?
The said question has been formulated and projected on a misconception that there was no proof of the death of the Principal, namely Thangavel
on the date of the registration of the sale deeds marked as Exs. B22 and B23. But it is an admitted fact that Thangavel died on 10.04.2004. The
death certificate has been produced as Ex. B13. Therefore, the above said question projected as a substantial question of law by the defendants 7
and 8 (appellants in S.A. No. 755/2009) is not at all a substantial question of law. If that part in the question formulated by the defendants 7 and 8
is omitted and the remaining part alone is vacant, the same shall be recognised as substantial question of law. The case projected by the defendants
7 and 8 is that though the Principal Thangavel had died on 10.04.2004, sale deeds came to be executed on 08.04.2004 and at the time of
presentation of the same for registration on 12.04.2004, defendants 7 and 8 did not have the knowledge of the death of Thangavel. As pointed out
supra, those sale deeds were ante-dated to show that the sale deeds were executed while Thangavel was alive and registered after the death of
Thangavel. If at all the sale deeds had been executed on 08.04.2004 itself, what made the purchasers therein, namely defendants 7 and 8, refrain
from getting the sale deed registered on the same day has not been explained. It has also been pointed out supra that the principal was very much
alive and was able to go over to the Registrar''s office to register the will on 07.04.2004. If at all he had intended to sell the property to defendants
7 and 8 he could have very well executed sale deeds then and there itself. The lower appellate court, on proper appreciation of pleading and
evidence and proper application of principles of law, has held in clear terms that such sale deeds marked as Exs. B22 and B23 are not valid and
they do not convey a valid title to defendants 7 and 8. Hence the finding of the lower appellate court holding that the sale deeds marked as Ex.
B22 and B23 are not valid and will not affect the rights of Thangavel''s non-testamentary legal heirs, namely plaintiff, defendants 1 to 3 and
defendants 5 and 6 does not deserve interference and the same deserves confirmation. The question projected as substantial question of law in
S.A. No. 755/2009 is answered accordingly.
40. ""Whether the first appellate court is correct in holding that the appellants 2 and 3 are the illegitimate children of the deceased Thangavel?"",
Whether the courts below are correct in declaring that the appellant and respondents 5 and 6 are not the legal heirs of the deceased Thangavel in
view of long cohabitation of the appellant and the deceased Thangavel?"" and "" Whether the allotment of a share to the respondents 7 and 8
(defendants 5 and 6) is based on a perverse finding regarding the factum of marriage between Thangavel and Jeeva and hence not sustainable in
law?"" are respectively the third and second substantial questions of law framed in S.A. No. 435/2010 and 436/2010 and the substantial question
of law framed in Cross Objection. So far as the remaining 1.84 acres of land is concerned, as pointed out supra, late G. Thangavel died intestate
and the rules governing intestate succession shall apply, because there is no residuary clause making the 4th defendant or any one else as residuary
legatee in respect of the properties not specifically mentioned in the Will. The 4th defendant is not a non-testamentary legal heir of Thangavel, since
her marriage with Thangavel was a void one. The first defendant and the children of Thangavel born to them, namely the plaintiff and defendants 2
and 3 and also the children of Thangavel born through the 4th defendant Jeeva, namely the defendants 5 and 6 are the non-testamentary legal heirs
of Thangavel in respect of 1.84 acres in the suit S.F. No. 542/3, not covered by the Will. All the above said persons will be entitled to equal
shares as per the rule of succession provided under the Hindu Succession Act and each one of them will get 1/6th share. At the cost of repetition,
it is pointed out that the 4th defendant in collusion with her sisters, chose to create documents in the form of Exs. B31 to B34 to deny the shares of
the plaintiff and the defendants 1 to 3 even in respect of that 1.84 acres. Apart from making such an attempt, they have also created documents to
show as if the 1.84 acres of land forming part of the suit property, was sold to defendants 7 and 8 during the life time of Thangavel. They have
created Ex. B21 dated 16.03.2004 as if late Thangavel had executed a Power of Attorney in favour of one A.L. Saravanan on 01.03.2004 in
respect 1.84 acres in the suit property and by the authority given under the said deed of Power of Attorney, the said Saravanan entered into an
agreement with R. Srinivasan/7th defendant for the sale of 1.00 acre out of 1.84 acres under Ex. B21, pursuant to which, Ex. B22 sale deed was
executed on 08.04.2004. Regarding the remaining 84 cents, another sale deed was executed in favour of A. Thiagarajan/8th defendant, under Ex.
B23. Ex. B21-sale agreement is an unregistered one. Ex. B22 and Ex. B23 deeds are dated 08.04.2004. Though they were allegedly executed on
08.04.2004, they were presented for registration only on 12.04.2004 and were registered on 15.04.2004. Thangavel died on 10.04.2004 itself.
The deed of power of attorney allegedly executed by Thangavel in favour of Saravanan has not been produced. Even if it is assumed that
Thangavel would have executed such a deed of Power of Attorney, the same became ineffective and the agency came to be terminated by the
death of the Principal, namely Thangavel. Thereafter the agent could not have acted on behalf of the principal. The very fact that the sale deeds
were dated two days prior to the death of Thangavel and they came to be presented for registration two days after the death of Thangavel will
show that the sale deeds were antedated. When Thangavel was very much able to come to the Registrar''s office to execute the Will and get it
registered on 07.04.2004, he himself could have executed the sale deeds on 08.04.2004 and got it registered. Therefore, Ex. A22 and A23 sale
deeds under which defendants 7 and 8 claim title to 1 acre and 84 cents respectively out of the suit property are not valid and they shall not be
binding upon the non-testamentary legal heirs of Thangavel, namely plaintiff, defendants 1 to 3 and defendants 5 and 6. The courts below have
rightly held that, regarding 1.84 acres out of 5.84 acres shown as the suit property, the deceased Thangavel should be held to have died intestate
and the same had devolved upon his non-testamentary legal heirs, namely plaintiff, defendants 1 to 3 and defendants 5 and 6 in equal proportion.
3rd substantial question of law in S.A. No. 435/2010, 2nd substantial question of law in S.A. No. 436/2010 and substantial question of law in
Cross Objection are answered accordingly.
41. Whether the lower Appellate Court is correct in law in decreeing the suit for injunction when the plaintiff has failed to prove possession and the
appellant and his predecessors in title have produced the revenue records to prove their possession?-is the 2nd substantial question of law framed
in S.A. Nos. 1080 and 1081 of 2009. At the outset it is pointed out that the said question does not arise in view of the fact that the same has been
formulated on the erroneous assumption that the lower appellate court has granted a relief of injunction in respect of the suit property. Even
otherwise the non-granting of the relief of injunction by the lower appellate court cannot be found fault with. We have already seen in the foregoing
discussions that the 4.00 acres of land forming the eastern part of the suit property became the property of the 4th defendant Jeeva as per Ex. B20
and she sold the same to the 9th defendant Dr. Vinayakamurthi under Ex. B29-sale deed dated 30.12.2004. We have also seen that though the
4th defendant might have chosen to create documents to make it appear as if the property belonged to her sisters; that the same being collusive
would not confer any title on her sisters; that Nevertheless the actual title holder, namely the 4th defendant Jeeva and also the others who staked
claim, namely her sisters, have jointly executed Ex. B29-sale deed in respect of that 4.00 acres of land and that the 9th defendant has thus derived
a valid title in respect of 4.00 acres of land. Clear evidence has also been adduced on the side of the contesting defendants to the effect that
separate fence has been put up to the property purchased by him under Ex. B29 and the same is enjoyed as a separate plot from the western
portion having an extent of 1.84 acres. Patta had also been issued in the name of the 4th defendant and subsequently patta was issued in the name
of the 9th defendant on the basis of Ex. B29-sale deed. Apart from the clear evidence, both oral and documentary, adduced by the contesting
defendants to the effect that the 4.00 acres of property forming the eastern part of the suit property is enjoyed as a separate plot enclosed by a
fence, there is also clear and candid admission on the part of the witnesses examined on the side of the plaintiff and the defendants 1 to 3 that the
said property of 4.00 acres is separately enclosed by fence. The same will clearly show that the plaintiff has failed to prove either the title or
possession in respect of the said 4.00 acres of land. Therefore, the prayer for partition and permanent injunction in respect of the 4.00 acres of
land is bound to be rejected. The lower appellate court has failed to consider the above said aspect in proper perspective.
42. So far as the remaining extent of the suit property is concerned, even if it is assumed that the plaintiff is in possession of the said extent of 1.84
acres, his possession would be deemed to be a possession by all the co-sharers and in such an event, he shall not be entitled to claim injunction
against the other co-owners. The prayer for injunction was rightly decided by the trial court. Though the lower appellate court has not made any
detailed discussion regarding the same, it has rightly declined to interfere with the rejection of the prayer for permanent injunction and thus wholly
rejecting the prayer of the plaintiff for permanent injunction in respect of the entire suit property. Therefore, the lower appellate court is right in
wholly rejecting the prayer for permanent injunction. Second substantial question of law in S.A. Nos. 1080 and 1081 of 2009 is answered
accordingly holding that the said question has been formulated on a wrong assumption that the relief of injunction was granted by the lower
appellate court. In fact it is not so and that even otherwise the non-granting the relief of injunction is not erroneous.
43. In view of the foregoing discussions and the findings, this court comes to the conclusion that the lower appellate court was right in allowing the
appeal in part. But, it has committed an error in granting the relief of partition and passing a preliminary decree in respect of the entire extent of suit
property including the separate property of the 4th defendant, which has been purchased by 9th defendant. The lower appellate court has held that
the plaintiff and the defendants 1 to 3 are the legal heirs of late Thangavel. Since such a finding capable of being interpreted to mean that the
plaintiff and defendants 1 to 3 alone were the legal heirs of deceased Thangavel. It needs clarification. The lower appellate court itself has chosen
to rightly declare that each one of them would be entitled to 1/6th share in the suit property. Though the plaintiff had chosen to pray for the division
of the suit property into four equal shares and allot one such share to the plaintiff on the basis of his plea that he and defendants 1 to 3 alone were
the legal heirs of deceased Thangavel entitled to the properties left by Thangavel in equal proportion, the learned lower appellate judge has chosen
to hold that defendants 5 and 6 also legal heirs of Thangavel and each one of them is entitled to a share equal to that of the plaintiff and defendants
1 to 3 and that thus plaintiff, defendants 1 to 3 and defendants 5 and 6 are entitled to 1/6th share each in the properties left by Thangavel. Apart
from that there is a defect in the judgment of the learned lower appellate judge as defendants 5 and 6 have been described as the illegitimate
children of Thangavel. The same has got to be rectified by holding them to be legitimate children born out of void marriage as per section 16 of the
Hindu Marriage Act, 1955. The other finding of the lower appellate court that each one of the following persons, namely the plaintiff, defendants 1
to 3 and defendants 5 and 6, is entitled to 1/6th share in the property left by Thangavel is bound to be confirmed, subject to a rider that the same
shall be confined to the properties regarding which Thangavel died intestate. So far as the properties bequeathed under the will (Ex. B20) is
concerned, the sole legatee 4th defendant alone was the absolute owner and now the 9th defendant having derived title by way of Ex. B29-sale
deed, is the absolute owner, regarding which neither the plaintiff nor the defendants 1 to 3 and 5 and 6 shall be entitled to any share. The lower
appellate court has rightly held that the defendants 5 and 6 were the children born to Thangavel and Jeeva born out of their void marriage and
rightly held that the 5th and 6th defendant shall be entitled to an equal share along with plaintiff and defendants 1 to 3 in the properties of Thangavel
regarding which he had not executed any Will. However, the learned lower appellate judge committed an error in granting a declaration that the
plaintiff and defendants 1 to 3 were the legal heirs of late Thangavel and holding that the 5th and 6th defendant were the illegitimate children of
Thangavel, forgetting that the children born out of void marriages cannot be termed illegitimate as they have been legitimated by Section 16 of the
Hindu Marriage Act, 1955.
In the result, S.A. Nos. 1080 and 1081 of 2009 are allowed. S.A. Nos. 435 and 436 of 2010 are allowed in part. S.A. No. 755/2009 is
dismissed. Cross Objection 45 of 2011 in S.A. No. 755/2009 is also dismissed. The decree passed by the lower appellate court is modified as
follows:
1) The decree of the trial court dated 14.11.2006 dismissing the suit O.S. No. 347 of 2004 in its entirety is set aside;
2) The suit shall stand dismissed in all respects in respect of 4.00 acres of land forming the eastern part of the suit property covered by Ex. B20-
will;
3) There shall be a declaration that the plaintiff and defendants 1 to 3 along with defendants 5 and 6 are the non-testamentary legal heirs of
deceased Thangavel;
4) The prayer for injunction shall stand negatived;
5) There shall be a preliminary decree for partition directing division of 1.84 acres of land forming the western part of the suit property into six
equal shares and allotment of one such share to the plaintiff; and
6) In all other respects, the suit shall stand dismissed;
Parties shall bear their respective cost up to this stage.
***
