A.S.No.410 of 2007

IN THE HIGH COURT OF JUDICATURE AT MADRAS

RESERVED ON : 10.10.2025

PRONOUNCED ON : 06.01.2026

CORAM

THE HONOURABLE MR.JUSTICE S.SOUNTHAR

A.S.No.410 of 2007

and M.P.Nos.1, 2, 3 and 4 of 2010

and C.M.P.No.5050 of 2023

1.Banumathy

2.Rajiv ... Appellants

vs.

R.Lakshmi Kutty (Died)

1.N.Surendaran

2.Narayanan Ramachandran

3.N.Sobana

4.K.M.Deviamma (Died)

(2

nd

appellant, 5 to 10 and 12 to 14

th

respondent recorded as

Lrs of the deceased R4, as per Memo ordered dated

22.01.2020. Memo recorded.)

5.N.Saraswathi

6.Pankajam

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A.S.No.410 of 2007

7.N.Mallika

8.N.Susila

9.Chitra

10.Vidhya

11.S.Meera

12.C.Vinoth

13.C.Manoj

14.C.Lenna

15.C.Chinadurai

16.Susila

17.Palaniammal

18.K.Ganesan

(RR15 to 18 impleaded as party respondents. Vide order of

Court dated 22.01.2020,made in CMP.No.20017 of 2018 in

AS.No.410 of 2007)

19.P.Latha ... Respondents

(Mrs.P.Latha impleaded as 19

th

Respondent vide Court

order dated 03.09.2025 made in CMP.No.641 of 2025 in

A.S.No.410 of 2007)

PRAYER: First Appeal is filed under Section 96 of the Code of Civil

Procedure, to set aside the Judgment and Decree dated 18.12.2006 in

O.S.No.217 of 2004 on the file of Additional District Judge (Fast Track

Court), Namakkal.

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A.S.No.410 of 2007

For Appellants : Mr.R.Natarajan

For R1 and R19 : Mr.V.Ashok Kumar

for M/s.Su.Srinivasan

For R9 and R10 : M/s.Gopika Nambiar

for M/s.Govind Chandrasekar

For R15 and R18 : Mr.S.N.Subramanian

For R4 : Died

For R2 to R5, R6 to R8

and R11 to R14 : No Appearance

J U D G M E N T

The unsuccessful defendants 7 and 9 are the appellants herein.

2. The 1

st

respondent, his deceased mother-R.Lakshmi Kutty and

respondents 2 and 3 have filed a suit for partition against the appellants and

other respondents. Pending suit, R.Lakshmi Kutty died and the respondents

1 to 3 were recorded as her legal representatives. The suit was decreed by

the Trial Court by granting 10/36 share in favour of the 1

st

respondent/2

nd

plaintiff, 1/36 share in favour of 3

rd

respondent. The suit was dismissed in

respect of 2

nd

respondent. Aggrieved by the said judgment and decree, the

appellants have come before this Court.

3. For the sake of convenience, the parties are referred to as per their

rank in the suit.

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A.S.No.410 of 2007

4. As per the plaint averment, the deceased 1

st

plaintiff-R.Lakshmi

Kutty was the second wife of deceased 1

st

defendant-Narayanan Nambiar.

The plaintiffs 2 to 4 are his sons and daughter. The 3

rd

plaintiff was born to

1

st

plaintiff through her 1

st

husband. The plaintiffs 2 and 4 were born to her

through 1

st

defendant. The 2

nd

defendant is the 1

st

wife of deceased 1

st

defendant. The defendants 3 to 6 are daughters of defendants 1 and 2. It is

also not in dispute that the defendants 1 and 2 also had pre-deceased sons

Velayutham and Chandran. The defendants 7 to 10 are wife and children of

said Velayutham. The defendants 11 to 14 are wife and children of said

Chandran.

5. It was the case of the plaintiffs that the 1

st

plaintiff-R.Lakshmi

Kutty got married to 1

st

defendant in the year 1950 as his second wife. After

marriage, the 1

st

plaintiff joined 1

st

defendant and lived in matrimonial house

in Namakkal. During October-1951, the 1

st

plaintiff got employment as

Maternity Assistant in Municipal Hospital in Rasipuram. During weekends

and holidays, the 1

st

plaintiff would go over to Namakkal and reside with

defendants 1 and 2. The 1

st

plaintiff handed over her entire savings and

salary to her husband-1

st

defendant. The 2

nd

plaintiff acquired B.Sc., degree

and also passed Higher Grade in English and Tamil Typewriting. At the

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A.S.No.410 of 2007

instance of 1

st

defendant, he discontinued his studies and helped him in

running a hotel business at D.No.155, Thillai Puram Main Road, Namakkal.

The 2

nd

plaintiff also runs a Job typing center in a small portion in the hotel

premises and thus, contributed to the wealth of the family. From the joint

earnings of plaintiffs 1 and 2 and 1

st

defendant, several properties were

acquired for the benefit of the joint family consisting of plaintiffs 1 and 2,

defendants 1 and 2 and deceased Velayutham and Chandran. The documents

were taken in the name of 2

nd

Plaintiff, Velayutham, Chandran and 2

nd

defendant. Since the 1

st

defendant made representation that building in

D.No.154, Thillaipuram Main Road, Namakkal could be treated as exclusive

property of 2

nd

plaintiff, he executed a Release Deed in favour of the

Velayutham and Chandran in respect of property in Item No.7 (suit ‘B’

schedule). A portion of the said property was also sold to 2

nd

plaintiff. After

death of Velayutham and Chandran, the 1

st

defendant and 2

nd

defendant filed

a collusive suit against the other defendants for partition and obtained a

collusive decree and the same would not bind the plaintiffs. Since Suit 'A'

schedule and 'C' schedule properties were purchased out of joint contribution

made by the plaintiffs 1 and 2, the suit was laid for partition.

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A.S.No.410 of 2007

6. The appellants/defendants 7 and 9 filed a written statement denying

the factum of marriage between 1

st

plaintiff and 1

st

defendant. They also

contended that the plaintiffs 1 and 2 were not members of their joint family.

It was also stated that the properties purchased in the name of 2

nd

defendant,

Velayutham and Chandran, were their own joint property and the same could

not be treated as joint family property. It was also stated that properties

purchased in the name of Velayutham and Chandran cannot be claimed by

the plaintiffs as per the provisions of the Benami Transactions (Prohibition)

Act, 1988. In nutshell, by denying the claim of the plaintiffs that they were

also members of the joint family, the defendants resisted the suit.

7. The Trial Court based on the pleadings of the parties, formulated

the following issues for consideration:-

1) Kjy; gpujpthjp. Kjy; thjpia jpUkzk; bra;J bfhz;lhuh? ,y;iyah?

2) jhth brhj;Jf;fs; 1. 2 thjpfs; kw;Wk; Kjy; gpujpthjpapd; bghJ

tUkhdj;jpypUe;J th';fg;gl;l brhj;Jf;fsh?

3) ,e;j jhthit epiyepWj;j. ehkf;fy; cjtp mkh;t[ ePjpkd;w mry; tHf;F

vz;/388-2002y; Twg;gl;Ls;s jPh;g;ghiz jilahf cs;sjh?

4) thjpfs; nfhhpa[s;s ghpfhunkh my;yJ khw;W ghpfhunkh mth;fSf;F

rpj;jpj;Js;sjh?

5) ntW vd;d ghpfhu';fs;?

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A.S.No.410 of 2007

8. Before the Trial Court, on behalf of the plaintiffs, the 2

nd

plaintiff

was examined as PW.1. Third party neighbours were examined as PW.2 and

PW.3. The cousin of 1

st

defendant was examined as PW.4. 56 documents

were marked as Exs.A1 to A56. On behalf of the defendants, 2

nd

defendant

was examined as DW.1 and 9

th

defendant-grandson of defendants 1 and 2

was examined as DW.2. No documents were marked on the side of the

defendants.

9. The Trial Court on appreciation of oral and documentary evidence

came to the conclusion that the marriage of the 1

st

plaintiff with the 1

st

defendant and legitimacy of the 2

nd

and 4

th

plaintiffs were proved. The Trial

Court also concluded that suit properties were purchased out of joint

contribution made by plaintiffs 1 and 2 also and hence, decreed the suit by

granting preliminary decree for partition as mentioned above. Aggrieved by

the same, the defendants 7 and 9 have come before this Court.

10. The learned counsel appearing for the appellants would submit

that in the absence of any direct evidence to prove the marriage of

1

st

plaintiff with the 1

st

defendant, the Trial Court committed an error in

concluding that the 1

st

plaintiff was legally married wife of 1

st

defendant. It

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A.S.No.410 of 2007

was also stated that after coming into force of the Bigamy Prohibition Act,

1949, the marriage between the 1

st

plaintiff and 1

st

defendant could not be

treated as a valid one.

11. It was also submitted on behalf of the appellants that when the

marriage between the 1

st

plaintiff and 1

st

defendant was not established, the

plaintiffs 2 and 4 cannot be treated as legitimate children of 1

st

defendant and

therefore, they could not be treated as members of the joint family. Thirdly,

it was contended on behalf of the appellants that the compromise decree

passed in O.S.No.388 of 2002 shuts out the present claim of the plaintiffs

and therefore the suit is liable to be dismissed.

12. The learned counsel appearing for the respective respondents

would submit that the 1

st

defendant in his affidavit filed before the Court in

Ex.A53 clearly admitted that the 1

st

plaintiff as his wife and plaintiffs 2 and

4 as his children. The said statement is relevant under Section 32 (5) of the

Indian Evidence Act, 1872. Therefore, the Trial Court was justified in

coming to the conclusion that the 1

st

plaintiff was the legally wedded wife of

1

st

defendant and the plaintiffs 2 and 4 were his children. It was also

submitted that various official documents marked as exhibits on behalf of

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A.S.No.410 of 2007

the appellants would indicate that the 1

st

defendant received the family

pension of the 1

st

plaintiff. The learned counsel also by taking this Court to

the evidence of PW.1 to PW.4 submitted that their evidence clinchingly

proved that the suit properties were purchased out of joint contribution made

by plaintiffs 1 and 2. Therefore, the learned counsel appearing for the

respondents sought for dismissal of the appeal by confirming the findings

rendered by the Trial Court.

13. On the basis of the pleadings of the parties and submission made

by the learned counsel appearing for either side, the following points are

arising for consideration:-

(a) Whether the 1

st

plaintiff and the 1

st

defendant could be treated as

legally wedded couple?

(b) Whether plaintiffs 2 and 4 are legitimate children of 1

st

defendant?

(c) Whether the plaintiffs are entitled to decree for partition?

Discussion on Point Nos. (a) to (c):

14. As per the pleadings, the plaintiffs claimed that the 1

st

plaintiff

was the second wife of 1

st

defendant. There is no dispute that 2

nd

defendant

was the first wife of 1

st

defendant. As per the plaint, the marriage between

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A.S.No.410 of 2007

the 1

st

plaintiff and 1

st

defendant had taken place in the year 1950. The

factum of marriage between the 1

st

plaintiff and 1

st

defendant was seriously

disputed by the defendants in the written statement. Ex.A53, is the certified

copy of affidavit filed by the deceased 1

st

defendant before the District

Court, Namakkal in O.S.No.388 of 2002. In his own affidavit, he had

categorically stated that he married 1

st

plaintiff as his second wife and out of

the said wedlock, the plaintiffs 2 and 4 were born to him. The statement on

oath made by deceased 1

st

defendant is relevant one and the same had been

taken into consideration as admission of existence of relationship in the light

of Section 32(5) of the Indian Evidence Act, 1872. Taking into

consideration, the statement on oath made by 1

st

defendant in his sworn

affidavit and also the evidence of independent witnesses, who were

examined as PW.2 to PW.4, the Trial Court came to the conclusion that the

factum of marriage between the 1

st

defendant and 1

st

plaintiff was proved.

However, We have to see even assuming the factum of marriage between the

1

st

defendant and 1

st

plaintiff was proved whether it could be treated as a

lawful marriage.

15. It is an admitted fact that the marriage of 1

st

plaintiff and

1

st

defendant had taken place in the year 1950. The Madras Hindu (Bigamy

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A.S.No.410 of 2007

Prevention and Divorce) Act, 1949, came into force on 23

rd

March, 1949.

Section 4(1) of the said Act reads as follows:-

“4.(1) Notwithstanding any rule of law, custom or usage

to the contrary, any marriage solemnized after the

commencement of this Act between a man and a woman either

of whom has a spouse living at the time of such solemnization

shall be void, whether the marriage is solemnized within or

outside the Province of Madras:

Provided that a man or woman whose marriage has

been dissolved by a final order of a Court of competent

jurisdiction under Section 5 or under any other law for the time

being in force, or in accordance with any custom or usage

permitting of divorce, may solemnize a valid marriage with

another, after the expiry of six months from the date of such

final order or from the date on which the marriage was

dissolved in accordance with such custom or usage, as the case

may be.

Explanation.-An order shall be deemed to be a final

order within the meaning of the above proviso, if no appeal lies

against such order or if the time allowed for filing an appeal

against such order has expired without an appeal having been

filed.”

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A.S.No.410 of 2007

16. The above said provision would make it clear that a marriage

between a man and woman either of whom has a spouse living at the time of

such solemnisation shall be void. Even as per the pleading of the plaintiffs,

the 1

st

plaintiff was only the second wife of 1

st

defendant and 2

nd

defendant

was the first wife of 1

st

defendant. Therefore, it is clear when the marriage

between the 1

st

plaintiff and 1

st

defendant had taken place in the year 1950,

the 1

st

defendant had a spouse living namely the 2

nd

defendant. Therefore, by

virtue of Section 4(1) of the Madras Hindu (Bigamy Prevention and

Divorce) Act, 1949, the marriage between the 1

st

plaintiff and 1

st

defendant

shall be treated as a void marriage. Even if the marriage is held to be void by

virtue of above said provision, the plaintiffs 2 and 4, who were born to

1

st

plaintiff and 1

st

defendant under the void marriage are entitled to the

legitimacy conferred under Section 16(1) and (2) of Hindu Marriage Act,

1955. Therefore, the plaintiffs 2 and 4 are entitled to a share in the property

of the 1

st

defendant as per Section 16(3) of Hindu Marriage Act, 1955.

17. Ex.A50 is the certified copy of the suit for partition filed by the

defendants 1 and 2 in O.S.No.388 of 2002 against other defendants treating

the suit property as a joint family property of all the defendants. Ex.A51 is

the certified copy of the compromised final decree passed in the said suit.

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A.S.No.410 of 2007

Ex.A52 is the certified copy of the plaint in O.S.No.595 of 2003 filed by the

defendants 1 and 2 against other defendants seeking to set aside the decree

passed in O.S.No.388 of 2002 on the ground that there was inequitable

distribution of property. Ex.A53 is the affidavit filed by 1

st

defendant before

the Court, wherein he admitted that 1

st

plaintiff was his second wife and

plaintiffs 2 and 4 were his children born through 1

st

plaintiff. Therefore, it is

clear that defendants 1 and 2 clearly admitted the suit properties were

properties of joint family consisting the 1

st

defendant and his sons namely

deceased Velayutham and Chandran. The other defendants, who were party

to the earlier suit in O.S.No.388 of 2002 admitting the suit properties as joint

family properties entered into a compromise for allotment of shares as per

the compromise decree. Ofcourse, the allotment made under compromise

decree was later questioned by defendants 1 and 2 by filing a separate suit

on the ground there was inequitable distribution of properties.

18. Be that as it may, the fact remains, the defendants categorically

admitted the suit properties were treated as joint family properties among

themselves. In such case, as the children born to 1

st

defendant under a void

marriage, the plaintiffs 2 and 4 are entitled to share in the property of

1

st

defendant. First of all, the 1

st

defendant's share in the joint family property

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A.S.No.410 of 2007

has to be ascertained and in his share, the plaintiffs 2 and 4 are entitled to

equal share along with other children of 1

st

defendant through 2

nd

defendant.

19. Ex.A56-Death Certificate of 1

st

defendant would establish he died

on 09.09.2004 prior to coming into force of Hindu Succession Amendment

Act (Act 39 of 2005). Therefore, we have to ascertain the interest of 1

st

defendant in the coparcenary of his family. The plaintiffs 2 and 3 being

children born to 1

st

defendant under a void marriage cannot claim that that

they are members of the coparcenary. At the most, they are only entitled to

the benefit of Section 16 of the Hindu Marriage Act and can claim a share in

the share of their father. In this regard it would be appropriate to refer to the

judgment of the Apex Court in Revannasiddappa and another vs.

Mallikarjun and others reported in 2023 (10) SCC 1. The relevant

observation reads as follows:-

“61. … … … … In the distribution of the property of the

deceased who has died intestate, a child who is recognised as

legitimate under sub-Section (1) of Section 6 of the HMA 1955

or under sub-Section (2) of Section 16 would be entitled to a

share. Since this is the property that would fall to the share of

the intestate after notional partition, it belongs to the intestate.

Under Section 16(3), a child conferred with legitimacy is

entitled to the property of their parents only, and does not have

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A.S.No.410 of 2007

any rights to or in the property of a person other than the

parents. Hence, where the deceased has died intestate, the

devolution of this property must be among the children -

legitimate as well as those conferred with legitimacy by the

legislature under Section 16(1) and 16(2) of the HMA 1955. …

… … ...”

20. The interest of their father (1

st

defendant) in the coparcenary shall

be determined based on explanation to Section 6 of Hindu Succession Act,

1956. The 1

st

defendant admittedly died prior to coming into force of Act 39

of 2005 and Section 6 of Hindu Succession Act as its stood on the date of

death of 1

st

defendant reads as follows:-

“6.Devolution of interest in coparcenary property.-

When a male Hindu dies after the commencement of this Act

having at the time of his death an interest in a Mitakshara

coparcenary property, his interest in the property shall devolve

by survivorship upon the surviving members of the coparcenary

and not in accordance with this Act:

Provided that, if the deceased had left him surviving a

female relative specified in class I of the Schedule or a male

relative specified in that class who claims through such female

relative, the interest of the deceased in the Mitakshara

coparcenary property shall devolve by testamentary or intestate

succession, as the case may be, under this Act and not by

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A.S.No.410 of 2007

survivorship.

Explanation 1. – For the purpose of this section, the

interest of a Hindu Mitakshara coparcener shall be deemed to

be the share in the property that would have been allotted to

him if a partition of the property had taken place immediately

before his death, irrespective of whether he was entitled to

claim partition or not.

Explanation 2. – Nothing contained in the proviso to

this section shall be construed as enabling a person who has

separated himself from the coparcenary before the death of the

deceased or any of his heirs to claim on intestacy a share in the

interest referred to therein.”

21. In the case on hand, the 1

st

defendant died on 09.09.2004 prior to

coming into force of Act 39 of 2005 leaving behind Class-I Female Heirs

namely defendants 2 to 6, his wife and daughters. Therefore, his interest in

the coparcenary would not devolve by  survivorship, but it will devolve by

testamentary or intestate succession. It is nobody’s case that 1

st

defendant

left a Will, therefore, the property of 1

st

defendant will devolve as per

provisions of Section 8 among his heirs. By virtue of Section 16(3) of Hindu

Marriage Act, the plaintiffs 2 and 4 in their capacity as children born to 1

st

defendant under void marriage are also entitled to equal share along with

other children of 1

st

defendant and his surviving wife. On the date of death of

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A.S.No.410 of 2007

1

st

defendant, he is entitled to 1/7

th

share in the suit properties along with her

daughters defendants 3 to 6 and legal heirs of pre-deceased sons namely

defendants 7 to 14. Though 1

st

defendant died prior to coming into force of

Act 39 of 2005, in view of the judgment of the Apex Court in Vineeta

Sharma vs Rakesh Sharma reported in 2020 (9) SCC 1, Act 39 of 2005 is

retroactive in nature and hence, the daughters are entitled to the benefit of

the same. Hence, I hold the 1

st

defendant's interest in coparcenary shall be

fixed as 1/7

th

share. On the date of his death, he was survived by his first

wife/2

nd

defendant, four daughters, namely defendants 3 to 6, legal

representatives of pre-deceased first son Velayutham namely defendants 7 to

10 and legal representatives of predeceased son Chandran namely

defendants 11 to 14, apart from plaintiffs 2 and 4. Therefore, plaintiffs 2 and

4 are entitled to 1/9

th

share each in the 1/7

th

share of the 1

st

defendant. In all

plaintiffs 2 and 4 are entitled to 1/63 share each in the suit property.

Likewise, the 2

nd

defendant is also entitled to 1/63 share in the suit property.

The daughters of 1

st

defendant, defendants 3 to 6 are entitled to 10/63 share

each. The defendants 7 to 10 in their capacity as legal representatives of

predeceased son-Velayutham collectively entitled to 10/63 share each.

Likewise, the defendants 11 to 14 in their capacity as legal representatives of

predeceased son-Chandran collectively entitled to 10/63 share each.

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A.S.No.410 of 2007

22. The Trial Court committed an error in treating the plaintiffs 2 and

4 as member of the joint family by over looking the legal position that

children born to 1

st

defendant under void marriage can only claim share in

the property of 1

st

defendant or his interest in the coparcenary. Further, the

Trial Court also did not have the occasion to consider the effect of judgment

of the Apex Curt in Vineeta Sharma case as Trial Court judgment was

delivered prior to the pronouncement of the law in Vineeta Sharma case.

Hence, the Trial Court did not treat the daughters as equal sharers along with

sons of 1

st

defendant. A partition suit is deemed to be pending till passing of

final decree. Hence, the benefit of law laid down in Veneetha Sharma Case

that Act 39 of 2005 is retroactive, will enure to defendants 3 to 6, daughters

of 1

st

defendant. Hence, this Court is inclined to allot equal share to them

along with sons of 1

st

defendant.

23. In view of the above discussion, the judgment and decree passed

by the Trial Court needs modification and it is declared the plaintiffs 2 and 4

are entitled to 1/63 share each in the suit properties.

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24. In Nutshell:-

(i) The First Appeal stands partly allowed and the judgment and decree

passed by the Trial Court is modified by granting 1/63 share each to

the plaintiffs 2 and 4 in the suit properties.

(ii) The Preliminary Decree passed by the Trial Court is modified

accordingly.

(iii) Consequently, the connected miscellaneous petitions are closed.

(iv) In the facts and circumstances of the case, there will be no order as to

costs.

06.01.2026

Index :Yes / No

Speaking order:Yes / No

Neutral Citation:Yes / No

dm

To

The Additional District Court

(Fast Track Court), Namakkal.

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A.S.No.410 of 2007

S.SOUNTHAR, J.

dm

Pre-delivery judgment made in

A.S.No.410 of 2 007

06.01.2026

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