'Factum Of Cohabitation & Marriage Can't Be Proved With A Single Photograph Together': Madras High Court

While dismissing an appeal suit filed by a woman claiming 1/7th share for herself and her son in the ancestral property of her deceased husband's family, Madras High Court has underscored that the factum of marriage cannot be inferred from a single photograph where both are seen together.

The single-judge bench of Justice G. Jayachandran added that though the courts should generally 'lean upon legitimacy and frown upon bastardy' [as laid down in Badri Prasad v. Dy. Director of Consolidation and others] it can also not consider a deceased person as responsible for the birth of the minor appellant. Attempts made to obtain the property of a deceased person by claiming parentage must be equally frowned upon, the court remarked.

Before the bench, an appeal suit under Section 96 CPC was filed by submitting that the appellants are the widow and son of one late Sakthivel. They contended that they are the legal heirs of Sakthivel, and therefore, they are legally entitled to 1/7th share in the ancestral property jointly held by defendants who are the brothers, mother and father of the deceased Sakthivel.

"The factum of marriage and long cohabitation are not matters, which can be inferred through a single photograph, where a male and female are seen together. More so, when only the positive is filed without negative and the person, who took the photograph not examined. The Ex.A-1, the photograph is in colour and new...", the court said while clarifying that the photo and the CD that contains the photograph will not be admissible in evidence.

The court also added that the photograph won't be reliable in the absence of proof.

Justice G. Jayachandran then turned to examine the School Transfer Certificate of the second appellant, i.e, the minor, and observed that it was issued with his initial as 'A' instead of 'S' (Sakthivel). As a result, the court sided with the findings of the trial court at Cuddalore and refused to consider the certificate as proof of parentage/marriage:

"...As rightly pointed out by the trial Court, the school certificate [Ex.A-3] issued in the name of A.Aravind without mentioning the father name cannot be taken as proof that the deceased Sakthivel as the father of the second plaintiff. More so, when the first plaintiff herself admits that prior to her marriage with Sakthivel, she got married to another person hailing from Thirunavallur, whose name she has forgotten. However the marriage got dissolved. There is no evidence to corroborate that the earlier marriage got legally dissolved."

Background

Before the High Court as well as the trial court, the appellants submitted that the schedule properties were inherited by Sakthivel's father from Sakthivel's grandfather. Sakthivel died five years before the suit was filed and he is one of the seven coparceners in the schedule property held jointly by the family according to the appellants. Being the legal heirs of Sakthivel, the appellants would be entitled to 1/7th shares upon notional partition, they submitted.

According to the plaintiffs, the defendants' family has evaded the request to partition the property and the mother entered into an agreement in 2010 to sell the property which is the subject matter of the suit to a third party who has been arraigned as the eighth respondent. According to the plaintiffs, the mother was merely a 'name lender' and the property which is the subject matter of the agreement was bought from the surplus funds of the joint family.

On the contrary, the defendant mother submitted that the property was not part of the coparcenary and that the property involved in the sale agreement was purchased by her alone with her independent savings in 1990. To prove that it is her self acquired property, she also produced the registered sale deed. She also clarified that the sale agreement cited by the appellants was not fruitful since the transferee failed to perform his part of the contract.

The mother also submitted that Sakthivel died as a bachelor and the appellants have no right to claim the suit property. Even if the appellants were considered as legal heirs hypothetically, they will have no right over the self acquired property, it was argued.

The trial court had dismissed the suit since the title to the property was in the name of the mother and there was proof that she bought the said property in 1990 for a consideration of Rs 6,000/-. The trial court also observed that the plaintiffs were unable to contradict the content of the registered document with their own documents or their witnesses. The trial court also concluded that there has not been sufficient proof of marriage/ parentage etc in the absence of marriage certificate of the first plaintiff with Sakthivel, birth certificate of the minor and proof of residence to show the plaintiffs and Sakthivel along with other defendants lived jointly

Court's Observations

The court observed that the plaintiffs have failed to discharge the burden of proof that rests upon them to prove that the suit property is in fact ancestral property jointly held by the family.

"...The plaintiffs who plead that it was a Benami transaction should prove that fact which is contrary to a registered document."

The court pointed out that neither the testimonies of appellants' witness nor the documents produced show anything suspicious so as to warrant the High Court's interference in the trial court order

It is also pertinent to note that Ranganathan who was the father of Sakhivel had died during the pendency of the suit. About this aspect, the court noted in the order as below:

"The memo filed on 15/12/2021 to record the appellants as legal heirs of 7th defendant (father) who died nearly 10 years ago is rejected. This plea is unmerited and contrary to the evidence. When the plaintiffs/appellants had not proved that they are legal heirs of Sakthivel, they cannot clandestinely seek the seal of recognition by this Court through this innocuous memo, that they are legal heirs of Ranganathan, the father of Sakthivel".

While dismissing the appeal suit and rejecting the memo filed, the court also imposed Rs 25,000/- as exemplary costs on the appellants/plaintiffs.

Case Title: S. Meena & Anr. v. Sivakumar & Ors.

Case No: A.S.No.900 of 2012

Citation: 2022 LiveLaw (Mad) 94

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