(Prayer in A.S.: Appeal Suit filed under Section 96 of the Code of Civil Procedure, 1908 read with Order XLI Rule 1 of C.P.C., against the Judgment and decree dated 21.01.2019 made in O.S.No.47 of 2006 on the file of the Additional District Judge, (Fast Track Court), Villupuram.

In CMP No.19560 of 2025: This Civil Miscellaneous Petition is filed under Order XLI Rule 27 read with Sections 107 & 151 of C.P.C., to allow the petitioners/appellants to produce additional document-Death Certificate of Mr.Mahalingam dated 09.08.2004 and also let in additional oral evidences of Mrs.Savithri Ammal, Mr.A.Devanadhan and Mr.S.Manangatti)

1. This appeal is directed against the judgment and decree dated 21.01.2019, passed in O.S.No.47 of 2006 on the file of the Additional District Judge (Fast Track Court), Villupuram, dismissing the suit for partition. C.M.P.No.19560 of 2025 has been filed by the appellants under Order XLI Rule 27 of the Code of Civil Procedure to admit an additional document and to permit the examination of three witnesses on appeal.

2. The appellants were the plaintiffs. The respondents were defendants 2 and 3. The original first defendant, Mrs.Marimuthu, died on 20.01.2008 during the pendency of the original suit. Subsequently, defendants 2 and 3 were brought on record on the strength of the Will relied upon by them. For convenience, the parties are referred to by their rank before the trial Court.

3. The Plaintiffs’ case in brief: The plaintiffs pleaded that Late. Sundarathirusangu first married the 1st defendant, Mrs.Marimuthu. As that marriage was childless, he later married the plaintiffs’ mother, Savithri Ammal, in accordance with community custom, with Mrs.Marimuthu's knowledge and consent. They further pleaded that Sundarathirusangu and Savithri Ammal lived as husband and wife for about twenty-five years and that the plaintiffs were born of that relationship.

4. According to the plaintiffs, Savithri Ammal and the plaintiffs lived in Alampadi. Sundarathirusangu stayed with them for a substantial part of each month until his death on 21.04.2003. They stated that he brought them up, paid for their education, publicly treated Savithri Ammal as his wife, and acknowledged the plaintiffs as his daughters.

5. The plaintiffs further pleaded that Sundarathirusangu purchased the house site and the adjoining vacant sites at Door No. 11, Bhajanai Koil Street, Arakandanallur, and constructed the house using his earnings. They also alleged that he left 75 sovereigns of gold ornaments, deposits and household movables. Treating Mrs.Marimuthu and the two plaintiffs as his heirs, they sought a division into three shares and the allotment of two shares to the two plaintiffs.

6. After Sundarathirusangu's death, Savithri Ammal objected to Mrs.Marimuthu receiving the pension and other monetary benefits. A legal notice dated 25.06.2003 demanded a partition. After the date of the suit, the first defendant died on 20.01.2008, and it is said that he executed a will in favour of defendants 2 and 3; accordingly, they are impleaded as the heirs and legal representatives of the deceased, Mrs.Marimuthu, the first defendant. The plaintiffs also disputed the execution and validity of the will executed by the first defendant in favour of defendants 2 and 3. Accordingly, the plaintiffs prayed for permission to sue as indigent persons; a preliminary decree dividing the A and B Schedule properties into three equal shares by metes and bounds; a final decree allotting the plaintiffs collectively a two-thirds share; separate possession of their two- thirds share in the A Schedule house property; delivery of their two-thirds share in the B Schedule movables, including assets, money and bank deposits allegedly belonging to Sundarathirusangu; and costs of the suit.

7. Defendants’ case in brief: The first defendant Mrs.Marimuthu denied that any marriage had taken place between Sundarathirusangu and Savithri Ammal. She stated that Savithri Ammal was married to Mahalingam of Alampadi and that the plaintiffs were neither the children nor the heirs of Sundarathirusangu. Mrs.Marimuthu pleaded that she married Sundarathirusangu on 30.06.1957 in accordance with Hindu rites and that they lived together at Arakandanallur until his death.

8. Mrs.Marimuthu relied on the succession certificate issued under S.O.P. No. 7 of 2003 in respect of the specified monetary benefits. She claimed that the house property belonged to her under the registered sale deed dated 20.06.1962 and that she had constructed the house using a housing loan she obtained and repaid. She denied the existence of the alleged jewels and other movable assets.

9. Defendants 2 and 3 pleaded that Mrs.Marimuthu executed a registered Will dated 10.04.2006, registered as Document No.16 of 2006. The Will revoked an earlier Will dated 27.03.2006 and bequeathed her properties and the interest she inherited from her husband to defendants 2 and 3. They also stated that the house and the vacant sites were separate items, each with a different survey number. While the house stood in Mrs.Marimuthu's name, the two vacant sites were registered in the name of Sundarathirusangu.

10. The trial Court ultimately considered whether the marriage between Savithri Ammal and Sundarathirusangu was proved; whether the Will dated 10.04.2006 was genuine and duly executed; whether the plaintiffs were entitled to one-third share each; whether the valuation and court fee were proper; and the relief to be granted.

11. The plaintiffs examined themselves as P.Ws.1 and 2 and marked Exs.A1 to A23. The exhibits include grievance petitions, a legal notice, photographs, title documents, certificates and identity records, school and community records, electoral material, letters attributed to Sundarathirusangu, and the death certificates of Sundarathirusangu and Mahalingam. Defendants examined second defendant as D.W.1 and an attesting witness to the Will as D.W.2, and marked Exs.B1 to B23. These exhibits comprised registered sale deeds, a succession certificate, the registered Will, housing loan sanction and repayment records, notices, patta, and the obituary notice of Mrs.Marimuthu.

12. The trial Court held that the plaintiffs had failed to prove the alleged marriage. It relied on the lack of a specific date and place of marriage, the non-examination of Savithri Ammal or any independent witness, and Ex.B22 patta, which described Savithri Ammal as the wife of Mahalingam. It accepted the Will on the evidence of D.W.2, held that Section 16 of the Hindu Marriage Act was inapplicable without proof of marriage, upheld the valuation under Section 37(2) of the Tamil Nadu Court-Fees and Suits Valuation Act, and dismissed the suit without costs, directing the recovery of the court fee from the plaintiffs.

13. Aggrieved by the Trial Court's judgment and decree, the plaintiffs have preferred this appeal. In the memorandum of appeal, the plaintiffs submit that the Trial Court failed to give proper weight to the family photograph, legal heir and income certificates, school and community records, identity and electoral records, and the letters attributed to Sundarathirusangu. They contend that these documents demonstrate long cohabitation and public recognition and acknowledgement of paternity. They further submit that, even if the second marriage was void because the first marriage continued, Section 16 of the Hindu Marriage Act protects their right to inherit their father's property.

14. The learned counsel for the appellants/plaintiffs would submit that the Trial Court has not properly appreciated the oral and documentary evidence adduced on their behalf. According to the appellants, Savithiri Ammal had lived with Sundarathirusangu for several years, and the appellants were born of that relationship. In support of their case, reliance was placed on Ex.A8-family photograph, Ex.A10-Legal Heir Certificate, Ex.A11-Income Certificate, Ex.A13-Transfer Certificate, Ex.A14- Community Certificate, Ex.A15-Conduct Certificate, Ex.A16-Aadhaar Card, Ex.A17-Voters List and Exs.A18 to A21-letters, which, according to them, establish their relationship with Sundarathirusangu. The learned counsel would further contend that the order passed in S.C.O.P.No.7 of 2003, granting a Succession Certificate in favour of the first defendant, was only in summary proceedings and would not operate as res judicata in the present partition suit, relying on Madhvi Amma Bhawani Amma v. Kunjikutty Pillai Meenakshi Pillai, (2000) 6 SCC 301 and Joginder Pal v. Indian Red Cross Society, (2000) 8 SCC 143. It was also submitted that additional evidence relating to the death of Mahalingam and the examination of Savithiri Ammal and other witnesses are necessary for proper adjudication. Hence, the learned counsel prayed for the setting aside of the judgment and decree of the Trial Court and for the allowance of the appeal.

15. The learned counsel appearing for the respondents/defendants would submit that the appellants/plaintiffs have failed to establish the alleged marriage between Savithiri Ammal and Sundarathirusangu, and consequently failed to prove their entitlement to any share in the suit properties. It was pointed out that the plaintiffs themselves admitted that Savithiri Ammal had earlier married one Mahalingam, and Ex.B22-Patta described her as the wife of Mahalingam. In contrast, no independent witness or satisfactory documentary evidence was produced before the Trial Court to prove the alleged subsequent marriage or long cohabitation with Sundarathirusangu. It was further contended that Exs.A8, A10, A11 and A13 to A17 would not, by themselves, prove either the marriage or the paternity of the appellants, and that Exs.A18 to A21 were also not proved to have been written by Sundarathirusangu. It was further submitted that the first defendant had purchased the suit property under Ex.B1, had discharged the housing loan through Exs.B6 to B19, and thereafter executed the registered Will dated 10.04.2006 under Ex.B5 in favour of the respondents, the due execution of which was proved through the attesting witness examined as D.W.2. In support of the contention that precedents must be applied having regard to the facts and circumstances of each case and that observations in judgments cannot be read as statutory provisions, reliance was placed upon Bharat Petroleum Corporation Ltd. and another v. N.R. Vairamani and another, AIR 2004 SC 4778. The learned counsel also opposed the appellants' attempt to produce additional documents and examine witnesses at the appellate stage, contending that such evidence was within their knowledge and possession during trial and that no satisfactory reason was shown for its earlier non-production. Therefore, according to the defendants, the Trial Court rightly dismissed the suit, and the appeal as well as the application for additional evidence are liable to be dismissed.

16. The following points arise for consideration:

                     1. Is the application filed under Order XLI Rule 27 CPC to receive additional documents and examine additional witnesses liable to be allowed?

                     2. Was any marriage solemnised between the deceased, Sundarathirusangu, and Savithiriammal, the mother of the plaintiffs?

                     3. Are the plaintiffs entitled to a share of the properties left by the deceased Sundarathirusangu?

                     4. Are the judgment and decree of the trial court liable to be set aside?

Point No.1

17. The plaintiffs/appellants have filed the present Civil Miscellaneous Petition seeking permission to produce additional documents and to examine Savithiriammal, their mother, and two other persons as additional witnesses. From the affidavit and the material placed before this Court, it appears that the proposed witnesses were known to and available to the plaintiffs even during the trial.

18. Order XLI Rule 27 CPC does not confer an unfettered right upon a party to adduce additional evidence at the appellate stage. Additional evidence may be admitted only in the circumstances enumerated therein, namely:

                     1. where the Trial Court refused to admit evidence that ought to have been admitted;

                     2. where, notwithstanding the exercise of due diligence, the evidence was not within the party’s knowledge or could not be produced at the time the decree appealed against was passed; or

                     3. where the Appellate Court requires the production of such a document or the examination of a witness to enable it to pronounce judgment, or for any other substantial cause.

19. In the present case, the first contingency does not arise, as the Trial Court did not refuse to admit any evidence sought to be adduced by the plaintiffs. The second contingency is also inapplicable. Savithiriammal is none other than the mother of the plaintiffs and, according to their own case, a direct party to the alleged marriage with the deceased Sundarathirusangu. She was admittedly available during the trial. Likewise, the other proposed witnesses were known to the plaintiffs. No satisfactory explanation is forthcoming as to why these witnesses could not have been examined before the Trial Court despite due diligence.

20. The principal issue before the Trial Court was whether a marriage had, in fact, been solemnised between the deceased, Sundarathirusangu, and Savithiriammal. Having appreciated the evidence adduced by the parties, the Trial Court found that the plaintiffs had failed to prove the factum of such marriage. After that finding, the plaintiffs now seek to examine their mother and other relatives to adduce evidence not previously adduced before the Trial Court. Permitting such evidence at the appellate stage would, in substance, allow the plaintiffs to fill the lacuna in their case after becoming aware of the deficiencies noticed by the Trial Court. Order XLI Rule 27 CPC cannot be invoked for such a purpose.

21. There is another significant circumstance. In the plaint, the plaintiffs did not specifically plead that the alleged marriage was solemnised in 1978 at the Ulagalanda Perumal Temple, Tirukovilur. Such particulars were first introduced in their evidence. If the said temple maintained any contemporaneous record of the alleged marriage, the production of such an independent record could have had a bearing on the issue. No such contemporaneous record is sought to be produced. Instead, the plaintiffs seek to introduce further oral evidence from their mother and relatives at the appellate stage, which is likely to extend beyond and improve upon the case originally pleaded.

22. The documents now sought to be produced also do not appear necessary for this Court to pronounce judgment on the controversy, given the evidence already on record. Accordingly, the third requirement under Order XLI Rule 27(1)(b) of the CPC is not satisfied.

23. The Supreme Court has reiterated that additional evidence cannot be admitted merely to “fill in the lacunae or to patch up the weak points” in a party's case. In Satish Kumar Gupta v. State of Haryana, decided on 21.02.2017 (2017 (4) DCC 760), the Supreme Court applied these principles when considering Order XLI Rule 27 CPC. Accordingly, none of the requirements under Order XLI Rule 27 CPC are made out. The Civil Miscellaneous Petition seeking the reception of additional evidence and the examination of additional witnesses is therefore dismissed.

Point No.2

24. The plaintiffs claim a share in the estate of the deceased, Sundarathirusangu, on the footing that they are his daughters, born to Savithiriammal. It is admitted that the deceased, Sundarathirusangu, was married to the first defendant, Mrs Marimuthu, and that they had no children. The plaintiffs' mother, Savithiriammal, was also married to Mahalingam. Sundarathirusangu died intestate on 21.04.2003, and the present suit was originally instituted on 20.07.2003.

25. According to the plaintiffs, their mother, Savithiriammal, married the deceased about twenty-five years before the institution of the suit. However, the plaint does not disclose the date or year of the alleged marriage, the place where it was solemnised, the persons in whose presence it was performed, or the ceremonies by which the marriage was solemnised. Instead, the plaint primarily proceeds on the footing that the deceased and Savithiriammal lived together as husband and wife, and that, through such cohabitation, the plaintiffs were born. It is also pleaded that Savithiriammal married the deceased according to their caste custom, with the consent of the first defendant. However, neither the nature of the alleged caste custom nor the essential ceremonies constituting such a customary marriage have been pleaded or proved.

26. The first defendant has categorically denied the alleged marriage. She has also disputed the plaintiffs' claim that they were born to the deceased Sundarathirusangu. Once the fact of marriage is specifically denied, the burden lies with the plaintiffs to establish the alleged marriage by acceptable evidence. However, no witness to the alleged marriage or person with direct knowledge of it has been examined.

27. Significantly, for the first time in the proof affidavit, the plaintiffs sought to introduce a specific case stating that the marriage between the deceased Sundarathirusangu and Savithiriammal was solemnised in 1978 at the Ulagalanda Perumal Temple, Tirukovilur. No such specific case regarding the year and place of marriage appears in the plaint. This constitutes a material improvement in the evidence beyond the pleadings. It is well settled that no amount of evidence can be considered in support of a case which has not been pleaded.

28. Even otherwise, no documentary evidence from the said temple has been produced to substantiate the alleged marriage. If the marriage had in fact been solemnised in a temple administered by the Hindu Religious and Charitable Endowments Department, the plaintiffs could reasonably have sought to produce any available contemporaneous record, if any, or to examine a person who knew of the ceremony. No such evidence has been produced.

29. There is yet another relevant circumstance. At the alleged time of marriage in 1978, the first defendant was, as admitted, the legally wedded wife of the deceased, and the marriage was subsisting. The plaintiffs do not contend that the first marriage had been dissolved or that the deceased had concealed its subsistence from Savithiriammal. Sundarathirusangu was employed as a Secondary Grade Teacher in a Government School. A second marriage during the subsistence of the first would have attracted the applicable Government Servants' Conduct Rules and possible disciplinary consequences. Nevertheless, no service record or other material has been produced to show that the deceased ever declared or acknowledged Savithiriammal as his wife during his service. Though this circumstance alone cannot conclusively disprove the alleged marriage, it assumes significance when considered alongside the absence of direct evidence of its solemnisation.

30. More importantly, Savithiriammal herself was the most competent and natural witness to the alleged marriage between her and the deceased. The evidence indicates that she was available and maintained a cordial relationship with the plaintiffs. Yet she was not examined, and no satisfactory explanation has been offered for withholding her evidence. In these circumstances, an adverse inference may legitimately be drawn against the plaintiffs.

31. Thus, the plaintiffs have failed to establish the date, place, ceremonies, or customary requirements of the alleged marriage between Savithiriammal and the deceased, Sundarathirusangu. The oral and documentary evidence on record is insufficient to establish the factum of such marriage. Accordingly, this point is answered against the plaintiffs, holding that they have failed to prove that any marriage was solemnised between the deceased, Sundarathirusangu, and Savithiriammal.

Point No. 3

32. The plaintiffs rely on the school Transfer Certificates, Community Certificates and certain letters, allegedly written by the deceased, Sundarathirusangu, to the first plaintiff, to establish that they are the children of Sundarathirusangu and Savithiriammal. It is further contended that the deceased and Savithiriammal cohabited for nearly twenty-five years and that relatives, friends and members of the society treated them as husband and wife.

33. Even assuming that the above evidence is sufficient to establish the paternity of the plaintiffs or that they were born out of the relationship between the deceased Sundarathirusangu and Savithiriammal, that evidence, by itself, would not entitle them to claim the benefit conferred by Section 16 of the Hindu Marriage Act, 1955. Proof of biological paternity and proof of a marriage void under Section 11 of the Act are distinct matters.

34. To attract Section 16(1) of the Hindu Marriage Act, there must first have been a solemnisation of marriage between the parents. However, such a marriage may be null and void under Section 11 for contravention of any of the conditions specified in clauses (i), (iv) or (v) of Section 5. Section 16 legitimises children born of such a void marriage, notwithstanding its nullity. However, where no marriage at all was solemnised between the parents, the relationship cannot be treated as a void marriage merely for the purpose of invoking Section 16.

35. In answering Point No.2, this Court has already found that the plaintiffs failed to prove the solemnisation of any marriage between the deceased, Sundarathirusangu, and Savithiriammal. Therefore, this is not a case in which a marriage was solemnised and then became void on account of the subsistence of the deceased's earlier marriage with the first defendant. Rather, the very fact of the alleged second marriage has not been established.

36. Had the plaintiffs proved that a marriage was solemnised between Sundarathirusangu and Savithiriammal, but that such marriage was void under Section 11 read with Section 5(i) owing to the subsistence of his marriage with the first defendant, the children born of that void marriage would have been entitled to the protection of Section 16, including the rights recognised by law in their parents' property. However, that is not the factual situation established in the present case.

37. Consequently, even if the documents relied upon by the plaintiffs are taken to establish that Sundarathirusangu was their biological father, such proof of paternity alone cannot bring their case within Section 16(1) in the absence of proof of a marriage between their parents. Therefore, the plaintiffs cannot claim a share in the properties left by the deceased under Section 16 of the Hindu Marriage Act. Accordingly, Point No. 3 is answered against the plaintiffs, holding that they are not entitled to a share in the properties left by the deceased, Sundarathirusangu.

Point No.4

38. In view of the findings rendered on Point Nos. 1 to 3, the plaintiff is not entitled to the relief of partition. Consequently, the judgment and decree of the Trial Court are liable to be confirmed, and the appeals A.S. No. 720 of 2019 and C.M.P. No. 19560 of 2025 are dismissed. There shall be no order as to costs. Consequently, the miscellaneous petitions, if any, shall stand closed.