Vijayakumar v. Balamurugan

IN THE HIGH COURT OF JUDICATURE AT MADRAS

Reserved on : 24.07.2018 Pronounced on : 09.11.2018

CORAM:

THE HON'BLE MR.JUSTICE P.RAJAMANICKAM S.A.No.722 of 2002 and CMP.No.1208 of 2009

1. Vijayakumar 2.Ashok Kumar 3.Ramesh Kumar 4.Kalaiselvi ... Appellants/defendants 2 to 5 Vs.

1. Balamurugan 2.Uma Maheswari 3.Anbukarasi ... Respondents/plaintiffs 4.Gopal (died) (R4 died. Recorded vide court order dated 18.07.2018 made in SA.No.722/2002) ... Respondents/1st defendant Prayer:- Second Appeal filed under Section 100 of C.P.C., to set aside the Judgment and decree dated 29.01.2002 made in A.S.No.96 of 2001 on the file of the Additional District Judge, Tiruvannamalai, reversing the Judgment and Decree dated 16.07.2001 made in O.S.No.54 of 1999 on the file of the learned Principal Subordinate Judge, Tiruvannamalai. For Appellants : Mr.R.Siddharth for M/s.R.T.Rajaraman For Respondents: Mr.S.Vediappan for Mr.R. Karthikayan for R1 to R3.

J U D G M E N T

This second appeal has been filed by the defendants 2 to 5 against the judgment and decree passed by the Additional District Judge, Tiruvannamalai in A.S.No.96 of 2001 dated 29.01.2002 reversing the judgment and decree passed by the Principal Sub-Judge, Tiruvannamalai in O.S.No.54 of 1999 dated 16.07.2001.

2. The respondents 1 to 3 herein have filed a suit in O.S.No.54 of 1999 on the file of the Principal Sub-Judge, Tiruvannamalai to divide the suit properties into eight equal shares and allot three such shares to the plaintiffs and to direct the defendants to account for the income for the suit properties from the date of suit till the date of delivery of separate possession. The learned Principal Sub-Judge by the judgment dated 16.07.2001 has dismissed the said suit without costs. Aggrieved by the same, the plaintiffs have filed an appeal in A.S.No.96 of 2001 on the file of the Additional District Judge, Tiruvannamalai. The learned Additional District Judge, Tiruvannamalai, by the judgment dated 29.01.

2002 has allowed the said appeal and set aside the judgment and decree passed by the trial court and granted preliminary decree for partition as prayed for and also ordered for separate enquiry in respect of rendition of accounts. However, he directed the parties to bear their respective costs. Feeling aggrieved, the defendants 2 to 5 have filed the present second appeal. For the sake of convenience, the parties are referred to as described before the trial court.

3. The averments made in the plaint are, in brief, as follows:

The first defendant is the father of the plaintiffs and the defendants 2 to 5. The first defendant got married the mother of the plaintiffs viz., Vijaya @ Vijayalakshmi as second wife in the year 1972. The said marriage was solemnised as "Suyamariyathai Tirumanam" on 04.03.1972 in the presence of the relatives of both of them. From the date of the said marriage, the first defendant and the said Vijaya @ Vijayalakshmi have been living as husband and wife and infact, they got a document registered on 04.03.1972. After their marriage, out of the said wedlock, the plaintiffs were born. As per Section 16 of the Hindu Marriages Act, 1955, the plaintiffs are the legitimate children and they are entitled to get share in the ancestral property also.

Further, the plaintiffs 2 and 3 married only after commencement of Hindu Succession Hindu (Tamil Nadu Amendment) Act, 1989 and hence they also became coparceners . The defendants 2 to 4 are the sons and the fifth defendant is the daughter of the first defendant born through the first wife viz., Kamala. The defendants 2 to 5 are living with their mother, whereas the plaintiffs are living with the first defendant. The first defendant served as Village Administrative Officer and he retired from service on 31.07.1998. The suit properties are the ancestral properties of the first defendant, his brother Sundaresan and their father Mannar Gounder. The said Mannar Gounder died on 29.10.1998.

During his life time, the family properties were orally partitioned in the year 1996 and in the said oral partition, the suit properties were allotted to the first defendant.

fact the father of th first defendant had retained items 19 to 29 for his share with an understanding that after his life time, the said properties should go to the first defendant. After the death of the said Mannar Gounder, the aforesaid properties were succeeded by the first defendant. So, all the suit properties are ancestral properties of the first defendant. The plaintiffs are entitled for three-eighth share in the suit properties and hence they called upon the defendants for amicable partition, but they did not come forward for partition and hence the plaintiffs were forced to file the above suit for partition and for rendition of accounts.

4. The averments made in the written statement filed by the first defendant are in brief as follows:

The allegation that the first defendant had married the mother of the plaintiffs as second wife is true. It is also true that the plaintiffs and the defendants 2 to 5 are the children of the first defendant. It is also true that the suit properties are ancestral and joint family properties of Mannar Gounder. But, the defendants 2 to 4, have created a Will dated 13.06.1996 as if the said Mannar Gounder had bequeathed his properties in favour of the defendants 2 to 4. On 12.11.1997, the said Mannar Gounder had executed a Will in favour of the first defendant bequeathing all his properties and thereby the Will dated 13.06.1996 was cancelled. The said Mannar Gounder died on 29.10.1998 and after his death, the said Will came into force and the first defendant succeeded to the properties.

The defendants 2 to 4 attempted to interfere with the possession and enjoyment of the first defendant and hence, the first defendant has filed a suit in O.S.No.228 of 1999 on the file of the District Munsif, Tiruvannamalai and the said suit is still pending. The plaintiffs are not entitled to seek for partition because the first defendant alone is entitled to the suit properties as absolute owner. Therefore, he prayed to dismiss the suit.

5. The averments made in the written statement filed by the second defendant and adopted by the defendants 3 to 5 are, in brief, as follows:

a)The allegation that the first defendant had married the plaintiffs' mother viz., Vijaya @ Vijayalakshmi on 04.03.1972 as "Suyamariyathai Tirumanam" is false. The said Vijaya @ Vijayalakshmi had been married to one Pachaippan S/o. Ayyasamy Gounder. The said marriage is not dissolved and is valid even today. The allegation that the first defendant and the said Vijaya @ Vijayalakshmi exchanged garlands and first defendant tied sacred thread around her neck are all false. It is pertinent to point out that the place of marriage and the persons who attended the marriage are not mentioned in the plaint. The allegation that the first wife was not living with the first defendant is false. In fact, the defendants 2 to 5

were born to the first defendant through the said Kamala. The defendants 4 and 5 were born only after 04.03.1972. The alleged document dated 04.03.1972 itself would belie the contention of the plaintiffs. The true fact is that the mother of the plaintiffs viz., Vijaya @ Vijayalakshmi deserted her husband Pachaippan and was living as a concubine of first defendant. Infact, the document dated 04.03.1972 only speaks about the fact that the first defendant and Vijayalakshmi entered into a contract to live together. It will not confer on her the status of wife. So, the plaintiffs cannot claim that they are legitimate child of the first defendant under Section 16 of the Hindu Marriages Act. It is true that the father of the first defendant viz., Mannar Gounder died on 29.10.1998.

The suit properties are self-acquired properties of Mannar Gounder. The said Mannar Gounder while he was in sound disposing state of mind, voluntarily executed a registered Will on 19.06.1996 and thereby bequeathed the properties situated in S.No.139/5 and 140/5 to the first defendant to be enjoyed by him during his life time without any power of alienation and after the life time of first defendant, the property should devolve upon the defendants 2 to 4. All the other suit properties were bequeathed in favour of the defendants 2 to 4. b) By virtue of the said Will, defendants 2 to 4 are in possession and enjoyment of the suit properties. It is true that the first defendant has filed a suit in O.S.No.228 of 1999 on the file of the District Munsif, Tiruvannamalai and the defendants 2 to 5 are contesting the said suit.

The plaintiffs are not entitled to get any share in the suit property. Infact, the present suit itself has been filed by the plaintiffs only at the instigation of the first defendant and therefore, the defendants 2 to 5 had prayed to dismiss the above suit.

6. Based on the aforesaid pleadings, the learned Sub-Judge has framed necessary issues and tried the suit. During trial, on the side of the plaintiffs, the first plaintiff was examined as PW1 and also examined three more witnesses as PW2 to PW4. They have marked Exs.A1 to A9 as exhibits. On the side of the first defendant, the first defendant examined himself as DW1 and he also examined three more witnesses as D.W.2 to D.W.4. On behalf of the defendants 2 to 5, the fourth defendant was examined as DW5 and two more witnesses were examined as witnesses DW6 and DW7. On the side of the first defendant, Ex.B1 was marked. On the side of the defendants 2 to 5 Ex.B2 was marked.

7. After considering the materials placed before him, the learned Sub-Judge found that the plaintiffs have not proved that their mother viz., Vijaya @ Vijayalakshmi got married the first defendant. He further found that the suit properties are the joint family properties and as such, the father of the first

defendant viz., Mannar Gounder had no right to execute a Will (Ex.B1) in favour of the first defendant in respect of the entire extent of the suit properties. He further found that the plaintiffs are not entitled to ask any share in the suit properties and accordingly, he dismissed the suit without costs. Aggrieved by the same, the plaintiffs filed an appeal in A.S.No.96 of 2001 on the file of the Additional District Judge, Tiruvannamalai. The learned Additional District Judge has allowed the said appeal and set aside the judgment and decree passed by the trial court and passed a preliminary decree directing to divide the suit properties into eight equal shares and allot three such shares to the plaintiffs. In respect of the rendition of accounts, he has ordered a separate enquiry. Feeling aggrieved, the defendants 2 to 5 have filed the present second appeal.

8. This court at the time of admitting the second appeal has formulated the following substantial questions of law: "(i) When there cannot be a presumption of second marriage, is the learned Additional District Judge right in presuming that there is a valid marriage between PW4 and first defendant and decreeing the suit for partition?

(ii) When there is no proof of marriage between PW4 and 1st defendant, is the learned Additional District Judge right in his presumption of valid marriage only on the basis of oral evidence of the plaintiffs?

(iii) When the plaintiffs are only illegitimate children of 1st defendant and have right to claim partition in the father's share alone, is the learned Additional District Judge right in decreeing the suit with respect to 3/8 share in the suit properties?"

9. During pendency of the second appeal, the fourth respondent/first defendant died. Since his legal heirs are already on record, the appeal will not abate due to the death of the respondent No.4/first defendant.

10. Heard Mr.R.Siddharth for M/s.R.T.Rajaraman, learned counsel for theappellants and Mr.S.Vediappan for Mr.R. Karthikayan for R1 to R3.

11. Substantial Questions of law (i) to (iii): Learned counsel for the appellants has submitted that the plaintiffs have not proved the marriage which was said to have been solemnised between their mother viz., Vijaya @ Vijayalakshmi and the first defendant. Further, he submitted

that in Ex.A4, it is not specifically stated that the said Vijaya @ Vijayalakshmi and the first defendant have not married. He further submitted that merely because in the marriage invitations and in the school certificate and in the birth certificate, it is stated that the first defendant is the father of the plaintiffs, it cannot be said those documents are proof of the marriage between the plaintiffs' mother and the first defendant. He further submitted that since already the said Vijaya @ Vijayalakshmi got married to one Pachaiappan and the said marriage has not been dissolved in accordance with law, and on the basis of the long co-habitation with the first defendant, cannot claim presumption of marriage. For the aforesaid contention, he relied upon the following decisions:

(1) Kaliammal (died) and others Vs. Chenniappa Gounder (deceased) and others 2014 (1) MWN (civil) 28;

(2) Leelavathy Vs. A. Velayutham 2012 - 3 - L.W 422.

12. Learned counsel for the appellants further submitted that even assuming that the marriage was solemnised between the plaintiffs' mother and the first defendant, since, admittedly the properties are ancestral properties, as per Section 16 (3) of the Hindu Marriages Act, the plaintiffs cannot claim any right over the ancestral properties. He further submitted that as per Section 16 (3) of the Hindu Marriages Act, the children who have born through the void or voidable marriage can claim right only in the properties of their parents. He further submitted that since the first defendant was alive at the time of filing of the suit, the plaintiffs cannot claim any right in the properties of the first defendant during his life time.

He further submitted that taking into consideration of the aforesaid facts, the trial court has rightly dismissed the suit filed by the plaintiffs but the first appellate court, without considering the aforesaid facts in proper perspective, has set aside the judgment and decree passed by the trial court and decreed the suit and therefore, he prayed to allow the second appeal and set aside the judgment and decree passed by the first appellate court and restore the judgment and decree passed by the trial court.

13. In support of the aforesaid contentions, he relied upon the following decisions.

1. Bharatamatha and another Vs. Vijaya Renganathan and others (2010) 11 SCC 483 ;

2. Balakrishnan and others Vs. Selvi and others AIR 2018 MAD 103;

3. Jinia Keotin & Others Vs. Kumar Sitaram Manjhi & Others 2003 (1) 250 CTC;

4. Revanasiddappa and another Vs. Mallikarjan & Others 2011 SAR (Civil) 376

14. Per contra, learned counsel for the respondents 1 to 3/plaintiffs has submitted that the first defendant is the proper person to say as to whether any marriage was solemnised between himself and the plaintiffs' mother. The first defendant in his written statement as well as in evidence has categorically admitted that he got married the plaintiffs' mother and therefore, no further proof is required. He further submitted that the said marriage was solemnised as "Suyammariyathai Tirumanam" and hence, the said marriage is valid. He further submitted that the said marriage was registered under Ex.A4 document and the said fact was also proved through the oral evidence of PW2 and PW4 and also DW1. He further submitted that in Revanasiddappa and another Vs.

Mallikarjan & Others (supra), the Hon'ble Supreme Court has held that the children born through void or voidable marriage are innocent as any other children and they are entitled to all rights in the property of their parents, both self-acquired and ancestral, however, the Hon'ble Supreme Court has referred the matter for Larger Bench for authoritative pronouncement.

15. He further relying upon the decisions of the Hon'ble Supreme Court in Manager, National Insurance Company Ltd., Vs. Saju P. Paul & another, supp, (2013) 2 SCC 41 and P. Sudhakar Rao Vs. U. Govinda Rao & Others (2013) 8 SCC 693 submitted that the pendency of similar matter before the larger Bench of the Hon'ble Supreme Court would not preclude the court from considering the matter on merits.

16. The plaintiffs' mother Vijaya @ Vijayalakshmi while examining herself as PW4 has stated that in the year 1972, the marriage between herself and the first defendant was solemnised in her house and at the time, they have exchanged the garlands and the first defendant tied Thali on her neck to evident their marriage, a document was executed and the same has been registered on the very same day and the said document has been marked as Ex.A4. Though in the said document, it is not specifically stated that the marriage was solemnised between them but it is evident from the said document that the plaintiffs' mother and the first defendant have decided to live together as husband and wife from the said date onwards.

Further, the first defendant is the proper person to say as to whether the marriage was solemnised between himself and the plaintiff's mother viz., Vijaya @ Vijayalakshmi. The first defendant in the written statement and also in his evidence has clearly admitted that he married the said Vijaya @ Vijayalakshmi. In such a case, their marriage cannot be disputed by the defendants 2 to 5.

17. In Leelavathy Vs. A.Velayautham (supra), the defendant claimed that she is the wife of the plaintiff. Hence the

plaintiff had filed a suit to declare that the defendant is not his wife. The trial court has held that the defendant failed to prove that a marriage was solemnised between her and the plaintiff and accordingly, decreed the suit. Aggrieved by the same , the defendants had filed an appeal before this court. This court taking into consideration that the defendant has not proved, alleged "Suyammariyathai Tirumanam" because as per Section 7 (a) of the Hindu Marriage Act, 1955, "Suyammariyathai" marriage has to be held in the presence of the friends and relatives whereas in that case, there was no evidence adduced to the effect that the said marriage was solemnised in the presence of relatives and friends and accordingly, dismissed the said appeal. Whereas in this case, the husband viz.

, the first defendant herein himself has admitted that he got married the plaintiffs' mother as second wife. After marriage, they lived together and the plaintiffs were born to them and hence, the aforesaid decision will not apply to the facts of the case. Taking into consideration of the evidence of the PW2 to PW4 and DW1, the First appellate court has come to the conclusion that the marriage was solemnised between the plaintiffs' mother and the first defendant and in the said factual findings, this court cannot interfere.

18. The next question that arises for consideration is whether the suit properties are ancestral properties to the first defendants' father viz., Mannar Gounder or his selfacquired properties. If the said properties are his selfacquired properties, then only he can dispose of the said properties through a Will. In this case, the plaintiffs, in the plaint, have categorically admitted that the suit properties are the ancestral properties of the first defendant. The first defendant also admitted in his written statement that the suit properties are ancestral properties and in such a case, the said Mannar Gounder cannot execute a Will in favour of the first defendant bequeathing all the properties.

19. It is also to be pointed out that the first defendant has filed a suit in O.S.No.228 of 1999 on the file of the District Munsif, Tiruvannamalai, and the copy of the plaint filed in that suit has been produced by the defendants 2 to 5 and marked as Ex.B2. A perusal of Ex.B2 would show that in that suit, the first defendant has not claimed that his father had executed a Will in his favour. Further DW2 who is said to have been one of the attestors of Ex.B1/ Will was also examined as PW2, but while examining himself as PW2, he has not stated anything about the execution of Ex.B1/Will. Further the first defendant also has not asked any question to the PW1 as to the execution of the Ex.B1/Will. Therefore, under such circumstances, the contention of the first defendant that his father had executed Ex.B1/Will cannot be accepted.

20. Admittedly, the suit properties are ancestral properties to the first defendant. According to the plaintiffs, as per Section 16 (3) of the Hindu Marriage Act, the plaintiffs should also be treated on par with the defendants 2 to 5 and hence they are entitled to get 3/8th shares in the suit properties. The first defendant while examining himself as DW1 has supported the case of the plaintiffs. The defendants 2 to 5 contended that as per Section 16(3) of the Hindu Marriage Act, the children who were born through the void or voidable marriage can claim share only in their parents' property and not in the ancestral properties.

21. In Jinia Keotin & Others Vs. Kumar Sitaram Manjhi & Others (supra); Neelamma and Others Vs. Sarojamma and Others, (2006) 9 SCC 612 and also in Bharathamatha and another Vs. Vijaya Renganathan and others, AIR 2010 SC 2685, the Hon'ble Supreme Court has held that a child born in a void or voidable marriage was not entitled to claim inheritance in ancestral coparcenary property but was entitled to claim only share in self-acquired properties.

22. In Revanasiddappa and another Vs. Mallikarjan & Others (supra), the Hon'ble Supreme Court has held in paragraph Nos.32 to 36 and 41 to 43 as follows:

"32. It has been held in Parayankandiyal (supra) that Hindu Marriage Act is a beneficent legislation and intends to bring about social reforms. Therefore, the interpretation given to Section 16(3) by this Court in Jinia Keotin (supra), Neelamma (supra) and Bharatha Matha (supra) needs to be reconsidered.

33. With the amendment of Section 16(3), the common law view that the offsprings of marriage which is void and voidable are illegitimate `ipso-jure' has to change completely. We must recognize the status of such children which has been legislatively declared legitimate and simultaneously law recognises the rights of such children in the property of their parents. This is a law to advance the socially beneficial purpose of removing the stigma of illegitimacy on such children who are as innocent as any other children.

34. However, one thing must be made clear that benefit given under the amended Section 16 is available only in cases where there is a marriage but such marriage is void or voidable in view of the provisions of the Act.

35. In our view, in the case of joint family property such children will be entitled only to a share in their parents' property but they cannot claim it on their own right. Logically, on the partition of an ancestral property, the property falling in the share of the parents of such children is regarded as their self acquired and absolute property. In view of the amendment, we see no reason why such children will have no share in such property since such children are equated under the amended law with legitimate offspring of valid marriage. The only limitation even after the amendment seems to be that during the life time of their parents such children cannot ask for partition but they can exercise this right only after the death of their parents.

36. We are constrained to differ from the interpretation of Section 16(3) rendered by this Court in Jinia Keotin (supra) and, thereafter, in Neelamma (supra) and Bharatha Matha (supra) in view of the constitutional values enshrined in the preamble of our Constitution which focuses on the concept of equality of status and opportunity and also on individual dignity. The Court has to remember that relationship between the parents may not be sanctioned by law but the birth of a child in such relationship has to be viewed independently of the relationship of the parents. A child born in such relationship is innocent and is entitled to all the rights which are given to other children born in valid marriage. This is the crux of the amendment in Section 16(3). However,some limitation on the property rights of such children is still there in the sense their right is confined to the property of their parents. Such rights cannot be further restricted in view of the pre- existing common law view discussed above.

- - - - - -

40. Right to property is no longer fundamental but it is a Constitutional right and Article 300A contains a guarantee against deprivation of property right save by authority of law.

41. In the instant case, Section 16(3) as amended, does not impose any restriction on the property

right of such children except limiting it to the property of their parents. Therefore, such children will have a right to whatever becomes the property of their parents whether self acquired or ancestral. 42.For the reasons discussed above, we are constrained to take a view different from the one taken by this Court in Jinia Keotin (supra), Neelamma (supra) and Bharatha Matha (supra) on Section 16(3) of the Act.

43. We are, therefore, of the opinion that the matter should be reconsidered by a larger Bench and for that purpose the records of the case be placed before the Hon'ble the Chief Justice of India for constitution of a larger Bench."

23. In the aforesaid decision, the Hon'ble Supreme Court has taken a different view from the one taken by the Hon'ble Surpeme Court in Jinia Keotin & Others Vs. Kumar Sitaram Manjhi & Others and Bharatamatha and another Vs. Vijaya Renganathan and others (supra) on Section 16 (3) of the Act and referred the matter for a larger Bench.

24. In Manager National Insurance Company Ltd., Vs. Saju P. Paul and another (supra) and P. Sudhakar Rao Vs. U. Govinda Rao and others (supra), the Hon'ble Supreme Court held that the pendency of the matter before Larger Bench of the Hon'ble Supreme Court would not preclude the court from considering the matter on merits. Therefore, the pendency of the matter before the larger bench is not a bar for deciding the issue on merit.

25. As stated supra that the Hon'ble Supreme Court in Revanasiddappa and another Vs. Mallikarjan & Others 2011 SAR (Civil) 376 has held that in the case of joint family property, the children born through void or voidable marriage will be entitled only to a share in their parents' property but they cannot claim it on their own right. It was further held that logically, on the partition of an ancestral property, the property falling in the share of the parents of such children is regarded as their self acquired and absolute property. It was also held that in view of the amendment, the Hon'ble Supreme Court felt that no reason why such children will have no share in such property since such children are equated under the amended law with legitimate offspring of valid marriage. It was also held that the only limitation even after the amendment seems to be that during the life time of their parents such

children cannot ask for partition but they can exercise this right only after the death of their parents. Therefore, the children who have born through void or voidable marriage are entitled to share in the parents' property and the same benefit can be extended to the properties obtained by the parents through partition also. So, in view of the aforesaid decision of the Hon'ble Supreme Court, the plaintiffs can ask for partition only in the first defendant's share in the suit properties. At the time of filing of the suit, the first defendant was alive. So in view of the above decision of the Hon'ble Supreme Court and also the decision in Balakrishnan and others Vs. Selvi and others, (supra) during the life time of the first defendant, the plaintiffs cannot claim partition.

But during the pendency of the second appeal, the first defendant died. So, now the plaintiffs can ask for partition in the first defendant's share. The plaintiffs and the defendants 2 to 5 are being legal heirs of the first defendant, they are entitled to get one share each. Therefore, the plaintiffs are entitled to get 3/7th share in the first defendant's share. As already pointed out that the suit properties are ancestral properties in which the first defendant and his sons viz., the defendants 2 to 4 who were born through the first wife are equally entitled to get 1/4th share each and in that 1/4th share, the plaintiffs and the defendants 2 to 5 are entitled to get equal shares i.e., each plaintiff is entitled to get 1/28 share in the suit properties.

Accordingly, all the three plaintiffs are collectively entitled to get 3/28 share in the suit properties.

26. Accordingly, substantial questions of law are answered. In the result, the second appeal is partly allowed. Consequently, connected miscellaneous petition is closed. The judgment and decrees passed by the courts below are modified as follows:

a) That the suit properties be divided into twenty eight equal shares and three such shares be allotted to the plaintiffs collectively and to that extent, the preliminary decree is passed; and b) that both the parties should bear their respective costs.

s/d- Assistant Registrar(CS VI) True Copy Sub-Assistant Registrar

To

1. The Additional District Judge, Tiruvannamalai.

2. The Principal Subordinate Judge, Tiruvannamalai.

3. The Section Officer, V.R.Section, High Court, Madras.

+1 CC to Mr.R.Karthikeyan, Advocate sr 76708. +1 CC to Mr.T.R.Rajarajan, Advocate sr 76904. S.A.No.722 of 2002 and CMP.No.1208 of 2009 CNR(CO) SP(24/04/2019)