DEVAKI Vs. GOPALAN

JUDGEMENT

(1.) This appeal arises from the suit filed for partition of the plaint B-schedule which belonged to one Cheriya Ayyappan. The appellants and the 5th respondent were the defendants in the suit filed by respondents 1 to 4. The parties are referred to as plaintiffs and defendants. In the plaint it is alleged that the third defendant was the first wife of Cheriya Ayyappan and defendants 1, 2 and one Sasidharan are their children. It is further alleged that Cheriya Ayyappan married one Madhavi and plaintiffs 1 to 4 are the children born to them. Cheriya Ayyappan died in 1984. The plaintiffs claim a share in the plaint B-Schedule property. The trial court found that suppressing his marriage to the third defendant, Cheriya Ayyappan married Madhavi and so plaintiffs 1 to 4 are entitled to a share in the plaint B-Schedule property. Accordingly, it passed a preliminary decree for partition. The matter was taken up in appeal. The appellate court found that there was no 'solemnisation' of marriage between Cheriya Ayyappan and Madhavi. Still it held that the plaintiff being children of Cheriya Ayyappan are entitled to a share in the property. The substantial questions of law formulated by the court in relate to the contention that in the absence of 'solemnisation' of marriage between Cheriya Ayyappan and Madhavi the plaintiffs are not entitled to a share in his property.

(2.) It is well settled that illegitimate children of a male Hindu are not entitled to a share in his property unless they would have been legitimate if the marriage had been valid as provided under section 16 of the Hindu Marriage Act. Section 16 is attracted where the marriage would be valid but for the alleged contravention. It is a matter to be pleaded and proved. The learned Sub Judge found that Madhavi was only a concubine of Cheriya Ayyappan. If that finding of the learned Judge is correct, there cannot be any doubt that the plaintiffs are not entitled to a share in the property of Cheriya Ayyappan.

(3.) The first defendant is one of the children of Cheriya Ayyappan in his wife Mundi. He admitted that there was a marriage between Cheriya Ayyappan and Madhavi. But this admission is not binding of the other defendants.