VAALAMMAL Vs. CHELLAMMAL

JUDGEMENT

(1.) The plaintiff in O.S.No.37 of 2004 on the file of the Sub Court, Thoothukudi, is the appellant in this second appeal.

(2.) The suit was for partition. The case of the plaintiff is that she was born through the wedlock between her mother Chellammal and father Chelladurai in the year 1964. Chelladurai dissolved the marriage through a registered document dtd. 20/11/1964 (Ex.A2). Thereafter, Chelladurai got married to the second defendant Mallammal. Through Mallammal, D3 to D7 were born. Chelladurai died in the year 2004. He died intestate. He left behind the suit properties. According to the plaintiff, the marriage between her mother and father could not have been dissolved through Ex.A2. The marriage between them should be deemed to have been legally subsisting. Therefore, the second defendant cannot be conferred the status of a wife. The second defendant cannot claim any share in the ancestral properties of Chelladurai. She also would contend that the suit first item which stands in the name of Chelladurai was purchased out of the ancestral nucleus and out of the said funds, Chelladurai purchased the other items in the name of the second defendant Mallammal.

(3.) The plaintiff's mother was shown as first defendant. But she remained exparte. The defendants 2 to 7 filed their written statement controverting the plaint averments. According to them, the marriage between Mallammal and Chelladurai took place some time in the year 1962 and thereafter, Chelladurai developed an illicit intimacy with Chellammal. It was suggested that the plaintiff might be an illegitimate child born through the said relationship. According to the defendants 2 to 7, the suit is clearly not maintainable. Since according to the plaintiff herself, the suit properties were purchased out of the ancestral nucleus, an illegitimate child is not entitled to any share in the suit properties. Based on the divergent pleadings, the learned trial Judge framed the necessary issues. The plaintiff examined herself as P.W.1 and Ex.A1 to Ex.A17 were marked. The second defendant examined herself as D.W.1. Three other children were examined as D.W.2 to D.W.4. Ex.B1 to Ex.B40 were marked. After a consideration of the evidence on record, the trial Judge, by judgment and decree dtd. 30/11/2007, dismissed the suit. Aggrieved by the same, the plaintiff filed A.S.No.14 of 2008 before the Additional District Judge/Fast Track Court No.II, Thoothukudi. The first Appellate Court, by the impugned judgment and decree dtd. 15/10/2009, confirmed the decision of the trial Court. Challenging the same, this second appeal came to be filed. The second appeal has not been admitted so far, though notice was ordered.